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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)     On application of a justice system
    participant who is involved in proceedings in respect of an offence referred to
    in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
    justice may make an order directing that any information that could identify
    the justice system participant shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is satisfied that
    the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary
    for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer significant
    harm if their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
    made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.J., 2015 ONCA 97

DATE: 20150211

DOCKET: C53421

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.J. and S.J.

Appellants

Erika Chozik and Sonya Shikhman, for the appellants

Lisa Joyal, for the respondent

Heard: September 24, 2014

On appeal from the conviction entered by Justice Gordon
    D. Lemon of the Superior Court of Justice on December 1, 2010, and from the
    sentence imposed on March 14, 2011, with reasons reported at 2010 ONSC 6559.

Pepall J.A.:

A.      Overview

[1]

This appeal addresses the issue of failing to provide the necessaries of
    life to a child in necessitous circumstances contrary to s. 215(2)(a)(i) of the
Criminal Code
, R.S.C., 1985, c.
    C-46
.

[2]

The appellant mother and the appellant father were convicted of failing
    to provide the necessaries of life to their three year old child, H.  The trial
    judge found that H. had been in necessitous circumstances within the meaning
    of s. 215(2)(a)(i) of the
Code
and that the appellants failure to
    provide medical attention reflected a marked departure from what a reasonable
    parent would have done in the circumstances.  The trial judge sentenced each of
    the appellants to six months imprisonment.

[3]

The appellants appeal their convictions and advance four grounds in
    support of their position.
[1]
First, the appellants submit that the trial judge erred in finding that the
    term necessitous circumstances includes a failure to obtain medical attention
    under s. 215(2)(a)(i) of the
Code
.  Secondly, and in any event, he
    applied the wrong standard in convicting the appellants in the absence of
    evidence showing a causal connection between the appellants failure to provide
    necessaries of life and H.s necessitous circumstances.  Thirdly, the
    appellants submit that the trial judges misapprehension of the evidence
    resulted in a miscarriage of justice.  Fourthly, the appellants submit that the
    trial judge failed to provide adequate reasons.

[4]

The appellants also seek leave to appeal their sentences on the basis that
    they were manifestly unfit and the trial judge made errors in principle.

[5]

For the reasons that follow, I would dismiss the conviction appeals,
    grant leave to appeal the sentences, and dismiss the sentence appeals.

B.      Background Facts

[6]

H. was born on January 19, 2004.  When he was eight months old and his
    mother was pregnant with her second child, his parents sent him to live with his
    grandparents in India.

[7]

While in India, the appellants asked B.K., a family friend, to visit H.
    and see how he was.  She visited with him once and observed that he looked kind
    of slim and weak.

[8]

He was two years and ten months old when he returned to live with his
    parents in Canada on November 7 or 8, 2006.  H. was accompanied on the trip by B.K.
    During her time with him, B.K. changed H.s diapers and noticed that his skin
    was rough and dry.  She also noticed that his heels were dry and cracked.  Other
    than his outer wear, she did not remove his clothing from his upper body.

[9]

On arrival in Canada, B.K. went with H. to the appellants home.  The
    mother gave H. a bath.  When she came out of the bathroom, the mother was crying
    and said that she had made a big mistake allowing H. to go to India.

[10]

Dr.
    Shah was the appellants family doctor.  She had seen H. before he left for
    India and had no concerns relating to the appellants care for him although her
    notes indicated that H. suffered from dry skin and, at times, a full body skin
    rash.  The mother took H. to see Dr. Shah on November 15, 2006.  Dr. Shah
    examined H. that day.  She did not recollect that H. appeared malnourished.  However,
    out of concern for his low appetite, Dr. Shah ordered a stool test to
    investigate for parasites.  The test was not conducted as the mother failed to
    provide a stool sample from H.  On November 25, B.K. saw H. at a birthday
    party.  He appeared well and did not express any complaints to her.

[11]

On
    December 13, 2006, H. was taken to see Dr. Ubhi.  Dr. Ubhi did not testify at
    trial.  His notes described H. as not eating, lethargic.

[12]

On
    January 3, 2007, the mother attended Dr. Shahs office for a pre-natal visit.
    Her daughter was in attendance but H. was not.  At that time, the mother advised
    Dr. Shah that H. had fallen last weekend, got hurt, shoulders, bums, skin coming
    out.  She told Dr. Shah that she had been using Polysporin on H. but that it
    was not helping much.  Dr. Shah prescribed Fucidin cream for H.  She told the
    mother to bring H. in for a check-up.  The mother did not do so.

[13]

On
    January 16, 2007, the mother attended Dr. Shahs office with the appellants daughter.
    H. was not in attendance.

[14]

On
    January 27, 2007, H. suffered a seizure and was taken by ambulance to the
    Hospital for Sick Children in Toronto.  There was no evidence of the cause of
    the seizure.  However, there is no dispute that H. needed to be hospitalized.

[15]

When
    he appeared at the hospital, H. was malnourished, anemic, had vitamin C levels
    consistent with scurvy, three open wounds, and scars all over his body.  That
    same day, H. and his sister were apprehended by the Peel Childrens Aid
    Society.

[16]

Dr.
    Levin was the child abuse paediatrician on call.  On January 28, 2007, he examined
    H. in the hospital.  Dr. Levin was also a member of the Suspected Child Abuse
    and Neglect Team.  He had been called in because of evidence of multiple traumas
    to H. that looked like child abuse.  It was his opinion that H.:

[N]eeded fairly urgent, significant, dedicated, concentrated
    care. This child required hospital admission to the Paediatric Intensive Care
    Unit.  He required wound care or burn care, as we call it.  He required transfusion,
    antibiotics, multiple disciplinary assessment, behavioural and psychiatric
    intervention or psychological intervention.  He was direly in need of care.

[17]

Dr.
    Levin described injuries and scars to H.s chest, arms, shoulders, legs,
    flanks, back, anus, and upper thigh.  He had a healed broken bone in his hand
    and a healed broken fibula.  He needed blood transfusions.  Dr. Levin could not
    date when these injuries occurred and could not preclude their occurrence in
    India.

[18]

Additionally,
    H. had bruising that had occurred more recently but Dr. Levin could not rule
    out an accidental cause.  H. also had open wounds on his shoulder and buttocks
    that were more recent.  It was Dr. Levins opinion that these were caused by
    burns and did not occur as a result of a fall down stairs although members of
    his team thought these wounds could have occurred by abrasion or pressure
    sores.  It was Dr. Levins opinion that H. was a battered child complicated
    by secondary problems and complicated by co-incidental problems like malaria.

[19]

Dr.
    Howard Clarke, a plastic surgeon, was asked to treat H.s wounds while H. was
    in hospital.  Dr. Clarke considered that H.s injury was fully consistent with
    burns and the possible mechanism was contact with a large flat object like an
    iron.  It could also be by scalding with a hot liquid.  He noted, however, that
    the wounds were already several weeks old and it was difficult to be precise
    about the exact nature of the cause.  He considered the probability that they
    were pressure sores to be extremely unlikely.  Abrasions would require the
    application of a large amount of force and he had not heard anything to suggest
    that such force had occurred.  Like Dr. Levin, he could not date any of the
    various scars that appeared on H.s body.

[20]

On
    January 29, 2007, the father gave a video statement to the police at which time
    he stated that H. fell down the outside stairs of their home two to three days
    before Christmas.

[21]

The
    appellants third child was born on April 19, 2007 and immediately placed in
    foster care.  After one year of supervised visits with the Peel Childrens Aid
    Society, H.s two siblings were returned to the appellants care.  The Society
    continues to monitor the family and the two children.  The appellants have had
    no further contact with H.  Subsequently, he was made a Crown ward and placed
    for adoption.

[22]

The
    appellants were each charged with aggravated assault, failing to provide the
    necessaries of life to H. who was in necessitous circumstances contrary to
    s. 215(2)(a)(i) of the
Code
, and failing to provide necessaries
    of life to H. thereby endangering his life, contrary to s. 215(2)(a)(ii) of the
Code
.  At trial, it was the Crowns position that H. was abused and in
    serious need of medical attention.  The Crowns theory was that the appellants
    failed to obtain medical attention because they were the ones inflicting the
    wounds.

C.      Medical Evidence at Trial

[23]

Dr.
    Shah, Dr. Levin and Dr. Clarke testified at the appellants trial.  In
    addition, the defence called Dr. Steve Samuel as an expert in the area of
    plastic surgery, particularly identification of skin loss and evaluation of its
    causes.  He did not examine H. but reviewed photographs of H. that had been
    filed as exhibits.  It was his opinion that one could not tell the cause or
    date of H.s wounds based on the photographs.

[24]

While
    Dr. Samuel did not advance a theory of the cause of the injuries, in
    cross-examination, he testified that the wounds could have started as
    scratches.  If they became secondarily infected, a full thickness injury could
    result.  In turn, if the wound became infected, it would become red and swollen
    which would be painful.  The skin would then die and peel off.  While difficult
    to estimate, this process could take a matter of weeks.  The same process would
    ensue if the injury occurred as a result of a broken blister.

[25]

Dr.
    Greenwald was called by the defence as an expert in the areas of paediatrics,
    allergies, and on issues relating to the health and care of young children
    presenting with allergic reactions and fractures.  His expertise included wound
    care, nutrition, and anemia.

[26]

He
    had not examined H. but had reviewed his chart, the laboratory information, the
    progress notes, and the photographs entered as exhibits.  It was his opinion
    that H. was malnourished and had iron deficient anemia on a chronic basis.  He
    opined that since the anemia was longstanding, H.s condition may not have been
    symptomatic.  It was also his opinion that H. suffered from chronic and
    relapsing eczema and that H.s skin was consistent with atopic dermatitis.

[27]

Dr.
    Greenwald was unable to place a date on the wounds or fractures.  The fractured
    fourth metacarpal that H. had was neither rare nor symptomatic of child abuse.
    The broken fibula may or may not have been symptomatic.  He did not accept that
    the medical evidence supported conclusively that H. was either neglected or
    abused; rather, there were alternative explanations for his condition.

[28]

Dr.
    Berall was called by the defence as an expert in nutrition, malnutrition and
    its manifestation in, and consequences for, a child.  He also had not examined H.
    but reviewed his chart and the photographs.  It was his opinion that
    malnutrition could explain all or the majority of H.s presenting signs.  He
    opined that the likely cause of H.s presentation was protein energy
    malnutrition.  This could explain what appeared to be fractures on the x-rays or
    the fragility of the bones such that they would break without unusual force.
    The fact that H. suffered from both diarrhea and a rectal prolapse was
    consistent with inadequate nutrition.  Given H.s white blood count, Dr. Berall
    concluded that he came into the hospital with malnutrition and edema.
    Furthermore, H.s state of hydration was not ideal.

[29]

Dr.
    Berall was of the view that a fall down stairs in December would be consistent
    with his opinion.  Put differently, the fall could have caused skin abrasions
    that would in turn generate into a chronic wound state due to the fragile condition
    of H.s skin.  The wounds were being managed appropriately but would not heal.

[30]

In
    reply, the Crown called Dr. Pope as an expert on diseases of the skin in
    children including atopic dermatitis and eczema.  She saw H. on January 30,
    2007. She addressed Dr. Greenwalds opinion.  She did not see any active eczema
    on his body and denied that what she observed resulted from complicated eczema.

[31]

Also
    in reply, the Crown called Dr. Zlotkin as a paediatrician specializing in
    nutrition, nutrition related issues, and their effects on children.  He
    addressed Dr. Beralls opinion and disagreed that H. suffered from protein
    energy malnutrition.  In Dr. Zlotkins opinion, there was an insufficient
    reliable history for such a diagnosis and the photographs and laboratory
    results were not consistent with malnutrition.

D.      Trial Judges Reasons

[32]

The
    trial judge acquitted the appellants of committing aggravated assault on their
    son.  He was uncertain of the cause of H.s scars, wounds, and fractures.
    Other than the open wounds on H.s buttocks and shoulder, no one could opine
    that the remaining injuries occurred while H. was in Canada.  The trial judge
    was left with a doubt as to the cause of H.s condition when he arrived at the
    hospital and could not find that the appellants had intentionally wounded or
    disfigured H.

[33]

As
    for liability under s. 215(2)(a)(ii) of the
Code
, he concluded that
    there was insufficient evidence to show that H.s life was endangered and the appellants
    were therefore acquitted of failing to provide the necessaries of life to their
    son thereby endangering his life.

[34]

Turning
    to the charges under s. 215(2)(a)(i) of the
Code
, the trial judge noted
    that the physicians all agreed that when H. appeared at the hospital on January
    27, 2007, he was malnourished, anemic, had vitamin C levels consistent with
    scurvy, had three open wounds, and had scars all over his body.  Furthermore,
    there was no dispute that H. needed to be hospitalized.

[35]

The
    trial judge stated that Dr. Samuels evidence established that the wounds had
    to be in a painful and untreated process for weeks.  Dr. Berall was of the
    opinion that the wounds would not have been healing as one would expect and
    that when he came to the hospital, H. was suffering from malnutrition and edema
    and his hydration was not ideal.  The trial judge stated, at para. 101, that H.
    was in necessitous circumstances and had been so for several weeks.

[36]

He
    reviewed the various medical appointments.  He found that the mother had been
    asked to provide a stool sample by Dr. Shah but had failed to do so.
    Furthermore, the mother did not bring H. in to see Dr. Shah even though Dr.
    Shah asked the mother to do so and even though she herself returned to see Dr.
    Shah.  Dr. Ubhi saw H. and described him as lethargic and as not eating.
    However, there was no evidence of what, if any, steps were recommended by Dr.
    Ubhi or that any further medical attention was obtained for H. before he
    arrived at the Hospital for Sick Children on January 27.

[37]

The
    trial judge concluded his discussion of the mothers liability by addressing
    the applicable standard stating, at para. 105, that her conduct is a marked
    departure from what a reasonable parent would do for a child in H.s
    circumstances.

[38]

Lastly,
    the trial judge found that the mother had not provided any lawful excuse for
    failing to get H. medical attention.  Accordingly, he concluded that there was
    no doubt that she was guilty of committing an offence under s. 215(2)(a)(i) of
    the
Code
.

[39]

He
    then considered the fathers liability.  He concluded that H. had been in
    necessitous circumstances for about a month.  The trial judge noted the
    fathers evidence that H. had fallen, that H. could not sit, and that the
    father was required to hold H. while H. ate and watched television.  The father
    told the police officer that he did not take H. to the medical clinic because he
    could not risk driving H. without putting him into a car seat and that H. was
    in too much pain to sit.  The trial judge concluded that the father was aware
    of H.s condition in the month leading up to the January 27 hospital
    attendance.

[40]

The
    trial judge also found, at para. 109, that the fathers failure to take his son
    to the hospital was more than a mistake; it was a marked departure from what a
    reasonable parent would do in the circumstances.  Like the mother, the father had
    not provided any lawful excuse for failing to get H. medical attention.  The
    trial judge concluded that there was no doubt that the father was also guilty
    of committing an offence under s. 215(2)(a)(i).

[41]

Accordingly,
    the trial judge found both appellants guilty of failing to provide the
    necessaries of life to H. when he was in necessitous circumstances.

E.      Trial Judges Reasons for Sentences

[42]

The
    Crown sought sentences of three years incarceration.  The defence sought
    suspended sentences or, alternatively, four to six months conditional sentences
    for each of the appellants.

[43]

The
    trial judge identified as aggravating factors the appellants breach of trust, the
    absence of any sensible explanation for their behaviour, and the importance of
    sending a message that vulnerable children are to be protected by the courts.

[44]

He
    identified as mitigating factors the absence of any criminal record, the
    appellants co-operation with the Peel Childrens Aid Society which had implicitly
    approved of the parenting of their other two children, and the support received
    from neighbours and friends of the appellants.

[45]

The
    trial judge considered the applicable sentencing principles.  Given that H. was
    under the age of 18 years, the trial judge recognized that he should give
    primary consideration to the sentencing objectives of denunciation and
    deterrence.  He acknowledged that conditional sentences could be considered but
    concluded that they would be inappropriate:

I am not satisfied; however, that a sentence to be served in
    the community would be consistent with the principles of sentencing that I have
    just quoted.  Further and after much consideration, I am unable to fashion
    conditions that would be appropriate to provide an appropriately punitive
    aspect to such a sentence.

He sentenced each of the appellants to a period of
    imprisonment of six months followed by two years of probation.

F.       Legislation

[46]

Section
    215 of the
Code
addresses the duty of persons to provide necessaries
    of life.  It states:

215.
(1)    Every one is under a legal duty

(a)   as a
    parent, foster parent, guardian or head of a family, to provide necessaries of
    life for a child under the age of 16 years;

(b)   to provide
    necessaries of life to their spouse or common-law partner; and

(c)   to provide
    necessaries of life to a person under his charge if that person

(i)  is unable,
    by reason of detention, age, illness, mental disorder or other cause, to
    withdraw himself from that charge, and

(ii)  is unable
    to provide himself with necessaries of life.

(2)           Every one commits an offence who, being under a
    legal duty within the meaning of subsection (1), fails without lawful excuse,
    the proof of which lies on him, to perform that duty, if

(a)   with respect to a duty
    imposed by paragraph (1)(a) or (b),

(i)  the person to whom the
    duty is owed is in destitute or necessitous circumstances, or

(ii)  the failure to perform
    the duty endangers the life of the person to whom the duty is owed, or causes
    or is likely to cause the health of that person to be endangered permanently;
    or

(b)   with respect to a duty
    imposed by (1)(c), the failure to perform the duty endangers the life of the
    person to whom the duty is owed or causes or is likely to cause the health of
    that person to be injured permanently.

G.      Jurisprudence

(i)

History and Purpose of Offence

[47]

The
    offence of failing to provide necessaries of life first appeared in 1892 in the
    first
Criminal Code
.  English 19th century legislation dealing with
    the protection of servants, apprentices, and inmates of penal and other
    institutions was the likely origin of s. 215:
R. v. Peterson
(2005),
    34 C.R. (6th) 120, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 539
    (Ont. C.A.), at para. 65 (Borins J.A. dissenting on sentence).  Although the
    language has changed somewhat since 1892, the core of the legislation remains
    the same: where a person is in the charge of another, and unable to withdraw
    himself from that charge and to provide himself with the necessaries of life,
    the person having charge has a duty to provide necessaries of life:
Peterson
,
at para. 65.  Certain relationships and
    legal duties are described in s. 215.  As noted in
R. v.
A.D.H.
,
    2013 SCC 28, [2013] S.C.R. 269, at para. 67, the essence of the s. 215 offence
    is the imposition of legal duties arising out of defined relationships.
[2]

[48]

Where
    such a duty arises, a uniform minimum level of care is prescribed.  In
R.
    v. Naglik
, [1993]
3 S.C.R.
    122, at pp. 141-142, Lamer C.J.C. considered the standard of care reflected in
    s. 215:

The accuseds conduct in a particular circumstance is to be
    determined on an objective, or community, standard.  The concept of a duty
    indicates a societal minimum which has been established for conduct: as in the
    law of civil negligence, a duty would be meaningless if every individual
    defined its content for him or herself according to his or her subjective
    beliefs and priorities.  Therefore, the conduct of the accused should be
    measured against an objective, societal standard to give effect to the concept
    of duty employed by Parliament.

Section 215 is aimed at establishing a uniform
minimum
level of care to be provided for those to whom it applies, and this can only be
    achieved if those under the duty are held to a societal, rather than a
    personal, standard of conduct.  While the section does not purport to prescribe
    parenting or care-giving techniques, it does serve to set the floor for the
    provision of necessaries, at the level indicated by, for example, the
    circumstances described in subs. (2)(a)(ii).  The effects of a negligent
    failure to perform the duty will be as serious as an intentional refusal to
    perform the duty.  [Emphasis in original.]

(ii)

Requirements of s. 215(2)(a)(i) of the
Code

[49]

To meet the requirements of s. 215(2)(a)(i) of the
Code
in this
    case, the Crown was required to establish that the appellants had a duty to
    provide necessaries of life to H.; that they failed to meet that duty; and that
    H. was in necessitous circumstances.  Criminal liability arises where the
    actions of the appellants constitute a marked departure from what a reasonably
    prudent parent would do.  Lawful excuse may afford a defence.
[3]

(a)

Necessaries of Life

[50]

The
    scope of the term necessaries of life has been considered several times in the
    case law.  As far back as 1902, in
R. v. Brooks
(1902), 9 B.C.R. 13,
    at p. 18, the British Columbia Court of Appeal held that necessaries of life
    meant such necessaries as tended to preserve life.  In 1912, in
R. v.
    Sidney
(1912), 21 W.L.R. 853, at p. 857-858, the Saskatchewan Supreme
    Court confirmed the holding in
Brooks
, noting that necessaries of life
    had been held to include food, clothing, shelter, and medical attendance and
    observed that this was not an exhaustive test.  Further, necessaries of life are
    to be determined on a case by case basis.  Other cases touching on the ambit of
    necessaries of life include:
R. v. Hariczuk
, [1999] O.J. No. 1424 (Ont.
    C.J.);
R. v. Morris
(1981), 61 C.C.C. (2d) 163 (Alta. Q.B.);
R. v.
    Pertab
(2004), 27 C.R. (6th) 126 (Ont S.C.); and
R. v. Popen
(1981), 60 C.C.C. (2d) 232 (Ont. C.A.).  In this last decision, Martin J.A.
    wrote, at p. 240:

We are disposed to think that the words necessaries of life
    in section 197 [now s. 215] may be wide enough to include not only food,
    shelter, care, and medical attention necessary to sustain life, but also
    necessary protection of a child from harm.

[51]

More
    recently, in 2005, in
Peterson
, at
    para. 34
, this court adopted the
Popen
holding.

[52]

The
    appellants concede that medical attention is a necessary of life within the
    meaning of s. 215(1) of the
Code
.

(b)

Requirement of a Marked Departure

[53]

As
    mentioned,
Naglik
described the applicable standard for finding
    criminal liability under s. 215 of the
Code
.  The Crown must establish
    beyond a reasonable doubt that the accuseds actions were a marked departure
    from what a reasonably prudent person would do:
Naglik
, at pp.
    141-143, 148 and
Peterson
, at para. 35.

[54]

Section
    215 of the
Code

imposes an objective or community standard of
    conduct.  The duty is not one of perfection.  Similarly, mere negligence does
    not suffice.  Rather, the question is whether there has been a marked
    departure.  A parent is not required to run to a doctor or hospital whenever
    illness or the prospect of injury arises:
Pertab
,
at paras. 35-37;
R. v. Alexander
,
    2011 ONSC 980, at para. 61; and
R. v. Boone
, [2002] O.J. No. 2796, at
    paras. 27-34.

(c)

Defence of Lawful Excuse

[55]

As
    is evident from the language of s. 215(2) of the
Code
, a lawful excuse
    provides an accused with a defence and serves to prevent the punishment of the
    morally innocent:
Peterson
,
at para. 37.
[4]

(d)

Necessitous Circumstances

[56]

The
    issues on this appeal turn on the application of s. 215(2)(a)(i) of the
Code
and the interpretation of necessitous circumstances.  As both counsel noted,
    there is very little case law interpreting this subsection.

[57]

Early
    decisions such as
R. v. Wilson
(1933), 3 W.W.R. 417 and
R
.
v. McDonald
, [1942] O.J. No.
    319 dealt with the prosecutions of husbands for allegedly leaving their wives
    in destitute or necessitous circumstances by failing to provide support.

[58]

Boone
is a more recent example of a case addressing s. 215(2)(a)(i) of the
Code
.
    In that case, the court found a father guilty under s. 215(2)(a)(i) of the
Code

for failure to provide his two year old child with necessaries of life that
    consisted of the obtaining of appropriate, available medical attention in a
    timely fashion.  The trial judge was uncertain that the childs life was
    endangered or that his health was permanently endangered within the meaning of
    s. 215(2)(a)(ii) of the
Code
, but was satisfied by reason of his age
    and serious injuries that he was in necessitous circumstances.

H.      Grounds of Appeal

(i)      First Issue: Necessitous
    Circumstances

[59]

The
    first issue turns on whether a failure to provide medical attention is captured
    by s. 215(2)(a)(i) of the
Code
.

[60]

As
    mentioned, the appellants concede that medical attention is a necessary of life
    within the meaning of s. 215(1) of the
Code
.  However, they submit
    that failure to provide medical attention does not amount to necessitous
    circumstances and therefore does not fall within s. 215(2)(a)(i) of the
Code
.
    They state that necessitous circumstances encompass natural needs such as food,
    shelter and clothing, not medical attention.  Failure to provide medical
    attention may only constitute an offence if the conduct falls within s.
    215(2)(a)(ii) of the
Code
.  That is, the failure to provide medical
    attention must endanger the life of the person to whom the duty is owed, or
    causes or is likely to cause the health of that person to be endangered
    permanently.

[61]

The
    appellants submit that having already concluded that the requirements of s.
    215(2)(a)(ii) of the
Code
had not been met, thus forming the basis of
    the appellants acquittal on the other charges, the trial judge erred in
    finding that s. 215(2)(a)(i) of the
Code

had any application.

[62]

In
    contrast, the Crown submits that a parental failure to provide medical
    attention or treatment for a child may attract liability under either s.
    215(2)(a)(i) or s. 215(2)(a)(ii) of the
Code
.  Put differently,
    liability ensues if medical attention was not provided and H. was in destitute
    or necessitous circumstances within the meaning of subsection (i), or if the
    appellants failure to provide medical attention endangered H.s life or caused
    or was likely to cause his health to be endangered permanently within the
    meaning of subsection (ii).

[63]

Statutory
    interpretation is governed by the approach described in Elmer Driedger,
Construction
    of Statutes
,
2nd ed.
    (Toronto: Butterworths, 1983), at p. 87, and adopted by the Supreme Court of
    Canada in
Re Rizzo & Rizzo Shoes Ltd.
,
[1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

[64]

Section
    215(2)(a) creates two offences both of which are predicated on a failure to
    perform the legal duties imposed by s. 215(1)(a) or (b).  This case involves s.
    215(1)(a) and specifically the duty owed by parents to a child.  Section 215(2)(a)(i)
    addresses the situation in which the parents failure to perform their duties
    under s. 215(1)(a) puts the child to whom the duty is owed at risk of harm
    because of the childs dire circumstances (destitute or necessitous).  Section
    215(2)(a)(ii) addresses the situation in which the parents failure to perform
    their duties under s. 215(1)(a) puts the child at risk by virtue of the
    consequence of the failure to perform the duty (endangers the life or causes or
    is likely to cause health to be endangered permanently).  A failure to provide
    medical attention could well generate the risk of harm proscribed by either
    offence.

[65]

The
    purpose of s. 215 of the
Code
is aimed at the protection of others.
    The subsections of s. 215 of the
Code

have a common object  the
    imposition of a defined legal duty of care on an individual in charge of
    another:
Naglik
, at pp. 141-143 and
Peterson
, at para. 35.  Children
    under the age of 16, who are the subject matter of s. 215(1)(a) of the
Code
and owed such a duty of care, exemplify this protective objective.

[66]

The
    terms destitute and necessitous circumstances, which are found in s.
    215(2)(a)(i), are not defined in the
Code
.  Necessitous is defined
    in
Oxford Dictionaries
[5]

as lacking necessaries of life,
    needy.  As mentioned, in oral argument, the appellants conceded that medical
    attention is a necessary of life within the meaning of s. 215(1) of the
Code
.
    It follows that the failure to provide necessaries of life  in this case
    medical attention  may amount to necessitous circumstances.

[67]

Neither
    the purpose of s. 215 of the
Code

read as a whole, nor its
    language, compels the interpretation advanced by the appellants.  There is
    nothing that would suggest that liability for a failure to provide medical
    attention should be restricted to, and bound by, the requirements of s.
    215(2)(a)(ii) of the
Code
.  Failure to provide medical treatment can
    lead to criminal liability under either s. 215(2)(a)(i) or s. 215(2)(a)(ii) of
    the
Code
; the one does not preclude the other.

(ii)     Second Issue: Causal Connection

[68]

The
    appellants complain that including medical attention in the ambit of s.
    215(2)(a)(i) of the
Code
results in criminalizing a failure to obtain
    treatment of no consequence.  They argue that criminal liability for failure to
    provide necessaries of life follows only where the failure has resulted in
    permanent danger to the health or life of that person.  They submit that there
    must be a causal connection between the appellants failure to provide
    necessaries of life and the childs necessitous circumstances and here there
    was none.

[69]

I
    disagree.  Inclusion of medical attention in the ambit of s. 215(2)(a)(i) of
    the
Code
does not compel criminality for any failure to provide
    medical attention.  In order for there to be criminal liability, the child must
    be in necessitous circumstances and the conduct must amount to a marked
    departure from what a reasonably prudent parent would have done in the
    circumstances:
Naglik
, at p. 143.  This requirement imposes a
    limitation on actionable criminality.  There was no need for the Crown to
    establish that the appellants failure to obtain medical treatment would have
    made any difference.  That is a requirement of s. 215(2)(a)(ii) of the
Code
.

[70]

The
    appellants were aware of H.s needs and condition, their failure had persisted
    over a period of weeks, and their conduct amounted to a marked departure from
    that of a reasonably prudent parent.  This was sufficient to invoke liability
    under s. 215(2)(a)(i) of the
Code
.  Accordingly, I would not give
    effect to this ground of appeal.

(iii)

Third Issue: Misapprehension of Evidence

[71]

Thirdly,
    the appellants submit that the trial judges findings of necessitous
    circumstances and H.s required hospitalization rested on a misapprehension of
    key evidence. The appellants advance seven instances of such misapprehension.

[72]

To
    set aside a conviction on the grounds of misapprehension of evidence, the
    appellants must show:

-

a
    misapprehension of the evidence;

-

the
    misapprehension is material; and

-

the
    errors played an essential part in the reasoning process resulting in the
    conviction:

See
R.
    v. Morrissey
(1995), 22 O.R. (3d) 514
    and
R. v. Lohrer
, 2004
    SCC 80,
[2004] 3 S.C.R. 732.

[73]

As
    the Supreme Court stated in
Lohrer
, at para. 2:

The misapprehension of the evidence must go to the substance
    rather than to the detail.  It must be material rather than peripheral to the
    reasoning of the trial judge.  Once those hurdles are surmounted, there is the
    further hurdle (the test is expressed as conjunctive rather than disjunctive)
    that the errors thus identified must play an essential part not just in the
    narrative of the judgment but in the reasoning process resulting in a
    conviction.

(a)

Three open wounds

[74]

The
    appellants submit that the trial judge found, at para. 101, that H. had three
    open wounds but that the evidence did not support this finding.  I disagree.

[75]

While
    the ambulance call report noted sores on body without further elaboration,
    the emergency room record noted three wounds.  That record indicated that H.
    had a two centimetres open sore wound on his left scapula, a five-by-four
    centimetre open sore wound on his right buttock, and an open wound on his
    left buttock.  There was no misapprehension of the evidence by the trial judge
    in this regard.

(b)     Painful and Untreated Wounds

[76]

The appellants then submit that the trial judge erred in finding that
    these three wounds must have been painful and were untreated for weeks.  They
    argue that the trial judge relied on Dr. Samuels testimony but he only said
    that the wounds would have been painful initially, not for weeks.

[77]

The
    trial judge did not err in his summary of the evidence.

[78]

Dr.
    Samuels did testify that once the abrasions or scrapes became infected to the
    stage reflected in the photographs of H., the process could take a couple or a
    few weeks and that initially this process would be painful.

(c)     New
    Lesions

[79]

The
    appellants argue that while H. was being treated, new lesions appeared but the
    trial judge failed to address this evidence.

[80]

The
    trial judge did not address this evidence but I am unable to conclude that it
    was material.  First, even if new lesions appeared, this would not negate the
    necessitous circumstances.  Secondly, I am not convinced that there was clear
    evidence that new lesions continued to appear.  The source of the information on
    new lesions or sores was a first year students notes made on February 2, 2007,
    and which placed quotation marks around the word sores.  As Dr. Clarke
    explained, usage of quotation marks in medical notes denotes uncertainty.  Further,
    on February 13, 2007, Dr. Clarke wrote that H.s wounds were at a considerably
    advanced state of healing.  Accordingly, H.s condition improved once he
    received medical attention.

(d)     Hospitalization

[81]

The
    appellants submit that the trial judge misapprehended the evidence on the need
    for H.s hospitalization.  It was not disputed that H. required hospitalization
    due to the seizure he experienced.  Contrary to the trial judges finding, they
    argue, no other need for hospitalization was evident from the evidence.

[82]

I
    would not give effect to this submission.

[83]

First,
    the trial judge, at para. 113, recognized that the appellants brought H. to the
    hospital as a result of a seizure.

[84]

Secondly,
    clearly H. was in need of care.  As Dr. Levin testified: H. needed fairly
    urgent, significant, dedicated, concentrated care  He required wound care or
    burn care, as we call it.  Dr. Levin was graphic in his description of H.s
    condition:

[T]here's two aspects of neglect in this case; one is that the
    child clearly had a number of medical problems, was very sick and apparently
    got to extremis before he was brought to a doctor. One would think that any
    reasonable caretaker would look at the injuries, lesions and general behaviour
    of this child to say the kid needed medical care or at least bring that to the attention
    of your medical providers. I'm here because my kid can't walk. I'm here because
    my kid has big lesions on their buttocks. But secondarily, one can clearly see
    that these wounds, particularly of the shoulder, left shoulder, and of the
    buttocks were in need of care. They're open, weeping wounds. The one on the
    shoulder had a hole, it was digging  it was eating down into the flesh without
    any care. And lastly, we can also say if you look at the wound on the head,
    that old, big, circular scar on the left arm, that circular scar, at some time
    when those happened, they were big wounds, and I don't have any evidence that
    the child ever had medical care or was reported to have those wounds. Those are
    the kind of wounds that one would say  go to a doctor and say, what do I do
    about this?.

[85]

Dr.
    Clarkes evidence was consistent.  He stated that H.s buttocks and shoulder
    wound were definitely in need of medical attention.  The evidence disclosed a
    need for hospitalization that transcended the seizure.

(e)     Necessitous
    Circumstances

[86]

The
    appellants submit that the trial judge based his finding of necessitous
    circumstances on H.s presentation as malnourished, anemic with vitamin C
    levels consistent with scurvy, three open wounds, and scars all over his body despite
    the fact that there was no evidence or analysis that these conditions, other
    than the wounds on the buttocks, ought to have been known to the appellants.

[87]

While
    at para. 100 of his reasons, the trial judge described H.s presentation at the
    hospital, the focus of his analysis was on H.s three open wounds (two to the
    buttocks and one to the shoulder) and that the parents failure to obtain
    medical attention for this condition amounted to a marked departure from the applicable
    standard of care.

[88]

Furthermore,
    it must be emphasized that these were open wounds and clearly visible as
    evident from the photographs entered as exhibits at trial.

[89]

I
    would not give effect to this argument.

(f)      Treatment

[90]

The
    appellants submit that the trial judge failed to appreciate that the treatment
    for the wounds that H. received after he was hospitalized was no different from
    the treatment he received at home and, therefore, the appellants failure did
    not cause or prolong H.s condition.  As such, there could be no marked
    departure in regards to the appellants conduct.  Put differently, the
    appellants argue that there could be no marked departure from the norm given
    that the hospital was unable to do anything that ameliorated H.s condition
    that differed from the treatment the appellants provided.

[91]

As
    discussed, whether the doctors were able to assist H. is irrelevant to a
    finding of criminal liability under s. 215(2)(a)(i).  Further, in my view, this
    submission does not meet the threshold for misapprehension of evidence.

[92]

At
    the hospital, where H. remained from January 27, 2007 to February 8, 2007, H.s
    wounds were the subject of regular monitoring and evaluation.  Numerous physicians
    were consulted.  Duoderm and Bactigras dressings were regularly applied to his
    wounds and Telfa, Tegaderm, Vaseline, and gauze were used as well.  On January
    28, H. was ordered on to an air bed to provide pressure relief for his wounds.

[93]

H.
    continued to receive monitoring on his discharge from hospital.  As Dr. Clarke
    testified:

When [H.] left the hospital, he still had open wounds which had
    not healed.  He was still having dressing changes.  So, he returned to the Plastic
    Surgery Clinic so we could monitor the progress of the healing, provide advice
    about these dressings, and then move on to further treatment once the wounds
    were healed.

[94]

The
    foster mother recalled having to take H. to a lot of medical appointments in
    the 8 to 12 month period following his discharge, and was given a prescription
    of Bactigras dressing and Polysporin for H.

[95]

The
    treatment provided by the appellants did not compare to his actual
    requirements.  There is no basis for this allegation of misapprehension.

(g)     Malnourishment

[96]

The appellants submit that the trial judge failed to assess how H.s
    malnutrition resulted in criminal liability and ignored significant factors
    such as his weight gain in that analysis.

[97]

As
    mentioned, the three wounds were the focus of the trial judges conclusion on
    necessitous circumstances and grounded his marked departure analysis.  Any
    omission by the trial judge on the impact of malnutrition on H. did not play an
    essential part in the reasoning process that resulted in the appellants convictions.

[98]

For
    all of these reasons, I would not give effect to the appellants submissions
    based on misapprehension of evidence.

(iv)

Fourth Issue: Adequacy of Reasons

[99]

I
    would not give effect to the argument that the trial judge failed to provide
    sufficient reasons.  The basis of the verdict is clear from the trial judges
    assessment of the evidentiary record.  He was clearly alive to the important
    issues in the case:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at
    para. 55.

I.        Sentence

[100]

On sentence, the
    appellants submit that the trial judge erred in principle and imposed a
    sentence that was manifestly unfit.  They state that he overemphasized the
    objectives of denunciation and deterrence and failed to consider those of
    rehabilitation, reparations, and promotion of a sense of responsibility.  The
    appellants submit that the trial judge failed to give adequate weight to the
    uncharacteristic nature of the appellants conduct and that the Childrens Aid
    Society implicitly had approved the appellants parenting given that they had
    returned the appellants two other young children into their custody after one
    year.

[101]

The appellants
    also state that the trial judge ignored the fact that the appellants posed no
    risk to reoffend and that sentencing objectives would be well served by
    imposing conditions such as house arrest or curfew that would be sufficiently
    punitive.  A conditional sentence should not be rejected on the basis that the
    conditions attached to the conditional sentence would render it insufficiently
    punitive.

[102]

The trial judge
    considered the appropriate range of sentence to be four to eight months
    custody.  He found that the Childrens Aid Society had impliedly approved of
    the appellants parenting of the two other children.  He also referred to the
    numerous letters of support which suggested that the appellants conduct was
    out of character.  He was aware that the appellants had no criminal record and
    had co-operated with the Childrens Aid Society.  He noted that, in the event
    the appellants were to be incarcerated, arrangements for the care of the
    appellants two remaining children had been made.  He concluded that there did
    not seem to be a need to be concerned about their rehabilitation.

[103]

He was satisfied
    that neither of the appellants would endanger the safety of the community.

[104]

The trial judge
    observed that s. 718.2 of the
Code
required that he take into
    consideration that H. was a victim under the age of 18 years and that the
    appellants abused a position of trust in relation to him.

[105]

The trial judge
    did consider a conditional, however, he was of the view that denunciation
    required that the sentence show societys disapproval of the offenders
    conduct:
R. v. C.A.M.
, [1996] 1 S.C.R. 500, and, more particularly,
    societys response to child neglect:
R. v. Turner
(1995), 165 N.B.R.
    (2d) 11, affd (1997), 185 N.B.R. (2d) 190 (C.A.), leave to appeal to S.C.C.
    refused, [1997] S.C.C.A. No. 532.

[106]

He was satisfied
    that neither of the appellants would endanger the safety of the community, but
    he was not satisfied that a sentence to be served in the community would be
    consistent with the principles of sentencing.  He was unable to fashion
    conditions that would be appropriate to provide an appropriately punitive
    sentence.

[107]

Absent an error
    in principle, failure to consider a relevant factor, or an overemphasis of the
    appropriate factors, an appellate court should only intervene to vary a
    sentence imposed at trial if the sentence is demonstrably unfit:
R. v. M.
    (C.A.)
, [1996] 1 S.C.R. 500, at para. 90.  I am not persuaded that the
    trial judge made any error in principle in sentencing the appellants.  He
    considered a conditional sentence but rejected it on the basis that it was
    inappropriate.  Nor was the sentence manifestly unfit.  Accordingly, leave is
    granted but the sentencing appeals are dismissed.

J.       Disposition

[108]

Accordingly,
    I would dismiss the conviction appeals, grant leave to appeal the sentences and
    dismiss the sentence appeals.

Released:

DD                                                  S.E.
    Pepall J.A.

FEB 11 2015                                    I
    agree Doherty J.A.

I
    agree M. Tulloch J.A.

[1]
Prior to the hearing of the appeal, the appellants abandoned their application
    to adduce fresh evidence.

[2]
In
A.D.H.
, Cromwell J. discussed the provenance of s. 215 of the
Code

in the context of its relationship to s. 218 of the
Code
which
    deals with the offence of child abandonment.

[3]
In
R. v. Curtis
(1998), 123 C.C.C. (3d) 178, this court declared the
    reverse onus clause the proof of which lies on him found in s. 215(2) of the
Code
to be of no force or effect.

[4]
See also
Curtis
.

[5]
Oxford University Press, Definition of necessitous in English (2015), online:
    Oxford Dictionaries <http://www.oxforddictionaries.com/definition/english/necessitous>.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Slack, 2015 ONCA 94

DATE: 20150211

DOCKET: C58220

Cronk, LaForme and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre OMar Slack

Appellant

Erika Chozik, for the appellant

Cate Martell, for the respondent

Heard: October 21, 2014

On appeal from the sentences imposed on April 25, 2013 by
    Justice M.L. Benotto of the Superior Court of Justice, sitting without a jury.

Cronk J.A.:

Introduction

[1]

Following a trial by judge alone, the appellant was convicted of a
    series of weapons-related offences, including possession of a loaded restricted
    firearm, contrary to s. 95(1) of the
Criminal Code
, and unauthorized
    possession of a firearm, contrary to s. 91(1) of the
Criminal Code
.
    He was also found in breach of the terms of his probation.  The appellants s.
    91(1) conviction was stayed in accordance with
R. v. Kienapple
, [1975]
    1 S.C.R. 729.

[2]

The appellant was sentenced to eight years imprisonment for his
    weapons-related convictions and two years imprisonment for his breaches of
    probation, less credit at the rate of 1:1 for 433 days of pre-sentence
    custody.  He now appeals against his sentences.

[3]

The sentencing judge recognized that enhanced credit for pre-sentence
    custody at a rate of up to 1.5:1 may be granted in a proper case in order to
    achieve what she termed a fair and just sentence.  She reviewed the
    conditions of the appellants pre-sentence detention and his conduct while
    detained, and referenced this courts holding in
R. v. Summers
, 2013
    ONCA 147, 114 O.R. (3d) 641, affd 2014 SCC 26, [2014] 1 S.C.R. 575, that loss
    of eligibility for early release constitutes circumstances that may justify
    enhanced credit for pre-sentence custody.

[4]

However, based on the appellants institutional conduct, the sentencing
    judge declined to grant enhanced credit for his pre-sentence custody.  She
    reasoned as follows:

I now turn to the issue of enhanced credit.  As of April 5,
    2013  I have not done the calculation to date  Mr. Slack has spent 433 days
    in custody.  During that time, he had 26 days alone in his cell, 369 days with
    one cellmate and 38 days with two cellmates.  In addition, he has had slightly
    less than the average time outside.  The average time was 59% of the days and
    he was outside for 54%.  There were 9 full day lock downs during his time in
    custody.

As stated in
R. v. Summers
, a court is justified in
    granting credit of up to [1:1.5] days in order to achieve a fair and just
    sanction.

The difficulty here is that Mr. Slack has three misconducts in
    his record during his time in custody: March 20th, 2012, March 12th, 2012 and
    October 31st, 2012.  Although the circumstances which could give rise to
    enhanced credit include ineligibility for remission and parole while in
    custody, the conduct during his custodial time, in my view has caused me not to
    grant the enhanced credit.  I do not consider enhanced credit necessary to
    [achieve] a fair sanction.

Grounds of Appeal

[5]

The appellant raises two grounds of appeal.  First, he submits that the
    sentencing judge erred by refusing to grant enhanced credit at the rate of 1.5:1
    for his pre-sentence custody.

[6]

Second, the appellant argues that the sentencing judge erred by using,
    as a sentencing floor, the five-year mandatory minimum sentence set out in s.
    95(2) of the
Criminal Code
, which this court held to be
    unconstitutional in the companion cases of
R. v. Nur
, 2013 ONCA 677, 117
    O.R. (3d) 401, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 17, appeal
    heard and reserved November 7, 2014, and
R. v. Charles
, 2013 ONCA 681,
    117 O.R. (3d) 456, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 18,
    appeal heard and reserved November 7, 2014.

Discussion

(1)

Credit for Pre-Sentence Custody

[7]

The appellant argues that the sentencing judge erred by refusing to
    grant enhanced credit for his pre-sentence custody based on minor institutional
    misconduct.  He submits that under the
Corrections and Conditional Release
    Act
, S.C. 1992, c. 20 (the
CCRA
), parole becomes available to a
    federal inmate, like the appellant, after one-third of the sentence has been
    served (s. 120) and statutory release is available once two-thirds of the
    sentence has been served (s. 127(3)).  The appellant contends that the
    sentencing judges inference that his institutional misconduct would disentitle
    him from parole or, more importantly, statutory release, is unsustainable.

[8]

For the reasons that follow, I agree with this submission.

[9]

A sentencing judges decision whether to grant enhanced credit for
    pre-sentence custody is a discretionary matter.  It therefore attracts a high
    degree of deference from a reviewing court.  See for example,
R. v. Wust
,
    2000 SCC 18, [2000] 1 S.C.R. 455, at paras. 44-45.  In this case, however, it
    is my view that the sentencing judge erred in principle in determining the
    amount of credit to be accorded to the appellant for his pre-sentence custody.
    Accordingly, the deference that would otherwise be accorded to her ruling on
    this issue is displaced.  I say this for the following reasons.

[10]

First,
    the sentencing judge did not have the benefit of the Supreme Courts decision
    in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575.  That decision lays
    to rest any suggestion that the loss of eligibility for early release cannot,
    standing alone, warrant enhanced credit for pre-sentence custody.  Justice
    Karakatsanis, writing for a unanimous court, held, at para. 71, that enhanced
    credit for pre-sentence custody will generally be justified to account for the
    loss of early release, even if the conditions of detention are not particularly
    harsh, and parole is unlikely.  However, she also held, at para. 75, that: If
    it appears to a sentencing judge that an offender will be denied early release,
    there is no reason to assign enhanced credit for the meaningless lost
    opportunity.

[11]

Further,
    the fact of pre-sentence custody is generally sufficient to give rise to an
    inference that the offender has lost eligibility for parole or early release,
    thereby justifying enhanced credit.  It then falls to the Crown to challenge this
    inference, for example, by demonstrating that the offenders bad conduct while
    in jail renders it unlikely that he or she will be granted parole or early release:
Summers
at para. 79.  See also
R. v. Houlder
, 2014 ONCA 372,
    at para. 2.

[12]

In
    this case, the appellants pre-sentence custody gave rise to the inference that
    he had lost eligibility for parole or statutory release, thus justifying
    enhanced credit.  It therefore fell to the Crown to counter this inference by
    demonstrating that the appellants bad conduct while detained would disentitle
    him to parole or statutory release.

[13]

The
    appellants conduct during pre-sentence detention included three documented
    incidents of misconduct.  On one occasion, the appellant was charged with
    possession of contraband when the smell of marijuana was detected coming from
    his cell, which he occupied with another inmate.  No marijuana was found on the
    appellants person, and he was not seen using the drug.  The remaining two
    incidents involved a second charge of possession of contraband, and making a
    gross insult at another person.  There was no other evidence before the sentencing
    judge concerning the nature of or the circumstances surrounding these two incidents.

[14]

The
    sentencing judge denied enhanced credit for the appellants pre-sentence
    custody based solely on the evidence of the appellants institutional
    misconduct.  And it is here, with respect, that I conclude the sentencing judge
    fell into error.  In my view, given the nature of the thin record of
    institutional misconduct by the appellant, it cannot be said that the Crown
    demonstrated that the appellants institutional misconduct would disentitle him
    to parole or statutory release.

[15]

There
    is no dispute that enhanced credit for pre-sentence custody may be denied when detention
    was a result of an offenders bad conduct, or where it is likely that the
    offender will not obtain either early release or parole:
Summers
at
    para. 71.

[16]

However,
    unlike provincially-incarcerated offenders who earn statutory remission for
    good behaviour, under s. 127(3) of the
CCRA
, a federal offender is
    entitled to statutory release after he or she has served two-thirds of their
    sentence unless the National Parole Board makes a contrary order in accordance
    with the
CCRA
. The entitlement to statutory release is not
    discretionary, nor is it conferred by the Parole Board.  Further, the authority
    to deny statutory release is narrow: statutory release may be denied only where
    it is determined at a detention hearing that the offender, if released, is
    likely to commit an offence causing harm or death, a sexual offence involving a
    child, or a serious drug offence listed in Schedule II to the
CCRA
[1]
:
CCRA
ss. 129 and 130.

[17]

Furthermore,
    in contrast to the applicable regime for provincially-incarcerated inmates
    established in Ontario by s. 28(1) of the
Ministry of Correctional Services
    Act
, R.S.O. 1990, c. M.22 and s. 6 of the
Prisons and Reformatories
    Act
, R.S.C. 1985, c. P-20, under the
CCRA
loss of credit towards
    early release is not an identified sanction that may be imposed for
    institutional misconduct.  Rather, after being found guilty of a disciplinary
    offence, a federal offender is liable to one or more of the following
    punishments: 1) a warning; 2) a reprimand; 3) a loss of privileges; 4) a
    restitution order; 5) a fine; 6) performance of extra duties; and 7)
    segregation:
CCRA
, s. 44(1).

[18]

Thus,
    the
CCRA
does not contemplate the detention of a federally-incarcerated
    offender during his or her period of statutory release based only on minor
    institutional infractions.

[19]

In
    this case, the evidence of the appellants institutional misconduct did not
    reasonably support the inference that he would likely be denied parole or
    statutory release based on bad conduct.  The limited record before the
    sentencing judge concerning the appellants conduct in jail established only a
    minor instance of misconduct  the possession of marijuana based on the smell
    of that drug emanating from a cell occupied by the appellant with another
    offender.  Nothing in that incident or in the two other generally unparticularized
    incidents of misconduct established reasonable grounds to believe that the
    appellant, during the period of his statutory release, would commit an offence
    of the type envisaged under ss. 129 and 130 of the
CCRA
.  Nor was the
    loss of statutory release an available punishment for the appellants reported
    incidents of misconduct.

[20]

In
    short, the evidence of the appellants minor misconduct while in pre-sentence
    custody did not support the inference that his right to statutory release would
    or could be revoked.  As a result, the refusal of enhanced credit for the
    appellants pre-sentence custody on the ground of his institutional misconduct
    was unjustifiable and the sentencing judges denial of enhanced credit solely
    on this basis cannot stand.

(2)

Sentencing Floor

[21]

I
    turn now to the appellants submission that the sentencing judge erred by using
    the five-year mandatory minimum sentence set out in s. 95(2) of the
Criminal
    Code
as a sentencing floor.  I would reject this submission.

[22]

This
    courts decisions in
Nur
and
Charles
were released after the
    date of the sentencing hearing in this case.  In
Nur
, this court
    declared the mandatory three-year minimum sentence provided for under s. 95(2)(
a
)(i)
    of the
Criminal Code
for a first conviction  under s. 95(1) of no
    force or effect on the basis that the mandatory minimum in question
    unjustifiably violated s. 12 of the
Charter of Rights and Freedoms
.
    In the companion case of
Charles
, the mandatory five-year sentence of
    imprisonment under s. 95(2)(
a
)(ii) of the
Criminal Code
for a
    second or subsequent conviction under s. 95(1) was struck down on the same
    basis.

[23]

Nothing
    in
Nur
or
Charles
displaces the developed sentencing range
    applicable to offenders convicted of a second or subsequent s. 95(1) offence.
    Both
Nur
and
Charles
affirm that offenders convicted of
    truly criminal conduct in relation to firearms must receive exemplary sentences
    that emphasize deterrence and denunciation.

[24]

This
    is such a case.  This was the appellants second conviction for a s. 95(1)
    offence.  On his first conviction, he received a sentence of four years in jail
    for the possession charge and nine months in jail, consecutive, for breaching a
    prohibition order and recognizance.  The appellant has a lengthy criminal
    record, consisting of 18 prior criminal convictions, including convictions for
    using an imitation firearm in the commission of a robbery, assault, trafficking
    in a scheduled substance, breaching a firearm prohibition order, and possessing
    a prohibited or restricted firearm with readily accessible ammunition.
    Moreover, at the time of the instant offences, the appellant was on probation
    and subject to an order prohibiting him from possessing a firearm or
    ammunition.

[25]

In
    addition, the appellant was in unauthorized possession of a loaded restricted
    firearm in circumstances that posed a real and immediate danger to the public.
    The loaded firearm was readily accessible in an unlocked car, which the
    appellant abandoned, leaving the engine running, in a public parking lot during
    daylight hours.

[26]

Given
    the appellants serious and lengthy prior record, which included crimes of
    violence and multiple weapons-related offences, the serious nature of the
    predicate offences, and the four-year sentence of imprisonment imposed for his
    first s. 95(1) offence, the appellants conduct can only be viewed as falling
    at the true crime end of s. 95 offences discussed in
Nur
and
Charles
.
    The offences at issue cried out for a substantial penitentiary sentence, higher
    than the sentence imposed for the appellants first s. 95(1) offence.

[27]

There
    were also several aggravating features that compelled a sentence closer to the
    high end of the range.  These included:

·

the firearm was loaded;

·

the firearm was found in an unlocked car in a public parking lot
    during the daytime.  The cars engine had been left running;

·

this was not merely a regulatory or licensing offence.  The
    appellant was not authorized to possess a firearm under any circumstances;

·

the appellant fled the scene when a police officer told him to
    move his car;

·

after abandoning the car, the appellant telephoned a friend, who
    had rented the car for him, and told her to report the car as stolen; and

·

the appellants criminal record, described above, reflects a
    consistent pattern of criminal conduct.

[28]

In
    all these circumstances, I see no basis for appellate interference with the
    eight-year jail sentence imposed by the sentencing judge for the appellants
    weapons-related convictions.  Given the circumstances of these offences and
    this offender, a sentence of eight years imprisonment was appropriate and
    within the applicable range even in the absence of the mandatory minimum.

Disposition

[29]

For
    the reasons given, I would allow the appellants sentence appeal in part, by
    setting aside the credit granted by the sentencing judge for the appellants
    pre-sentence custody and substituting in its stead enhanced credit at the rate
    of 1.5:1 for the appellants 433 days of pre-sentence custody.  In all other
    respects, I would dismiss the appeal.

Released:

FEB 11 2015                                    E.A.
    Cronk J.A.

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

I
    agree P. Lauwers J.A.

[1]
Schedule II to the
CCRA
sets out specific drug offences, prosecuted by
    indictment, including trafficking, importing and exporting, cultivation,
    possession of property obtained by certain crimes and the laundering of
    proceeds of specific crimes.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spearman, 2015 ONCA 119

DATE: 20150220

DOCKET: C58847

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Phillip Spearman

Appellant

Ross C. Stewart, for the appellant

Kevin Wilson and Colleen Liggett, for the respondent

Heard and released orally: February 13, 2015

On appeal from the conviction entered on November 26,
    2013 and the sentence imposed on April 28, 2014 by Justice Diane M. Lahaie of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The grounds of appeal raised all revolve around the trial judges
    finding that the Information to Obtain a Search Warrant (the ITO) in this
    case contained sufficient grounds to justify the issuance of the search
    warrant. We begin by adopting the comment of Blair J.A. in
R. v. Duc Van
    Nguyen
, 2011 ONCA 465, at para. 57. In that paragraph, our colleague sets
    out the approach that must be taken by this court when considering submissions
    like the ones made in this case.

[2]

Dealing with the specific submissions, we do not accept the argument
    that the ITO failed to make full, fair and frank disclosure of the grounds upon
    which the warrant was sought. The affiant identified observations made of the
    appellants home that were relevant to the existence of reasonable grounds to
    issue the warrant. He recorded those observations accurately and sufficiently
    placed them in the context of the ongoing activity within the home. Those
    observations provided a basis upon which the trial judge could properly assess
    the totality of the circumstances and decide whether the warrant should issue.
    The failure to include all observations made, even those that clearly had no relevance
    to the existence of reasonable grounds, did not detract from the adequacy of
    the disclosure made in the ITO.

[3]

The other grounds of appeal raise alleged misrepresentations or material
    omissions in the ITO. The appellant has pointed to three alleged
    misrepresentations or omissions. The first is an alleged misdescription of a
    building entered at some point by the appellant while he was under observation
    by the police. The description of the building was entirely irrelevant to the
    existence of reasonable grounds for the warrant and, in our view, of such
    peripheral significance that it could in no way impact on the reliability of
    the affiant. The error quite properly played no role in the trial judges
    assessment of the ITO.

[4]

The second alleged misrepresentation relates to the number of informants
    relied on by the affiant in assembling the grounds for the application. The
    wording of one paragraph in the ITO raises some confusion as to the number of
    informants. However, the balance of the ITO clearly identifies two informants
    and the role each played in providing the information relied on by the affiant.
    The trial judges reasons demonstrate that she was under no misapprehension as
    to the number of informants or the information provided by them.

[5]

The third misrepresentation relates to the affiants description of the
    basis upon which he considered the informant reliable. The appellant submits
    that one passage in the affiants affidavit suggests that the affiant had
    previous dealings with the informant in which he had received information from
    that informant that had proven to be reliable. In fact, the affiant had no
    prior contact with the informant.

[6]

Reading the relevant parts of the affidavit as a whole, the appellants
    interpretation of that passage is not sustainable. It is clear, and it is made
    explicit in at least one part of the affidavit, that the affiant had no prior
    dealings with the informant and that the assertions of the informants
    reliability were based on information the informant provided in respect of this
    investigation. The trial judge clearly understood that to be the basis upon
    which the affiant asserted that the informant was reliable.

[7]

In our view, the appeal must be dismissed. We note that the appellant
    has abandoned his appeal against sentence.

Doherty J.A.

E.A. Cronk J.A.

H.S. LaForme
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wa, 2015 ONCA 117

DATE: 20150220

DOCKET: C57971

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Joseph Wa a.k.a. Kaamin Ming Wa

Appellant

Melanie Webb, for the appellant

Alex Hrybinsky, for the respondent

Heard: February 18, 2015

On appeal from the sentence imposed on August 28, 2006 by
    Justice William B. Horkins of the Ontario Court of Justice.

Gillese J.A.:

[1]

Matthew Wa (the appellant) worked as a senior property accountant for
    the Salvation Army.  His responsibilities included reviewing invoices received
    by the Salvation Army in relation to ongoing building projects to insure that
    the invoices were proper and ought to be paid.

[2]

Between 2003 and 2005, the appellant defrauded the Salvation Army of
    over $2.3 million.  He did so by creating fictitious invoices in the names of
    two separate companies in relation to the Salvation Armys ongoing building
    projects.  After processing the invoices and forwarding them for payment, he
    intercepted the cheques generated as payment and deposited them into the bank
    accounts of the companies that he had created.

[3]

Mr. Wa admitted the fraud and cooperated with investigators, who recovered
    about $1 million.  He was very vague as to what had happened to the remaining
    $1.3 million.

[4]

On August 28, 2006, the appellant entered a guilty plea to the charge of
    fraud over $5,000 and was sentenced immediately thereafter.  The sentencing
    judge accepted counsels joint submission and sentenced the appellant to two
    years imprisonment and imposed two restitution orders totalling approximately $1.3
    million (the Orders).

[5]

At the time of sentencing, the appellant had two prior convictions, one
    for uttering counterfeit money and the other for attempted fraud under $5,000.

[6]

The appellant has now served his prison sentence.  He seeks leave to
    appeal sentence and asks that the Orders be set aside or reduced because he
    cannot afford to pay them.  Although he has obtained employment in the
    accounting field since his release from prison, he says that he cannot advance
    his career because of his criminal record.  He says his inability to pay the
    Orders is a barrier to his application for a pardon (what is now termed a
    record suspension).

[7]

The appellant also seeks to introduce fresh evidence to show that at the
    time of sentencing, he simply accepted the imposition of the Orders because their
    amounts were accurate.

The Issues

[8]

This sentence appeal raises two issues:

1.

Should the fresh evidence be admitted?

2.

Should the restitution orders be set aside?

The Fresh Evidence

[9]

It is not apparent that the proposed fresh evidence meets the test for
    admission because, among other things, it is difficult to see how it meets the
    due diligence requirement.  In any event, however, as I explain below, its
    admission would not affect the result of the sentence appeal.

The Restitution Orders

[10]

I
    see no basis on which to interfere with the Orders.

[11]

One
    of the primary purposes of restitution orders is to deprive criminals of the
    fruits of their crime. A restitution order is part of the total sentence
    imposed and is entitled to deference.  Absent an error in principle, failure to
    consider a relevant factor, or an overemphasis of the appropriate factors, an
    appellate court shall intervene only if the sentence is demonstrably unfit.  See
R. v. Eizenga
, 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 91.

[12]

When
    determining whether to impose a restitution order, the sentencing judge must
    consider the offenders ability to pay. However, where the circumstances of the
    offence are particularly egregious, such as where a breach of trust is involved,
    a restitution order may be imposed even if there does not appear to be any
    likelihood of repayment:
R. v. Castro
, 2010 ONCA 718, 102 O.R. (3d)
    609, at para. 28.  As the sentencing judge found, the fraud in this case was a
    clear breach of trust, which was particularly odious given the charitable
    nature of the work performed by the victim.

[13]

Moreover,
    when assessing ability to pay a restitution order, the court may consider what
    disclosure has been made respecting where the money is or has gone.  In fraud
    cases, bald assertions by offenders that they have no ability to make
    restitution are entitled to little weight when the offender has not explained
    where all of the stolen assets have gone:
Castro
, at para. 34.  This
    consideration applies in the present case.  Despite being an accountant, the
    appellant has been vague about what happened to over $1 million of the stolen
    money, and he has failed to provide detailed records or an explanation of the
    moneys use.

[14]

Further,
    I attach little weight to the appellants claim that he did not appreciate that
    the Orders would result in him being excluded from the accounting field.  The
    sentencing judge expressly referred to the appellants reduced career prospects
    as a mitigating factor.  That factor was also expressly referred to by defence
    counsel and agreed to by the Crown at the time of sentencing.  Furthermore, and
    in any event, the appellant has been able to obtain employment in the
    accounting field since his release from prison.

[15]

The
    fresh evidence does not show that this is an appropriate case for vacating the
    Orders.  In the eight years since sentencing, the appellant has made a single
    payment on the Orders: $500 on April 1, 2014, several months after being given
    an extension of time to file this appeal.  During that same time, he has made
    large discretionary purchases, including the purchase of two new vehicles, almost
    $1,000 a year for dog grooming and about $1,500 a year for cleaning services.
    He has also saved $50,000 in RRSPs, although he recently chose to redeem
    approximately $20,000 of that amount so that he would have cash on hand in the
    event of an emergency, now that his wife is on maternity leave.  The appellant
    acknowledged that in making his investments in RRSPs, he had chosen to allocate
    his income to personal expenses rather than towards the payment of the Orders.

[16]

The
    money that the appellant has spent on his discretionary purchases could have
    been put towards restitution.  Moreover, as he admits, he could have made
    payments on the Orders despite those discretionary expenditures but he has
    chosen not to.  Consequently, I put little stock in the appellants assertion
    that if he obtained a record suspension and better employment, he might be
    enabled to make a significant contribution towards restitution.

[17]

The
    appellant has benefitted from the Orders, as they factored into his relatively
    lenient custodial sentence. I see no basis on which to release him from those
    Orders, particularly when he has made little real effort to repay them, despite
    having had the time and money to do so and having given no credible explanation
    for where the money went.

DISPOSITION

[18]

Accordingly,
    I would grant leave to appeal sentence but I would dismiss the sentence appeal.

Released: February 20, 2015 (E.E.G.)

E.E. Gillese
    J.A.

I agree. David Watt J.A.

I agree. D.M. Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zahran, 2015 ONCA 66

DATE: 20150202

DOCKET: C58824

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ghassan Zahran

Appellant

Matthew B. Day, for the appellant

James Clark, for the respondent

Heard: January 15, 2015

On appeal from the dismissal of an application for
    certiorari to quash a committal for trial by Justice Douglas J.A. Rutherford of
    the Superior Court of Justice, with reasons reported at 2014 ONSC 2678.

ENDORSEMENT

[1]

The appellant appeals the denial of his application for certiorari to
    quash his committal for trial. He submits that the preliminary inquiry judge
    lost jurisdiction when he failed to comply with s. 536(2) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, by failing to read the statutory choice of
    mode of trial provision or by obtaining a valid waiver.

[2]

The application judge denied the application for certiorari on two
    bases: (i) substantial compliance with s. 536(2), and (ii) delay in bringing
    the application, as it was brought beyond the time limit set out in the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
, SI/2012-7,
    s. 43.04(1).

[3]

The appellant was charged with multiple offences along with two
    co-accused. The appellant was initially represented by counsel, who appeared
    for him frequently in pre-hearing matters, including the scheduling of a date
    for the preliminary inquiry of all three co-accused.

[4]

However, at the time of the arraignment and election of mode of trial, the
    appellant was no longer represented. The preliminary inquiry judge obtained a
    waiver of compliance with s. 536(2) from each of the two co-accused, who were
    each represented by counsel. The following exchange took place with the
    appellant:

The Court: Now, just before you ask Mr. Zahran, you have the
    choice of electing Superior Court/judge and jury, Superior Court/judge alone,
    or trial before me in this court.

[Zahran]: Um, judge alone.

The Court: Okay; and, all right, judge alone of which court?

[Zahran]: Superior Court.

The Court: Okay.

[5]

The appellant and his co-accused were committed for trial on August 28,
    2013. The appellant remained unrepresented and did not seek to re-elect his mode
    of trial. He had a right to re-elect a jury trial within fifteen days following
    completion of the preliminary inquiry under s. 561(1)(b). The appellant again
    had counsel (not fully retained) on November 12, 2013, who then sought the
    Crowns consent for the appellant to re-elect trial by judge and jury. The
    Crown denied the request on December 30, 2013. The certiorari motion was
    scheduled for April 17, 2014. The application was denied on April 29, 2014. The
    trial is scheduled for all co-accused to commence before a judge of the
    Superior Court sitting alone on March 2, 2015.

[6]

The application judge found no loss of jurisdiction because, in all the
    circumstances, the preliminary inquiry judge substantially complied with s.
    536(2). The application judge stated at para. 30 of his reasons:

Mr. Zahran had the benefit of legal representation throughout
    his court appearances following his arrest near the end of 2011, through to
    September 11, 2012. Many of those appearances focussed on finding suitable
    dates for a preliminary inquiry and so Mr. Zahran and his counsel must have
    discussed going to trial in the Superior Court. It would be unrealistic to
    think that the mode of trial was not a matter on which they had settled.
    Indeed, with a number of co-accused, it would be unrealistic to think that any
    one of the lawyers representing the various accused had not discussed election
    plans with the others in light of s. 567, discussed above at paragraph 28,
    dealing with the situation in which co-accused elect different modes of trial.

[7]

We see no basis to interfere with his conclusion. In any event, there
    was no loss of jurisdiction because of the operation of s. 536(4.2) which
    provides:

If two or more persons are jointly charged in an information
    and one or more of them make a request for a preliminary inquiry under
    subsection (4), a preliminary inquiry must be held with respect to all of them.

[8]

Although the record does not indicate which of the co-accused requested
    the preliminary inquiry, it was clear that one or more of them did so request.

[9]

Because the preliminary inquiry judge made no error and did not lose
    jurisdiction, there is no basis to quash the committal or to order that the
    appellant be allowed to re-elect trial by judge and jury.

[10]

The
    appeal is therefore dismissed.

K. Feldman
    J.A.

Janet Simmons
    J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zarb, 2015 ONCA 78

DATE: 20150203

DOCKET: C58832

Laskin, Feldman and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Joseph Zarb

Respondent

Christopher Webb, for the appellant

A. Marchetti, for the respondent

Heard: February 2, 2015

On appeal from the sentence imposed on April 24, 2014 by
    Justice Robert F. Goldstein of the Superior Court of Justice, sitting with a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

We recognize the Crowns submission that the sentences for these two
    offences should normally be consecutive. In our view, however, the global
    sentence of 18 months imposed by the trial judge was, for this offender, not
    demonstrably unfit.

[2]

Accordingly, although leave to appeal sentence is granted, the
    sentence appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Raitman v. Medallion Development Corporation, 2015
    ONCA 126

DATE: 20150224

DOCKET: M44044/M44545

Cronk, Pepall and Benotto JJ.A.

BETWEEN

Ella Raitman
and
    Samuel Raitman

Plaintiffs

(Moving Party)

and

Medallion Development Corporation

Defendant

(Respondent)

Ella Raitman, acting in person

Matthew P. Maurer, for the respondent

Heard: February 19, 2015

On appeal from the order of Justice R.G. Juriansz of the Court
    of Appeal for Ontario, dated December 15, 2014.

ENDORSEMENT

[1]

The moving party, Ella Raitman, seeks an order setting aside the
    December 15, 2014 order of Juriansz J.A. in which he denied the moving partys request
    to extend the time to set aside the September 11, 2014 order of Feldman J.A.

[2]

Feldman J.A. had dismissed the moving partys motion to extend the time
    to file a notice of appeal from a November 29, 2013 judgment of Boswell J., in
    which he dismissed her and Samuel Raitmans action against the respondent,
    Medallion Development Corporation (MDC). The Raitmans claimed damages for
    breach of contract arising from an alleged ceiling height deficiency in their
    home.

[3]

As noted by Gillese J.A. in
Enbridge Gas Distribution Inc. v. Froese
,
    2013 ONCA 131, at para. 15, the test on a motion to extend time is well
    settled. The over-arching principle is whether the justice of the case requires
    that an extension be given. Factors to be considered include:

-

whether the moving party formed a
bona fide
intention to appeal
    within the relevant time period;

-

the length of, and explanation for, the delay in filing;

-

any prejudice to the responding party, caused, perpetuated or
    exacerbated by the delay; and

-

the merits of the proposed appeal.

[4]

As stated in the trial judgment (
Raitman v. Medallion Development
    Corporation
, 2013 ONSC 7351), the history of the parties dispute is as
    follows. The Raitmans sued MDC for damages for breach of contract. MDC pleaded
    that it was improperly named, and that Medallion Developments (South Maple) Ltd.
    (Medallion) was the contracting party. At the outset of the trial, the trial
    judge asked the Raitmans whether they wished to amend their claim to add
    Medallion as a party. Medallion consented to such an amendment. However, the
    Raitmans declined to do so.

[5]

The trial judge found as a fact that the Raitmans had contracted with
    Medallion and not with MDC. Nonetheless, he examined the Raitmans claim as if
    Medallion had been properly named. Having done so, he dismissed their claim.

[6]

The Raitmans then commenced another action naming both MDC and Medallion
    as parties. It was dismissed on June 4, 2014.

[7]

On July 18, 2014, the moving party brought a motion requesting an
    extension of time to file a notice of appeal in the original action. Feldman
    J.A. dismissed this motion on September 11, 2014. She noted problems with
    prejudice to the respondent and the merits of the case and also determined that
    the justice of the case favoured dismissing the motion.

[8]

On November 5, 2014, the moving party brought a motion seeking to extend
    the time to set aside Feldman J.A.s order. MDC alleged that falsified
    documents were filed in support of that motion. In the event, the moving party
    abandoned her motion, with costs of $10,500 payable to MDC on consent.

[9]

On December 1, 2014, the moving party brought another motion for the
    same relief. This motion was dismissed by Juriansz J.A. on December 15, 2014. He
    determined that there was no indication that the Raitmans had formed the
    intention to appeal during the appeal period; a limitation period had expired
    against the proper defendant; and there was no merit in the proposed review of
    Feldman J.A.s order.

[10]

In
    our view, the moving partys motion should be dismissed.

[11]

We
    see no error in either the reasons or conclusion of Juriansz J.A.  The moving
    party failed to meet the requirements of the test for a time extension.  The justice
    of the case did not require the granting of an extension; rather it demanded
    that it be refused. Furthermore, we note that contrary to the submissions of
    the moving party, Juriansz J.A.s decision did not rest on the abandonment of
    her November 5, 2014 motion nor on her failure to pay outstanding cost orders.

[12]

The
    motion is dismissed with costs of $2,000, inclusive of disbursements and
    applicable taxes, to be paid by the moving party to MDC.  Approval of the form
    and content of the draft order by the moving party is dispensed with.

E.A. Cronk J.A.

S.E. Pepall J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ramlall v. Mustaffa, 2015 ONCA 73

DATE: 20150202

DOCKET: C59227

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Hemchand Ramlall

Appellant

and

Mian Mustaffa (aka Ali), Sumaiyah Shah and
    Yasmeen Shah

Respondents

Hemchand Ramlall, in person

No one appearing

Heard: January 16, 2015

On appeal from the judgment of Justice Faye E. McWatt of
    the Superior Court of Justice, dated August 1, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We cannot assist the appellant.

[2]

The appellants action was dismissed for delay in January 2013.  There
    is no basis in the material to question the propriety of that order when it was
    made.

[3]

The appellant brought a motion some 18 months later in the Superior
    Court.  It is unclear what relief the appellant sought (the notice of motion is
    not filed).  The appellant did not appear on the motion although he has offered
    an explanation for his failure.  The motion judge dismissed the motion noting
    that the action had been previously dismissed.

[4]

On appeal, the appellant asks that judgment be granted and damages
    awarded in the amount of $30,000.  He has addressed the merits of his claim
    which he understandably feels should be examined by a court.

[5]

We cannot address the merits of his claim on this appeal.

[6]

The appellant has not convinced us that there are any grounds upon which
    we can interfere with the decision of the motion judge.

[7]

The appeal is dismissed.