COURT OF APPEAL FOR ONTARIO

CITATION: PQ Licensing S.A. v. LPQ Central Canada Inc., 2018
    ONCA 331

DATE: 20180405

DOCKET: C63750

Sharpe, LaForme and van Rensburg JJ.A.

BETWEEN

PQ Licensing S.A., Vincent Herbert and Jean-Marie
    Josi

Applicants (Appellants)

and

LPQ Central Canada Inc
.

Respondent (Respondent)

Geoffrey B. Shaw and Eric
    Mayzel, for the appellants

David M. Golden and Marco
    P. Falco, for the respondent

Heard: January 30,
    2018

On appeal from the judgment of Justice Victoria R. Chiappetta
    of the Superior Court of Justice, dated January 17, 2017, dismissing an appeal
    from the preliminary award of Arbitrator Ronald G. Slaght, dated June 10, 2016.

van Rensburg J.A.:

A.

OVERVIEW

[1]

This is an appeal from a judgment of a judge of the Superior Court
    dismissing an appeal from an arbitrators decision on a preliminary issue. The
    parties are engaged in a dispute about a franchisees purported rescission of
    their franchise agreement. The agreement provided for the mediation, then
    arbitration, of disputes. On the franchisors preliminary motion, the
    arbitrator determined that the limitation period of two years under the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B had not expired, and that the
    arbitration of the parties dispute could therefore proceed. The franchisors
    appeal to the Superior Court was dismissed. The further appeal to this court is
    by leave.

[2]

For the reasons that follow, I would dismiss the appeal. The standard of
    review from the decision of the arbitrator is reasonableness. The arbitrator
    was engaged in the determination of an issue that depended on the
    interpretation of the parties contract, and the application of relevant legal
    principles, to determine whether the time for commencement of the arbitration
    process had expired. There is nothing about the issue decided by the arbitrator
    that would displace the presumptive standard of reasonableness in appeals of
    arbitral decisions.

[3]

The arbitrators decision that the arbitration was not time-barred was
    reasonable. It was based on his reasonable conclusions that (i) the parties
    agreement provided for mediation as a precondition to arbitration; (ii) the
    requirement to mediate in Delaware could be severed from the parties
    agreement; and (iii) applying s. 5(1)(a)(iv) of the
Limitations Act
, the
    two year limitation period for arbitration commenced on the date that mediation
    was deemed completed.

B.

THE DISPUTE

[4]

The parties to the appeal are the appellants (together, the
    franchisor) and the respondent, a franchisee. In 2008 they entered into an
    Area Development Agreement (the franchise agreement) for the development by
    the franchisee of 13 Le Pain Quotidien locations in the provinces of Ontario
    and Québec. On August 11, 2009 the respondent delivered a notice of rescission,
    asserting that the franchisor had breached its disclosure obligations under s.
    5 of the
Arthur Wishart Act (Franchise Disclosure), 2000
, S.O. 2000,
    c. 3 (the
AWA
). On October 8, 2009 the franchisor disputed the
    validity of the franchisees notice of rescission.

[5]

On October 6, 2011, almost two years later, the franchisee commenced an
    action in the Superior Court. The franchisor objected, relying on ss. 31.03 and
    31.04 of the franchise agreement, which required disputes between the parties
    to be arbitrated after mediation (the ADR Provisions). By letter dated
    January 16, 2012 the franchisee asserted that the mediation requirement was
    void because it required mediation in the State of Delaware and that, in any
    event, the entire franchise agreement was voided by the franchisors breaches.
    The franchisor responded by letter dated January 23, 2012 stating that the
    mediation clause was not void, proposing a mediation in Toronto, and indicating
    that it would bring a stay motion if the franchisee did not agree to first mediate
    and then submit to arbitration any claims not resolved by mediation.

[6]

The court action remained dormant until it was administratively
    dismissed for delay in 2013. When the franchisee tried to revive the action,
    the franchisor relied on the franchisees failure to commence an arbitration,
    which it asserted was out of time. Penny J. stayed the court action in July
    2013 on the basis of the ADR Provisions. He directed that the limitation period
    issue be determined by the arbitrator. The franchisee then served a notice of
    arbitration on October 7, 2013.

[7]

The parties agreed to the appointment of Ronald G. Slaght as arbitrator.
    As a preliminary issue, he had to determine whether the arbitration was out of
    time because it was not commenced within two years of October 8, 2009, the date
    the franchisor disputed the franchisees notice of rescission. The arbitrator
    decided this issue against the appellant franchisor.

C.

RELEVANT CONTRACTUAL AND STATUTORY PROVISIONS

[8]

At the center of the dispute are ss. 31.03 and 31.04 of the franchise
    agreement, comprising the ADR Provisions, s. 10 of the
AWA
,

and the relevant provisions of
    the
Limitations Act.

[9]

Sections 31.03 and 31.04 of the franchise agreement provide in part:

31.03 Except for disputes [relating to intellectual
    property], the parties agree that before resorting to arbitration, litigation
    or any other dispute resolution procedure, if any dispute between them  cannot
    be settled through negotiation by diligent effort, they will first attempt in
    good faith to settle the dispute or claim by non-binding mediation conducted in
    the state of Delaware under the auspices and then-prevailing commercial
    mediation rules of the American Arbitration Association. The parties
    obligation to mediate will be deemed to be satisfied when six hours of
    mediation have been completed (whether or not the parties have resolved their
    differences) or sixty days after a mediation demand has been made if any party
    fails to appear or participate in good faith in the mediation.

31.04 Except for
    disputes [relating to intellectual property], all controversies, disputes or
    claims arising between us  and you  based on any theory or facts, and whether
    or not arising out of this Agreement and which have not been resolved through
    mediation as provided in Section 31.03 above will be submitted for arbitration
    as provided in this Section 31.04 including (without limitation) any claim for
    equitable or interlocutory relief and any dispute as to the arbitrability of
    the controversy, dispute or claim.

[10]

Section
    10 of the
AWA
provides:

Any provision in a
    franchise agreement purporting to restrict the application of the law of
    Ontario or to restrict jurisdiction or venue to a forum outside Ontario is void
    with respect to a claim otherwise enforceable under this Act in Ontario.

[11]

The
    parties agree that the
Limitations Act
applies, and that the applicable
    limitation period for arbitration in this case is two years from when the claim
    was discovered. Section 5 of the
Limitations Act
provides in part:

5.(1) A claim is discovered on the earlier of,

(a)
the day on which the person with the
    claim first knew,

(i) that the injury, loss
    or damage had occurred,

(ii) that the injury,
    loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or
    omission was that of the person against whom the claim is made, and

(iv) that, having regard
    to the nature of the injury, loss or damage, a proceeding would be an
    appropriate means to seek to remedy it; and

(b) the day on which a
    reasonable person with the abilities and in the    circumstances of the person
    with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a
    claim shall be presumed to have known of the matters referred to in clause (1)
    (a) on the day the act or omission on which the claim is based took place,
    unless the contrary is proved.

D.

THE ARBITRATORS DECISION

[12]

The
    arbitrator held that the arbitration of the parties dispute was not
    time-barred. He noted that the parties plainly agreed in their franchise
    agreement to a comprehensive scheme for the resolution of their disputes, which
    included both mediation and arbitration. He interpreted the ADR Provisions to
    require mediation of the parties dispute as a precondition to arbitration.

[13]

The
    arbitrator rejected the franchisors argument that the entire mediation
    provision was void because, in requiring the parties to mediate in Delaware rather
    than Ontario, it infringed s. 10 of the
AWA.
He held that the
    reference to Delaware was severable from the rest of the mediation provision. He
    reasoned that this approach was consistent with the remedial purpose of the
AWA
,
    and it would be contrary to that purpose to void the entire provision and deny
    the franchisee its otherwise valid rights to mediate its claim. He rejected the
    franchisors argument that severance, as a matter of law, was not available.

[14]

In
    determining the limitations issue, the arbitrator concluded that arbitration was
    not appropriate within the meaning of s. 5(1)(a)(iv) of the
Limitations
    Act
until after the mediation regime in s. 31.03 had been complied with.

[15]

The
    arbitrator explained, at para. 164:

I find that a condition precedent to litigation has the effect
    of suspending the running of the limitation period under Section 5(1)(a)(iv) of
    the
Limitations Act
with the result in this case that because Section
    31.03 of the partys agreement creates such a condition precedent, the
    limitation period was suspended until the partys obligations under that clause
    were met. In this instance, the Franchisee refused to engage in Mediation at or
    about January 16, 2012. Thus, the Mediation requirement had been completed
    within the meaning of Section 31.03 60 days after that date. The result is that
    the limitation period commenced to run then and the Franchisees Notice to Arbitrate
    dated October 7, 2013, was within the two-year limitation period.

[16]

The
    arbitrator disagreed with the franchisors argument that such an interpretation
    would create an open-ended limitation period, permitting the franchisee to
    delay arbitration indefinitely. He described s. 31.03 as bilateral in the
    sense that either party could have started the limitations clock running by
    requesting mediation. This is what the franchisor eventually did when it
    insisted on mediation. The mediation requirement was satisfied 60 days after
    mediation was rejected by the franchisee.

[17]

The
    arbitrator addressed other arguments of the parties, including the question of
    waiver and the effect of their conduct on the limitations issue. It is
    unnecessary to refer to his reasons on these issues, which are not relevant to
    this appeal.

E.

THE APPEAL DECISION

[18]

The
    appeal judge rejected the franchisors submission that the arbitrators
    decision was subject to review on a correctness standard. Instead, she held
    that the applicable standard was reasonableness, consistent with
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633.

[19]

The
    appeal judge concluded that the arbitrators finding that mediation was a
    precondition to arbitration was based on a reasonable interpretation of the franchise
    agreement that reflected the parties intentions about how to resolve their
    disputes.

[20]

The
    franchisor argued that the arbitrator erred by finding that a proceeding was
    not appropriate until after mediation had failed because the franchisee must
    have known a proceeding was appropriate when it started a legal action in
    October 2011.

[21]

The
    appeal judge disagreed. She referred to this courts decision in
407 ETR
    Concession Co. v. Day
, 2016 ONCA 709, 133 O.R. (3d) 762, leave to appeal refused,
    [2016] S.C.C.A. No. 509, at para. 40, where Laskin J.A. stated:

[U]nder s. 5(1)(a)(iv) of the
Limitations Act, 2002
,
    the date a proceeding would be an appropriate means to recover a loss must have
    regard to the nature of the ... loss. So, in fixing the appropriate date, it
    may not be enough that the loss exists and the claim is actionable.
If the claim is the kind of claim that can be remedied by
    another and more effective method provided for in the statute, then a civil
    action will not be appropriate until that other method has been used.
[Emphasis added.]

[22]

Applying
    this principle, the appeal judge held that the franchisees commencement of an
    action in 2011 was part of the narrative, but not relevant to the application
    of s. 5(1)(a)(iv) of the
Limitations Act
. Rather, the determination of
    when a proceeding was appropriate turned on the parties choice to have
    their disputes resolved by arbitration if mediation as a precondition [was]
    unsuccessful.

[23]

The
    appeal judge also upheld the arbitrators decision to sever the reference to
    Delaware in the ADR Provisions, rather than to declare the entire mediation
    provision void. She agreed with the arbitrator that doing so served the
    remedial purpose of the
AWA
while
    encouraging mediation in commercial disputes.

F.

ISSUES AND ANALYSIS

[24]

The
    appellant asserts that both the arbitrator and the appeal judge erred in the
    interpretation of the franchise agreement and relevant statutory provisions in
    refusing to allow its preliminary motion to dismiss the arbitration as out of
    time.

(1)

Standard of Review

[25]

The
    appellant submits that the appropriate standard of review of the arbitrators
    decision was correctness, and that the appeal judge therefore erred when she
    dismissed the appeal after finding the decision to be reasonable.

[26]

The
    standard of review of a decision of an arbitrator is almost always
    reasonableness. This includes when the arbitrator is determining questions of
    law, except in rare circumstances, such as where a constitutional question, or
    a question of law of central importance to the legal system and outside the
    adjudicators expertise, is at issue:
Sattva
, at para. 106;
Teal
    Cedar Products Ltd. v. British Columbia
, 2017 SCC 32, [2017] 1 S.C.R. 688,
    at para. 74.

[27]

The
    appellant makes two arguments in favour of a correctness standard of review. I would
    not give effect to either argument.

[28]

First,
    the appellant relies on the Supreme Courts decision in
Ledcor Construction
    Ltd. v. Northbridge Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R.
    23. In particular, the appellant refers to the statement of Wagner J. (as he
    then was), at para. 4, that where an appeal involves the interpretation of a
    standard form contract, where the interpretation issue is of precedential
    value, and there is no meaningful factual matrix, the interpretation of the
    contract is better characterized as a question of law subject to correctness
    review.

[29]

The
    appellant asserts that, while the franchise agreement is not technically a
    standard form contract, dispute resolution provisions that provide for
    arbitration after mediation are commonplace, and that a standard interpretive
    approach would be of precedential value to other parties with similar contractual
    dispute resolution provisions. The appellant also points to the arbitrators
    observation in this case (at paras. 66 and 67 of his reasons) that the
    interpretation of the franchise agreement did not depend on the factual matrix.

[30]

The
    appellants reliance on the analysis in
Ledcor
is misplaced.
Ledcor
involved an appeal in a court action, and not the review of the decision
    of an arbitrator. The characterization of the interpretation of a standard form
    contract of precedential value as a question of law (rather than as a question
    of mixed fact and law) drove the determination of the standard of review in the
    civil litigation context, where pure questions of law are reviewable on a
    correctness standard. As the Supreme Court noted in
Teal Cedar Products
,
    at para. 78, while the nature of the question (whether legal, factual or mixed)
    is dispositive of the standard of review in appeals from civil litigation
    judgments of the courts, it is not dispositive in the context of commercial
    arbitral awards by specialized arbitrators. The mere presence of a legal
    question does not, on its own, preclude the application of a reasonableness
    review in a commercial arbitration context:
Teal Cedar Products
, at
    para. 75.

[31]

The appellants second argument in favour of a correctness
    standard of review is that the arbitrator was called upon to interpret the
Limitations
    Act
and s. 10 of the
AWA
,
    which
engaged discrete questions of law of general application
    outside the arbitral context, and warrant a correctness standard of review.

[32]

Again,
Sattva
instructs otherwise. A correctness standard of review may apply
    where the issue before an arbitrator is a rare or exceptional question of law requiring
    a correctness standard to be applied, such as a constitutional question, or a
    general question of law that is both of central importance to the legal system
    as a whole and outside the adjudicators specialized area of expertise:
Sattva
,
    at para. 106;
Ottawa (City) v. Coliseum Inc
., 2016 ONCA 363, 352
    O.A.C. 199, at para. 31;
Intact Insurance Company v. Allstate Insurance
    Company of Canada
, 2016 ONCA 609, 131 O.R. (3d) 625, leave to appeal
    refused, [2016] S.C.C.A. No. 392, at paras. 41 and 42. No such exceptional
    legal question was determined by the arbitrator in this case.

[33]

Here, the arbitrator, a specialized decision-maker who was
    selected by the parties, decided a preliminary issue within his jurisdiction
    that involved the interpretation of the parties contract, the franchise
    agreement, and the application of the law to the particular facts of the case. To
    the extent that the arbitrator interpreted and applied the law to the questions
    he had to determine, the reasonableness standard would still apply.

[34]

The reasonableness standard of review therefore applies to the
    appeal of the arbitrators decision on the preliminary issue.

(2)

The Arbitrators Decision Was Reasonable

[35]

Applying
    a reasonableness standard of review requires the court to determine whether the
    arbitrators decision fell within a range of possible, acceptable outcomes
    which are defensible in respect of the facts and the law:
Dunsmuir v. New
    Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[36]

In
    considering whether the limitation period for arbitration of the dispute had
    expired, the arbitrator had to determine when the franchisees claim was
    discovered. This required his interpretation of the franchise agreement, in
    particular the ADR Provisions, and the application of the discoverability
    provisions of the
Limitations Act
to
    the franchisees claim
.
The
    arbitrator
characterized fulfillment of the mediation condition as
    a precondition to arbitration. He found that under s. 5(1)(a)(iv),
    arbitration was not an appropriate means to resolve the dispute until after
    the mediation condition was fulfilled. He gave effect to the mediation clause
    after severing the requirement that mediation take place in Delaware, as it was
    contrary to s. 10 of the
AWA.

[37]

In
    oral argument the appellant characterized the question on appeal as whether a
    limitation period can be tolled for almost four years from the accrual of a
    cause of action on the basis that the claimant did not notionally discover its
    claim until a mediation clause it had eschewed and denied had been pursued.

[38]

This
    characterization is inaccurate. What happened here was not a tolling of a
    limitation period, but the application of the criteria of discoverability under
    s. 5 of the
Limitations Act
, and in particular s. 5(1)(a)(iv), to the
    parties circumstances, including the franchise agreement which provided the
    mechanism for the resolution of their disputes. As Laskin J.A. stated in the
407
    ETR
case, at paras. 33 and 34, the appropriateness criterion in s.
    5(1)(a)(iv) can have the effect  of postponing the start date of the two-year
    limitation period beyond the date when a plaintiff knows it has incurred a loss
    because of the defendants actions, and when an action is appropriate
    [under s. 5(1)(a)(iv) of the
Limitations Act
]
,
depends on the specific
    factual or statutory setting of each individual case.

[39]

The
    appellant makes four arguments, none of which persuade me that the arbitrators
    decision was unreasonable.

[40]

First,
    the appellant says that the arbitrator erred when he found that the mediation
    provision tolled the applicable limitation period after specifically finding
    that s. 22 of the
Limitations Act,
which governs tolling agreements,

did not apply. That section requires an express and bilateral agreement
    between the parties that contains a clear and unambiguous request by one party
    to toll a limitation period and an equally clear and unambiguous affirmative
    response by the other: G. Mew, D. Rolph and D. Zacks,
The Law of
    Limitations
, 3rd ed. (Toronto: LexisNexis Canada, 2016), at p. 246. The
    appellant argues that, after observing that these requirements were not met,
    the arbitrator went on to find that the mediation provision in the ADR Provisions
    was a tolling agreement.

[41]

This
    submission has no merit. The arbitrator was clear that the franchisee did
not
rely on s. 22, and that there was no argument to be made based on this
    section (at paras. 172 and 180). Although the arbitrator used the term
    tolling on more than one occasion in his discussion of when the claim was
    discovered and the limitation period began to run, it is clear from his reasons
    that he was not applying s. 22 of the
Limitations Act
, nor was he
    invited to do so. Rather, his conclusion was that mediation was a condition
    precedent to litigation that had the effect of suspending (para. 164) or
    tolling (para. 140) the running of the limitation period under s.
    5(1)(a)(iv).

[42]

Second,
    the appellant asserts that mediation could not reasonably be a precondition to
    the arbitration for disputes under the franchise agreement because it would
    result in the franchisee being able to indefinitely extend the period for the
    commencement of arbitration. The argument here is about a lack of certainty for
    the running of any limitation period.

[43]

The
    arbitrator reasonably rejected this argument. As he fairly observed, either
    party could have put in motion the ADR process under their agreement, to start
    the running of the limitation period. As for the franchisors argument to this
    court that it would have no incentive to initiate the mediation of a dispute
    that might simply go away, the mediation process to which the parties have
    agreed is no less certain or available simply because a party for one reason or
    another might choose not to invoke it. Indeed, it was the franchisors demand
    for mediation, in response to the franchisees commencement of a legal proceeding,
    that started the running of the limitation period.

[44]

The
    appellant contends that the mediation before arbitration precondition would
    make the limitation period uncertain because a franchisee could unilaterally
    postpone the discovery of a claim it chooses not to reveal and then pursue
    mediation years later. Where this happens, the franchisor will have no way of
    knowing about the claim, or initiating mediation to start the running of the
    limitation period. Again, the appellants argument is without merit. Section
    23.01 of the franchise agreement requires the franchisee to provide immediate
    notice of any alleged breach or violation of the agreement and contains its own
    time limit of one year for notice, failing which any action is permanently
    barred. And, as for claims based on non-disclosure, s. 6 of the
AWA
contains
    its own time limits in which the franchisee must give notice of rescission. Accordingly,
    once notice is given, the franchisor will be aware of the dispute and in a
    position to invoke the mediation precondition to start the running of the
    limitation period.

[45]

The
    appellants third argument is that the arbitrators discoverability analysis
    was wrong, or unreasonable, because he ignored s. 5(2) of the
Limitations
    Act.
Section 5(2) is a presumption that a claim is discovered where the
    facts giving rise to the claim occur and places the onus on a plaintiff to
    rebut the presumption. The appellant says that the franchisee could not have
    rebutted the presumption because, it must have known that a proceeding would
    be appropriate when it started its court action. The appellant relies on this
    courts decision in
Hamilton (City) v. Metcalfe & Mansfield Capital
    Corporation
, 2012 ONCA 156, 290 O.A.C. 42, upholding a motion judges
    rejection of an argument based on s. 5(1)(a)(iv) of the
Limitations
    Act
, where a plaintiffs commencement of an earlier court proceeding
    demonstrated its awareness of the possible expiry of a limitation period.

[46]

Here,
    the presumption in s. 5(2) had no role to play in the analysis the arbitrator
    was required to perform. No one disputed that, apart from the question of
    mediation as a first step, the claim would otherwise have been discovered when
    the notice disputing the rescission was delivered on October 8, 2009. The
    arbitrator recognized that it was up to the franchisee to establish that the limitation
    period for commencing arbitration was suspended by the mediation requirement in
    the ADR Provisions. Ultimately, he was satisfied that this was the case.

[47]

The
    question was not when the appellant knew it had a claim, or even that legal
    action was appropriate (the issue in
Hamilton
), but when the
    franchisee knew or ought reasonably to have known that arbitration, which was the
    dispute resolution proceeding the parties had bargained for, was the appropriate
    means to resolve the dispute. The arbitrator reasonably concluded that the answer
    to this question depended on the ADR Provisions and the parties agreement to a
    dispute resolution mechanism which required an attempt at mediation before
    arbitration could be commenced. As the appeal judge noted, the determination of
    when a proceeding was appropriate turned on the parties choice to have
    their disputes resolved by arbitration if mediation as a precondition [was]
    unsuccessful. Under this interpretation, the parties would only know that arbitration
    was appropriate when the mediation requirement had been exhausted. As such, the
    date of commencement of the franchisees misguided legal action was not
    determinative of the s. 5(1)(a)(iv) appropriateness inquiry.

[48]

Finally,
    the appellant asserts that the arbitrator erred in excising only that part of
    the mediation clause that referred to the requirement to mediate in Delaware,
    when he ought to have concluded that the entire mediation provision was void. If
    the entire mediation provision was void, then there would be no precondition to
    arbitration that would suspend the running of the limitation period.

[49]

Section
    10 of the
AWA
provides that a
provision
in a franchise agreement is void when it purports to, among other things,
    restrict a venue to a forum outside Ontario. The only part of the mediation
    clause that offends s. 10 is the requirement that the mediation, which the
    parties agreed would precede any arbitration, will take place in Delaware.

[50]

The
    arbitrator adopted a blue pencil approach, drawing a line through the
    reference to the State of Delaware. This approach, which severs or removes any
    illegal features of a contract, is available where it would further the
    parties contractual intentions:
Shafron v. KRG Insurance Brokers (Western)
    Inc.
, 2009 SCC 6, [2009] 1 S.C.R. 157, at paras. 29 and 32;
2176693
    Ontario Ltd. v. Cora Franchise Group Inc
., 2015 ONCA 152, 124 O.R. (3d)
    776, (
Cora Franchise
), at paras. 35 to 37.

[51]

Contrary
    to the appellants submission, the arbitrators severance of the Delaware
    location for mediation was not precluded by anything stated by this court in
Cora
    Franchise
. There the court refused to read down an unenforceable provision
    in a franchise agreement that required the delivery of a release that would have
    been void under s. 11 of the
AWA
because
    to do so would have d
efeated the purpose of s. 11. The case
    discusses both void provisions and those that are unenforceable because
    they require something to be done that would be void, but does not, as the
    appellant contends, preclude severance of provisions that are void. The issue
    here was what part of the mediation provision was void.  The arbitrator reasonably
    rejected the appellants argument that the entire mediation provision was void,
    and severed only the provision for mediation in Delaware, that s. 10 of the
AWA
rendered void
.

[52]

The
    parties franchise agreement expressly contemplated what the arbitrator did
    here. Section 30.02 provides that, in the event of any conflict between any
    provision of the agreement and any law, any affected provision will be
    curtailed and limited only to the extent necessary to bring it within the
    requirement of the law. Removal of the requirement to mediate in Delaware served
    to uphold the ADR process the parties agreed to, that anticipated mediation
    before arbitration. It would cure the illegality while remaining as close as
    possible to the intentions of the parties:
Cora Franchise
, at para. 36.

[53]

Accordingly,
    the arbitrators severance of the Delaware requirement to meet s. 10 of the
AWA
was reasonable. Indeed, it would have been unreasonable for him to have
    accepted the franchisors argument to exclude the entire mediation clause,
    which was an integral component of the ADR Provisions, especially in
    circumstances where the franchisor had expressly relied on the obligation to
    mediate, and had proposed that a mediation take place in Toronto.

[54]

For
    all of these reasons, I agree with the appeal judge that the arbitrators
    decision on the preliminary issue of whether the limitation period had expired
    for the arbitration of the parties dispute, was reasonable.

G.

DISPOSITION

[55]

Having
    concluded that the standard of review of the arbitrators decision was
    reasonableness and that the decision was reasonable, I would dismiss the
    appeal. I would award costs of the appeal, including the costs of the motion
    for leave to appeal, to the respondent in the sum of $28,000, which amount is
    inclusive of disbursements and HST.

K. van Rensburg J.A.

I agree Robert J.
    Sharpe J.A.

I agree H.S. LaForme
    J.A.

Released: April 5, 2018


WARNING

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

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

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

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

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

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

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

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

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

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.R.A., 2018 ONCA 388

DATE: 20180419

DOCKET: C63952

Benotto, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.R.A.

Appellant

Gerri Wiebe, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: April 16, 2018

On appeal from the conviction entered on December 8, 2016
    by Justice Terrence A. Platana of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant
    appeals from a conviction for sexual assault for which he received a sentence
    of four years imprisonment. In her able submissions, Ms. Wiebe challenges the
    trial judges credibility findings in relation to the complainants evidence.
    Ms. Wiebe points to two inconsistencies in relation to statements the
    complainant made to a sexual assault nurse.

[2]

We do not agree
    that these two prior statements were material inconsistencies. Nevertheless, in
    our view, the trial judge was alive to them and addressed them in an adequate
    manner. While more could have been said about these inconsistencies, as well as
    others that arose in the complainants evidence, we are satisfied that these
    were dealt with sufficiently.

[3]

The appellant
    also argues that the trial judge failed to give proper consideration to the
    defence theory and the evidence said to support it. We disagree. The trial
    judge specifically addressed the theory of the defence and some of the evidence
    purported to support it. His failure to enumerate all of the points itemized by
    counsel in her closing submissions does not, in this case, amount to error. The
    trial judges decision was explicitly based on the evidence as a whole. We are
    not persuaded that the trial judge failed to give fair consideration to the
    defence theory and the supporting evidence in his analysis.

[4]

Lastly, the
    trial judges credibility findings are entitled to deference. We can see no
    error that would warrant appellate intervention.

[5]

The appeal is
    dismissed.

M.L.
    Benotto J.A.

L.B.
    Roberts J.A.

Gary
    Trotter J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

(ii)      any offence
    under this Act, as it read at any time before the day on which this subparagraph
    comes into force, if the conduct alleged involves a violation of the
    complainants sexual integrity and that conduct would be an offence referred to
    in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as
    feasible, inform the victim of their right to make an application for the
    order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material or
    a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Contreras, 2018 ONCA 328

DATE: 20180405

DOCKET: M48924 (C56862)

Feldman and Benotto JJ.A. and Sachs J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Contreras

Appellant

and

Virgil Cojocaru

Applicant

Robin Parker, for the applicant

Christine Bartlett-Hughes, for the respondent

Anthony Moustacalis, for the appellant

Heard: March 26, 2018

Motion for directions.

REASONS FOR DECISION

[1]

This is a motion for directions brought on
    behalf of the impugned counsel in an appeal alleging ineffective assistance.

[2]

The applicants motion originally sought an
    order granting him intervener status. It was for that reason the case
    management judge referred the motion to a panel of the court. The applicant
    then changed the relief sought on this motion. He now wants to wait to
    determine whether he will seek intervener status until after reviewing the transcripts
    of the cross-examinations on the affidavits filed with respect to the issue of
    ineffective assistance, including of the cross-examination of his former
    principal and others. On this motion he now seeks an order that he is entitled
    to copies of those transcripts.

[3]

Although the current request should have been raised
    with the case-management judge in accordance with this courts protocol, in
    light of the delays occasioned thus far and the consent of all counsel, the
    motion proceeded before the panel.

[4]

The basis for the applicants request is
    twofold: (i) he wishes to review the transcripts in order to assess the
    potential for a motion to intervene; and (ii) he wants the information to be
    able to clear his name.

[5]

In our view, neither of these reasons support
    the order sought.

[6]

On the record before us, there is no potential
    for a successful motion to intervene. Although the threshold for a merit
    assessment at this stage is low, the applicant has failed to reach it. We see
    no potential basis that would support a motion for intervener status.

[7]

The right to intervene in criminal proceedings
    should be granted sparingly:
R. v. Seaboyer
(1986), 50 C.R. (3d) 395 (Ont. C.A.), at para. 398. The issue on this appeal is
    whether there has been a miscarriage of justice such that the appellant should
    have a new trial. The applicant seeks to inject a collateral issue into the process.
    This is evident from the Motion for Directions, which states, in part:

The applicants
    position is that he did not ineffectively assist the appellant, but if he did,
    that responsibility is shared with his former articling principal and mentor.

[8]

This issue is not before the court on the appeal,
    which is not a forum for resolving disputes between the applicant and his
    former principal.

[9]

To the extent that the applicant has an interest
    in protecting his personal and professional reputation, this Courts Practice
    Direction pertaining to allegations of ineffective assistance of counsel
    provides him with a process that appropriately protects those interests.

[10]

Further, involvement of the applicant as
    intervener would cause prejudice to the appellant.  The conviction under appeal
    was entered on January 14, 2013. The appellant has been on strict bail
    conditions and is entitled to have his appeal heard expeditiously. It would
    also require the appellant to, in effect, respond to two Crowns and potentially
    put the applicant at odds with his duty of loyalty to the appellant.

[11]

In short, there is no basis to order that
    transcripts be available to a non-party to support a meritless intervener motion.
    There is also no basis to provide the transcripts to support the appellants
    attempt to inject a collateral issue into the appeal process.

[12]

Accordingly the motion is dismissed.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

Sachs
    J.


WARNING

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

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

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

(a)     any of the following offences;

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

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.C., 2018 ONCA 392

DATE: 20180423

DOCKET: C61394

Rouleau, Tulloch and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.C.

Appellant

G.C., in person

Erika Chozik, duty counsel

Deborah Calderwood, for the respondent

Heard: April 6, 2018

On appeal from the conviction entered on April 23, 2015
    and the sentence imposed on August 14, 2015 by Justice Leonard Ricchetti of the
    Superior Court of Justice sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of incest and sexual
    assault. The complainant was his teenage daughter. She gave birth to two of his
    children. He received a global sentence of ten years.

[2]

At trial, the appellant was represented by
    counsel. He testified. Midway through his cross-examination, he dismissed his
    counsel, claiming that his lawyer had been incompetent. The appellant then made
    an application for a mistrial on the basis of what he asserted was the ineffective
    assistance of counsel. The jury was sent away for a brief time so that the
    mistrial application could be heard. The application was dismissed.

[3]

The appellant maintains that the trial judge
    erred in law by failing to apply the same standard as that used to assess claims
    for ineffective assistance of counsel on appeal. On appeal, the test focusses
    on whether there is a reasonable possibility that a miscarriage of justice
    resulted from ineffective assistance at trial:
R. v. Stark,
2017 ONCA 148, 347 C.C.C. (3d) 73, at paras. 14-15. The test for a
    mistrial is different. The decision whether to grant a mistrial is a matter
    that lies within the discretion of the trial judge, who must assess whether
    there is a real danger that trial fairness has been compromised:
R.
    v. Khan,
2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79.

[4]

We disagree that the same test to assess
    ineffective assistance claims on appeal should apply at trial. An incompetence
    of counsel claim, brought during the course of a trial, should be approached
    within the principled framework for mistrial applications. Bearing in mind the
    unique dynamics of each trial, judges need to be left with a broad discretion
    to manage the trial process. A mistrial is a remedy of last resort, and it falls
    squarely within the discretion of the trial judge who is in the best position
    to assess whether such a remedy is needed in order to avoid miscarriages of
    justice. No new test is required.

[5]

Read in totality, the trial judges reasons
    demonstrate that he essentially considered the incompetence claim by applying a
    mistrial framework. He was faced with a difficult and complex issue at a
    sensitive time in the trial. He managed the issue in a deft manner and we see
    no error in his exercise of discretion. We specifically endorse the trial
    judges conclusion that there had been no incompetence of counsel in this case.

[6]

We also agree with the Crowns submission that,
    in any event, this was an overwhelming prosecution case. The complainants
    evidence was supported by independent DNA evidence suggesting that her children
    were fathered by the appellant. There was no miscarriage of justice.

[7]

We also see no error in the sentence imposed.

[8]

The conviction and sentence appeals are dismissed.

Paul Rouleau J.A.

M. Tulloch J.A.

Fairburn J.A.


WARNING

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

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (2.1), (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 in respect of a victim or a witness, or
    on application of 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 of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, 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 in the interest of the proper
    administration of justice.

(2.1) The offences for the purposes of subsection (2)
    are

(a) an offence under section 423.1, 467.11,
    467.111, 467.12, or 467.13, or a serious offence committed for the benefit of,
    at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2),
    17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under subsection 21(1) or section
    23 of the
Security of Information Act
that is committed in relation to
    an offence referred to in paragraph (c).

(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 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) society’s 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; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J. M., 2018 ONCA 361

DATE: 20180412

DOCKET: C61558

Feldman and Benotto JJ.A. and Sachs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

J. M.

Appellant

Philip Campbell, for the appellant

Christine Tier, for the respondent

Heard and released orally: March 28, 2018

On appeal from the conviction entered on February 20,
    2015 and the sentence imposed on July 2, 2015 by Justice E.A. Quinlan of the
    Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was tried before a judge and jury on three counts arising
    from an altercation between himself and his wife, C.F.  The charges were
    aggravated assault, choking to overcome resistance and threatening death.  He
    was convicted of aggravated assault and, on the charge of choking, of the
    included offence of assault.  He was acquitted of the charge of threatening
    death.  This is an appeal from the two convictions.

[2]

The appellant alleges that the trial judge made two legal errors that
    led to an unfair trial.  Specifically, he submits that:

i)

the trial judge erred in instructing the jury that there was no evidence
    that the pot of spaghetti sauce responsible for C.F.s burning and scarring
    fell from the stove top rather than being poured over her by the appellant;

ii)

the trial judge erred in allowing Officer Henderson to testify in detail
    about the fact that the marks that he observed on C.F.s neck appeared to him
    to be fingerprints.

Ground One: Error respecting the falling pot

[3]

One of the incidents that formed the basis for the charge of aggravated
    assault was based on C.F.s testimony that the appellant poured a pot of hot
    spaghetti sauce over her, causing her to suffer several burns.  During the
    course of C.F.s testimony, the defence put several alternate scenarios to her,
    including that the pot of spaghetti sauce fell off the stove.  C.F.
    unequivocally denied those suggestions.  The appellant did not testify.

[4]

In her charge to the jury, the trial judge stated Ladies and Gentlemen,
    there is no evidence that the pot fell on [C.F.] and you must not speculate on
    this.

[5]

After several discussions between counsel as to how far defence counsel
    could go in terms of suggesting alternate scenarios to the jury, the trial
    judge was clear that the appellant was entitled to attack C.F.s credibility,
    including her credibility about how the spaghetti sauce ended up all over her.
    According to the appellant, central to the appellants attack on C.F.s
    credibility was the ability to suggest to the jury that the photographic
    evidence of the spaghetti sauce splatter on the floor was circumstantial
    evidence from which they could draw the inference that the pot of spaghetti sauce
    fell on C.F., as opposed to being poured over her by the appellant.

[6]

While this was the position that the appellant took on the appeal before
    us, this was not the position that defence counsel took before the trial
    judge.  Significantly, when the Crown objected to the portion of defence
    counsels closing where she posed the question did the pot fall on her?,
    defence counsel said that she only meant to convey that the jury could reject
    C.F.s evidence.  Counsel apologized and agreed that there was no evidence of
    the pot falling.  She also agreed that a corrective instruction about
    speculation would be appropriate and advocated for a similar corrective
    instruction to address an area of the evidence where the Crown invited the jury
    to speculate.

[7]

We do not accept the suggestion that, in spite of trial counsels
    position, the trial judges charge on this point nevertheless undermined the
    fairness of the trial, given what the photographic evidence that was before the
    jury actually depicts.  On the defence theory, if the pot fell off the stove,
    this would have resulted in limited spaghetti sauce splatter close to the
    ground.  However, the photographs do not show only limited splatter close to
    the ground.  They also show splatter half way up the refrigerator door.

[8]

Therefore, we see no merit to this ground of appeal.

Ground Two: Officer Hendersons evidence on neck injuries

[9]

The appellant submits that Officer Hendersons evidence regarding the
    appearance of C.F.s neck injuries was inadmissible expert opinion evidence.
    At the beginning of Officer Hendersons testimony, the Crown did try to elicit
    an opinion from him as to the cause of C.F.s neck injuries.  The defence
    objected and the trial judge agreed with defence counsel that such evidence was
    not admissible.  The trial judge then ruled that they would proceed question
    by question as to whether or not youre going too far, thus making it clear
    that she would entertain further objections on this point if the evidence
    strayed from proper bounds.  No further objection was taken to the evidence
    that the appellant now seeks to impugn.

[10]

The
    line between properly admissible descriptive evidence and inadmissible expert
    opinion evidence can sometimes be a difficult line to draw.  In this case,
    however, it is clear that in the view of the parties who were at the trial, the
    line was not crossed.  In
R. v. J.A.
[2011] 1 S.C.R. 628, the Supreme
    Court considered a case where it was submitted that an officers evidence
    concerning the appearance of an injury arguably exceeded the proper boundaries
    of lay opinion evidence and agreed that if the opinion stood unchallenged the
    error may have been of little consequence.  (paragraph 11)

[11]

In
    assessing the consequence of any error in this case, if there was one, it is
    important to note that the evidence was not treated as opinion evidence in the
    judges charge and that the evidence did not inflame the jury as they did not
    convict the appellant of choking, but just of simple assault.

[12]

For
    these reasons, the conviction appeal is dismissed.  The sentence appeal is
    dismissed as abandoned.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

Sachs
    J. (ad hoc)


WARNING

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

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

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

(a)     any of the following offences;

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

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. L.H.E., 2018 ONCA 362

DATE: 20180413

DOCKET: C64490

Hoy A.C.J.O., MacPherson and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.H.E.

Appellant

Breese Davies and Andrew Burgess, for the appellant

Jennifer Epstein, for the respondent

Heard: April 11, 2018

On appeal from the conviction entered on November 4, 2009
    by Justice Laurence A. Pattillo of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant L.H.E. was convicted of sexual assault, sexual
    exploitation, sexual interference, and invitation to sexual touching, all in
    relation to his step-daughter, following a trial before Pattillo J. of the
    Superior Court of Justice. He received a sentence of nine years imprisonment.

[2]

The appellant appeals his conviction on a single ground  ineffective
    assistance of trial counsel. He asserts that his trial counsel, Susan von
    Achten, behaved unprofessionally in an important respect - she filed a false
    affidavit with the trial court in support of his bail review application. The
    appellant states that his trial counsel at the time she interviewed him made
    him sign a blank piece of paper. She then wrote the contents of his affidavit
    supporting the bail review application herself, attached the blank page signed
    by the appellant, and signed the jurat. Trial counsel then filed this
    handwritten affidavit with the Court without reviewing its contents with the
    appellant.

[3]

The appellant also asserts that his trial counsel failed to prepare him
    to testify for trial, made incorrect arguments on crucial legal issues, and failed
    to cross-examine Crown witnesses effectively.

[4]

The appellant contends that his trial counsels professional misconduct
    and incompetence prejudiced him at his trial. The falsified affidavit contained
    numerous factual inaccuracies, some about irrelevant and easily verifiable
    matters about which the appellant would have no reason to lie. The appellant
    says that he was cross-examined to great effect on these inaccuracies at his
    trial and the trial judge cited this as one reason for disbelieving his
    evidence.

[5]

In support of his sole ground of appeal, the appellant prepared and
    filed a substantial fresh evidence record, including the appellants affidavit,
    the cross-examination on that affidavit, the examination and cross-examination
    of trial counsel, and many documents filed during the examinations of the
    appellant and trial counsel.

[6]

The test for assessing an ineffective assistance of counsel claim was
    stated succinctly by OConnor A.C.J.O. in
R. v. L.C.T.
, 2012 ONCA 116,
    at para. 37:

When a claim of ineffective assistance is raised, the onus is
    on the appellant to establish (1) the facts that underpin the claim; (2) the
    incompetence of the assistance provided; and (3) the incompetent assistance resulted
    in a miscarriage of justice.  [Citations omitted.]

[7]

The Crown agrees that this appeal turns on the third hurdle, namely
    whether a miscarriage of justice resulted. To succeed at this third step, the
    appellant must establish either that there is a reasonable probability that the
    verdict would have been different had he received effective legal
    representation, or that his counsels conduct deprived him of a fair trial: see
R. v. G.D.B.
, [2000] 1 S.C.R. 520.

[8]

In our view, the appellant cannot establish either.

[9]

On the verdict would have been different point, there is a simple
    reality about the record in the appellants trial, namely, the strong
    evidentiary basis upon which the appellant was convicted. The Crown presented
    an overwhelming case against the appellant. The appellants trial was not
    simply a he said, she said sexual assault case. In addition to the
    complainants evidence, which the trial judge found credible, the Crown
    presented evidence that the appellant had confessed to his wife, told his son
    that he was sorry for what he had done to the complainant and knew he would go
    to jail for a long time, possessed a jacket with condoms in a pocket that
    corroborated the complainants evidence and fled the country immediately after
    learning about the allegations against him. On this last point, the trial judge
    said, reasonably: I have rejected Mr. [E]s explanation of why he left the
    country on May 19
th
on the basis that it is a complete fabrication.
    The trial judge identified the appellants explanation of why he fled Canada as
    where [his] credibility really comes apart.

[10]

On
    the deprived of a fair trial point, when the trial Crown cross-examined the
    appellant on inconsistencies between his trial testimony and statements in his
    bail review affidavit, the appellant testified that some statements in his bail
    review affidavit were typos. The fact that the appellants evidence at trial
    was inconsistent with the evidence provided to the court in support of his bail
    application was one of many reasons that at the trial judge did not believe his
    denial that he never sexually assaulted his step-daughter. The appellant argues
    that he did not have a fair trial because his counsel effectively created
    evidence, through her preparation of his bail review affidavit before trial,
    which was used against him at trial.

[11]

We
    are not persuaded that the appellants trial was unfair. This is not a case
    where the incompetence amounted to actual or constructive denial of the
    assistance of counsel at trial or where the adversarial dynamic of the trial
    was lost. Trial counsel put the appellants defence to the trial judge and
    challenged the Crowns case. His claim that his trial was unfair is based on
    specific actions by his counsel prior to trial and did not detract from the
    fairness of the adjudicative process at trial. Nor did it impact on the
    reliability of the verdict. Even if the inconsistencies were removed, the trial
    judge would not have accepted that the appellant was a credible witness,
    especially in light of his complete rejection of the appellants explanation
    for his departure from Canada within hours of learning about the police
    investigation.

[12]

Accordingly,
    the appeal is dismissed.

Alexandra Hoy A.C.J.O.

J.C. MacPherson J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2018 ONCA 351

DATE: 20180411

DOCKET: C62011 & C62548

Sharpe, Pepall and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Courtney Lewis and Aaron Lewis

Appellants

Michael Dineen, for the appellant Courtney Lewis

Eric Neubauer, for the appellant Aaron Lewis

Peter Fraser, for the respondent

Heard: February 23, 2018

On appeal from the convictions entered by Justice Susan
    E. Healey of the Superior Court of Justice, siting with a jury, on November 3,
    2015.

Sharpe J.A.:

[1]

Ryan Turcotte was attacked by a group of men in a parking lot in Barrie.
    He suffered a severe brain injury. Both appellants conceded that they were
    present in the parking lot when the assault occurred. The central issue was
    whether they participated in the assault. Both were convicted by the jury of
    aggravated assault. They appeal arguing that the trial judge made several
    errors in her instructions to the jury in relation to eyewitness identification
    evidence, aiding and abetting, the right of the jury to ask questions, the
    definition of bodily harm, and self-defence.

[2]

For the following reasons, I would allow the appeals and order a new
    trial.

A.

FACTS

[3]

On June 25, 2012, Ryan Turcotte attended a bar in Muskoka with his
    friend Kiki Mukendi. The bar operated a shuttle bus that transported patrons
    from Barrie to the bar and then back to Barrie at the end of the night. In the
    early morning hours of June 26, 2012, Turcotte and Mukendi took the bus back to
    Barrie. The appellant Aaron Lewis was also on board. The bus driver was David
    Ribble and the security guard was Ryan Zaroski.

[4]

On the ride back to Barrie, there was a dispute between Turcotte and
    Aaron. Aaron called his cousin, the appellant Courtney Lewis. He told Courtney
    to meet him at the parking lot as he was concerned about a possible altercation
    upon arrival. Courtney went to the parking lot.

[5]

Turcotte was the first one to get off the bus when it arrived in Barrie.
    Shortly thereafter he was assaulted by a group of three or four men, fell to
    the ground and suffered a serious brain injury. The issue at trial was whether
    either or both Aaron and Courtney participated in the assault.

[6]

At trial, the various witnesses provided evidence that frequently
    differed on key issues.  In brief, their evidence was as follows. Mukendi
    testified that he heard Aaron say he was going to tak[e] this guy out. Turcotte
    was approached by Aaron, Courtney and another male. Mukendi testified that both
    Aaron and Courtney punched Turcotte. Turcotte fell to the ground and was
    knocked unconscious. Aaron and Courtney fled. Mukendi testified that at the
    time of the assault, Aaron was wearing a white shirt. Mukendi stated that he
    was familiar with Aaron prior to the incident.

[7]

Zaroski, the security guard, testified that he saw Courtney in the
    parking lot. Aaron and Courtney briefly conferred and then approached Turcotte with
    2-3 other males. Aaron shoved Turcotte and Courtney punched him. Turcottes hands
    were raised in a non-threatening manner. There were a couple more punches and Turcotte
    fell to the ground and appeared to be unconscious. The assailants fled the
    scene. Zaroski testified that at the time of the assault Aaron was wearing a
    white shirt. Zaroski deposed that he was vaguely familiar with Aaron prior to
    the incident. He testified that after the incident he heard someone implicate
    Aaron in the assault, looked Aaron up on Facebook and confirmed that he was on
    the bus as well as one of the assailants.

[8]

Ribble, the bus driver, saw Turcotte get attacked within moments of leaving
    the bus. Ribble was unable to identify any of the attackers. He was unable to
    identify either Aaron or Courtney as among the assailants. He testified that
    Aaron was wearing a black shirt.

[9]

Turcotte had been unable to recall any details about the attack up to
    the time of the trial. However, he testified that in the lead-up to the trial,
    he touched his head while having a shower, and recalled the incident. His trial
    testimony was the first time he revealed he had recovered any memory of the
    assault. He testified that a group of individuals, including Aaron and
    Courtney, assaulted him on the night in question.

[10]

Courtney
    testified that he approached the bus and asked who had a problem with his
    family. He swore that Turcotte grabbed him by the shirt. Courtney then
    administered what he described as two punches of measured force in
    self-defence. Turcotte, still standing, released him and moved away. According
    to Courtney, at that point, a group of unidentified males attacked Turcotte.
    Neither he nor Aaron were involved in the attack.

[11]

A
    video was taken of the altercation by an unknown individual. It is 39 seconds
    in length. It shows Turcotte being assaulted by three or four individuals who
    are difficult to make out. Two are wearing black shirts and one is wearing a
    long-sleeved white shirt. There is also an individual in the video wearing a
    short-sleeved white shirt who was not involved in the assault. The assaults
    lasts 10 seconds. Courtney testified that Aaron is the individual in the
    short-sleeved white shirt  the one not involved in the assault.

B.

Issues

[12]

Aaron
    raises the following issues:

1.

Did the trial judge err in her jury instruction on eyewitness
    identification?

2.

Did the trial judge err in her
    instructions on aiding and abetting?

3.

Did the trial judge err by deterring
    questions from the jury?

[13]

Courtney
    adopts Aarons position on issue 1 and raises the following additional issues:

4.

Did the trial judge err by failing to define bodily harm?

5.

Did the trial judge reverse the burden of proof on self-defence?

C.

Analysis

(1)

Identification evidence

[14]

I
    agree with the submission that on the facts of this case, a caution regarding
    eyewitness identification evidence was required. While both Aaron and Courtney
    admitted to being at the parking lot at the time of the assault, resolution of
    the central issue of whether or not they participated in the assault required
    consideration of the eyewitness evidence of Turcotte, Mukendi and Zaroski
    identifying them as perpetrators. The trial judge recognized the need for an
    instruction on the dangers of eyewitness identification evidence and instructed
    the jury accordingly. The issue is whether her instruction was adequate in the
    circumstance of this case.

[15]

For
    the following reasons, I conclude that it was not.

[16]

The
    trial judges eyewitness identification instruction could best be described as
    generic. She reviewed the evidence of each witness and gave a general caution
    relating to eyewitness identification. However, she failed to direct the jurys
    attention to the specific frailties posed by that evidence.

[17]

The
    rationale for cautioning juries on the dangers posed by eye-witness
    identification evidence was recently explained by this court in
R. v. M.B
.,
    2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 29:

Eyewitness identification is inherently unreliable. It is
    difficult to assess, is often deceptively reliable because it comes from
    credible and convincing witnesses, and is difficult to discredit on cross-examination
    for those same reasons. Studies have shown that triers of fact place undue
    reliance on such testimony when compared to other types of evidence. As a
    result, many wrongful convictions result from faulty, albeit convincing,
    eyewitness testimony, even in cases where multiple witnesses identify the same
    person.

[18]

As
    this court held in
R. v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at
    para. 79, and reiterated in many other cases, the trial judge must convey to
    the jury the judicial experience that eye-witness evidence poses serious dangers.
    The trial judge must identify for the jury any specific weaknesses in the
    eyewitness identification evidence and warn the jury not only of the general
    dangers of identification evidence, but also of the specific dangers arising in
    the circumstances of the particular case. In my view, the eyewitness identification
    evidence in this case presented features that called for a specific and
    focussed caution.

[19]

In
    his argument, Mr. Neubauer placed considerable emphasis on the lack of a
    specific caution regarding the in-dock identifications made by Turcotte,
    Zaroski and Mukendi. The Crown contends that this submission overstates the
    significance of the in-dock identifications in this case. It was conceded that
    Aaron was on the bus with those three witnesses and that both appellants were
    at the parking lot when Turcotte was assaulted. The issue was whether the
    appellants were perpetrators of the assault.

[20]

I
    would not give effect to the argument that the trial judge erred by failing to
    caution the jury about Mukendis eye-witness identification. It was conceded
    that Mukendi knew Courtney Lewis to avoid the bad character evidence that would
    emerge from having Mukendi explain how he knew Courtney. It was also conceded
    that Mukendi knew Aaron from around Barrie. Aarons position at trial was not
    that Mukendi was mistaken in identifying him as one of the attackers but that
    he was lying and Aarons trial counsel resisted the Crowns submission that
    Mukendi should be included in the eye-witness caution.

[21]

However,
    with respect to both Turcotte and Zaroski, when considered together with other
    weaknesses in their identification evidence, I agree that the lack of a more
    specific in-dock warning was problematic.

[22]

The
    proposition urged by the Crown that eye-witness observation of an accused
    actually committing the
actus reus
does not require a caution was
    rejected by this court in
R. v. Virgo
, 2016 ONCA 792, at para. 11:

In this case, the question is not whether the
    witness observed the appellant at the bar on the night in question. Rather, it
    is whether the witness observed the appellant thrusting a knife towards him.
    Both are questions of identification.

[23]

This
    court has frequently pointed to the dangers posed by in-dock identifications: See
R. v. Jack
, 2013 ONCA 80, at para. 17: "the charge must caution
    the jury that an in-dock or in-court identification is to be given negligible,
    if any, weight."

[24]

Turcottes
    identification was the product of his sudden claim of recovered memory for the
    first time at trial. The trial judge recited how Turcotte claimed to have recalled
    the assault over time, years after it occurred, but she failed to bring to the
    jurys attention the dangers posed by that evidence. While recovered memory
    evidence is admissible, in the circumstances of this case, the jury should have
    been cautioned regarding its reliability:
R. v. Kliman
(1996), 107
    C.C.C. (3d) 549 (B.C.C.A.);
R. v. Norman
(1993),

16 O.R. (3d)
    295 (C.A.).

[25]

In
    my view, the jury should have been specifically cautioned about the dangers
    posed by the combined effect of Turcottes recovered memory and in-dock
    identification of Aaron as a perpetrator of the assault. The Crown points out
    that the trial Crown did not place significant reliance on Turcottes evidence
    and told the jury they could convict without it. However, it remains that
    Turcottes evidence was before the jury. Given the combination of the dual
    dangers it posed, a specific caution was called for.

[26]

I
    agree with Aarons submission with respect to Zaroski that hearing someone has
    been involved in an incident and then looking for and finding their image could
    taint the subsequent identification of that person. The trial judge recited how
    Zaroski had been told that Aaron was one of the attackers and how he searched
    for and found Aarons photo on Facebook. She did not, however, accept trial
    counsels submission that a specific instruction pointing out the dangers of
    tainting was required. The combination of Zaroskis in-dock and prior arguably
    tainted identification posed significant risks and the trial judge should have
    instructed the jury accordingly.

(2)

Aiding and abetting

[27]

In
    her initial charge, the trial judge did not instruct the jury that Aaron could
    be found liable as an aider or abettor. The Crown objected and in her
    re-charge, the trial judge instructed the jury that they should consider
    whether Aaron aided or abetted Courtney. However, she simply left this
    possibility open without explaining what would amount to aiding and abetting in
    the circumstances of this case. Trial counsel for Courtney Lewis resisted the
    Crowns submission that a detailed review of the evidence supporting aiding and
    abetting should be given at this point in the trial. Aaron Lewiss trial
    counsel remained silent on the issue.

[28]

Despite
    trial counsels position, it is my view that the trial judge erred in law by
    failing to provide adequate guidance to the jury on the evidence that was
    capable of supporting Aarons liability as an aider or abettor. It is difficult
    to see how Aaron could be liable as an aider or abettor if he were not a member
    of the three or four person group that attacked Turcotte but the jury was not
    so instructed. There is a real risk that the jury could have thought that it
    was open to them to convict Aaron on the basis of this telephone call to
    Courtney and his presence at the parking lot at the time of the assault. The
    jury should have been told that a greater degree of participation in the assault
    was required.

(3)

Questions from the jury

[29]

In
    her instructions, the trial judge told the jury to not rush with asking the
    court questions when something first seems unclear. Discuss the matter among
    yourselves first and you may get an answer. The judge also instructed the jury
    that questions to me must never reveal the content of your deliberations. On
    the other hand, the trial judge told the jury that it is appropriate for you
    to ask questions of me if you need clarification of any parts of my instructions
    and that they should not attempt to figure out the law for yourselves and
    that [a]ny uncertainty in respect of uncertainty of [the law] is to be made
    known to me.

[30]

Jury
    questions play a significant role in the decision-making process:
R. v.
    Ellis
, 2013 ONCA 9, 113 O.R. (3d) 641, at para. 40. The impugned portions
    of the trial judges instructions in this case are not found in standard jury
    charges and
Watts Manual

of Criminal Jury Instructions
, 2nd ed. (Toronto: Thomson Reuters Canada Limited,
    2015)
advises, at p. 1269, that nothing should be said expressly
    or by necessary implication to discourage questions during deliberations.

[31]

In
    my view, the trial judges comments were ill-advised and could well have
    discouraged the jury from asking questions. While not fatal standing alone,
    comments of this nature do create a risk of discouraging proper questions from
    the jury and therefore should be avoided.

(4)

Bodily harm

[32]

The
    trial judge correctly instructed the jury that to prove aggravated assault, the
    Crown had to prove that the conduct which caused the wound was conduct which
    any reasonable person must inevitably have realized would subject Ryan Turcotte
    to the risk of bodily harm. The trial judge further explained that the Crown
    did not have to prove that the accused meant to wound Turcotte but only that a
    reasonable person would realize that the force applied put Turcotte at risk of
    suffering some kind of bodily harm, although not necessarily serious bodily
    harm or the precise kind of harm that Ryan Turcotte suffered here. The trial
    judge did not otherwise define or explain what amounted to bodily harm in
    relation to the mental element of objective foresight. Bodily harm is defined
    in s. 2 of the
Criminal Code,
R.S.C.
    1985, c. C-46,

as any hurt or injury to a person that
    interferes with the health or comfort of the person and that is more than
    merely transient or trifling in nature.

[33]

In
    his evidence, Courtney admitted to hitting Turcotte with what he described as
    two measured blows that likely caused some bruising on Turcottes face.
    Courtneys position is that those bruises were not sufficient to constitute
    bodily harm and that there is a risk that, in the absence of a clear
    instruction on the meaning of bodily harm, the jury could have convicted him on
    the basis of the two blows that he admitted delivering.

[34]

Trial
    counsel raised this objection and the trial judge refused to give any further
    guidance to the jury.

[35]

On
    appeal, the Crown argues that it was not relying on the two admitted blows as a
    basis for conviction. However, that position was only explained in the absence
    of the jury. The Crown also relies on the
R. v. W.D.
, [1991] 1 S.C.R. 742,
instruction to the
    effect that if the jury accepted Courtneys evidence, they should acquit him.

[36]

I
    would give effect to Courtneys submission on this point. The jury should have
    been instructed on the meaning of bodily harm. In my view, in the absence of a
    definition of that term, there is a real risk that the jury could have
    convicted on the basis of the two admitted blows without proper consideration
    of whether, on the basis of those blows, Courtney would have objective
    foresight of harm that was more than merely transient or trifling in nature.
    The general
W.D.
instruction does not provide an adequate answer to
    this specific deficiency in the charge.

(5)

Self-defence

[37]

The
    trial judge gave a detailed and, for the most part, proper instruction in
    relation to Courtneys defence of self-defence under both ss. 34(1) and 37.
    With the exception of two passages, she correctly instructed the jury that the
    burden of proof rested with the Crown and that Courtney needed only to raise a
    reasonable doubt for the jury to acquit. However, in two passages, the trial
    judge reversed the burden of proof in relation to s. 37, stating:

If you are satisfied beyond a reasonable doubt that Courtney
    Lewis used the force to defend himself from an assault by Ryan Turcotte

and

If are not satisfied beyond a reasonable doubt that Courtney
    Lewis used force to defend himselfYour consideration of self-defence would be
    at an end.

[38]

No
    objection was taken to these passages by trial counsel. The Crown concedes that
    the trial judge erred, but argues that given the repeated instruction that the
    burden of proof remains on the Crown and the absence of any objection, the jury
    could not have been misled and that the curative proviso, s. 686 (1)(b)(iii),
    should apply.

[39]

If
    this error stood alone, we would agree with the Crown and apply the proviso.
    However, given our analysis of the other issues, the proviso has no
    application.

D.

DISPOSITION

[40]

For
    these reasons I would allow the appeals, set aside the convictions and order a
    new trial.

Released: April 11, 2018

Robert J. Sharpe
    J.A.

I agree S.E. Pepall
    J.A.

I agree Fairburn
    J.A.