COURT OF APPEAL FOR ONTARIO

CITATION: Collins v. Canada Post Corporation, 2022 ONCA 295

DATE: 20220413

DOCKET: C69883

Roberts, Miller and Zarnett JJ.A.

BETWEEN

R. Maxine Collins

Plaintiff (Appellant)

and

Canada Post Corporation and Norton Rose Fulbright
    Canada

Defendants (Respondents)

R. Maxine Collins, acting in person

Michael R. Kestenberg and David S. Lipkus, for the
    respondent, Norton Rose Fulbright Canada

Ted Brook, for the respondent, Canada Post Corporation

Heard: in writing

Determination pursuant to r. 2.1 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194 with respect to the appeal from
    the order of Justice Marc E. Smith of the Superior Court of Justice, dated
    September 9, 2021, with reasons at 2021 ONSC 5987.

REASONS FOR DECISION

[1]

The appellant brought an action against the respondents in the Superior
    Court of Justice seeking damages for conduct in, and concerning an action in,
    the Federal Court. The appellants Federal Court action is against the
    respondent Canada Post. The respondent Norton Rose acts as counsel for Canada
    Post in the Federal Court action.

[2]

Proceeding under r. 2.1.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, the motion judge found
    that the appellants Superior Court action as against each respondent was frivolous,
    vexatious, and otherwise an abuse of the courts processes. He dismissed her Superior
    Court action. The appellant has appealed that dismissal.

The Parties Positions

[3]

The respondents each made a request to this court that the appeal be
    dismissed under r. 2.1.01, on the basis that the appeal appears, on its face,
    to be frivolous, vexatious, and/or an abuse of process.

[4]

After the respondents requests were received, the registrar asked the
    parties to make written submissions.

[5]

On March 9 and 11, 2022, both of the respondents, by counsel, filed
    written submissions in support of their requests. The respondents essentially
    submit that the appellants Superior Court action, complaining about events in
    a Federal Court action, was correctly determined by the motion judge to be
    frivolous, vexatious, and an abuse of process based on the doctrine of absolute
    privilege and the prohibition against collateral attack, and that the appellant
    has no viable ground of appeal from that determination.

[6]

The appellant filed a letter dated March 14, 2022, acknowledging receipt
    of the respondents written submissions in support of their r. 2.1 requests. In
    her letter, she asserts that each respondent should be considered self-represented
    due to defects in their respective appointments of the lawyers who filed the
    submissions. She also refers to certain case law relating to r. 2.1.01, and highlights
    the propositions that: (1) the rule is a streamlined procedure for proceedings
    that are on their face frivolous, vexatious, or otherwise an abuse of process; (2)
    the rule is not intended to supplant the established procedure for a motion to
    quash an appeal for want of jurisdiction or merit; and (3) a court must
    consider whether a motion to quash may be the more appropriate procedural
    vehicle to address a respondents merit or jurisdiction complaints. After asserting
    that the registrar had not called for submissions in the manner or sequence
    contemplated by r. 2.1, the appellants letter declines to take a position on
    [the respondents submissions] as the Court has the requisite knowledge and
    experience to determine on the face of any Rule 2.1 Request whether or not it
    is an attempt to avoid a proper motion.

Analysis

[7]

We see no merit to the appellants concern about the respondents
    representation by counsel, nor about the manner and sequence in which written
    submissions were requested. The appellant had the opportunity to consider and
    respond to the respondents submissions. We agree with the appellant that in
    considering the respondents requests in light of the decision below and the
    points she intends to raise on her appeal as explained and amplified in her
    factum, we must consider, among other things, whether a motion to quash would
    be the more appropriate procedural vehicle.

[8]

One of the appellants grounds of appeal is that the motion judge should
    have recused himself. After the respondents made requests that the Superior
    Court action be dismissed under r. 2.1.01, the motion judge directed that the
    appellant be given notice that he was considering making that order, gave her
    the opportunity to file submissions and, in the interim, stayed the action. The
    appellant made submissions, which included a request that the motion judge
    recuse himself from ruling on the r. 2.1.01 requests because he had stayed her
    action pending receipt of her submissions.

[9]

The appellants ground of appeal that the motion judge was disqualified
    from dealing with whether the action should be finally dismissed because he
    granted an interim stay of her action is without substance. The motion judge
    made it clear that he was staying the action pending receipt and consideration
    of any submissions the appellant made on whether a r. 2.1 dismissal was appropriate.
    This did not constitute a prejudgment of the issues in a manner that would
    foreclose his further involvement.

[10]

The
    motion judge found that the claims against Norton Rose in the Superior Court action
    relate entirely to their participation as counsel in the Federal Court proceedings
    and include allegations that Norton Rose commissioned a misleading affidavit
    and omitted to advise the Federal Court of material facts. He held that the
    claims against Norton Rose were barred by the doctrine of absolute privilege, which
    provides that no action can be brought against (among others) counsel for
    statements made in the ordinary course of a judicial proceeding:
Salasel v.
    Cuthbertson
, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35.

[11]

As
    concerned the claims against Canada Post in the action, the motion judge
    interpreted them to include the same accusations as were made against Norton
    Rose, which were not actionable on the basis of absolute privilege, and complaints
    about decisions and rulings made in the Federal Court proceeding and other
    proceedings, which were barred by the doctrine against collateral attack
    articulated by the Supreme Court in
Wilson v. The Queen
, [1983] 2 S.C.R.
    594, at p. 599. Although some of the claims were alleged to be for defamation
    or conspiracy to defame, they were not tenable because all the statements alleged
    to be defamatory were made by Canada Posts counsel in the Federal Court
    proceedings.

[12]

There
    is no arguable merit to the grounds of appeal that assert that the motion judge
    was wrong to come to these conclusions and to employ r. 2.1.01 in these
    circumstances. The appellant herself describes her
Superior
    Court
action as alleging the respondents abused the process of the
Federal Court
by improperly filing a motion record in
    the Federal Court proceedings and making statements in those proceedings that she
    considers defamatory. The motion judge made no arguable error in applying the
    doctrines of absolute privilege and collateral attack to conclude that such
    claims were not actionable in the Superior Court and that her action was
    therefore frivolous, vexatious, or an abuse of process.

[13]

The
    appeal appears on its face to be frivolous, vexatious, or otherwise an abuse of
    the process of the court within the meaning of r. 2.1.01. This is a case where
    resort to the streamlined process in that rule is appropriate, rather than
    requiring a motion to quash.

Conclusion

[14]

The
    appeal is therefore dismissed.

L.B. Roberts J.A.

B.W. Miller J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Taylor
    v. Mayes, 2022 ONCA 297

DATE:  20220413

DOCKET: C69434

MacPherson, Paciocco and George JJ.A.

BETWEEN

George Taylor

Plaintiff

and

Sean Mayes and Diana Story

Defendants (Respondents)

and

Her Majesty the Queen, in Right of the Province
    of Ontario, Represented by the Ministry of Transportation of Ontario

Third Party

Robert Moss and Anna Dylewski, for the proposed third party
    (appellant), Cruickshank Construction Limited

R. Steven Baldwin, for the respondents

Casey Dorey, for George Taylor
[1]

Andrew Choi, for Her Majesty the Queen, in Right of
    Ontario, Represented by the Ministry of Transportation of Ontario
[2]

Heard: April 6, 2022

On appeal from the order
    of Justice Kristin Muszynski of the Superior Court of Justice, dated March 24,
    2021, with reasons at 2021 ONSC 2239.

REASONS FOR DECISION

[1]

Sean Mayes vehicle rear-ended George Taylors vehicle on Highway 401 in
    February 2013. Taylor commenced a lawsuit against the defendants.

[2]

The defendants, in turn, filed a Statement of Defence in which they
    blamed the accident on the condition of snow and slush on Highway 401 owned by
    Her Majesty the Queen, in Right of the Province of Ontario, as Represented by
    the Ministry of Transportation of Ontario (MTO). The defendants issued a
    third-party claim against MTO on November 10, 2016.

[3]

MTO refused to attend examinations for discovery or deliver productions
    after initially agreeing to do so. On October 1, 2019, the defendants obtained
    an order from Justice Ryan Bell of the Superior Court of Justice compelling MTO
    to attend discoveries and deliver productions.

[4]

During the examination for discovery of MTO on November 19, 2019, MTO
    identified Cruickshank Construction Limited (Cruickshank) as the contractor responsible
    for the relevant winter maintenance of the section of Highway 401 where the
    accident occurred.

[5]

The defendants brought a motion to add Cruickshank as a party.
    Cruickshank and MTO opposed the motion on the basis that the proposed claim
    against Cruickshank was statute barred by virtue of the
Limitations Act
    2002
, S.O. 2002, c. 24, Sch. B.

[6]

The motion judge dismissed the motion. She applied the two-stage test,
    essentially mirroring the wording of sections 5(1)(a) and 5(1)(b) of the
Limitations
    Act
, enunciated by this court in
Morrison v. Barzo
, 2018 ONCA
    979, at paras. 31-32:

The evidentiary burden on a plaintiff seeking to add a
    defendant to an action after the apparent expiry of a limitation period is two-fold.
    First, the plaintiff must overcome the presumption in s. 5(2) that he or she
    knew of the matters referred to in s. 5(1)(a) on the day the act or omission on
    which the claim is based took place, by leading evidence as to the date the
    claim was actually discovered (which evidence can be tested and contradicted by
    the proposed defendant). The presumption is displaced by the courts finding as
    to when the plaintiff subjectively knew he had a claim against the defendants.
    To overcome the presumption, the plaintiff needs to prove only that the actual
    discovery of the claim was not on the date the events giving rise to the claim
    took place. It is therefore wrong to say that a plaintiff has an onus to show
    due diligence to rebut the presumption under s. 5(2).

Second, the plaintiff must offer a reasonable explanation on
    proper evidence as to why the claim could not have been discovered through the
    exercise of reasonable diligence. The evidentiary threshold here is low, and
    the plaintiffs explanation should be given a generous reading, and
    considered in the context of the claim. [Citation omitted.]

[7]

Against the backdrop of this test, the motion judge carefully reviewed
    the factual background involving all the parties and reached this two-part
    conclusion:

I find that the defendants third party claim against
    Cruickshank is not statute barred by virtue of the
Limitations Act
.
    Consequently, Cruickshank is not at liberty to plead a limitation defence to
    the third party claim.

[8]

Cruickshank appeals from both components of this conclusion.

(1)

The statute barred issue

[9]

Cruickshank concedes that the standard of review on this issue is
    palpable and overriding error. As expressed in its factum:

The Learned Judges finding of fact that the Defendants had a reasonable
    explanation as to why they could not have discovered the Appellants in the two
    years after service of the Statement of Claim is entitled to deference. This
    finding of fact
was not reasonably supported by the evidence and was a
    palpable an overriding error
. [Emphasis in original.]

[10]

Cruickshanks
    principal submission is that the motion judge erred by not concluding that the
    defendants ought to have known of the potential claim against Cruickshank once
    it was served with the Statement of Claim. After that happened, says Cruickshank,
    the defendants offered no evidence or explanation to articulate why it took no
    steps in the relevant (for limitation purposes) two-year period.

[11]

We
    do not accept this submission. The motion judge pointed out that MTOs defence
    to third party claim makes no mention of an independent contractor whatsoever.
    Moreover, MTO completely refused to participate in the proceedings for a very
    long period of time (for reasons not connected to the legal issues in this
    appeal). This led the motion judge to conclude:

By the time [MTO] delivered its defence to third party claim,
    on January 6, 2017, I find that it was reasonable for the defendants to assume
    that [MTO] was responsible for the winter maintenance of this section of
    Highway 401 at the material time.  The failure of [MTO] to plead any material
    facts regarding the involvement of an independent contractor should not be to
    the detriment of the defendants.

If [MTO] had made timely documentary disclosure in accordance
    with its obligations, the Defendants would have had an opportunity to inspect
    the patrol records and identify that an independent contractor was involved in
    maintaining this section of Highway 401 at the material time.  The failure of [MTO]
    to make timely and appropriate documentary disclosure and [MTOs] initial
    refusal to produce a representative for an examination for discovery should not
    be to the detriment of the defendants.

[12]

In
    our view, this is an entirely fair analysis and conclusion. In any event, it is
    far removed from the labels unreasonable and palpable and overriding error.
    Accordingly, we uphold the motion judges decision to add Cruickshank as a
    third party in the action.

(2)

The second kick at the can issue

[13]

If
    unsuccessful on the first issue (which we have found to be the case),
    Cruickshank submits that it should have been added to the action as a third
    party but with leave to plead a limitations defence. Accordingly, the motion
    judge erred by saying: Consequently, Cruickshank is not at liberty to plead a
    limitation defence to the third party claim.

[14]

We
    do not agree with this submission. The motion was brought under Rule 26.01 of
    the
Rules of Civil Procedure
, RRO 1990, Reg 194, which provides:

On motion at any stage of an action the court shall
    grant leave to amend a pleading
on such
    terms as are just
, unless prejudice would result that could not
    be compensated for by costs or an adjournment. [Emphasis added.]

[15]

In
    an appropriate case, a motion judge can make a final determination on a
    limitation issue: see
Azzeh (Litigation Guardian of) v. Legendre
, 2017
    ONCA 385, at para. 38. In our view, it was just for the motion judge to do so.
    The parties provided a comprehensive record and made full submissions on the
    limitation issue. The litigation is now on the cusp of being seven years old.
    The motion judges legal analysis in support of her decision to add Cruickshank
    as a third party is sound. Taking these points together, what this seven-year-old
    litigation does not need is a second round in the ring on the limitation issue.

[16]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $10,000 inclusive of disbursements and HST.

J.C. MacPherson J.A.

David M. Paciocco
    J.A.

J. George J.A.

[1]
George Taylor was not named as a respondent in this appeal. Counsel for Mr.
    Taylor appeared at the appeal hearing, but made no submissions.

[2]
Her Majesty the Queen, in Right of the Province of Ontario, Represented by the
    Ministry of Transportation of Ontario, was not named as a respondent in this
    appeal. Counsel for Her Majesty the Queen appeared at the appeal hearing, but
    made no submissions.


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. Bempong, 2022 ONCA 298

DATE: 20220413

DOCKET: C65430

Tulloch, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pius Bempong

Appellant

Mark Halfyard, for the appellant

Andrew Cappell, for the respondent

Heard: February 22, 2022 by video conference

On appeal from the convictions entered on February 12,
    2018 by Justice Michael F. Brown of the Superior Court of Justice, sitting with
    a jury.

Huscroft J.A.:

OVERVIEW

[1]

The appellant was convicted of two counts of sexual interference following
    trial by judge and jury. He was acquitted of one count of sexual assault and
    one count of being party to sexual assault. The appellant does not challenge
    his sexual interference conviction for sexual activity that occurred in the
    stairwell of the parking garage. This appeal concerns only the sexual conduct
    alleged to have occurred in the appellants car, and raises a single question:
    Are the jurys verdicts finding the appellant not guilty of sexual assault but
    guilty of sexual interference inconsistent, and therefore unreasonable?

[2]

If the court concludes that the verdicts are unreasonable and allows the
    appeal, the appellant seeks a conditional sentence for the sexual interference conviction
    that he does not contest.

[3]

I conclude that although the verdicts appear to be inconsistent, they can
    be reconciled in accordance with the framework set out recently by the Supreme
    Court in
R. v. R.V.
, 2021 SCC 10, 455 D.L.R. (4th) 253.

[4]

I would dismiss the appeal for the reasons that follow.

BACKGROUND

[5]

The complainant, who was 15 years of age at the time of the offences,
    and the appellant were previously known to each other. The complainant
    contacted the appellant via social media to wish him a happy birthday. The
    complainant told him that she had an iPod she wanted to sell and testified that
    the appellant offered to buy it. She arranged to meet the appellant at Humber
    College to complete the sale and took public transit to the meeting.

[6]

The appellant arrived in his car with two other men, neither of whom the
    complainant knew. One was the co-accused named Bobby Joe, and the other was
    Buck. The complainant got into the rear passenger seat of the appellants car.
    Bobby Joe was in the front passenger seat and Buck was beside her in the back
    seat. The appellant then drove to the underground parking garage of his
    residence.

[7]

The complainant testified that on arrival at the garage the appellant left
    her alone in the car, first with Bobby Joe then with Buck. She described non-consensual
    sexual activity that occurred during the appellants absence, but these
    allegations are not relevant to the determination of this appeal.

[8]

After Bobby Joe and Buck left the car, the appellant returned and joined
    the complainant in the backseat. He took out his penis and asked for oral sex.
    The complainant testified that she initially refused, but then performed oral
    sex on the appellant for approximately ten minutes because she felt she had no
    choice if she wanted to be able to go home.

[9]

The complainant testified that the appellant then drove her to the other
    side of the garage and led her to a stairwell. He told her to pull down her
    pants and bend over. She said she did not want to. The appellant asked again in
    an angry tone. He then pulled down her pants and penetrated her vagina with his
    penis. After a short time he pulled his penis out, forced it into her mouth,
    and ejaculated.

[10]

The
    appellant testified that he met with the complainant because he thought she was
    going to give him the iPod as a birthday gift. He said he was surprised that
    she wanted money for it; they argued, and he did not buy the iPod from her. The
    appellant said that he refused to give the complainant a ride home. He denied
    having any sexual contact with the complainant in the parking garage.

[11]

The
    appellant was charged with five counts:

Count 1  Sexual Assault (oral sex in car);

Count 2  Sexual Interference (oral sex in car);

Count 3  Sexual Assault (vaginal sex in stairwell);

Count 4  Sexual Interference (vaginal sex in stairwell);
    and

Count 5  Party to a Sexual
    Assault with Another Person (being a party to a sexual assault by the
    co-accused, Bobby Joe)

[12]

The
    parties agreed that consent was not in issue in the case. The issue was whether
    the incidents alleged to have occurred took place.

[13]

The
    jury found the appellant not guilty on counts 1 and 5 but guilty on all other
    counts. Count 3, a charge of sexual assault relating to the stairwell, was
    stayed pursuant to the principles in
R. v. Kienapple
, [1975] 1 S.C.R.
    729
.

ISSUES ON APPEAL

[14]

The
    appellant does not challenge his conviction on count 4 (the stairwell sexual interference).
    He argues that the verdicts on counts 1 and 2 are inconsistent, and therefore
    unreasonable, because the facts of the two counts arise from the same sexual
    touching alleged to have taken place in the car. Given that the only issue at
    trial was whether the Crown had proven whether the sexual contact described by
    the complainant occurred, there was no legitimate basis for finding him guilty of
    sexual interference while acquitting on sexual assault, an outcome that he
    characterizes as an unjust compromise verdict.

[15]

The
    appellant submits, further, that the Crown cannot address the legal error on
    the sexual assault count because it did not cross-appeal from his acquittal.

DISCUSSION

The absence of a cross appeal is
    irrelevant

[16]

The
    appellant argues that the Crown cannot address legal error leading to apparently
    inconsistent verdicts unless it appeals the acquittal. The appellant notes that
    the Crown was vocal in objecting during the case, even going so far as to raise
    a concern about inconsistent verdicts concerning count 5 and appearing to suggest
    a similar concern with counts 1 and 2 during sentencing submissions. Yet, the
    Crown chose not to appeal his sexual assault acquittal.

[17]

In
R. v. Plein
, 2018 ONCA 748, 365 C.C.C. (3d) 437, this court held that the
    Crown need not appeal an acquittal in order to resist an appeal of an
    apparently inconsistent conviction, but it did so in the context of a
    judge-alone trial rather than a jury trial. Justice Paciocco stated that the
    Crown would be well advised to cross-appeal if it wants to call an acquittal
    into question, and a majority of this court endorsed his observation in
R.
    v. R.V.
, 2019 ONCA 664, 147 O.R. (3d) 657, at para. 144. The majority went
    on, however, to state that a Crown appeal is not necessary in all cases in
    order for an appellate court to conduct an inconsistent verdict analysis: at
    para. 145.

[18]

This
    courts decision in
R. v. R.V.

was overturned by the Supreme
    Court. Writing for the majority, Justice Moldaver specifically left open the
    question whether a Crown appeal was necessary, at paras 46-48:

The parties disagree about what happens when the Crown has not
    cross‑appealed but nonetheless asserts that a legal error reconciles
    apparently inconsistent verdicts.

Here, as indicated, the Crown cross‑appealed R.V.s

acquittal on the sexual assault charge.
    Accordingly, the issue of whether the Crown must cross‑appeal where it
    seeks to reconcile apparently inconsistent verdicts on the basis of erroneous
    jury instructions is not before us. Nor indeed has that issue ever been
    squarely before this Court.

Having regard to the bedrock principle of our adversarial
    system that where an accused makes an argument, the Crown is entitled to rebut
    it, there is a viable argument that the Crown need not cross‑appeal to
    rebut an inconsistent verdict allegation raised by an accused. That said, I
    recognize that there are tenable arguments to the contrary, relating to the
    integrity of the legal process and the legitimacy of verdicts. In the end, I
    consider it prudent to leave the issue outstanding until it comes squarely
    before us.

[19]

Thus,
    the question remains open, and counsel did not argue otherwise.

[20]

In
    my view, permitting the Crown to respond to an inconsistent verdict argument
    without having appealed from acquittal does not undermine the integrity of the
    legal process or the legitimacy of verdicts. That is so because, as this court
    noted in
Plein
, by appealing
on the basis that
    the verdicts are inconsistent the appellant necessarily puts the reasons for
    that inconsistency in issue.
The integrity of the legal
    process and the legitimacy of the appellants conviction would be undermined if
    the Crown were
precluded
    from responding

to the appellants appeal because
    it chose not to appeal his acquittal.

[21]

If
    the court concludes that the appellants acquittal is the product of legal
    error, it must take that error into account in deciding whether to either grant
    the relief the appellant requests or dismiss the appeal pursuant to its power in
    s. 686(1)(b)(ii) of the
Criminal Code
, R.S.C. 1985, c. C-46. It
    would undermine the integrity of the legal process if a legally proper
    conviction were overturned because of a legally problematic acquittal on
    another count.

[22]

Important
    policy considerations also militate against a requirement that the Crown appeal
    from an acquittal in order to respond to an appeal from conviction.

[23]

The
    decision whether to appeal from an acquittal is a matter of prosecutorial
    prerogative  a discretionary decision that the Crown does not have to justify
    to the court. Assuming that the Crown is entitled to appeal from an acquittal
    pursuant to s. 676(1)(a), the decision whether to do so is for the Crown to
    make. The Crown may decide not to appeal for any number of reasons.

[24]

For
    example, the Crown may consider that it is not possible to run a new trial in
    the event of a successful appeal. Or it may conclude that it is not in the
    public interest to put a complainant, family, or witnesses through a new trial even
    assuming a new trial were possible. Alternatively, the Crown may consider that
    it is not worthwhile or efficient to appeal an acquittal because a successful re-trial
    would have little or no impact on sentence, whether because of the application
    of the
Kienapple
principle or the likelihood that a concurrent
    sentence would be imposed.

[25]

As
    Justice Moldaver noted in
R.V.
, it is fundamental to the fairness and
    the efficacy of the adversarial system that the Crown is permitted to make
    submissions to rebut an appellants argument. The Crown should not be required
    to bring an appeal it would otherwise choose not to bring in order to do so.

[26]

Finally,
    although
Plein
and
R. v. Horner
, 2018 ONCA 971, 370 C.C.C.
    (3d) 383 arise in the context of judge-alone trials, there is no question that
    the Crown is entitled to defend apparently inconsistent verdicts resulting from
    jury trials as well as judge-alone trials, as it did in
R.V.

Of
    course, it is more difficult to assess claims of inconsistency in the absence
    of the reasons that accompany a judge-alone trial, but that simply goes to the Crowns
    burden in reconciling the verdicts.

The
R.V.
framework for reconciling apparent
    inconsistency

[27]

Justice
    Moldaver set out the following approach in
R.V.
at paras. 33-34:

Where the Crown attempts to rebut an apparent inconsistency on
    the basis of a legal error, the burden shifts from the accused to the Crown.
    That burden is heavy. The Crown must satisfy the court to a high degree of
    certainty that there was a legal error in the jury instructions and that the
    error:

(1)

had a
    material bearing on the acquittal;

(2)

was
    immaterial to the conviction; and

(3)

reconciles the inconsistency by showing that the jury did not
    find the accused both guilty and not guilty of the same conduct.

If the court can find that these elements are satisfied with a
    high degree of certainty, the verdicts are not actually inconsistent. Instead,
    the legal error caused the jury to convict the accused either on different
    evidence or a different element than it believed was necessary for the charge
    on which it acquitted the accused. Any apparent inconsistency in the verdicts
    is thus reconciled, as the jury did not find the accused both guilty and not
    guilty of the same conduct. It follows that the jury did not act unreasonably
    in rendering their verdicts.

[28]

In
    short, the Crown bears the burden of establishing legal error in the instructions
     error that was both material to the acquittal and immaterial to the
    conviction. The burden is a heavy one, but the Crown succeeds in reconciling
    apparently inconsistent verdicts if it establishes that the jury did not find
    the appellant both guilty and not guilty of the same conduct.

[29]

Justice
    Moldaver emphasized, at para. 35, that the court is not to engage in improper
    speculation about the jurys decision:

The appellate court must be able to retrace the reasoning of
    the jury with a sufficiently high degree of certainty to exclude all other
    reasonable explanations for how the jury rendered its verdicts. If it can, any
    concern about speculation falls away.

The verdicts are not inconsistent

[30]

I
    conclude that the Crown meets the heavy burden established by the
R.V.
framework.

[31]

In
    this case, as in
R.V.
, the appellant was convicted of sexual
    interference but acquitted of sexual assault based on the same evidence. And in
    this case, as in
R.V.
, the Crown argued that the apparently
    inconsistent verdicts could be explained by erroneous instructions given by the
    trial judge concerning the law of sexual assault. In
R.V.
, Justice
    Moldaver concluded that the trial judge left the jury with the mistaken
    impression that the element of force required for sexual assault was
    different than the element of touching required for sexual interference. As
    he explained at para. 52:

The word force is commonly understood to mean physical
    strength, violence, compulsion, or constraint exerted upon or against a person.
    However, as a legal term of art, the element of force has been interpreted to
    include
any form of touching
.
    Put simply,
although the words touch or touching and
    force are distinct, in some circumstances, including those that apply here,
    they mean the same thing in law.
[Emphasis added; citations omitted.]

[32]

Thus,
    Justice Moldaver concluded that it was incumbent on the trial judge to instruct
    the jury that the force required for sexual assault was the same as the
    touching required for sexual interference. The failure to so instruct the jury
    constituted non-direction amounting to misdirection.

[33]

The
    same failure occurred in this case.

[34]

The
    trial judge did not have the benefit of
R.V.
He instructed the jury
    for purposes of the sexual assault counts that the Crown had to prove that the
    appellant intentionally applied force to the complainant and that the force
    took place in circumstances of a sexual nature. In defining force, the trial
    judge told the jury:

The application of force may be direct, for example, by the
    accused person using a part of his body, such as a hand, finger, foot, or penis
    or indirect, for example, by the accused person using an object. The force
    applied may be violent, or even gentle. Force includes any physical contact
    with another person, even a gentle touch. To be an assault, however, the
    accused person must apply the force intentionally. An accidental touching is
    not an intentional application of force.

[35]

The
    trial judge instructed the jury that on the sexual interference counts, the
    Crown was required to prove that the complainant was under 16 years of age at
    the time; that the appellant touched her; and that the touching was for a
    sexual purpose. He then defined touching for the jury as follows:

Touching involves intentional physical contact with any part of
    [the complainants] body. The contact may be direct, for example, touching with
    a hand or other part of the body, or indirect, for example, touching with an
    object. Force is not required but an accidental touching is not enough.

[36]

These
    instructions failed to achieve what Justice Moldaver said in
R.V.
was
    required: they failed to make clear that the force required for sexual assault
    was the same as the touching required for sexual interference. Instead, the instructions
    caused confusion by suggesting that force and touching were different concepts.

[37]

The
    jurys confusion is evident in questions it asked of the judge:

[W]e would like some clarification with regards to the
    definition of sexual assault, specifically, with regards to the intentional
    application of force

Can words and/or circumstance, such as location and duress be
    considered this sort of force? For example, can we consider a command to
    perform a sexual act,
force
? [Emphasis in original.]

[38]

The
    trial judge answered the question No and repeated what he had said earlier in
    his charge about the meaning of force.

[39]

A
    second question from the jury, this one concerning the linkage between several
    counts on the decision tree, further demonstrated the jurys confusion of the
    concepts of touching and force. The jury asked:

Why, in the decision tree, does count five [alleging the
    appellant to be a party to a sexual assault committed by the co-accused] depend
    on count six [alleging a sexual assault by the co-accused], but not on seven [alleging
    sexual interference by the co-accused].

[40]

Crown
    counsel told the trial judge that the jury needs to be told that the
    application of force in a sexual assault is the same thing as the touching in
    the sexual interference. Crown counsel reminded the trial judge of her submission
    that it would be inconsistent for them to find that theres a sexual
    interference, but for them not to find that theres a sexual assault. She specifically
    requested that the jury be told that the application of force in counts 1,1,
    [sic] 3 and 6 is the same as the touching in count 2, 4 and 7. The trial judge
    declined to do so and answered the jurys question by clarifying which counts
    referred to which alleged offences and the parties involved in them.

[41]

I
    agree with the Crowns submission that the trial judges instructions left the
    jury with the impression that sexual assault required force beyond mere
    touching, but sexual interference did not. This explains why the jury acquitted
    the appellant of sexual assault while finding him guilty of sexual interference
    on the same set of facts: the jury was not satisfied that the appellant applied
    force to the complainant in the car but was satisfied that he had engaged in
    sexual touching. And as the Crown points out, this explanation appears to have
    been acknowledged by the trial judge. In the context of his sentencing reasons,
    he stated that he did not regard the jurys verdicts on counts 1 and 2 to be inconsistent
    because the instructions he gave for sexual assault and sexual interference
    were different.

[42]

The
    failure to direct the jury that the force required for sexual assault was the
    same as the touching required for sexual interference constitutes non-direction
    amounting to misdirection, as in
R.V.
In all the circumstances, it
    cannot be said that the jury found the appellant both guilty and not guilty of
    the same conduct. The impact of the error was limited to the acquittal on the
    sexual assault count  an error that inures to the appellants benefit. The
    apparently inconsistent verdicts are, therefore, explained to the high degree
    of certainty
R.V.
requires.

CONCLUSION

[43]

I
    would dismiss the appeal.

Released: April 13, 2022 M.T.

Grant Huscroft J.A.

I agree. M. Tulloch
    J.A.

I agree. B.W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Hornepayne
    First Nation v. Ontario First Nations (2008) Limited Partnership, 2022 ONCA 299

DATE: 20220412

DOCKET: M52995 (C70022)

MacPherson, Paciocco and George JJ.A.

BETWEEN

Hornepayne First Nation

Applicant

(Appellant/Responding Party)

and

Ontario First Nations (2008) Limited Partnership

Respondent

(Respondent/Moving Party)

David Outerbridge, for the moving party

Chief Ron B. Kocsis, acting in person for the responding
    party

Heard and released orally: April 8, 2022

REASONS FOR DECISION

[1]

Pursuant to section 49 of the
Arbitration Act, 1991
, S.O. 1991, c. 17,
an appeal from the
    judgment of Fitzpatrick J. of the Superior Court of Justice requires leave. By
    virtue of rule 61.03.1(3) of the
Rules of Civil Procedure
, R.R.O.
    Reg. 194, leave must be sought within 15 days of the decision to be appealed.
    The appellant has not complied with these provisions. The appeal is quashed.

[2]

The moving party is entitled to its costs of the motion fixed at $7,500
    inclusive of disbursements and HST.

J.C. MacPherson J.A.

David M. Paciocco
    J.A.

J. George J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Faichney (Re), 2022 ONCA 300

DATE: 20220414

DOCKET: C69694

Fairburn A.C.J.O., Gillese
    and Paciocco JJ.A.

IN THE MATTER OF:  James
    Faichney

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Dena Bonnet, for the respondent, Attorney General of
    Ontario

Michele Warner, for the respondent, Person in Charge of the
    Centre for Addiction and Mental Health

Heard: February 11, 2022 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated June 15, 2021, with reasons dated July 7, 2021.

Paciocco J.A.:

OVERVIEW

[1]

James Faichney is a 52-year-old Indigenous man. On September 16, 1999,
    while transient and homeless, he attended a church looking for food. There, he
    assaulted an 84-year-old night supervisor, injuring him. It was a serious
    attack and led to a charge of assault causing bodily harm contrary to the
Criminal
    Code of Canada
, R.S.C. 1985, c. C-46. On November 9, 1999, he was found not
    criminally responsible on account of mental disorder (NCR). He has been under
    the jurisdiction of the Ontario Review Board (ORB) since that time.

[2]

In the decade following the NCR verdict, Mr. Faichney was detained at a series
    of forensic psychiatric institutions before being moved to the Centre for
    Addiction and Mental Health (CAMH) in March 2011. Since that time, CAMH has
    been Mr. Faichneys care provider. Although Mr. Faichney was subject to
    detention orders until 2019, CAMH has been supervising Mr. Faichney in the
    community since March 2015. In 2019, Mr. Faichney was granted a conditional
    discharge with conditions including minimum weekly reporting and residence at a
    supervised boarding house.

[3]

During the June 9, 2021 annual review hearing, CAMH and the Attorney
    General of Ontario (AGO) sought a continuation of the existing order on the
    basis that Mr. Faichney continued to present a serious threat to public safety
    but did not require a detention order. Mr. Faichney sought an absolute
    discharge, arguing that he no longer posed a significant threat to the safety of
    the public.

[4]

On June 15, 2021, the ORB ordered a continuation of the conditional discharge
    that had been in place. The ORB released its Reasons for Disposition on July 7,
    2021.

[5]

This is an appeal by Mr. Faichney of that June 15, 2021 disposition
    order. He argues that the ORB erred by failing to consider a 2011 report filed on
    his behalf in accordance with
R. v.

Gladue
, [1999] 1 S.C.R.
    688, and that the ORB failed to refer to the
Gladue
principles, which
    are summarized at para. 93 of the
Gladue
decision. He also argues that
    the ORBs determination that he posed a significant threat to the safety of the
    public is unreasonable.

[6]

I would dismiss Mr. Faichneys appeal. As I will explain below, I do not
    accept that the ORB failed to consider the 2011
Gladue
report, nor do
    I accept that the ORB failed to respect relevant
Gladue
factors. I also
    conclude that there was ample evidence justifying the ORBs determination that
    Mr. Faichney posed a significant threat to the safety of the public.

BACKGROUND FACTS

[7]

Mr. Faichney is currently 52 years old. He is Anishinaabe with Shawnee
    and Pottawatomi heritage. As the result of an adoption placement, Mr. Faichney
    was raised in a non-Indigenous home. He is a tragic casualty of the Sixties
    Scoop, which saw many Indigenous children being separated from their families
    and denied their heritage.

[8]

At the age of 17, Mr. Faichney left his adoptive home. He ultimately
    reconnected with his Indigenous family, but sadly, his hardships continued. In June
    1996, Mr. Faichney began to receive psychiatric care after displaying psychosis,
    paranoia and suicidal thoughts. He has struggled with major mental illness since
    that time. His current diagnoses are schizophrenia, clinically significant
    trauma history, substance use disorder (in full remission), and personality
    disorder not otherwise specified.

[9]

When not under control, Mr. Faichneys mental illness can cause him to
    become paranoid and to have grandiose delusions and command hallucinations. He
    was experiencing such symptoms when he committed the 1999 assault that
    initially brought him under ORB jurisdiction. On March 28, 2006, while still
    under the jurisdiction of the ORB, Mr. Faichney was again found to be NCR in
    connection with another serious assault that he committed in 2005, this time on
    a co-resident at a mental health facility. Again, this 2005 assault occurred
    when Mr. Faichney was manifesting paranoia and grandiose delusions. In 2007,
    while under the delusion that staff members were framing him for murder, Mr.
    Faichney committed yet another assault, this time on a male staff member,
    punching and kicking him to the point that he required hospital treatment. To
    his considerable credit, although since 2007 Mr. Faichney has frequently reported
    being threatened or offended while under CAMHs care, and has been in
    situations of conflict, he has not engaged in violence since the 2007 assault,
    a period now approaching fifteen years.

[10]

There is no indication in the record that attention was paid to Mr.
    Faichneys Indigeneity in the early years after he fell under the ORBs
    jurisdiction. However, by 2011, hospital records show that Mr. Faichney began
    to demonstrate interest in receiving culturally appropriate care and there is
    periodic reference in those records to his attendance at Indigenous community counselling,
    faith healing sessions and meetings with CAMH Aboriginal Services. Those
    hospital reports also record a number of instances in which Mr. Faichney reported
    experiencing racism within the institution from co-patients and his treatment
    team.

[11]

By the time Mr. Faichney was living in the community, Indigenous
    agencies were playing a significant part in his life, providing him with support
    services relating to both his housing and his health. Most significantly, Anishnawbe
    Health Toronto (AHT) was assisting him and continues to assist him. A letter
    from an AHT social worker, placed into evidence at the June 9, 2021 annual
    review hearing, confirms that Mr. Faichney has been receiving weekly, if not
    biweekly support from the AHT social worker for the last three years, and has
    access to traditional healing services and psychiatric support.

[12]

By February 2020, after Mr. Faichney had experienced a long period of
    stability in the community, the CAMH clinical team began to explore a treatment
    plan that would provide for his gradual progression to civil psychiatric care
    in the community, with psychiatric follow-up through AHT. As a result, Mr.
    Faichneys reporting hours at CAMH were reduced and in May 2020 he was
    permitted to take more control over the administration of his medication at his
    residence. The Reasons for Disposition of the ORB relating to the July 8, 2020
    conditional discharge disposition affirmed the objective of withdrawing some of
    Mr. Faichneys current levels of support and giving priority to eventually
    moving his care to AHT while he is under ORB jurisdiction.

[13]

During the June 9, 2021 annual review hearing that led to the order that
    is the subject of this appeal, Mr. Faichney argued that he no longer represents
    a significant threat to the safety of the public. He maintained that AHT is
    better able to attend to his mental health needs than CAMH, given the
    culturally appropriate care provided by AHT, CAMHs acknowledged legacy as a colonial
    institution [operating as] part of a system tainted with racism and oppression,
    and the racism he has personally experienced within CAMH. Simply put, it was Mr.
    Faichneys position before the ORB that the time has arrived to remove CAMHs
    support so that his care could be moved to the AHT.

[14]

The AGO, with the support of Mr. Faichneys CAMH treatment team, took
    the position that this change was premature. Supported by the opinion of Dr. Meng,
    Mr. Faichneys treating physician at CAMH, the AGO argued that Mr. Faichney
    continued to pose a significant threat to the safety of the public that could
    not be ameliorated by anything less than a continuation of the conditional
    discharge disposition on the terms then in place.

[15]

During the hearing, the parties did not join issue on the suitability of
    those terms, but only on whether Mr. Faichney continued to pose a danger to the
    public.

[16]

I will address the material evidence relied upon by each of the parties
    below when addressing Mr. Faichneys grounds of appeal, but there is one point
    that warrants immediate mention. In correspondence between Dr. Khan, an AHT
    psychiatrist, and Mr. Faichneys Transitional Care Manager at CAMH in January
    2021, Dr. Khan said:

We are happy to follow [Mr. Faichney] here regularly once his
    review board is complete. I dont want the client to get confused about who is
    providing psychiatric care for him at this time. Im happy to check in with him
    once every 3-4 months until he is fully discharged to us. I last saw him in
    Late Oct, so maybe in late Feb we can check in again.

[17]

As indicated, on June 15, 2021, the ORB issued a disposition order imposing
    a conditional discharge on the same terms as the July 8, 2020 order. In the
    Reasons for Disposition relating to the June 15, 2021 disposition order, the
    ORB listed the documentary evidence before it, including the 2011
Gladue
Report,
    but the ORB did not otherwise reference the
Gladue
Report in its reasons,
    nor did it advert specifically to
Gladue
principles. However, as I
    will explain, the ORB did describe efforts that CAMH had taken to assist Mr.
    Faichney in receiving culturally appropriate care.

THE ISSUES

[18]

Mr. Faichney appeals the June 15, 2021 ORB disposition. He raises several
    objections to the ORBs decision, but his grounds of appeal fairly resolve into
    two, which can be expressed as follows:

A.

Did the ORB err by failing to consider and refer to the 2011
Gladue
report and the
Gladue
principles when concluding that Mr. Faichney
    remains a significant threat to the safety of the public within the meaning of
    s. 672.54?

B.

Was the significant threat finding unreasonable?

[19]

As indicated, I would not give effect to either of these grounds of
    appeal.

ANALYSIS

A.

Did the orb err by failing to consider and refer to the 2011
gladue
report and the
gladue
principles when concluding that Mr. Faichney
    remains a significant threat to the safety of the public within the meaning of
    s. 672.54?

[20]

The appellant submits that the Board
    erred in law when it determined that he was a significant threat to the safety
    of the public without referring to the
Gladue
Report and principles. He contends that the Board did
    not address his special circumstances arising from his Indigeneity and that
    individualized assessment is required by s. 672.54.

[21]

The respondent AGO submits that
Gladue
factors are not pertinent to the threshold
    question of significant threat, the only live issue during the disposition
    hearing. The AGO relies on
Re Sim

(2005), 78 O.R. (3d) 183
for this
    proposition.

[22]

If the AGOs submission is correct, there
    is no need to closely consider the ORB decision in resolving this ground of
    appeal, so it is convenient to address the AGOs submission at the outset. I do
    not agree that
Gladue
principles
    are not pertinent to the threshold question of significant threat. In
Sim
, Sharpe J.A., writing on behalf of this court, affirmed
    the importance of the
Gladue
principles
    to ORB dispositions. He explained how the
Gladue
principles are to be integrated with the analysis set
    out in
Winko v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625 relating to whether someone
    poses a significant threat to the safety of the public and, if so, what the
    least onerous and least restrictive disposition is, now described under the
    legislation as the necessary and appropriate disposition.

[23]

Specifically, the Supreme Court of Canada
    affirmed in
Winko
that a review
    board must take into account the four statutory criteria set out in s. 672.54
    of the
Criminal Code
: (1) the
    need to protect the public from dangerous persons; (2) the mental condition of
    the accused; (3) the reintegration of the accused into society; and (4) the
    other needs of the accused: at para. 55.
In
Sim
, at paras. 18
    and 19, Sharpe J.A. described the impact that the
Gladue
principles would
    have on each of these four criteria:

When assessing the dangerousness [statutory factor one] or
    mental condition [statutory factor two] of the accused, it would no doubt be
    helpful for the ORB to have as full a record as possible. A full record would
    contain information pertaining to the accused person's background, including
    aboriginality.
However, so far as I am aware, aboriginal status would
    ordinarily have little direct bearing upon the dangerousness [statutory factor one]
    or the mental condition [statutory factor two] of the accused. An individual
    will not be more or less dangerous, nor will an individual be more or less
    mentally ill, because of his or her aboriginal status.

On the other hand, proper consideration of appropriate
    placement of the accused, reintegration into society [statutory factor three]
    and the other needs of the accused [statutory factor four] will call, where the
    circumstances warrant, for the ORB to advert to the unique circumstances and
    background of aboriginal NCR accused. Accordingly, the
Gladue
principles
    should be applied to compliment the analysis that s. 672.54 requires. [Emphasis
    added.]

[24]

It is the emphasized part of para. 18 on
    which the AGO rests its submissions. However, when the emphasized words are
    read in context, it is apparent that Sharpe J.A. was not suggesting that
Gladue
principles are not relevant to the question
    of significant threat. Rather, he was making clear that, when determining
    whether the NCR accused is a significant threat and, if so, what disposition
    should be imposed, the mere fact of Indigeneity will not make the person more
    or less dangerous or more or less mentally ill. Of course, that is as true
    today as it was when
Sim
was
    written. To hold otherwise would open the door to dangerous, offensive and
    manifestly incorrect stereotypes. Therefore, he was not saying that Indigeneity
    can never be relevant to the significant threat analysis. Rather,
Sim
provides that:

1)

Gladue
principles should be applied to compliment the analysis
    that s. 672.54 requires: at para. 19;

2)

That analysis requires the ORB to look at four factors when determining
    the question of significant risk and least onerous and least restrictive
    disposition; and

3)

While
Gladue
factors may have less impact on statutory factors
    one and two (dangerousness and mental condition), and more commonly inform
    statutory factors three and four (reintegration into society and the other
    needs of the accused), it would no doubt be helpful for the ORB to have as
    full a record as possible when dealing with these issues: at para. 18.

[25]

Accordingly, I do not accept the AGOs
    contention that
Sim
held that
Gladue
principles do not apply to the threshold question of
    whether a person remains a significant threat.

[26]

Nor do I accept Mr. Faichneys submission that the ORB erred in law
when it determined that the appellant was a
    significant threat to the safety of the public without referring to the
Gladue
Report and principles
.

[27]

As a preliminary matter, it must be borne in mind that the
ORBs reasons must be read contextually. That context
    includes the evidence before the ORB that I refer to above confirming that CAMH
    has done much in the last several years to support the appellants Indigeneity.
    His forensic care team has encouraged and facilitated AHTs provision of
    services to him and CAMH has proposed a shared model of care while the
    appellant transitions to AHT. As I will explain, the Reasons for Disposition
    reveal that the ORB was fully alive to this, and to the barriers that remained
    in fully transitioning Mr. Faichney to culturally appropriate care.

[28]

Moreover, as the AGO correctly pointed out, the sufficiency of the
    direct attention the ORB gave to Mr. Faichneys Indigeneity and to the
Gladue
principles cannot be assessed without close attention to what was at issue
    during the disposition hearing. Quite simply, given the live issues at the
    disposition hearing, extensive explicit reference to the
Gladue
principles
    was not required.

[29]

Specifically, no issue was taken before the ORB relating to the
    conditions that would be included in the disposition, nor were there live issues
    relating to how best to achieve rehabilitation or restorative justice through a
    disposition. There was therefore no need for the ORB to address the impact that
Gladue
principles would have on Mr. Faichneys rehabilitation or
    prospects for restorative justice, since those questions were not in issue. Nor
    was the suggestion made that systemic discrimination or Mr. Faichneys
    background experiences as an Indigenous person would have had any relevance in
    identifying the nature and intensity of his mental condition. The only live issue
    at the hearing was whether Mr. Faichney continued to pose a significant threat
    to public safety. The relevance his Indigeneity had before the ORB at the June
    9, 2021 annual review was therefore confined to its impact on whether he posed
    a danger to the public.

[30]

In that regard Mr. Faichney argued, in effect, that his relationship
    with AHT, with its culturally appropriate treatment, was an important
    consideration in deciding whether he would pose a threat to the safety of the
    public. His position was that his access to this culturally appropriate
    treatment at AHT reduced the risk that he would fall away from treatment in the
    community, including medication, which is required to stabilize his condition
    and prevent the kind of deterioration that could create a danger to public
    safety.

[31]

Although the ORB did not reference the 2011
Gladue
report or
    expressly identify
Gladue
principles when addressing this point, it is
    clear that the ORB fully appreciated and addressed this submission, finding, as
    a fact, that AHT is not able to provide the level of the psychiatric care and
    case management support currently required by Mr. Faichney. The psychiatrist on
    staff is only available a few hours per week and provides services to a number
    of clients. This finding is a complete answer to the submission that Mr.
    Faichney could maintain his mental health in the community by taking advantage
    of the culturally appropriate care provided by AHT.

[32]

This dispositive finding is amply supported by the evidence before the
    ORB. Initially, Mr. Faichney consulted with Dr. Khan, a part-time psychiatrist
    who was assisting AHT at the time. In her January 7, 2021 correspondence, Dr.
    Khan explained a five-week delay in responding to Mr. Faichneys CAMH
    Transitional Care Managers request for information on the basis that she [hadnt]
    been in the office since late November. She then offered to hold a meeting
    with Mr. Faichney in late February. Mr. Faichney did not manage to meet with an
    AHT psychiatrist until March 24, 2021, when he met with Dr. Hunter, who had
    replaced Dr. Khan. Dr. Hunter also worked at AHT part-time and attended the
    clinic only once weekly, with a large roster of patients waiting to be seen.

[33]

As illustrated below, there was also evidence before the ORB that Mr. Faichney
    was prone to discontinuing his medication, leading to deterioration in his
    condition, and that there were issues with his insight into his mental health
    and his need for community support.

[34]

In my view, the Reasons for Disposition relating to the disposition of
    June 15, 2021 amply explain why the
Gladue
arguments advanced on Mr.
    Faichneys behalf did not provide meaningful support for an absolute discharge.

[35]

Thus, I reject this ground of appeal.

B.

Was the significant threat finding unreasonable?

[36]

Although it was not abandoned, this ground of appeal was not pressed in
    oral argument. There was good reason for the tactical decision not to press this
    ground of appeal before us. In my view, it is patent that when a somewhat
    probing examination is undertaken, the reasoning process and the outcome arrived
    at by the ORB reflects a coherent and rational chain of analysis that is fully
    justified in relation to the constellation of law and facts that is relevant to
    its decision.

[37]

During the reporting period, Mr. Faichney had less stability than in the
    prior year, when his treatment team developed the plan to reduce his level of
    support and to transition him to community care through AHT. Significantly, CAMH
    attempted to move towards that plan, but that effort failed. In her testimony,
    Dr. Meng stated:

I think in this year in particular, there are two main
    challenges. One is that because he was discussing this idea of potentially
    living more independently, we did try to back off on the level of supervision
    of his medications earlier in the year and the destabilization that that
    conferred never really fully stabilized until hes since been subject to daily
    medication supervision by a clinical team. The other aspect is that over this
    last year his medical health has significantly worsened.

[38]

There was clear evidence before the ORB supporting these observations.
    After Mr. Faichney was given more control over his medication, the levels of
    Clozapine in his system diminished, at times to the point where the drug, which
    should have been observed, was undetectable. Those levels fluctuated, despite
    arrangements made by CAMH to enable him to obtain his injections at a local
    pharmacy. Dr. Meng concluded that the fluctuation in levels could only be explained
    by Mr. Faichneys decision not to take the medication.

[39]

There was also evidence that Mr. Faichney was not contacting his
    treatment providers when not taking his medication, he was unreliable with his
    self-reporting relating to his health, and his willingness to seek care was linked
    to the fact that he is under external oversight.

[40]

There was also clear evidence that when Mr. Faichneys Clozapine levels
    were low, the symptoms of his mental illness became aggravated. Supported by
    contemporaneous observations contained in the hospital reports, Dr. Meng
    testified that there have been times where he has presented as more paranoid,
    more vague and less coherent in his thought process and more guarded and more
    dismissive.

[41]

Dr. Meng expressed the view that, in these circumstances, [a]ny course
    towards more independent living would require a very gradual transition and a
    lot more support and assessments around that. Yet there was evidence that, during
    the reporting period, Mr. Faichney resisted referrals to community care,
    stating that he did not need higher levels of support, and that on four
    occasions he refused inpatient hospital admission to stabilize his mental
    condition.

[42]

Dr. Meng also expressed the opinion that Mr. Faichneys expectations
    about what he could accomplish in his own community are unrealistic. He told
    his treatment team that he did not want a further relationship with CAMH once
    discharged and that he exclusively wanted his care to be provided by a program
    from his culture.

[43]

Dr. Meng expressed the opinion that, although Mr. Faichney would likely
    continue to see the AHT team when he felt it necessary, he would continue to
    have difficulties with medical compliance and stress. She then offered the
    opinion:

That combination of factors is anticipated to lead to him having
    more of the kind of symptoms he has historically exhibited over and over again
    when hes been unwell, mainly becoming quite paranoid, quite somatically
    preoccupied, which then worsens his paranoia by worsening his medication
    compliance and experiencing both persecutory as well as referential delusions
    and hallucinations, which have led him to feel extremely persecuted, extremely
    unsafe and has on multiple occasions in the past, led him to behave in a
    violent manner.

[44]

In concluding based on this evidence that Mr. Faichney continues to
    represent a significant threat to the safety of the public, the ORB recognized
    that Mr. Faichney has not acted with serious aggression for many years but
    attributed his restraint to the effective treatment plan that has been in
    place. The ORB observed that these psychotic symptoms and the attending
    aggressive behaviour identified in the evidence are similar to the symptoms he
    displayed in the past, and to the index offences.

[45]

Citing some of the evidence just recounted, the ORB also accepted Dr. Mengs
    opinion that, absent the support of the treatment team, Mr. Faichney would
    likely fall away from treatment. On this basis, the ORB concluded that a
    conditional discharge was a necessary and appropriate disposition.

[46]

I would dismiss this ground of appeal.

CONCLUSION

[47]

I would therefore dismiss Mr. Faichneys appeal.

Released: April 14, 2022 J.M.F.

David M. Paciocco
    J.A.

I agree. Fairburn
    A.C.J.O.

I agree. E.E.
    Gillese J.A.