COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sangs, 2017 ONCA 683

DATE: 20170905

DOCKET: C62230

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Carl Sangs

Appellant

Frank Bernhardt, for the appellant

Ghazala Zaman, for the respondent

Heard and released orally: August 30, 2017

On appeal from the conviction entered and the sentence
    imposed on June 2, 2014 by Justice Sally E. Marin of the Ontario Court of
    Justice.

REASONS FOR DECISION

[1]

The appellant pled guilty to a single count of trafficking cocaine over
    a six-week period. The plea was accepted and a conviction recorded after a
    complete plea comprehension inquiry by a very experienced judge of the Ontario
    Court of Justice. The sentence imposed, four months imprisonment, in light of
    credit of nine months for pre-disposition custody, to be followed by a term of
    probation for three years, was the subject of a joint submission by counsel.

[2]

On his appeal from conviction and sentence, the appellant seeks to set
    aside his plea of guilty and resultant conviction on the ground that his plea
    was uninformed. The appellant says that he was never informed of the
    immigration consequences of his plea and conviction, that as a permanent
    resident, he would be rendered inadmissible, ordered removed from Canada and
    have no right of appeal from the removal order. In the alternative, he asks
    that his sentence be varied to avoid the immigration consequences of which he
    complains.

[3]

The appellant was originally charged with 83 counts of trafficking in
    crack cocaine, each a discrete transaction alleged to have occurred on a
    specified day. Extensive pre-trial discussions took place with counsel and the
    trial judge in her capacity as a case management judge. In the end, the
    appellant agreed to plead guilty to a single count of trafficking, amended to
    encompass the entire timeframe during which the individual acts of trafficking
    occurred.

[4]

In making submissions as to sentence in support of the joint proposal,
    defence counsel described the appellant as a Canadian citizen. During his
    allocution, the appellant did not take issue with his counsels description of
    his status as a Canadian citizen.

[5]

Nearly two years later, the Immigration and Refugee Board notified the
    appellant of his removal under s. 36(1)(a) of the
Immigration Refugee
    Protection Act
,
S.C. 2001, c. 27, (
IRPA

)
. This
    provision deems inadmissible to Canada permanent residents sentenced to a term
    of imprisonment of six months or more, or convicted of an indictable offence
    punishable by a maximum term of imprisonment of at least 10 years. Under ss.
    64(1) and (2) of
IRPA
, a permanent resident has no right of appeal
    from a removal order if found inadmissible on the ground of serious criminality,
    which includes an offence punished by a term of at least six months of
    imprisonment.

[6]

The appellant seeks leave to introduce as fresh evidence his affidavit
    and the cross-examination that accompanies it. In it, among other things, he
    says that:

i.

he never told his lawyer that he was a Canadian citizen;

ii.

he was not sure of his citizenship status at the time he entered his
    plea;

iii.

he did not know that his citizenship status was relevant at sentencing;
    and

iv.

he would not have pleaded guilty had he known the immigration
    consequences of his plea and sentence.

[7]

We are satisfied that it is in the interests of justice to receive the
    appellants affidavit and accompanying cross-examination as fresh evidence on
    the hearing of the appeal. It is relevant to and admissible on the issue raised
    to set aside the plea of guilty, that is to say, that the plea of guilty was
    uninformed because he was unaware of the collateral immigration consequences of
    its entry.

[8]

Having admitted the fresh evidence, we are satisfied that the
    appellants plea of guilty was uninformed. It follows, in our respectful view,
    that the plea of guilty cannot stand as one of the legal requirements for it to
    be valid is lacking. It follows from its invalidity that it cannot form the
    basis of the conviction entered in the trial court.

[9]

In the result, we admit the fresh evidence, set aside the plea of guilty
    and consequent conviction, and order a new trial on all counts of the
    information.

"David Watt
    J.A."

"Grant Huscroft
    J.A."

"G.T.
    Trotter J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simard, 2017 ONCA 690

DATE: 20170906

DOCKET: C58332

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Greg Simard

Appellant

Gordon D. Cudmore and Perrie Douglas, for the appellant

John Patton, for the respondent

Heard and released orally: August 30, 2017

On appeal from the conviction entered on October 18,
    2013, and the sentence imposed on December 17, 2013 by Justice Jeanine E. LeRoy
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to counts of attempted murder, unlawful
    confinement, uttering death threats and assaulting a police officer in the
    execution of her duty. Despite his plea of guilty, he advanced a mental
    disorder defence seeking a verdict of not criminally responsible on account of
    mental disorder.

[2]

The trial judge rejected the denial of criminal responsibility and
    sentenced the appellant to imprisonment for a term of 20 years less credit for
    predisposition custody.

[3]

The appellant seeks leave to appeal sentence. He contends that the
    sentence imposed is manifestly unfit and fails to assign sufficient weight to
    his mental illness as a mitigating factor on sentence.

[4]

The appellant was a 24-year-old caregiver at a facility which housed
    developmentally-challenged residents. The complainant in the counts of
    attempted murder and unlawful confinement resided at the facility during the
    week. He was severely autistic and non-verbal.

[5]

Late one evening after several conversations with a co-worker about the
    complainant, the appellant surreptitiously left the facility with the
    complainant. He took the complainant into a nearby woods, beat him severely,
    left him there naked from the waist down and returned to the facility. When a co-worker
    asked the whereabouts of the complainant, the appellant told her to shut up or
    he would kill you. As the appellant later explained it:

I tried to kill a retard because he was a drain on society, I
    took him into the bushes and beat the fuck out of him. I thought he was dead.

[6]

As a result of the beating, the complainant was hospitalized for six
    months. He suffered bleeding in his brain, permanent brain damage and suffers
    from leg and hand tremors. Several teeth were fractured. He cannot fully extend
    his right arm, he continues to require and will continue to require various
    forms of physio, occupational and movement therapy.

[7]

The appellant, who is now 29 years old, appears to have had a good
    upbringing. He completed a two-year college diploma program with some academic
    distinction and did well in his work placements. His parents remain supportive
    of him. He was a recreational drug user whose behaviour seemed to change
    significantly when he had consumed drugs.

[8]

Two psychiatrists testified on the NCR hearing. They differed on their
    diagnoses and on the issue of criminal responsibility. One identified the
    underlying disorder as likely schizophrenia. The other considered an
    adjustment disorder or drug-induced psychosis was more apt.

[9]

At trial, Crown counsel sought a sentence of imprisonment for life to
    implement the predominant sentencing objectives of deterrence and denunciation
    and to reflect the high moral blameworthiness of the appellant.

[10]

Defence counsel advocated a sentence in the range of six to ten years to
    achieve an appropriate balance between denunciation and deterrence, on the one
    hand, and rehabilitative prospects and reduced moral blameworthiness, on the
    other.

[11]

The trial judge gave lengthy reasons for sentence. She recognized the relevance
    and significance of the appellants mental condition to his moral blameworthiness
    for the principal offence  attempted murder  and thus to the length of
    sentence she would impose. She acknowledged the contribution of the appellants
    disorder to the commission of the offence. In substantial part, it was this
    condition, more accurately, its impact on moral blameworthiness, that caused
    the trial judge to reject the position of the Crown that she should impose a
    sentence of imprisonment for life.

[12]

It is also fair to say that the psychiatric evidence lacked precision
    and included a caution from one of the examining psychiatrists about the
    prospect or likelihood of malingering.

[13]

On a fair reading of the reasons for sentence as a whole, in light of
    the submissions made by counsel that focused on mental disorder and moral
    blameworthiness, we cannot to conclude that the trial judge gave inadequate
    weight to the appellants mental condition as a mitigating factor on sentence.

[14]

Neither do we regard the principal sentence of imprisonment for 20 years
    as manifestly unfit.

[15]

This offence was an egregious breach of trust. It involved a savage and
    brutal attack on a defenceless vulnerable complainant simply because the
    complainant was intellectually challenged. It was accompanied by the most
    morally culpable state of mind known to our criminal law  the intent to kill. It
    reflects a callous disregard for human life evidenced by the remarks made by
    the appellant upon apprehension. It rendered a severely compromised child from
    a minimally functional condition to a state of near-complete dependency,
    including the necessity of wearing diapers.

[16]

The appeal from conviction is dismissed as abandoned. Leave to appeal
    sentence is granted, but the appeal from sentence is dismissed.

[17]

At the request of the family, the ban on publication imposed at trial
    under s.486.5 is set aside.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stevens, 2017 ONCA 686

DATE: 20170906

DOCKET: C61603

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Amanda Hazel Stevens

Appellant

Lisa Gunn, for the appellant

Alexander Hrybinsky, for the respondent

Heard and released orally: August 28, 2017

On appeal from the conviction entered on February 26,
    2015 and the sentence imposed on January 12, 2016 by Justice Andrew J. Goodman
    of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, Amanda Stevens was convicted of counts of impaired operation of
    a motor vehicle causing death and dangerous operation of a motor vehicle
    causing death. She was sentenced to a term of imprisonment of six years.

[2]

Ms. Stevens appeals her convictions and seeks leave to appeal the
    sentence imposed by the trial judge.

The Background Facts

[3]

The convictions arise out of a motor vehicle accident that occurred one
    October evening several years ago on a straight flat stretch of county road
    that was dry and in good condition. Ms. Stevens was driving a pick-up truck
    that struck the rear of a farm tractor driven by the deceased. At impact, Ms.
    Stevens was driving at a speed of nearly 30 kilometres per hour in excess of
    the posted speed limit.

[4]

The evidence about the state of lighting on the tractor varied among
    witnesses, but what is clear is that some of its lighting system was on, and
    that the reflective tape on the rear of the tractor would reflect headlights of
    vehicles approaching from the rear.

[5]

A toxicologist testified that at the time of the accident, Ms. Stevens
    blood alcohol concentration was between 70 and 110 milligrams of alcohol per
    100 millilitres of blood. There was also evidence that, at a blood alcohol
    concentration of 50 milligrams per 100 millilitres of blood, impairment of the
    ability to operate a motor vehicle becomes significant, at least in a
    scientific sense.

The Grounds of Appeal

[6]

In this court, the appellant challenges the trial judges conclusions on
    the basis that:

i.

the factual findings made by the trial judge were insufficient to
    establish the appellants ability to operate a motor vehicle was impaired by
    alcohol; and

ii.

the factual findings made by the trial judge could not support a finding
    that the appellants operation of the motor vehicle constituted a marked
    departure from the standard expected of a reasonably prudent operator in
    equivalent circumstances.

Discussion

[7]

We are unable to give effect to either ground of appeal. In our view,
    the trial judges conclusions on both issues are rooted in an adequate
    evidentiary foundation. That another trial judge in equivalent circumstances
    might not have drawn the same inferences does not make the trial judges
    conclusions unreasonable or otherwise infirm. Nor do we consider them flawed by
    any misapprehension of the substance of the evidence given at trial or cumbered
    by palpable and overriding error. They are entitled to deference in this court.

[8]

In the result, the appeal from conviction is dismissed.

The Appeal from Sentence

[9]

The appellant also seeks leave to appeal the sentence of six years
    imposed by the trial judge. The sentence imposed, in our respectful view, is
    not outside the range of sentence appropriate for similar offenders who commit
    similar offences in similar circumstances. In our view, it reflects a proper
    application of the governing sentencing objectives and principles, as well as
    the relevant aggravating and mitigating factors.

[10]

While leave to appeal sentence is granted, the appeal from sentence is
    dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.B-J., 2017 ONCA 746

DATE: 20170926

DOCKET: C63596 & C63597

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

T.B-J.

Respondent

AND BETWEEN

Her Majesty the Queen

Appellant

and

N.A.M.

Respondent

Matthew Asma, for the appellant

David W. Russell, for the respondent, T.B-J.

Michael Ellison, for the respondent, N.A.M.

Jane Stewart and Mary Birdsell, for the intervener,
    Justice for Children and Youth

Heard and released orally: September 22, 2017

On appeal from the sentence imposed on March 13, 2017 by
    Justice Aston Hall of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The Crown appeals from the sentence imposed on two young persons on the
    ground that it was manifestly unfit. The Crown also asks this Court to set
    judicial criteria for the grant of a reprimand by a youth court judge. We
    decline to do so.

[2]

We disagree that the sentence was manifestly unfit. It was a legally
    available sentence and the sentencing judge considered all relevant factors
    including the seriousness of the offence and the circumstances of the
    offenders.

[3]

Both offenders had taken substantial rehabilitative measures on their
    own. There is no basis to interfere with the trial judges exercise of
    discretion in this case. There will be a publication ban in respect of any
    information which serves to identify either young person.

[4]

The appeal is dismissed.

G. Pardu J.A.

Grant Huscroft J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tadesse, 2017 ONCA 682

DATE: 20170905

DOCKET: C55272

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Yafet Tadesse

Appellant

Heather Pringle, for the appellant

Jennifer Epstein, for the respondent

Heard and released orally: August 30, 2017

On appeal from the conviction entered and the sentence
    imposed on December 9, 2010 by Justice Alphonse T. Lacavera of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from a conviction recorded after he pleaded guilty
    to a single count of carrying a concealed weapon contrary to s. 90(2) of the
Criminal
    Code
. He was represented by counsel at the time he entered his plea of
    guilty.

[2]

Carrying a concealed weapon is an offence upon which the Crown has the
    right to elect the mode of procedure. In this case, the Crown elected to
    proceed by indictment.

[3]

The indictable offence of carrying a concealed weapon is not an offence
    listed or otherwise described in s. 469 of the
Criminal Code
, thus is
    not an indictable offence that falls within the exclusive trial jurisdiction of
    the Superior Court of Justice sitting as the superior court of criminal
    jurisdiction. Nor, when prosecuted by indictment, is it an offence listed or
    otherwise described in s. 553 that falls within the absolute jurisdiction of a
    judge of the Ontario Court of Justice sitting as a provincial court judge.

[4]

As an accused charged with an indictable offence other than an offence
    listed or described in s. 469 or s. 553 of the
Criminal Code
,
the appellant was entitled to elect his
    mode of trial under s. 536(2) of the
Criminal Code
when he appeared in
    the Ontario Court of Justice to enter his plea of guilty.

[5]

It is common ground as between the parties that the appellant was never
    put to his election about the mode of trial. The jurisdiction of a judge of the
    Ontario Court of Justice to try the appellant or, as it happened here, to
    receive and act upon his plea of guilty, depended entirely upon his choice of
    that court as his mode of trial. Absent such an election, the judge had no
    jurisdiction to receive and to act upon the plea of guilty the appellant
    entered.

[6]

It is well settled that this procedural failure, the failure to comply
    with the election requirements in s. 536(2), goes to the jurisdiction of the
    trial court and, at least in the absence of waiver, is beyond the reach of the
    curative procedural proviso in s. 686(1)(b)(iv) of the
Criminal Code
:
    see
R. v. Vuong
, 2010 ONCA 798, at paras. 17-18. The parties share
    common ground that the record reveals no evidence of waiver, either express or
    implied.

[7]

In the result, the plea of guilty and conviction are set aside as having
    been entered before a court that lacked jurisdiction to determine the matter,
    and a new trial ordered should the Crown wish to pursue it.

"David Watt
    J.A."

"Grant
    Huscroft J.A."

"G.T. Trotter J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Verdon, 2017 ONCA 721

DATE: 20170918

DOCKET: C58234

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Verdon

Appellant

Eva Taché-Green, for the appellant

Michelle Campbell, for the respondent

Heard and released orally: September 14, 2017

On appeal from the conviction entered on May 4, 2012, and
    the sentence imposed on November 22, 2013, by Justice J. F. Réginald Lévesque of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of intimidation, criminal harassment and two
    counts of assault. He was declared a dangerous offender and sentenced to an
    indeterminate term. A different panel of this court dismissed the appeal from
    conviction in 2014:
R. v. Verdon
, 2014 ONCA 807. Accepting the
    validity of the dangerous offender designation, the appellant challenges the
    trial judges decision to impose an indeterminate sentence.

[2]

The appellant raises four grounds of appeal. Ms. Taché-Green argues that
    the trial judge: 1) misapprehended the evidence by reaching the conclusion that
    the appellant has consistently refused treatment; 2) misapprehended evidence
    relating to the phenomenon of burnout as it applies to aging offenders; 3) applied
    the wrong test in determining whether the appellant would be manageable in a
    community, subject to a long-term supervision order; and 4) placed an unfair burden
    on the defence to establish that resources necessary to manage his risk in the
    community were available immediately.

[3]

We would not give effect to any of these grounds of appeal.

[4]

First, the trial judge did not err in his analysis of the evidence dealing
    with the appellants past experiences with treatment interventions. The record
    supports the conclusion that, while the appellant has participated, albeit
    intermittently, in interventions in the past, they have been completely
    ineffective. Moreover, there are numerous instances when the appellant has been
    offered treatment, both while incarcerated and while in the community, which he
    has resisted. On the evidence that the trial judge accepted, and most
    especially the assessment of Dr. Booth, it was open to him to conclude that the
    appellant has little insight into his treatment needs, and has showed no real
    interest in addressing these issues. In the meantime, he is engaged in a course
    of behaviour characterized by unabated violence, some that have resulted in
    criminal convictions, and some that have not.

[5]

Second, the trial judge did not misapprehend the evidence related to burnout.
    Both Drs. Booth and McMaster provided opinions on the matter. Dr. McMasters
    evidence was general, even statistical in nature, whereas Dr. Booths opinion
    was more focused on the appellant as an individual. The trial judge accepted
    Dr. Booths evidence that the appellant showed no signs of calming as he aged.
    As he said in his report, In Mr. Verdons case, he does not appear to have calmed
    given his presentation in the interviews, institutional conduct, and most
    recent offences. Instead, he has been fortunate that his behaviour did not
    result in more significant harm to the victims. Moreover, the evidence
    demonstrated that the appellant has shown no reduction in his impulsivity, a
    durable feature of most of his offending. Looking ahead, Dr. Booth testified,
    And I dont, again, see evidence at this point, that his risk would decrease
    significantly enough such that he could be managed safely in the community. At
    this point, whether the appellant will burnout, or when, is completely
    speculative.

[6]

Third, we reject that Ms. Taché-Greens contention that the trial judge
    erred by requiring the appellant to demonstrate that his risk to society would
    be eliminated by a long-term supervision order, rather than being adequately
    controlled in the community. Ms. Taché-Green acknowledges that the trial judge
    articulated the correct test, however, she says it was applied incorrectly.

[7]

We disagree. The trial judge did not look for proof of risk elimination.
    Instead, he rejected Dr. McMasters evidence that the appellant could be
    controlled in the community. It was open to the trial judge to reject Dr.
    McMasters evidence that the appellant was more manageable in the community
    because his level of violence has been historically decreasing. The definition
    of a serious personal injury offence in s. 753(4.1) of the
Criminal
Code
    does not require that the predicate offences be of comparable severity to
    previous offences. The record fully supported the conclusion that the appellant
    posed a serious risk of committing further serious personal injury offences if
    not detained, and that a long-term supervision order would be inadequate to
    manage this risk.

[8]

Fourth, we disagree that the trial judge erred by requiring the
    appellant to demonstrate that resources were immediately available to manage
    his risk in the community. The trial judges focus on this very practical issue
    was necessitated by the position of defence counsel at trial (not Ms. Taché-Green)
    that, in view of 23 months of pre-sentence custody, the appellant should be
    released and placed on a long-term supervision order immediately. This position
    required the trial judge to address his mind to this issue.

[9]

In summary, the trial judges conclusions were soundly rooted in the
    evidence adduced at the sentencing hearing. He was entitled to accept the
    opinion of Dr. Booth. He gave sufficient reasons for rejecting Dr. McMasters
    opposing opinion.

[10]

We would not interfere.

John Laskin J.A.

Gary Trotter J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Way, 2017 ONCA 754

DATE: 20170927

DOCKET: C62578

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Brian Way

Respondent

Melissa Adams, for the appellant

Timothy Breen, for the respondent

Heard: September 20, 2017

On appeal from the sentence imposed on August 8, 2016 by
    Justice Julie A. Thorburn of the Superior Court of Justice, sitting without a
    jury, with reasons for judgment reported at 2015 ONSC 3080 and reasons for
    sentence reported at 2016 ONSC 5052.

REASONS FOR DECISION

[1]

The Crown appeals the $20,000 fine in lieu of forfeiture imposed by the
    trial judge. The respondent concedes that the trial judge erred. In our view,
    that is an appropriate concession. On appeal, the respondent argues only that
    the income taxes paid on the proceeds of crime should be deducted from the
    calculation of the fine in lieu of forfeiture and asks for time to pay.

[2]

The respondent was in the business of producing and selling child
    pornography. He funneled the revenue through a corporation over which he had
    sole control. The gross sales proceeds were $946,391.25. After some allowance
    for discounts given to purchasers, and a deduction for money already seized,
    the Crown and respondent agree that the sales of child pornography generated
    $797,809.47 in revenue.

[3]

The trial judge considered the following factors to determine the fine
    in lieu of forfeiture:

a)

The sales revenue from the child pornography films did not represent the
    benefit or advantage received by the respondent from his crime, or the amount
    he took under his actual control.

b)

The respondent lived a modest life, had no significant assets, and there
    was no evidence that the sales revenues were hidden or transferred to third
    parties.

c)

There was no evidence that he travelled, owned property, or transferred
    money beyond the reach of the courts.

d)

The only benefit the respondent received from the sale of the 57 child
    pornography films and accompanying photographs was his salary from the
    corporation.

[4]

The trial judge based the fine in lieu of forfeiture on the portion of
    the respondents salary attributable to the production of child pornography.
    Since 57 of the 800 films produced by the corporation contained child
    pornography, the trial judge imposed a fine in lieu of forfeiture of
    approximately 1/16
th
of the total salary the respondent drew from
    the corporation over a 52 month period, with some small adjustments to reflect
    the production of other child pornography images and proceeds of crime already
    recovered by the Crown.

[5]

The trial judge erred by calculating the fine in lieu of forfeiture in
    this manner.

[6]

The corporations gross sales proceeds of child pornography constituted
    a benefit or advantage that was indirectly derived from the commission of the
    offence. Moreover, s. 2 of the
Criminal Code
, R.S.C. 1985, c. C-46
    defines property to include property originally in the possession or under the
    control of any person. See also
R. v. Dwyer
, 2013 ONCA 34, 296 C.C.C.
    (3d) 193, at para. 24.

As such, the gross
    sales proceeds amounted to proceeds of crime under s. 462.3(1) of the
Criminal
    Code
.

[7]

The respondent had sole control over the $797,809.47. Where funds are no
    longer available, s. 462.37(3) of the
Criminal Code
provides that the
    court may order the offender to pay a fine equal to the value of the
    property. As noted in
R. v. Lavigne
, 2006 SCC 10, [2006] 1 S.C.R.
    392, at paras. 31 and 34,

where a sum of money is concerned, a reduction in the value of
    such property is most often associated with the use thereof, which is itself
    often associated with an absence of other income. If one of the objectives is
    to ensure that crime does not pay, use of the proceeds of crime must be a basis
    for ordering a fine instead of forfeiture of the property and cannot be a basis
    for mitigating the impact of the measure.

[]

The limits on the courts
    discretion can be deduced from the objective and context of s. 462.37(3)
Cr.
    C
. They are also incorporated into the words of the provision itself. The
    courts discretion is limited not only by circumstances in which the
    substitution may be made, in particular those listed in paras. (
a
) to
    (
e
), but, even more importantly, by the clear words of the provision
    itself. The amount of the fine is established by the
Criminal Code
:
    the court may, instead of ordering that property  to be forfeited , order
    the offender to pay a fine in an amount
equal to the
    value of that property
. The words are crystal clear.  Parliament has
    itself determined the amount of the fine.

[Emphasis in original.]

[8]

For the same reasons, it would be inappropriate to deduct the income tax
    paid on the income derived from the sale of child pornography from the proceeds
    of crime subject to forfeiture in this case. As Fish J. stated in his partial
    dissent in
R. v. Craig
, 2009 SCC 23, [2009] 1 S.C.R. 762, at para.
    122: Subjecting forfeiture to the lien of the revenue authorities would have
    allowed her [the appellant] to discharge the tax indebtedness arising from her
    criminal activities out of her interest in a property subject to forfeiture as
    a result of those very same crimes. As a matter of principle, Ms. Craig should
    not be permitted to do so.

[9]

Accordingly, leave to appeal the sentence is granted, the Crowns appeal
    is allowed, and the trial judges order for a fine in lieu of forfeiture in the
    sum of $20,000 is vacated. A fine in lieu of forfeiture in the sum of
    $797,809.47, an agreed amount, is substituted.

[10]

The respondent requests time to pay the fine in lieu of forfeiture.
    Having regard to the amount of the fine, the respondent will have eight years
    from the expiry of the global sentence of imprisonment imposed by the trial
    judge to pay it. In default of payment of the fine in lieu of forfeiture, the respondent
    is sentenced to four years incarceration pursuant to s. 462.37(4)(vi) of the
Criminal
    Code
, consecutive to the trial judges sentence of imprisonment.

G. Pardu
    J.A.

Grant
    Huscroft J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Riddell v. The Law Society of Upper Canada, 2017
    ONCA 734

DATE: 20170922

DOCKET: M48269 (M47242)

Brown J.A. (In Chambers)

BETWEEN

Matthew Riddell

Responding Party/Moving Party

and

The Law Society of Upper Canada

Responding Party/Respondent

Lisa Mallia, for the moving party,
    The Law Society Tribunal

Matthew Riddell, for the responding party, acting in
    person

Suzanne Jarvie, for the responding party, The Law Society
    of Upper Canada

Heard: September 20, 2017

ENDORSEMENT

[1]

The Law Society Hearing Panel and the Law Society Appeal Panel ordered
    costs against the applicant, Matthew Riddell, following his abandonment of an
    application for a paralegal licence. Mr. Riddell applied before the Divisional
    Court for judicial review of the Appeal Panels decision. The Divisional Court
    dismissed his application:
Riddell v. The Law Society of Upper Canada
,
    2016 ONSC 6631. Mr. Riddell has brought a motion for leave to appeal to this
    court.

[2]

In April 2017, the Law Society Tribunal (Tribunal) wrote the Deputy
    Registrar of this court advising that Mr. Riddell had not served his motion for
    leave to appeal on it. The Tribunal took the position that since it had
    exercised its right under s. 9(2) of the
Judicial Review Procedure Act
,
    R.S.O. 1990, c. J.1 to participate in the judicial review proceeding before the
    Divisional Court, it was entitled to participate as of right as a party in the
    appeal proceedings before this court. Mr. Riddell had taken the position that
    the
Rules of Civil Procedure
did not require him to serve his leave
    motion materials on the Tribunal. The Tribunal asked the Deputy Registrar how
    to proceed. In July 2017, the Deputy Registrar advised the Tribunal to bring a
    motion for directions.

[3]

The Tribunal filed its motion for directions on September 6, 2017, which
    came before me. I posed several questions to Tribunal counsel:

(i)      Which
    statutory provision or rule of civil procedure entitled the Tribunal to
    automatic party status on an appeal before this court?

(ii)      How
    was automatic party status for a tribunal conducting adversarial hearings, such
    as those conducted by the Tribunal, consistent with the decision of the Supreme
    Court of Canada in
Ontario (Energy Board) v. Ontario Power Generation Inc.
,
    2015 SCC 44, [2015] 3 S.C.R. 147?

(iii)     Did
    the
Law Society Act
, R.S.O. 1990, c. L.8 provide for automatic
    participation rights for the Tribunal on statutory appeals from the Appeal
    Panel? If it did not, what effect did that have on the Tribunals position that
    it enjoyed automatic party rights on an appeal of a Divisional Court judicial
    review decision to this court?

(iv)     As a
    practical matter, what assistance could the Tribunal provide on an appeal in
    this case given it did not file materials or make submissions before the
    Divisional Court?

[4]

Tribunal counsel asked for an adjournment to another day to respond to
    these questions.

[5]

I demurred.

[6]

Mr. Riddells leave motion was filed on December 1, 2016. It needs to be
    dealt with on its merits. At the same time, I am alive to the limits of a
    single Chambers judge deciding questions such as these on an incomplete record.

[7]

This is a motion for directions. Accordingly, I direct that Mr.
    Riddells motion for leave to appeal proceed without the participation of the
    Tribunal. Given the Tribunals lack of substantive participation before the
    Divisional Court and the lengthy discussion of the jurisdiction to award costs
    issue in the reasons of the Hearing Panel and the Appeal Panel, I strongly
    doubt the Tribunal can assist this court on the leave motion. No doubt the
    responding party, the Law Society of Upper Canada, will make vigorous
    submissions on the issue.

[8]

In the event leave to appeal is granted, these directions do not
    foreclose the Tribunal from seeking further directions from this court,
    including through a motion for leave to intervene.

[9]

The parties agree there shall be no costs of this motion.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ridel v. Goldberg, 2017 ONCA 739

DATE: 20170925

DOCKET: C63469

Sharpe, Rouleau and van Rensburg JJ.A.

BETWEEN

Jean-Marc Ridel, Nadine Suzanne Josephine Ridel
    and Marc H. Ridel

Plaintiffs (Appellants)

and

Robert Goldberg

Defendant (Respondent)

Philip Anisman, for the appellants

Niklas Holmberg, for the respondent

Heard: September 18, 2017

On appeal from the order of Justice Glenn A. Hainey of
    the Superior Court of Justice, dated February 28, 2017.

REASONS FOR DECISION

[1]

The sole issue on this appeal is whether the
    motion judge erred in ruling on a Rule 21.01(1)(a) motion that the action was
    barred by the two-year limitation period.

[2]

The facts before the motion judge were taken
    exclusively from the pleadings.

[3]

This action was commenced more than two years after the
    appellants obtained a trial judgment against e3m Investments Inc. on April 17,
    2013 for negligence, breach of contract and breach of fiduciary duty in
    relation to their investment accounts but within two years of the dismissal of
    e3ms appeal against that judgment.

[4]

In the action against e3m, the trial judge found that
    the respondent Robert Goldberg, the president, CEO and sole director of e3m,
    had abdicated his responsibility to supervise the employee who handled the
    appellants accounts.

[5]

After e3ms appeal was dismissed, e3m made an
    assignment in bankruptcy. The appellants then obtained an order pursuant to s.
    38 of the
Bankruptcy and Insolvency Act,
R.S.C., 1985, c. B-3,
    authorizing the assignment to them of the trustees cause of action for damages
    incurred by e3m as a result of the respondent Goldbergs breach of duties of
    care and supervision. They then commenced this action.

[6]

It is common ground that the appellants claim is governed by a
    two-year limitation period. P
ursuant to s. 12(1) of the
Limitations
    Act,
2002
, S.O. 2002,
    c. 24, Sched. B,
where, as in this case, a plaintiff
    claims
through a predecessor in right, title or interest
    the plaintiff shall be deemed to have knowledge of the matters referred to in
    s. 5(1)(a) on the earlier of the day the predecessor first knew or ought to
    have known of those matters and the day the person claiming first knew or
    ought to have known of them.

[7]

Section 5(1) provides as follows:

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).

[8]

The appellants concede that both they and their
    predecessor had knowledge of items (i) to (iii) more than two years before the
    date on which this action was commenced and argue that the case falls to be
    decided under s. 5(1)(a)(iv), namely, the date on which it was known that,
    having regard to the nature of the injury, loss or damage, a proceeding would
    be an appropriate means to seek to remedy it.

[9]

Before the motion judge, the focus of the
    appellants argument was the relevance of e3ms appeal to the calculation of
    the limitation period. They argued that until the appeal was decided, it would
    not have been appropriate for them to bring this action. Before this court, the
    appellants shifted ground.
They no longer focus on the fact that an
    appeal was outstanding but argue that it cannot be said that e3m could or
    should have considered an action against Goldberg  e3ms own directing mind
    until after e3ms bankruptcy. They rely on s. 5(1)(a)(iv) and argue
that, having regard to the nature of the injury, loss or damage, an
    action by e3m against Goldberg would not have been an appropriate means to
    seek to remedy it.
The appellants also submit that
    before the bankruptcy, it would have been impossible for them to assert the
    claim they now assert on e3ms behalf.

[10]

The respondent submits that the appellants knowledge of the elements
    defined in s. 5(1) is dispositive of this appeal, relying on
Indcondo
    Building Corporation v. Sloan
, 2010 ONCA 890, 103 O.R. (3d) 445. However,
    in
Indcondo
, the action commenced under s. 38 asserted the same claim
    the s. 38 claimant had previously pleaded. Moreover,
Indcondo
did not
    have to consider the significance of s. 5(1)(a)(iv).

[11]

In our view, it would not be appropriate for this court to rule on the
    issues raised by the parties on the limited record that is before us. As
    indicated, this was a Rule 21.01(1)(a) motion. We have only the pleadings.
    There is no evidence before the court concerning what has become the main focus
    of the appellants submission, namely, the relationship between e3m and
    Goldberg and the control he is alleged to have exercised over e3m in relation
    to the claim advanced by the appellants. Nor is the record adequate to permit
    us to properly consider the application of
Indcondo
in the specific
    context of the facts of this case.

[12]

In
Salewski v. Lalonde
, 2017 ONCA 515, this court observed, at
    para. 45, that as the discoverability issue is one of mixed fact and law, there
    may well be no circumstance in which a limitation issue under the Act can
    properly be determined under rule 21.01(1)(a) unless pleadings are closed and
    it is clear that the facts are undisputed. In our view, a more complete record
    is required to permit the court to determine the issues raised by the parties
    on this appeal.

[13]

Accordingly, without ruling in any way on those issues, we allow the
    appeal and set aside the order of the motion judge. This order does not purport
    to determine the limitation issue; rather it may be determined in the normal
    course, and on a proper factual basis, in these proceedings.

[14]

The
    appropriate order as to costs is that the costs of the motion below and the
    costs of this appeal (agreed to be $10,000) be left in the discretion of the
    trial judge.

Robert J. Sharpe
    J.A.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA
    744

DATE: 20170925

DOCKET: C63021

Doherty, LaForme and Miller JJ.A.

BETWEEN

SMTCL Canada Inc.

Plaintiff (Respondent)

and

Master Tech Inc.

Defendant (
Appellant
)

Fariborz Mirzaee Tavana, for the appellant

Carlin McGoogan, for the respondent

Jeff Van Bakel, for the intervener, Wajeb Assaf

Heard:  September 22, 2017

On appeal from the judgment of Justice Frederick Myers,
    of the Superior Court of Justice, dated November 8, 2016.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the motion judges reasons.  He explained how he
    arrived at his assessment of the loss suffered by the respondent (para. 5).  We
    see no error in that assessment.

[2]

The main issue raised on appeal relates to the alleged negligence and
    dishonesty of the appellants lawyer.

[3]

This court has recognized that claims of solicitors negligence raised
    in the context of an appeal from an order in the litigation in which the lawyer
    represented one of the parties can provide a basis for setting aside that order
    only in the rarest of cases:
W.
(
D.) v. White
(2004), 189
    O.A.C. 256, at para. 55.

[4]

The only possible basis for accepting the submission in this case would
    be collusion between the lawyer and the respondent.  There is nothing in the
    material before us offering an air of reality to that claim.

[5]

This is not the appropriate forum in which to raise the claim against
    the solicitor.  If those claims have any viability, they can be fully
    vindicated in a lawsuit brought against the lawyer.

[6]

We, of course, intend no comment on the merit, if any, of the
    allegations made against the lawyer.  It should be noted, however, that he
    strongly denies those allegations.

[7]

The appeal is dismissed.

[8]

Costs are awarded to the respondent on a partial indemnity basis.  Costs
    to the respondent in the amount of $13,000, all in.  We are told the
    appellant has posted $7,500 as security for costs in this court.  This amount should
    be returned to the respondents lawyer on trial as partial payment on the
    costs.

[9]

We are also satisfied that the intervener should have his costs on a
    partial indemnity basis.  We fix those costs at $6,000, all in.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Slongo v. Slongo, 2017 ONCA 687

DATE: 20170905

DOCKET: C60425

Simmons, LaForme and Pardu JJA.

BETWEEN

Pamela Louise Slongo

Applicant (Appellant)

and

Christopher Ronald Slongo

Respondent (Respondent)

Paul C. Buttigieg and Robert A. Fernandes, for the
    appellant

Herschel I. Fogelman and Erin L. Chaiton-Murray, for the
    respondent

Costs Endorsement

[1]

We allowed the wifes appeal in part from the trial judges
    decision on a change motion. We increased the additional spousal support
    awarded by the trial judge due to the husbands early retirement and lump sum
    pension payout and other changed circumstances. We dismissed the wifes appeal
    challenging the denial of ongoing child support. We awarded costs of the appeal
    to the wife in a reduced amount, given that success on appeal was divided. The
    parties have been unable to agree on the trial costs. This endorsement
    addresses those costs.

[2]

Both parties claim that they submitted an offer to settle before
    trial (and, in the wifes case, after trial) that is equal to or better than
    the result achieved on appeal in relation to spousal support. In our view, both
    claims are speculative.  The parties offers were structured differently than
    this courts order and differently than each other. Given the terms of this
    courts order and the terms of the offers, whether the amount payable for
    spousal support under any offer will equal or exceed the amount awarded on
    appeal depends on various factors. These include how long the parties live,
    whether and when the husband chooses to fully retire and discontinue consulting
    work, and how much the husband earns while continuing to do consulting work. In
    the face of these variables, neither party can demonstrate that they submitted
    an offer that is equal to or better than the result achieved on appeal.

[3]

Overall, the wife succeeded at trial in establishing a material
    change in circumstances and in her claim for increased spousal support.  At the
    same time, she was unsuccessful in her claim for ongoing child support. Given
    the relative financial significance of these issues, and the increased spousal
    support awarded to the wife on appeal, we set aside the trial judges award of
    trial costs to the husband. We substitute an award of trial costs to the wife
    on a partial indemnity scale fixed in the amount of $20,000 inclusive of
    disbursements and applicable taxes.

Janet Simmons J.A.

H.S. LaForme J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wall (Re), 2017 ONCA 713

DATE: 20170914

DOCKET: C63410

Watt, Huscroft and Trotter JJ.A.

IN THE MATTER OF:
    Abraham Wall

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant Abraham Wall

Janice Blackburn, for the respondent the Person in
    Charge of St. Josephs Health Care Hamilton

Rebecca Schwartz, for the respondent Attorney General of
    Ontario

Heard: August 31, 2017

On appeal from the disposition of the Ontario Review
    Board, dated February 10, 2017, with reasons dated February 23, 2017.

BY THE COURT:

[1]

Abraham Wall appeals from the February 10, 2017 disposition of the Ontario
    Review Board. A majority of the Board concluded that the appellant constitutes
    a significant threat to the safety of the public and ordered his continued
    detention at St. Josephs Health Care Hamilton with community living
    privileges.

[2]

The appellant argues that he is not a significant threat to the safety
    of the public and seeks an absolute discharge. The Crown and the Person in Charge
    of St. Josephs oppose the appellants release and seek to uphold the Boards
    disposition.

[3]

For the reasons that follow, we have concluded that the Boards
    conclusion that the appellant is a significant threat to the safety of the
    public is not reasonable. Mr. Wall is entitled to an absolute discharge.

Background

[4]

The appellant is a 37 year-old man diagnosed with bipolar disorder,
    attention deficit hyperactivity disorder, polysubstance abuse, and antisocial
    personality disorder. He is capable of consenting to treatment and complies
    with his medication. He has good insight into his mental disorder and his need
    for medication.

[5]

The appellant has an extensive criminal record that includes 44 convictions
    that were committed before the index offence. This includes numerous
    convictions in youth court. His adult record includes robbery, assault, assault
    with a weapon, and many property offences, in addition to several failures to
    comply.

[6]

The index offence occurred in 2011. The appellant threatened two police communications
    staff during 911 calls he made in the course of seeking treatment. The
    appellant told them he had a .50 calibre gun on their foreheads. He was
    arrested at St. Josephs, where he received treatment for his aggressive
    behaviour and then was released into police custody. In the course of
    investigating the 911 calls, the police found that the appellant had also made
    numerous calls to his ex-girlfriend, who was in hiding from him.

[7]

The appellant was found not criminally responsible on account of mental
    disorder (NCR). The Board issued a disposition ordering his detention in the
    general forensic unit at St. Josephs. The disposition included the possibility
    of community living in approved accommodation.

[8]

The appellant was discharged to the community and returned to the
    hospital on several occasions. He was discharged in February 2013, but was
    returned after absconding to Alberta. He was discharged in July 2015 and
    returned following positive drug tests. He was discharged in May 2016 following
    substance abuse treatment, but readmitted to St. Josephs on four occasions in
    2016 following positive drug tests. On the last two admissions, the hospital
    report notes that the appellant showed signs of cognitive impairment and
    hypomanic symptoms.

The Legislation

[9]

The Supreme Court of Canada summarized the operation of the NCR process
    in
Winko v. British Columbia (Forensic Psychiatric Institute)
, [1999]
    2 S.C.R. 625, and at para. 33 emphasized the obligation to accord maximum
    liberty to offenders compatible with the goals of public protection and
    fairness to the NCR accused:

The only justification there can be for the criminal law
    detaining a person who has not been found guilty (or is awaiting trial on an
    issue of guilt) is maintaining public safety. Once an NCR accused is no longer
    a significant threat to public safety, the criminal justice system has no
    further application.

[10]

The
    Board is charged with determining whether an NCR accused poses a significant
    threat to public safety. An NCR accused is not presumed to be dangerous and
    bears no burden of proof in proceedings before the Board.

[11]

The
    Boards obligations are set out in s. 672.54 of the
Criminal Code
:

When a court or Review Board makes a disposition under
    subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or
    672.84, it shall, taking into account the safety of the public, which is the
    paramount consideration, the mental condition of the accused, the reintegration
    of the accused into society and the other needs of the accused, make one of the
    following dispositions that is necessary and appropriate in the circumstances:

(
a
) where a verdict of not criminally responsible on
    account of mental disorder has been rendered in respect of the accused and, in
    the opinion of the court or Review Board, the accused is not a significant
    threat to the safety of the public, by order, direct that the accused be
    discharged absolutely.

[12]

A
    significant threat to the safety of the public is defined in s. 672.5401 as
    a risk of serious physical or psychological harm to members of the public
    including any victim of or witness to the offence, or any person under the age
    of 18 years  resulting from conduct that is criminal in nature but not
    necessarily violent.

[13]

The
    likelihood of a risk materializing and the seriousness of the harm that might
    occur must be considered together. As the Supreme Court noted in
Winko

(in discussing s. 672.54, as it then read), at para. 57:

[T]he threat posed must be more than speculative in nature; it
    must be supported by evidence. The threat must also be significant, both in
    the sense that there must be a real risk of physical or psychological harm
    occurring to individuals in the community and in the sense that this potential
    harm must be serious. A minuscule risk of a grave harm will not suffice.
    Similarly, a high risk of trivial harm will not meet the threshold.  Finally,
    the conduct or activity creating the harm must be criminal in nature.
    [Citations omitted.]

The Boards Decision

[14]

The
    Board heard testimony from the appellants treating psychiatrist, Dr. Prat, in
    addition to the appellant and his friend, Mr. McRae.

[15]

Dr.
    Prat testified that he observed hypomanic symptoms on the appellants most
    recent admission to St. Josephs. In his view, the rapid emergence of these
    symptoms provided clear evidence that the appellants chronic marijuana use was
    affecting his mental status and put him at risk of a full manic episode. Dr.
    Prat acknowledged that the appellant had not been violent since 2004 and that he
    had not abstained from substance abuse during this period. He also confirmed
    that the appellant was compliant with treatment and would continue with
    treatment if granted an absolute discharge. However, the appellant would
    continue to use marijuana, and Dr. Prat stated that he was extremely
    dangerous when hypomanic.

[16]

The
    appellant testified that he was not a threat and that the last thing he wanted
    to do was to commit a crime. He was amenable to a community treatment order and
    would be willing to return to hospital if his condition deteriorated and he
    experienced symptoms of mania.

[17]

The
    majority of the Board concluded that the appellant remained a significant
    threat to the safety of the public.
[1]
The majority reasoned as follows, at p. 7:

Significant threat was vigorously challenged at the hearing. In
    historical terms, Mr. Wall has a criminal record of 44 convictions, which
    includes firearms offenses, assault and assault with a weapon. In fairness to
    Mr. Wall, there have been no acts of physical violence since 2004. Yet he destroyed
    two seclusion rooms in 2011 while non-compliant with medication and manic.
    Though this information is not in the Hospital Report, Dr. Prat told the Board
    that during this episode Mr. Wall broke off pieces of metal as if to arm
    himself. In the years since, Mr. Wall has been rude, disrespectful, verbally
    abusive and verbally threatening, but not physically violent.

To his credit, Mr. Wall is treatment capable and compliant with
    medication. Until late 2016, his bipolar disorder was well managed by
    medication and unaffected by his longstanding and ongoing use of marijuana. At
    the hearing, the question of significant threat was linked to Mr. Walls
    cannabis use and its potential impact on his bipolar affective disorder. Dr.
    Prats evidence was that Mr. Walls mental condition changed on his last two
    admissions to hospital: the doctor saw signs of mental deterioration on October
    31, 2016, and hypomanic symptoms on November 16, 2016, only a few hours after
    Mr. Walls discharge on November 15
th
.

In Dr. Prats opinion, Mr. Walls
    symptoms on those occasions were linked to marijuana use and he was clearly
    concerned that chronic use could lead to a full manic episode. Furthermore,
    when manic, Mr. Wall may pose a risk of violent and transgressive behavior. The
    Board does not agree with Dr. Prat that Mr. Wall is extremely dangerous, but
    accepts that his marijuana use is potentially linked to problematic symptoms
    and is sufficient to support a finding of significant threat.

[18]

The
    minority of the Board found that although the appellants unrepentant use of
    marijuana was concerning, the link between that use, the rise of symptoms of
    hypomania, and a consequent risk to public safety was not sufficiently
    established to meet the significant threat threshold. Accordingly, the minority
    of the Board concluded that the appellant was entitled to an absolute
    discharge.

The Standard of Review

[19]

The
    standard of review on this appeal is established by s. 672.78(1) of the Criminal
    Code:

The court of appeal may allow an appeal against a disposition
    or placement decision and set aside an order made by the court or Review Board,
    where the court of appeal is of the opinion that

(
a
) it is unreasonable or cannot be supported by the evidence;

(
b
) it is based on a wrong decision on a question of
    law; or

(c
) there was a miscarriage of justice.

[20]

The
    question in this case is whether the Boards decision was reasonable.

Analysis

[21]

The
    task of determining whether or not an NCR accused poses a significant threat to
    the safety of the public is a difficult one, and the Boards decision is
    entitled to deference. On appeal, the court does not make its own judgment on
    the significant threat question and use that judgment as the benchmark for
    assessing the reasonableness of the Boards decision. Nor does the court
    re-weigh the considerations that were before the Board.

[22]

The
    reasonableness of the Boards decision must be evaluated by considering the
    reasons proffered by the Board in the context in which the decision was made. The
    reasons for the Boards decision and the substantive decision reached by the
    Board must be considered together in determining whether an acceptable and defensible
    outcome has been reached, keeping in mind the need to protect the liberty of
    the NCR accused as much as possible, while also protecting society.

[23]

This
    is not a case in which the Board was required to resolve conflicts in the
    expert evidence. Dr. Prat was the only medical professional who gave evidence.
    The Board rejected his evidence that the appellant was extremely dangerous.
    However, the Board accepted that the appellants marijuana use is potentially
    linked to problematic symptoms and is sufficient to support a finding of
    significant threat: at p. 8.

[24]

In
    our view, this conclusion is unreasonable.

[25]

Plainly,
    the appellant has a lengthy history of mental illness and substance abuse and
    has committed numerous offences. The risk that he will abuse marijuana and commit
    additional offences if he is given an absolute discharge is substantial. But he
    cannot be detained indefinitely on this account. The appellant is entitled to
    be discharged unless the Board concludes that he poses a significant threat to
    the safety of the public.

[26]

As
    this court stated in
Re Carrick
, 2015 ONCA 866, 128 O.R. (3d) 209, at
    para. 17:

[T]he significant threat standard is an onerous one. An NCR
    accused is not to be detained on the basis of mere speculation. The Board must
    be satisfied as to both the existence and gravity of the risk of physical or psychological
    harm posed by the appellant in order to deny him an absolute discharge.

[27]

It
    is not contested that, despite his lengthy record, the appellant has not
    committed an act of violence since 2004. The incident from 2011, in which the
    appellant damaged seclusion rooms and, according to the evidence of Dr. Prat,
    broke off pieces of metal as if to arm himself, was the only evidence
    connected to the risk of physical harm, and it was dated and speculative.

[28]

The
    Board accepted that the appellant has insight into his mental disorder and need
    for medication. He has, since 2011, been rude, disrespectful, verbally abusive
    and verbally threatening, but he has not been physically violent nor has he
    caused psychological harm. Moreover, in answer to questions from the court
    during the hearing of the appeal, counsel advised that there have been no
    further incidents of telephone harassment and the appellant has not contacted
    his ex-girlfriend.

[29]

The
    Board was concerned about recent signs of deterioration, but at its highest,
    the Board could do no more than conclude that the appellants marijuana use is
potentially
linked to
problematic symptoms
. It is not reasonable to deny the
    appellant an absolute discharge on so general a basis. As the minority of the
    Board recognized, it is not sufficient to meet the high threshold established
    by the Supreme Court in
Winko
.

[30]

We
    accept that, as was the case in
Re Ferguson
, 2010 ONCA 810, 271 O.A.C.
    104, an absolute discharge may not be in the appellants best interests: see
    para. 45. But that is not relevant to the Boards duty and this courts task on
    appeal. The appellant is entitled to his liberty absent a reasonable finding
    that he constitutes a significant threat to the safety of the public.

[31]

The
    appeal is allowed. The order of the Board is set aside and an absolute
    discharge is granted.

Released:

DW                                                  David
    Watt J.A.

SEP 14 2017                                    Grant
    Huscroft J.A.

G.T.
    Trotter J.A.

[1]
The Board also concluded that two restrictions on liberty imposed on the
    appellant in 2016 were warranted and justified. Those ROLs are not at issue in
    this appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Weenen v. Biadi, 2017 ONCA 738

DATE: 20170928

DOCKET: M48284 & M48317 (C61429)

Brown J.A. (In Chambers)

BETWEEN

Matthew Weenen

Plaintiff

(Respondent/Responding
    Party)

and

Graziano Biadi

Defendant

(Appellant/Responding
    Party)

Alex Cameron and Anastasia Reklitis, for the moving party, Fasken
    Martineau DuMoulin LLP

Yan David Payne, for the responding party, Matthew Weenen

Heard: September 21, 2017

ENDORSEMENT

[1]

The moving party Solicitor, Fasken Martineau DuMolin LLP, moves under s.
    34(1) of the
Solicitors Act
, R.S.O. 1990, c. S.15, for an order
    charging the damages and costs awarded to the responding party Client, Matthew
    Weenen, at the trial of this action (2015 ONSC 6832) and on appeal (2017 ONCA
    533).

[2]

The fees the Solicitor alleges remain outstanding total about $360,000,
    consisting of fees and disbursements incurred for both the trial and appeal.
    The Client has initiated assessment proceedings against the Solicitor.

[3]

Section 34(1) of the
Solicitors Act
reads as follows:

Where a solicitor has been employed to
    prosecute or defend a proceeding in the Superior Court of Justice, the court
    may, on motion, declare the solicitor to be entitled to a charge on the
    property recovered or preserved through the instrumentality of the solicitor
    for the solicitors fees, costs, charges and disbursements in the proceeding.

[4]

The language of the section speaks only about proceedings in the
    Superior Court of Justice. Ground J., at para. 12 of
Budinsky v. The Breakers
    East Inc.
, [1993] O.J. No. 1984, 106 D.L.R. (4
th
) 370 (Gen.
    Div.), wrote:

In my view,
s. 34(1)
of the
Solicitors Act
must be interpreted as statutory authority only for the Ontario Court
    of Justice (General Division) granting a charge on solicitors' fees, costs,
    charges and disbursements incurred in proceedings before the Ontario Court of
    Justice (General Division).

[5]

At the commencement of the motion, I asked Solicitors counsel whether
    he had any authority from this court on two questions:

(i)      Wherein
    lies the jurisdiction of the Ontario Court of Appeal to grant a charging order
    to secure solicitors fees?

(ii)     If
    there is such jurisdiction, is it limited only to granting a charging order in
    respect of fees and disbursements incurred in appeal proceedings before this
    court, or can this court also grant a charging order in respect of fees and
    disbursements incurred below in the Superior Court of Justice?

[6]

Counsel was not able to refer to any authority.

[7]

Clients counsel included in his authorities the decision of this court
    in
Kushnir v. Lowry
, [2003] O.J. No. 4093 (C.A.), in which a panel of
    this court refused to grant a charging order. The brief endorsement did not
    discuss the issue of jurisdiction.

[8]

My uncertainty about this courts jurisdiction, coupled with the
    practical need to determine a question relevant to both solicitors and clients,
    leads me to adjourn this motion to a panel of this court:
Courts of Justice
    Act
, R.S.O. 1990, c. C.43, s. 7(4). I think a question of jurisdiction is
    best decided by a panel, not a single judge sitting in Chambers.

[9]

I therefore adjourn this motion for a charging order to a panel.

[10]

Given
    the confidential nature of much of the material filed on this motion, I order
    the materials already filed, together with any further materials filed on the
    motion, to be sealed.

[11]

Any
    costs of todays attendance are reserved to the panel hearing the motion.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Weglarz v. Toronto (Police Services Board), 2017
    ONCA 727

DATE:  20170919

DOCKET: C63695

Hoy A.C.J.O., Huscroft and Paciocco JJ.A.

BETWEEN

Andrew Weglarz

Plaintiff/Appellant

and

Toronto Police Services

Defendant/Respondent

Fred Fischer, for the respondent

Andrew Weglarz, acting in person

Heard: September 14, 2017

On appeal from the judgment of Justice Carole J. Brown of
    the Superior Court of Justice, dated April 25, 2017.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Weglarz appeals the order of Brown J. striking his statement of
    claim without leave to amend. She found that the statement of claim did not
    adhere to the rules of pleading and was frivolous and vexatious. Further, she
    concluded that the claim was fatally flawed, such that it could not be
    remedied by granting leave to amend.

[2]

We agree with Brown J.s conclusions. There is no basis to interfere
    with her order. This appeal is dismissed. The respondent shall be entitled to
    costs in the amount of $500, all inclusive.