COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Evans, 2022 ONCA 23

DATE: 20220113

DOCKET:
    C68816

Miller, Zarnett and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Deon
    Evans

Appellant

Nicolas M. Rouleau and Jeff Carolin,
    for the appellant

Matthew Asma, for the respondent

Heard: January 6, 2022 by video conference

On appeal from the convictions entered by Justice Tamarin M. Dunnet of
    the Superior Court of Justice on November 15, 2013.

REASONS
    FOR DECISION

[1]

The appellant moved to Canada from Guyana when
    he was 12 years old, and later obtained permanent resident status.

[2]

In November 2013, the appellant pleaded guilty to
    two counts of robbery committed in 2011, when he was 18 years old.

[3]

The appellant was told by his trial counsel that
    he would receive a lower sentence by pleading guilty than would likely be
    imposed if he was found guilty after trial, and that trial counsel would
    request a total sentence of 30 months, which after credit for time served,
    would result in the appellant spending no further time in custody. And, as he
    told the appellant he would do upon a guilty plea, the appellants trial
    counsel asked the trial judge to split a total sentence of 30 months between
    the two counts, as sentences that were less than two years per count would give
    the appellant a fighting chance from an immigration perspective. The trial
    judge gave effect to this request, and the appellant received sentences of 15 months
    per count which, after credit for pre-trial custody, amounted to an effective
    sentence of time served.

[4]

In actuality, the guilty pleas, convictions and
    sentences provided no fighting chance from an immigration perspective. The convictions
    rendered the appellant inadmissible to Canada and made him subject to a removal
    order. As the sentences he received exceeded six months per count, the
    appellant would have no right to appeal any removal order.

[5]

Asserting that he pleaded guilty without full
    awareness of these collateral immigration consequences, and that he suffered
    prejudice by doing so, the appellant asks that his convictions be set aside,
    and that proceedings against him be stayed or a new trial directed.

[6]

At the conclusion of oral argument, we allowed
    the appeal with reasons to follow. These are those reasons.

[7]

To set aside the guilty pleas, the appellant must
    satisfy two criteria: (a) that the pleas were uninformed in the sense that he was
    misinformed or uninformed about their immigration consequences; and (b) that he
    suffered subjective prejudice, in the sense that there is a reasonable
    possibility that [he] would have either (1) opted for a trial and pleaded not
    guilty; or (2) pleaded guilty, but with different conditions:
R. v. Wong
,
    2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-6, 33-34 and 36. In order to assess
    the veracity of the appellants claim that he suffered subjective prejudice, the
    court can look to objective, contemporaneous evidence. The inquiry is
    therefore subjective to the accused, but allows for an objective assessment of
    the credibility of the accuseds subjective claim:
Wong
, at paras. 6,
    26.

[8]

In order to meet these criteria, the appellant
    filed fresh evidence including his own affidavits. The Crown agrees that the
    fresh evidence should be admitted, and we do so.

[9]

The Crown also agrees that the appellant has
    satisfied the first criterion of the test for setting aside the guilty pleas.
    The appellant was not aware that convictions based on the guilty pleas rendered
    him inadmissible to Canada, with no right to appeal a removal order based on
    the convictions. He was led to believe that keeping his sentences for each
    count to under two years would be of significance to future immigration
    consequences. In fact, there was no beneficial significance, from an
    immigration perspective, to any sentence that was over six months; any
    such sentence meant the appellant would not have any right to appeal a removal
    order.

[10]

On the basis of the evidence and the Crowns
    concession, we conclude that the first criterion of the test for setting aside
    the guilty pleas has been satisfied.

[11]

We also conclude that the appellant has
    satisfied the second criterion of the test.

[12]

The appellants affidavit evidence is that had
    he been informed of the relevant immigration consequences, he would not have
    pleaded guilty and, instead, would have taken all available steps in an effort
    to stay with his family in Canada, including pleading not guilty, electing to
    stand trial, and appealing any guilty verdict.

[13]

The credibility of that assertion is challenged.
    The Crown argues that the appellants trial counsel told the appellant there
    may be immigration consequences and that he had no expertise in immigration law.
    As a consequence, the appellant must have been motivated to plead guilty more
    by the desire to immediately end his time in custody rather than by what might
    happen to his immigration status. As well, the Crown points to the appellants
    failure to take prompt steps to retain immigration counsel in 2016, after the
    appellant was notified of the risk of a removal order, and to follow the advice
    of immigration counsel to retain criminal counsel.

[14]

We are not persuaded by these arguments. Although
    trial counsel did qualify his advice and although the appellant was aware that
    there might be immigration consequences, it is common ground that the appellant
    was misinformed as to those consequences and led to believe that there would be
    a benefit  a fighting chance  from an immigration perspective to pleading
    guilty and receiving the sentence he did, when there was no benefit. Nor do we
    take, from the appellants conduct post-2016, which ultimately resulted in the
    retainer of immigration counsel and of counsel to bring this appeal, that the
    appellant was unconcerned about being removed from Canada.

[15]

The credibility of the appellants assertion is supported
    by certain objective matters, including the following:

(a)

The appellants trial counsel had been of the
    view that the appellant had a strong defence to the charges he was facing, as
    he had strong grounds to resist the admission of a confession the appellant had
    made to the police. The trial judge held the confession to be admissible; it
    was shortly after that occurred that trial counsel engaged in discussions with
    the Crown that led to the guilty pleas. Trial counsel had told the appellant
    that he thought there were strong grounds to appeal the ruling that admitted the
    confession. Accordingly, from the appellants perspective, if he had been fully
    aware of the immigration consequences of a guilty plea, there would be a reason
    why he might pursue the upside of not pleading guilty with the hope that if
    his counsel was right, he could ultimately avoid any immigration consequences
    from a conviction and resulting sentence.

(b)

The parties agree that at the time of the guilty
    pleas, the appellant had spent 30 months in pre-trial custody, and thus had 45
    months of credit for pre-trial custody. The parties also agree that the
    sentence that he would have received were he convicted after trial would likely
    have been four to five years, less pre-trial custody. The downside to
    proceeding to trial was the same from an immigration perspective as the guilty
    pleas, and was limited in terms of additional time that the appellant might
    have to spend in custody. The appellant may have been willing to proceed to
    trial and risk the downside of an additional 3 to 15 months in custody if it
    provided the possible upside of avoiding conviction and thus avoiding any
    immigration consequences.

(c)

The appellants life, family, and friends were
    all in Canada. He no longer had any close family or friends in Guyana, to which
    he would be deported. Accordingly, he had strong reasons to wish to avoid
    deportation and to follow a course of action that had a prospect of avoiding
    it.

[16]

Assessing the credibility of the appellants
    evidence against the objective factors, we are satisfied that there is a
    reasonable possibility that, if properly informed, he would have followed an
    alternative course rather than pleading guilty.

[17]

For these reasons, we allow the appeal, set
    aside the convictions, and order a new trial. The Crown has advised that if the
    appeal is allowed, it does not view prosecuting the appellant again to be in
    the public interest given that: (i) the sentences imposed have been served;
    (ii) he has not re-offended; and (iii) there are extreme pressures on court
    resources as a result of the pandemic. Accordingly, in the interests of justice,
    we exercise our discretion under s. 686(8) of the
Criminal Code
, R.S.C. 1985, c. C-46
and stay further
    proceedings against the appellant.

B.W. Miller J.A.

B. Zarnett
    J.A.

S.
    Coroza J.A.


WARNING

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

An order restricting publication in this proceeding
    under ss. 539(1), (2), (3) or (4) of the
Criminal
    Code
shall continue.
    These sections of the
Criminal Code
provide:

539(1)          Prior to
    the commencement of the taking of evidence at a preliminary inquiry, the
    justice holding the inquiry

(a) may, if application
    therefor is made by the prosecutor, and

(b) shall, if application therefor is
    made by any of the accused,

make an order directing that the evidence
    taken at the inquiry shall not be published in any document or broadcast or
    transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand
    trial, the trial is ended.

(2)     Where an accused
    is not represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who
    fails to comply with an order made pursuant to subsection (1) is guilty of an
    offence punishable on summary conviction

(4)      [Repealed,
    2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s.
    539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Adem, 2022 ONCA 24

DATE: 20220113

DOCKET: C69549 & C69555

van Rensburg, Paciocco, and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samir Adem and Salman Ahmed

Appellants

R. Craig Bottomley and Andrea
    VanderHeyden, for the appellant Samir Adem

Ariel Herscovitch, for the appellant
    Salman Ahmed

Gavin MacDonald, for the respondent

Heard: January 10, 2022 by
    video conference

On appeal from the order of Justice Suhail
    A.Q. Akhtar of the Superior Court of Justice, dated June 3, 2021 granting
    certiorari setting aside the order of Justice Michael Callaghan of the Ontario
    Court of Justice, dated November 27, 2020.

REASONS FOR DECISION

[1]

A preliminary inquiry judge committed Samir Adem
    and Salman Ahmed to trial on charges of second degree murder, contrary to s. 231(7)
    of the
Criminal Code
, R.S.C. 1985, c. C-46. The Crown had sought their
    committal on charges of first degree murder, pursuant to the constructive first
    degree murder provision in s. 231(5)(e) of the
Criminal Code
, on the
    theory that they murdered the victim while committing the offence of unlawful confinement
    against him, contrary to s. 279 of the
Criminal Code
. The preliminary
    inquiry judge declined to commit on first degree murder, concluding that although
    the evidence established a
prima facie
case against Mr. Adem and Mr.
    Ahmed for the offence of murder, he was unable to find a reasonable inference [that
    the victim] was forcibly confined. In coming to this conclusion, he found that
    there was an evidentiary gap which leaves the inference unsupportable. He
    therefore concluded that the Crown had not led sufficient evidence upon which
    a properly instructed jury could reasonably infer that Samir Adem and Salman
    Ahmed are guilty of the first degree murder of [the victim] by operation of s.
    231(5)(e).

[2]

The Crown brought a successful application for
    judicial review in which the reviewing judge found that the preliminary inquiry
    judge committed each of the three forms of jurisdictional error identified by
    Major J. in
R. v. Sazant
, 2004 SCC 77, [2004] 3 S.C.R. 635, at para.
    25, namely, (1) he misunderstood the elements of the offence, (2) he preferred an
    inference favourable to the accused over an inference favourable to the Crown,
    and (3) he failed to consider the whole of the evidence. The reviewing judge quashed
    the preliminary inquiry judges order to discharge the first degree murder
    charge and directed the preliminary inquiry judge to commit Mr. Adem and Mr.
    Ahmed on that charge.

[3]

After oral argument, we allowed Mr. Adem and Mr.
    Ahmeds appeal from the reviewing judges decision, with reasons to follow.
    These are our reasons for concluding that the reviewing judge erred in finding
    that the preliminary inquiry judge committed jurisdictional error. In our view,
    the reviewing judge erroneously substituted his own view of the evidence for that
    of the preliminary inquiry judge, which he was not entitled to do, after
    incorrectly identifying jurisdictional errors in the preliminary inquiry
    judges decision.

[4]

In providing these reasons we will be
    circumspect in referring to the specific evidence, as it is unnecessary to
    recount it to explain our decision, and we want to avoid undermining the publication
    ban that is in force relating to the evidence provided during the preliminary
    inquiry. Suffice it to say that the Crown identified preliminary inquiry
    evidence before us that was arguably capable of yielding a reasonable conclusion
    that the victim was subject to a separate and distinct unlawful confinement at
    the time he was shot to death. However, even if the preliminary inquiry judge erred
    in finding that no such evidence existed, this was not a jurisdictional error, but
    instead, an error committed within his jurisdiction. As Major J. reaffirmed in
R.
    v. DesChamplain
, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23:

[I]t is not a jurisdictional error for the
    preliminary inquiry judge, after considering the whole of the evidence and
    where there is an absence of direct evidence on each essential element of the
    offence, to erroneously conclude that the totality of the evidence (direct and
    circumstantial) is insufficient to meet the test for committal and to
    consequently discharge the accused under s. 548(1)(b): see
Arcuri
,
supra
,
    at paras. 21-23;
Russell
,
supra
, at para. 26.

[5]

Although the reviewing judge quoted from this
    passage from
DesChamplain
and correctly expressed the limitations of
    his own jurisdiction to interfere in the preliminary inquiry judges decision, as
    indicated, he went on to err when identifying jurisdictional errors.

[6]

First, his conclusion that the preliminary
    inquiry judge misunderstood the elements of the offence of unlawful confinement,
    thereby failing to evaluate the Crowns evidence against the correct position
    in law, cannot stand. In the course of his decision, the preliminary inquiry
    judge correctly identified the elements of the offence. In finding that the
    preliminary inquiry judge nonetheless misunderstood those elements, the
    reviewing judge focused on a passage in which the preliminary inquiry judge listed
    evidence that was not available on the record. When that passage is read in
    context it is evident that the preliminary inquiry judge was not misidentifying
    missing elements of the offence, but instead illustrating the kind of evidence
    that could have filled the evidentiary gap he found relating to the elements he
    had correctly identified.

[7]

Second, the reviewing judges conclusion that the
    preliminary inquiry judge ignored a reasonable inference favourable to the
    Crown mischaracterizes his decision. The preliminary inquiry judge refused to
    commit Mr. Adem and Mr. Ahmed to trial on first degree murder based on his
    conclusion that there was no evidence from which an inference of unlawful
    confinement could be drawn, not because he preferred a competing inference that
    favoured the defence.

[8]

Moreover, the reviewing judge based his finding that
    the preliminary inquiry judge erroneously preferred an inference favourable to
    the defence to an inference favourable to the Crown on his own conclusion that
    there was evidence that supported an inference of unlawful confinement. If such
    reasoning is correct, a jurisdictional error would occur in any case where the
    reviewing judge identifies an inference that would enable committal that the
    preliminary inquiry judge failed to identify. Such an approach would defeat the
    distinction between jurisdictional errors and those ordinary errors that occur
    where the preliminary inquiry judge mistakenly concludes that there is
    insufficient evidence for committal. Put simply, in order to commit
    jurisdictional error based on drawing inferences in favour of the defence over those
    in favour of the Crown, a preliminary inquiry judge must engage in weighing
    competing inferences to determine which inference is more compelling. The
    preliminary inquiry judge did not do so in this case.

[9]

Third, the reviewing judges conclusion that the
    preliminary inquiry judge failed to consider the whole of the evidence is
    predicated on the failure by the preliminary inquiry judge to refer expressly when
    describing the gap in the evidence to evidence that the reviewing judge
    believed could fill that gap. However, the preliminary inquiry judge furnished
    a comprehensive articulation of his duty to consider the whole of the evidence.
    The preliminary inquiry judge also referred on more than one occasion in the
    course of his decision to the evidence that the reviewing judge erroneously concluded
    that he failed to consider. When the whole of the preliminary inquiry judges
    decision is examined, it is evident that he did not mention this evidence when
    describing the gap in the Crowns case for committal on the charge of first
    degree murder because he did not find that this evidence supported an inference
    of unlawful confinement. If this conclusion by the preliminary inquiry judge
    was an error, it was the very form of non-jurisdictional error that the reviewing
    judge had earlier conceded he could not interfere with, namely, a finding that
    the Crowns evidence was insufficient.

[10]

For these reasons, we allowed the appeal,
    quashed the decision of the review judge, and reinstated the committal for
    trial on second degree murder of both appellants.

K. van Rensburg J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Pickering (Re), 2022 ONCA 26

DATE: 20220118

DOCKET: C69472

Paciocco, Nordheimer and Sossin
    JJ.A.

IN THE MATTER OF:  Sarah Pickering

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the appellant

Nicholas Hay, for the respondent, Attorney
    General of Ontario

Gavin S. MacKenzie, for the respondent,
    Ontario Shores Centre for Mental Health Sciences

Heard: January 12, 2022 by
    video conference

On appeal from the disposition of the
    Ontario Review Board, dated March 4, 2021 with reasons dated March 31, 2021.

REASONS FOR DECISION

[1]

Ms. Pickering appeals from the disposition of
    the Ontario Review Board that continued the detention order against her. The
    appellant submits that the Board erred in not awarding an absolute discharge. In
    the alternative, the appellant submits that the Board erred in not awarding her
    a conditional discharge. In the further alternative, the appellant asks for a
    new hearing. For the following reasons, the appeal is dismissed.

[2]

The appellant has been under the jurisdiction of
    the Board since February 2020 when she was found not criminally responsible
    (NCR) with respect to offences of assault with a weapon and possession of a
    weapon dangerous to the public peace.

[3]

At this most recent review, the Board found that
    the appellant continues to pose a significant threat to the safety of the public.
    The appellant challenges that conclusion. However, in our view, there was a
    sufficient evidentiary basis for it. The evidence establishes that the
    appellant suffers from a schizophrenic illness which requires medication to
    control it. Unfortunately, the appellant does not yet fully accept that she has
    such an illness. This lack of acceptance poses a concern regarding the
    appellants willingness to continue medication for her illness absent
    supervision. Without that medication, the appellant is likely to decompensate
    quickly and become a danger to others. We note, on this point, that the appellant
    is currently unable to consent to treatment on her own. Rather, her aunt
    operates as her substitute decision maker for such purposes.

[4]

There is also a concern that, without proper
    supervision, the appellant will commence using substances, such as drugs and
    alcohol, that will accelerate the decompensation of her mental state. It was
    the use of such substances that contributed to the conduct underlying the index
    offences. There is also evidence that the appellant continues to harbour some
    level of persecutory delusions regarding her parents, who were the subjects of
    the assaults that led to the appellants convictions. Her lack of insight into
    her condition greatly increases the risk that she poses if she does not maintain
    her medication.

[5]

In our view, many of the submissions made on
    behalf of the appellant fail to recognize that her progress, which she relies
    upon as indicative of her potential conduct if she is in the community,
    occurred while she was under the direct supervision and control of the hospital.
    The appellant has not, as yet, had the experience of living in the community in
    a controlled setting that could be used as an introduction to assessing how she
    will cope under indirect supervision. Along with her underdeveloped insight
    into her mental illness, the risks associated with substance abuse, and what
    may well be the continued delusions she maintains relating to her parents, the
    absence of a record of success in the community materially weakens her
    challenge to the reasonableness of the Boards decision.

[6]

These considerations also undercut the
    appellants request for a conditional discharge. Among other things, there is
    no evidence as to where the appellant would reside if she was permitted to live
    in the community that would have the requisite control and supervision. For
    example, it is not clear that she could return to her parents home, given that
    they were the victims of the original offences, notwithstanding that they
    continue to support her.

[7]

The Board appreciated the steps that the appellant
    has taken to address her illness and we would commend her on the progress she
    has made. However, the Board agreed with the psychiatrist that, at the time the
    disposition now under review was made, it was premature to permit the appellant
    unsupervised and unrestrained access to the community. The appellant has failed
    to establish that the decision of the Board in this regard is an unreasonable
    one. We note, on this point, that the detention order granted provides for the
    appellant to enjoy privileges as recommended by the hospital.

[8]

We also note that the next annual review for the
    appellant is in February. The Board will have that opportunity to further
    evaluate the progress of the appellant and the continuing need for a detention
    order. The Board will also be in a better position to decide, if the
    opportunity for community living is appropriate at that point, what the best
    terms and conditions are to permit that step to be taken while ensuring the safety
    of the public.

[9]

In the end result, the Boards conclusion was a
    reasonable one based on the evidence. It is entitled to deference from this
    court.

[10]

The appeal is dismissed.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.

Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gallant v. 556614 Ontario Inc.,
2022 ONCA 27

DATE: 20220114

DOCKET: C69236

Huscroft, Trotter and Coroza
JJ.A.

BETWEEN

Barry James Gallant

Plaintiff (Appellant)

and

556614 Ontario Inc. and
Miranda
Bailey also known as Miranda Wendover Bailey

Defendants (
Respondents
)

Kevin Sherkin, for the appellant

Benjamin E. Jefferies, for the
respondent Miranda Bailey

Heard: January 13, 2022 by
video conference

On appeal from the order of Justice Michael
N. Varpio of the Superior Court of Justice, dated March 1, 2021.

REASONS FOR DECISION

[1]

The appellant argues that the motion judge erred
in finding that the respondents obligations as guarantor on the mortgage loan
by the appellant to the numbered company 556614 Ontario Inc. ended on June 28,
2014, and that she was therefore not bound by subsequent extensions of the
mortgage, made without notice to her.

[2]

We disagree.

[3]

The motion judge properly considered all of the
documents that formed the parties agreement, including the standard terms, the
mortgage agreement, and the mortgage schedule. It was conceded that if the
standard terms applied, the respondent was liable to pay on the guarantee. Thus,
the outcome turned on whether the standard terms were modified by the mortgage agreement.

[4]

The motion judge found that they were. Although
the mortgage schedule does not refer to a specific period of time, in setting
out the guarantors obligations it refers to the dates and times and in the
manner above limited. It was open to the motion judge to find that this limited
the guarantors obligation in accordance with the terms set out in the mortgage
agreement, thus modifying the standard terms. As a result, the duration of the
guarantee was limited to the 12-month period set out in the mortgage agreement.

[5]

We see no palpable and overriding error in the
motion judges decision. His interpretation is reasonable and entitled to
deference in this court.

[6]

Accordingly, the appeal is dismissed.

[7]

The respondent is entitled to costs in the agreed
amount of $6,000, all inclusive.

Grant
Huscroft J.A.

Gary
Trotter J.A.

S.
Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rootenberg, 2022 ONCA 28

DATE: 20220114

DOCKET: M53075 (C67988)

Brown
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent/Responding Party

and

Shaun
    Rootenberg

Appellant/Applicant

Bryan Badali, for the applicant

Nicolas de Montigny, for the responding
    party

Heard: January 7, 2022 by video conference

ENDORSEMENT

OVERVIEW

[1]

The applicant, Shaun Rootenberg, applies under s. 684(1) of the
Criminal
    Code
,
R.S.C.
    1985, c. C-46,

for the appointment of
    counsel.

[2]

The basic facts of this case are set out in the trial judges Reasons
    for Judgment (2019 ONSC 4145), Decision Reopening Stay of Proceedings
    Application (2020 ONSC 171), and Reasons for Sentence (2020 ONSC 5928). MacPherson
    J.A. also provided an overview of the case in his reasons denying bail pending
    appeal:
R. v. Rootenberg

(October
    7, 2020), Toronto, M51295 (C67988) (Ont. C.A.).

[3]

The applicant has exhausted his efforts to obtain legal aid for his
    appeal.

[4]

Pursuant to s. 684, a court may assign counsel where, in its opinion,
    it appears desirable in the interests of justice that the accused should have
    legal assistance and where it appears that the accused has not sufficient means
    to obtain that assistance. The jurisprudence requires an applicant to
    demonstrate the following: (i) the appeal is arguable; (ii) the appointment of
    counsel is necessary, having regard to whether the applicant is capable of
    effectively advancing the grounds of appeal without a lawyer and whether the
    court will be able to properly decide the appeal without the assistance of
    defence counsel; and (iii) it appears the applicant lacks sufficient means to
    obtain such legal assistance:
R. v. Brown
,
    2018 ONCA 9, at paras. 7-8.

[5]

The Crown opposes the application, taking the position that the
    applicant has failed to establish elements (i) and (ii).

AGRUABILITY

[6]

Defence counsel, in his opinion letter to Legal Aid Ontario (the
    Opinion Letter), identified three grounds of appeal:

1.

Unreasonable verdict:
The trial
    judge convicted the applicant of one count of fraud over $5000 pursuant to s.
    380(1) of the
Criminal Code
. Although the
    trial judge was not persuaded beyond a reasonable doubt that the applicant
    defrauded the complainant by deceit or falsehood, she was persuaded that he
    had done so by other fraudulent means, within the meaning of s. 380(1). The
    applicant contends that result was the product of inconsistent reasoning by the
    trial judge and inconsistent with certain factual findings she made;

2.

Error in dismissing stay application:
The applicant had sought to stay the criminal proceedings against him on the
    basis that strip searches conducted of him during pre-trial custody  namely,
    searches when taken from and returned to the detention centre and searches upon
    leaving the institutions kitchen where he worked  violated his rights under
    s. 8 of the
Canadian Charter of Rights and Freedoms
.
    The trial judge gave extensive reasons for dismissing the stay application.
    Although defence counsel acknowledges that [t]here has been little
    jurisprudence addressing the use of strip searches in a detention centre or
    correctional facility, the applicant plans to argue that the trial judges
    analysis was deficient and that she erred in the balance she struck between the
    applicants privacy rights and the safety and security concerns of the
    detention facility;

3.

Error in imposing a harsh and excessive
    sentence and in failing to award additional credits for pre-sentence detention:
The Crown sought a 6 to 7-year prison term; the defence argued for a 3.5 to
    4-year term. The sentencing judge imposed a 6-year prison term, against which
    she gave
Summers
credit for the applicants pre-sentence custody. In
    rejecting the applicants submission for enhanced
Duncan
credits,
    as they were then called, the sentencing judge took into account, in part, that
    his work on the kitchen range had resulted in fewer restrictions on his
    movement in the institution. In her reasons, the sentencing judge also
    explained why she would not reduce the sentence on the basis of the principles
    in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206
, or
    award any
Downes
credit for the conditions
    faced by the applicant while on judicial interim release. The applicant intends
    to argue on appeal that the sentencing judge erred by failing to grant him
Duncan
and
Downes
credits.

[7]

The Crown submits that there is insufficient merit to any of the
    applicants proposed grounds of appeal and, as a result, the applicant has not
    established that his appeal is arguable.

[8]

In his reasons denying the applicant bail pending appeal, MacPherson
    J.A. wrote: Although I cannot say that the applicants proposed appeal is
    frivolous, I do say that, to my eyes, it looks very weak. Applicants counsel fairly
    points out that those comments were made about differently framed grounds of
    appeal, not those described in the Opinion Letter, which the applicant now
    intends to advance.

[9]

Although the three grounds of appeal identified in the Opinion Letter
    strike me as weak, I cannot say they are not arguable for the purposes of a s.
    684 application.

NECESSITY

[10]

The
    applicant is a university graduate, although he failed to provide details of
    his university studies in his affidavit in support of this application.

[11]

The
    applicant is familiar with the basic workings of the banking and property
    financing systems. Prior to the conviction under appeal, the applicant had been
    convicted of uttering forged documents (2006) and several fraud-related
    offences (2009), which included defrauding his brother of $1.8 million. It is
    clear from the facts found by the trial judge that the applicant is familiar at
    least with the basics of the banking and property financing systems.

[12]

In
    his affidavit in support of this application, the applicant described himself
    as a business consultant. He deposed that while on interim release he
    performed consulting work for a medical marijuana company. Although his affidavit
    does not provide particulars of his employment history, from the Reasons for
    Judgment it appears that prior to committing the offence under appeal the
    applicant was involved in developing technology-related business ventures.

[13]

In
    his affidavit, the applicant asserts that he does not feel equipped to advance
    the grounds of appeal myself. However, his conduct to date strongly indicates
    that the applicant is a well-educated and sophisticated individual.

[14]

While
    the applicant does not have formal legal training, the first ground of appeal
    he advances  unreasonable verdict  is not complicated or factually complex.
    The size of the record would be manageable by a self-represented appellant. As
    well, the trial judge gave extensive reasons for conviction that provide the
    applicant with a focused target for his submissions.

[15]

However,
    the second and third grounds of appeal, which are based on the legal
    implications of common strip searches that were conducted on the applicant in
    the institutions in which he has been detained, contain a significant legal
    component. The second ground of appeal is novel. Combined, those factors lead
    me to conclude that the appointment of state-funded counsel is necessary to
    achieve fair and effective appellate review of the second and third grounds of
    appeal. Yet, I see no practical way to separate the first ground of appeal from
    the rest since the second ground of appeal also falls within the ambit of the
    conviction appeal. Given that circumstance, I think the most practical way to
    achieve the interests of justice is to appoint counsel to advance all three
    grounds of appeal.

DISPOSITION

[16]

For the reasons set out above, I conclude that the interests of
    justice warrant the appointment of counsel to advance the three grounds of
    appeal identified in the Opinion Letter. An order shall go granting the
    application to that extent. Mr. Badali is prepared to act for the applicant on
    the appeal.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
United States v. Akinbobola, 2022 ONCA 29

DATE: 20220120

DOCKET: C68781

MacPherson, Roberts and Miller
    JJ.A.

IN THE MATTER OF an application for
    judicial review pursuant to s. 57 of the
Extradition Act
, S.C. 1999,
    c. 18

BETWEEN

The Minister of Justice of
    Canada and Attorney General of Canada
(on behalf of the United States of America)

Respondent

and

Tony Akinbobola

Applicant

Jeff Marshman, for the applicant

Rebecca Sewell and Roy Lee, for the
    respondent

Heard: September 29, 2021 by video conference

On application for judicial review of
    the surrender order of the Minister of Justice, dated October 26, 2020.

B.W. Miller J.A.:

[1]

The United States of America seeks extradition
    of the applicant for prosecution. The applicant is alleged to have conspired
    with others to defraud elderly victims of hundreds of thousands of dollars
    through a sweepstakes scheme. In earlier proceedings, this Court concluded
    there was sufficient evidence to justify the applicants committal for
    extradition. The Minister of Justice then ordered the applicant surrendered to
    the United States.

[2]

The applicant brings this application for
    judicial review of the surrender decision on the basis that the Minister of
    Justice erred in his assessment of whether extradition would violate the applicants
    right to remain in Canada under s. 6 of the
Charter of Rights and Freedoms
,
    as well as his right not to be deprived of liberty except in accordance with
    principles of fundamental justice, as provided by s. 7 of the
Charter
.
    The applicant also argues that his surrender would be otherwise unjust or
    oppressive, and the Ministers decision to surrender him was therefore unreasonable.

[3]

For the reasons given below, I would dismiss the
    application.

A.

History of Proceedings

[4]

The sweepstakes scheme is alleged to have caused
    losses of over $900,000 to victims, who were primarily elderly residents in the
    state of Texas. Victims would be called and told that they had won a
    sweepstakes. They would be instructed to call the applicant, who would convince
    the victims to deposit a fraudulent cheque of $8,000, and then send cash or
    money orders to him to facilitate deposit of their much larger prize. The
    applicant was not the originator of the scheme, but is alleged to have been one
    of several people hired to prepare the sweepstakes letters, take calls from the
    victims, and receive and forward the funds. The applicant is alleged to have
    operated entirely from Ontario, from March to October 2015.

[5]

The applicant was arrested in 2018. He was
    initially discharged following a committal hearing in 2019, but the discharge
    was successfully appealed to this Court, which committed him for extradition. Following
    committal, and after receiving submissions from the applicant, the Minister of
    Justice ordered the applicant to be surrendered to the United States.

[6]

The Ministers reasons considered whether the
    decision to prefer extradition over domestic prosecution infringed the
    applicants mobility rights under s. 6(1) of the
Charter
. He also
    considered whether the applicants surrender would infringe the applicants s.
    7 rights, or otherwise be unjust or oppressive. Taking into account all of the
    circumstances of the applicants case and Canadas international commitments,
    the Minister concluded that the applicant ought to be surrendered.

B.

Issues on judicial review

[7]

The applicant argues that the Minister committed
    the following errors:

1.

Concluding that surrendering the applicant
    would not constitute an unjustifiable infringement of his right to remain in
    Canada under s. 6 of the
Charter
;

2.

Not concluding that surrendering the applicant to
    face a likely sentence of 24-30 years would be contrary to principles of
    fundamental justice and therefore violate his rights under s. 7 of the
Charter
;
    and

3.

Concluding that surrendering the applicant
    would not be otherwise unjust or oppressive in the circumstances.

C.

The Standard of Review

[8]

Section 57 of the
Extradition Act
, S.C.
    1999, c. 18, provides a statutory right of judicial review of the Ministers
    surrender order. The Ministers decision, including the determination that
    surrender would not be a violation of the
Charter
and would not be
    otherwise unjust or oppressive under s. 44(1)(a) of the
Extradition Act
,
    is afforded substantial deference and assessed using the standard of
    reasonableness due to the Ministers expertise in relation to Canadas
    international obligations:
Romania v. Boros
, 2020 ONCA 216, 150 O.R.
    (3d) 158. The decision to surrender is an exercise of discretion, and the reviewing
    court is not entitled to re-weigh the facts and substitute its own view. If the
    Minister considered the relevant facts and reached a reasonable conclusion based
    on those facts, the decision must be upheld:
Lake v. Canada (Minister of
    Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 2, 26, 34, 38, and
    41.

D.

Analysis

(1)

S. 6(1) of the
Charter
 the right to remain in Canada

[9]

The right of Canadian citizens to remain in
    Canada is protected by s. 6(1) of the
Charter
, which provides: [e]very
    citizen of Canada has the right to enter, remain in and leave Canada. In
United
    States v. Cotroni
, [1989] 1 S.C.R. 1469, the Supreme Court determined that
    extradition is a
prima facie
limitation on the right to remain in
    Canada. However, the Court stated at p. 1481 of
Cotroni
that extradition
    lies at the outer edges of the core values of s. 6(1), and at p. 1483 that extradition
    will be generally warranted under s. 1 of the
Charter
as a reasonable
    limitation of the right to remain in Canada, given the pressing and
    substantial objectives of extradition: (1) protecting the public against crime
    through its investigation; (2) bringing fugitives to justice for the proper
    determination of their criminal liability; (3) ensuring, through international
    cooperation, that national boundaries do not serve as a means of escape from
    the rule of law:
Sriskandarajah v. United States of America
,
    2012 SCC 70, [2012] 3 S.C.R. 609, at para. 10.

[10]

The Ministers discretion to extradite is not
    unfettered, and the Minister must consider whether it would be appropriate to
    prosecute domestically instead of ordering surrender. The analysis of whether the
    limit of s. 6(1) rights occasioned by a particular extradition is justified
    under s. 1 uses the same criteria  known as the
Cotroni
factors  as the
    non-
Charter
analysis for determining whether a domestic prosecution
    would be preferable to extradition:
Cotroni
, at pp. 1497-98.

[11]

The applicant argued that only two of the
Cotroni
factors favoured surrender  that the victims reside primarily in the United
    States, and American authorities played a major role in the investigation into
    the alleged scheme  and that the remainder favoured domestic prosecution. The
    Minister disagreed, focusing his decision on the
Cotroni
factors he
    considered most persuasive:

·

The impact of the offence was experienced in the
    U.S.;

·

American law enforcement played the major role
    in the development of the case;

·

The U.S. laid charges;

·

The U.S. has the most comprehensive case and is
    the most effective jurisdiction in which to proceed with a prosecution;

·

The U.S. is ready to proceed to trial;

·

Seven of the nine witnesses reside in the U.S.;

·

Seven other accused are involved, two of whom
    are fugitives from justice. The others, excluding the applicant, have been or
    are being tried in the U.S.

[12]

The applicant argues that the Minister erred in
    law in not considering in this analysis the potential disparity in sentencing between
    the U.S. and Canada for similar offences. The applicant argues that he faces a
    potential sentence in the U.S. ranging from 24-30 years, while the sentencing
    range in Canada for equivalent offences would be 2-3 years.

[13]

I do not agree that the Minister erred in this
    respect. The applicant is correct that the severity of sentence is included in the
    non-exhaustive list of relevant factors set out in
Cotroni
. However, as
    the Supreme Court held in
Sriskandarajah
at para. 22,
Cotroni
sets out a non-formalistic test that grants flexibility to the Ministers
    decision. The Minister is not required to provide a detailed analysis for
    every factor. An explanation based on what the Minister considers the most
    persuasive factors will be sufficient:
Lake
, at para 46.

[14]

The argument that the Minister overlooked the
    sentencing differential is readily countered by considering the structure of
    the Ministers reasons. Before addressing the s. 6(1) argument, the Minister
    first addressed the applicants arguments that his surrender would violate his
    rights under s. 7 of the
Charter
. Among those arguments was the
    argument that surrender in the face of the sentencing disparity would be
    contrary to the principles of fundamental justice. The Minister reasoned that
    it would not be. (I address the substance of that argument below, in reviewing
    the Ministers s. 7 reasons.) As the Crown argues, having considered the
    sentencing disparity argument at length in the s. 7 analysis, and having
    rejected the argument, the Minister was not required to repeat the analysis in
    the s. 6(1) reasons, or even expressly refer to it. It was sufficient for the
    Minister to have stated that he considered all of the
Cotroni
factors and
    to note the applicants argument that only two
Cotroni
factors
    favoured surrender, and that all of the others  which would include the sentencing
    disparity  favoured domestic prosecution. It is clear, reading the reasons as
    a whole, that the Minister considered and rejected the argument that a balancing
    of the
Cotroni
factors  including sentencing disparity  favoured
    domestic prosecution. The Minister did not commit the error of law advanced by
    the applicant.

(2)

S. 7  deprivation of liberty contrary to the
    principles of fundamental justice

[15]

The applicants second argument is that the
    Minister erred in concluding that his surrender in the face of the potential
    sentencing disparity would be a deprivation of liberty contrary to the principles
    of fundamental justice and would thus violate his rights under s. 7 of the
Charter
.

[16]

The applicant is a 51-year-old convention
    refugee from Nigeria, who has lived a productive and pro-social life in Canada
    for 20 years. He is married, with an 11-year-old child. The applicant argues
    that his alleged role in the sweepstakes scam was minor, time-limited, and
    non-violent. It is therefore unconscionable, he argues, that he could face a
    sentence of 24-30 years, particularly given that the sentence range for a
    comparable crime committed in Canada would be 2-3 years.

[17]

The Minister did not characterize the matter in
    the same way. First, with respect to the sentencing disparity, the Minister
    concluded, based on advice from the Public Prosecution Service of Canada and
    the office of the Attorney General of Ontario, that the applicant would likely
    receive a global sentence in Canada between 6 and 8 years. The Minister also
    noted that although U.S. sentencing guidelines indicate a sentence range of
    approximately 24-30 years, that range presumes the imposition of consecutive
    rather than concurrent sentences. However, the Minister was advised by the U.S.
    Department of Justice that the decision to impose consecutive sentences is
    discretionary, and should multiple sentences be imposed they would likely be
    concurrent. Additionally, the Minister noted that the other individuals alleged
    to have been involved in the same criminal enterprise as the applicant were
    sentenced, after entering guilty pleas, to between 8 and 14 years imprisonment.

[18]

Nevertheless, the Minister acknowledged that the
    applicant could receive a sentence far in excess of what he would receive in
    Canada. The Minister noted, however, that in s. 7 analysis sentencing disparity
    is decisive only in exceptional circumstances:
Canada (Justice) v.
    Fischbacher,
2009 SCC 46, [2009] 3 S.C.R. 170. A sentence is not unjust or
    oppressive simply because the applicant would have received a lesser sentence had
    he been prosecuted domestically:
USA v. Ranga
, 2012 BCCA 82, [2012]
    B.C.W.L.D. 5379, at para. 9. As this Court held in
France v. Diab
,
    2014 ONCA 374, 120 O.R. (3d) 174, at para. 202, the test for refusing surrender
    on s. 7 grounds is strict, and only precludes surrender in cases of a very
    exceptional nature where surrender to the requesting state would shock the
    conscience of Canadians and be simply unacceptable (citations omitted).

[19]

The Minister did not accept the applicants
    characterization of his role in the alleged offence as minor, despite the fact
    that he is not alleged to have been the originating or organizing mind behind
    the scheme. The Minister considered the basic principles of the legal system supporting
    surrender: extradition is based on principles of comity and fairness to
    cooperating states; Canada ought not to be a safe haven for fugitives from
    justice; and justice is best served in the jurisdiction where the crime was
    allegedly committed and where the harms of that crime were experienced.

[20]

The applicant asserts that this was not a
    reasonable conclusion, and that allowing the applicant to face a potential sentence
    of 24-30 years would shock the conscience of Canadians. However, the standard
    for setting aside the decision of the Minister as a violation of s. 7 is
    demanding, and it is not satisfied by a sentencing disparity of this nature. As
    this Court held in
United States v. Viscomi
, 2019 ONCA 490, 146 O.R.
    (3d) 145, at para. 46, the determination of whether a potential sentence is so
    severe as to be fundamentally unjust, is not established by a simple
    quantitative comparison of the relative lengths of foreign and domestic
    sentence ranges. And as in
Viscomi
, it is significant that the
    applicant has not identified any case law in which the length of the foreign
    sentence was found to constitute such an extreme punishment that it infringed
    s. 7. I would not allow the application on this ground.

(3)

Extradition Act
,
    s. 44(1)(a) - Unjust or oppressive

[21]

The applicant argues that rejection of the
Charter
arguments is not dispositive of the application because s. 44(1)(a) of the
Extradition
    Act
requires the Minister to refuse surrender where it would be unjust or
    oppressive having regard to all the relevant circumstances, and that
    circumstances that do not amount to a violation of s. 6 or s. 7 of the
Charter
may nevertheless be sufficiently unjust and oppressive to require the Minister
    to refuse surrender under s. 44(1)(a).

[22]

The Minister retains discretion to refuse
    surrender on the basis that it would be unjust and oppressive even where no
Charter
breach is alleged or established:
Fischbacher
, at para. 39. It is therefore
    theoretically possible for circumstances short of a
Charter
violation
    to ground a s. 44(1)(a) refusal, although the applicant was not able to supply
    any examples of a court on judicial review having found so. On this application,
    the applicant has simply repeated the arguments made under s. 6(1) and s. 7 of
    the
Charter
 that the Ministers decision is unreasonable because it
    would be unjust and oppressive to order surrender where an applicant faces a potential
    sentencing disparity of the magnitude faced by this applicant. This is
    essentially an invitation to this court to reweigh the factors considered by
    the Minister and come to a different conclusion. There is no basis for this
    court to do so. This ground of review is not established.

DISPOSITION

[23]

I would dismiss the application for judicial
    review.

Released: January 20, 2022 JCM

B.W.
    Miller J.A.

I
    agree. J.C. MacPherson J.A.

I
    agree. L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Scott v. Forjani, 2022 ONCA 30

DATE: 20220119

DOCKET: C69335

Doherty, Tulloch and Thorburn
    JJ.A.

BETWEEN

George Leslie Scott and Harriet
    Brav-Baum

Plaintiffs/Defendants by Counterclaim

(Respondents in Appeal)

and

Shoreh Forjani a.k.a. Shoren
    Konstantin

Defendant/Plaintiff by Counterclaim

(Appellant in Appeal)

Hossein Niroomand, for the appellant

Gregory Weedon, for the respondents

Heard: January 6, 2022 by
    video conference

On appeal from the judgment of Justice James
    F. Diamond of the Superior Court of Justice, dated March 18, 2021 and reported
    at 2021 ONSC 1996.

REASONS FOR DECISION

[1]

The appellant agreed to purchase the respondents
    property for $1,450,000. Under the terms of the Agreement of Purchase and Sale
    (APS), the transaction would close some 13 months later.

[2]

The appellant eventually refused to close. She
    alleged the respondents had failed to disclose certain latent defects and had
    failed to maintain the property.

[3]

The respondents relisted the property and
    eventually sold it for $1,120,000.

[4]

The respondents sued the appellant for failing
    to close the transaction. They sought:

·

forfeiture of the $72,500 deposit;

·

damages reflecting the difference between the
    price the appellant had agreed to pay ($1,450,000) and the price the
    respondents were eventually able to obtain for the property ($1,120,000); and

·

certain legal expenses.

[5]

The respondents first moved for forfeiture of
    the appellants deposit, claiming the appellant had acted in bad faith when she
    did not close the transaction. Leiper J. held the appellant had breached the
    APS and acted in bad faith. She ordered the deposit forfeited. The appellant
    did not appeal from the order of Leiper J., although it appears she has challenged
    that order in a separate motion that is not before this court.

[6]

After Leiper J. determined the appellant had
    breached the APS, the respondents moved for summary judgment on the issue of damages.
    The respondents argued they were entitled to the difference between the price
    at which the appellant had agreed to purchase the property and the market value
    of the property when the respondents actually sold it. The respondents argued
    that the price at which they sold the property was an accurate reflection of
    its market value. The appellant maintained the respondents had failed to
    demonstrate any damages arising out of the appellants failure to close the
    transaction. The appellant also advanced a counterclaim. That counterclaim was
    not part of the summary judgment motion.

[7]

The motion judge had only one issue before him
    did the respondents establish their damages and, more specifically, had the
    respondents failed to mitigate their damages when they sold the property for
    considerably less than the amount the appellant had agreed to pay for the
    property?

[8]

The motion judges determination of the sole
    issue before him turned on whether the price at which the respondents sold the
    property ($1,120,000) reflected the true value at the time of that sale. The
    appellant tendered affidavits from three experts who provided opinions
    indicating the value of the property was well above the price at which the
    respondents had eventually sold the property. The appellant chose not to lead
    any evidence about the qualifications or experience of those experts.

[9]

The motion judge declined to give the opinions of
    the appellants experts any weight. He held, that without evidence of their experience
    and background, he could not give their opinions any evidentiary value. The
    motion judge went on to consider the rest of the evidence adduced on the
    motion. He concluded, at para. 44:

It is clear from the record that market
    forces, and not anything done or not done by the plaintiffs [respondents],
    dictated the sale price of the property in the fall of 2018. The value of the
    property is typically what a purchaser is willing to pay for it. Poor market
    conditions were responsible for the reduced purchase price in this case. There
    is no evidence to the contrary, and the best and most reliable evidence is what
    actually happened from July to November 2018.

[10]

The motion judge proceeded to grant judgment in
    the amount claimed.

[11]

The appellant submits the motion judge erred in
    law by ruling the affidavits of the experts inadmissible. As I read the
    motion judges reasons, he did not rule the affidavits inadmissible, but rather
    concluded that he could give no weight to those opinions without any evidence setting
    out the experts experience and training.

[12]

Parties are required to put their best
    evidentiary foot forward on summary judgment motions. The appellant failed to
    do so. It was open to the motion judge to conclude the evidence offered by the
    appellant on the issue of the value of the property at the relevant time had no
    probative force. That finding left only the evidence of the respondents, most
    notably the evidence of the actual price at which the property was sold. The
    motion judge made a finding as to the value of the property based primarily on
    that evidence.

[13]

Counsel for the appellant also argued that the
    motion judge erred in drawing an adverse inference from the appellants refusal
    to allow one of her witnesses to answer questions about his expertise and
    qualifications. Counsel submits the appellant was unrepresented when she
    refused to allow the witness to answer the questions and that the trial judge
    should have taken that into account before drawing an adverse inference against
    her.

[14]

The appellant offered the affidavit of the
    expert to support her claim that the respondents sold the property well under
    market value. As a matter of common sense, it is plain and obvious that the
    experts experience and training would be relevant to the weight to be
    assigned to the opinion. The appellant refused to allow the witness to answer
    questions that were obviously relevant to the weight to be attached to the
    opinion offered by that witness. The most obvious explanation for the refusal
    to answer the question is that the answer would not help the appellants claim
    the property was sold under value. The logic of the adverse inference drawn from
    the appellants refusal to allow the witness to answer those questions was not dependent
    on whether the appellant was legally trained.

[15]

The appeal is dismissed. Funds in the amount of
    $308,568.84, presently being held in trust by the Accountant of the Superior
    Court, pursuant to an order of this court, are to be released to counsel for
    the respondents forthwith.

[16]

The respondents are entitled to their costs of
    the appeal in the amount of $15,000, all in. Counsel agree that the $15,000
    attributable to costs is to come from the $308,568.84 held in trust, and is not
    in addition to that amount.

Doherty
    J.A.

M.
    Tulloch J.A.

J.A.
    Thorburn J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. V.N., 2022 ONCA 31

DATE: 20220117

DOCKET: C67766

Paciocco, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

V.N.

Appellant

David Anber, for the appellant

Lisa Joyal, for the respondent

Heard: January 14, 2022 by
    video conference

On appeal from the conviction entered by
    Justice Norman D. Boxall of the Ontario Court of Justice on December 3, 2018.

REASONS FOR DECISION

[1]

On December 3, 2018, Mr. N pleaded guilty to possessing
    and accessing child pornography, and received a sentence of 14 months
    imprisonment, followed by 2 years probation. He now asks this court to set
    aside his guilty plea and the ensuing convictions on the basis that his pleas
    were uninformed. Mr. N claims that at the time his pleas were entered, he was
    unaware of legally relevant collateral consequences that bear on sufficiently
    serious legal interests; specifically, he claims that upon conviction he was
    unaware that he would be subject to an order to comply with the
Sexual
    Offenders Information Registry Act
for life, pursuant to s. 490.013(2.1)
    of the
Criminal Code
, R.S.C. 1985, c. C-46 (SOIRA order), and would be
    ineligible to apply for a criminal record suspension, pursuant to the
Criminal
    Records Act
, R.S.C. 1985, c. C-47. He asserts that had he been aware of
    these collateral consequences, he would not have pleaded guilty.

[2]

At the conclusion of the hearing, we dismissed
    the appeal with reasons to follow. We now provide our reasons.

[3]

We do not need to address the Crowns submission
    that Mr. Ns plea could not be rendered uninformed as the collateral
    consequences he identifies do not bear on sufficiently serious legal interests:
R. v. Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696. Mr. Ns appeal must
    fail because, when the whole of the evidence is considered, he has not presented
    credible evidence establishing a reasonable possibility that he would not have
    pleaded guilty had he been aware of these collateral consequences.

[4]

During cross-examination on his affidavit filed
    in support of this appeal, Mr. N acknowledged that his three very big
    concerns before deciding to plead related to his wish to get home to his
    family as soon as possible, whether any defences were available to him, and his
    wish to receive the lowest possible sentence. The case against Mr. N was
    overwhelming and left no room for defences, and he was so advised by trial
    counsel. His pleas of guilty addressed the remaining concerns. It is unlikely, given
    that his very big concerns were addressed including by the pleas he entered,
    that he would not have pleaded guilty had he been aware of the collateral
    consequences he now identifies.

[5]

Moreover, the duration of the
SOIRA
order came up twice during the sentencing hearing. On both occasions it was
    made clear that the
SOIRA
order would be for life. First, the trial
    judge discussed the issue with counsel at the outset of sentencing submissions.
    At the closing of submissions, Mr. N was asked by the trial judge whether he
    had anything to say. He expressed his remorse but said nothing about the
SOIRA
order that was about to be imposed. Second, the trial judge discussed the
    duration of the
SOIRA
order with counsel when he was about to impose
    the order. At that time, Mr. Ns trial counsel was given the opportunity to
    comment on the order but declined to do so. Had the implication of the
SOIRA
order been material to Mr. N when he entered the pleas, he or his trial counsel
    would have made this known to the court.

[6]

With respect to his ineligibility for a record
    suspension, prior to entering his pleas Mr. N signed written plea instructions
    that recited, I understand that as a result of my plea I will have a criminal
    record. There can be no doubt that if the possibility of a criminal record suspension
    was of importance to Mr. Ns decision to plead guilty, he would have raised it
    at that time, but he did not do so. The first mention of eligibility for a
    record suspension between Mr. N and his trial counsel occurred after he was sentenced,
    notwithstanding that Mr. N. had raised other issues with trial counsel before
    deciding to plead guilty. In all of the circumstances, there is no credible
    basis for finding a reasonable possibility that had Mr. N known he would be
    ineligible to apply for a record suspension, he would not have pleaded guilty.

[7]

In these circumstances Mr. N has not met the
    onus he bears. It is for these reasons that his appeal was dismissed.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.

Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ashkani, 2022 ONCA 34

DATE: 20220119

DOCKET: C66770

Tulloch, Pardu and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shiva Ashkani

Appellant

Shiva Ashkani, in person

Nicole Rivers, for the respondent

Heard: January 11, 2022 by
    video conference

On appeal from the conviction entered on
    December 12, 2017 by Justice A.J. OMarra of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The
appellant, who held herself out as a
    registered nurse, both qualified and physician supervised as a medical
    cosmetician to inject Botox and collagen fillers, was found guilty after trial
    of having committed a number of assaultive offences that resulted in injuries
    to a number of victims. Following a trial by judge alone, she was found guilty
    of fraud under $5000 by misrepresentation, three counts of assault with a
    weapon (a syringe), aggravated assault, assault causing bodily harm, assault,
    and threatening bodily harm. She was sentenced to a total sentence of two years
    less a day with a three-year probation period to follow.

[2]

In her appeal, the appellant claims that her trial counsel provided
    ineffective assistance. She bases this principally on two grounds; first, that
    her counsel failed to respect her wish for a jury trial, and second, that her
    counsel refused to permit her to testify on her own behalf. She also claims
    that her trial counsel failed to take her mental health challenges into
    account.

[3]

We do not accept these submissions.

[4]

In order to succeed on an appeal based on an allegation of ineffective
    assistance of counsel, an appellant must establish the facts upon which the
    allegation is based on a balance of probabilities:
R. v. Archer
(2005), 202
    C.C.C. (3d) 60 (Ont. C.A.) at para. 119. The appellant has not done this with
    respect to either the allegation that her trial counsel ignored her wish to be
    tried by a jury or that he refused to permit her to testify.

[5]

We note that the appellant did initially elect a jury trial but
    re-elected on the day of trial. She provides no details in her affidavit of any
    conversations that support her position. Mr. Mills, on the other hand, states
    in his affidavit that they discussed the matter in advance of the trial and before
    re-election. On cross-examination, Mr. Mills clarified that this discussion
    took place on the morning of trial. He expressed the view in his affidavit that
    a judge alone would be more receptive to the argument that the complainants
    consented to the treatments not because of the appellants representations as
    to her credentials but because of the price charged and the convenience of
    treatment in a non-clinical setting. The appellant was present in the courtroom
    at the time of re-election, did not object to the waiver of the re-reading of
    the indictment and expressed no disagreement with the re-election.

[6]

The appellant also fails to establish the factual basis for her claim
    that her former lawyer refused to permit her to testify. Once again, her
    allegations in this regard are vague and lack specificity, unlike the facts set
    out in Mr. Mills affidavit.

[7]

Mr. Mills explained, on cross-examination, that one of the factors
    leading him to advise her not to take the stand on her own behalf was that
    doing so would open her up to cross-examination on her prior conviction for
    aggravated assault. Second, he was of the view that the appellant had a
    tendency to be disruptive and this would not help her. Third, she was also
    inclined to raise irrelevant issues. Mr. Mills did acknowledge that she was reluctant
    but said that she took his advice and made the decision not to testify. In our
    view, Mr. Mills reasons for advising her not to testify on her own behalf were
    well founded and the appellant has not established that his advice was outside
    the range of professional judgment.

[8]

The appellant also claims that her counsel did not take adequate account
    of her mental health issues. This too is unfounded. Counsel was aware that the
    appellant had mental health challenges, that she was being treated, and that,
    according to a letter from her psychiatrist, was showing improvement. While her
    challenges required patience on his part, his experience was that she did
    understand the process and he had no basis to think that plea of NCR or a
    finding that she was unfit to stand trial would have been available. Indeed,
    assessments conducted between the trial and the sentencing confirmed this.

[9]

The appeal is dismissed.

M. Tulloch J.A.

G. Pardu J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Naccarato
    v. Naccarato, 2022 ONCA 35

DATE: 20220117

DOCKET: C68945

Huscroft, Trotter and Coroza
    JJ.A.

BETWEEN

Kristy Frances Naccarato

Applicant (Respondent)

and

Dino Naccarato

Respondent (Respondent)

Matthew Kersten, for the appellant

Sutherland Law

R. Avery Zeidman, for the respondent Dino
    Naccarato

Annamaria Perruccio, for the respondent
    Kristy Frances Naccarato
[1]

Heard: January 14, 2022 by
    video conference

On appeal from the order of Justice Peter
    A. Douglas of the Superior Court of Justice, dated December 2, 2020, with
    reasons at 2020 ONSC 7442.

REASONS FOR DECISION

[1]

The appellant, a law firm, represented Ms. Kristy
    Frances Naccarato in family law proceedings against the respondent
Mr.
Dino Naccarato. Ms. Naccarato promised
    to pay the appellants solicitor fees from her entitlement to funds from the
    sale of the matrimonial home and she executed an irrevocable Authorization and
    Direction regarding payment. The home was sold. The proceeds of the sale were
    held in trust. After trial, the trial judge concluded that a net amount was
    owed to the respondent Mr. Naccarato, to be paid from Ms. Naccaratos share of
    the proceeds of the sale of the home. The trial judge also ordered Ms.
    Naccarato to pay the respondent Mr. Naccarato $96,230.11 in costs forthwith.

[2]

A dispute then arose regarding entitlement to
    the remaining funds that were being held in trust from the sale of the home. The
    trial judge succinctly described the nature dispute in the following way:

There can be no dispute that the monies
    remaining in trust ($96,230.11), are [Ms. Naccaratos] monies. The issues are
    to whom these monies should be paid and in [satisfaction] of what obligation. [The
    appellant claims entitlement to the funds in satisfaction of its unpaid fees
    owing by [Ms. Naccarato], while [respondent Mr. Naccarato] claims
    entitlement in satisfaction of his ordered entitlement to costs. Payment out
    will diminish [Ms. Naccaratos] obligation to one claimant or the other.

[3]

The appellant then moved for a charging order under s. 34 of the
Solicitors Act
, R.S.O. 1990, c. S.15, and the
    respondent Mr. Naccarato moved for an order amending the trial judges trial
    and costs orders to reflect that he was entitled to secure the costs awarded to
    him against the proceeds being held in trust.

[4]

The trial judge heard both motions. First, he dismissed the appellants
    motion for a charging order, concluding that the appellant did not meet the
    test for a charging order as the appellant was not instrumental in recovering
    or preserving property for Ms. Naccarato. Second, the trial judge found that
    the issue of security for trial costs was before him both at trial and during
    cost submissions, but that through inadvertence, it was not dealt with.
    Pursuant to r. 25(19)(c) of the
Family Law Rules
,
    O. Reg. 114/99, he amended the trial and costs orders to provide that the
    balance remaining after payment be retained in trust pending agreement between
    the parties or order of the court and to provide for the payment of costs to the
    respondent Mr. Naccarato from the monies in trust.

[5]

The appellant raises two issues on appeal.

[6]

First, it argues that the trial judge erred in finding that the
    appellant was not instrumental in the preservation/recovery of Ms.
    Naccaratos entitlement to the remaining net proceeds of the sale of the former
    matrimonial home. We disagree.

[7]

The trial judge referenced s. 34(1) of the
Solicitors
    Act
and identified the correct test. The trial
    judge concluded that the appellant was not instrumental in recovering or
    preserving the funds from the sale of the home because there was never an issue
    regarding ownership of the property; there was no need to recover or preserve
    the property as it was always registered solely in Ms. Naccaratos name. The
    trial judge also found that even if he was wrong on the issue of
    instrumentality he would not have granted the order or lien in the
    circumstances of the case. A s. 34 order is a discretionary order. We see no
    error in the trial judges exercise of his discretion and would dismiss this
    ground of appeal.

[8]

Second, the appellant contends that the trial
    judge erred in his application of r. 25(19)(c) of the
Family Law Rules
because the respondent Mr. Naccarato did not seek such relief before the trial
    judge in any material or pleadings.

[9]

We do not accept the appellants submission.
Rule
    25(19)(c) of the
Family Law Rules

permits a court to change an order that needs to be changed
    to deal with a matter that was before the court but that it did not decide
.

[10]

In
    the present case, the trial judge found that the issue of security for costs
    was before him during the trial and that through obvious inadvertence he did
    not rule on the issue. We see no basis to interfere with these findings. Having
    found that he inadvertently did not deal with the issue that was before the
    court, the trial judges decision to amend pursuant to r. 25(19)(c) was
    appropriate and consistent with the primary objective of the
Family Law Rules
which is to enable the court to deal
    with cases justly. We see no merit to this ground of appeal.

[11]

For
    these reasons, the appeal is dismissed. The respondent Mr. Naccarato is
    entitled to costs in the amount of $8,500 all inclusive.

Grant Huscroft J.A.

Gary Trotter J.A.

S. Coroza J.A.

[1]
Annamaria Perruccio appeared but made no written or oral submissions
    on behalf of the respondent Kristy Frances Naccarato.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Hawryluk, 2022 ONCA 36

DATE: 20220117

DOCKET: C65003

Tulloch, Hourigan and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Hawryluk

Appellant

James Hawryluk, acting in person

Louis Strezos, appearing as duty
    counsel

David Quayat, for the respondent

Heard: November 2, 2021 by video conference

On appeal from the sentence imposed on
    January 23, 2018 by Justice Jane E. Kelly of the Superior Court of Justice,
    sitting with a jury.

REASONS
    FOR DECISION

[1]

On April 23, 2016, officers of the Toronto Police Service executed
    a search warrant at the appellants apartment. Before executing the warrant,
    the police arrested a male coming out of the apartment, who said that he had
    purchased four cannabis pills from the appellant. The police executed the
    warrant and found, among other items, a shotgun and 114 rounds of ammunition.
The appellant was subsequently charged with drugs and firearms
    offences.

[2]

On January 22, 2018, the appellant was acquitted of the firearm
    offences, and one of the drug-related offences. He was found guilty of
    trafficking in marihuana and granted an absolute discharge. The sentencing
    judge also imposed an order under s. 109 of the
Criminal
    Code
, R.S.C. 1985, c. C-46 prohibiting the appellant from
    possessing firearms and made an order forfeiting the shotgun. She also imposed
    a victim fine surcharge of $200 with 24 months to pay.

[3]

The appellant now seeks leave to appeal his
    sentence, and more specifically, the automatic ancillary s. 109(1) prohibition
    order attached to the finding of guilt for trafficking in marijuana, and he
    asks that the ancillary forfeiture order be modified to exclude the firearm.
    The appellant further asks that in the event he cannot possess the firearm,
    that it be transferred to a family member who is legally entitled to possess
    the firearm. And finally, in the alternative, if the appeal is dismissed, that
    it be without prejudice to the appellant to bring an application in the future
    under s. 113(1) of the
Criminal Code
.

[4]

The appellant is Métis and asserts his s. 35 constitutional
    right to hunt for sustenance:
R. v. Powley
, 2003 SCC 43, [2003] 2
    S.C.R. 207. Duty counsel for the appellant argued that the sentencing judge
    erred by failing to consider s. 113(1)(a) of the
Criminal Code
which provides an exemption to prohibition orders where the person subject to
    the order requires a firearm or restricted weapon in order to hunt for
    sustenance. Duty counsel further submits that the matter should be remitted to
    a competent authority to consider whether a s. 113 order should be granted.

[5]

In oral submissions, the appellant explained
    that he wishes to hunt for sustenance when visiting his family who are
    currently living in rural areas in different parts of Canada. The appellant
    also submits that he is considering permanently moving to a rural area in the
    near future and would require the firearm to hunt for sustenance. He further explained
    that the firearm has personal sentimental value and asked to have the firearm transferred
    to a family member in the event he is not permitted to keep it.

[6]

The Crown opposes the request and argues that
    the sentencing judge did not commit any errors in principle that justify this
    courts interference.

[7]

We do not find that the sentencing judge
    committed any errors in principle that warrant appellate interference. A
    sentencing judge is not required to consider s. 113 when imposing a s. 109
    order. There were sufficient reasons to order the forfeiture of the shotgun: as
    pointed out by the Crown, the appellant resides in a city and does not require
    the use of a shotgun at present. The appellant is free to bring an application
    under s. 113 before a competent authority whenever he chooses, and, in our
    view, nothing in the wording of s. 113 suggests that the dismissal of the
    appeal would preclude the appellant from bringing such an application.

[8]

Section 113 reads as follows:

113 (1) Where a person who is or will be a
    person against whom a prohibition order is made establishes to the satisfaction
    of a competent authority that

(a) the person needs a firearm or restricted
    weapon to hunt or trap in order to sustain the person or the persons family,
    or

(b) a prohibition order against the person
    would constitute a virtual prohibition against employment in the only vocation
    open to the person,

the competent authority may, notwithstanding
    that the person is or will be subject to a prohibition order, make an order
    authorizing a chief firearms officer or the Registrar to issue, in accordance
    with such terms and conditions as the competent authority considers
    appropriate, an authorization, a licence or a registration certificate, as the
    case may be, to the person for sustenance or employment purposes.

113 (5) In this section,
competent authority
means the competent
    authority that made or has jurisdiction to make the prohibition order.

[9]

In the present case, the competent authority is
    the Superior Court of Justice. Contrary to duty counsels concerns, nothing
    precludes the appellant from bringing an application seeking an exception under
    s. 113 before a judge of that court.

[10]

Accordingly, leave to appeal sentence is
    granted. The appeal is dismissed on all issues but one. The victim surcharge of
    $200 is set aside, as the relevant statutory provision has been found
    unconstitutional: see
R. v. Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599;
R. v. Stockton
, 2019 ONCA 300.

M.
    Tulloch J.A.

C.W.
    Hourigan J.A.

Harvison
    Young J.A.