WARNING

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

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

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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION: R. v. Woodward, 2011 ONCA 610

DATE: 20110926

DOCKET: C50668

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Epstein JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Thomas Edward Charles Woodward

Appellant

K. Y. Tina Yuen, for the appellant

Kim Crosbie, for the respondent

Heard: July 7, 2011

On appeal from the conviction entered by Justice Sharon M.
          Nicklas of the Ontario Court of Justice on September 29, 2008 and from the
          sentence imposed on December 17, 2008.

Moldaver J.A.:

[1]

Following an eleven-day trial before Nicklas J. of the Ontario Court of
    Justice, the appellant was convicted on September 29, 2008 of the following
    offences:

·

Luring a child under the age of 14 for the purpose of
    facilitating the offence of sexual interference, contrary to s. 172.1(1)(c) of
    the
Criminal Code
.

·

Touching a child under the age of 14 for a sexual purpose,
    contrary to s. 151(a) of the
Criminal Code
.

·

Inviting a child under the age of 14 to touch him for a sexual
    purpose, contrary to s. 152 of the
Criminal Code
.

·

Attempting to obtain, for consideration, the sexual services of a
    person under the age of 18, contrary to s. 212(4) of the
Criminal Code
.

·

Sexual assault, contrary to s. 271 of the
Criminal Code
.

[2]

The Crown proceeded by way of indictment on all the counts. As a result,
    the offences of sexual interference, invitation to sexual touching and sexual
    assault each carried a maximum punishment of ten years imprisonment. The
    offence of luring was punishable by a maximum of five years imprisonment,
[1]
and the offence of attempting to obtain sexual services for consideration
    carried a maximum punishment of two-and-one-half years.
[2]

[3]

On December 17, 2008, the trial judge sentenced the appellant to a
    global sentence of six-and-one-half years, consisting of the following
    individual sentences:

·

Five years for the offence of sexual assault.

·

Four years concurrent for the offence of touching for a sexual
    purpose.

·

Two years concurrent for the offence of invitation to sexual
    touching.

·

12 months concurrent for the offence of attempting to obtain
    sexual services for consideration.

·

18 months consecutive for the offence of luring a child for a
    sexual purpose.

[4]

All the sentences imposed on the appellant were made consecutive to a
    sentence he was then serving for unrelated crimes. The trial judge also made
    several incidental orders under various sections of the
Criminal Code
,
    which I need not address since they have not been raised on appeal.

[5]

The appellant appeals against conviction solely in relation to the
    offence of luring. He also appeals from the six-and-one-half year global
    sentence he received. For the reasons that follow, I would dismiss both his
    appeal against conviction and his appeal against sentence.

OVERVIEW OF FACTS

[6]

The basic facts are not in dispute. In September
    2006, the complainant was 12 years old and lived with her parents. She had a
    cellular telephone through which she could access the internet using a mobile
    browser.  One mobile website she accessed was known as Airdate. Among other
    features, the Airdate site provided the complainant with access to various chat
    rooms, as well as to a private inbox where messages could be received without
    being visible to other users of the site.

[7]

In late August or early September 2006, the
    complainant received a message in her private inbox. The source turned out to
    be the appellant, who was then aged 30. He wanted to know if the complainant
    would sleep with him in exchange for $57 million. The complainant did not
    reply. Soon after, she received another similar message from the appellant, in
    which he identified himself by a fictitious name and pretended to be much
    younger (between 18 and 20 years of age) than he was. He asked the complainant
    to send him a text message if she changed her mind about sleeping with him.

[8]

The complainant became curious and sent a text
    message to the phone number the appellant had provided.  And so began a series
    of text messages back and forth, numbering in the hundreds, that culminated in
    a meeting between the appellant and the complainant several days later.

[9]

In the course of trading text messages, the
    appellant gained the complainants trust by letting her discuss her personal
    life and her friends at school. He also talked to her about sex acts he wanted
    to perform with her. For example, he wanted to know if she had ever performed
    oral and he asked her to give him oral. She agreed to do so. He also talked
    about performing oral sex on her, which she did not fully understand. Finally,
    he wanted to take her virginity. The complainant informed the appellant that
    she was only 12 years old (she had initially led him to believe that she was
    14). The appellant told the complainant that her age did not really matter. He
    said that he was experienced and that he knew how to do that really good so
    that she would have a good time for her first time.

[10]

Throughout their text messaging, the appellant
    kept increasing the sum of money he was prepared to pay the complainant if she
    would meet with him and have sex. According to the complainant, the sum went
    from $57 million to $100 million, and then to $200 million. In her mind, the
    appellant was raising the amount to kind of convince her to go and meet him. She
    initially did not believe that he had that kind of money. However, she listened
    in on a three-way conversation and heard a message, purportedly from someone at
    the Bank of Montreal, indicating that the appellant had $300 million in his
    account. This caused the complainant to change her mind about the appellants
    financial status. It also influenced her decision to meet with him, as her
    family was experiencing serious financial problems at the time.

[11]

With the promise that she would be paid a large
    sum of money, the complainant agreed to meet the appellant on a particular day
    after school at a predetermined location. Upon her arrival, the appellant led the
    complainant to an industrial area near some railway tracks. He then used his
    cell phone to call the Bank of Montreal. With the complainant listening, he
    made it appear as though he were transferring millions of dollars into an
    account in her name. In fact, he had contacted a recorded voice-message that the
    bank had installed to teach customers how to use the banks automated telephone
    banking system.

[12]

Having convinced the complainant that he had
    transferred a large sum of money to her, the appellant initiated sexual acts
    with her. He put her hand on his penis and had her move it up and down. He then
    had her perform fellatio on him and he touched her genitals. He next told her
    to bend over and from behind, he put his penis in her vagina and had sexual
    intercourse with her. Afterwards, he had her perform fellatio on him a second
    time.

[13]

In the days that followed, the complainant went
    to the Bank of Montreal, only to discover there was no bank account in her
    name. She did not tell anyone about the incident for the next six months. A
    discussion in her health education class about sexual abuse and harassment prompted
    her to disclose the incident. Her teacher told the class that sexual abuse was
    not the fault of the child. With that information, the complainant went home
    and told her mother about the incident with the appellant. The police were
    contacted and the appellant was eventually arrested and charged with the five
    offences for which he now stands convicted.

[14]

The appellant did not testify at trial. However,
    upon his arrest, he provided a statement to the police in which he denied
    knowing the complainant and maintained that she had mistakenly identified him
    as her assailant. That statement was led at trial through the investigating
    officer.

[15]

The trial judge rejected the appellants denial
     and with good cause. The evidence implicating him as the assailant was
    overwhelming. I do not propose to review it. The trial judge did so in great
    detail and the appellant does not challenge her findings on the issue of
    identification.

[16]

Against that backdrop, I turn to the conviction
    appeal which, as indicated, relates solely to the offence of luring.

I.

CONVICTION APPEAL

[17]

The provision that creates the offence of luring
    a child is found in s. 172.1 of the
Criminal Code.
It was enacted by the
Criminal Law Amendment Act
, 2001, S.C. 2002, c. 13 and came into force
    on July 23, 2002. Section 172.1 was amended in 2008, after the charges against
    the appellant were laid. During the period when the appellant was charged and
    convicted, s. 172.1(1)(c) stated:

172.1(1) Every person commits an
    offence who, by means of a computer system within the meaning of subsection
    342.1(2), communicates with

(c) a person who is, or who the
    accused believes is, under the age of fourteen years, for the purpose of
    facilitating the commission of an offence under section 151 and 152, subsection
    160(3) or 173(2) or section 281 with respect to that person.
[3]

[18]

The introductory words of the provision indicate
    that it is designed to capture people who communicate by means of a computer
    system within the meaning of

subsection 342.1(2) of the
Criminal
    Code
. The definition of a computer system and other relevant definitions
    in s. 342.1(2) are set out below:

computer system means a device
    that, or a group of interconnected or related devices one or more of which,

(a)

contains
    computer programs or other data, and

(b)

pursuant
    to computer programs,

(i)  performs logic
    and control, and

(ii) may perform any
    other function;

computer program means data
    representing instructions or statements that, when executed in a computer system,
    causes the computer system to perform a function;

data means representations of
    information or of concepts that are being prepared or have been prepared in a
    form suitable for use in a computer system;

function includes logic, control, arithmetic, deletion, storage
    and retrieval and communication or

telecommunication
    to, from or within a computer system;

[19]

In order to convict someone of an offence under
    s. 172.1(1), the communication in question must be through a means that
    satisfies the definition of computer system in s. 342.1(2). The
    appellant argues that text messaging via cellular telephones does not satisfy the
actus reus
of communicating by means of a computer system within the
    meaning of s. 342.1(2).
[4]

[20]

In making this argument, the appellant accepts
    that Parliaments objective in enacting s. 172.1(1) may well be advanced by a
    definition of computer system that captures text messaging. However, he
    maintains that the specific wording used in the
Criminal Code
to define
    the term computer system and other related terms is not broad enough to apply
    to text messaging. Alternatively, he submits that if the wording of s. 342.1(2)
    does capture text messaging, the evidence led by the Crown in this case did not
    satisfy certain key elements of the definition.  For reasons that follow, I
    would not give effect to these arguments.

[21]

At trial, the Crown called two witnesses who
    gave evidence on this issue. First, Sergeant Eugene Silva, a six-year veteran
    with the Waterloo Regional Police Technological Crime Unit, testified about
    cellular phones and explained that they are effectively self-contained computer
    systems that come within the definition of computer system in
    s. 342.1(2) of the
Criminal Code
.

[22]

Second, the Crown called Mr. Robert Vanderklugt,
    a Corporate Security Manager at Bell Canada, who testified about the mechanics
    of text messaging and explained how
text messages are transmitted through
    Bell Canadas internal cellular telephone network. Unlike Sergeant Silva, whose
    evidence was directed at showing that cellular phones are self-contained
    devices that meet the first part of the definition of computer system in
    s. 342.1(2) of the
Criminal Code,
Mr. Vanderklugts testimony
    focused on the second element of the definition of computer system in s.
    342.1(2). His evidence was to the effect that text messaging using cellular
    phones involves a group of interconnected devices, one or more of which
    contains computer programs, and that these computer programs perform logic and
    control functions in transmitting text messages.

[23]

For reasons that will become apparent, I find it
    unnecessary to decide whether cellular phones constitute self-contained
    computer systems as Sergeant Silva testified and thus I do not propose to
    review his evidence further. I am satisfied on this record that
    Mr. Vanderklugts evidence answers the appellants arguments.

[24]

The appellant complained in his factum that there
    was no evidence at trial of any control performed by a cell phone as required
    by subparagraph (b)(i) [of the definition of computer system under s.
    342.1(2)]. Nor was there any evidence to even establish what is meant by the
    term control. In oral argument, the appellant raised for the first time the
    additional complaint that Mr. Vanderklugt did not adequately explain the term logic
    in subparagraph (b)(i) of s. 342.1(2) and did not relate that term to Bell
    Canadas internal cellular telephone network.

[25]

I am satisfied that Mr. Vanderklugts evidence
    addresses the issues of logic and control and provides a basis for
    concluding that text messaging using cellular phones is captured by the second
    part of the definition of computer system under s. 342.1(2) of the
Criminal
    Code
. I am further of the view that there was a sufficient evidentiary
    basis for the trial judge to find that the key elements of the definition had
    been met.

[26]

Mr. Vanderklugt explained that the concept and
    mechanics of text messaging are virtually the same as the concept and mechanics
    of telephone calls made from a cellular phone. With respect to the latter, when
    he was asked what happens when a person presses numbers into a cellular phone
    and hit[s] talk, Mr. Vanderklugt gave the following evidence:

Q.        All right. So if I press
    numbers into my cell phone and hit talk and I want to talk to somebody

A.        Yes?

Q.         whats actually
    happening at that point?

A.        Youre going from your
    cell phone to the cell tower which is like an antennae and then from there,
    youre routing through a network to the home switch of the cellular phone which
    is like a computer system.

Q.        The computer system,
    where is that located? In the tower?

A.        No, its not in the
    tower. Its at a location, we call them central offices.

Q.        Okay.

A.        In Ontario, theres four
    locations for these central offices and in these four, four different
    locations, theres, theres one in Cambridge, theres one in Scarborough, one
    in Etobicoke and in Ottawa. And thats where the programming for all the cell
    phones are. So it goes from the cell phone to the antennae or tower and from
    there, its going through a network to the switch, the telephone switch, which
    is like a computer, like I said.

Q.        And then from the
    switch, where does it go?

A.        It depends on the type
    of call thats made. [It] all goes through software and translations and makes
    the connection with whatever phone number was dialed.

Q.        All right. And at those
    four stations youve indicated, youve talked about computer programs.

A.        Mmmhmm.

Q.        Is
    that, is that what determines where the calls end up going then, those
    programs?

A.

Yes.

Q.        Now
    lets say Im phoning my son who has his cell phone with him. You talked about
    it going to a tower. That stays the same, is that correct?

A.        Correct.

Q.        And
    does it still go to one of those four central locations that you talked about?

A.        Yes.

Q.        Then
    what happens if Im calling a cell phone?

A.        It
    goes through translations of the, of your home switch, your cellular phone
    number. That switch, it, it determines where it has to route through, through
    software to your sons cell phone. And through there, its going to the switch
    associated to your sons cell phone through trunking to the tower closest to
    where your son would be.

Q.        So
    it finds the tower closest to where that phone is actually at?

A.        Correct.

[27]

Mr. Vanderklugt was then asked about text messaging
    using cellular phones.  He explained that text messages travel in essentially
    the same way as phone calls, although they travel over a data network which is
    different than a voice network. He confirmed that, as with telephone calls, it
    is computer programs that run the data network and direct where texts go. As
    for the control and logic functions referred to in subparagraph (b)(i) of
    the definition of computer system under s. 342.1(2), Mr. Vanderklugt provided
    the following evidence-in-chief:

Q.        Lastly, sir, you talked
    about computer programs utilized in routing calls, correct?

A.

Correct, I did, yes.

Q.        And
    if Im correct, those arent actually at the towers, the computer programs, but
    eventually from the tower goes to a central site where the computer programs
    take care of

A.        Thats
    correct.

Q.        Those
    computer programs then
control
the flow of these calls, is that correct?

A.        Thats
    correct.

Q.        And
    does it, do they
perform logic functions in doing so
?

A.
They
    do, yes
.

THE
    COURT: Logic functions?

[Crown
    counsel]:      Yes.

Q.        And
    what do you
mean by a logic function? Can you give us an example
?

A.        It

all the software is, is  there, theres checks and balances and, and all
    the routing is, is checked all the time and, and updated and upgraded as required
.

Q.        But
    can you give us a, a simple example of what you mean by a logic function? Or
    are you able to at all?

A.        No,
    no, I suppose Im not, no. [Emphasis added.]

[28]

In cross-examination, defence counsel (not counsel on appeal) returned
    to the control and logic functions associated with the computer programs
    used in Bell Canadas internal cellular telephone network. Mr.
Vanderklugt provided the following evidence in response to a series
    of questions related to these functions:

Q.        Now, I just want to go back to see if you
    can help me understand. I didnt know what the Crown was trying to get at, but
    he talked about the computer or computer programs at different locations. And
    you said that they control the flow of calls. Do you remember him asking you about
    that near

A.        Yes, I do, yes.

Q.         the end? Now the computers that were
    talking about, are these the computers that are located in the larger switch
    locations?

A.        Thats correct.

Q.        All right. And for simplicity, is it
    those switch locations that actually flows the control of where calls and text
    messaging goes?

A.        The, the main computer, yes.

Q.        Okay.

A.        Yeah.

Q.        And when he was talking about  but when
    you said performing logic functions, does that mean its computing codes and
    things like that?

A.        I, I took him to mean that and I couldnt
    give him an example of that. But logic to me is, is the path, you know, the,
    the network. But I, I cant say that thats the

Q.        All right.

A.         the true definition, but thats what it
    means to me.

[29]

During oral argument, we referred counsel to the passages from Mr.
    Vanderklugts evidence relating to the issue of the control function
    performed by the computer programs that transmit the data contained in the text
    messages between cellular phones. Counsel for the appellant acknowledged that
    this evidence addressed the control function and she did not pursue that
    issue. She did, however, argue for the first time that Mr.
Vanderklugts
    evidence in relation to the logic function should be viewed as worthless and
    given no weight because he could not give a simple example of what he meant by
    the logic function. Counsel argued that his inability to do so underscores
    his lack of knowledge and understanding of computer programs in general and the
    computer programs at Bells larger switch stations in particular.

[30]

I would not give effect to this submission. In chief, Mr.
Vanderklugt explained that the logic function in the main
    computers was all the software that provides checks and balances and is
    responsible for checking all the routing of cellular calls and text messages. While
    Mr. Vanderklugts evidence may not have been particularly helpful in giving a
    specific example of what is meant by a logic function, it is beyond controversy
    that all computer software programs follow basic logic functions. It was not
    necessary for Mr. Vanderklugt to give a specific example of a logic function. The
    fact that the voluminous text messages in this case were successfully sent and
    received by their intended recipient is evidence that the computer programs
    used in the routing process performed logic and control functions in the
    sense meant by s. 342.1(2)(b)(i).

As Mr.
    Vanderklugts evidence indicated,
t
he computer programs
    used by Bell controlled the routing of the text messages through logic
    functions and processes programmed into the relevant software.

[31]

In closing on this issue, I note that Parliament has
    now made two attempts to change the highly technical definition of computer
    system that currently appears in the
Criminal Code
: one through Bill
    C-46 and the other through Bill C-54.
[5]
Both bills contemplated changing the term computer system to by means of
    telecommunications. However, the two bills died on the order table. It remains
    for Parliament to decide whether the proposed amendment should be pursued.

II.

SENTENCE APPEAL

[32]

The appellant seeks a substantial reduction in the
    six-and-one-half-year sentence he received. At trial, he submitted that the
    appropriate range of sentence was two to three years. His counsel sought a sentence
    at the lower end of that range and suggested that a portion of it could be
    served as a conditional sentence. The appellant maintains that position on
    appeal.

[33]

In support of the contention that his sentence
    should not have exceeded two years, the appellant submits that the trial judge
    made several specific errors in her sentencing
analysis. He also argues that the total
    sentence of six-and-one-half years manifestly exceeds the range of sentences
    that other courts, including this court, have imposed on offenders who have
    committed similar offences.

[34]

For reasons that follow, while I am prepared to
    accept that the trial judge may have made one error in her sentencing analysis,
    I would not interfere with the global sentence she imposed. In my view, having
    regard to the appellants background and character and the nature and gravity
    of his crimes, a mid- to upper-level single digit penitentiary term was called
    for and the sentence imposed by the trial judge fell within that range.

[35]

I propose to first address the appellants
    specific concerns and then turn to his overriding complaint that the global
    sentence he received is manifestly excessive.

1.         SPECIFIC ERRORS

i)

The trial judge did not apply the correct
    sentencing principles

[36]

The appellant submits that the trial judge erred
    in applying the sentencing principles and guidelines identified by this court
    in
R. v. D.D.
(2002), 163 C.C.C. (3d) 471. He also submits that she
    erred in using
R. v. Deck
(2006), 208 C.C.C. (3d) 341 (Alta. C.A.) as a
    reference point because it is not instructive in Ontario particularly when
    there is ample authority in Ontario that is inconsistent with the approach
    adopted in Alberta.

[37]

The appellant submits that in applying the
    principles of
D.D.
to his case, the trial judge failed to recognize that
D.D.
involved an offender who violated numerous young boys on a regular
    basis over a lengthy period of time, whereas his case involved a single
    isolated incident of sexual abuse.

[38]

The trial judge made no such error in my view.
    She fully appreciated that the appellants overt sexual misconduct towards the
    complainant occurred on only one occasion and twice commented on that factor in
    her reasons for sentence.

[39]

To the extent that the trial judge relied on
D.D.
,
    she simply extracted from it the principles of sentencing that this court has
    said should apply to adult sexual predators who exploit innocent children.
    These principles include that the sentencing objectives of denunciation,
    general and specific deterrence and the need to separate offenders from society
    must take precedence over the other recognized objectives of sentencing (
D.D.
at para. 34).  As I shall explain further when I discuss the
    appropriateness of the global sentence in this case, the trial judge was
    correct in concluding that these principles apply with equal force to the case
    at hand.

[40]

The appellants second complaint regarding the
    alleged misapplication of
D.D.
is that the trial judge erred in finding
    that a trust relationship existed between him and the complainant for sentencing
    purposes. In this regard, the appellant points out that, unlike the situation
    in
D.D
., he did not occupy a position of authority towards the
    complainant, nor was she entrusted to his care or dependent on him in any way.

[41]

I would reject this submission. In using the
    term trust to describe the relationship in this case, I do not agree that
    trial judge had in mind the traditional trust relationship as described in
D.D
.
    The trial judge fully understood that the relationship between the appellant
    and the complainant was not the classic position of trust situation. In her
    reasons, after quoting a passage from
D.D.
in which the court referred
    to the abuse of children by adult offenders in a position of trust, the trial
    judge stated:

In reviewing that paragraph, I am
    mindful of the fact that this is not a traditional relationship of trust as is
    found in so many cases. At the same time, [the complainant] did come to trust
    Mr. Woodward in light of the frequency of their cyber contact.

[42]

Rather, in using the word trust, the trial
    judge was referring to the grooming techniques the appellant used to gain the
    complainants trust. This is the type of trust that Fish J., writing for the
    court, discussed in
R. v. Legare
(2009), 249 C.C.C. (3d) 129 (S.C.C.),
    at paras. 29 and 30:

But those who use their computers
    to lure children for sexual purposes
often groom them online by first
    gaining their trust through conversations about their home life, their personal
    interests or other innocuous topics
.

As Hill J. explained in
R. v.
    Pengelley
, [2009] O.J. No. 1682 (QL) (S.C.J.), at para. 96:

computer communications may
    serve
to sexualize or groom or trick a child toward being receptive to a
    sexual encounter,
to cultivate a relationship of trust
, or to undertake
    a process of relinquishing inhibitions, all with a view to advancing a plan or
    desire to physical sexual exploitation of a young person. [Emphasis added.]

[43]

Treating the appellants efforts at gaining the
    complainants trust through grooming as an aggravating feature finds support in
    this courts decision in
R. v. F.(G.C.)
(2004), 188 C.C.C. (3d) 68,
    which treated grooming as an aggravating feature in a sexual assault case.  In
    my view, grooming also properly constitutes an aggravating feature in the
    offence of luring and the trial judge did not err in treating it as such.

[44]

Finally, I see no merit in the appellants
    submission that the trial judge erred in considering
Deck
. The facts in
    that case are similar to the facts in the present case, although by no means
    identical. Deck received a total sentence of seven years imprisonment for
    luring a 13-year-old child, who was of below average intelligence, to have sex
    with him and then proceeding to have intercourse with her on three separate
    occasions. Unlike the appellant, Deck pleaded guilty to the offence of luring
    and to the offence of sexual interference with a person under the age of 14
    years, contrary to s. 151 of the
Criminal Code
. By pleading guilty, he
    spared the child from having to relive the events and from undergoing
    cross-examination designed to undermine her testimony.

[45]

The trial judge in the present case recognized
    that the Alberta Court [of Appeal] has taken a different stance with regard to
    starting points in relation to sexual offences than has been taken in Ontario.
    Be that as it may, the overriding principles of sentencing endorsed by the
    court in
Deck
for adult sexual predators who exploit innocent children
    are very much in line with the principles this court enunciated in
D.D.
The trial judge was entitled to consider those principles and she did not err
    in doing so.

ii)

The trial judge double counted the luring
    conduct

[46]

The trial judge sentenced the appellant to a
    consecutive sentence of 18 months imprisonment for the offence of luring. The
    appellant acknowledges that it was open to the trial judge to impose a
    consecutive sentence for that charge. Having done so, however, he maintains
    that she was not entitled to use the same conduct, and particularly the
    grooming aspect of it, as an aggravating feature on both the luring and sexual
    assault charges.  According to the appellant, if the trial judge increased the
    sentences on both counts based on the aggravating feature of the grooming
    aspect surrounding the offence of luring, that would amount to impermissible
    double counting.

[47]

In support of this argument, the appellant
    relies on two passages from the trial judges reasons, both of which are
    contained in a list of aggravating features identified by the trial judge:

It is aggravating further that
    this offence occurred through the use of luring over the internet. Mr. Woodward
    contacted the complainant from hundreds of kilometers away  He then travelled
    to [name of location omitted to protect complainants identity] where he
    committed the offences He was able to do so through the use of the internet
    without the watchful eyes of [the complainants] parents being aware of
    anything that was going on.

I also consider the number of
    communications between Mr. Woodward and the complainant. I have
    highlighted the frequency of contact leading up to the allegations and that
    there was some communication thereafter. I find this very troubling the degree
    to which Mr. Woodward was contacting this complainant. What is aggravating is
    that there is a predatory aspect to the manner in which he initiated and
    maintained intensive contact with the complainant leading up to the offences.
    She developed a virtual relationship with him, such that she ultimately was in
    a relationship with him where she trusted him with her secrets.

[48]

I cannot be certain from reading the trial
    judges reasons that she did not use the appellants efforts at grooming the
    complainant to increase his punishment on both the luring offence and the
    sexual assault offence.  Assuming she did engage in impermissible double counting,
    I consider the error to be harmless in the circumstances. At most, it would
    have warranted a slight reduction in sentence on either the luring count or the
    sexual assault count. Overall, as I shall explain, the global sentence of
    six-and-one-half years was within the appropriate sentencing range and I would
    not disturb it.

iii)

The trial judge erred in treating the
    appellants prior convictions for fraud as an aggravating feature

[49]

The appellant was 30 years old when he committed
    the offences against the complainant. This was by no means his first encounter
    with the criminal justice system. Since the age of 15, he has been in trouble
    with the law on a regular and persistent basis. Before the offences in issue,
    he had amassed a criminal record consisting of over 40 prior convictions. Most
    of his convictions are for crimes of dishonesty and include several dozen
    offences for fraud, theft, and possession of stolen property.  In short, the
    appellants entire adult life has been marked by criminal deceit and duplicity.

[50]

It is against the backdrop of this history of
    criminality that the trial judge treated the appellants record for fraudulent
    conduct as an aggravating feature. The impugned passage from her reasons reads
    as follows:

Another aggravating feature is
    that Mr. Woodward has a record for fraudulent conduct. Although there are no
    prior sex offences on his record, which is a mitigating feature in relation to
    his personal situation, I find at the same time that one could view the
    offences before the court as a very cunning fraud of a magnitude not previously
    founded in a conviction that has been registered against him. The
    communications between he and the complainant involved sexual dialogue about
    sexual activity. He was seductive and exploited [the complainant] and he took
    advantage of her being so naïve.

[51]

The appellant takes issue with that passage. He
    claims that it was wrong for the trial judge to compare the calculated deceit
    required to perpetrate a money fraud with the social acumen required to engage
    someone in sexually explicit conversation. He further submits that the use of
    such a tenuous comparison cannot trigger the rationale for imposing harsher
    penalties upon a defendant who has prior convictions for the same or similar
    misconduct.

[52]

I am satisfied that the trial judge was entitled
    to consider the appellants previous duplicitous conduct as an aggravating
    feature in his crimes against the complainant. The same type of conduct that
    led to his many previous convictions played a central role in the crimes he
    committed against the 12-year-old complainant. Not only did he mislead her as
    to his name and age, he also led her to believe that he would make her very
    rich if she engaged in sexual conduct with him. To that end, he concocted an
    elaborate story about having received a huge inheritance from a family member
    in Russia before he immigrated to Canada. To prove the extent of his enormous
    wealth and to convince the complainant that he was not misleading her about it,
    he had the complainant listen to a call to the bank wherein he purported to
    transfer millions of dollars into an account earmarked for her. Of course, the
    call was a misleading ruse.  In addition to showing him to be morally bankrupt
    and a man of no scruples, the underlying misconduct for which the appellant was
    sentenced in this case was properly treated by the trial judge as misconduct with
    similar characteristics to that which had led to his prior convictions.

2.         IS THE GLOBAL SENTENCE MANIFESTLY EXCESSIVE?

[53]

The appellant submits that the six-and-one-half
    year sentence he received manifestly exceeds the range of reasonableness for a
    one-time isolated incident with no overt threats or violence and no abuse of
    trust or authority.  He points to a number of authorities, including some from
    this court, involving offenders who engaged in online sexually explicit
    conversations with undercover police officers posing as children under the age
    of 14. In some of those cases, the conduct went beyond sexually explicit
    conversations and involved the transmission of sexually explicit images and/or
    sexually explicit acts. See
R. v. El-Jamel
, 2010 ONCA 575;
R. v.
    Alicandro
(2009), 95 O.R. (3d) 173 (C.A.);
R. v. Jarvis
(2006), 211
    C.C.C. (3d) 20 (C.A.);
R. v. Folino
(2005), 77 O.R. (3d) 641 (C.A.);
R.
    v. Jepson
, [2004] O.J. No. 5521 (S.C.).  In those cases, the sentences
    imposed at trial and/or on appeal to this court range from 45 days plus
    probation to sentences of 12 to 15 months plus probation.

[54]

With the exception of this courts decision in
Jarvis
,
    I do not propose to detail the facts and circumstances of the other cases
    cited.
Jarvis
is worth mentioning because it has been interpreted as
    holding that the appropriate range of sentence for the offence of luring is 12
    months to two years. That stems from a comment found at para. 31 of the
    decision, where Rosenberg J.A., for the court, made the observation that the
decisions
    of trial courts that were placed before us suggest that the range of sentence
    for this offence [luring] generally lies between twelve months and two years.

[55]

The facts of
Jarvis
may be stated
    briefly. Jarvis pleaded guilty to luring a child over the internet. He was a
    22-year-old first offender. He had seven communications with an undercover
    officer whom he believed to be a 13-year-old girl. In the course of his
    communications with the officer, he engaged in sexually explicit discussions
    and forwarded two photographs of his penis to the undercover officer. Jarvis
    pressed the undercover officer to meet in person and the officer agreed to do
    so. Jarvis was arrested when he arrived at the designated meeting point. He was
    not wearing underwear and he had brought a condom.

[56]

At trial, Jarvis entered a plea of guilty to the
    charge of luring a child he believed to be under the age of 14, contrary to s.
    172.1(1)(c) (as it then read). He received a sentence of six months
    imprisonment and three years probation. Both he and the Crown appealed that
    sentence and this court dismissed the appeals.

[57]

Two comments about
Jarvis
are in order.
    First, I am not at all persuaded that Rosenberg J.A. was purporting to set the
    range of sentence for the offence of luring at 12 months to two years.
    Rosenberg J.A.s reasons do not focus on the range of sentence for the offence
    of luring. Rather, they are concerned primarily with a discussion about certain
    evidence that the Crown sought to introduce at trial and additional evidence
    that it proposed to introduce as fresh evidence on appeal primarily for the purpose
    of establishing that children frequently use the internet and are vulnerable to
    being exposed to sexual content and sexual invitations. The evidence in dispute
    involved information obtained from a survey of children, 99% of whom reported
    that they used the internet to some extent.  Many of the children surveyed
    reported that in their internet use they had received pornography on numerous
    occasions, had been exposed to unwanted sexual comments, and had been asked to
    meet in person the individual with whom they were chatting. None of the
    impugned evidence was admitted on appeal.

[58]

Even if
Jarvis
did purport to set a range
    of 12 to 24 months for the offence of luring, that range needs to be revised
    given the 2007 amendment in which Parliament doubled the maximum punishment
    from 5 years to 10 years. Moreover, if it is shown through the introduction of
    properly-tendered evidence that the offence of luring has become a pervasive social
    problem, I believe that much stiffer sentences, in the range of three to five
    years, might well be warranted to deter, denounce and separate from society
    adult predators who would commit this insidious crime.

[59]

One need only consider the facts of this case to
    appreciate the dangers and disturbing features of the crime of luring and the grave
    consequences that may flow from it    here, a face-to-face meeting between a
    30-year-old predator and a 12-year-old child, resulting in the sexual assault
    of the child. Fortunately, the appellant did not inflict further harm on the complainant
    after the sexual assault. That, perhaps, is the one positive thing that can be
    said about him. But the offence of luring carries very real dangers  innocent
    children being seduced and sexually assaulted or even worse, kidnapped,
    sexually abused and possibly killed.

[60]

The appellant seeks to support his position that
    the six-and-one-half year sentence is manifestly excessive by relying primarily
    on this courts decision in
R. v. Robinson,
2002 CanLII 44969, 159 OAC
    286 (Ont. C.A.).  Robinson was convicted of sexual assault and a related charge
    of sexual touching. He received a one-year custodial sentence and two years
    probation. On appeal, he challenged both his conviction and sentence.

[61]

The facts in
Robinson
are set out at
    paras. 2 and 3 of the decision as follows:

The appellant and the complainant met on a chat
    line.  The appellant was 42 years old and was a school teacher.  The
    complainant was a 13 year old grade 8 student.  On the chat line, the appellant
    pretended to be a seventeen year old high school football player.

The complainant testified that she eventually met
    the appellant in person in the fall of 1997 and saw him on several occasions
    between November 1997 and the end of March 1998. According to her, they had
    sexual intercourse at various places on several occasions over that time
    period.

[62]

In his testimony at trial, Robinson denied engaging in any kind of
    sexual activity with the complainant. By its verdict, the jury obviously
    rejected his evidence. This court found no merit in Robinsons appeal from
    conviction.

[63]

In appealing his one-year sentence, Robinson argued that the trial judge
    was wrong in concluding that a conditional sentence was not warranted in the
    circumstances. This court rejected the appellants argument. In doing so, the
    court held at para. 19 that even if the trial judge erred as alleged, a
    conditional sentence was not appropriate:

This offence involved repeated sexual intercourse
    with a thirteen year old child by a school teacher.  While there was no
    position of trust as between the complainant and the appellant, the appellant
    more than most people must understand the harm done to children by the kind of
    sexual conduct in which he engaged.  There is also a predatory aspect to the
    manner in which the appellant initiated and maintained intensive contact with
    the complainant.  A non-custodial sentence would have been inappropriate in the
    circumstances of this case.
Considering the nature of the offence and the
    mitigating factors relating to the appellant, we think the sentence imposed was
    well within the appropriate range
.  [Emphasis added.]

[64]

The appellant points to the final sentence of that passage  that the
    one-year sentence imposed on
Robinson
was well within the appropriate
    range  in support of his position that the sentence he received is manifestly
    excessive.

[65]

The appellant also relies on Blouin J.s decision in
R. v.
    Lithgow
, [2007] O.J. No. 4448 (C.J.).  Lithgow pleaded guilty to sexual
    exploitation under s. 153(1) of the
Criminal Code
and luring under
    s. 172.1(1)(a) of the
Criminal Code
. The facts in
Lithgow
are set
    out at paras. 2 to 4 of the decision:

The complainant was 14 and 15 during
    the grades 9 and 10 years that Mr. Lithgow, then in his early fifties, was her
    teacher.  During those two years they e-mailed and chatted using a
    computer.  The discussion became increasingly more sexual in nature and
    developed into visits at lunch where touching occurred.  Mr. Lithgow told
    the complainant that he loved her.

When the complainant was in Grade 11,
    Mr. Lithgow was no longer her teacher but continued in a position of trust
    acting as her math tutor.  They continued contact by electronic means,
    which ultimately lead to oral sex and then unprotected intercourse on 25 to 30
    occasions.  He supplied alcohol and made her promise not to tell
    anyone.  Except for the law, which prohibits consent under 18 in these
    situations, there was no indication of any lack of consent.

Eventually the complainant told her
    mother and the police were called.  Mr. Lithgow, to his credit, gave an
    inculpatory statement to the police and made no attempt to get bail.  When
    his wife found out, she ordered him out of the house.

[66]

The reasons for sentence disclose that Lithgow had
    a record for uttering threats and breach of probation which post-dated the
    commission of the offences for which he was being sentenced. According to the
    pre-sentence report filed with the court, Lithgow had a history of anxiety,
    depression and suicidal ideation culminating in a diagnosis of major mood
    disorder. He was in need of mental health intervention and was motivated to
    receive mental health assistance while in custody and upon release. In the
    opinion of his probation officer, Lithgow did not pose an imminent risk to the
    greater community. At the time of sentencing, Lithgow had been in pre-trial
    custody for approximately five months.

[67]

In the circumstances, the Crown sought a sentence
    of two years less a day minus the time Lithgow had spent in pre-trial custody.
    The defence essentially requested that he be given a conditional sentence,
    taking into account the time he had already served in pre-trial custody.

[68]

Blouin J. provided thorough reasons for sentence.
    At paras. 16 and 17, he set out the aggravating and mitigating factors of the
    case as follows:

In concluding, the aggravating factors involve the breach of trust
    inherent in both of these offences.  The difference in age between the
    complainant and the accused in this case was as great as one could
    imagine.  Only time will tell the damage done to the complainant.

In mitigation, Mr. Lithgow pleaded
    guilty at the earliest opportunity, did not apply for bail, admitted his
    offence to the police, and has publicly showed great remorse for his offending
    behaviour.

[69]

In the end, Blouin J. concluded that a sentence of
    15 months for the offence of sexual exploitation, less 10 months credit for
    time spent in pre-trial custody, was appropriate. On the charge of luring, he
    imposed a 12-month conditional sentence.

[70]

I find
Lithgow
to be of limited assistance.
    First of all, there were many mitigating factors in that case that do not exist
    in the appellants case. Unlike in
Lithgow,
the appellant did not plead
    guilty. Moreover, based on the record, he has no sense of the gravity and
    seriousness of his crimes, there is no evidence that he suffers from any form
    of mental illness, he is utterly without remorse, and he is not motivated in
    the slightest to change his ways. In addition, he has a very lengthy criminal
    record consisting of more than 40 prior convictions dating back to 1991. He has
    been in and out of jail since that time. His work record is sporadic at best
    and he has done virtually nothing of a productive nature for his entire life
    a life characterized by fraud and dishonesty. Those factors alone serve to
    distinguish this case from
Lithgow.
They also distinguish it from
Robinson
,
    where the court at para. 19 referred to, but did not identify, the mitigating
    factors relating to the appellant.

[71]

In any event, even if there are similarities
    between this case and
Lithgow
and
Robinson
, in my view, the
    sentences imposed in those cases do not establish an appropriate range for the
    type of offences committed by the appellant based on the sentencing principles
    established by this court in
D.D.

[72]

The case of
D.D
., it will be recalled,
    involved an adult predator in a position of trust who sexually abused a number
    of young boys on a regular basis over a lengthy period of time. The court in
    that case considered the appropriate range of sentences for offenders who
    engage in such conduct.  In doing so, the court discussed the plight of
    children in general and the principles and objects of sentencing that must take
    precedence when adult predators choose to exploit innocent young children. The
    relevant considerations and principles from
D.D.
, at paras. 34-38, are
    summarized below:

(1)

Our children are our most valued and our most vulnerable
    assets.

(2)

We as a society owe it to our children to protect
    them from the harm caused by sexual predators.

(3)

Throughout their formative years, children are very
    susceptible to being taken advantage of by adult sexual offenders and they make
    easy prey for such predators.

(4)

Adult sexual predators recognize that children are
    particularly vulnerable and they exploit this weakness to achieve their selfish
    ends, heedless of the dire consequences that can and often do follow.

(5)

Three such consequences are now well-recognized:
    (i) children often suffer immediate physical and psychological harm; (ii)
    children who have been sexually abused may never be able, as an adult, to form
    a loving, caring relationship with another adult; (iii) and children who have
    been sexually abused are prone to become abusers themselves when they reach
    adulthood.

(6)

Absent exceptional circumstances, in the case of
    adult predators, the objectives of sentencing commonly referred to as
    denunciation, general and specific deterrence and the need to separate
    offenders from society must take precedence over the other recognized
    objectives of sentencing.

[73]

The foregoing concerns inform the fundamental
    message that
D.D.
sought to convey at para. 45:

The harm occasioned [to children] by
    [adult sexual predators] is cause for grave concern. Children are robbed of
    their youth and innocence, families are often torn apart or rendered
    dysfunctional, lives are irretrievably damaged and sometimes permanently
    destroyed. Because of this, the message to such offenders must be clear  prey
    upon innocent children and you will pay a heavy price!

[74]

With respect, I do not believe that the price paid in
Robinson
or
Lithgow
was a heavy one. Indeed, I believe that the
    sentences in those cases were manifestly inadequate.
Robinson
predated
D.D
.
    and is not determinative for that reason;
Lithgow
did not refer to the
    principles in
D.D
.  Had the principles in
D.D.
been applied, I
    believe that the appellants in those cases would have received substantially
    higher sentences.

[75]

Adult predators who seduce and violate young
    children must face the prospect of a significant penitentiary term. The
    five-year sentence imposed on the appellant for the sexual assault he committed
    on the 12-year-old complainant is not excessive. In the light of the
    appellants past criminal activity and the lack of any meaningful mitigating
    factors available to him, if anything, it was lenient. While acknowledging that
    trial judges retain the flexibility to fashion a fit and just sentence in the
    particular case, crimes like those committed by the appellant will typically
    warrant mid- to upper-level single digit penitentiary sentences. The additional
    18 months the appellant received for the offence of luring was entirely
    appropriate and did not render the global sentence excessive.

[76]

In so concluding, I wish to emphasize that when
    trial judges are sentencing adult sexual predators who have exploited innocent
    children, the focus of the sentencing hearing should be on the harm caused to
    the child by the offenders conduct and the life-altering consequences that can
    and often do flow from it. While the effects of a conviction on the offender
    and the offenders prospects for rehabilitation will always warrant
    consideration, the objectives of denunciation, deterrence, and the need to
    separate sexual predators from society for societys well-being and the well-being
    of our children must take precedence.

[77]

The victim impact statement filed by the
    complainant speaks to the immediate harm she suffered. Her grades in school
    have slipped, she feels unwell at times, she experiences nightmares and crying
    bouts, she does not respect white males that are older than her and generally,
    she let everything go ... and just didnt care anymore, about anything at
    all, thinking at times that it was my fault.  Hopefully, in time, she will
    be able to overcome these problems and move forward with her life.

[78]

In the circumstances, while I would grant leave to
    appeal the sentence, I would dismiss the appeal from sentence.

DISPOSITION

[79]

For these reasons, I would dismiss the appeals from
    both conviction and sentence.

Signed:          M J.
    Moldaver J.A.

I
    agree E. A. Cronk J.A.

I
    agree G. J. Epstein J.A.

RELEASED: MJM SEPTEMBER 26, 2011

[1]
In 2007, the section was amended to increase the maximum punishment for luring
    to ten years: see
An Act to amend the Criminal Code

(luring a child)
,
    S.C. 2007, c. 20.

[2]
The offence relating to s. 212(4) of the
Criminal Code
was laid as an
    attempt to obtain sexual services for consideration.  As such, per s. 463(d)(i)
    of the
Criminal Code
, the maximum punishment is half the punishment that
    would be available for the completed offence under s. 212(4). The completed
    offence is punishable by a maximum sentence of five years.

[3]
The 2008 amendment eliminated reference to all offences except s. 281.  Under
    the amendments to s. 172.1, the charge against the appellant would now fall
    under s. 172.1(1)(b): see the
Tackling Violent Crime Act
, S.C.
    2008,  c. 6, s. 14.

[4]
While the initial communications between the complainant and the appellant
    occurred over the internet through the Airdate mobile website, the complainant
    in those conversations represented that she was over the age of 14. Hence, at
    trial, the Crown advised that it would only be relying on the text messaging communications
    that took place after the complainant had told the appellant that she was under
    the age of 14.

[5]
See Bill C-46,
An Act to amend the Criminal Code, the Competition Act and
    the Mutual Legal Assistance in Criminal Matters Act
, 2nd Sess., 40th Parl.,
    2009; and Bill C-54,
An Act to amend the Criminal Code (sexual offences
    against children)
, 3rd Sess., 40th Parl., 2010.


CITATION:
Salter v. Hirst, 2011 ONCA 609

DATE: 20110923

DOCKET: C52377

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and Laskin JJ.A.

BETWEEN

George Salter and Karen Hogan

Plaintiffs (Appellants)

and

Dr.
          Jason Hirst
, Nurse Santina Murvella, Nurse Kelly Comer, Nurse Jackie
          Logan, Nurse Carol Worgan, Nurse Molly Coughlin, Nurse Sandy
          Tomaszewski and Stevenson Memorial Hospital

Defendants (Respondent)

James L. Vigmond and Adam R. Little, for the appellants

Christopher Hubbard and Elder C. Marques, for the respondent

Heard:
September 20, 2011

On appeal from the judgment of
          Justice Margaret P. Eberhard of the Superior Court of Justice, dated June 10,
          2010.

ENDORSEMENT

[1]

This appeal raises the correctness of the trial judges decision to
    invoke Rule 52.08 of the
Rules of Civil Procedure
to overturn the jurys
    finding of negligence.  The trial judge held that there was no evidence upon
    which the jury could have found that the plaintiffs, now appellants, Mr. George
    Salter, and his wife, Karen Hogan, had successfully proved the causation
    component of the negligence test.

[2]

The appellants seek to have Eberhard J.s judgment set aside and
    judgment entered in accordance with the verdict of the jury on the basis that
    there was some evidence from which the jury could have inferred that his
    injuries were caused or contributed to by Dr. Jason Hirst.

[3]

The factual matrix of the appeal is as follows.  George Salter was
    admitted to Stevenson Memorial Hospital, Alliston, at 4:48 p.m. on Thursday,
    June 12, 2003, after attending at the emergency department with severe
    abdominal pain.  Dr. Jason Hirst was the admitting physician and his diagnosis
    was, abdominal pain not yet diagnosed.

[4]

Between June 12 and June 14, Mr. Salters condition worsened and his
    pain also increased substantially.  He was vomiting and passing blood in his
    urine and stool.  After Mr. Salter had passed a further 200 cc of blood
    rectally at 16:15 pm June 14, Nurse Tomaszewski then brought a container of Mr.
    Salters blood and stool to Dr. Hirst and asked that he be reassessed.  Dr.
    Hirst did so and decided Mr. Salter needed to be transferred to another
    facility.

[5]

Mr. Salter began to lose feeling in his lower extremities.  At 16:40 on
    June 14, he complained of severe groin pain and leg numbness.  Mr. Salter was
    given Demerol at 17:00 and transferred to Southlake Regional Health Centre in
    Newmarket at 18:15 to the care of vascular surgeon, Dr. Deepak Gupta.  He
    arrived at that hospital at approximately 19:10 and was examined at 19:50.  Dr.
    Gupta made a provisional diagnosis of aortic dissection, a life threatening
    condition with which he had no experience.  He arranged for Mr. Salter to be
    transferred to Hamilton General Hospital.  Dr. Gupta ordered a CT scan for Mr.
    Salter to take with him to Hamilton but when the ambulance arrived at Southlake
    the CT scan had not yet been done.  Given the severity of Mr. Salters
    condition, Dr. Gupta decided Mr. Salter should be transferred without it.

[6]

Mr. Salter arrived at Hamilton General Hospital at approximately three
    minutes after midnight on June 15, 2003.  He was sent directly for CT imaging
    which revealed a distal aortic occlusion or abdominal blood clot.  He was
    operated on at 2:22 a.m. and the surgery was completed at 4:25 a.m.

[7]

With the benefit of hindsight, we now know that Dr. Guptas provisional
    diagnosis was wrong.  The post-operative diagnosis was saddle embolus and
    mesenteric vein thrombosis, two rare conditions.  The lack of blood flow to Mr.
    Salters legs prior to surgery damaged them to such an extent that he lost the
    use of both of his legs.  In order to treat these problems and avoid injury,
    Mr. Salter required surgery within a six hour window of opportunity from the
    time he began to experience lower extremity symptoms.  From the time Mr. Salter
    experienced lower extremity pain and numbness until the time surgery was
    completed in Hamilton, nearly twelve hours had elapsed.

[8]

Mr. Salter sued Dr. Hirst for negligence, alleging that the doctors
    failure to transfer him sooner resulted in his paralysis.  Damages were agreed
    upon and the only issues at trial were liability and causation.

[9]

Dr. Bonn testified that Dr. Hirst was not expected to diagnose Mr.
    Salters rare condition, but that he had failed to meet the standard of care by
    not transferring Mr. Salter to another facility Friday afternoon (the best case
    scenario) or Saturday morning (the worst case scenario), instead of waiting
    until Saturday evening.  Dr. Brankston agreed that Dr. Hirst was not expected
    to diagnose Mr. Salters condition and that he failed to meet the standard of
    care by not transferring Mr. Salter to another facility on the evening of
    Friday, June 13.

[10]

Although there was conflicting evidence from the respondents experts at
    trial, the jury found that Dr. Hirst had failed to meet the standard of care by
    not deciding to transfer Mr. Salter sooner.  The jury also found that Dr.
    Hirsts decision not to transfer Mr. Salter sooner caused his paraplegia.

[11]

On the issue of causation, the appellants relied on the reports of two
    vascular surgeons, Dr. Gupta and Dr. Lossing.  The defence chose not to call
    any expert evidence to counter the issue of causation.

[12]

The trial judge s reasons focus on the fact that the reports of these
    two vascular surgeons, which were filed at trial, make no mention of what would
    likely have transpired in terms of CT scans, diagnoses and surgical options had
    Mr. Salter been transferred to Southlake Hospital under the care of Dr. Gupta
    sooner.  She concluded that there was no evidence to suggest what earlier,
    leisurely investigation would have shown.  As a result, the trial judge held
    that the appellants failed to provide any evidence upon which a jury could have
    found, on a balance of probabilities, that Dr. Hirsts delay in transferring
    Mr. Salter caused

his paralysis.

[13]

The appellants argue that the evidence of Doctors Lossing and Gupta
    supports the inference that if Dr. Gupta had had the opportunity for a more
    leisurely examination and had had time to review the results of a CT scan, he
    would likely have identified the blood clots and carried out the appropriate
    surgery in time to save Mr. Salters legs.  Dr. Guptas report does not say
    this.  It only states that he ordered a CT scan, that CT technicians come from
    Newmarket and the surrounding areas and were expected to be able to report to
    Southlake within, at most, one hour of being called, and that a CT scan
    generally takes 35 to 45 minutes to complete and a further ten minutes to
    receive the results.  The report also says that Dr. Gupta could perform surgery
    to treat a saddle embolus and portal vein thrombosis.  The evidence indicated
    an operating room was available.  With respect to Dr. Lossings report, Mr.
    Salter relies on the following passages and asks us to draw the inference that
    had a CT scan been done the blood clots would have been apparent and he would
    have had surgery :

Given the time frame of a 10 hour delay after the
    onset of lower extremity symptoms it is my opinion that this gentleman suffered
    the long-term consequences of a significant delay in the management of his
    acute arterial ischemia resulting in permanent paralysis.  In other words, if
    this gentleman had an immediate CT scan or had been taken to the operating room
    immediately after the onset of his lower extremity symptoms, these actions, in
    all probability would have reduced the chances of long-term permanent
    paralysis.

In conclusion, it is most probable this patients
    long-term unfortunate sequelae of paralysis was the result of the prolonged
    delay of his definitive treatment.  Treatment within 6 hours of the onset of
    his lower extremity symptoms at 1640 hours on Saturday June 14
th
would have, on the balance of probabilities, prevented his paralysis.

[14]

We agree with the trial judge that the reports tendered afford no
    evidence that Dr. Hirsts negligence caused or contributed to Mr. Salters
    paraplegia.  There is no issue that  loss of a chance is not compensable in
    medical malpractice cases.  The plaintiff must prove on the balance of
    probabilities that, but for the doctors negligence, the unfavourable outcome
    would have been avoided with prompt diagnosis and treatment:
Cottrelle v.
    Gerrard
, [2003] O.J. No. 4194 (C.A.) at paras. 25, 36.

[15]

Neither Dr. Gupta nor Dr. Lossings report addresses causation as such.  The
    appellants led evidence to establish that surgery
could
have been
    conducted by Dr. Gupta within the six hour window of opportunity.  However, the
    appellants led no evidence to show that the correct diagnosis likely
would
have
    been made and successful treatment likely would have been completed before the
    close of the window of opportunity had Mr. Salter been transferred earlier.

[16]

Dr. Lossings report only says that Mr. Salters paraplegia is the
    result of prolonged delay before receiving treatment.  While we know that Dr.
    Hirst was negligent in not transferring Mr. Salter sooner, we do not know
    whether that delay caused or contributed to his current condition.  It was
    within the power of the appellants to lead evidence from Drs. Gupta and Lossing
    regarding what likely would have happened if Dr. Hirst decided to transfer Mr.
    Salter sooner, how an earlier diagnosis likely would have been made and led to
    surgery within the six hour window of opportunity. They did not do this.

[17]

Accordingly, the trial judge correctly dismissed the claim pursuant to
    Rule 52.08 and the appeal is dismissed.

[18]

By agreement, costs of the appeal are fixed in the amount of $20,000.  We
    award those costs to the respondent, Dr. Hirst, if demanded.

Doherty J.A.

K.M. Weiler J.A.

John Laskin J.A.


CITATION:
SeaWorld Parks & Entertainment
          LLC v. Marineland of Canada Inc., 2011 ONCA 616

DATE: 20110928

DOCKET: C54024

COURT OF APPEAL FOR ONTARIO

Goudge, Sharpe and MacFarland JJ.A.

BETWEEN

SeaWorld Parks & Entertainment LLC

Applicant (Respondent)

and

Marineland of Canada Inc.

Respondent (Appellant)

John Keefe and Julie Rosenthal, for the appellant

Peter Jervis and Rebecca Gosevitz, for the respondent

Heard: August 12, 2011

On appeal from the judgment of Justice Richard A. Lococo of
          the Superior Court of Justice dated July 5, 2011.

Goudge J.A.
:

[1]

SeaWorld Parks & Entertainment LLC (SeaWorld) owns a male killer
    whale named Ikaika.  SeaWorld agreed to loan Ikaika to Marineland of Canada
    Inc. (Marineland) pursuant to the Breeding Loan Agreement signed on November
    16, 2006.  When SeaWorld gave written notice to Marineland of its intention to
    terminate this agreement when it expired on December 31, 2010, Marineland
    declined to return the killer whale.  SeaWorld then brought this application seeking
    a declaration that the Agreement was properly terminated and ordering that
    Ikaika be returned to SeaWorld.

[2]

The application judge dismissed Marinelands motion seeking a trial in
    order to answer these questions and granted SeaWorld the relief it sought.
    Marineland appeals.

[3]

For the reasons that follow, which closely track those of the
    application judge, I would dismiss the appeal.

THE BACKGROUND

[4]

SeaWorld and Marineland both operate significant facilities for the care
    and display of captive marine animals.  In December 2005 (when SeaWorld was
    known as Busch Entertainment Corporation) they concluded the Mammal Support and
    Interchange Agreement (the Interchange Agreement).  It began with a
    recognition that in future the parties would collaborate on a number of
    projects, each having its own individual agreement.  It then set out some
    guiding principles the third of which is relied on by the appellant:

Marineland of Canada, Inc. (Marineland) and Busch
    Entertainment Corporation (BEC have agreed to collaborate on a number of
    on-going projects relating to the care and maintenance of marine mammals and
    other marine life.  The terms and conditions of each agreement will vary,
    depending on the individual circumstances, but will be guided by the following
    principles:

1.         Both parties support breeding and
    genetic diversity of mammal populations at their respective parks;

2.         Both parties intend to maintain
    long-term care of marine mammal attractions and exhibitions;

3.         Both parties are willing to loan animals
    to each other for the foregoing purposes, and continue such loans on a regular
    basis until either party is unable to properly maintain the mammals or requests
    their return; and

4.         The principals of Marineland and BEC
    wish to provide each other with access to their respective business
    philosophies and animal care technologies, subject to reasonable safeguards,
    including an agreement to restrict such information to the principals of
    Marineland and BEC.

[5]

Attached as exhibits to the Interchange Agreement were four specific
    agreements one for the loan of the female killer whale to Marineland, one for
    the loan of the male beluga whale to SeaWorld, one for the sale of two sea
    lions to Marineland and one for the sale of two male belugas to SeaWorld.  The
    Interchange Agreement provided that its language will control over any
    inconsistencies in these four agreements.

[6]

The Interchange Agreement explicitly envisaged that there would be
    future agreements with mutually acceptable terms negotiated between the
    parties:

Future Animal Exchanges.  The parties intend to
    engage in future exchanges and additional animal transfers under mutually
    acceptable terms.

[7]

Finally the Interchange Agreement provided that it and the agreements
    referred to in it constituted the complete agreement of the parties.

[8]

The Breeding Loan Agreement for Ikaika was concluded 14 months later.

[9]

It provided for a fixed term and rights of termination:

This Agreement shall remain in force, except as
    otherwise provided, for a term ending December 31, 2010.  This Agreement shall
    be renewed automatically for one year terms thereafter unless or until
    terminated by either Party.  Either Party to this Agreement may terminate this
    Agreement at any time with respect to some or all of the Specimens listed above
    by giving the other Party thirty (30) days written notice prior to the
    effective date of the proposed termination.

[10]

The other relevant provisions in the Breeding Loan Agreement are as
    follows:

20.       GOVERNING LAW.  This Agreement shall be
    governed by and construed in accordance with the federal laws of the United
    States of America, and where not pre-empted by federal law, by the laws of
    State of Florida without regard to the conflict of laws thereof.

21.       ENTIRE AGREEMENT.  This Agreement
    constitutes the entire agreement between the Loaning Institution and the
    Receiving Institution with respect to the Specimen(s); it shall not be amended,
    altered or changed except by a written agreement, signed by the Parties hereto,
    which is otherwise in conformity with all requirements set forth herein.

[11]

On December 1, 2010 SeaWorld notified Marineland of its intention to
    terminate the Breeding Loan Agreement at the end of the calendar year.  It gave
    no reason.  Marineland does not dispute that this complied with the formal notice
    requirements of that Agreement.  However it does contest SeaWorlds right to
    terminate.

[12]

Marineland filed considerable affidavit evidence concerning the genesis
    of the relationship with SeaWorld, the precontractual representations by
    SeaWorld, and its post contractual representations and conduct.  In response,
    SeaWorld provided its own affidavit evidence, much of it conflicting with that
    of Marineland.  In addition, both parties tendered expert evidence concerning
    Florida law because of the provision in the Breeding Loan Agreement that it was
    to be governed by Florida law.

[13]

The application judge concluded that a trial was unnecessary to
    determine the Florida law relevant to this application.  He found, as the
    parties experts agreed, that Florida law was substantially the same as Ontario
    law.  It provides that where a contract is clear and unambiguous, parole
    evidence cannot be admitted to vary, alter or contradict its terms.

[14]

He then turned to the Breeding Loan Agreement.  He found it to be clear
    and unambiguous and therefore extrinsic evidence could not avail to alter its
    meaning.  He concluded that the termination provision in the Breeding Loan
    Agreement permitted SeaWorld to terminate when it did, and did not require it
    to provide a reason for doing so.  He rejected Marinelands argument that this Agreement
    and the Interchange Agreement should be read together as a single contract.
    But he found that even if this were done, SeaWorld would still be entitled to
    terminate as it did, without a reason.  He held that the third guiding
    principle in the Interchange Agreement was not ambiguous, and was not open to
    the interpretation that SeaWorld could terminate only if Marineland was unable
    to properly maintain the killer whale.  In the result, he granted the remedy
    sought by SeaWorld.

ANALYSIS

[15]

Marineland argues that the application judge erred in the following
    ways:

(a) by interpreting the
    Breeding Loan Agreement on its own, rather than construing it together with the
    Interchange Agreement;

(b) by failing to consider the
    evidence of the surrounding circumstances in doing so, which would have at
    least raised an ambiguity in the termination provision that required a trial to
    address conflicting extrinsic evidence;

(c) by rendering an interpretation that is
    commercially unreasonable.

[16]

The context for these issues is the extent to which evidence beyond the
    words of a contract can be used to determine its meaning.  There is no dispute
    between the parties that where the words of a contract are clear and
    unambiguous, extrinsic evidence cannot be used to alter their meaning.
    Ambiguity is required before that is permitted.  See:
Eli Lily

and Co.
    v. Novopharm Ltd.
(1998), 2 S.C.R. 129 at para. 55.  At the same time,
    consideration of the circumstances in which the contract was made is part of
    the interpretive process.  This factual matrix is relevant not to alter the
    meaning of clear and unambiguous language but to assist the court to determine
    the meaning of the contract against its objective contextual scene, in the
    words of Lord Justice Steyn as adopted in this court in
Dumbrell v. Regional
    Group of Companies
(2007), 85 O.R. 3rd (616) (Ont. C.A.).  The parties take
    no issue with the application judges finding of fact that the Florida law
    concerning contractual interpretation is the same as that of Ontario.

[17]

The application judge went on to say that the task of determining if a
    particular contract is ambiguous is not a question of Florida law but rather is
    for the Ontario court in the course of applying Florida law.  We agree.

[18]

Marinelands first argument is that the Breeding Loan Agreement must be construed
    together with the Interchange Agreement and that the two together constitute
    the agreement between the parties.

[19]

We do not agree.  The Breeding Loan Agreement is clear and explicit.  It
    provides that it constitutes the entire agreement between the parties with
    respect to Ikaika.  The Interchange Agreement, made 14 months earlier, supports
    this.  It contemplates that the parties will, in the future, agree to
    collaborate on a number of projects with the terms and conditions of the
    contract for each project varying, depending on the individual circumstances.
    The Interchange Agreement expressly contemplates that future animal exchanges
    will each require negotiation of its own contract to provide mutually
    acceptable terms.  That is what occurred with the Breeding Loan Agreement in
    this case.

[20]

The presence of guiding principles in the Interchange Agreement cannot
    change this.  They are broad assertions of the approach to be taken to future
    projects, not agreed principles of interpretation of future agreements.  They
    do not diminish the clear language of the Breeding Loan Agreement which
    explicitly provides that it constitutes a stand alone contract.

[21]

Marinelands second argument is that the application judge erred when he
    failed to consider the extrinsic evidence of the making of the Breeding Loan
    Agreement in the course of finding that termination without giving a reason is
    permitted.

[22]

We disagree.  The Breeding Loan Agreement is a stand alone contract.
    Its termination provision is clear and unambiguous: either party may terminate
    it at any time.  Absent any ambiguity, Marineland cannot look to extrinsic
    evidence to alter this plain meaning.  Nor does the evidence of the
    circumstances surrounding the making of this Agreement enhance the courts
    ability to understand the meaning of the words in the termination provision.
    The words themselves are clear and leave no doubt.

[23]

We agree with the application judge that even if the Breeding Loan
    Agreement and the Interchange Agreement were considered together, there would
    be no basis to alter the termination right provided to SeaWorld.  The third
    guiding principle in the Interchange Agreement says that the parties are
    willing to loan animals to each other until either party is unable to properly
    maintain them or requests their return.  The right to request the return of a
    loaned animal is unqualified and requires no reason to be given.  Even if this
    guiding principle were taken to somehow inform the clear termination right in
    the Breeding Loan Agreement, it is not ambiguous and therefore does not permit
    of extrinsic evidence.  Moreover, it is perfectly consistent with the
    termination right found in the Breeding Loan Agreement.  SeaWorld had the right
    to terminate as it did without providing a reason.

[24]

Lastly, Marineland says that this interpretation makes no commercial
    sense because of the investment that the party receiving a loaned animal would
    inevitably make.  Termination at any time without the need to provide a reason
    would, it says, be commercially unreasonable.

[25]

Again we disagree.  The Breeding Loan Agreement is not a long term
    agreement.  The maximum term of the loan of Ikaika is only four years and
    thereafter only a year at a time.  There is no suggestion of capital investment
    being undertaken by the receiving party in reliance on the length of the
    agreement.  Both parties have the right to terminate at any time.  This was not
    a guaranteed long term relationship.  The termination provision is clear and
    not commercially unreasonable.

[26]

In summary I would dismiss the appeal.

[27]

SeaWorld is entitled to its costs on a partial indemnity basis.  I would
    fix those costs of $15,000 inclusive of disbursements of GST.

RELEASED: September 28, 2011 (S.T.G.)

S.T. Goudge J.A.

I agree. Robert J. Sharpe J.A.

I agree. J. MacFarland J.A.