CITATION:
R. v. Sadiqi, 2011
          ONCA 226

DATE:  20110323

DOCKET:  (C51399), M39733

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Hasibullah Sadiqi

Applicant/Appellant

H. A.
          McArthur, for the applicant/appellant

C.
          Tier, for the respondent

Heard:  March 21, 2011

ENDORSEMENT

[1]

This is a motion brought by the appellant pursuant to
    s. 684(1) of the
Criminal Code
to
    have counsel appointed to represent him on his appeal and to have counsels fees
    and disbursements paid by the Attorney General for Ontario.  The respondent resists the motion.

[2]

Section 684(1) provides:

A court of
    appeal or a judge of that court may, at any time, assign counsel to act on
    behalf of an accused who is a party to an appeal or to proceedings preliminary
    or incidental to an appeal where, in the opinion of the court or judge, 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.

[3]

Section 684(2) provides that in the event that the
    Court appoints counsel and legal aid has been refused, the Attorney General
    shall pay counsel.

[4]

The appellant was convicted before a judge and jury on
    two counts of first degree murder for having killed his sister and her fiancé.  The appellant admitted to having shot the
    couple.  The Crown alleged that these
    were first degree murders, having been planned and deliberate.  The appellants defence to first degree murder
    charges was that he was provoked into committing the killings.  He contended that a comment made by one of the
    victims had caused him to lose control and shoot the couple in a state of
    provocation.  Thus, the defence argued
    that he should be convicted of manslaughter, not murder.

[5]

The appellants application for legal aid to appeal his
    conviction was refused on the ground that the appeal lacked sufficient merit to
    justify granting a legal aid certificate.  He appealed the funding refusal.  The Director of Appeals refused to grant his
    appeal.

[6]

In
R. v. Bernardo
(1997)
,
121 C.C.C. (3d) 123 (Ont.
    C.A.)
,
Doherty J.A. stated the
    approach to be taken in disposing of an application under s. 684(1), at paras.
    21-22:

The factors identified in these cases and others
    reflect two closely related principles.  First,
    counsel must be appointed where an accused cannot effectively present his or
    her appeal without the help of a lawyer.  Second, counsel must be appointed where the
    court cannot properly decide the appeal without the assistance of counsel.  In most situations, both or neither principle
    will operate to require the appointment of counsel.  Sometimes, however, one or the other, standing
    alone, will justify the appointment of a lawyer for the appellant.

In deciding whether counsel should be appointed, it
    is appropriate to begin with an inquiry into the merits of the appeal.  Appeals which are void of merit will not be
    helped by the appointment of counsel.  The
    merits inquiry should not, however, go any further than a determination of
    whether the appeal is an arguable one.  I
    would so limit the merits inquiry for two reasons.  First, the assessment is often made on less
    than the entire record. Second, any assessment beyond the arguable case
    standard would be unfair to the appellant.  An appellant who has only an arguable case is
    presumably more in need of counsel than an appellant who has a clearly strong
    appeal.

[7]

The appellant makes two submissions.  First, he asserts that there are two arguable
    grounds of appeal.  Secondly, given the
    individual characteristics of the appellant, together with the complexity of
    the legal issues and the extent of the record, he is incapable of effectively
    arguing his case.

[8]

The respondents position is that there is no merit to
    the appeal, on either of the two grounds identified by the appellant.  The crown further contends that the appellant
    is capable, with the assistance of duty counsel, of adequately advancing the
    arguments on his appeal on his own behalf.

[9]

I will first deal with the question of whether the
    appeal discloses an arguable case on behalf of the appellant.  Two grounds of appeal are identified.  The first relates to the admissibility of the
    expert evidence tendered by the Crown.  This evidence, adduced through the testimony
    of Dr. Mojab, a professor at the University of Toronto, was about the
    socio-cultural phenomenon known as honour killing.  The evidence was ruled admissible by the trial
    judge, after a
voir dire
, on the
    basis that it was relevant to the issues of provocation, planning and
    deliberation.  The appellant concedes
    that the issue of the admissibility of this evidence is the weaker of the two
    grounds of appeal; nevertheless, he argues that it meets the low threshold of
    arguability necessary to meet the test required to appoint counsel under s.
    684(1).

[10]

The second ground of appeal was that a
W.D.
jury instruction ought to have been
    given.  The appellant testified on his
    own behalf.  At trial, defence counsel
    (not counsel on the motion) submitted that a
W.D.
instruction was required to be given to the jury.  The Crown did not oppose this request and
    instead stated that, in light of the special circumstances of this case, the
    instruction would have to be modified.  The
    trial judge declined to include a modified
W.D.
instruction in his charge to the jury.

[11]

The appellant contends that, particularly because of
    the juxtaposition of the evidence of the Dr. Mojab and the appellant, which
    provided two alternative explanations for the behaviour of the appellant, it
    was necessary to instruct the jury on the proper treatment of the appellants
    testimony and the consequences of disbelieving him.

[12]

In my view, although the first ground of appeal is not
    as strong as the second, both meet the test of being arguable.  On the first ground, this appeal raises the
    novel issue of whether expert evidence regarding honour killing is sufficiently
    probative to outweigh any prejudicial impact it may have.  Dealing with the second ground, the issue of
    whether a modified
W.D.
instruction
    should have been given in the context of this appeal, where the appellant is
    advancing a defence of provocation in response to the Crowns theory that the
    appellant was engaged in a planned and deliberate honour killing, is a complex
    argument that cannot be simply dismissed as meritless.

[13]

The
    next question is whether the appellant can effectively present his or
    her appeal without the help of a lawyer.

I am not satisfied that the
    appellant is capable of doing so.  The
    appellant did not complete his high school education.  Although he testified at trial in English,
    English is not his first language.  His
    high school English marks reflect this reality.  The record in this case includes approximately
    2100 pages of evidence, 100 pages on the relevant
voir dire
, exhibits numbering some 500 pages and a jury charge of
    100 pages.  Although not a huge record,
    it is substantial.  In this case,
    although the legal issues are relatively few, they are complicated.

[14]

The
    appellants language skills must be assessed against the complexity of the
    case.   Here the motion record affirms
    that the appellants skills are not likely to be up to the task.  Given the complexity of the issues, the extent
    of the record and the appellants relative language skills, the appellant is
    not capable of effectively presenting his case without the assistance of a
    lawyer.

[15]

I
    cannot leave this question without emphasizing that, given the nature and
    novelty of the issues raised, the Court hearing the appeal will be greatly
    assisted by the appointment of counsel.

[16]

Accordingly,
    I appoint counsel for the appeal pursuant to s. 684(1) of the
Criminal Code
.  I designate Ms. Heather McArthur as counsel.

[17]

The
    respondent urged the Court to restrict the appointment of counsel such that it
    only applies to arguing the grounds of appeal put forward to support this
    motion.  The appellant did not oppose
    this request.  Accordingly, I so order.

[18]

The respondent asked that the Court not deal with the
    scale of fees to which counsel will be entitled pursuant to this order.  Accordingly, I will not address this issue.

W.
    Winkler C.J.O.


CITATION:
R. v. Sheehan's
          Truck Centre Inc., 2011 ONCA 170

DATE: 20110302

DOCKET: M39591

COURT OF APPEAL FOR ONTARIO

Lang J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party

and

Sheehans Truck Centre Inc.

Moving Party

Daniel J.
Michaluk
, for the moving
          party

Rajesh
Dhir
and Jessica
Eisen
, for the responding party

Heard:
February 25, 2011

On a motion for leave to appeal the
          judgment of Justice Alan D. Cooper of the Ontario Court of Justice, dated
          December 22, 2010 allowing an appeal from the judgment of Justice of the
          Peace Paul
Macphail
of the Ontario Court of
          Justice, dated August 18, 2009.

ENDORSEMENT

[1]

The applicant seeks leave to appeal pursuant to s. 131
    of the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33, which provides that leave to appeal may be granted on
    special grounds, upon any question of law alone, but that leave shall not be
    granted unless it is essential in the public interest or for the due
    administration of justice.

[2]

In this case, a worker was seriously injured when his
    co-worker reversed a truck over part of his body.  The workers employer, the applicant, was
    charged for its failure to provide a signaller to guide the trucks
    reversal.  The charge was laid pursuant
    to s. 25(1)(c) of the
Occupational Health
    and Safety Act
, R.S.O. 1990, c. O.1 for the breach of the prescription
    contained in section 56 of
Industrial
    Establishments
, R.R.O. 1990, Reg. 851.

[3]

Section 25(1
)(
c) of the
Occupational Health and Safety Act
requires
    an employer to ensure that the measures and procedures prescribed are carried
    out in the workplace.  Section 56 of the
    applicable
Regulation
governs all
    industrial establishments in Ontario.  It
    prescribes when a signaller must be provided:

Where the operator of a vehicle, mobile equipment,
    crane or similar material handling equipment does not have a full view of the
    intended path of travel of the vehicle, mobile equipment, crane or similar
    material handling equipment or its load, the vehicle, mobile equipment, crane
    or similar material handling equipment shall only be operated as directed by a
    signaller who is a competent person and who is stationed,

(a)
in
full view of the operator;

(b)
with
a full view
    of the intended path of travel of the vehicle, mobile equipment, crane or
    similar material handling equipment and its load; and

(c)
clear
of the
    intended path of travel of the vehicle, mobile equipment, crane or similar
    material handling equipment and its load.

[4]

At first instance, the justice of the peace acquitted
    the applicant based largely on his interpretation that section 56 applied only
    if the vehicle was engaged as material handling equipment at the time of the
    accident.  On appeal, the Ontario Court
    of Justice appeal judge allowed the appeal, concluding that the legislation
    required a liberal interpretation to include the vehicle in question and that
    the legislative provision was not overbroad.  He found the applicant guilty.

[5]

The applicant argues that leave should be granted on
    two issues.  First, regarding the correct
    interpretation of s. 25(1
)(
c) of the
Occupational Health and Safety Act
, and
    section 56 of the
Industrial
    Establishments Regulation
.  In
    particular, the interpretive question focuses on the circumstances in which a signaller
    is required for a vehicle, mobile equipment, crane or similar material
    handling equipment.  Second, the
    applicant takes the position, arising from the proper interpretation, that
    section 56 is unconstitutionally overbroad.

[6]

In my view, the proper interpretation of this
    legislative provision raises issues important to the public interests interest
    in occupational safety at the workplace. Accordingly, I am satisfied that leave
    is essential in the public interest:  see
R. v.
Krukowski
(1991), 2 O.R. (3d) 155 (C.A.);
Ontario
    (Ministry of Labour) v. Hamilton (City)
(2002), 58 O.R. (3d) 37 (C.A.);
R. v. Rankin
(2007), 216 C.C.C. (3d) 481
    (Ont. C.A.).

[7]

Leave is granted on the two Grounds for Appeal set
    out in the applicants notice of motion for leave to appeal.

[8]

Costs of the leave motion, if any, are left to the
    panel hearing the appeal.

S.E. Lang J.A.


CITATION: R. v. Sutherland, 2011
      ONCA 239

DATE:  20110325

DOCKET: C52147

COURT OF APPEAL FOR ONTARIO

Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Sutherland

Appellant

William Sutherland, appearing in person

B. Gluckman, for the respondent

Heard: March 24, 2011

On appeal from the conviction entered by Justice E. Koke of
          the Superior Court of Justice dated April 27, 2010.

APPEAL BOOK ENDORSEMENT

[1]

This is not a case for leave to appeal.

[2]

The first issue purports to raise the interpretation of s. 49(1) and s.
    49.1 of the
Fisheries Act
.  The Summary Conviction Appeal Court applied
    the established case law to the facts as found by the trial judge.  There was
    no legal dispute.  The dispute was over whether the first visit was an
    inspection per s. 49(1).  That factual issue was decided against the
    appellant.

[3]

The second issue arises out of the expert evidence of Ms. Hallett.
    There can be no doubt about the legal admissibility of her evidence.  This weight
    was for the trial judge.

[4]

The third issue, the officially induced error defence, again turned on a
    factual issue.  The trial judge accepted Mr. McLeods evidence.  That evidence
    effectively negated the defence.

[5]

The fourth issue, the due diligence defence, was addressed at trial and
    on appeal.  The appellant has not convinced us that there is arguably an error
    in law arising out of the Summary Conviction Appeal Courts treatment of that
    defence.

[6]

The appellant will pay the amounts ordered ($5,000 and $5,000) within 30
    days of today.  The applicant will submit the plan required by the trial
    judges order no later than June 1, 2011.  The applicant will complete the work
    ordered by the trial judge no later than September 1, 2011.


CITATION:
R. v. Turpin, 2011
          ONCA 193

DATE: 20110311

DOCKET: C51697

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Rosenberg and Goudge JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Glen Turpin

Appellant

Frank Addario and Andrew
Furgiuele
,
          for the appellant

Alex
Hrybinsky
, for the respondent

Heard:
February 23, 2011

On appeal from the conviction entered by Justice Myrna L. Lack
          of the Superior Court of Justice on December 2, 2009.

Winkler C.J.O.:

Overview

[1]

The central issue in this appeal concerns the proper
    conduct of a trial.  It engages issues of
    natural justice and the right of a defendant to make full answer and defence.

[2]

The appellant is a police officer with the Durham
    Regional Police Service.  He was charged
    with assault causing bodily harm, contrary to s. 267(b) of the
Criminal Code
and uttering a threat to
    cause bodily harm, contrary to s. 264.1(1)(a) of the
Criminal Code
.  He was tried
    in the Superior Court of Justice without a jury and was convicted on both
    counts.  The appellant appeals his
    conviction and seeks a new trial.

[3]

The main ground of appeal relates to a finding made by
    the trial judge relating to an audio portion of a surveillance recording.  The audio surveillance recording (ASR) was
    made while the appellant had an intoxicated person, Martin Egan (Egan), in
    custody after an arrest.  There were
    words exchanged between the appellant and Egan.  As part of the exchange, the appellant is
    alleged to have made threats to Egan.  The
    appellants position is that the statements he made during the relevant period
    were simply tactical in order to deal with the behaviour of Egan.

[4]

In addition, a transcript of the ASR was used as an aid
    for the purposes of trial and with respect to the
viva voce
evidence of the witnesses, as both the appellant and Egan
    testified.  However, the transcript did
    not contain the part of the ASR in respect of which the trial judge made a
    crucial finding.  All of the parties
    accepted that the ASR was inaudible in respect to that part.  The trial judge re-played the ASR after the
    trial was concluded as part of her deliberations.  Upon doing so, she came to a conclusion as to a
    certain statement made by the appellant.  The finding was materially different from the
    testimony of the appellant as to what he had said.  The finding of the trial judge attributing
    certain words to the appellant provided the basis for her conclusion that the
    appellant was not credible and was fatal to the theory of his defence.  The trial judge did not reconvene the trial to
    permit this statement to be put to the appellant or to allow further evidence
    or argument.

[5]

The appellant submits that because of the manner in
    which the trial judge considered the evidence, and in light of her conclusion
    as to the ASR that was materially different than that accepted by any party at
    the trial, he was effectively denied the opportunity to make full answer and
    defence.  This, the appellant argues,
    amounted to a denial of natural justice and constituted a reversible error in
    principle.  I agree.  I would allow the appeal, set aside the
    conviction, and order a new trial.  My
    reasons follow.

Facts

[6]

On March 12, 2006, the appellant arrested Egan outside
    a bar in Whitby for causing a disturbance.  The appellant and his partner, Police
    Constable Roxanne
Yelle
(P.C.
Yelle
),
    were on duty on the night in question.  In
    the early hours of Sunday morning while on patrol they came upon a commotion in
    a bar district in downtown Whitby.

[7]

When the officers arrived at the scene, a small crowd
    had gathered and Egan and two friends were at the centre of the action.  Egan was intoxicated and behaving in a loud,
    abusive and confrontational manner.  He
    had a cut on his head which he alleged was caused by a bouncer at the bar and
    he insisted that the officers charge the bouncer.  The appellant investigated Egans claim.  The bar staff told the appellant that Egan had
    attacked a bouncer while being removed from the bar.  Egan had called an emergency medical team to
    the location and they were present.

[8]

The appellant asked Egan to leave the scene and go home
    and told him that his complaint could be dealt with the following morning.  Egan became increasingly more agitated and
    vociferous when the appellant sent the emergency medical team away and would
    not charge the bouncer.  When he refused
    to leave and persisted in his outrage, the appellant warned him that if he did
    not leave he would be arrested.  Despite
    the warning, Egan refused to leave and continued swearing and yelling at the
    officers.  His behaviour was described as
    out of control.  Eventually the
    appellant forced Egan to the ground, handcuffed him and arrested him for
    causing a disturbance.  Two other
    officers at the scene arrested one of his two friends.

[9]

The appellant and P.C.
Yelle
drove Egan to the police station.  While
    in the cruiser Egan continued to yell insults, obscenities and racial epithets
    at the police officers and to bang his head against the window.  Before they left the cruiser Egan said something
    to the effect of you wait until I get these handcuffs off.  At trial, Egan admitted that this would give
    the impression that he wanted to fight, but denied that he actually wanted to
    fight with the police.

[10]

It was at the police station that the alleged threat
    and assault took place.  There was an
    audio-video surveillance recording running in the rooms where the relevant
    events occurred.  The system made an
    audio recording (the ASR) and captured the events that took place in a series
    of still images which were put into evidence at trial.  In addition to playing the ASR at trial, a
    transcript of the recording was used as an aid.

[11]

After arriving at the station, Egan was placed in a
    cell and the appellant removed Egans handcuffs.  Egan was resistant while the handcuffs were
    being removed and the appellant had to use force to remove them.  The appellant by his own admission said to
    Egan Im going to punch your teeth right through the back of your head.  As I will discuss more fully below, there was
    some uncertainty at trial about the exact content of this utterance, but there
    was no dispute that at a minimum words to this effect were uttered.

[12]

On two occasions while in the cell at the police
    station the appellant forced Egan to the ground.  On both occasions the appellant had told Egan
    to sit down, and Egan had not done so.  As
    a result of the second grounding, Egan may have struck a bench.  He received a cut above his left eye where he
    wore an eyebrow ring.  As a result of
    this injury, Egan required stitches and the injury later became infected,
    requiring Egan to receive intravenous antibiotics for a month.

[13]

Egan later pleaded guilty to the charge of causing a
    disturbance.  He decided not to press a
    complaint against the appellant relating to the manner of his treatment while
    in custody.  However, approximately two
    years later, as a result of an internal investigation, the appellant was
    charged with uttering a threat to cause bodily harm and assault causing bodily
    harm, in relation to his conduct in respect of Egans detention.

Trial Judgment

[14]

Five witnesses testified at trial.  Egan and P.C.
Yelle
testified for the Crown.  The appellant
    and two expert witnesses testified for the defence.  The two expert witnesses were Doug Ashton
    (Ashton), an instructor in use of force, and Sergeant Bob Elliott, a senior
    member of the Durham Regional Police Service in charge of the use of force
    training section.  The expert witnesses
    gave evidence on police use of force and use of force training.

[15]

In her reasons, the trial judge reviewed the evidence
    of Egan, P.C.
Yelle
and the appellant.  She did not comment on the testimony of the
    expert witnesses.

[16]

The content of the appellants alleged utterance to
    Egan was central to the trial judges decision.  The appellant testified that he told Egan that if he didnt knock it
    off, I was going to punch the teeth through the back of his head.  The appellants explanation for the remark was
    that this was not a threat, but rather a warning that if Egan did not stop his
    aggressive behaviour, the appellant may be required to use more force.  He testified that his utterance was a form of
    tactical communication intended to change the prisoners behaviour.  P.C.
Yelle
proffered
    no evidence in relation to the substance of the statement in question although
    she was present in the cell when it was made.  Nor did Egan testify in relation to the
    wording of the statement.  At the conclusion
    of the trial the trial judge reserved her decision.  In arriving at her decision she re-listened to
    the ASR and found the utterance by the appellant said to constitute the threat to
    be different from the testimony of the appellant, or anyone else, during the
    trial.  In her reasons she said:

I was asked to review the audio carefully in my
    deliberations and make a finding as to what P.C. Turpin [the appellant] said.

I have listened to it many times.  What P.C. Turpin said was, When were off
    camera Im going to punch your teeth right through the back of your head.  Do you understand me? I have no doubt that
    was what he said.

[17]

She used her finding as to what the audio revealed, namely
    that the appellant had said the words When were off camera as opposed to
    if you dont knock it off
,
to assess the
    appellants credibility, stating that the appellant had misrepresented the
    contents of the threat.

[18]

The trial judge then went on to find that the appellant
    was not credible and reject his evidence that the alleged threat was a form of
    tactical communication.  She also rejected
    his evidence that he had pre-emptively grounded Egan to prevent Egan from
    assaulting him.

[19]

Relying on the evidence of P.C.
Yelle
,
    the trial judge stated that she accepted P.C.
Yelles
evidence that the force that he [the appellant] used in putting Mr. Egan
    against the wall and in grounding him the first time was excessive.

[20]

She held that the appellant did not have reasonable
    grounds for uttering the threat or for grounding Egan for the second time in
    the police station.  She found the
    appellant guilty on both counts.

Issues Raised on Appeal

[21]

The appellant raises three grounds of appeal:  1) that the trial judge erred by not allowing
    him to respond to her assessment of the ASR of the appellants utterance; 2)
    that the trial judge erred by failing to consider the testimony of the two
    expert witnesses; and 3) that the trial judge erred by oversimplifying P.C.
Yelles
evidence.  In
    particular, P.C.
Yelle
never said that the appellant
    used excessive force, but rather testified that she was uncomfortable with the
    force that was used and also qualified this statement in several significant respects.

[22]

For the reasons
    set out below, I would dispose of the appeal on the first ground alone.  Hence, it is unnecessary for me to deal with
    the remaining two grounds of appeal advanced by the appellant.

Analysis

[23]

The essence of the appellants main ground of appeal is
    that the trial judge deprived him of the opportunity to make full answer and
    defence with respect to what she thought she heard the appellant say on the ASR.
     There is no doubt that the trial judge
    was asked and was entitled to review the ASR during her deliberations.  The issue that arises, however, is with
    respect to the context in which this review was performed.

[24]

It was accepted by all parties that certain portions of
    the ASR were garbled or inaudible.  To
    this extent, there was no transcription of those portions of the ASR in the
    transcript used as an aid at trial.  The
    effect of the finding by the trial judge is that a part of the ASR that had
    been accepted for the purposes of trial as being inaudible became a critical
    part of the evidence supporting the finding of guilt on the part of the
    appellant.  In my view, this constitutes
    a failure of natural justice in that the appellant had no opportunity to make
    full answer and defence.  By way of
    analogy, it was as if the appellant had a new allegation made against him after
    the trial was completed.

[25]

The precise wording
    of the alleged threat by the appellant to Egan was a significant part of the
    defence theory that the statement was tactical and not a threat.  The appellant testified that he told Egan that
    if you dont knock it off the appellant was going to punch his teeth through
    the back of his head.  This differed from
    the transcript of the ASR that was referred to at trial which only said Im
    going to punch your teeth right through to the back of your head, do you
    understand me.  The knock it off
    portion of the utterance was represented by an inaudible portion of the ASR so
    far as all parties to the trial were concerned.

[26]

In his closing submissions at trial, defence counsel
    summarized the appellants position on the content of the utterance:

[The appellant] says, and I say to you, Your
    Honour, when you listen to the audio, Ive listened to it 20 plus times, you
    cant make out the garble before the words Im going to punch your teeth right
    through the back of your head. Theres a garbled exchange there.  Officer Turpin says, I said if you dont
    stop or dont knock it off, Im going to punch your teeth right through the
    back of your head.

I ask that you find that thats the evidence.  Officer Turpin says,
this
is a warning, this is not a threat. He was psychologically trying to break the
    behaviour of Mr. Egan.  This is a form of
    tactical communication,
its
use of force through
    words, and its analogous to stop or youll get hurt.

[27]

The appellants version of the alleged threat gave
    credence to the theory that the statement was intended as a form of tactical
    communication aimed at stopping Egans aggressive and resistant behaviour.

[28]

At no time during the trial did anyone raise the prospect
    that the statement may have been When were off camera Im going to punch your
    teeth right through the back of your head.  There was no suggestion by the prosecution or the defence that the inaudible
    part of the ASR contained any other material words than those which the
    appellant testified he uttered.  Indeed,
    the only evidence regarding the utterance other than the ASR was that of the
    appellant.  The real issue for trial was
    not the words themselves but what they were meant to convey.

[29]

The statement ultimately found by the trial judge to
    have been said by the appellant, When were off camera
,
was materially different from the version of the statement put forth by the
    appellant.  It also differed from the
    version of the statement in the transcript of the ASR used at trial.  Neither Egan nor P.C.
Yelle
was questioned about the first part of the utterance.  Egan did not recall the utterance when he was
    first asked about it.  After reviewing
    the transcript of the ASR he recalled the appellant telling him he was going
    to punch my teeth to the back of my head.  He did not remember any other part of the utterance.
P.C.Yelle
gave no
    evidence on the substance of the utterance.  She could not recall what was said when the
    appellant and Egan first entered the interview room.

[30]

The finding of the trial judge on the exact words
    uttered in the part of the ASR regarded as inaudible by the parties led in turn
    to her finding against the appellants credibility, supported a finding of bad
    faith, and, left unanswered, was devastating to the theory of the defence that
    the statement was a warning and not a threat.

[31]

This is not a case where a new theory is being advanced
    on appeal to deal with what might otherwise be construed as an oversight of
    counsel at trial.  It is clear from the
    cross-examination of the expert witness Ashton that the parties, and the trial
    judge, had a consistent position relative to the wording of the alleged threat.  At trial, crown counsel engaged Ashton in a
    line of questioning to determine whether the alleged threatening words could
    ever be a justified use of force.  Initially
    the Crown began questioning Ashton about a statement paraphrased from that
    which appeared in the transcript of the ASR.  Defence counsel objected that the words being
    put to the expert witness were not the words stated in the appellants evidence.  The trial judge agreed.  The trial judge instructed counsel that if
    there is an evidentiary issue on what was said, then the one or more variables
    of whats alleged to have been said should be put to the witness.

[32]

Crown counsel continued the line of questioning by
    putting the appellants version of the statement to Ashton.  The Crown did not go on to test any other
    hypothetical versions of the statement.  In
    fact, no other hypothetical version of the statement was ever put forward by
    either party at trial.  From the conduct
    of counsel at trial it is clear that there was an acceptance by the prosecution,
    defence and the court that there was only one version of the statement being
    contemplated for the purposes of the trial.

[33]

The trial judge ruled correctly that the evidence was
    the
viva voce
testimony of the
    appellant and not the transcript of the ASR.

[34]

The respondent states that it was proper for
    the trial judge to review the ASR in her deliberations.  I do not disagree.  Here, however, the trial judge had already
    made a ruling about the evidence at trial and was aware of the positions taken
    by the parties with respect to the quality of the ASR.  Any further review by the trial judge had to
    be conducted in that context.

[35]

It is clear that there are proper procedures to be
    followed with respect to audio or video evidence.  In
R.
v.
Nikolovski
,
[1996] 3 S.C.R. 1197,
Cory J., writing for the majority, said at
paras
.
    31-32:

The jury or
trial judge
sitting alone must be able to review the videotape during their deliberations.  However, the viewing equipment used at that
    time should be the same or similar to that used during the trial.  I would think that very often
triers
of fact will want to review the tape on more than
    one occasion.

A trial judge sitting alone must be subject to the
    same cautions and directions as a jury in considering videotape evidence of
    identification.  It would be helpful if,
    after reviewing the tape, the trial judge indicated that he or she was
    impressed with its clarity and quality to the extent that a finding of identity
    could be based upon it.  This courtesy
    would permit Crown or particularly defence counsel to call, for example, expert
    evidence as to the quality of the tape or evidence as to any changes in
    appearance of the accused between the taking of the videotape and the trial and
    to prepare submissions pertaining to identification based on the tape.

[36]

Nikolovski
does not stand for the proposition that a trial judge can listen to an audio recording,
    arrive at a view of the evidence which varies from the
viva voce
testimony of a witness and make a finding which
    undermines the credibility of the witness on that point without putting the
    contrary view to the witness.  Applying
Nikolovski

to these circumstances would require
    the trial judge, after reviewing the ASR and reaching the conclusion she did as
    to the evidence, to advise the parties and offer an opportunity to have the
    trial re-opened.

[37]

In fact, when the ASR and the accompanying still images
    were played at trial, the entire recording was not played.  The trial judge asked counsel whether they
    anticipated that she would watch beyond the point where they stopped when she
    re-played the recording during her deliberations.  Counsel did not object, but the trial judge
    specifically indicated to them that she would not play more of the recording
    unless she told them, and gave them an opportunity to address any issues that
    arose.  This shows that the trial judge
    turned her mind to the correct procedure  that she should have alerted counsel
    to any unanticipated issues that arose when she re-played the recording.

[38]

The respondent advanced the argument that there was no
    reversible error in that the trial judge did nothing more than a jury would, or
    could, have done with respect to the ASR and, in effect, we would never know
    what they thought they heard on the inaudible portion of the ASR.  Further, it was up to appellant to deal with
    the issue of the inaudibility of the ASR.  I cannot accede to these submissions.  Dealing with them in reverse order, the
    accused at a trial is entitled to know the case that must be met.  If there is no evidence adduced by the Crown
    on a certain point, no response is required from an accused on that point.  Here, no evidence was adduced by the Crown as
    to what was said on the inaudible portion of the ASR.  Further, after the appellant testified as to
    what he had said, the Crown did not attempt to impeach that testimony by
    playing the ASR and suggesting that it revealed different words.

[39]

Dealing with the respondents first point, this was not
    a jury trial.  In our system, juries in
    criminal cases do not give reasons for their decisions.  However, trial judges do and we cannot ignore
    the fact that in this case the trial judges reasons disclose that she relied
    upon a version of the facts with which the appellant was never confronted and
    which, in the result, seriously undermined his credibility in the trial judges
    eyes.

[40]

The appellants testimony regarding the substance of
    his statement was the only version of the statement put forward at trial.  No other hypothetical was advanced that
    included a different version of the words preceding the statement in the transcript
    of the ASR.  The meaning to be attributed
    to the words was the real issue at trial.  The appellants evidence was used for the purposes
    of examining the expert witnesses and for argument.  The entire trial proceeded on the premise that
    the words spoken were those testified to by the appellant and that the ASR was
    inaudible in this respect.

[41]

The respondent also submits that the appellant was not
    prejudiced because there was nothing that he could have done had the trial judges
    view of the appellants utterance on the ASR been put to him at trial.  I disagree.  There were various options open to the
    appellant had he been given the opportunity to respond.  The appellant could have been re-called to the
    stand, called an expert witness to enhance the audio ASR, or argued that the
    trial judges finding could not be correct because it was not a credible
    interpretation in that there was nowhere on the premises where they would be
    off camera, to mention but a few.

[42]

In my view, the respondents argument in this respect is
    flawed because there is, simply put, no way around the fact that the appellant
    had no opportunity to respond to the trial judges interpretation as to what
    the appellant said on the ASR.

[43]

The respondents final submission is that it would have
    been unusual for a judge to reopen the trial after she had listened to the ASR.
     I agree that it would have been unusual
    to have done so.  However, she had no
    other recourse given the impact of what she felt she heard on the recording when
    up to that point the trial had proceeded on the assumption the recording was
    inaudible.  This was an unusual situation
    because the ASR was of poor quality.  What
    the trial judge heard on the ASR had a significant impact on the appellants
    credibility and the theory of his case.  Fairness
    demanded that he be afforded an opportunity to meet the case being made out
    against him.  Sometimes unusual turns of
    events in a trial require a novel approach if justice is to be done.

[44]

As the Supreme Court of Canada stated in
Charkaoui
v.
Canada (Citizenship and Immigration)
,
    [2007] 1 S.C.R. 350, at
para
. 29, a fair judicial
    process includes a right to a hearing which entails the
right to know the case put against one
, and the
right to answer that case
 (emphasis in
    original).  The appellant in the present
    case did not know the case put against him until he read the reasons for
    judgment.

[45]

In proceeding in the manner that she did, the trial
    judge denied the appellant the opportunity to respond to her finding that the ASR
    revealed that the appellant said to Egan, When we are off camera...
.
This led to her
    rejection of his testimony that he said Knock it off or..., her finding that
    the appellant was not a credible witness, and ultimately led to her rejection
    of the theory of the appellants defence that his statement to Egan was
    tactical and not a threat, and that his second grounding was to prevent an
    assault by Egan.  The appellant was
    denied the opportunity to make full answer and defence.  The first inkling that there was a different
    version of what his utterance to Egan was appeared in the trial judges reasons
    for judgment convicting the appellant as charged.  In the interest of fairness, the trial judges
    views as to the content of the ASR had to be put to the appellant.  This was not done.  Accordingly, it should not have been used against
    him.  The appellant suffered prejudice in
    the conduct of his defence.  There has
    been a denial of natural justice to the appellant which amounts to a reversible
    error in principle.

Conclusion

[46]

For the above reasons, I would allow the appeal, set
    aside the conviction, and order a new trial.

RELEASED:  March 11, 2011 (W.W.)

W. Winkler C.J.O.

I agree M. Rosenberg
    J.A.

I agree S.T. Goudge
    J.A.


CITATION:
R. v.
Veenhof
, 2011 ONCA 195

DATE:  20110311

DOCKET: C52234

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty The Queen

Applicant (Appellant)

and

Derek Veenhof

Respondent

Robert Gattrell, for the appellant

Paul Calarco, for the respondent

Heard and released orally: March 7, 2011

On appeal from sentence imposed by Justice Don Taliano of the
          Superior Court of Justice, dated May 10, 2010.

ENDORSEMENT

[1]

The respondent pled guilty to aggravated assaulted and,
    following a trial, was convicted of assault with a weapon.

[2]

On the trial judges findings, the respondent was the
    instigator in escalating to violence an incident involving uninvited house
    party guests. The respondent broke a beer bottle over one victims head,
    causing a wound necessitating six stitches. He then took the opportunity to
    retrieve a sword and struck the other victim in the back while waving the sword,
    causing a wound necessitating 26 stitches.

[3]

Taliano J. sentenced the respondent to a six month
    conditional sentence, which included 120 hours of community service and a
    curfew from 11 p.m. to 6 a.m., together with 12 months probation.

[4]

The Crown seeks leave to appeal and asks that a sentence of
    imprisonment be imposed. In our view, it was open to the sentencing judge to
    impose a conditional sentence because of the respondents youth, lack of a
    prior record, his expression of remorse, his bright prospects and the fact that
    his conduct on the evening in question was apparently out of character.

[5]

That said, the duration and terms of the conditional sentence
    imposed were wholly inadequate to address the sentencing goals of denunciation
    and general deterrence for these very serious offences.

[6]

The appellant has now served his conditional sentence and is
    on probation. The fresh evidence demonstrates he is doing well.

[7]

In the circumstances, we allow the appeal, set aside the
    conditional sentence imposed, substitute a conditional sentence of 2 years less
    7 days taking account of pre-sentence custody and give 10 months credit for
    time served, leaving a conditional sentence of 14 months less 7 days.  We impose house arrest for the first seven months
    of the conditional sentence, with exceptions for school, work, medical appointments,
    attending on his conditional sentence supervisor and other purposes as approved
    by the conditional sentence supervisor in writing. Otherwise the terms imposed
    by the trial judge save for community service shall continue in place for the
    duration of the conditional sentence. The terms of the probation order imposed
    shall remain in full force and effect.

[8]

The respondent shall attend upon his conditional sentence
    supervisor no later than March 14, 2011 for the purposes of implementing this
    sentence failing which a bench warrant may issue at the request of the Crown.

Signed:           Janet Simmons
    J.A.

Paul Rouleau J.A.

Karakatsanis J.A.


CITATION: Ryabikhina v. Leong, 2011 ONCA 221

DATE: 20110322

DOCKET: C52793, C52486 & M39716

COURT OF APPEAL FOR ONTARIO

Sharpe, Gillese and Karakatsanis
JJ.A.

BETWEEN

Nadejda Ryabikhina

Plaintiff (Appellant)

and

Renata Leong

Defendant (Respondent)

Nadejda Ryabikhina and Elena Ryabikhina, in person

Chris Hubbard and Jamie Yoon, for the respondent

Heard: March 21, 2011

On appeal from the order of Justice Edward P. Belobaba of the
          Superior Court of Justice dated October 5, 2010.

APPEAL BOOK ENDORSEMENT

[1]

For reasons given in C52486, appeal of Nadejda Ryabikhina is dismissed.
    Elena Ryabikhina makes allegations against the respondent physician.  Elena is
    not a plaintiff in this action and has no standing in this appeal in her own
    right.  Moreover, given the nature of the defamation claim, the respondent
  could not respond without mentioning Elenas name.

[2]

Appeal dismissed.  Costs to the respondent fixed at $5,000 inclusive of
    disbursements and applicable taxes.


CITATION: Ryabikhina v. Savranskiy, 2011 ONCA 219

DATE: 20110322

DOCKET: C52486, C52793 & M39716

COURT OF APPEAL FOR ONTARIO

Sharpe, Gillese and Karakatsanis
JJ.A.

BETWEEN

Nadejda Ryabikhina

Plaintiff (Appellant)

and

Stanislav (Stan) (Stas) Savranskiy

Defendant (Respondent)

Nadejda Ryabikhina and Elena Ryabikhina, in person

Peter Danson, for the respondent Stanislav (Stan) (Stas)
          Savranskiy

Heard: March 21, 2011

On appeal from the order of Justice Edward P. Belobaba of the
          Superior Court of Justice dated July 6, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge did not err by disposing of this matter on the
    basis of qualified privilege and common law privilege.  There was no triable
    issue as to malice.  As a result, it was not necessary to determine the truth
    of the statements complained of.  Accordingly, the appeal is dismissed.  Costs
    to the respondent fixed at $5,000 inclusive of disbursements and applicable
  taxes.


CITATION:
Ross v. Lawyers'
          Professional Indemnity Company, 2011 ONCA 168

DATE:
          20110302

DOCKET: C49866

COURT OF APPEAL FOR ONTARIO

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

E. Anthony Ross

Applicant (Appellant)

and

Lawyers Professional Indemnity Company

Respondent (Respondent in Appeal)

Oleh P. Vereshchak, for the appellant

Boyd Balogh, for the respondent

Heard and released orally:
February 28, 2011

On appeal from the judgment of Justice Alfred J. OMarra of
          the Superior Court of Justice dated December 12, 2008.

ENDORSEMENT

[1]

The appellant, an Ontario lawyer and member of the Law
    Society of Upper Canada, appeals from the judgment of OMarra J. of the
    Superior Court of Justice dated September 30, 2008. In that judgment, OMarra
    J. dismissed the appellants application for a declaration that the respondent
    Lawyers Professional Indemnity Company (LPIC) had a duty to defend and
    indemnify him with respect to an action brought against him in Ontario by Michael
    Simanic, one of his former clients. The basis for the application judges
    decision was that the Ontario lawsuit did not relate to professional services
    with respect to the laws of Canada provided by the appellant and, accordingly,
    coverage under LPICs policy was not triggered.

[2]

The appellant contends that the application judge erred
    in three respects: (1) he did not properly apply the principles of insurance
    policy interpretation to the circumstances of this case; (2) he did not
    properly focus on the pleadings in the Ontario action against the appellantspecifically,
    by failing to recognize that the professional services giving rise to the claim
    were those performed in the context of the Ontario action; and (3) he
    misinterpreted the words with respect to the laws of Canada in the LPIC
    policy.

[3]

We do not accept these submissions. The application
    judge explicitly set out the governing principles of insurance policy
    interpretation. He also recognized, correctly, that [w]here a question relates
    to an insurers duty to defend the insured the starting point is the assessment
    of the pleadings. We can see no error in his analysis of either the LPIC
    policy or the pleadings in the Ontario action. In our view, the appellants
    professional services that gave rise to the claim were those he performed for
    the plaintiffs in St. Kitts.

[4]

Finally, we agree with the application judges
    conclusion that all of the appellants representation or Mr. Simanic that gave
    rise to the latters Ontario action against the appellant related to the
    territory and the laws of St. Kitts and Nevis. Accordingly, as the application
    judge concluded, the appellant was practicing the laws of St. Kitts and Nevis
    and, accordingly, fell outside LPICs policy coverage.

[5]

The appeal is dismissed. The respondent is entitled to
    its costs of the appeal fixed at $7,500, inclusive of disbursements and HST.

J. C. MacPherson J.A.

J. MacFarland J.A.

Gloria Epstein J.A.


CITATION: Segway Enterprises Inc. v. Lacroix, 2011 ONCA
      214

DATE:  20110318

DOCKET: C52337

COURT OF APPEAL FOR ONTARIO

Rosenberg, Moldaver and Feldman JJ.A.

BETWEEN:

Segway Enterprises Inc., Maria Lucy Vandenhurk and
          Luigi Di Diodato personally and in their capacity as trustees of the Di
          Diodato Family Trust, and Wilma Smith, Mary Dibacco and Anna Sonser in their
          capacity as trustees of the Di Diodato Family Trust

Applicants (Respondents in Appeal)

and

Luc
          Lacroix personally and in his capacity as trustee of the Fiducie Familiale
          Lacroix, Andre Garceau personally and his capacity as trustee of the Fiducie
          Familiale Garceau, Societe De Gestion GLG Inc
., Banyan Work Health
          Solutions Inc.,

and Banyan Quebec Inc.

Respondents (
Appellants in Appeal)

Robert B. Cohen, for the appellants

Scott Kugler and Brent J. Arnold, for the respondents

Heard and endorsed: March 17, 2011

On appeal from the order of Justice Donald Cameron of the
          Superior Court of Justice dated May 28, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that looked at as a whole, the order was fair and did
    not unfairly disadvantage the appellants. As the respondents point out, the
    parties agreed on a Valuation Date that crystallized the rights of the
    appellants and the respondents. This fundamental concept is properly reflected
    in the various terms of the order and, so far as could be done, protects
    vendors and purchasers. In particular, because as of the Valuation Date the
    appellants Locroix and Garceau no longer had any control of the companies, they
    were no longer to share in the actual profits and losses. All parties concede
    that in valuing the shares, expected profits would have to be taken into account
    by the valuators. If the different values are outside a reasonable rate (in
    this case fixed at 20%), the parties can return to the Commercial Court to have
    the matter adjudicated. Additionally, the parties can return to the Commercial
    Court to deal with issues such as interest that may have arisen because of the
    unexpected delay. However, this delay is not a reason to unwind the fundamental
    terms and structure of the order.
[2]

Accordingly, the appeal is dismissed.
[3]

As to the cross-appeal respecting costs of the application, while it is
    unfortunate that apparently the application judge did not entertain submissions
    or give reasons, having heard submissions respecting costs of the application,
    we are not persuaded that the application judge erred in the result in awarding
    no costs.
[4]

Accordingly, the cross-appeal is dismissed.
[5]

The respondents are entitled to their costs fixed at $15,000 inclusive
    of disbursements and HST.


CITATION:
Slovenia v. Soba, 2011
          ONCA 206

DATE: 20110315

DOCKET: C52023

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

The Republic of Slovenia and Minister of Justice and
          Attorney General of Canada

Respondent

and

Bostjan Soba

Applicant

John Norris and Brydie Bethell, for the applicant

Richard Kramer, for the respondent

Heard and released orally: February 17, 2011

An application for judicial review of the decision of the
          Minister of Justice dated July 16, 2009.

ENDORSEMENT

[1]

The applicant seeks judicial review of the Ministers
    decision to extradite him to the Republic of Slovenia. In oral argument the
    applicant focused on two grounds to challenge the decision of the Minister.

[2]

The first is that the Minister denied the applicant
    natural justice by rejecting supporting submissions of the Helsinki Monitor
    Organization. The Minister did so on the ground that he doubted the
    institutions legitimacy and on the ground of its association with the
    applicant. No notice of these grounds was given to the applicant ahead of time and
    therefore he had no opportunity to respond to them.

[3]

We would not give effect to this ground of judicial
    review for two reasons. First, the applicant, in his several submissions to the
    Minister, did not disclose and explain his association with the Helsinki
    Monitor Organization in order to alert the Minister to the issue. Second, the
    applicant could have asked the Minister for a reconsideration of the case based
    on this issue, and he did not do so.

[4]

The applicants second ground is based on the recent
    decision of the Supreme Court of Canada in
Németh
    v. Canada
, 2010 SCC 56, which came out after the Ministers decision and
    which the applicant says changed the law. In particular, he says that in
    interpreting s. 44(1)(b) of the
Extradition
    Act,
S.C. 1999, c. 18, the Supreme Court has broadened the type of prejudice
    that is relevant and has lowered the standard of proof of persecution from a
    balance of probabilities to a mere risk of persecution.

[5]

The Crown in response agrees that the
Németh
case did change the law, but only
    as it applies to certified convention refugees and not to refugee applicants.
    For them, the process is the one that the Minister followed in addressing the
    issue of potential prejudice by persecution in the requesting state.

[6]

The Minister checked with the Ministry of Citizenship
    and Immigration (CIC) to investigate and
advise
on the
    issue. In his reasons the Minister referred to the fact that the CIC found that
    the judicial system in Slovenia is a fair one and that there was no suggestion
    of any concern of the potential for persecution. We accept the submission of
    the Crown.

[7]

In the result, the application for judicial review is
    dismissed.

Signed: John Laskin J.A.

K.
    Feldman J.A.

Robert
    P. Armstrong J.A.