COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kazman, 2020 ONCA 22

DATE: 20200116

DOCKET: C65212, C65224, C65322 & C65858

Doherty, van Rensburg and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marshall Kazman

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Gad Levy

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Madjid Vaez Tehrani

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Ali Vaez Tehrani

Appellant

Richard Litkowski, for the appellant Marshall Kazman

Adam Little, for the appellant Gad Levy

Michael Dineen, for the appellant Madjid Vaez Tehrani

Mark Halfyard and Chris Rudnicki, for the appellant Ali
    Vaez Tehrani

John Patton, for the respondent

Heard: December 16, 2019

On appeal from convictions entered by Justice Nancy J. Spies
    of the Superior Court of Justice on September 8, 2017, reported at 2017 ONSC
    5300, and on appeal from sentences imposed by Justice Nancy J. Spies of the
    Superior Court of Justice on April 12, 2018, reported at 2018 ONSC 2332.

Doherty J.A.:

I

Overview

[1]

The appellants and others were charged with multiple counts of fraud and
    related offences arising out of several bank loans fraudulently obtained by
    them under the auspices of the Government of Canadas Small Business Financing
    Program. The program was intended to assist small businesses with loans,
    thereby improving the economy and creating jobs for Canadians. The loans were
    provided by banks but insured, to a large extent, by Industry Canada,
[1]
a department of the federal government. The banks and the taxpayer were all victims
    of the frauds.

[2]

The trial judge convicted the appellants, Kazman and Levy, on all
    charges. She convicted the appellant, M. Tehrani, of two counts of fraud and
    acquitted him on two counts. She convicted his brother, the appellant, A.
    Tehrani, on one count of fraud and acquitted him on two others. The trial judge
    acquitted three other accused on all counts.

[3]

All of the appellants appeal their convictions. None take issue with any
    part of the trial judges exhaustive analysis of the evidence, her findings of fact,
    or the verdicts she returned. In short, the appellants do not challenge their convictions
    on the merits.

[4]

The appellants do, however, argue that the trial judge erred in
    dismissing three motions brought at different stages of the trial for an order
    staying the proceedings on the basis of an alleged breach of s. 11(b) of the
Charter
.
    The appellants argue that the trial judge erred in dismissing s. 11(b) motions
    on each occasion without addressing the merits of the application.

[5]

Kazman and A. Tehrani also appeal their sentences. Kazman submits that
    the seven-year prison sentence imposed by the trial judge was manifestly
    excessive. He also argues that, in the circumstances, the trial judge should
    not have made a restitution order against him. A. Tehrani submits that the
    trial judge erred in imposing a custodial sentence. He contends that a
    conditional sentence, even if somewhat longer than the 14 months jail sentence
    imposed by the trial judge, is the appropriate sentence.

[6]

The court dismissed the conviction appeal with reasons to follow and
    reserved judgment on the sentence appeals. These reasons address both the
    conviction and sentence appeals.

II

The Nature of the Conviction Appeals

[7]

This was a lengthy and factually-dense prosecution. The evidence took five
    months to complete. Given that the appellants challenge only the rulings on the
    s. 11(b) motions, it is unnecessary to review the evidence or the findings of
    fact made by the trial judge. It is sufficient to observe that her reasons are
    meticulous and detailed. They lay bare a multi-layered fraudulent scheme
    perpetrated by the appellants on the banks and Industry Canada over a lengthy
    time period. The trial judges findings put Kazman, a disbarred lawyer, and
    Levy at the centre of this fraudulent scheme. On the trial judges unchallenged
    analysis of the evidence, there can be no doubt about the appellants guilt on
    the counts on which they were convicted.

[8]

The conviction appeals focus on three s. 11(b) rulings made by the trial
    judge in the course of the trial proceedings. The first s. 11(b) ruling was
    made in November 2016, just after the Crown closed its case at trial. All of
    the appellants joined in that motion. The trial judge summarily dismissed the
    motion without reaching the merits as it had not been perfected.

[9]

The second s. 11(b) motion came about a month later in December 2016.
    One of the non-appellant accused brought a motion to re-open the s. 11(b) motion.
    Counsel sought reconsideration on the basis that she could now put a perfected
    s. 11(b) motion before the trial judge. Only M. Tehrani joined in this motion. By
    the time this motion was brought, it was clear that the defence evidence at
    trial would continue into January, about a month longer than had been
    anticipated. The trial judge again summarily dismissed this motion without
    addressing the merits of the s. 11(b) claim.

[10]

The third s. 11(b) motion was brought some 15 months later in March 2018
    by Levy, on the eve of his sentencing. None of the other appellants joined in this
    motion. Once again, the trial judge summarily dismissed the s. 11(b) motion.

[11]

The trial judge gave brief oral reasons for dismissing the motions in
    November and December of 2016. She later provided detailed written reasons: see
R. v. Kazman
, 2018 ONSC 1913, 408 C.R.R. (2d) 151 (
Kazman
(2016
    applications)).
[2]
The trial judge also gave written reasons for dismissing Levys motion in March
    2018: see
R. v. Kazman
, 2018 ONSC 2196 (
Kazman
(2018
    application)).

[12]

The appellants raise several arguments. Most come down to the submission
    that the circumstances did not warrant the extreme remedy imposed by the trial
    judge. The appellants contend that a trial judge should decline to hear a
    motion on the merits only as a last resort, especially one based on a
    constitutional claim. They argue that despite non-compliance with various
    deadlines imposed by the trial judge, the s. 11(b) motions could have been
    heard on their merits within the timeframe of the ongoing trial and without
    prejudice to the Crown or to the conduct of the trial. They submit that the
    trial judge acted unreasonably in not affording them a further opportunity to perfect
    and argue their s. 11(b) motion.

[13]

In addition to the submissions which challenge the reasonableness of the
    trial judges exercise of her discretion, the appellants Kazman and Levy also
    allege that they were treated unfairly. They both argue that the trial judge
    did not afford them the assistance they were entitled to as unrepresented
    accused. Levy also argues that he was denied the opportunity to adequately
    address the Crowns claim that his March 2018 motion should be summarily
    dismissed. The appellants submit that this unfairness rose to the level of a
    miscarriage of justice.

III

The Legal Principles

[14]

This appeal does not raise any jurisprudential questions, but instead,
    turns on the application of well-settled law to the particular circumstances of
    this case. There can be no doubt that a trial judge has the authority to
    summarily dismiss motions brought at trial, including s. 11(b) motions. That
    power is recognized in Rule 34.03 of the
Criminal Proceedings Rules

for
    the Superior Court of Justice (Ontario)
(SI/2012-7). The case law from
    this court also acknowledges a trial judges power to summarily dismiss
    motions. Without that power, trial judges could not properly control the
    proceedings before them: see
R. v. Imola
, 2019 ONCA 556, at para. 17;
R.
    v. Blom
(2002), 61 O.R. (3d) 51, at paras. 28-30 (C.A.).

[15]

The power to dismiss motions summarily, especially motions involving
    constitutional claims, must be exercised cautiously. Motions that advance
    constitutional claims should be addressed on their merits unless the broader interests
    of justice clearly demand otherwise:
R. v. Loveman
(1992), 8 O.R. (3d)
    51, at pp. 55-56 (C.A.). In deciding whether to dismiss a motion summarily, the
    trial judge must have regard to the interests of the accused. The trial judges
    focus cannot, however, be limited to the narrow specifics of the particular
    case. The trial judge must consider broader administration of justice concerns,
    including the need to conduct all litigation, including criminal litigation, in
    a fair, orderly, and efficient manner. It falls to trial judges to decide where
    the interests of justice lie in each specific case.

[16]

The broader administration of justice concerns were placed front and
    centre in the powerful reasons of the majority in
R. v. Jordan
, 2016
    SCC 27, [2016] 1 S.C.R. 631, at paras. 137-141. Speaking specifically about the
    constitutional right to a trial within a reasonable time and the litigation
    that claims based on that right have spawned, Moldaver J. for the majority
    stressed that all participants in criminal litigation have a joint obligation
    to work co-operatively to effectively use limited available resources in order
    to bring cases to completion within a reasonable time: see also
R. v. Cody
,
    2017 SCC 31, [2017] 1 S.C.R. 659, at para. 1. No one, including
    self-represented accused, can be allowed to ignore court orders and deadlines
    while the constitutional clock runs down and valuable court resources are
    consumed. After
Jordan
, trial judges must engage in proactive case
    management of criminal trials. Litigants must cooperate in those case
    management efforts. Appellate courts must support those proactive steps by
    showing strong deference to case management decisions:
Jordan
, at
    paras. 138-139.

[17]

The trial judge considered many of the leading authorities: see
Kazman
(2016 applications), at paras. 122-127. She was also mindful of the admonition in
Jordan
and
Cody
that the court must expect and demand that
    all participants in the criminal justice system work cooperatively toward
    eliminating unnecessary delays and inefficiencies in the trial process.

IV

The History of the Proceeding

[18]

Because the appellants submissions focus primarily on the
    reasonableness of the trial judges decisions, it is necessary to put those
    rulings in the context of the proceedings. Contrary to the approach taken by
    the appellants, that context includes all of the proceedings, especially the
    entirety of the proceedings in the Superior Court, and not just the few months
    leading up to the dismissal of the first s. 11(b) motion in November 2016.

(i)

The Pre-Trial Period: Prior to September 2016

[19]

This prosecution arrived in the Superior Court by way of a direct
    indictment in late May 2015. There had been a prolonged preliminary inquiry
    featuring a 22-day cross-examination of one witness by Kazman, who was self-represented.
    Levy, who was also self-represented, had indicated that he also intended to
    cross-examine this same witness at length. Kazmans multi-week
    cross-examination, spread over more than a year, was still ongoing when the
    Attorney General preferred the indictment and moved the matter to the Superior
    Court.

[20]

Very soon after the prosecution arrived in the Superior Court, a judge
    of that court began to case manage the trial. Kazman and Levy were
    unrepresented. Kazman indicated he proposed to bring several motions, including
    a s. 11(b) motion. Kazman and Levy both brought
Rowbotham
applications. The applications unrelated to s. 11(b) were eventually dismissed.

[21]

In June 2015, the case management judge set a trial date for January
    2016. The parties anticipated a six-month long jury trial. The allocated trial
    time included three or four days for an anticipated s. 11(b) motion.
    Consequently, as of June 2015, all accused were aware that any s. 11(b) motion
    would be argued some seven months later during the time allocated for the trial.
    The accused knew they had to perfect those motions before the trial date so the
    Crown could respond.

[22]

The same judge continued to case manage the proceeding between July and
    November 2015. The progress of the proposed s. 11(b) motion came up at those
    case management hearings. None of the accused had ordered the necessary
    transcripts. It subsequently turned out that each was looking to the other to
    fund the acquisition of the transcripts. The case management judge reminded the
    accused of their obligations in respect of the s. 11(b) motion, which was still
    scheduled to be heard at trial in January 2016.

[23]

In November 2015, Kazman told the case management judge that he did not
    have the funds necessary to order the transcripts. In December, he requested an
    extension of the deadline for filing his s. 11(b) material to the actual trial
    date in January. He told the case management judge that he had ordered the
    transcripts about two weeks earlier. This was the first indication of anything
    that had been done by way of obtaining the material necessary to bring the s.
    11(b) motion. None of the other accused had done anything to perfect the s.
    11(b) motion. The case management judge rejected Kazmans request.

[24]

Subsequently, Kazman, as well as both M. and A. Tehrani, applied for an
    adjournment of the trial date. In support of that request, Kazman advised the
    case management judge that he had not perfected the anticipated s. 11(b)
    motion, which was to have been brought at trial. It is unclear what, if
    anything, had been done to perfect that motion.

[25]

At a case management conference in early January, the court granted the
    requested adjournment. The parties re-elected trial by judge alone. A second
    trial date was scheduled for September 2016. Four months were set aside for
    this trial.

[26]

The parties discussed the proposed s. 11(b) motion at the January case management
    conference. Kazman told the case management judge that the necessary transcripts
    would be available in the next few weeks. He told the judge that he planned to
    bring other pre-trial motions. The trial judge advised Kazman that if he was
    bringing a s. 11(b) motion, he had to perfect that application by March 3,
    2016. This was the second deadline imposed by the trial court in respect of s.
    11(b) motions.

[27]

Two days later, Kazman was back before the case management judge regarding
    a separate application and requested a further extension of the deadline for
    the preparation of his s. 11(b) motion. The trial judge extended the deadline
    for filing the material to April 6, and fixed May 13 as the date for the
    hearing of the s. 11(b) motion. The case management judge cautioned Kazman that
    if the necessary materials were not filed by him, the s. 11(b) motion could be
    summarily dismissed.

[28]

By this time, the discussions concerning the preparation and argument of
    the s. 11(b) motions had been ongoing before the case management judge for
    about eight months. Deadlines for filing had been set and extended. The accused
    were well aware of their obligation to obtain all of the necessary transcripts.

[29]

Some time in April 2016, Kazman advised the Crown that he was abandoning
    his s. 11(b) motion. On the scheduled date for the hearing of that motion in
    May 2016, Kazman told the court that he was abandoning the application without
    prejudice to bringing it back on at some future date. The case management
    judge told Kazman that he did not necessarily have the right to bring an
    abandoned application back before the court at some later stage.

[30]

Although Kazman had assured the case management judge in November 2015
    and January 2016 that all of the necessary transcripts would be available in
    the immediate future, it does not appear that any transcripts were ever
    provided to the Crown or filed with the court before Kazman abandoned his s.
    11(b) motion in May 2016.

[31]

In July 2016, Kazman advised the case management judge that he was now
    planning to bring a s. 11(b) motion in light of the recently released decision
    in
Jordan
. The case management judge reminded Kazman that his trial had
    been set seven months earlier for September and that any s. 11(b) motion that
    might be brought, had to be brought and perfected bearing in mind that the
    trial would proceed in September. This was the same approach the case
    management judge had taken a year earlier when Kazman advised that he intended
    to bring a s. 11(b) motion. At that time, the case management judge had fixed
    the trial date and indicated that the s. 11(b) motion would be heard during the
    time set aside for the trial.

[32]

By the middle of August 2016, Kazman and Levy had filed notices of
    application and affidavits in support of their s. 11(b) motions. None of the
    other necessary supporting material had been filed. The other accused had not
    filed s. 11(b) motions or any supporting material.

[33]

At a case management meeting on August 29, 2016, the case management
    judge told Kazman and Levy that their s. 11(b) motions could not be scheduled
    for argument as they had not been perfected as required by the Rules. Kazman,
    contrary to what he had been repeatedly told at case management meetings,
    argued that he should only have to produce the transcripts that he deemed
    relevant to his s. 11(b) motion. In any event, no transcripts had been provided
    to the Crown or filed with the court as of the August 2016 case management
    hearing. Kazman and the other accused had been on notice for well over a year
    about the requirements in respect of any s. 11(b) motion.

[34]

At the August 29 case management meeting, the Crown asked the case
    management judge to dismiss the s. 11(b) motions for non-compliance with the
    Rules. The case management judge declined to do so but told Kazman and Levy
    that they must perfect their s. 11(b) motions, which included filing the
    necessary transcripts, 30 days before the motion could be heard. Kazman assured
    the case management judge that this was not a problem.

(ii)

The Trial: September 2016  December 2016

[35]

On September 12, 2016, the first day of the scheduled trial, Kazman and
    Levy once again sought an adjournment of the trial to allow them to bring their
    s. 11(b) motions. They requested 30 days to perfect the s. 11(b) motion. Kazman
    stated that he had all the transcripts and could have everything filed within
    a couple days.

[36]

The trial judge refused the adjournment request. After spending
    considerable time discussing what was and was not required on the s. 11(b)
    motions, the trial judge indicated that the trial would proceed, and that the
    s. 11(b) motion would be heard at or near the end of the trial in mid-December.
    She reminded the accused of their obligations in respect of perfecting the s.
    11(b) motion.

[37]

As the trial progressed, considerable time was spent discussing the ongoing
    preparation of the s. 11(b) material. The trial judge was told from
    time-to-time that most of the material had been delivered and the material that
    had not yet been delivered would be available in the very near future. The
    trial judge continued to emphasize the need for counsel to produce material in
    an orderly way that would allow her to fully understand the history of the
    proceedings, and efficiently adjudicate the s. 11(b) so as to minimize
    interference with the trial proceedings.

[38]

In late-September 2016, the trial judge, at the Crowns request, imposed
    a deadline for the perfection of the s. 11(b) motions. She ordered that anyone
    bringing a s. 11(b) motion must file the necessary material by October 28, 2016.
    That date was fixed in anticipation of the motion being heard in mid-December, at
    or near the end of the trial. The October 28 deadline gave the Crown an
    adequate opportunity to review the accuseds material and prepare and file
    responding material.

[39]

In early October, the Crown advised the trial judge that they had not
    received many of the transcripts necessary for a proper hearing on the s. 11(b)
    motion. Both Kazman and Levy, who were unrepresented, began making references
    to lawyers who may or may not be acting for them on the s. 11(b) motion.

[40]

On October 26, two days before the deadline set by the trial judge, a
    lawyer who had been retained by Kazman about 10 days earlier for the purposes
    of the s. 11(b) motion appeared before the trial judge. His submissions made
    two things clear. First, very little, if anything, had been done by any of the
    accused or their counsel to perfect the s. 11(b) motion. As he put it in an
    email to other counsel, no one was serious about the s. 11(b) motion before he
    was retained by Kazman in mid-October 2016. Second, he told the trial judge
    that in light of the recency of his retainer and the state of the preparation
    of the s. 11(b) motion, he could not possibly comply with the courts deadline
    and could not give the court an informed assessment of when he might be able to
    perfect Kazmans s. 11(b) motion.

[41]

Newly-retained counsel for Kazman also outlined to the trial judge the
    steps he was taking to try and obtain the necessary transcripts. Finally, he
    told the trial judge that he had other commitments, which limited his availability
    to argue any s. 11(b) motion.

[42]

Counsel for M. Tehrani and A. Tehrani advised the trial judge that many
    of the necessary transcripts had been ordered but were not yet available.

[43]

The Crown argued that the abject failure of the accused to comply with
    the October deadline warranted a dismissal of the s. 11(b) motions. The trial
    judge rejected this submission, and instead gave the accused a further
    opportunity to perfect the motions. She extended the deadline to November 18.
    This was at least the fourth deadline that had been set in respect of the s.
    11(b) motions since the case had arrived in the Superior Court.

[44]

In granting this further extension, the trial judge made it clear that
    she expected counsel to cooperate in the perfection of the motions as
Jordan
had mandated. She reminded counsel that in addition to the necessary
    transcripts, she required proper factums and a compendium of transcripts to
    allow her to deal with the s. 11(b) motion expeditiously while minimizing
    interference with the ongoing trial. The accused were put on notice that the
    failure to comply with the November deadline would lead the Crown to request a
    summary dismissal of the s. 11(b) motion.

[45]

On November 2, 2016, a lawyer appeared for Levy, indicating that he may shortly
    be retained by Levy on the s. 11(b) motion. This lawyer apparently had no
    familiarity with the history or status of the s. 11(b) motion. Specifically, he
    did not know about any deadlines that had been set. This lawyer had been
    retained by November 18, 2016.

[46]

On the November 18 deadline, the s. 11(b) material remained deficient in
    many respects. Transcripts were still missing. Factums were either non-existent
    or inadequate. The trial judge had not received her requested transcript compendium,
    only having been provided with individual loose transcripts, none of which
    identified relevant passages. Nor had the transcripts of the appearances before
    the case management judge been properly redacted so that the trial judge could
    refer to that material insofar as it was relevant to the s. 11(b) motion.

[47]

Once again, the Crown submitted that the court should summarily dismiss
    the s. 11(b) motions for non-compliance with the Rules and the trial judges
    orders. This time, the trial judge accepted the Crowns submission, and
    dismissed the motions.

[48]

In her oral reasons, the trial judge stressed the repeated
    non-compliance with deadlines and court orders in respect of the perfection of
    the motions. She observed that the repeated and ongoing discussions and
    negotiations over the s. 11(b) motion had been a significant distraction and
    time-waster during the trial. Finally, she found that the Crowns ability to
    properly respond to the motions was compromised by the manner in which the
    material had been presented, and by the continued delay in the bringing of the
    motions.

[49]

After the trial judge dismissed the s. 11(b) motion for non-compliance
    with the Rules and the deadlines she had set, Kazman asked whether he could re-open
    the s. 11(b) motion as time continued to accrue. Although Kazman raised this
    issue personally with the trial judge, his s. 11(b) lawyer was present at the
    time.

[50]

The trial judge told Kazman that she did not see how any later s. 11(b)
    motion could be entertained, given that the prejudice suffered by the Crown
    through the delays in bringing the s. 11(b) motion would only be exacerbated if
    the motion was brought on at some later point in the trial.

[51]

The trial continued into December with the defence calling evidence. On
    December 14, 2016, the trial judge received a motion brought by counsel for an
    accused who was ultimately acquitted, seeking leave to re-open the s. 11(b)
    motion. The request was based on additional material relevant to the s. 11(b)
    motion that was now available but had not been available in November. Counsel
    for M. Tehrani filed material in support of the motion. The other accused did
    not file any material or formally join in the motion.

[52]

The trial judge initially indicated she was not inclined to review the
    material filed on the motion for reconsideration. Ultimately, however, she did
    accept and examine that material.

[53]

In dismissing the motion for reconsideration, the trial judge referred
    to some of the material that had been placed before her by counsel on that
    motion. In the trial judges view, that material shed considerable light on the
    reason the motions had not been perfected by the October or November deadlines
    set by her. The trial judge said, in
Kazman
(2016 applications), at
    para. 128:

I was now aware of why the two deadlines had not been complied
    with and it was clear to me that it was not because of a failure of counsel to
    cooperate or the lack of cooperation from transcriptionists but
rather a failure of counsel to take any steps to do the work
    needed to perfect their applications until after the First Deadline and to a
    large extent just before the Second Deadline.
[Emphasis added.]

[54]

The trial judge was also satisfied that although there was significant
    additional material filed on the motion for reconsideration, the s. 11(b) motion
    material remained deficient in many respects. The inadequate state of the material
    both prejudiced the Crown and compromised the trial judges ability to properly
    deal with the motions while continuing to efficiently conduct the trial to
    verdict. The trial judge declined to reconsider her earlier ruling. The trial
    continued.

(iii)

The Trial: December 2016  April 2018

[55]

Although the Crowns case had been completed slightly ahead of schedule
    in November 2016, the defence case lasted longer than had been anticipated. The
    defence evidence was completed on February 2, 2017, about a month behind
    schedule.

[56]

The parties filed written submissions in March 2017. The trial judge
    reserved judgment. She eventually released reasons totalling almost 400 pages
    in September 2017: see
R. v. Kazman
, 2017 ONSC 5300.

[57]

In early-October 2017, dates were set for sentencing submissions. By
    agreement, the accused would make sentencing submissions separately but the
    trial judge would impose all sentences at the same time. M. and A. Tehrani made
    sentencing submissions on November 25, 2017. On that date, Levy asked the trial
    judge to delay his sentencing submissions into January 2018 so that he could
    retain counsel for sentencing purposes. The trial judge reluctantly agreed, and
    adjourned Levys sentencing submissions to January 5, 2018. Counsel for Levy appeared
    on that day indicating he had just been retained. He requested a further adjournment
    so that he could prepare Levys sentencing submissions. The trial judge
    adjourned Levys sentencing submissions to March 9, 2018.

[58]

On March 8, 2018, the day before Levys newly-retained lawyer was scheduled
    to make sentencing submissions, Levy appeared before the trial judge with two
    different lawyers. Levy had retained these lawyers to bring an application for
    a reconsideration of the s. 11(b) motion. Levys s. 11(b) lawyers came to court
    armed with the application, several volumes of transcripts, a factum, and a
    book of authorities. None of the material had been served on the Crown.
    Contrary to the very clear instructions in
Jordan
, there had been no
    communication with the Crown by Levys s. 11(b) lawyers, and no attempt to work
    cooperatively with the Crown in bringing the motion forward.

[59]

Not surprisingly, Crown counsel was required to ask for an adjournment
    to examine the material filed by Levys two s. 11(b) lawyers on March 8. The
    trial judge adjourned the motion to re-open the s. 11(b) motion to March 27,
    2018.

[60]

On March 9, 2018, sentencing submissions were heard. The trial judge
    indicated she was prepared to sentence the accused on March 19. She also
    advised counsel for Levy that Levy could not be sentenced on that day in the
    face of the outstanding motion he had brought to re-open the s. 11(b) motion. Since
    all of the accused wanted to be sentenced at the same time, sentencing was
    adjourned.

[61]

On March 27, 2018, the Crown and Levys lawyers appeared and made
    submissions on the s. 11(b) motion to re-open. The Crown argued, consistent
    with its position throughout, that the trial judge should not hear the motion
    on the merits but should dismiss the motion for non-compliance with various
    Rules and court orders.

[62]

During the lengthy submissions by both counsel on the issue of whether the
    motion should be summarily dismissed, it became clear that counsel did not
    agree on whether the material filed by Levys s. 11(b) lawyers on March 8th
    contained all of the relevant transcripts. The trial judge asked counsel to
    resolve the matter between them and report back to her by email no later than
    April 3.

[63]

Instead of the requested email, the trial judge received an emergency
    motion brought by Levys s. 11(b) lawyers. The material filed on the emergency
    motion sought to demonstrate that there were no missing transcripts in the
    material that had been filed on Levys behalf.

[64]

The trial judge concluded that there was no need to hear the emergency
    motion. She decided that Levys motion to re-open the s. 11(b) claim should be
    dismissed for reasons that did not turn on the completeness of the record
    eventually filed on his behalf on March 8, 2018. The trial judge determined
    that it was, therefore, unnecessary to further delay matters by hearing
    submissions on the state of the s. 11(b) record.

[65]

The trial judge released written reasons on April 5, 2018, dismissing
    Levys motion to re-open the s. 11(b) motion: see
Kazman
(2018
    application). Reasons for sentence were delivered a week later on April 12,
    2018: see
R. v. Kazman
, 2018 ONSC 2332 (
Kazman
(sentence)).

V

Did the Trial Judge Err in Summarily Dismissing the s. 11(b) Motion
    in November 2016?

[66]

The appellants submit that the trial judge acted unreasonably in
    imposing the drastic remedy of summarily dismissing the s. 11(b) motion. They
    submit that the trial judge failed to consider several factors, including the
    steps actually taken to perfect the s. 11(b) motion, the complexity and amount
    of material needed to perfect the motion, the self-represented status of two of
    the accused (Kazman and Levy) through much of the proceeding, and the fact that,
    as it turned out, the trial went well beyond the anticipated completion date,
    thereby offering ample opportunity to argue the s. 11(b) motion without
    interfering with the trial or prejudicing the Crown.

[67]

I see no reason to interfere with the trial judges conclusion that it
    was not in the interests of justice to permit a further extension of the
    deadline for the filing of the required s. 11(b) material. The trial judge
    clearly appreciated that a summary dismissal was a drastic remedy. Her
    conclusion that the circumstances of this case called for that drastic remedy
    was not unreasonable.

[68]

The trial judge reviewed, as she was required to do, the entire history
    of the s. 11(b) motion in the proceeding. That history began almost immediately
    upon the case arriving in the Superior Court in mid-2015. The history showed
    repeated missed deadlines, repeated requests to adjourn the trial to properly
    perfect the s. 11(b) motion, little or no effort to perfect the motion until late
    October 2016, and serious misrepresentations as to the status of the s. 11(b)
    material by both Kazman and Levy. This prolonged pattern of conduct suggested
    that the accused had little, if any, real interest in actually bringing a s.
    11(b) motion.

[69]

The appellants submissions ignore the accuseds failure to pay any
    attention to the October 2016 deadline until a few days before it expired. On
    the trial judges findings, there was also little attention paid to the
    November 2016 deadline. The trial judge was entitled to put considerable weight
    on the attitude of the accused as reflected in their approach to the deadlines she
    had set. As Kazmans own lawyer told other counsel when he arrived on the scene
    in mid-October, no one was serious about the s. 11(b) motion until very
    shortly before the deadline. Counsels reference also applies to his own
    client. Kazman did little, if anything, until he retained counsel very shortly
    before the October 2016 deadline.

[70]

It is unreasonable to expect that deadlines set by a trial judge can
    simply be ignored by an accused confident that the trial judge will feel
    obliged to set new deadlines. To proceed on the premise that an accused is
    entitled to a new deadline whenever one is feasible in the circumstances is to
    accept and promote the culture of complacency toward delay in the criminal
    justice system, so clearly and emphatically rejected by the Supreme Court of
    Canada:
Cody
, at para. 1;
Kazman
(2016 applications), at paras.
    93, 106-110.

[71]

The appellants submission that the trial judge should have taken into
    account that the motion was nearly perfected by the November deadline conflicts
    directly with the trial judges findings. The material was far from complete.
    Further, given the history of this matter, the trial judge quite reasonably had
    no confidence that the accused would comply with any further deadline she might
    set: see
Kazman
(2016 applications), at paras. 113-114, 118.

[72]

In refusing to grant a further extension beyond November 2016, the trial
    judge reasonably took into account the conduct of the accused, especially
    Kazman and Levy, in respect of the discussions concerning the s. 11(b) motion
    which had been ongoing since the trial started. Kazman appeared to be the prime
    mover on the s. 11(b) motion. Levy had filed an application in support of the
    motion.

[73]

On the trial judges findings, both Kazman and Levy had misrepresented
    the status of the s. 11(b) material in an unsuccessful attempt in September
    2016 to convince the trial judge to adjourn the trial. Common sense dictates
    that trial judges take into account the reliability of any representations
    being made about the status of material needed to perfect a motion. Given the
    misrepresentations made to her by Kazman and Levy, it was hardly surprising
    that the trial judge would be most reluctant to act on representations made by
    them or on their behalf.

[74]

The appellants submit that the trial judge unreasonably mischaracterized
    the statements of Kazman and Levy as lies. They argue that the statements,
    while incorrect, were not deliberately false. In those statements, Levy and
    Kazman represented that things had been done or were about to occur which subsequent
    events demonstrated had not been done and were not about to occur. I do not see
    how it can be said that the trial judge acted unreasonably in characterizing
    the statements as deliberately false: see
Kazman
(2016 applications),
    at paras. 24-25, 104.

[75]

The trial judge also properly considered the negative impact on the
    trial and the administration of justice were she to grant yet further delays in
    the perfection of the s. 11(b) motion. As the trial judge pointed out, the evidence
    was supposed to end by late December. She had judicial duties elsewhere in
    January. The trial judge was concerned that valuable court time had been lost
    and would continue to be lost over ongoing discussions about material filed or
    not filed in respect of the s. 11(b) motion. These ongoing discussions,
    combined with the accuseds failure to file appropriate factums and the trial
    judges requested compendium, would cause additional disruptions in the trial
    process and additional delays in the completion of the trial.

[76]

The trial judge was also entitled to take into account the effect of the
    accuseds failure to meet the deadlines on the Crown. The trial judge was
    satisfied that if she extended the deadlines for filing the necessary material
    yet again, the s. 11(b) motion could be heard by the end of December (the
    anticipated end of the evidence at trial) only if the Crown was required to
    respond on short notice to the motion. The trial judge reasonably concluded
    that this would prejudice the Crown and impair the proper adjudication of the
    motion:
Kazman
(2016 applications), at paras. 118-119, 129.

[77]

The trial judges reasons display a full command of the tortured history
    of the s. 11(b) proceedings in this matter. They offer a full and cogent
    explanation for the order she made in November 2016. If the new mindset
    proclaimed by
Jordan
and reaffirmed in
Cody
is to become the
    reality in criminal courts, this court must affirm decisions like the one made
    by the trial judge in November. That decision was entirely reasonable.

[78]

Apart from the reasonableness of the trial judges decision, the
    appellants also argue that the trial judge made a processing error in those
    reasons. They contend that she failed to consider events which transpired
    between November 2016, when she summarily dismissed the s. 11(b) motion with oral
    reasons, and March 2018, when she released her written reasons for dismissing
    the motion in November 2016.

[79]

I confess that I do not understand this submission. The trial judges
    reasons, although released in March 2018, were offered to explain why she made
    the order she did in November 2016 (and December 2016). I think it would have
    been wrong for her to attempt to justify that decision based on subsequent
    events. Similarly, subsequent events cannot render unreasonable what was a
    reasonable decision at the time it was made.

[80]

If the appellants took the position that subsequent events warranted a
    further s. 11(b) motion, they could have brought the appropriate motion before
    the trial judge. No such motion based on unanticipated delay post-November 2016
    was brought until March 2018. That motion was brought by Levy only.

[81]

The arguments advanced on behalf of Kazman and Levy that they were
    treated unfairly by the trial judge between September and November 2016 can be disposed
    of in short order. The appellants contend that they were not given adequate
    assistance by the trial judge in preparing their s. 11(b) motion, and that she
    should have given them more leeway in terms of compliance with her orders and
    the Rules because they were unrepresented.

[82]

This submission turns a blind eye to the realities as found by the trial
    judge. Kazman and Levy did not fail to perfect their s. 11(b) motion in a
    timely way because they did not know what was needed, or because the task was
    too complicated, or because they were missing some of the necessary minutiae. Kazman
    and Levy failed to perfect as required because, as Kazmans own lawyer
    indicated, no one took the October deadline seriously until a few days before
    the deadline. Kazman did next to nothing to perfect the motion until he hired a
    lawyer a few days before the deadline. Levy did next to nothing before the
    October deadline, and continued to do next to nothing until about a year later
    in November 2017 when some transcripts were ordered on his behalf.

[83]

On the trial judges findings, Kazman and Levy not only did not pursue
    the preparation of the s. 11(b) material, they misrepresented the status of
    that material to the trial judge. I see no merit to the claim that the trial
    judge had a duty to be more helpful to Kazman and Levy in the preparation of
    their s. 11(b) motion when on the findings of fact, they were both lying to her
    about the status of their preparation and doing little, if anything, to prepare
    the necessary material.

VI

Did the Trial Judge Err in Dismissing the Motion to Re-Open the
    s. 11(b) Application in December 2016?

[84]

The onus was on the accused who sought leave to re-open the s. 11(b) motion
    to satisfy the trial judge that there were satisfactory grounds for doing so. As
    I understand the record, counsel argued that they should be allowed to re-open
    the s. 11(b) material as the additional material placed before the court since
    the motion was dismissed in November had overcome the many shortcomings in the
    s. 11(b) material. Counsel submitted that there was now a proper record before
    the trial judge for a determination of the s. 11(b) motion on the merits.

[85]

Once again, I am satisfied that the trial judge acted reasonably in
    declining to exercise her discretion in favour of re-opening the s. 11(b) motion.
    She relied on the following:

·

M.
    Tehrani and the other accused who sought to re-open the s. 11(b) motion had
    done virtually nothing to bring the motion forward according to the October and
    November deadlines previously set by the trial judge. M. Tehrani had not ordered
    any of the transcripts.

·

Many
    of the deficiencies in the material that had caused the trial judge to dismiss
    the motion summarily in November 2016 had not been remedied. Some of the
    necessary transcripts had still not been filed.

·

Allowing
    the accused to re-open the s. 11(b) motion in December would cause the same
    serious prejudice to the Crown, and the same interference with the orderly
    conduct of the trial, as would have occurred had the trial judge extended the
    deadline for perfection in November 2016.

[86]

The appellants submit that the trial judge acted unreasonably in
    refusing to allow counsel to re-open the s. 11(b) motion in December. They
    submit that the trial judge acted on a technical and strict application of a
    practice direction relating to s. 11(b) motions that had only been recently put
    into force:
Provincial Practice Direction Regarding Applications under s.
    11(b) of the Canadian Charter of Rights and Freedoms (Effective September 1,
    2016)
.
[3]

[87]

I reject the appellants description of the basis upon which the trial
    judge refused to re-open the s. 11(b) motion. Certainly, the trial judge was
    concerned about the terms of the practice direction. She based her refusal,
    however, on other factors, including the failure to make even modest efforts to
    comply with earlier court-imposed deadlines, the continued inadequacy of the
    material, and the ongoing prejudice to the Crown and the trial process.

VII

Did the Trial Judge Err in Dismissing Levys Motion to Re-Open
    the s. 11(b) Motion in April 2018?

[88]

The trial judge gave extensive reasons for summarily dismissing Levys motion
    to re-open the s. 11(b) motion in April 2018. Those reasons not only cross the
    reasonableness threshold, they establish an overwhelming case for the summary
    dismissal of the motion.

[89]

The trial judge accepted the Crowns submission that Levy had
    deliberately misled the court in the post-conviction phase of the trial proceedings.
    Levy, and later a lawyer retained by him, had secured adjournments of Levys
    sentencing proceedings, first, to allow Levy to hire a lawyer, and second, to
    allow the lawyer he hired at the last moment to prepare for sentencing.

[90]

At the same time that Levy was obtaining adjournments in respect of the
    sentencing, two different lawyers were compiling material for yet another s.
    11(b) motion by Levy. While it is unclear exactly when Levy formally retained
    the two s. 11(b) lawyers, transcripts necessary for the s. 11(b) motion were
    ordered in November 2017, some five months before the motion was brought.
    Neither the Crown nor the court received any advance notice of the proposed s.
    11(b) motion.

[91]

Levy could not bring a s. 11(b) motion after he was sentenced. The trial
    judge would have been
functus officio
. However, as long as the
    sentencing was adjourned and remained outstanding, Levy had the opportunity to
    bring a further s. 11(b) motion. The adjournments Levy obtained in the
    sentencing proceedings effectively ensured that those proceedings would remain
    alive until he decided to move on his s. 11(b) motion. Levy made no mention of
    any possible s. 11(b) motion when he sought the adjournments of his sentencing
    proceedings.

[92]

I regard Levys actions as an abuse of the process of the trial court.
    To allow him to proceed with the s. 11(b) motion would not only reward that misconduct,
    it would fly directly in the face of
Jordan
s command that all parties
    collaborate to use court resources efficiently. Not only was there no
    collaboration with the Crown or the court in respect of this proposed s. 11(b)
    motion, the trial judge aptly described the manner in which the motion was
    brought as a blatant attempt to ambush the Crown and the court:
Kazman
(2018 application), at paras. 72, 83.

[93]

Although I have no hesitation in concluding that the motion could be
    properly dismissed based on the conduct described above, there were other good
    reasons to summarily dismiss the motion. By bringing the motion without any
    notice or consultation with the Crown, counsel virtually assured that if the trial
    judge had allowed the motion to proceed, there would have been further lengthy
    delays while counsel wrangled over the adequacy and completeness of the record
    put forward unilaterally by Levy. The assumption that the s. 11(b) motion would
    have gone forward smoothly and without delay ignores the history of this
    proceeding and the tactics used in bringing the motion in March 2018. It is
    safe to assume that many months would have gone by before this motion could
    have been determined on its merits.

[94]

In refusing to consider the s. 11(b) motion on its merits in April 2018,
    the trial judge also took into account Levys conduct in respect of the s.
    11(b) motion that had been dismissed in November 2016. Levy had done virtually
    nothing to pursue that motion. He had not ordered transcripts and had lied to
    the court as early as September 2016 about efforts to obtain the necessary
    transcripts:
Kazman
(2018 application), at para. 54.

[95]

In the absence of any genuine effort by Levy to bring a s. 11(b) motion
    forward according to the schedule set by the court, the trial judge correctly
    put the onus on Levy to show cause as to why the motion should be entertained
    on the eve of sentencing, especially when it would inevitably result in a
    further significant delay. The trial judge said, in
Kazman
(2018
    application), at para. 84:

The interests of justice would not be served by my giving Mr.
    Levy leave at this late date to finally get serious about bringing a s. 11(b)
    application.

[96]

In refusing to allow Levy to advance the s. 11(b) motion, the trial
    judge also considered whether the post-conviction proceedings could give rise
    to a tenable s. 11(b) claim that had not existed when the earlier motions were
    dismissed. The trial judge pointed out that the delay from the end of the
    evidence at trial (February 2017) to the anticipated sentencing in March 2018
    resulted from several factors, including the time needed to allow for the
    preparation of written submissions, and five months required by the trial judge
    to prepare her several hundred pages of reasons for judgment. After the reasons
    were delivered, time was needed for sentencing submissions. Various dates were
    set on consent and with a view to accommodate the accused request that all of
    the accused be sentenced at the same time. The sentencing submissions were
    delayed by Levys request for adjournments so that he could retain counsel.

[97]

I see no error in the trial judges assessment that post-conviction
    events did not give cause to reconsider s. 11(b) based on the post-conviction events:
Kazman
(2018 application), at paras. 64-67.

[98]

There is no merit to Levys argument that he did not have an opportunity
    to respond to the Crowns argument that his s. 11(b) motion should be summarily
    dismissed. That had been the Crowns position in respect of s. 11(b) motions
    since August 2016. Counsel made full submissions in response to the Crowns
    position. The trial judges determination that she did not have to hear further
    submissions on an issue which she had concluded was irrelevant to her decision
    did not work any unfairness on Levy.

[99]

The conviction appeals are dismissed.

VIII

The Sentence Appeals

A.

Kazman

[100]

Counsel for
    Kazman submits that the trial judge over-emphasized the principles of general
    deterrence and denunciation in imposing a seven-year jail sentence. He submits
    that the restitution order was inappropriate given Kazmans dire financial
    circumstances and his inability to pay the order.

[101]

The trial judge
    determined that Kazman and Levy were at the centre of a scheme used to obtain
    funds through the Small Business Financing Program. The scheme was fraudulent
    from the outset. The trial judge said, in
Kazman
(sentence), at para.
    393:

certainly with respect to Messrs. Kazman and Levy, this was a
    pre-meditated, sophisticated, large scale, multi-million dollar complex fraud
    of the Government of Canadas [Small Business Financing Program] and five major
    banks. It involved a high level of planning and orchestration, skill, deception
    and covert behaviour that took place over a lengthy period of time; many months
    and in some cases years. There were multiple victims, the principal ones being
    the Canadian taxpayers.

[102]

In addition to
    convictions on five fraud charges, Kazman was convicted of laundering the
    proceeds of that criminal activity and committing the frauds for the benefit of
    a criminal organization. The latter conviction required the imposition of a
    sentence consecutive to the sentence imposed on the fraud charges:
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 467.14.

[103]

Kazman was a
    disbarred lawyer. The disbarment arose out of fraudulent mortgage transactions.
    Kazman perpetrated the frauds that are the subject of this appeal, while his
    appeal from his disbarment proceedings was underway. Kazmans personal history
    offers little hope of rehabilitation.

[104]

The trial judge
    was alive to mitigating factors pertaining to Kazman, including his health and
    the negative impact of incarceration on his family:
Kazman
(sentence),
    at paras. 481-483. In my view, the total sentence imposed does take those
    factors into account. The period of incarceration was fit.

[105]

There is really
    no argument against the restitution order made. As counsel acknowledges, a
    persons inability to pay a restitution order is not determinative of whether
    the order should be granted. It may be that the order will have very little
    ultimate value to the victims of Kazmans crimes. That is no reason to refuse
    to make the order.

B.

A. tehrani

[106]

A. Tehrani
    argues that he should have received a conditional sentence of two years less a
    day, rather than the custodial sentence of 14 months imposed by the trial
    judge. In support of this submission, counsel relies on A. Tehranis limited
    involvement in the fraudulent scheme (he was involved in only a single loan in
    the amount of $188,190), his minimal, if any, profit from the scheme, his
    positive antecedents, and his ongoing medical and financial problems.

[107]

Counsel for A.
    Tehrani also invokes the parity principle. He notes that a co-accused who
    received a conditional discharge was similarly, or even somewhat more
    extensively involved in the scheme than A. Tehrani. That accused, however, pleaded
    guilty and made some restitution.

[108]

Finally, counsel
    submits that the trial judge mischaracterized A. Tehranis offence as involving
    a breach of trust and used that mischaracterization to require that A. Tehrani
    establish exceptional circumstances as a precondition to the imposition of a
    non-custodial sentence.

[109]

With the
    exception of the last argument, all of the arguments made on appeal were made
    and considered by the trial judge in her reasons for sentence:
Kazman
(sentence),
    at paras. 462-467. The trial judge considered the parity argument, but
    ultimately concluded that for sentencing purposes, A. Tehrani was best compared
    to his brother. Like his brother, A. Tehrani had gone to trial, made no
    restitution, and showed no remorse for his conduct. M. Tehrani was, however,
    involved in two fraudulent loans, as opposed to A. Tehranis one fraudulent
    loan. The trial judge gave M. Tehrani a custodial sentence of two years less a
    day:
Kazman
(sentence), at paras. 464-67. The shorter sentence imposed
    on A. Tehrani adequately reflects his lesser involvement in the fraudulent
    scheme. The trial judge correctly applied the parity principle.

[110]

I also cannot
    accept that the trial judge erred in referring to the offence as involving a
    kind of breach of trust. Further, she did not decline to impose a non-custodial
    sentence only because the offence involved a breach of trust.

[111]

The trial judge,
    in reviewing the relevant authorities, referred to cases from this court which
    have indicated that frauds targeting public funds engage trust-like
    considerations that are properly viewed as aggravating on sentence: see
R.
    v. Gray
(1995), 76 O.A.C. 387, at para. 32 (C.A.). The trial judge did not
    err in characterizing this fraud as involving public funds and an element of
    trust. Targeting entities funded by taxpayers is an aggravating factor when
    sentencing for fraud-related offences.

[112]

In concluding
    that a custodial sentence was necessary, the trial judge followed a long and
    unbroken line of authority from this court which accepts that deterrence and
    denunciation must be the dominant considerations in sentencing for large-scale
    sophisticated frauds. In most cases, those factors will require incarceration.
    The trial judge was satisfied that A. Tehranis circumstances did not justify a
    departure from that norm. I see no reason to interfere with the trial judges
    careful balancing of the various factors relevant on sentencing. The sentence
    imposed was fit.

[113]

I would grant
    leave to appeal the sentences, but would dismiss the appeals.

Released: DD  JAN 16 2020

Doherty J.A.

I agree. K. van
    Rensburg J.A.

I agree. C.W.
    Hourigan J.A.

[1]

Now Innovation, Science and
    Economic Development Canada
.

[2]

Although the trial judges
    written reasons were released in March 2018, long after the dismissal of the motions,
    the appellants do not argue that the written reasons cannot be relied on as
    accurately reflecting the trial judges reasons for dismissing the motions.

[3]

This practice direction was
    released shortly after
Jordan
as a standalone document but since the
    trial has been merged to become Part VI of the
Provincial Practice Direction
    Regarding Criminal Proceedings
.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.R.M., 2020 ONCA 75

DATE: 20200131

DOCKET: M51178 (C67259)

van Rensburg J.A. (Motions
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

M.R.M.

Applicant

Ricardo Golec, for the applicant

Nicolas de Montigny, for the respondent

Heard: January 23, 2020

REASONS FOR DECISION

[1]

The applicant is serving a sentence of five
    years imprisonment for incest. After serving one year, he applies for bail
    pending appeal as to sentence only. In accordance with s. 679(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46, leave to
    appeal sentence is required before bail can be granted. In this case leave to
    appeal sentence is granted on consent of the Crown.

[2]

The criteria for bail pending appeal of sentence
    alone are set out in s. 679(4). The applicant must satisfy the court that:

(a)

the appeal has sufficient merit that, in the
    circumstances, it would cause unnecessary hardship if he were detained in
    custody;

(b)

he will surrender himself into custody in
    accordance with the terms of the order; and

(c)

his detention is not necessary in the public
    interest.

[3]

The Crown opposes bail. There is no issue with
    respect to the second criterion. Rather, the Crown opposes release on the basis
    that the applicant has not demonstrated that his appeal has sufficient merit
    such that detention in custody pending the appeal would cause unnecessary
    hardship. The Crown says that there is no unnecessary hardship in serving an
    appropriate sentence, and that here the applicants sentence was fit given the
    existence of several aggravating factors. The Crown also opposes release on
    public interest grounds based on the seriousness of the offence, the impact on the
    victim, and the very low likelihood that the applicants five-year sentence
    will be disturbed on appeal. The Crown does not assert any public safety
    concern in relation to the public interest criterion.

[4]

The issue before the court is whether the
    applicants appeal is more likely than not to succeed to the extent that he
    will have served his sentence by the time the appeal is heard. As Justice
    Trotter notes in
The Law of Bail in Canada
,
    loose-leaf (2017-Rel.2), 3d ed. (Toronto: Thomson Reuters, 2010), at pp. 10-39
    to 10-40: The applicant must demonstrate that the appeal is sufficiently
    meritorious such that, if the accused is not released from custody, he/she will
    have already served the sentence as imposed, or what would have been a fit
    sentence, prior to the hearing of the appeal. It prevents the applicant from
    serving more time in custody than what is subsequently determined to be
    appropriate.

[5]

The applicant pleaded guilty in the Superior
    Court to one charge of incest and one charge of sexual interference in relation
    to multiple incidents of sexual intercourse with his sister, T.D. There was an
    agreed statement of facts, and he was convicted of both offences. The
    sentencing judge, after considering the Crowns opposition to doing so, stayed
    the conviction for sexual interference under
Kienapple

(
R. v. Kienapple
, [1975] 1 S.C.R.
    729). Following a
Gardiner
hearing (
R.
    v. Gardiner
, [1982]
    2 S.C.R. 368)

at which both the applicant and T.D.
    testified, the sentencing judge found that the applicant and the complainant
    had sexual intercourse commencing when the complainant was 12 years old, on
    three to five occasions, including after the applicant was already involved
    with his current partner. T.D. gave birth to the applicants child when she was
    14. The complainant and the applicant did not grow up together and first met
    when the applicant came to Canada from Haiti at the age of 18, in 2011 when
    T.D. was 11. He had difficulty adjusting to life in Canada and developed a
    close relationship with T.D.

[6]

The sentencing judge dismissed the applicants
    challenge to the five-year mandatory minimum sentence under s. 155(2) of the
Criminal
    Code
(for incest when the complainant is under 16 years).
    Applying the two-step test in
R. v. Nur
, 2015
    SCC 15, [2015] 1 S.C.R. 773, he began by considering a just and proportionate
    sentence for the offence having regard to the sentencing criteria set out in s.
    718 of the
Code
.

[7]

The sentencing judge considered the fact that
    the offence was serious, and committed against a child. He looked at the
    circumstances of the offence, the offender and the effect of the offence on the
    complainant. He took into consideration the mitigating circumstances: the
    applicants relative youth and immaturity, his guilty plea, the fact that he and
    T.D. had not grown up as brother and sister, the applicants difficult
    adjustment to Canada, and the support of his mother and partner (with whom he
    had a child). The sentencing judge also addressed the aggravating
    circumstances: the number of times sexual intercourse took place, over a
    prolonged period of time, the fact that the applicant fathered a child with
    T.D., T.D.s age, the age difference, the fact that the applicant was more than
    20 years old at the time of the last incident, the devastating impact on T.D.,
    and the impact on the child, who has severe health issues and special needs. The
    sentencing judge observed that the primary sentencing objectives in such a case
    are deterrence and denunciation.

[8]

Finally, the sentencing judge referred to the
    various sentencing precedents provided by counsel for both sides. He concluded
    that, since this courts decision in
R. v. P.M.
, 2012 ONCA 162, 282 C.C.C. (3d) 450, the appropriate range would be
    4.5 to 6.5 years for incest, whether by a parent or a sibling of the victim, and
    that, after considering the mitigating and aggravating factors in this case, a
    fit sentence for the applicant would be five years.

[9]

The sentencing judge went on to consider the
    second part of the
Nur

test. The
    mandatory minimum sentence was not disproportionate to what he had determined
    to be a fit sentence for the applicant. As for whether it was grossly
    disproportionate to a reasonable hypothetical offender, the sentencing judge rejected
    the hypothetical proposed by the applicants counsel as lacking in detail and far-fetched
    (as it assumed the accused came from a place where incest was legal, without
    addressing whether incest with a minor would be legal). Instead, he considered
    a different hypothetical where the complainant and accused were close in age, and
    had not grown up together, with one incident of intercourse, and no pregnancy. The
    sentencing judge concluded that the mandatory minimum sentence of five years was
    not grossly disproportionate to a 3.5-year sentence that might be appropriate
    for such a reasonable hypothetical.

[10]

The applicant says that the sentence appeal has
    merit. First, he argues that the sentencing judge erred in his conclusion about
    the constitutionality of the mandatory minimum sentence. The applicant asserts that
    the sentencing judge instructed himself incorrectly with respect to the
    reasonable hypothetical. He refers to para. 62 from
Nur

and asserts that a passage in the French version (Les hypoth
è
ses fantaisistes ou nayant quun faible
    rapport avec lesp
è
ce doivent
ê
tre
écarté
es), which was referred to by the sentencing judge here, has a
    different meaning in the English version (Fanciful or remote situations must
    be excluded). This gave rise to the sentencing judges error, which, according
    to the applicant, was to require the reasonable hypothetical to be related to
    the facts of the applicants case. The applicant points to the reasonable
    hypotheticals set out in the Court of Appeal of Quebec decision in
Y.P.
    c. R.
, 2019 QCCA 1506, at para. 21, as more appropriate
    and reasonable (although the court in that case considered the hypotheticals inadequate
    and refused to rule on the constitutional question where, under the first step
    in
Nur
,

the sentence was fit: see
    paras. 29, 50-54).

[11]

The Crown asserts that para. 62 of
Nur

must be considered in the context of the entire reasons,
    and disagrees that there is any difference in the formulation of the test
    between the French and English versions. Moreover, the Crown asserts that there
    was no error in the trial judges interpretation and application of the second
    step in
Nur
. According to the Crown, the
    sentencing judge simply rejected the hypothetical offered by the defence as
    fanciful, and instead used a hypothetical that was consistent with the so-called
    best offender whose conduct might be caught by this section.

[12]

The constitutionality of the five-year mandatory
    minimum sentence at issue here has not yet been considered by this court. The
    applicant could succeed on this part of his appeal if this court accepted that
    the mandatory minimum sentence was grossly disproportionate to a reasonable
    hypothetical, or using terminology from
R. v. Lloyd
, 2016 SCC 13, [2016] 1 S.C.R. 130, the reasonably foreseeable
    applications of the mandatory minimum. In the circumstances I cannot say that
    the constitutional challenge is without merit.

[13]

However, even if the applicant were successful
    in persuading this court that the mandatory minimum sentence of five years is
    grossly disproportionate when applied to a reasonably foreseeable best
    offender, he would still need to demonstrate a legal error that would warrant
    interference with his sentence and then that a lesser sentence is warranted,
    before he will succeed in his appeal.

[14]

This brings us to the applicants second ground
    of appeal: that the sentencing judge erred in imposing a five-year sentence,
    and that a fit sentence in this case would be much lower (at the sentencing
    hearing defence counsel asked for a custodial sentence of less than six months
    because of the immigration consequences of the sentence; the applicants
    counsel in this court says that a fit sentence is one that the applicant will
    reasonably have served at the time his appeal is heard).

[15]

The applicant says that the error of the
    sentencing judge was in identifying 4.5 to 6.5 years as an appropriate range,
    in reliance on a number of cases that had little bearing on the facts of his
    case. He points to examples of cases where much lesser sentences were imposed,
    including
R. c. Y.G.
, 2016 QCCA 1075, where
    the Court of Appeal of Quebec, while upholding a sentence of 15 months, said in
    a short endorsement that a more appropriate sentence for a similar case would
    have been between 18 and 24 months (the case report gives very few details of
    the offence).

[16]

The Crown says that the sentencing judge
    committed no error in principle, that his determination of sentence is entitled
    to deference, and that in any event, having regard to the mitigating and
    aggravating circumstances, all of which were specifically mentioned and taken
    into consideration, the applicants sentence was fit. Moreover, the Crown says
    that, even if an error could be demonstrated, there is no reasonable prospect
    that the applicant, at the time of his appeal, will already have served any
    sentence that this court might impose.

[17]

I agree with the Crowns position. First, while
    the applicants counsel referred to some reported incest cases attracting
    sentences of less than five years, the sentencing judge here acknowledged that
    there were such cases, and explained why, in his opinion, the aggravating and
    mitigating circumstances would warrant a sentence of five years. It is not
    suggested that the sentencing judge ignored any circumstance that was relevant
    to this case, although the applicants counsel argues that the circumstances
    ought to have been weighed differently. While the failure to give effect to a
    mitigating circumstance can be a reversible error, a judges weighing of
    aggravating and mitigating factors is typically entitled to deference:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    49;
R. v. Mahmood
, 2016 ONCA 75, 343 O.A.C.
    380, at para. 18. The sentencing judge also pointed to this courts decision in
R. v. D.(D.)
(2002), 58 O.R. (3d) 788 (C.A.),
    which signaled that the sexual abuse of a child will attract lengthy
    penitentiary sentences, and
R. v. M. (P.)
,
    2012 ONCA 162, 282 C.C.C. (3d) 450,

which cited this principle in
    sentencing for incest as recently as March 2012. In my view, the applicant has
    an uphill battle to demonstrate a reversible error in the sentencing judges
    approach to sentence or, even if there were an error, that the sentence is
    unfit.

[18]

In any event, the applicant has not persuaded me
    that it is more probable than not that a successful appeal would result in a
    significantly lower sentence than that imposed at trial. And I see no prospect
    at all that if the applicant is successful on appeal, he will already have completed
    any sentence this court might impose in substitution for the five-year
    sentence. There was no pre-sentence custody. The applicant has just now
    completed one year of his five-year sentence. It is anticipated by both counsel
    that the appeal can be perfected within weeks and the appeal will be scheduled
    for a hearing shortly thereafter. There is no undue hardship in serving a fit
    sentence, and it would not be in the public interest to release the applicant in
    these circumstances.

[19]

Accordingly, while leave to appeal sentence is
    granted, the application for bail pending appeal is dismissed.

K. van Rensburg J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mastenbroek, 2020 ONCA 76

DATE: 20200131

DOCKET: C66696

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Casey Mastenbroek

Appellant

Walter Fox and Sayeh Hassan, for the appellant

Catherine Weiler, for the respondent

Heard and released orally: January 22, 2020

On appeal from the conviction entered on November 23,
    2018 by Justice Kenneth G. Hood of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault after a trial before a
    judge of the Superior Court of Justice sitting without a jury. He was sentenced
    to a term of imprisonment of 20 months and ordered to comply with a probation
    order for a period of 2 years after his release from custody.

[2]

In this court, the appellant advanced three grounds of appeal against
    conviction. He says that the trial judge erred:

i.

in failing to deal with inconsistencies in the testimony of various
    Crown witnesses, in particular, the testimony of the complainant;

ii.

in engaging in stereotypical reasoning in assessing the testimony of two
    Crown witnesses and the appellant; and

iii.

in failing to appreciate the motive advanced by the appellant for the
    complainants claim that the acts of sexual intercourse were not consensual.

[3]

On the evidence adduced at trial, the trial judge found, as he was
    entitled to do, that the complainant did not consent to having sexual
    intercourse with the appellant. He also found, again as he was entitled to do,
    that she was incapable of consenting to that sexual activity. He rejected, as
    unworthy of belief, again as he was entitled to do, the testimony of the
    appellant.

[4]

The reasons of the trial judge well explain the factual conclusions he
    reached which led him to his finding that the appellants guilt of sexual
    assault had been established beyond a reasonable doubt.

[5]

In our view, the trial judges analysis of the issue of consent was
    sound. His assessments of credibility reveal no flaw and are entitled to
    deference in this court. We are not persuaded that he misapprehended any
    material evidence or that he misapprehended the position advanced by defence
    counsel on the appellants behalf.

DISPOSITION

[6]

The appeal is dismissed.

David Watt J.A.

M. Tulloch J.A.

Gary Trotter J.A.