COURT OF APPEAL FOR ONTARIO

CITATION: Abdikarim (Re), 2022 ONCA 255

DATE: 20220329

DOCKET: C69749

Strathy C.J.O., Coroza and
    George JJ.A.

IN THE MATTER OF: Mohamed Abdikarim

AN APPEAL UNDER PART XX.1 OF THE
CODE

Joanna Weiss, for the appellant

Erica Whitford, for the respondent, the
    Attorney General of Ontario

Leisha Senko, for the respondent, the
    Person in Charge of the Centre for Addiction and Mental Health

Heard: March 18, 2022 by video
    conference

On appeal against the disposition of the
    Ontario Review Board dated May 12, 2021, with reasons dated June 8, 2021.

REASONS FOR DECISION

[1]

The appellant, Mohamed Abdikarim, appeals
    against the disposition of the Ontario Review Board (the Board), dated May
    12, 2021, ordering that he be detained at the Forensic Service of the Centre
    for Addiction and Mental Health (CAMH) in Toronto. He asserts that the Board
    erred in law in determining that the necessary and appropriate disposition was
    a continuation of his detention order and that the Boards decision was
    unreasonable. The appellant argues that the Board should have ordered a
    conditional discharge.

[2]

The appellant is diagnosed with bipolar disorder
    unspecified, personality disorder unspecified, and substance use disorders
    relating to alcohol and cannabis. In October 2005, he was found not criminally
    responsible on account of a mental disorder in relation to three charges of robbery,
    two charges of possession of property obtained by crime under $5,000, one
    charge of failing to comply with a recognizance, one charge of theft under
    $5,000 and one charge of theft over $5,000. The appellant has been subject to a
    detention order since November 2005.

[3]

The terms of the appellants detention order permit
    him to live in the community in accommodation approved by the person in charge
    of CAMH, requires him to abstain from the use of alcohol and drugs and requires
    him to report to CAMH at least once a week. During the reporting year, the
    appellant resided at his mothers house along with his sisters in a living
    environment that he described as supportive yet stressful.

[4]

The appellant sought readmission to hospital on
    nine separate occasions during the reporting year. Seven of these occasions
    were visitations to the CAMH emergency department and the other two occasions
    were to other emergency departments. The appellants reasons for seeking
    readmission varied, but often related to having consumed alcohol. He was
    readmitted to CAMH twice  from March 1 to 2, 2021 and from March 30 to April
    3, 2021  but consistently requested to leave prematurely. On at least two of
    the occasions that he was not readmitted, the appellant left the hospital
    before receiving a full assessment by his treatment team.

[5]

Unfortunately, the appellant tested positive for
    the consumption of alcohol on 12 days over the reporting year. The results of
    these tests were not always consistent with the appellants own reports of his alcohol
    consumption.

[6]

At the disposition hearing, the Board heard
    evidence from the appellants outpatient psychiatrist, Dr. Paul Benassi. In Dr.
    Benassis view, the appellants alcohol consumption and bipolar disorder leads
    to noncompliance with his medication and increases his risk for violence. In
    the Hospital Report that was provided to the Board, Dr. Benassi also noted that
    the appellant provided inconsistent and misleading information relating to
    his alcohol consumption over the reporting year.

[7]

The Board concluded that the appellant remained
    a significant threat to the safety of the public, and that the necessary and appropriate
    disposition was a continuation of his detention order.

[8]

The appellant advances two arguments on appeal.

[9]

First, the appellant argues that the board erred
    in law by relying on his alcohol consumption when determining that a
    continuation of his detention order was the necessary and appropriate
    disposition. We disagree. It was necessary for the Board to consider the
    appellants alcohol use in determining the necessary and appropriate
    disposition.

[10]

The Board quite properly considered this
    evidence along with the undisputed fact that the appellant tested positive for
    alcohol 12 times during the reporting year. Dr. Benassis evidence was that
    alcohol consumption increases the appellants risk of a mood episode, which is directly
    tied to his risk of violence. On two occasions, the appellants family phoned
    the hospital concerned about the appellants behaviour after coming home
    intoxicated, including one occasion where the appellant threatened to punch his
    sister. The appellants two readmissions to hospital were both triggered by
    concerns about his substance use. The Board did not err in considering all of
    this evidence because it was relevant to the issue of whether the appellants
    risk could be safely managed in the community.

[11]

Second, the appellant argues that the Boards
    decision to order the continuation of his detention is unreasonable. He asserts
    that the evidence before the Board did not establish that a detention order was
    required to manage his risk in the community and was not the least onerous and
    least restrictive disposition. We do not accept this submission.

[12]

Given its expertise, considerable deference is owed
    to the Boards decision in determining the necessary and appropriate
    disposition. In our view, the Boards reasoning process and outcome in this
    case reflects an internally coherent and rational chain of analysis and is
    justified in relation to the facts and the law:
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R.
    (4th) 1, at para. 85.

[13]

Dr. Benassi testified that a conditional discharge
    was not appropriate because it would not provide the safeguards necessary to
    manage the appellants risk. First, a conditional discharge would remove CAMHs
    authority to approve the appellants housing. Second, a detention order was the
    only mechanism that would allow the hospital to readmit the appellant using a
    warrant of committal if necessary. According to Dr. Benassi, if a conditional
    discharge was granted, it would be very difficult to admit the appellant under
    the
Mental Health Act
, R.S.O. 1990, c. M.7. because he would not
    necessarily satisfy the criteria for involuntary admission under the Act.

[14]

We do not view Dr. Benassis evidence as
    suggesting that a detention order should be imposed merely because it would be convenient
    to return the appellant to the hospital if necessary: see
Esgin (Re)
,
    2019 ONCA 155, at paras. 20 to 22. Dr. Benassi testified that the appellants treatment
    team has made consistent efforts to provide a level of risk management in a
    community setting, but has been challenged by the appellants fluctuating compliance
    with his treatment program and inconsistent self-reporting. Dr. Benassi
    confirmed that the goal of the appellants treatment team is to reduce
    reporting and monitoring requirements and to explore a conditional discharge
    going forward. It was open to the Board to order the appellants continued
    detention because the hospital needed to properly manage his risk and that the
    request for a conditional discharge was premature.

[15]

For these reasons, the Board did not err and we
    would not interfere with its disposition.

[16]

Before leaving this matter, we wish to comment on
    the Boards description of the appellant as a scofflaw. We do not accept that
    the appellant is a contemptuous person who regularly violates the law. We recognize
    that the appellant has not always complied with the terms of his detention
    order, which prohibits him from consuming alcohol. But as Dr. Benassi explained,
    there are several complex reasons why the appellant continues to consume alcohol
    and the appellant has shown that he is willing to work with his treatment team
    in addressing his substance use. Indeed, Ms. Weiss, on behalf of the appellant,
    advised this court that the appellant has been enrolled in CAMHs Concurrent
    Outpatient Medical & Psychosocial Addiction Support Services for substance
    use treatment since June 2021. We encourage the appellant to continue to work
    with his treatment team towards the goal of a conditional discharge.

[17]

The appeal is dismissed.

G.R.
    Strathy C.J.O.

S. Coroza
    J.A.

J.
    George J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Karia Estate v. Karia, 2022 ONCA
    256

DATE: 20220325

DOCKET: C69773

Pardu, Paciocco and Thorburn
    JJ.A.

In the Matter of the Bankruptcy
    of Aashish Karia, also known as Ash Karia of the City of Hamilton, in the
    Province of Ontario

BETWEEN

A.
    Farber & Partners Inc., trustee of the estate of Ash Karia, a bankrupt

Moving Party (Respondent)

and

Ash
    Karia

Respondent
    (Appellant)

Matthew R. Harris,
    for the appellant

Colby Linthwaite,
    for the respondent

Heard: March 21,
    2022 by video conference

On appeal from the
    order of Justice Laurence A. Pattillo of the Superior Court of Justice, dated
    August 4, 2021, with reasons reported at 2021 ONSC 5377
.

REASONS
    FOR DECISION

OVERVIEW

[1]

This is an appeal of the motion judges order (i)
    setting aside the appellant Ash Karia (Karia)s discharge from bankruptcy and
    (ii) declaring that all issued and outstanding shares of 2397043 Ontario Ltd.,
    operating as Bindaas Capital (Bindaas), be vested in the Trustee in
    bankruptcy.

[2]

The hearing below centred on the question of
    Karias involvement with Bindaas. The motion judge held that Bindaas was owned
    by Karia, the shares were after-acquired property of Karias estate, and Karia
    breached his duty under s. 158(a) of the
Bankruptcy and Insolvency Act
,
    R.S.C. 1985 c. B-3by failing to deliver the shares to the trustee after his
    discharge from bankruptcy. The court annulled Karias discharge from bankruptcy
    pursuant to s. 180(1) of the
BIA
.

[3]

The appellants raise the following issues on
    appeal:

a.

Whether the Trustee had legal authority to bring
    the application before the motion judge;

b.

Whether the motion judge considered his legal
    authority not to annul the discharge;

c.

Whether the motion judge gave too much weight to
    the endorsements of other judges;

d.

Whether the motion judge imputed a finding of
    fraud when material facts were in dispute and a trial of the issues should have
    been ordered; and

e.

Whether the motion judge failed to consider prejudice
    to Karia.

[4]

For the reasons that follow, the appeal is
    dismissed.

[5]

In order to address the issues, it is important
    to understand the actions of the parties after the appellant, Karia declared
    bankruptcy.

BACKGROUND FACTS

The Appellant, Karias Bankruptcy

[6]

On February 7, 2008, Karia filed an assignment
    in bankruptcy. In so doing, he swore that there were effectively no realizable
    assets and the total unsecured debt was $1,230,697. The proven unsecured claims
    were later determined to be $1,442,759.19. On May 6, 2009, the Registrar in
    Bankruptcy made an order granting Karia a discharge conditional upon his paying
    $24,000 to the estate within a period of 48 months. Karia did not make the
    payments within the 48-month period.

[7]

On March 14, 2018, almost nine years after the
    order for conditional discharge had been made, and a month after the
    disallowance, Karia satisfied the condition by paying the last of the $24,000
    plus interest to the Trustee, Paddon + Yorke Inc., in a lump sum of $4,661.33.
    The Trustees final statement of receipts and disbursements showed total
    receipts of $26,314.31. The Registrar in Bankruptcy granted Karia an absolute
    discharge on May 4, 2018.

The Incorporation of Bindaas in 2013

[8]

In November 2013, while Karia was still assigned
    into bankruptcy, Bindaas was incorporated. Bindaas was a mortgage lender, and
    within a few years, had extended loans of nearly $15 million.

Karias Brothers Bankruptcy in 2017 and
    Discovery of Karias Undisclosed Interest in Bindaas in 2018

[9]

On October 11, 2017, Karias brother, Amit Karia
    became bankrupt. Bindaas filed a proof of claim in the amount of $664,322.42,
    as a creditor of Karias brother. The claim was disallowed.

[10]

In May 2018, Bindaas appealed the disallowance,
    and in support of the appeal, Karia (who was by then discharged from bankruptcy),
    swore two affidavits. In the first, he said, I am the sole officer and
    director of the moving party, 2397043 Ontario Inc. operating as Bindaas
    Capital. He also admitted in his affidavit that Bindaas, had loaned a total
    of $14,461,612.70 to a total of 88 borrowers. The Trustees representative,
    John Delo swore an affidavit in response to Karias First Affidavit in which he
    attested that:

At no time during the period from the date of
    the Ash Conditional Order until the date of said final payment did Ash Karia
    advise PYI [the Trustee] (i) of his incorporation of or his involvement in
    Bindaas Capital [] (ii) that he purported to be a director of Bindaas Capital
    (contrary to the provisions of section 118 of the
Business Corporations Act
(Ontario); or that (iii) Ash Karia as an undischarged bankrupt was through
    Bindaas Capital in carriage and control of $14,461,612.70 in mortgage
    financing.

[11]

Karia then swore a reply affidavit in which he attested
    that I am the sole officer and director of the moving party, 2397043 Ontario
    Inc. operating as Bindaas  On December 7, 2018, Karia was cross-examined on
    his affidavits. During cross-examination, Karia made the following admissions:

Q.
Okay. Are you a
    shareholder of Bindaas Capital?

A.
On this corporation
    yes.

Q. Youre one of the owners of the company?

A. Yes.

Q. Are you the only owner of the company?

A. Im the only owner.

Q. Youre the only owner, okay. Do you recall
    offhand how many shares have been issued?

A. No.

Q. At the time you incorporated Bindaas
    Capital, were you an undischarged bankrupt?

A. I recall, yes, I was.

Q. And on
    the Corporate Profile Report that weve marked as Exhibit A, youre indicated
    as being the only director of Bindaas Capital; is that correct?

A. Yes.

[12]

The corporation profile report for Bindaas shows
    that Karia was appointed the sole officer and director of Bindaas on the date
    of its incorporation. Karia had not told the Trustee of his own bankruptcy or told
    the Court that he was a director of Bindaas while he was an undischarged
    bankrupt. Section 118(1) of the
Business Corporations Act
(Ontario), R.S.O.
    1990, c. B.16 disqualifies an undischarged bankrupt from being a director of a
    corporation.

[13]

On February 22, 2019, the Trustee wrote Karia to
    say that [i]f you were a shareholder of [Bindaas] during the period [February
    7, 2008 through May 4, 2018, during which Karia was an undischarged bankrupt]
    then the value of the company must be paid into your estate. In April 2019,
    the Trustee wrote to demand that Karia deliver up the shares in Bindaas as
    after-acquired property, in accordance with subsection 67(1)(c) of the
BIA
.
    Karia did not do so.

[14]

In August 2019, the Trustee advised him that the
    shares formed part of his estate as a bankrupt and demanded that he deliver the
    shares to his estate as they were after acquired property that vested in the Trustee
    pursuant to s. 67(1)(c) of the
BIA
. Later that month, all bankrupt
    estates administered by the Trustee were transferred to the new trustee, A.
    Farber & Partners Inc. Karia claimed that while he was a director at the
    time of incorporation (in November 2013) he resigned the same day and therefore
    was not and was never a shareholder of Bindaas Capital. He claimed the shares
    belonged to his wife, Ella.

The Motion Judges Decision

[15]

On September 5, 2019, the Trustee brought a
    motion seeking to have the shares declared after-acquired property of the
    estate and to have Karias discharge from bankruptcy set aside. The sole issue
    was whether the shares of Bindaas were owned by Karia before his discharge
    thereby amounting to after-acquired property which should have been turned over
    to the Trustee for the benefit of creditors.

[16]

In support of the motion, Karia and his wife,
    Ella, each deposed that the shares of Bindaas had been owned exclusively by
    Ella since incorporation. Karia further deposed that while he was listed as a
    director at the time of incorporation, it was an accident which was immediately
    corrected. He submitted he was only ever a signing officer of Bindaas. He
    further argued that the Trustee was bringing the motion simply to enrich
    itself. In her affidavit, Ella claimed that she had been a director and the
    sole shareholder of Bindaas since its incorporation.

[17]

However, the record contains corporation profile
    reports for Bindaas as of March 27, 2014, May 12, 2016, October 23, 2017, and
    October 28, 2019. At no point prior to 2019 (well after the Trustee made its
    demand) was Ella registered as a director. The corporation profile reports before
    2019 list Karia as the companys only director and officer. On
    cross-examination, neither Karia nor Ella could recall anything of significance
    about Bindaas history or finances. Karia undertook to produce Bindaas tax
    returns, financial statements, and bank statements. Each of them undertook to
    produce the file of Bindaas accountant, after it had been vetted for privilege
    by his counsel. However, neither produced any financial statements, bank
    statement or the accountants file.

[18]

Both Karia and Ella refused to appear for
    cross-examinations claiming their internet connection was insufficient to
    enable them to do so, nor did they answer undertakings to produce business
    records.

[19]

On February 8, 2021, the motion was therefore
    adjourned by Koehnen J. who directed that the accountant deliver his file to
    Karias lawyer, who was to vet it for privilege and pass it to the Trustee.
    Ultimately, the appellant provided Bindaas Minute Book and portions of tax
    returns to the Trustee in March 2021.

[20]

The motion was heard in May of 2021. The motion
    judge carefully reviewed the evidence and expressly rejected the evidence of
    Karia and his wife Ella. He did so for the following reasons:

It follows that I reject the evidence of both Karia
    and his wife in respect of the ownership of the shares of 239 during the period
    of the bankruptcy for a number of reasons. First, the Bankrupts [Karias] explanation
    for his evidence during his cross examination in the Amit bankruptcy that he
    owned the shares was to protect his wife but that answer makes no sense as
    there is no evidence to suggest there was anything to protect her from.

Further, I do not accept the documentation
    produced by the Bankrupt [Karia] purporting to show Ella as the sole shareholder
    and director of 239. In my view, it has been altered or created after the fact
    by the Bankrupt [Karia] to show that Ella was the sole shareholder and director
    of 239.

As noted, 239's tax returns were produced in
    two batches in February and March 2021. Schedule 50 of 2013 tax return, which
    was produced by the Bankrupt [Karia] on February 3, 2021, shows the Bankrupt [Karia]
    as owning 100% of the shares. In March 2021, the Bankrupt [Karia] also produced
    the 2013 tax return but this time Schedule 50 listed the shareholder as Ella.
    Further, the form used indicates at the bottom that it was the 2020 version. As
    a result, in the absence of producing the accountants file as directed by Justice
    Koehnen, I do not accept any of the financial information produced by the
    Bankrupt [Karia].

Further, the corporate profile reports filed
    with the province as at March 27, 2014, May 12, 2016 and on October 2, 2017
    show the Bankrupt [Karia] as the sole director of 239 since incorporation. It
    was not until a notice of change was filed with the province on May 22, 2019
    that Ella was first shown as a director of 239. Neither the Bankrupt [Karia] or
    Ella would or could say who filed the change notice.

With respect to 239's Minute Book, the
    Bankrupt [Karia] has had possession of it since 2013. On cross-examination, he
    admitted that he prepared the resolutions and documents in the Minute Book.
    Based on the altered corporate tax returns, I have no hesitation in concluding
    that the information in the Minute Book purporting to show Ella as the sole
    shareholder and director of 239 since incorporation, has also been fabricated
    by the Bankrupt [Karia] well after the fact.

I also do not accept Ellas evidence that she
    was the sole shareholder and the director of 239 from incorporation. In
    addition to my findings in respect to the documentary evidence, her evidence
    did not hold up during cross-examination.

Nor is there any evidence, beyond the Bankrupts
    [Karias] bald assertion, that the Trustee has brought its motion to enrich
    itself. In my view, the Trustee is doing nothing but its duty in pursuing the
    Bankrupts [Karias] after acquired property for the benefit of Bankrupts creditors.

[21]

He therefore concluded that the documentation was
    either altered or created after the fact by Karia to show that his wife was
    the sole shareholder and director of the corporation and that, at all material
    times, [Karia] owned the shares of 239 while a bankrupt. He therefore
    reject[ed] the evidence of both Karia and his wife in respect of the ownership
    of the shares during the bankruptcy.

[22]

In view of these findings, the motion judge was obliged
    by virtue of s. 67(1)(c) of
the
BIA
to declare the shares to be after-acquired property of the estate of Karia. Section
    67(1)(c) provides that the property of a bankrupt divisible among his
    creditors shall comprise (c) all property wherever situated of the bankrupt at
    the date of the bankruptcy or that may be acquired by or devolve on the
    bankrupt before their discharge. The motion judge then exercised his
    discretion under s. 180(1) to annul Karias discharge, on the basis that Karia
    had breached his statutory duty to deliver the shares to his trustee, even
    after a demand had been made.

ANALYSIS OF THE ISSUES AND CONCLUSION

The Standard of Review

[23]

Making a factual conclusion, of any kind, is
    inextricably linked with assigning weight to evidence, and thus attracts a
    deferential standard of review of palpable and overriding error:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 24-25. An
    appellate court will not interfere with the trial judge's findings of fact
    unless it can plainly identify the imputed error, and that error is shown to
    have affected the result.:
L. (H.) v. Canada (Attorney General)
, 2005
    SCC 25, [2005] 1 S.C.R. 401, at para. 55. Similarly, [a]n appellate court is
    only justified in interfering with a lower court judges exercise of discretion
    if that judge misdirected himself or if his decision is so clearly wrong as to
    amount to an injustice:
Sattva Capital Corp. v. Creston Moly Corp.
,
    2014 SCC 53, [2014] 2 S.C.R. 633, at para. 95.

Analysis of the Issues Raised by the
    Appellant, Karia

[24]

Assuming without deciding that leave to appeal
    is not required and that this appeal is therefore properly before this court, for
    the reasons that follow, the appeal is dismissed.

[25]

First, contrary to the appellants submission,
    the Trustee was never discharged and could properly bring the motion. Karias
    estates were administered by the Trustee Paddon + Yorke Inc. (who was the Trustee
    when Karia declared bankruptcy) and later transferred to A. Farber &
    Partners Inc. As there were no inspectors appointed, the Trustee could institute
    or defend a legal proceeding relating to Karias property: ss. 30(1)(d),
BIA
.

[26]

Second, contrary to Karias submission, the
    motion judge did not believe that he was required to annul Karias discharge
    from bankruptcy after finding that the shares were after-acquired property. He noted
    that the decision was discretionary by writing: the court
may
annul a
    discharge where a bankrupt fails to perform the duties imposed on him under the
BIA

after the discharge,

pursuant to s. 180(1) of the
BIA
. He elected to exercise his discretion to do so, given his
    conclusion that Karia had fabricated documents to suggest he did not have an
    ownership interest in Bindaas when he did. There is no basis on which to
    interfere with the motion judges exercise of discretion, as he neither
    misdirected himself nor did he render a decision that was clearly wrong:
Sattva
, at para.

95.

[27]

Third, the motion judge did not allow the
    endorsements in prior orders to colour his decision as the appellant suggests.
    He properly outlined the history of this matter, and in so doing, set out the
    prior orders leading to the motion before him. Importantly, the issue of fraud
    was not addressed in any of the prior orders.

[28]

Fourth, the appellants have not directly
    challenged any of the above-described findings of fact. They have simply suggested
    that the motion judge should have weighed the evidence differently, or that the
    matter should have proceeded to trial. Moreover, Karias assertion that he did
    not breach his duty to the Trustee to deliver all property under his possession
    and control as the shares belonged to his wife, is belied by the fact that the
    motion judge found that the only documents he relied on to support his
    assertion, were altered or created after the fact by Karia. The motion judge therefore
    annulled Karias discharge on the basis that Karia failed to perform his duties
    pursuant to s. 180(1), not on the basis that he committed fraud.

[29]

Karia has not challenged the finding that he
    fabricated evidence, or suggested another reason for doing what he did. Nor
    were any other material facts adduced. There was no palpable and overriding
    error in the motion judges reasoning; the only point at issue was the
    interpretation of the evidence as a whole. There is therefore no basis to set
    aside the order:
Jaegli Enterprises Ltd. v. Taylor
, [1981] 2 S.C.R. 2,
    at p. 4, cited in
Housen
at para. 29.

[30]

Fifth, Karias discharge was annulled pursuant
    to
s.180(1)

of the
BIA
after Karia was found to have failed to perform the duties imposed on him by the
    Act.

There is no legal requirement that prejudice caused by the
    annulment be a major consideration as the appellants suggest.

[31]

Once a breach of Karias duty has been found,
    the decision to annul is discretionary. In any event, there is no evidence of
    unfair prejudice caused by the Order.

[32]

For these reasons, the appeal is dismissed. Costs
    of this appeal are awarded to the respondent in the amount of $ 12,000 as
    agreed by the parties.

G.
    Pardu J.A.

David
    M. Paciocco J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Hinds, 2022 ONCA 257

DATE: 20220329

DOCKET:
    C69759

Pepall,
    Tulloch and Huscroft JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Paul
    Hinds

Appellant

Talman W. Rodocker, for the appellant

Rebecca De Filippis, for the respondent

Heard: in writing

On appeal from the sentence imposed on July
    8, 2021, by Justice Karey Katzsch of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant seeks leave to appeal his sentence
    and if leave is granted, he appeals his sentence of six months' custody. He
    asks this court to impose the joint submission crafted by counsel.

[2]

The appellant was arrested in January 2021 for
    possession of a stolen car in Kitchener. At the time of his arrest, he was
    already in custody for a number of other property-related offences committed in
    Peel (the "Brampton charges").

[3]

The appellant pleaded guilty to the Brampton
    charges on June 22, 2021. Following a joint submission, the appellant was
    sentenced to 18 months' custody, less time served, for a remaining sentence of
    65 days in custody.

[4]

On July 8, 2021, the appellant pleaded guilty to
    the Kitchener charge. At the appellant's guilty plea on the Kitchener charge,
    the Crown and the defence presented a joint submission of "six months
    pre-sentence custody", to be served concurrently with the sentence imposed
    on the Brampton charges. The reasoning behind the joint submission was that the
    charge of possession of stolen property could have been waived over to Brampton
    and be globally resolved. Accordingly, the parties agreed the sentence on the
    possession of stolen property count should not extend the appellant's time in
    custody beyond the time remaining on the other sentence, which was
    approximately 48 days.

[5]

At the time of the Kitchener guilty plea, the
    appellant's counsel told the sentencing judge: "we're asking [the
    sentence] to run concurrent to the sentence imposed two weeks ago in
    Brampton." Counsel explained, by way of background to the joint
    submission, that had the Kitchener charge been waived to Brampton for
    resolution, it would have been part of a global resolution. As the Crown
    explained, "instead of waiving the Kitchener charges over to Brampton, the
    idea was to ask for a concurrent sentence to achieve the same goal."

[6]

The Crown had agreed to the joint submission of
    "time served", as it took into account six months' pre-sentence
    custody.

[7]

The sentencing judge accepted that the joint
    position was reasonable. However, instead of imposing the joint submission of
    time served, the sentencing judge imposed six months "real" custody.
    At the time of sentencing, the trial judge stated: "the sentence will
    reflect six months in custody, to be noted as concurrent to any sentence that
    he is currently serving." The sentencing judge told the appellant that his
    sentence was "a further six months, but it will run concurrently with your
    18 month sentence." This was an inadvertent error on the part of the
    sentencing judge.

[8]

On August 13, 2021, the parties returned in
    front of the sentencing judge to request that the sentence be amended. Counsel
    explained that the sentence on the Kitchener charge factored in the sentence on
    the Brampton charges, and that the joint submission was for six months'
    pre-sentence custody, not six months' real custody. The Crown confirmed that
    "it was the intention of the Crown to run this matter concurrently to the
    Brampton charges [] he only had about 65 days served when he was sentenced
    with Your Honour so it wouldn't make sense that he would get a six-month
    concurrent sentence."

[9]

The sentencing judge found that she was
functus
    officio
and therefore declined to amend the sentence. As a result, the
    appellant now appeals his sentence.

[10]

We agree that the appeal should be allowed. The
    Crown acknowledges that the parties agreed to present a joint submission on
    sentence that would replicate a global resolution with the Brampton charges.
    The parties chose to achieve this goal by advancing a joint submission of six
    months' pre-sentence custody (presumably plus "one day") so that the
    appellant would not remain in custody beyond the completion of the sentence on
    the Brampton charges.

[11]

In the normal course, a trial judge should not
    depart from a joint submission unless the proposed sentence would bring the
    administration of justice into disrepute or it is otherwise contrary to the
    public interest.

[12]

The sentencing judge appears to have been under
    the mistaken impression that the joint submission was for six months' real
    custody. The confusion appears to have arisen from counsel's request that the
    sentence run concurrent to the Brampton sentence. As a result, the sentencing
    judge imposed a sentence that deviates from the intended joint submission. Both
    parties agree that this was an error in principle that warrants appellate
    intervention.

[13]

Accordingly, leave to appeal sentence is
    granted. The sentence appeal is allowed. The sentence imposed is hereby
    vacated, and a sentence of time served, plus one day, concurrent to the
    previous sentence imposed on the Brampton charge is now imposed. However, in
    light of the circumstances, we are exercising our discretion to stay the
    execution of the one-day concurrent sentence. As such, there is no need for the
    appellant to surrender into custody.

S.E.
    Pepall J.A.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Akelius Canada Ltd. v. 2436196
    Ontario Inc., 2022 ONCA 259

DATE: 20220330

DOCKET: C68832

Lauwers, Harvison Young and
    Sossin JJ.A.

BETWEEN

Akelius Canada Ltd.

Appellant

and

2436196 Ontario Inc. and BNai
    Fishel Corporation

Respondents

Daniel S. Murdoch and Isabelle Eckler,
    for the appellant

Mark A. Ross and Eric Brousseau, for
    the respondents

Heard: September 27, 2021 by video conference

On appeal from the order of Justice Edward
    M. Morgan of the Superior Court of Justice, dated October 13, 2020, with
    reasons reported at 2020 ONSC 6182.

Harvison Young J.A
.:

Overview

[1]

What remedies are appropriate for an innocent
    purchaser of real property when a breaching vendor fails to close on the date
    pursuant to the agreement of purchase and sale? In particular, is the purchaser
    entitled to claim the profits that the vendor made two and a half years later
    when the vendor sold the property for $56 million more than its value on the
    closing date? As the motion judge put it, [c]an a Europe-based, worldwide real
    estate investor whose contract was breached by a seller in Toronto be awarded
    damages based on lost opportunity to cash in on the local real estate boom?

[2]

Akelius Canada Ltd. (Akelius) appeals from the
    motion judges finding that it was not entitled to such damages but was
    restricted to its damages as at the closing date. The respondents cross-appeal
    the motion judges award to Akelius of its costs thrown away, and both parties
    appeal from the motion judges decision not to award costs to either party.

Factual Background

[3]

The factual context giving rise to this appeal
    is straightforward.

[4]

On August 25, 2015, the parties entered into an
    agreement of purchase and sale under which the appellant agreed to buy from the
    respondents seven residential apartment buildings for an overall purchase price
    of $228,958,320 (the APS). The buildings were all in the Parkdale
    neighbourhood in Toronto. It is common ground that this was the market value of
    the properties as of the date of breach.

[5]

The deal did not close as contemplated on January
    7, 2016 because of the vendors breach in failing to remove certain
    encumbrances from title which, as of December 15, 2015, totalled $48,855,474.32.
    The appellant had paid the deposits required pursuant to the APS in the total
    amount of $10 million, with the outstanding balance payable on closing.

[6]

When the deal did not close, the deposits were
    returned to the appellant which returned the funds to its parent company, a
    Sweden-headquartered investment corporation with international holdings in various
    countries including Scandinavia, the United Kingdom, central Europe, the United
    States, and Canada.

[7]

Two and a half years later, in September 2018,
    the respondents sold the properties to a new purchaser. According to Land
    Transfer Tax affidavits filed by the new purchaser at that time, the properties
    were sold for 25% more than the purchase price, some $56,544,318. This is the
    amount the appellant claims as its loss of the value of the transaction.

Decision Below

[8]

The matter proceeded on a motion for summary
    judgment. Neither party disputes the appropriateness of summary judgment in
    this case.

[9]

The motion judge found that the respondent
    vendors breached the APS, and he awarded the appellant
$775,855.46
,
    finding that these were costs reasonably incurred and thrown away by the appellant
    as a result of the respondents breach of the APS.

[10]

The lions share of the damages claimed by the
    appellant arose out of the fact that more than two years after the breach of
    the APS, the respondent vendors resold the properties to another purchaser for
    approximately $56,544,318 more than its market value on the date of breach. In
    assessing damages, the motion judge stated, at para. 22:

First, in
    assessing damages, the basic principle is that damages should put the injured
    party as nearly as possible in the position it would have been in had the
    contract not been breached. In the ordinary case of an aborted purchase and
    sale of real estate, this principle is put into effect by assessing damages at
    the date that had been set for closing:
100 Main Street Ltd. v. W.B.
    Sullivan Construction Ltd.
(1978), 20 O.R. (2d) 401 (Ont CA). There is,
    however, flexibility in this approach. As Laskin JA observed in
6472047
    Ontario Ltd. v. Fleischer
(2001), 56 O.R. (3d) 417, at para. 42 (Ont CA),
    The date for the assessment of damages is determined by what is fair on the
    facts of each case.

[11]

The motion judge observed that the appellant had
    been clear that it was not in the business of flipping apartment buildings and
    had no intention of re-selling the properties for a quick capital gain. Rather,
    it is in the apartment investment and rental business and looks to purchase
    income-producing properties for long-term holds, typically seeking a seven
    percent return. Akelius did not seek damages for lost income, but only for the
    lost capital gains. The motion judge rejected this manner of measuring damages,
    finding it to be directly contrary to the express guidance of the Court of
    Appeal in
Fleischer
 and citing Laskin J.A.s direction in that case, at
    para. 41, that [w]herethe vendor retains the property in order to speculate
    on the market, damages will be assessed at the date of closing. The motion
    judge continued to say that if the respondents had breached in order to deprive
    a speculator (which the appellant was not), the measure of the appellants
    damages would have to be measured as of the closing date or date of breach.

[12]

In conclusion on this issue, the motion judge,
    referring to authorities on the issue, stated, at para. 30, that the fact that
    the respondents ultimately made a speculative profit does not give the
    appellant such profit as a measure of damages:

The measure of
    damages for failure to complete a purchase of land is the difference between
    the contract price and the market value of the land  which is intended to
    represent the lost benefit of the bargain to the vendor:
Marshall
, at
    para 12. The same principled approach applies to the purchaser where it is the
    party that lost what it bargained for. The damages must make up what the purchaser
    lost in value on the closing date, not what a property speculator standing in
    the purchasers shoes would have lost.

[13]

According to the motion judge, an innocent
    purchaser cannot access a measure of damages that has been specifically denied
    by this court, in particular, the profit that it would have made had it
    purchased the properties as a speculator intent on flipping them to a new
    purchaser two and a half years later.

[14]

With respect to the appellants duty to mitigate
    its loss, the motion judge found that, given the circumstances of the
    appellants business and the fact that the appellant had returned the deposit
    to its parent corporation, it had either mitigated its damages in full or had
    failed to mitigate. He noted that the appellant refused to disclose information
    relating to the buildings acquired subsequent to January 2016, which would have
    assisted with determining whether the appellant had mitigated its loss.

[15]

The motion judge declined to order costs in favour
    of either party in light of the mixed success on the motion.

The Issues on Appeal

[16]

The appellant argues that the motion judge committed
    reversible error on three issues. Its submissions are discussed further below,
    but in brief, it first argues that the motion judge erred in finding that he
    was bound by the case of
Fleischer
to assess damages as of the date of
    breach. Second, it submits that the motion judge erred in finding that the
    respondent vendors succeeded in showing that the appellant purchaser failed to
    mitigate or had, in fact, mitigated its damages (other than the costs thrown
    away). It lastly argues that the motion judge erred in failing to award the
    appellant its costs.

[17]

The respondents cross-appeal on two points. First,
    they argue that the motion judge erred in awarding Akelius every dollar of its
    sunk costs. Second, they argue that they ought to have been awarded their
    costs given their success defending the majority of the appellants claim for
    damages.

[18]

For the following reasons, I would dismiss both
    the appeal and the cross-appeal. I will address the issues in turn.

(1)

The Measure of Damages

(a)

The Parties Positions

[19]

The appellant submits that the motion judge misapplied
6472047 Ontario Ltd. v. Fleischer (
2001), 56 O.R. (3d) 417 (Ont. C.A.).
    According to
Fleischer
, it argues, the date for the assessment of
    damages is to be determined on what is fair on the facts of each case.
Fleischer
arose from a breach by a purchaser in a declining market. There, unlike the
    present facts, the vendor was innocent. The appellant, in its factum, states
    that
Fleischer
is clear that the decision to assess damages at the
    date of closing is driven by the innocent vendors decision not to mitigate its
    damages by selling the property as quickly as possible following the breach. The
    appellant argues that the application of
Fleischer
to the
    circumstances of an innocent purchaser, having appropriate regard to justice
    and fairness, supports assessing damages on the date that a defaulting vendor
    resells the subject property at a premium to what it would have received from
    the innocent purchaser.

[20]

In addition, the appellant argues that the
    motion judges assessment of damages failed to put it in the position that it
    would have been in had the contract been performed. Rather, the motion judges
    award wrongly put the appellant in the position that it would have been in had
    the contract never been performed.

[21]

The respondents submit that the motion judge was
    correct in his application of
Fleischer
and that the date of closing is
    the appropriate date upon which to assess the damages. They further submit that
    in this case, the damages sought by the appellant for lost capital appreciation
    were not the type of damages that were in the reasonable contemplation of the
    parties at the time the APS was signed. The appellant intended to hold the
    buildings as a long-term investment, and while it may have eventually sold the
    buildings for a profit, its own evidence shows that it likely would not have
    sold the buildings in 2018. Thus, the motion judge was correct in finding that
    the appellant is not a property speculator and could not recover damages on
    that basis.

(b)

Law and Analysis

[22]

It has long been the case in the real estate
    context that the starting point for the assessment of damages for breach of
    contract is the date of breach. This principle was set out in
100 Main Street Ltd. v. W.B. Sullivan Construction
    Ltd.
(1978), 20 O.R. (2d) 401 (Ont. CA) and
    reaffirmed in
Fleischer
. In
Fleischer
, at para. 41, Laskin
    J.A. summarized the six propositions articulated by Morden J.A. in
Main
    Street
as follows:

(1) The basic principle for assessing damages
    for breach of contract applies: the award of damages should put the injured
    party as nearly as possible in the position it would have been in had the
    contract been performed.

(2) Ordinarily courts give effect to this
    principle by assessing damages at the date the contract was to be performed,
    the date of closing.

(3) The court, however, may choose a date
    different from the date of closing depending on the context. Three important
    contextual considerations are the plaintiff's duty to take reasonable steps to
    avoid its loss, the nature of the property and the nature of the market.

(4) Assessing damages at the date of closing
    may not fairly compensate an innocent vendor who makes reasonable efforts to
    resell in a falling market. In some cases, the nature of the property -- for
    example an apartment building-- hampers the vendor's ability to resell quickly.
    Thus, if the vendor takes reasonable steps to sell from the date of breach and
    resells the property in some reasonable time after the breach, the court may
    award the vendor damages equal to the difference between the contract price and
    the resale price, instead of the difference between the contract price and the
    fair market value on the date of closing.

(5) Therefore, as a general rule, in a falling
    market the court should award the vendor damages equal to the difference
    between the contract price and the highest price obtainable within a
    reasonable time after the contractual date for completion following the making
    of reasonable efforts to sell the property commencing on that date

(6) Where,
    however, the vendor retains the property in order to speculate on the market,
    damages will be assessed at the date of closing.

[23]

As Laskin J.A. explains in
Fleischer
,
    at para. 42, underlying these propositions is the simple notion of fairness.
    In determining the appropriate date for the assessment of damages, the court
    must have regard to what is fair in the circumstances.

[24]

In
Fleischer
, the innocent vendors
    claimed damages arising from the purchaser who refused to close when they realized
    that the market was falling. The trial judge found that the closing date in
    November 1990, the date of breach, was the appropriate date for the assessment
    of the vendors damages, at which point the property in issue was worth
    $1,130,000. On appeal to this court, the vendors argued that their damages
    should be assessed as at the date of trial some four years later, by which
    point the property in question had decreased in value to $410,000. This court
    disagreed. In finding that the date of breach was the correct date, Laskin J.A.
    stated, at para. 44, that the innocent vendors

cannot pick a
    date at random, nearly four years after the closing date, when the market was
    likely at its lowest, and reasonably expect the court to choose that date to
    measure their loss.

[25]

There are cases that support the view that, in
    some instances, it might be appropriate to move the date somewhat later;
    however, this has been done in cases where the plaintiff established that it
    was not in a position to re-enter the market as at the date of breach. In
Asamera
    Oil Corporation Ltd. v. Sea Oil & General Corporation et al.
, [1979] 1
    S.C.R. 633, the defendant was in breach of an agreement between the parties
    which required the return of Asamera shares that had been loaned to the
    defendant. The value of the shares fluctuated considerably from the date of the
    breach and the trial. The innocent plaintiff argued that the date of the
    assessment of damages should have been the dates those shares were at their
    highest prices. This view was rejected by the Supreme Court. Rather, the
    starting point continued to be the date of breach, and the damages were found
    to have crystallized at the earliest date upon which the plaintiffs could
    reasonably have re-entered the market.

[26]

In
Domowicz v. Orsa Investments Ltd.
(1994)
, 20 O.R. (3d) 722 (S.C.), varied
    on other grounds, (1998) 40 O.R. (3d) 256 (C.A.), a case cited by the
    appellant, the innocent vendor plaintiff sought specific performance of an
    agreement to purchase an apartment building. The plaintiff filed detailed
    evidence as to its damages in light of its planned use for the property,
    including its loss of revenue. The trial judge noted that the plaintiff must
    prove its loss. He recognized that it may have taken some time to find a
    replacement property but rejected the argument that it could reasonably have
    taken the time the plaintiff was claiming, which was the date of trial some
    three years later. At the end of the day, the appropriate date for the
    assessment of damages was found to have been only three months later than the
    date of breach.

[27]

In all these cases, the date of breach remains a
    starting point for the assessment of loss, modified only to the extent that the
    innocent party satisfies the court that a later date is appropriate on the
    grounds that it is the first date upon which the party could reasonably have
    been expected to re-enter the market and mitigate its damages.

[28]

The appellant argues that the motion judge
    misapplied
Fleischer
because, in that case, the vendor was innocent. It
    further argues that when a vendor defaults on a real estate transaction in a
    rising market, the date of assessment of damages should be varied from the date
    of breach because an innocent purchaser such as the appellant may have
    difficulty attempting to purchase a comparable portfolio of properties in a rising
    real estate market. It relies on the case of
Domowicz
as authority for
    the proposition that assessing damages as at the date of breach would not satisfy
    the general principle that the non-breaching party should be put in a position
    in which he or she would have been in had the contract been performed.

[29]

I do not agree with the appellants
    interpretation of these cases. First, in
Fleischer
, the innocent
    vendors had retained the property and re-leased it, speculating that the market
    would eventually go back up. Laskin J.A. rejected the argument that because the
    vendors were innocent, they were entitled to deviate from the usual measure of
    damages as of the date of breach. He found that the appropriate date was the
    date of breach. I see no principled reason for the suggestion that the date
    should be different when the purchaser is the innocent party. Put another way,
    the fact that a party is innocent does not displace the date of breach as the
    presumptive date for the measure of damages in a real estate case.

[30]

Second,
Domowicz
does not assist the
    appellant. Unlike the plaintiff in
Domowicz
, the appellant did not
    provide evidence of its loss of revenue, claiming that it was not necessary
    because it was choosing not to claim its loss of revenue. However, in order to
    prove what it had actually lost, the appellant would have had to show not only
    what it lost in capital appreciation but also, as in
Domowicz
, what it
    would have made in capital appreciation had it sold in April 2018 when the
    respondents did.

[31]

Even if the appellant could have shown that it
    could not have bought other buildings that would have appreciated as much over
    the next two and a half years, the appellant has not established why it could
    not have re-entered the market over that period or why, for the purpose of mere
    capital speculation, it was necessary to purchase six buildings close to one
    another in Parkdale.

[32]

Moreover, the appellant argues that it is
    entitled to the loss of capital appreciation, but it has not explained why the
    loss of capital profit has to be assessed where all the synergies of the lost
    properties related to the long-term investment purpose. The evidence suggested
    that the desire to acquire the properties had to do with the synergies in
    having close buildings, with a view to maximizing the rental returns. No doubt,
    the ultimate return on the properties is part of the long-term planning, but
    the capital appreciation in and of itself some two and a half years later does
    not, in these circumstances, prove the appellants loss or the earliest date it
    could have re-entered the market. The capital appreciation of the properties would
    be relevant to the extent that it was in the reasonable contemplation of the
    parties at the time of the agreement: see for example
Kipfinch Developments
    Ltd. v. Westwood Mall (Mississauga) Limited
, 2010 ONCA 45, at paras.
    14-15. However, all the evidence indicates that, based on its business model,
    the appellant was not a property speculator but a long-term investor, and this
    would have informed the parties reasonable contemplation at the time of the
    agreement.

[33]

In effect, the appellant here is seeking to do
    what was rejected by the court in
Asamera
: begin with the amount that
    would represent the high point in the assessment of damages between the date of
    breach and the date of trial (or, as here, when the respondents sold the
    property). Such an approach would undermine the advantages of certainty and
    predictability arising from a long line of established and stable case law that
    presumes the date of breach for the assessment of damages for breach of
    contract.

[34]

Moreover, and as was also the case in
Asamera
,
    the appellants position presumes it would have sold at the high point. In
Asamera
,
    that made sense because in a fluctuating market for shares bought at different
    times, it would be assumed that the innocent party would have the perspicacity
    to sell at the high point for the shares. Here, it makes no sense because all
    the appellants own business plans reflected a pattern of keeping buildings as
    rentals for much longer periods of time.

[35]

For all the above reasons, it would not be fair
    in the circumstances to shift the date of the assessment of damages beyond the
    date of the breach. In short, the trial judge correctly found that there was no
    genuine issue requiring a trial on the date upon which the damages should be
    assessed. On that date, the market value and the contract price were the same;
    there was no loss. The appellant has not proven its loss, and the date it has
    chosen as the crystallization of its loss is not sufficiently connected to
    the date of breach or to the objectively understood purpose of the contract.

[36]

As the appellant failed to prove its losses, I
    would also not give effect to its mitigation argument because, having failed to
    establish that it suffered a loss as of the date of breach, there were no
    losses to be mitigated.

(2)

The Cross-Appeal

[37]

The respondents cross-appeal on two issues.
    First, they argue that the motion judge erred in awarding Akelius its costs
    thrown away (reliance damages) trying to pursue the aborted transaction in the
    amount of $775,855.46. Second, the respondents argue that they should have been
    awarded their costs, given their proportional success in defending against the
    appellants claim. The appellant agrees that the trial judge erred in not
    awarding costs to either party but argues that it should have been awarded
    costs, given its partial success at trial.

[38]

With respect to the claim of the costs thrown
    away, the trial judge clearly found that the respondents breached the APS. The
    appellant was entitled to these damages and I am not persuaded that the motion
    judge committed any reversible error in this respect, either in principle or in
    terms of the quantum.

[39]

The appeal of the order that there should be no
    costs must also fail. Costs awards are within the discretion of the court:
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, s. 131(1). In
Przyk v. Hamilton
    Retirement Group Ltd. (The Court at Rushdale)
, 2021 ONCA 267, at paras.
    9-10, this court explained the threshold to be met before an appellate court
    may set aside a costs award:

[9]   An appellate court takes a deferential
    approach when reviewing a discretionary award of costs by a trial court
    (including a discretionary decision to deny costs). A costs award will only be
    set aside on appeal if the trial judge has made an error in principle or if
    the costs award is plainly wrong:
Hamilton v. Open Window Bakery Ltd
.,
    2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

[10]  This
    deferential approach requires that attention be paid not only to the nature of
    any error affecting a costs decision, but also to its extent. It is
    insufficient  to identify an error in principle in the course of the trial
    judges reasons without considering whether there is an independent basis to
    uphold the order. An appellate court should be reluctant to interfere with the
    exercise of discretion by a trial judge who had a much better opportunity to
    acquaint himself with, and have a feeling for, all of the factors that formed
    the basis for the award of costs:
Bell Canada v. Olympia & York
    Developments Ltd
., 111 D.L.R. (4th) 589 at para. 41. Even where a trial
    judge has relied on a factor that is unsupported by proper legal principles or
    considerations to deny costs to a successful party, an appellate court should
    not intervene unless it can find nothing in the factual circumstances or
    argument to support the order:
Bell Canada
at para. 42.

[40]

Success was divided at trial. It was within the
    trial judges discretion to decline to award costs. I am not convinced that
    appellate intervention is warranted.

(3)

Conclusion

[41]

For these reasons I would dismiss both the
    appeal and the cross-appeal.

(4)

Costs

[42]

Costs of the appeal to the respondents in the agreed amount of
    $25,000.

Released: March 30, 2022 P.L.

A. Harvison Young J.A.

I agree P. Lauwers J.A.

I agree L. Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Arnatsiaq (Re), 2022 ONCA 260

DATE: 20220328

DOCKET: C69777

Simmons, Miller and Nordheimer JJ.A.

IN THE MATTER OF:  Siobhan Arnatsiaq

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Jacob Millns, for the respondent, Attorney
    General of Ontario

Julia Lefebvre, for the respondent, Person
    in Charge of North Bay Regional Health Centre

Heard: March 25, 2022 by video
    conference

On appeal from the disposition of the
    Ontario Review Board, dated July 8, 2021, with reasons dated August 9, 2021.

REASONS FOR DECISION

[1]

Ms. Arnatsiaq was found not criminally
    responsible on May 7, 2021. She appeals from the initial disposition of the
    Ontario Review Board that made a detention order against her. The appellant
    submits that the Board erred in making the detention order. In particular, she
    submits that the Board erred in finding that the appellant poses a significant
    risk to the safety of the public. She asks that the detention order be set
    aside and that an absolute discharge be granted. Alternatively, the appellant
    asks for a conditional discharge with the Royal Ottawa Hospital as supervising
    facility. In the further alternative, the appellant seeks a new hearing. At the
    conclusion of the hearing, we dismissed the appeal for reasons to follow. We
    now provide our reasons.

[2]

The appellant has been under the auspices of the
    Board since May 7, 2021, arising out of charges of assault and failure to
    comply with a release order. The assault involved an attack by the appellant,
    while she was in hospital, on a 71‑year‑old female patient. The
    patient suffered serious injuries as a result of the assault.

[3]

The Board found that the appellant continues to
    pose a significant risk to the safety of the public. The Board accepted the
    evidence of the attending psychiatrist, Dr. Alabi, that, if released, the
    appellant would rapidly decompensate. Dr. Alabi said that the appellant had
    limited and fluctuating insight with respect to her mental illness. He also
    noted that there had been instances of violence over the years although none of
    these appear to have resulted in any criminal convictions.

[4]

The appellant submits that the Board applied the
    wrong test in concluding that the appellant posed a serious risk to the safety
    of the public and that, in the absence of a formal risk assessment, the Board
    should minimally have been left uncertain as to whether the necessary threshold
    was met. The appellant notes that she has been suffering from mental illness
    since she was a teenager yet, despite that fact, she was able to practice law
    for many years. She also notes that she does not have any prior criminal convictions.

[5]

In our view, it was open to the Board, on the
    evidence, to conclude that the appellant posed a significant risk to public
    safety. In that regard, the appellant has failed to demonstrate that the
    Boards conclusion is unreasonable. With respect to the requirement that there
    be evidence that a person will commit a criminal offence giving rise to a real
    risk of serious physical or psychological harm to a member of the public, this must
    be understood in the context of what serious means. Serious in this context is
    described as going beyond the merely trivial or annoying:
Winko v.
    British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
    para. 62. Further, there appears to be some evidence that the appellant
    may be suffering more from her mental illness, and thus acting out more, in
    recent times than she has in the past.

[6]

As for the appellants risk assessment argument,
    the Hospital Report filed at the hearing included a detailed Clinical
    Assessment of Risk leading the treatment team to conclude that the appellant
    poses a significant threat to the safety of the public. Although there had been
    insufficient time between the NCR finding and the hearing to conduct an
    actuarial risk assessment, it was open to the Board to accept and rely on the
    clinical risk assessment as it did.

[7]

While we recognize some troubling aspects
    regarding how the appellants situation has been handled, we note that the
    Board took direct action with respect to them. For one, the Board ordered that
    the appellant be immediately transferred to an all-female unit of the hospital.
    Inexplicably, the appellant was initially placed on a predominantly male unit,
    notwithstanding her past history of sexual and physical abuse at the hands of
    men. For another, the Board ordered a six-month review of the appellants
    situation to ensure that the appellants case was progressing in terms of
    evaluation and treatment. For yet another, the Board appears to be conscious of
    the fact that it may be better for the appellant if she were housed in a
    facility in the Ottawa area. We expect that the Board will continue to monitor
    the situation to determine whether that transfer can be accomplished in a
    relatively short period of time.

[8]

We do not accept that the Board erred in failing
    to impose a conditional discharge. Given the appellants limited insight into
    her mental illness, the inability of the hospital to effectively monitor her in
    a community setting, and the risk that the appellant poses, we agree that a
    conditional discharge was not a reasonable alternative at this time. Again,
    that was a reasonable conclusion for the Board to reach on the evidence. Similarly,
    as Dr. Alabis evidence was that a community living privilege would not be
    exercised in the coming year, it was reasonable for the Board not to include
    such a condition in its disposition.

[9]

We also do not accept the appellants contention
    that the Board failed to consider
Gladue
[1]
principles in accordance with
    the decision of this court in
R. v. Sim
(2005), 78 O.R. (3d) 183 (C.A.).
    As noted by Sharpe J.A. in that case at p. 189: An individual will not be
    more or less dangerous, nor will an individual be more or less mentally ill, because
    of his or her aboriginal status. In addition, a review of the Boards reasons
    demonstrates that the Board is fully conscious of the appellants background
    and the need to consider it in its disposition decisions. Further, we expect
    that the Board will continue to monitor the Hospitals progress in
    investigating available and appropriate cultural supports for the appellant in
    the area and give further direction to the Hospital in that regard if
    necessary.

[10]

It is for these reasons that the appeal was dismissed.

Janet Simmons J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.

[1]

R. v.
    Gladue
, [1999] 1 S.C.R. 688.


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. Ruelas, 2022 ONCA 262

DATE: 20220331

DOCKET: C69691

Simmons, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Ruelas

Appellant

Marianne Salih and Jeffery Couse, for
    the appellant

Molly Flanagan, for the respondent

Heard: in writing

On appeal from the sentence imposed on December
    18, 2020 by Justice Gisele M. Miller of the Superior Court of Justice, with
    reasons reported at 2020 ONSC 7973.

REASONS FOR DECISION

[1]

Following a judge alone trial, the appellant was
    convicted of sexual assault, but acquitted of the offence of choking to assist
    in committing a sexual assault.

[2]

The appellant and the victim were long time
    acquaintances. After an evening of partying and consuming alcohol at a friends
    place, the victim awoke on a couch to find the appellant having sexual
    intercourse with her. When she protested, the appellant told her to shut up,
    ripped her tank top and at one point had his hand on her throat with sufficient
    force to cause bruising. The trial judge was not however satisfied beyond a
    reasonable doubt that the appellant was attempting to render the victim
    insensible, unconscious or incapable of resistance.

[3]

After reviewing the material placed before her
    for sentencing, the trial judge sentenced the appellant to three years, six
    months imprisonment less six days credit for pre-sentence custody.

[4]

The appellant raises three issues on appeal.

[5]

First, the appellant argues that the trial judge
    erred in failing to give effect to the mitigating factors present. The trial
    judge noted the several letters filed in support of the appellant, his efforts
    at rehabilitation through an in-patient alcohol rehabilitation program, the
    further counselling he had undertaken and the low‑to‑moderate risk
    assessment his counsellor had provided. However, the trial judge expressed
    uneasiness at the fact that none
[1]
of the letters of support post‑dated his arrest and detention on new
    charges prior to the date of sentencing.

[6]

The appellant submits that the trial judge erred
    in failing to raise her concerns at the sentencing hearing and give the
    appellant an opportunity to respond and submits that this error led her to
    ignore or de-emphasize the mitigating factors present.

[7]

Second, the appellant argues that the trial
    judge erred in failing to apply the principle of restraint. While the appellant
    had a prior record, it was unrelated. The appellant was 31 years-old at the
    time of sentencing, had never previously been sentenced to the penitentiary and
    had good rehabilitation prospects. In the circumstances, he submits that a
    sentence of three years, six months' incarceration did not properly recognize his
    potential for rehabilitation or apply the principle of restraint.

[8]

Finally, the appellant argues that the trial
    judge erred in failing to give the appellant credit for pre-sentence custody
    arising from the unrelated charges he was facing at the time of sentencing. The
    trial judge calculated that, by the date of sentencing, the appellant would
    have spent 70 days in custody on the charges he was facing. Fresh evidence
    demonstrates that the appellant received credit for only 45 days of
    pre-sentence custody when sentenced for those charges.
The
    appellant submits that his detention on the additional charges was sufficiently
    related to his conviction for this offence that the additional time served
    should have been credited as pre-sentence custody for this offence.

[9]

We would not give effect to the first and second
    grounds of appeal.

[10]

Although we agree that it would have been
    preferable had the trial judge raised her concerns about the letters of support
    at the sentencing hearing and given trial counsel an opportunity to respond, we
    are not satisfied she was obliged to do so. Such letters are not the equivalent
    of a pre-sentence report ordered by the court. A trial judge is entitled to
    assume that parties have filed all available material in support of their
    position.

[11]

Further, based on our review of the trial judge's
    reasons, we are satisfied that she fully considered the appellant's
    circumstances and the relevant sentencing principles. As we have said, she
    reviewed all the material placed in front of her for the purposes of
    sentencing. We see no error in principle that affected the sentence imposed.

[12]

Finally, even if we had identified any error in
    the trial judges reasons, we are satisfied that a sentence of three years, six
    months incarceration was entirely fit having regard to the circumstances of
    the offender, and the offence, and all relevant sentencing principles. As
    observed by the trial judge, this was a sexual attack involving full
    penetration on an incapacitated victim who trusted the appellant as a friend.
    During the attack, the appellant placed his hand on the victims throat with
    sufficient force to cause bruising. The impact on the victim has been severe.

[13]

As
    for the third ground of appeal, we conclude that the appellant should be given
    credit for the pre-sentence custody served that was not credited to him on the charges
    for which he was detained at the time of sentencing by the trial judge. The
    trial judge calculated that the appellant would have served a total of 70 days
    in custody prior to the date of sentencing. She gave credit on a 1.5:1 basis
    for four days of pre-sentence custody, resulting in six days credit. We would
    allow credit for an additional 21 days of pre-sentence custody (70 days minus 4
    days credited by the trial judge minus 45 days credited on other charges) on a
    1.5:1 basis, resulting in additional credit of 32 days.

[14]

Based on the foregoing reasons, leave to appeal
    sentence is granted, the appeal is allowed in part by increasing the credit for
    pre-sentence custody from six days to 38 days, resulting in a sentence of three
    years and six months imprisonment less credit for 38 days of pre-sentence
    custody. The sentence appeal is otherwise dismissed and all other terms of the
    sentence imposed by the trial judge shall remain in full force and effect.

Janet Simmons J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.

[1]

The trial judge did note that one of the letters was
    undated.


COURT OF APPEAL FOR ONTARIO

CITATION: York (Regional Municipality) v.
    1085638 Ontario Limited, 2022 ONCA 263

DATE: 20220331

DOCKET: C66417

Simmons, Miller and Nordheimer
    JJ.A.

BETWEEN

Regional Municipality of York

Respondent

and

1085638
    Ontario Limited and Meadow Valley Garden Centre Ltd.

Appellants

Adam Marchioni, for the appellants

Chris G. Bendick, for the respondent

Heard: March 21, 2022 by video
    conference

On appeal from the judgment of Justice
    David S. Rose of the Ontario Court of Justice, dated September 28, 2018, dismissing
    an appeal from the convictions entered on June 6, 2017 by Justice of the Peace Herbert
    B. Radtke of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant, 1085638 Ontario Limited, was
    convicted of one offence under the
Building Code Act, 1992
, S.O. 1992,
    c. 23 and both appellants were convicted of two offences under the
Planning
    Act
, R.S.O. 1990, c. P.13. All of the offences relate to the operation of
    a garden centre in the City of Vaughan. The appellants now appeal, with leave,
    from those convictions.

A.

Background

[2]

There is a lengthy history to this matter which
    we need not repeat for the purposes of our analysis and conclusion. The
    relevant facts may be stated briefly.

[3]

The appellants operated a garden centre on Keele
    Street in the City of Vaughan. There is no dispute about this fact. There is,
    however, a dispute about the length of time that the garden centre operated,
    about which we will have more to say later.

[4]

The first offence relates to the construction of
    a building that houses the garden centre. It was constructed without obtaining
    a building permit. On March 10, 2005, a building inspector for the City of
    Vaughan issued an order to comply that required that an engineers report be
    filed with the City. That was never done. This led to the charge under the
Building
    Code Act
.

[5]

Many years later, in April 2012, a by-law
    officer for the City of Vaughan attended at the garden centre. She observed vehicles
    and equipment along with gardening materials and supplies. Trees and shrubs
    were for sale. The location of the garden centre is on lands that are part of
    the Oak Ridges Moraine. Zoning for the lands did not permit the operation of a
    retail nursery nor did it permit open storage. This led to the two offences
    under the
Planning Act
.

[6]

We should add that, back in 1992, 1085638
    Ontario Limited had submitted an application to amend the official plan and
    zoning to permit the operation of a garden centre. That application was granted
    subject to certain conditions. Those conditions were never fulfilled. Consequently,
    the amendment never came into effect.

B.

The decisions below

[7]

The Justice of the Peace convicted the
    appellants at first instance. He found that the appellants had shown a lack of
    respect for the process and had flouted the law. With respect to the appellants
    argument that the garden centre constituted a legal non-conforming use, the
    Justice of the Peace found that there was insufficient evidence that the garden
    centre was in fact operating on the day of the passing of the bylaw. Thus,
    there was no evidentiary foundation for the argument of legal non-conforming
    use.

[8]

The appeal judge reviewed the reasons and
    conclusions of the Justice of the Peace and, in detailed reasons, he upheld
    them.

[9]

It is not necessary for us to consider all of
    the issues that the Justice of the Peace dealt with because this court, in
    granting leave to appeal, restricted the issues on the appeal to two: (i) the
    issue of legal non-conforming use under s. 34(9) of the
Planning Act
and (ii) the issue of delay under s. 11(b) of the
Canadian Charter of
    Rights and Freedoms
.

[10]

On the first issue, the Justice of the Peace
    found, as we have said, that there was insufficient evidence led by the
    appellants to establish that the garden centre was in operation at the time
    that the municipal by-law came into force. The by-law prohibited the use of the
    lands for the retail operation of a garden centre. The appeal judge upheld that
    conclusion, finding that it was a question of fact which was entitled to
    deference. However, the appeal judge went on to find a second reason for sustaining
    that conclusion. He found that the building for the garden centre had been
    erected in 1992, long after the by-law was passed. He found that that fact also
    meant that the appellants could not rely on a legal non-conforming use.

[11]

The second issue raised the question of delay in
    the prosecution, and an asserted breach of s. 11(b) of the
Charter
.
    The issue was raised back in 2011 and with reasons delivered in January 2012,
    prior to the second and third charges being laid. The application for a stay
    was dismissed. As if this matter was not confused enough, we should point out
    that the s. 11(b) issue was heard and determined by another Justice of the
    Peace, not the one who convicted the appellants.

[12]

There is no issue raised regarding any delay in
    the prosecution after that ruling. It is also agreed that the only challenge to
    the s. 11(b) ruling is whether the Justice of the Peace, who heard and
    determined that challenge, was correct in holding that 1085638 Ontario Limited
    had failed to demonstrate that it had suffered any prejudice arising from the
    delay.

[13]

The appeal judge found that the correct test had
    been applied in considering the s. 11(b) issue. He also found that the Justice
    of the Peace had not committed any error in concluding, on the evidence, that
    no prejudice had been established.

C.

Analysis

[14]

In our view, the appeal judge was correct in
    both of his conclusions.

(1)

Legal
    non-conforming use

[15]

The argument on this issue, and which led to
    leave to appeal being granted, was whether s. 34(9) of the
Planning Act
requires that the non-conforming use be in active operation on the very day
    that the zoning by-law comes into force. That question is of importance in this
    case because, as found by the Justice of the Peace, the appellants could not
    state with any certainty that that was the case. Indeed, there was some
    evidence that could suggest the garden centre had not become operational until
    much later in time.

[16]

The appellants submit that to hold that the
    business must be in operation on the very day when the zoning by-law comes into
    force is inconsistent with the wording of the
Planning Act
and is also
    inconsistent with this courts decision in
Feather v. Bradford (Town),
2010 ONCA 440, 320 D.L.R. (4th) 228.

[17]

We do not agree. In our view, the wording of s.
    34(9) is clear. It reads:

No by-law passed under this section
    applies,

(a) to prevent the use of any
    land, building or structure for any purpose prohibited by the by-law if such
    land, building or structure was lawfully used for such purpose
on the day of
    the passing of the by-law
, so long as it continues to be used for that
    purpose; or

(b) to prevent the erection or
    use for a purpose prohibited by the by-law of any building or structure for
    which a permit has been issued under subsection 8 (1) of the
Building Code
    Act, 1992
, prior to the day of the passing of the by-law, so long as the
    building or structure when erected is used and continues to be used for the
    purpose for which it was erected and provided the permit has not been revoked
    under subsection 8 (10) of that Act. [Emphasis added.]

[18]

The emphasized words from s. 34(9)(a) do not
    allow for any other interpretation. Had the Legislature intended that the use
    could exist at some point prior to the by-law being passed, it could have used
    the language that appears in s. 34(9)(b), that is prior to the day of the
    passing of the by-law, but it did not. The express language of the section
    must be given effect.

[19]

We also do not see any inconsistency in that
    conclusion and the decision in
Feather
for two reasons. The first is
    that the decision in
Feather
did not deal with the issue that is
    before us. Rather, the decision addresses an attempt by the property owner to
    reconstruct a cottage. It did not involve an issue over the use of an existing cottage.
    The second is that there was a factual finding in
Feather
that the
    owner of the cottage had used it continually up to and including the date on
    which the applicable zoning by-law was passed. That is an important factual
    distinction between this case and
Feather
.

[20]

The appellants advance a further basis for submitting
    that the finding of the Justice of the Peace was in error. They contend that
    the finding that there was insufficient evidence that the business was
    operating on the day the by-law was passed was premised on the fact that the
    witnesses who testified to the issue could not recall whether the garden centre
    was open on the specific day the by-law was passed. They say there was
    unchallenged evidence that the appellants began operations prior to the date on
    which the by-law was passed and continued thereafter to the date of the
    hearing. The finding of insufficient evidence that the business was operating
    on the date the by-law was passed is therefore an error in law.

[21]

We cannot accept this argument. The appellants
    evidence that the garden centre began operations prior to the date on which the
    by-law was passed was not unchallenged. As we have said, there was also
    evidence on which the Regional Municipality of York (the Region) relied that
    could suggest the garden centre was not operational until well after the by-law
    was passed. Counsel for the Region cross-examined the appellants witnesses
    concerning whether the business was in operation on the day the by-law was
    passed. The appellants argument in this regard is not a question of law,
    rather it is a question that attracts review on a standard of palpable and
    overriding error. This courts jurisdiction on appeal under s. 131 of the
Provincial
    Offences Act
, R.S.O. 1990 c. P.33 is limited to a question of law alone.
    The appellants argument in this regard was addressed and dismissed by the
    appeal judge.

(2)

The s. 11(b) argument

[22]

The respondent concedes that the appeal judge
    erred, when considering this issue, in not applying the test in
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, and more specifically, the
    application of the transitional exceptional circumstance. In our view, that
    error is of no moment in this case. The decision in
Jordan
provides
    for a transitional exceptional circumstance to excuse delay in cases that were
    still in the system when the decision in
Jordan
was released, but
    where the delay in the case is explained by reliance on the pre-existing law. At
    para. 96, the court said: This transitional exceptional circumstance will
    apply when the Crown satisfies the court that the time the case has taken is
    justified based on the parties' reasonable reliance on the law as it previously
    existed.

[23]

All of the delay in this matter preceded the
    decision in
Jordan
by more than four years. In determining the s.
    11(b) issue, the Justice of the Peace properly applied the law that existed at
    the time, that is, the decision in
R. v. Morin
, [1992] 1 S.C.R. 771
    and related cases. On that point, the decision in
R. v. CIP Inc.
,
    [1992] 1 S.C.R. 843, made it clear that in order for a corporation to obtain a
    stay of proceedings under s. 11(b), it was required to show prejudice to its
    ability to make full answer and defence. The court said, at p. 863:

It is therefore my opinion that with respect
    to this fourth factor, a corporate accused must be able to establish that its
    fair trial interest has been irremediably prejudiced.

[24]

The appellant, 1085638 Ontario Limited, did not
    lead any evidence of any prejudice to its right to make full answer and
    defence. The s. 11(b) challenge was, therefore, properly dismissed. It is not
    necessary for us to consider the issue whether, in cases that involve a
    corporation and where the delay includes delay post-
Jordan
, there is
    still a need to demonstrate prejudice.

D.

COnclusion

[25]

The appeal is
    dismissed.

Janet Simmons J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Akhi, 2022 ONCA 264

DATE:
    20220329

DOCKET: C67096 & C68914

Simmons,
    Miller and Nordheimer JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Elias
    Akhi

Appellant

AND BETWEEN

Her
    Majesty the Queen

Respondent

and

Jezreel
    Moxam

Appellant

Chris Rudnicki and Theresa Donkor, for
    the appellant Elias Akhi

Mark C. Halfyard and Chloe Boubalos,
    for the appellant Jezreel Moxam

Michael Fawcett, for the respondent

Heard: March 24, 2022 by video conference

On appeal from the convictions entered
    by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a
    jury, on February 12, 2019.

REASONS FOR DECISION

[1]

Elias Akhi and Jezreel Moxam appeal from their
    convictions for robbery, assault with a weapon, and other offences arising out
    of a home invasion robbery that occurred on September 28, 2016. At the
    conclusion of the hearing, we allowed the appeal and ordered a new trial for
    reasons to follow. We now provide our reasons.

[2]

On September 28, 2016, a woman was abducted from
    her home at gunpoint. The woman lived in a home in London with her two
    daughters, her boyfriend, and her boyfriend's brother. Her boyfriend and his brother
    were drug dealers.

[3]

On the night in question, two men entered the womans
    home and tied her up along with the two brothers. These two men were later
    identified as Azizullah Hadi and the appellant, Moxam. The men demanded drugs,
    money, and valuables. One of the men pistol-whipped her boyfriend. When no
    drugs were found, they threatened to take the children. Ultimately, the woman was
    blindfolded and taken to a car driven by a third man. The three men drove her
    to an apartment building, in the apparent belief that drugs would be found
    there. They met another vehicle (the second vehicle) occupied by three other
    men. One of the men from the second vehicle, William Pieszchala, opened the
    door to the building. Hadi and the woman went to a unit on the second floor.
    When no one answered the door, they went back downstairs where Moxam gave the woman
    money for a phone call and told her not to remove her blindfold until after the
    men had left.

[4]

Following the incident, Pieszchala approached
    the police and provided a statement concerning his involvement in the incident.
    Among other things, Pieszchala alleged that Akhi was in the second vehicle and
    that he not only forced Pieszchala to participate in the offences at gunpoint
    but also gave directions to Hadi and Moxam concerning carrying out the offences
    over the phone. The police eventually charged five individuals with various
    offences. Two of those individuals subsequently had their charges withdrawn. After
    Hadi pleaded guilty, the trial proceeded only as against the appellants.

[5]

The appellants raised a number of grounds of
    appeal, some in common and some separately. We need only address one that is
    common to both appellants and that involves serious errors in the instructions
    that were given to the jury by the trial judge.

[6]

This case was complicated by two principal
    factors. One was that there were two accused. The other, and more significant,
    complicating factor was that the information initially contained 26 different
    counts. Some counts related to individual accused and other counts related to
    accused charged jointly. The fact that Hadi resolved his case led to there
    being a reduction in the number of counts, but it still required the jury to be
    instructed on 14 counts.

[7]

Further, the instructions given to the jury
    included not only instructions on liability as principals, but also
    instructions on liability as parties, either as aiders under s. 21(1)(b) or common
    intention under s. 21(2) of the
Criminal Code
, R.S.C. 1985, c. C-46. Unfortunately,
    in attempting to address all of these moving parts, the jury instructions
    became very confused.

[8]

By way of example, the trial judge adequately
    set out the requirements for common intention under s. 21(2) very early in her
    instructions. However, much later, when she came to the actual counts that the
    jury had to decide, she moved back and forth between common intention, aiding,
    and joint principals, all without adequately delineating between the three.
    Indeed, she generally failed to delineate which counts might properly attract
    liability for which accused on which basis. Further, in instructing on common
    intention, the trial judge failed to clearly set out which offences were ones
    that the accused had agreed to commit, and which offences were ones that the
    accused knew, or should have known, one of the other participants would
    probably commit.

[9]

Adding to the confusion in this regard is the
    fact that while the trial judge initially told the jury that the two appellants
    had to be treated separately, in dealing with the various counts where they
    were jointly charged, which were 11 of the 14 counts, she referred throughout
    to Akhi and/or Moxam. This conjunction failed to maintain the separateness
    that was required when the jury was considering the question of guilt
    respecting each appellant. Because Akhi was never in the house, the avenues of
    liability for him were often distinct from those available for Moxam who was. While
    it may somewhat lengthen the overall instructions, the best practice will
    generally be for a trial judge to deal with each accused separately, even if
    that results in a measure of repetition. In any event, each potential basis for
    liability should be clearly and separately laid out for each offence and each
    accused. One significant consequence of the confusion in this case was that, in
    some instances, the trial judge instructed on avenues of liability not sought
    by the Crown and which were not available on the evidence.

[10]

The respondent quite fairly acknowledges that
    the jury instructions were confusing. Indeed, the respondent accepts that the
    finding of guilt for Akhi based on common intention on three of the counts cannot
    be sustained. However, the respondent contends that the errors in the jury
    instructions do not go so far as to undermine the other convictions for Akhi,
    or any of the convictions for Moxam. On the latter point, the respondent says
    that the only issue at trial was whether the jury would excuse Moxams participation
    on account of duress.

[11]

We do not agree. We begin by noting that had the
    trial judge instructed the jury as is now suggested by the respondent, that is,
    that the only issue for Moxam was duress, the respondents position might carry
    the day. But the trial judge did not do that. Rather, she included Moxam with
    Akhi throughout her instructions on all of the joint counts, including on all
    of the party liability issues.

[12]

In our view, there is no safe way of separating
    out the confusion that was created by the erroneous jury instructions as
    between the various counts or as between the two appellants. If the jury was
    left in a state of confusion regarding what the Crown needed to establish for a
    conviction beyond a reasonable doubt, it cannot be said with any level of
    comfort that the confusion would only have permeated their consideration of
    some charges and not others.

[13]

We would add that this case demonstrates the
    risks associated with including multiple counts in an indictment that arise out
    of the same conduct. It would benefit the conduct of prosecutions
    generally if the Crown identified the key offences involved and prosecuted only
    those offences. As Moldaver J. said recently, in
R. v. R.V.
,

2021
    SCC 10, 455 D.L.R. (4th) 253, at para. 78:

It is incumbent upon the Crown as a
    participant in the justice system to make the trial process less burdensome,
    not more. The Crown fails in that regard when it proceeds with duplicative
    counts. Doing so not only increases the length of the trial; it also places a
    greater burden on trial judges and juries by increasing, as it does, the
    complexity of jury instructions [Citation omitted.]

See also
R. v. Rowe
, 2011
    ONCA 753, 281 C.C.C. (3d) 42, at para. 58.

[14]

In the end result, the jury instructions did not
    properly equip the jury with the tools necessary to decide this case fairly. The
    convictions cannot stand and must be set aside.

[15]

It is for these reasons that we allowed the
    appeal and ordered a new trial. The convictions are quashed and a new trial is
    ordered on the counts on which the appellants were found guilty.

Janet Simmons J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.