COURT OF APPEAL FOR ONTARIO

CITATION: Mallory v. Werkmann Estate, 2015 ONCA 71

DATE: 20150202

DOCKET: M44420 & M44451 (C58453)

Strathy C.J.O. (In Chambers)

BETWEEN

Robert Mallory

Plaintiff (Respondent)

and

The Estate of Gabor
    Werkmann, deceased, Kriztian Nemes,
Istivan Mihali

(
Appellant/Responding Party)

and

Security National
    Insurance Company

Defendant (Respondent/Moving Party)

David L. Silverstone and Jeffery T. Booth, for the moving
    party, Security National Insurance Company

Nestor E. Kostyniuk and Daniel Fenwick, for the
    responding party, Istivan Mihali

Mark M. ODonnell, for the proposed intervener, Royal &
    Sun Alliance Insurance Company

Heard: January 21, 2015

Motion for leave to intervene as an added party brought by Royal
    & Sun Alliance and motion for directions seeking to remove counsel for the
    appellant brought by Security National Insurance Company.

ENDORSEMENT

Overview

[1]

On February 6, 2005, Robert Mallorys car was struck by an
    out-of-control motorcycle. Mallory was severely injured and both the
    motorcyclist and Mallorys passenger were killed. The appellant, Istivan Mihali
    was held partly liable on the basis of his participation in a joint venture with
    the motorcyclist who caused the collision. Mihalis appeal has not yet been
    perfected.

[2]

There are two preliminary motions before me. First, the respondent, Security
    National Insurance Company, moves to remove counsel acting for the appellant on
    the ground of conflict of interest. Second, the appellants insurer, Royal &
    Sun Alliance Insurance Company (RSA), moves to intervene as an added party to
    this appeal under rules 13.01(1) and 13.03(2) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.

[3]

For the reasons that follow, the motion to remove counsel is granted and
    the motion to intervene is dismissed.

Background

[4]

The events giving rise to this action were shocking and tragic.

The collision

[5]

On February 6, 2005, Gabor Werkmann, Kriztian Nemes and the appellant went
    for a motorcycle ride in York Region, north of Toronto. Each on separate
    motorcycles, they drove at speeds in excess of 240 km per hour, three times the
    speed limit. These speeds were confirmed because one of the men had affixed a
    camera to his motorcycle, capturing both the speedometer and the road ahead.

[6]

Werkmann lost control of his motorcycle and struck Mallorys car,
    killing himself and a front seat passenger in the car. Mallory sustained
    serious injuries.

[7]

Mallory sued the estate of Werkmann, Nemes and the appellant, alleging
    they were all negligent. He also sued his own insurer, Security National,
    claiming coverage in the event any liable party was uninsured or underinsured.

The appellants insurance and non-waiver agreement

[8]

The appellant had a policy of insurance with RSA with limits of $1
    million. The policy was subject to statutory conditions limiting liability
    coverage to $200,000 if the driver was engaged in a race or speed test:
Insurance
    Act
, R.S.O. 1990, c. I.8, ss. 234, 251; O. Reg. 777/93, s. 4(2).

[9]

As a result of the potential breach of condition, RSA entered into a
    non-waiver agreement with the appellant on October 28, 2007. The agreement
    granted RSA authority to defend and settle the action against the appellant, while
    preserving RSAs right to continue investigating the claim and dispute coverage
    under the policy.

[10]

RSA
    appointed Kostyniuk and Greenside as defence counsel on behalf of the
    appellant. It also appointed separate counsel to advise on the coverage issues.

The settlement of damages

[11]

On
    May 31, 2013, a settlement was reached between Mallory, RSA (as the appellants
    insurer) and Security National (as the potential uninsured carrier), agreeing
    to fix the amount of damages at $444,850. The appellant, and not RSA, signed
    the agreement due to his potential uninsured exposure in the event of breach of
    a condition.

[12]

RSA
    (on behalf of the appellant) and Security National made an initial joint
    payment of $50,000 without prejudice to their rights to seek indemnity for this
    payment from each other or from the other defendants.

[13]

The
    agreement also provided that the appellant and Security National would proceed
    to trial to determine whether the appellant was liable for the plaintiffs
    damages. If he was not, then Security National would be liable. If the
    appellant was liable for the plaintiffs damages, then RSA would be liable for
    at least $200,000 and potentially for the full amount of damages in the event
    there was no breach of the statutory conditions.

[14]

I
    was advised that there has since been a further joint advance payment of
    $100,000 by RSA and Security National. However, as of this date, RSA has not
    decided whether to provide full coverage for the appellant. Its position is
    that the issue must be determined following this appeal.

[15]

This
    means that almost 10 years after this tragic accident, the plaintiff has not
    received full compensation for his injuries. Nor has the appellants liability
    insurer taken a position on coverage, in spite of its longstanding knowledge of
    the material facts and now with the benefit of the trial judges factual
    findings.

The trial on liability

[16]

The
    issue at trial was whether negligence on the part of the appellant and Nemes
    caused or contributed to the accident and, if so, to what extent.

[17]

The
    trial judge found that although the appellant and Nemes were not directly
    involved in the collision, they were responsible for it because they were
    engaged in a joint venture with Werkmann. During the ride, they incited and
    encouraged each other to drive in excess of the speed limit and break the rules
    of the road. The trial judge found the appellant and Nemes each 25% at fault
    and jointly and severally liable for all the plaintiffs damages.

[18]

The
    trial judge dismissed the plaintiffs claim against Security National, stating,
    [s]ince Mr. Mihali was insured at the time of the collision, the claim against
    the defendant Security National Insurance Company is dismissed.

[19]

It
    is this statement that gives rise to RSAs motion to intervene.

Post-judgment involvement of RSA

[20]

The
    trial judge released her reasons for judgment on February 10, 2014. Eight days
    later, coverage counsel for RSA wrote directly to the trial judge, and to
    plaintiffs counsel, counsel for the appellant and counsel for Security
    National. In the letter, RSA expressed concern about the trial judges comment
    about coverage and stated, the availability, or lack of thereof, of insurance
    coverage for Mr. Mihali, we submit, was also not an issue before the Court. The
    letter added that the issue of whether the RSA insurance would respond given
    the factual findings had not yet been determined.

[21]

The
    letter asked the trial judge to advise whether a motion to amend the order in
    relation to the contentious paragraph was to be brought under rule 59.06(1)
    and, if so, by whom.

[22]

The
    following day, the judges secretary wrote to counsel noting that it was
    inappropriate to correspond directly with a judge about a matter before the
    court and suggesting that counsel consult the rules and deal with any
    outstanding matters through the trial co-ordinator.

[23]

RSAs
    counsel did not contact the trial co-ordinator. No further action was taken by
    RSA until this motion was brought.

Further pursuit of the coverage issue in this court

[24]

On
    March 6, 2014, the appellants counsel (who remained appointed and paid by RSA)
    filed a notice of appeal. Eight grounds of appeal were identified, six of which
    went to the appellants liability. The two last grounds went to the issue of
    the appellants insurance coverage. They were as follows:

7. The opening remarks by counsel for the Appellant dealt with
    the potential for insurance coverage issues to arise depending on the finding
    of the Court. The Honourable Justice M. Lack indicated that she would not be
    addressing this issue at Trial and it would be dealt with subsequent to
    rendering of verdict

8. The Honourable Justice M. Lack erred by addressing the issue
    of coverage in her decision, indicating this at paragraph 33 of her decision.

[25]

Ground
    8 forms the basis for the motion to remove counsel for the appellant.

[26]

Counsel
    for the appellant also pursued the coverage issue in its factum filed on
    October 23, 2014, which stated:

Justice Lack in paragraph 33 of her decision stated Mr. Mihali
    was insured at the time of the collision, although the issue of coverage was
    not before the court in these proceedings. The Notice of Appeal at paragraph 8
    highlighted this issue. ODonnell, Robertson & Sanfillipo Barristers &
    Solicitors, separate coverage legal counsel for Royal & SunAlliance, will
    be promptly filing a motion to the Court of Appeal for further direction on
    this matter although the issue of coverage was not properly before the Court in
    these proceedings and RSA was not even a party. This is not an issue dealt with
    in this factum and it is Mr. Mihalis position that his coverage was not an
    issue properly before the Court in these proceedings.

[27]

As
    alluded to in the factum, a motion was subsequently brought by RSA to intervene
    in the appeal as an added party. In its factum on the motion, RSA states it
    has an interest in the subject matter of the proceeding and may be adversely
    affected by a judgment in the proceeding if RSA is bound by Justice Lacks
    finding relative to insurance coverage.

Discussion

The motion to remove counsel

[28]

The
    test on a motion to remove counsel is whether a fair minded and reasonably
    informed member of the public would conclude that the proper administration of
    justice compels the removal:
Matfoun v. Banitaba
, 2012 ONCA 786, at
    para. 4. In my view, removing counsel for the appellant is necessary to protect
    the integrity of the administration of justice and avoid the appearance of
    impropriety.

[29]

Mr.
    Kostyniuk acknowledges that it was inappropriate to include para. 8 in the appellants
    notice of appeal. I agree. He was appointed and paid by the insurer, but he
    owed a duty of loyalty and good faith to the appellant:
Ernst & Young
    Inc. v. Chartis Insurance Co. of Canada
, 2014 ONCA 78, 118 O.R. (3d) 740,

at para. 70;
Parlee v. Pembridge Insurance Co
., 2005 NBCA 49, 253
    D.L.R. (4th) 182, at para. 17.

[30]

It
    was not in the appellants interest to include the issue of his own insurance
    coverage as a ground of appeal. The inclusion of ground 8 gives rise to a clear
    conflict between the interests of the appellant on the one hand and the
    interests of his insurer on the other. The same is true of ground 7.

[31]

The
    inclusion of these grounds gives rise to the inescapable conclusion that
    defence counsel was acting on the instruction of the insurer to advance a
    ground of appeal contrary to the interests of the insured.

[32]

Although
    there is no evidence on this issue, I am prepared to accept Mr. Kostyniuks
    representation that the appellant would like him to continue to act. That,
    however, is not determinative. Where there is an appearance of impropriety the
    removal of counsel may still be necessary to protect the repute of the
    administration of justice:
MacDonald Estate v. Martin
, [1990] 3 S.C.R.
    1235; 781332
Ontario Inc. v. Mortgage Insurance Co. of Canada
(1991), 5
    O.R. (3d) 248 (Gen. Div.), at p. 254.

[33]

In
    the circumstances, it would bring the administration of justice into disrepute
    to permit Kostyniuk and Greenside to continue to act as counsel for the
    appellant. The motion to remove that firm is granted. The appellant shall be
    entitled to retain independent counsel of his own choice, with all reasonable
    legal fees and disbursements to be paid by RSA. To facilitate an expeditious
    change in representation, Mr. Kostyniuk is directed to assist the appellant in forthwith
    obtaining independent counsel. If the appellant is unable to retain independent
    counsel, he may bring a motion before this court for directions.

The motion to intervene

[34]

I
    dismiss the motion to intervene for two reasons.

[35]

First,
    RSA has provided no authority for an intervention in these circumstances. RSA
    does not seek to intervene as a friend of the court under rule 13.02 and it
    proposes to make no contribution on the liability issues engaged in the appeal
    proper. Rather, RSA seeks to intervene as an added party under rule 13.01(1)(b),
    on the basis that it may be adversely affected by a judgment in the proceeding.

[36]

RSAs
    real complaint is that it will be affected by the trial judges finding that the
    appellant had insurance coverage. However, RSA has not established how it will
    be adversely affected by a finding of fact in a proceeding to which it was not
    a party.  Although the judgment had still not been taken out when the parties
    appeared before me, I am not satisfied that RSA will be adversely affected by
    the judgment in the proceeding. Therefore, it has not met the test for
    intervention.

[37]

Second,
    even if the finding could adversely affect RSAs interests, RSA is partly to
    blame for the situation it finds itself in.

[38]

At
    the opening of trial, the trial judge attempted to clarify the scope of issues
    that would be addressed. At that time, there were no written minutes of
    settlement prepared and there was no written agreement about how the trial on
    liability would proceed. Nor was there any clear definition of the boundaries
    of the trial, having regard to the fact that there were coverage issues in the
    background and the appellant was being defended under a non-waiver agreement.

[39]

I
    have read the transcript of the ensuing discussion that occurred with counsel. The
    trial judge specifically raised the issue of coverage. When defence counsel,
    who was appointed and paid by RSA, responded that RSA had not made a decision
    on coverage, the trial judge raised the prospect of a conflict of interest. Counsel
    then made statements suggesting if the trial judge made no finding of racing or
    a speed test, the appellant would have coverage and the claim against Security
    National could be dismissed.

[40]

In
    her reasons for judgment, the trial judge made no finding of racing or a speed
    test and it is therefore understandable why she concluded the appellant had
    coverage from RSA.

[41]

Long
    before trial, RSA was aware of the factual circumstances giving rise to the
    claim and it had the 45 minute video of the three motorcycles on their
    high-speed ride. It appointed and paid for defence counsel and decided to delay
    a determination of coverage until after trial. Although RSA may not be bound by
    defence counsels statements regarding its coverage position, an issue I need not
    address, it would have been well aware of the importance of ensuring its
    coverage position was properly communicated and the scope of the trial was clearly
    defined.

[42]

It
    took no steps prior to the judgment being released to clarify these points and
    bears some responsibility for the resulting confusion. It could have added
    itself as a statutory third party pursuant to s. 258(14) of the
Insurance
    Act
, but chose not to.

[43]

Moreover,
    after the trial, RSA failed to pursue the invitation to contact the trial co-ordinator
    to arrange an appointment before the trial judge. Counsel submits this was not
    done because RSA had no standing and would not have been permitted to make
    submissions on the point. This was not a foregone conclusion. The judgment had
    not been taken out at that time, the judge was not
functus
, and if
    there was any issue concerning the courts order or any alleged error in the
    reasons, it should have been brought directly to the attention of the trial
    judge.

[44]

The
    letter from the judges secretary did not evidence a refusal to deal with the
    issue. It simply said the issue should be dealt with through the proper
    procedure.

[45]

RSA
    is not in a position to now complain on appeal about the confusion surrounding
    coverage.

Disposition

[46]

For
    these reasons, the motion to intervene is dismissed and the motion to remove
    counsel for the appellant is granted. Costs, if not resolved, may be addressed
    by brief written submissions.


COURT OF APPEAL FOR ONTARIO

CITATION: Mason v. Shatford, 2015 ONCA 133

DATE: 20150226

DOCKET: C59158

Laskin, Rouleau and Huscroft JJ.A.

BETWEEN

Fraser Mason

Plaintiff (Appellant)

and

Jeffrey David Shatford
, Tanya Crystal Walker

and Walker Law
    Professional Corporation

Defendants (
Respondent
)

William A. Chalmers, for the appellant

Ivan Y. Lavrence, for the respondent

Heard: February 25, 2015

On appeal from the order of Justice Alfred J. OMarra of
    the Superior Court of Justice, dated July 7, 2014.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the appeal should be dismissed. We agree with the motion
    judge that, in essence, the appellant is attempting to relitigate issues
    already determined by Gilmore J.s order. Gilmore J. ordered that all of the
    proceeds from the sale of the appellants sons house be paid into court
    pending the resolution of the priorities dispute. To allow the appellants
    claim to proceed is to punish the respondent for relying on a legally sound
    court order. This does not constitute an abuse of process. As noted by the
    motion judge, the respondent was entitled to rely on Gilmore J.s decision just
    as the appellant was entitled to seek to vary or challenge it.

[2]

The appellant also seeks leave to amend. In our view no amendment can
    remedy this fundamental flaw in the claim.

[3]

As a result, the appeal is dismissed. Costs to the respondent fixed at
    $10,000 inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Matthews v.
Andrushko, 2015 ONCA 92

DATE: 20150209

DOCKET: C57669

Rouleau, van Rensburg and Pardu JJ.A.

BETWEEN

Jennifer Matthews

Appellant (Defendant)

and

Robert Andrushko, Richard Andrushko

Respondents (Plaintiffs)

Maheen Merchant, for the appellant

No one appearing for the respondents

Heard: February 6, 2015

On appeal from the judgment of Justice James C. Kent of
the Superior Court of Justice, dated August 26, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We are advised that this matter has been settled in accordance with
terms exchanged between the parties on the basis of dismissal of the appeal
with costs payable to the respondents as agreed. On that basis the matter is
dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Community and Social Services) v. John Doe, 2015 ONCA 107

DATE: 20150217

DOCKET: C59060 & C59062

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

C59060

Ministry of Community and Social Services

Appellant

and

John
    Doe, Requester, Affected Party,

Ontario
    Public Service Employees Union, and

Information
    and Privacy Commissioner

Respondents

AND BETWEEN

C59062

Ministry of Community and Social Services

Respondent

and

Ontario Public Service Employees Union

Appellant

and

John
    Doe, Requester, Affected Party, and

Information
    and Privacy Commissioner of Ontario

Respondents

Lise Favreau and Erin Rizok, for the Ministry of
    Community and Social Services

David R. Wright and Jane Letton, for the Ontario Public
    Service Employees Union

Lawren Murray, for the Information and Privacy
    Commissioner of Ontario

Heard: January 20, 2015

On appeal from the judgment of the Divisional Court
    (Justices Harriet E. Sachs, Herman J. Wilton-Siegel and Mary Jo Nolan), dated
    February 24, 2014.

Hoy A.C.J.O.:

[1]

The appellants, the Ministry of Community and Social Services (the
    Ministry) and the Ontario Public Service Employees Union (OPSEU), appeal
    the order of the Divisional Court, dismissing their application for an order
    setting aside Order PO-2917 (the Order) made by Adjudicator Steven Faughnan
    of the Information and Privacy Commissioner of Ontario (the Commissioner)
    under the
Freedom of Information and Protection of Privacy Act,
R.S.O.
    1990, c. F.31 (the Act).

[2]

The Order requires the Ministry to disclose records that include the
    full names of some employees of its Family Responsibility Office (FRO) to an
    individual (the Requester) who had requested personal information about himself
    in FROs files pursuant to s. 47(1)
[1]
of the Act. That section provides an individual with a right of access to his
    or her own personal information held by the government.

[3]

For the reasons below, I would dismiss this appeal.

Overview

[4]

FROs employees are responsible for enforcing court orders providing for
    the payment of child support and spousal support in the context of family law
    proceedings. These employees have direct contact with sometimes volatile
    support payors and payment recipients. The Requester was a support payor. He
    alleged that FRO had mismanaged his file and sought to discover the cause of
    the mismanagement. He did not appear on the application to the Divisional Court
    for judicial review or on this appeal. OPSEU is the bargaining unit that
    represents the FRO employees.

[5]

The documents sought by the Requester are all records in [his] FRO file
    from the beginning, and include court documents, letters between FRO staff and
    the Requester or his lawyer, and internal FRO records. Some FRO employees
    names appear in some of these documents.

[6]

Under the Act, the minister (the Minister) who presides over the
    Ministry was entitled to refuse to disclose the records sought by the Requester
    if the disclosure could reasonably be expected to endanger the life or physical
    safety (s. 14(1)(e)
[2]
)
    or seriously threaten the safety or health (s. 20
[3]
)
    of FRO employees. The Minister relied on this provision in releasing certain
    records with the names of FRO employees redacted. The Commissioner concluded
    that the Minister was not entitled to redact the names of the FRO employees
    under these provisions.

[7]

The appellants argue the Divisional Court incorrectly concluded that the
    Order was reasonable. They renew the arguments they made to the Divisional
    Court. The appellants say the Commissioners conclusion was unreasonable for
    two principal reasons.

[8]

First, the appellants submit the Commissioner acted unreasonably in
    refusing to accept the appellants evidence as sufficient evidence that
    disclosure could reasonably be expected to endanger the life or physical safety
    or seriously threaten the safety or health of the FRO employees.

[9]

The appellants evidence included the order of the Grievance Settlement
    Board (the GSB Order) issued on the consent of The Crown in Right of Ontario
    (Ministry of the Attorney General) (MAG)
[4]
and OPSEU in November of 2000 to reflect their without prejudice and
    precedent settlement of grievances filed by FRO employees. The grieving
    employees alleged that the Ministrys then-existing policy that they identify
    themselves to the public by their full names violated the provisions of the
    collective agreement requiring the employer to take reasonable measures for the
    protection of employee health and safety. As a result of the settlement and the
    GSB Order, FRO employees are permitted, but not required, to identify
    themselves to the public by first name and employee identification number only.
    According to the appellants, the fact that MAG and OPSEU agreed on the need for
    protection of employees from the disclosure of their full names is evidence of
    the existence of a reasonable risk of harm if full names are disclosed.

[10]

The
    appellants evidence also showed that between 2002 and 2006 there were 24
    documented threats made to FRO staff generally or to individual FRO employees. Those
    threats included FRO clients saying: they would bring a fucking bomb down
    there; they would strap a bomb to self and teach court a lesson; are you
    afraid of being shot in the head; and if you dont reinstate my drivers
    licence Columbine in there. Further, OPSEU represented that its members have
    reported that FRO clients who somehow obtained the names of FRO employees have
    used the information to make unsolicited contact with the employees in their
    homes.

[11]

Second,
    the appellants submit the Commissioner failed to consider that the Act does not
    impose any constraints on the use of records following their disclosure and the
    Requester could broadly disseminate the names of the FRO employees after
    obtaining the information. Instead, they argue, the Commissioner only
    considered whether the Requester
himself
could reasonably be expected
    to endanger the life or physical safety or seriously threaten the safety or
    health of the FRO employees. The appellants contend that disclosure to an
    individual under s. 47(1) of the Act should be considered disclosure to the
    world, and as such that the generalized risk to FRO employees as a result of
    disclosure should be considered.

[12]

The
    appellants also argue the Divisional Court erred in concluding that the Order and
    the GSB Order are not in operational conflict. According to the appellants, the
    two orders are in direct operational conflict and the GSB Order, which is about
    the health and safety of FRO employees, should take precedence.

[13]

Below,
    I address the arguments advanced by the appellants.

Was the Order reasonable?

The Order

[14]

The
    Commissioner referred to the evidence that between 2002 and 2006 there had been
    24 documented threats against FRO employees by FRO clients. He also considered
    the GSB Order, which OPSEU argued was proof of acknowledged risk to the health
    and safety of FRO employees associated with the disclosure of employees names.
    He noted OPSEUs evidence that, in relation to threats, it was aware of more
    frequent verbal abuse directed towards FRO staff especially over the course of
    telephone conversations with clients.

[15]

The
    Commissioner noted there was no indication that the Requester had uttered any
    threats to FRO employees and there was nothing in the records to indicate that
    the Requester posed any type of threat of any kind to FRO employees. Indeed, [t]here
    is, in fact, a clear recognition that he does not.

[16]

He
    also noted there was no evidence that FRO employees whose names were in the
    requested records had been subject to any kind of threat or endangerment. The
    Commissioner concluded there was also no evidence that the FRO employees job
    function required anonymity; the situation was different from that in
Duncanson
    v. Toronto (Metropolitan) Police Services Board
(1999), 124 O.A.C. 170
    (Div. Ct.). In that case, disclosure of the names of all police officers employed
    by the police was sought. The Divisional Court held that disclosure of all the
    names should not be provided. Such disclosure would include the names of
    officers working undercover or in plain clothes assignment, where anonymity was
    critical. Here, the FRO employees job assignment did not require that they
    remain anonymous.

[17]

The
    Commissioner considered the evidence in light of
Ontario
(
Information
    and Privacy Commissioner, Inquiry Officer) v. Ontario (Ministry of Labour,
    Office of the Worker Advisor
) (1999), 46 O.R. (3d) 395 (C.A.): the
    institution must demonstrate that the reasons for resisting disclosure are not
    frivolous or exaggerated. However, while the expectation of harm must be
    reasonable, it need not be probable: see
Ontario (Ministry of Labour)
,
    at para. 25.

[18]

The
    Commissioner concluded that the Ministry had not met this evidentiary
    threshold.

The Divisional Courts reasons

[19]

In
    response to the appellants argument that the Commissioner failed to consider
    that, in this digital age, disclosure to the Requester would amount to
    disclosure to the world, the Divisional Court wrote, at para. 52, that the
    scheme of the Act:

requires demonstration that disclosure of the requested
    information to the particular requester would pose a risk to the health or
    safety of the identified individuals by the requester, rather than by the
    public at large, before the exemptions in ss. 14 or 20 can be relied upon. This
    result flows from the fact that disclosure to the requester is not presumed to
    be disclosure to the public.

[20]

While
    the GSB Order amounted to some evidence of health and safety concerns
    associated with disclosing FRO employees names to the public in the past,
    there was no evidence that complying with the Requesters disclosure request
    posed a health and safety threat to the employees whose names were in the
    records requested. The Divisional Court explained, at para. 54:

First of all, as the [Commissioner] noted, there was no
    evidence that this Requester had engaged in threatening or violent behaviour.
    Second, there was no evidence that any of the employees whose names were going
    to be disclosed had ever been the subject of any threats by the Requester or
    anyone else. Third, there was nothing potentially inflammatory in the records
    themselves. Fourth, as mentioned, the evidence that other employees had been
    threatened in the past is not relevant to a request under s. 47(1)(b), which
    requires a consideration of the risk presented by disclosure to the requester.
    Moreover, to the extent that such evidence can be considered, it is
    insufficient to allow someone to do anything more than speculate that
    disclosing the Requesters records would pose a health and safety risk to the
    employees whose full names were in those records.

[21]

At
    para. 55, the Divisional Court noted that
Duncanson
is not authority
    for the proposition that demonstration of a generalized risk is sufficient in
    all cases. The Court in
Duncanson
recognized that whether generalized
    risk is sufficient is dependent on the facts of each case.

[22]

Further,
    the GSB Order, properly interpreted, was not intended to override the
    provisions of the Act. (I summarize the Divisional Courts reasons for so
    concluding below, in considering the appellants argument that the Order
    conflicts with the GSB Order.)

[23]

The
    Divisional Court concluded the Order was reasonable.

Analysis

[24]

I
    agree with the Divisional Court that the Order is reasonable. The Order falls
    within a range of reasonable administrative choices:
New Brunswick (Board
    of Management) v. Dunsmuir
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 153.
    And I agree almost entirely with the Divisional Courts reasoning.

[25]

The
    Commissioner considered all of the evidence, including the GSB Order, in
    concluding that the Ministry had not satisfied its evidentiary burden. Since
    the Commissioner and the Divisional Court rendered their decisions, the Supreme
    Court has clarified what is meant by could reasonably be expected to where
    that phrase appears in the Act, including in ss. 14(1)(e) and 20: see
Ontario
    (Community Safety and Correctional Services) v. Ontario (Information and
    Privacy Commissioner),
2014 SCC 31, [2014] 1 S.C.R. 674, at para. 54. The
    Court held in
Ontario (Community Safety and Correctional Services)
that
    the could reasonably be expected to standard provides a middle ground
    between that which is probable and that which is merely possible: para. 54. It
    went on to write, at para. 54:

An institution must provide evidence well beyond or
    considerably above a mere possibility of harm in order to reach that middle
    ground. [Citations omitted.]

[26]

The
    Commissioners analysis of the evidence accords with this formulation.

[27]

While
    any threat to an employee is of concern, the evidence before the Commissioner
    was that in the period between 2002 and 2006 during which FRO employees
    received 24 documented threats, FRO employees would have handled an estimated
    2.988 million calls. It was accepted that the Requester himself posed no threat
    to FRO employees. As to the risk arising if the Requester disseminated the
    names of FRO employees disclosed in the records, as the Commissioner and
    Divisional Court both noted, there was no evidence that the FRO employees whose
    names were going to be disclosed had ever been the subject of threats by the
    Requester or anyone else. Further, the Requester had the names of at least
    seven employees and had not disseminated that information. And, as the
    Divisional Court noted, there was nothing inflammatory in the records that
    suggested the behaviour of the Requester would change after reviewing the
    records sought.

[28]

The
    appellants cite a number of orders of the Commissioner that they say support
    their argument that disclosure to a requester under s. 47(1) of the Act should
    in all cases be treated as disclosure to the world. In my view, none of the
    orders cited by the appellants presumptively accord this factor the weight the
    appellants argue for. Order PO-3133, [2012] O.I.P.C. No. 232 comes nearest to
    doing so. There, the Commissioner acknowledged the possible consequences of
    disclosure, but concluded that the risk of broader dissemination should not be
    given much weight in the circumstances.
[5]
At para. 81, the Commissioner wrote:

I am not persuaded that disclosure under the Act is disclosure
    to the world is a factor that should be given much weight in the circumstances
    of this appeal. This factor is implicit in any access decision made under the
    Act. In my view, the Legislature tacitly acknowledges the possible consequences
    of disclosure.

[29]

I
    reject the appellants argument that the Commissioner did not consider the risk
    that the Requester might disseminate the names of the FRO employees in the
    records. The Commissioners observation that there was no evidence that FRO
    employees whose names were in the requested records had been subject to any
    kind of threat or endangerment and his consideration of
Duncanson
both
    clearly indicate that he was alive to the appellants submission. Essentially,
    the Commissioner did what the adjudicator in Order PO-3133 did: he considered
    the possible risk of broader dissemination and concluded that it was not a
    significant factor in the circumstances.

[30]

Nor
    in my view do the Divisional Courts reasons, properly read, indicate that the
    risk that an individual who requests information under s. 47(1) of the Act will
    disseminate that information is not a proper factor in assessing whether the
    disclosure to the requester could reasonably be expected to endanger the life
    or physical safety or seriously threaten the safety or health of a person or
    group of persons. To the extent they may be read otherwise, I disagree. In my
    view, the risk that a requester will share the information provided to him or
    her is a relevant factor, to be assessed with all of the other relevant
    factors, in determining whether or not the evidentiary threshold established by
    the Supreme Court in
Ontario (Community Safety and Correctional Services)
has
    been met.

And this, in my view, was what the Commissioner did.

[31]

Finally,
    while the appellants point out that the Requester did not provide an
    undertaking as to confidentiality, the Act does not require that a requester
    provide one and it is not clear to me that it had been suggested that he provide
    one. However, the provision of an undertaking as to confidentiality by an
    individual requesting access to information under s. 47(1) of the Act could be
    relevant in considering the weight to be given to the risk arising from broader
    dissemination in assessing the risk alleged under ss. 14 or 20 of the Act.

Does the Order conflict with the GSB Order?

[32]

Where
    it is impossible to comply with two administrative decisions because they are
    in direct operational conflict, the courts must determine which decision should
    take precedence: see
British Columbia Telephone Co. v. Shaw Cable Systems
    (B.C.) Ltd.,
[1995] 2 S.C.R. 739, at paras. 47, 53. The appellants argue
    that compliance with the Order would necessitate the violation of paragraph 4
    of the GSB Order.

[33]

As
    indicated above, the GSB Order was taken out on the consent of OPSEU and MAG,
    the FRO employees employer, to reflect a without prejudice and precedent
    settlement of grievances filed by FRO employees pertaining to the use of their
    full names in the course of their employment. Paragraph 1 of the GSB Order
    indicates that the Employer agrees to implement the new policy regarding the
    use of names by staff at FRO. The new policy is attached to the GSB Order as
    Appendix A.

[34]

The
    attached policy provides: employees may identify themselves on the telephone or
    on their voicemail by their first name and identification number only;
    documents prepared for use in court, such as affidavits, shall include the
    employees full name; in non-court documents, employees may generally identify
    themselves by their first name and identification number only; and where the
    Minister determines that the use of a full name is required, for non-court
    documents, employees will use their first name and ID number as well as the
    full name of their manager.

[35]

Paragraph
    4 of the GSB Order provides:

The Employer will inform all staff who may give out the names
    of FRO employees in response to inquiries form (
sic
) the public of the
    terms of the new policy provided by this settlement.
Anyone
    disclosing the name of another FRO bargaining unit employee will be required to
    use the persons 1
st
name and I.D. number only.
[Emphasis
    added.]

[36]

The
    appellants say that the word anyone includes the Minister, and paragraph 4
    therefore prohibits the Minister from releasing records containing the full
    names of FRO employees in response to a request for information under s. 47(1)
    of the Act.

[37]

The
    Divisional Court provided thorough and cogent reasons for its conclusion that
    the Order does not conflict with paragraph 4 of the GSB Order:

·

The words without prejudice and precedent signify that the GSB
    Order was meant to be confined to the specific circumstances giving rise to
    that order. (para. 57)

·

The policy provides FRO employees with a choice as to how they
    identify themselves to members of the public when they are dealing with the
    public over the telephone or in written correspondence (other than court
    documents). (para. 58)

·

Taken in context, paragraph 4 of the GSB Order applies to other
    staff who may be faced with inquiries from the public about the names of fellow
    staff members. This is clear from the first sentence, which deals with the need
    to inform all
staff
about the new policy, and the use of the word
    another in the second sentence. By virtue of this word anyone should be
    read as meaning anyone who is also a FRO bargaining unit employee. Accordingly,
    anyone does not extend to the Minister for this purpose. (para. 60)

·

There is no suggestion that when the GSB Order was made, the
    provisions of the Act and its important public policy goals were considered. [N]o
    inference can be drawn that the GSB Order was intended to override the
    provisions of the Act. (para. 64)

·

Under the Act, the request for information is made to the head of
    the institution  in this case, the Minister. Whether or not to apply an
    exemption under the Act requires an exercise of discretion by the Minister that
    cannot be fettered in advance. [T]he Minister cannot consent to an arrangement
    that would have the effect of contracting out of his or her obligations under
    the Act. (para. 65)

[38]

I
    agree with the Divisional Courts reasoning and conclusion. The Order does not
    necessitate violation of the GSB Order.

Disposition

[39]

I
    would accordingly dismiss this appeal. Costs were not sought and none are
    ordered.

Released: February 17, 2015 (A.H.)

Alexandra
    Hoy A.C.J.O.

I
    agree K. van Rensburg J.A.

I
    agree David Brown J.A.

[1]
Section 47(1) of the Act reads:

Right of access to
    personal information

s. 47(1)
    Every individual has a right of access to,

(a) any
    personal information about the individual contained in a personal information
    bank in the custody or under the control of an institution; and

(b) any other
    personal information about the individual in the custody or under the control
    of an institution with respect to which the individual is able to provide
    sufficiently specific information to render it reasonably retrievable by the
    institution.

[2]
Section 14(1)(e) of the Act reads:

Law
    enforcement

14. (1) A head
    may refuse to disclose a record where the disclosure could reasonably be
    expected to,

[]

(e) endanger
    the life or physical safety of a law enforcement officer or any other person;

It is
    conceded that FRO employees constitute law enforcement officers.

[3]
Section 20 of the Act reads:

Danger to safety or health

20. A head may refuse to disclose
    a record where the disclosure could reasonably be expected to seriously
    threaten the safety or health of an individual.

[4]
While the Ministry is responsible for the operation of FRO, FRO employees are
    employees of MAG, not the Ministry.

[5]
In Order PO-3133, the parents of a young man who died in a boating accident at
    a party sought records disclosing the sons personal information (the details
    of his death) relying on the compassionate reasons limitation in s. 21(4)(d)
    of the Act. The adjudicator declined to disclose information that related
    solely to other individuals at the party or other witnesses that do not
    directly impinge on the circumstances of the deceaseds death: para. 87.


COURT OF APPEAL FOR ONTARIO

CITATION: Poss Design Limited v. Beograd Machine
    & Tools Co. Ltd., 2015 ONCA 74

DATE: 20150202

DOCKET: C58945

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Poss Design Limited

Plaintiff

and

Beograd
    Machine & Tools Co. Ltd.,

SNBV
    Inc. d/b/a/ Allmeat Solutions,

Radovan
    Nikolic and Slobodan Nikolic Jr.

Defendants

AND BETWEEN

Beograd Machine &
    Tools Co. Ltd.

Plaintiff by
    Counterclaim/

Respondent

and

Poss
    Design Limited, Kenneth Benjamin Gulak

and
    Sylvie Gulak

Defendants to the
    Counterclaim/

Appellant Poss Design
    Limited

Paul V. McCallen and Miranda Spence, for the
    appellant/plaintiff Poss Design Limited

Milton A. Davis and Samantha Breen, for the respondent/plaintiff
    by counterclaim

Heard: January 16, 2015

On appeal from the judgment of Justice E.M. Morgan of the
    Superior Court of Justice, dated May 21, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We are in agreement with the motion judges reasons for finding there
    was no arguable issue for trial raised by the equitable set off claims.  The
    requisite close connection between the claims was simply not demonstrated on
    this evidence.

[2]

On the question of legal set off, two of the three claims relied on by
    the appellant clearly sounded in damages flowing from the alleged deficiencies
    in product delivered by the respondent.  They were not claims for a debt or
    for a liquidated amount readily determinable at the time of the claim.  The
    third claim relied on by the appellant in support of its legal set off claim
    alleges an overpayment on a contract.  However, the motion judge found that
    this claim was a factually complex one.  We read the motion judge as holding
    that this amount claimed was not for a liquidated amount readily ascertainable
    at the time of the pleading.  We think that finding was open on the record and
    we cannot say that the motion judge overstepped his fact finding powers on the
    summary judgment motion.

[3]

The motion judge properly found there was no case for trial on the legal
    set off claim.

[4]

The motion judge refused to stay his order pending the resolution of the
    remaining claims.  We see no error in the manner in which he exercised his
    discretion.

[5]

The appeal is dismissed.

[6]

Costs to the respondent in the amount of $10,000 inclusive of
    disbursements and relevant taxes.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE: R. c. Halich, 2015 ONCA 76

DATE: 20150203

DOSSIER: M44068

La juge van Rensburg (en
    chambre)

ENTRE

Sa Majesté la Reine

Intimée

et

Khalid Halich

Requérant

Khalid Halich, en
personne

Cameron Fiske,
amicus curiae

Philippe G. Cowle, pour lintimée

Date de laudience : le 7
    janvier 2015

INSCRIPTION

[1]

Le requérant a été reconnu coupable de deux
    infractions aux termes des articles 2(3)(b) et 2(1)(a) de la
Loi sur
    lassurance-automobile obligatoire
, L.R.O. 1990, c. C.25. Il demande
    lautorisation dinterjeter appel à cette cour.

[2]

Devant la cour de première instance, le
    requérant a comparu par lentremise dun représentant, un parajuriste, qui a
    plaidé coupable. Le requérant na pas comparu en personne devant la cour et
    laudience sest déroulée en anglais.

[3]

Le parajuriste a indiqué à la cour de première
    instance quil était autorisé à plaider coupable et a présenté des arguments
    sur la peine. La peine minimale a été réduite en raison des capacités
    financières restreintes du requérant.

[4]

Le requérant a interjeté appel. Lors de son
    appel devant le juge de la Cour de lOntario, il était aidé par un interprète. Par
    lintermédiaire de linterprète, il a indiqué :
«I asked for an
    appeal in French to help me, so I came here to indicate that at the time that
    they stopped me, that I actually did have insurance».
Il a
    également dit
: There was a problem of communication with the
    paralegal. Thats why I came by myself here today to defend myself, to explain,
    to explain my situation ».
Le juge a demandé au requérant
    de confirmer quil avait autorisé son représentant à plaider coupable devant la
    cour de première instance. Après que le requérant a confirmé ceci, le juge a
    rejeté lappel.

[5]

Devant cette cour, le requérant insiste sur le
    fait quil croyait avoir une assurance automobile au moment où il a été arrêté
    par la police. L
amicus
soumet que les droits linguistiques du requérant, qui est
    francophone, nont pas été respectés quand il sest présenté pour son appel. Il
    insiste sur le fait quil était évident que le requérant parlait français et
    quil cherchait à exercer son droit à une procédure bilingue. Le juge de la
    cour provinciale aurait dû lui proposer un appel bilingue. Lavocat du
    ministère public maintient que le requérant navait pas droit à un appel
    bilingue selon les lois et procédures qui sappliquent aux instances des
    infractions provinciales, et que même si un appel bilingue lui avait été
    accordé, le résultat aurait été le même puisque le requérant a confirmé quil
    avait plaidé coupable.

[6]

Pour obtenir lautorisation dinterjeter appel à
    cette cour, le requérant doit répondre aux exigences de larticle 131 de la
Loi
    sur les infractions provinciales
, L.R.O. 1990, c. P.33. Il doit établir
    que « compte tenu des circonstances particulières de lespèce, il est essentiel
    que [lautorisation] soit accordée dans lintérêt public ou pour la bonne
    administration de la justice ».

[7]

Le dossier qui nous est présenté ne contient pas
    tous les documents déposés à la cour de première instance et lors de lappel.
    En particulier, il ne contient pas les documents qui nous indiqueraient si le
    requérant avait demandé que son procès soit tenu de manière bilingue (selon les
    articles 4 ou 5 du règlement 53/01 « Instances Bilingues »), malgré
    le fait quil ait choisi dêtre représenté par un parajuriste anglophone
    faisant en sorte que la procédure sest déroulée en anglais. Il nest pas non
    plus clair si le requérant avait demandé un appel bilingue devant la Cour de
    justice de lOntario avant de se présenter à lappel.

[8]

Néanmoins, cette cause soulève une question qui
    a une pertinence au-delà de la situation particulière du requérant et qui
    concerne les droits linguistiques des appelants dans les instances relatives
    aux infractions provinciales, sous larticle 126 de la
Loi sur les
    tribunaux judiciaires
et les dispositions du règlement 53/01 (en
    particulier les articles 4, 5, 7 et 8). Est-ce quun appelant francophone a le
    droit à un appel bilingue, même sil na pas demandé un procès bilingue? Un
    élément qui peut être important dans lanalyse est que le tribunal peut exercer
    les pouvoirs dun juge de première instance « sil estime que cela sert
    les intérêts de la justice », selon larticle 117(1) de la
Loi sur les
    infractions provinciales
?

[9]

Pour ces raisons, je conclus que cest dans
    lintérêt public et pour la bonne administration de la justice que la demande
    dautorisation dinterjeter appel soit accordée.

« K.
    van Rensburg j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Acoby, 2015 ONCA 75

DATE: 20150203

DOCKET: C54146

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renee Acoby

Appellant

Breese Davies and Owen Goddard, for the appellant

Benita Wassenaar, for the respondent

Heard and released orally:  January 9, 2015

On appeal from the sentence imposed by Justice G.E.
    Taylor of the Superior Court of Justice on March 16, 2011.

ENDORSEMENT

[1]

Despite Ms. Davies able argument, we are satisfied that the appeal
    must be dismissed.  It is common ground that the appellant met the criteria for
    a finding that she was a dangerous offender.  It is also common ground that,
    under the legislation as it then stood, the trial judge had a discretion to
    decline to declare the appellant a dangerous offender even though she met the
    criteria in the legislation.  The judge appreciated that he had that
    discretion.  His exercise of that discretion is entitled to deference in this
    court.

[2]

In the course of his review of the evidence, the trial judge made
    several significant findings, including this one:

There is no evidence before me that Renee Acobys violent
    behaviour can be controlled in the community.  The evidence before me is that,
    even when subject to the Management Protocol which is the highest level of
    supervision available within Corrections Canada, Renee Acobys behaviour cannot
    be controlled.

[3]

The trial judge then turned to whether he should exercise his discretion
    in favour of finding the appellant a dangerous offender having determined that
    she met the criteria.  In doing so, he considered the appellants aboriginal
    status, the
Gladue
Report and the relevant principles of sentencing.
    He concluded:

However, I am also aware that she has not benefitted from
    treatment and continues to react negatively to the restrictions to which she
    has been subjected.  It would be naïve to think she will miraculously become
    amenable to supervision in the community upon her release from custody.

I have no hesitation in concluding that Renee Acoby is one of
    the small group of offenders whose personal characteristics are such that the
    goal of protection of the public can only be achieved through a period of
    indeterminate detention.

[4]

In this court, counsel for the appellant submitted that the public could
    be adequately protected by a determinate sentence made consecutive to the
    lengthy
remanet
being served by the appellant.  Counsel argued that if
    the appellant reoffended during that lengthy period of incarceration, she could
    be sentenced accordingly and not released back into the public.  However, if
    she did not reoffend during that lengthy period of determinate custody, there
    would be no basis to conclude that her continued detention was necessary in the
    public interest.

[5]

The trial judge found that there was no prospect that the appellant
    would be amenable to supervision in the community.  That finding was open to
    him on this record.  Consequently, we must defer to that finding.  On that
    finding, the trial judges determination that the appellant should be declared
    a dangerous offender was a reasonable determination.

[6]

We would dismiss the appeal.

Doherty J.A.

Paul Rouleau J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Bonnington, 2015 ONCA 122

DATE: 20150223

DOCKET: C57764

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dean Bonnington

Appellant

Jill R. Presser, for the appellant

Greg Skerkowski, for the respondent

Heard: February 19, 2015

On appeal from the conviction entered on April 16, 2013
    by Justice Michael K. McKelvey of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant, Dean Bonnington, was charged with one count of aggravated
    assault arising out of an incident which occurred on July 2, 2011, off the
    shore of Big Chief Island in Lake Couchiching. As a result of the incident the
    complainant, David Gibbons, suffered an injury to his left eye that caused him
    to lose his sight in that eye.

[2]

Following a two-day trial, the appellant was convicted of aggravated
    assault and received a sentence of nine months incarceration and two years
    probation.

[3]

The appellant appeals his conviction on two grounds. First, the
    appellant submits that the trial judge erred by misapprehending material
    evidence in relation to (i) whether there was an intentional application of
    force to the complainant by the appellant, and (ii) whether the altercation was
    consensual. Second, the appellant submits that the trial judge erred in failing
    to consider the defence of accident.

Factual overview

[4]

On the Canada Day weekend in 2011, both the complainant and the
    appellant had taken their boats to Big Chief Island.  They were part of a large
    group who had anchored their boats on a nearby sandbar. The boats were anchored
    together in closely-packed rows. The complainant had tied his boat to a group
    of three others owned by his friends.

[5]

In order to proceed from his anchorage to clear water, the appellant had
    to maneuver his boat between two rows of parked boats, turn left around the
    complainants boat, which was anchored at the end of one row, and then proceed
    through another row of boats before turning into the open waters of Lake
    Couchiching.

[6]

The appellant owned a large power boat and he proceeded between the rows
    of parked boats under motor.

[7]

As the appellant navigated his boat behind and around that of the
    complainant, the complainant yelled to the appellant that he should be walking,
    not motoring, his boat to open water in order to avoid fouling the anchor lines
    of the moored boats.  The appellants boat fouled the rear anchor line of the
    complainants boat. Unpleasant words were exchanged between the two men. After
    clearing the lines, the appellant motored around the side and front of the
    complainants boat.  The exchange of strong words continued. The appellants
    motor fouled the lines of other boats.  When free of those lines and at the
    edge of open water, the appellant stopped his boat and waded back through the
    water to the rear of the boat to which the complainants was tied.

[8]

The appellant twice tried to climb onto that boat from its rear swimming
    platform. An incident ensued. By the end of the incident, the complainant had
    suffered a serious injury to his left eye. He underwent surgery and lost the
    sight in his left eye.

[9]

At trial, the appellant testified in his own defence. He stated that the
    complainant had encouraged him to come up onto the boat, which he had tried to
    do twice, but each time was pushed back into the water by the complainant and a
    male friend. The appellant testified that as he went backwards into the water
    for the second time, he raised his arms in an effort to grab onto something.
    The appellant said he was not able to grab anything or touch anyone, and fell
    back into the water.  He then saw the complainant in the water, but testified
    he did not see any injury on the complainant at that point.  The appellant returned
    to his boat and left the area.

[10]

The
    trial judge did not accept the evidence of the appellant, or the other two
    witnesses called by the defence in respect of the incident. The trial judge
    found that: the appellant had intended to physically confront the complainant;
    he understood he was not welcome on the back of the boat, having been pushed
    off the first time; the appellant was angry with the insults the complainant
    had thrown at him; and, the second time the appellant had tried to climb onto
    the boat he had taken a swing towards the complainants face and either punched
    or slapped him intentionally in a forceful manner. The trial judge found beyond
    a reasonable doubt that the complainant did not consent to participate in a
    physical altercation or fight.

Analysis

[11]

In
    our view the appeal should be dismissed.

[12]

We
    do not agree that the trial judge misapprehended the evidence. Misapprehension
    of evidence involves a "stringent standard":
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. This standard is met only
    "[w]here a trial judge is mistaken as to the substance of material parts
    of the evidence and those errors play an essential part in the reasoning
    process resulting in a conviction":
R. v. Morrissey
(1995), 22
    O.R. (3d) 514 (C.A.), at p. 541, cited with approval in
Lohrer
.

Misapprehension of evidence: intentional application of force

[13]

In
    his reasons, the trial judge accurately summarized the evidence of Lora-Lee
    Fitzgerald, George Pond and Kenneth Griffiths about how the events unfolded at
    the rear of the boat when the appellant tried to board it.  The trial judge
    also examined the consistencies in the evidence given by Ms. Fitzgerald and Mr.
    Pond at the trial with that they had given at the preliminary inquiry.

[14]

The
    appellant submits the trial judge misapprehended the evidence of Ms. Fitzgerald
    on whether she had seen the appellant make contact with the complainant and
    whether the contact had been a punch or a grab.  The trial judges reasons
    disclose no such misapprehension.  Throughout her evidence Ms. Fitzgerald
    testified that she saw the appellant make contact with the complainant.  While
    she described the appellant as making a punch, grab motion, she testified
    that the appellant came back on the boat the second time fist ready.

[15]

The
    appellant submits the trial judge failed to deal with material evidence by
    failing to consider the assumption made by Mr. Pond in his evidence that the
    appellant had punched the complainant based upon the nature of the injuries
    suffered.  We do not accept that submission.  The trial judge accurately noted
    that while Mr. Pond had testified he did not actually see the blow which
    injured the complainant, he had seen the appellant punch or take a swing at the
    complainant.  The trial judge accepted the evidence of Ms. Fitzgerald and Mr.
    Pond about how the injury occurred because it was consistent both with the
    physical actions of the appellant and with the complainants eye injury
    identified immediately after the incident.

[16]

The
    appellant also submits that the trial judge failed to consider whether the
    appellants punch/grab motion was consistent with defence evidence that the
    appellant was trying to grab onto something as he was pushed off the boats
    swim platform for a second time.  When the trial judges review of the evidence
    is read as a whole, it is clear that in concluding the appellant intentionally
    applied force to the complainants face, the trial judge necessarily rejected
    the defences theory of an accidental application of force.

[17]

Finally,
    the appellant submits that the trial judge did not give full or proper
    consideration to the defence evidence and position on this issue.  We do not
    accept this submission.  In his reasons the trial judge reviewed the material
    parts of the evidence called by the defence, accurately described its substance
    and explained why he did not accept that evidence.

Misapprehension of evidence: consent

[18]

The
    appellant submits that the trial judge erred in concluding that the altercation
    between the complainant and appellant was not consensual because he ignored the
    defence evidence that the complainant had continued to taunt the appellant
    after he was thrown off the boat for the first time, disregarded the approach
    taken by the Crown during part of its cross-examination of the appellant, and
    failed to characterize the initial act of throwing the appellant off the boat
    as one of fighting.

[19]

This
    was a simple, factual case which turned on the credibility of the seven
    witnesses who observed the single incident.  The trial judges reasons amply
    demonstrated that he understood the significance of the credibility issue going
    to the element of consent, fully addressed the relevant evidence, applied the
    correct burden of proof and made the necessary credibility findings.  After
    considering the totality of the evidence, the trial judge found two of the
    Crown witnesses credible  Ms. Fitzgerald and Mr. Pond  and accepted their
    evidence. He was satisfied that the Crown evidence proved the appellant's guilt
    beyond a reasonable doubt. We see no fault in the trial judge's reasoning or in
    his ultimate findings.

Failure to consider the defence
    of accident

[20]

The
    appellant submits that the trial judge failed to consider the defence of
    accident  i.e. that the appellant did not intentionally apply force to the
    complainant or, if he did apply force, he did so accidentally in the melee of a
    consensual incident.  We accept the Crowns submissions that although in his
    reasons the trial judge did not refer to the word accident, his analysis of
    the elements of the intentional infliction of force and consent, and his
    findings on those issues, clearly foreclosed the availability of the defence of
    accident in the circumstances.

[21]

For
    those reasons, we dismiss the appeal.

E.E. Gillese J.A.

David
    Watt J.A.

David
    Brown J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. C.C., 2015 ONCA 59

DATE: 20150202

DOCKET: C55755

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.

Appellant

Erika Chozik, for the appellant

Christine Tier, for the respondent

Heard: December 5, 2014

On appeal from the convictions entered on April 17, 2012
    and the sentence imposed on June 26, 2012 by Justice Alfred J. OMarra of the Superior
    Court of Justice, sitting without a jury.

Pardu J.A.:

A.

Overview

[1]

The appellant, C.C., was accused of repeatedly sexually touching a young
    girl and having intercourse with her over a period of approximately four and a
    half years, beginning when the complainant was around seven years old and
    continuing until she was 11. The last incident of intercourse she described
    occurred on July 17, 2009 or the early morning hours of July 18, 2009. A
    complaint was made soon afterwards. A vaginal swab taken on July 20, 2009 found
    a sperm cell inside the girls vagina, just beyond the hymen. The complainant
    also testified that the appellant sometimes showed her images on his computer
    of adults having sex with young girls. Police found those kinds of images on
    computers used by the appellant in his home.

[2]

The appellant appeals from convictions for sexual assault, sexual
    interference and possession of child pornography. He also seeks leave to appeal
    from the six-year sentence imposed, and seeks leave to admit fresh evidence
    that he says undermines the factual findings upon which the convictions were
    based.

[3]

For the following reasons, I would dismiss the conviction appeals, grant
    leave to appeal sentence but dismiss the sentence appeal, and dismiss the
    application to introduce fresh evidence.

B.

Background

[4]

The appellant was formerly married to the complainants mother, S.T. They
    had two children together, C.C. and M.C., aged 24 and 21 at the time of trial. S.T.
    subsequently had two other children: the complainant, aged 11, and K.N., aged 7
    at that time. The complainant and K.N. often spent time at the appellants
    home. He testified that he treated the complainant like his own daughters, C.C.,
    who lived with him, and M.C., who lived with her mother S.T.

[5]

On July 17, 2009, S.T. asked the appellant if he would look after the
    complainant and K.N. that evening, as well as a friend of the complainant, L.A.,
    then nine years old. He agreed and all three girls were dropped off at his home
    around 11:00 p.m. At first, the girls stayed upstairs to watch a movie, but then
    they lost interest in it, and went downstairs to watch something else. The
    complainant went back upstairs, and according to L.A., had been gone for 20 or
    30 minutes when L.A. went upstairs to look for her. L.A. saw the complainant
    get a drink in the kitchen and both girls returned to the basement.

[6]

The complainant told her friend L.A. that the appellant was touching her
    and trying to have sex with her, and that her older half-sister M.C. would also
    do bad things to her. The complainant told L.A. not to tell anyone, and that
    she had a knife and would hurt L.A.s brother if she told.

[7]

The complainants mother S.T. returned to the appellants home around
    3:00 a.m. to pick L.A. up and take her home to her own mother. The complainant
    was awake, but K.N. was asleep and S.T. left them at the appellants home.

[8]

Later that weekend, L.A. told her mother what the complainant had
    described to her. L.A.s mother and the complainants mother, S.T., began
    exchanging text messages. The messages from L.A.s mother described the
    complainant touching L.A. and K.N. under their panties, and threatening them if
    they told anyone. L.A.s mother subsequently told S.T. that the complainant had
    also told L.A. that the appellant had touched her.

[9]

S.T. invited L.A. and her mother, as well as the appellants daughters,
    M.C. and C.C., over to her house. S.T. told M.C. and C.C. before they arrived
    at S.T.s home that there was an allegation that their father had sexually
    interfered with the complainant. When everyone had arrived, S.T. sought to
    question the complainant in the living room. She asked M.C. and C.C. to leave
    the room. S.T. asked the complainant if the allegations that the appellant had
    touched her were true. The complainant initially denied them, but quickly
    started to cry and said they were true.

[10]

S.T.
    took her daughter to the Hospital for Sick Children where she was examined and
    samples were taken. She was interviewed by police and a Childrens Aid Society
    worker.

[11]

At
    trial, the complainants evidence was that the appellant had had intercourse
    with her on that weekend. She said it hurt and she asked him to stop, but he
    would not. She said that, on another occasion, he put gel on her vaginal area
    and used a vibrator on her. She said that he sometimes showed her videos of
    adults having sex with little girls. When she questioned him about why he was
    abusing her, he threatened to do the same to her little sister if she did not
    comply.

C.

The Conviction Appeal

[12]

The
    appellant argues that the trial judge erred in the following respects:

1)

He erred in his treatment of evidence of other sexual activity involving
    the complaint, more particularly:

a)

He refused to allow the defence to question the complainant about whether
    she sexually touched her seven-year-old sister K.N. and nine-year-old friend L.A.

b)

Although he allowed the defence to ask questions about an alleged sexual
    assault on the complainant by her older half-sister M.C., he erred in failing
    to consider whether a potentially false complaint about this assault by the
    complainant undermined her credibility.

2)

He failed to consider the evidence on the child pornography count
    separately from the sexual assault and sexual interference counts and did not
    deal with the moral prejudice which might flow from the association of these
    different offences on the indictment.

3)

He misapprehended the evidence regarding the appellants police
    statement and the use of his computers, and failed to consider potentially
    exculpatory evidence.

[13]

I
    now turn to each of the grounds of error said to justify setting aside the
    convictions.

(1)

The complainants alleged sexual activity with K.N. and L.A.

[14]

The
    appellant brought an application pursuant to s. 276 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, seeking to cross-examine the complainant about sexually touching
    her friend L.A. and her mothers other daughter K.N. He submitted to the trial
    judge that this evidence was relevant for two purposes:

1)

To show that the complainant might have acquired sexual knowledge from
    sources other than the appellant.

2)

To show that the complainant feared she might be in trouble for her own
    misconduct, and alleged sexual improprieties by the appellant to deflect
    attention from her own misbehaviour.

[15]

The
    evidence presented on this aspect of the s. 276 application was thin. L.A. said
    she once woke up to find the complainant in her bed, looking for her teddy
    bear. The complainant was touching L.A.s body and legs, specifically, her
    shin. There was also an allegation, conveyed through L.A., that the complainant
    touched K.N. on her arms and legs while at a pool.

[16]

The
    trial judge refused to allow the appellant to cross-examine the complainant on
    her alleged sexual touching of K.N. and L.A. He ruled:

In examining the nature of the alleged sexual touching reported
    by L.A. with respect to [the complainant] and herself and [the complainant] and
    [K.N.], there is nothing, in my view, that suggests the touching was of a
    sexual nature or it is in any way similar to the alleged sexual abuse by the
    applicant. The applicant in this instance shall not be permitted to
    cross-examine the complainant on that information. It does not import any
    reasonable inference as to the complainants level of sexual knowledge. There
    is no reasonable basis, on its face, of the prospect of the evidence assisting
    the Court in arriving at a just determination in this instance.

[17]

The
    trial judge was correct to dismiss this aspect of the s. 276 application for
    the reasons he gave. The nature of the alleged conduct does not support the
    inference that the complainant acquired sexual knowledge from someone other
    than the appellant. There is no suggestion that L.A. or K.N. imparted knowledge
    to the complainant about the kinds of sexual acts the appellant was alleged to
    have performed. The conduct attributed to the appellant is far different from what
    may or may not have occurred between the complainant, L.A. and K.N. Furthermore,
    given the nature of the conduct attributed to the complainant in the s. 276
    application  touching L.A. and K.N. while looking for a teddy bear and while
    at a pool, respectively  it is hard to believe that she would have fabricated such
    grave allegations against the appellant in order to distract from her benign
    conduct.

[18]

Defence
    counsel at trial had in their possession transcripts of the text messages
    exchanged between S.T. and L.A.s mother. In those messages, L.A.s mother
    described seeing the complainant mounting L.A., and related that L.A. alleged
    that the complainant fondled both her and K.N. under their panties and
    threatened them if they told anyone. Defence counsel did not support their s.
    276 application with this evidence, but reserved it for use in cross-examining
    S.T., after both the complainant and L.A. had testified.

[19]

When
    defence counsel raised the text messages during the cross-examination of S.T.,
    they submitted to the trial judge that they intended to use the transcripts for
    a limited purpose only: to have S.T. confirm the messages did not contain any
    mention of assaults by the appellant, and to thereby suggest S.T. fabricated
    the allegations against the appellant, or suggested them to the complainant. Defence
    counsel said they would not question S.T. about the complainants alleged
    sexual activity with L.A. and K.N.

[20]

The
    trial judge acceded to defence counsels proposal:

The court: I understand that. All right, I understand that its
    really whats not in there [that] is the thing of importance as far as the
    defence is concerned, and to that extent questioning will be permitted on these
    chats.

[21]

The
    trial judge confirmed he would disabuse himself of the evidence he heard in the
    s. 276 application about the complainants alleged sexual contact with L.A. and
    K.N.:

The court: Just  and in terms of it being filed, it having
    been made reference to, I can certainly disabuse myself of the contents that
    Ive already referred to in light of the nature of the information referred to
    in my earlier ruling. So its not  we dont have a problem of excising because
    of the presence of a jury in this trial.

[22]

The
    appellant now submits that the trial judge ought to have revisited his ruling
    on the s. 276 issue in light of these text messages, which were not in the
    Crowns possession, and were produced for the cross-examination of S.T. The
    trial judge was not asked to revisit his ruling. L.A. and the complainant had
    already been cross-examined.

[23]

Given
    the position taken by defence counsel, he did not err.

[24]

The
    trial judges ruling did not prevent witnesses from being examined on the
    circumstances surrounding the disclosure of the complainants allegation of
    sexual touching, whether she was pressured to make that allegation, or whether
    she made the allegation to deflect attention from misconduct on her own part. Defence
    counsel went so far as to ask the complainant in cross-examination, in
    violation of the trial judges ruling, whether she had engaged in sexual
    touching of L.A. She denied it.

[25]

The
    trial judge did not err in his treatment of this issue.

(2)

The complainants alleged sexual activity with M.C.

[26]

The
    appellant sought to cross-examine the complainant under s. 276 regarding sexual
    activity with her half-sister M.C., for the same purposes:

1)

To show that the complainant had sexual knowledge from sources other
    than the appellant.

2)

To show that the complainant fabricated the allegations because she
    feared the consequences of her own sexual activity with M.C.

[27]

The
    complainant alleged that her half-sister M.C. put ice cream on her own vagina
    and made the complainant lick it off, and that M.C. made the complainant
    straddle her while M.C. gyrated against her in a sexual way.

[28]

The
    basis for the s. 276 application was that these allegations by the complainant were
    true. The defence argued that the complainant had sexual knowledge because of
    her prior sexual activity with M.C., and not because of any sexual contact with
    the appellant. This argument presupposes that the sexual activity with M.C. in
    fact occurred.

[29]

The
    trial judge allowed the complainant to be questioned about the alleged sexual
    contact between her and M.C., despite some dissimilarity between the conduct
    alleged to have been committed by M.C. on the one hand, and the appellant on
    the other. The evidence of M.C.s sexual touching could have some probative
    value on whether the complainant acquired sexual knowledge from someone other
    than the appellant.

[30]

Defence
    counsel examined M.C. at trial about the truth of these allegations and she
    denied them. The complainant reiterated her allegations.

[31]

However,
    in closing submissions, rather than taking the position that the allegations against
    M.C. were true, as had been advanced in the s. 276 application, defence counsel
    submitted that the complainants allegations about M.C. were false. On appeal,
    the appellant now argues that the trial judge erred in failing to consider the
    complainants possible false allegations against M.C. when he evaluated her
    credibility.

[32]

The
    trial judge did not err in failing to consider this evidence for that purpose. As
    indicated in
R. v. M.T.
, 2012 ONCA 511, 289 C.C.C. (3d) 115, at para.
    52, the argument that a complainant who accuses
two
persons of sexual
    impropriety occurring at different times and in different circumstances is more
    likely to be lying about either or both than a complainant who accuses only one
    person cannot be sustained (emphasis in original). The fact that a complainant
    made allegations of sexual abuse against another person is not admissible to
    suggest a pattern of false accusations, or to undermine a complainants
    credibility, unless those allegations were recanted or are demonstrably false:
R.
    v. Riley
(1992), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal
    refused, [1993] 2 S.C.R. x.

[33]

In
    this case, given the complainants and M.C.s contradictory testimony, there
    was no basis for concluding that the complainants allegation against M.C. was
    demonstrably false.

(3)

Use of child pornography evidence between counts

[34]

The
    appellant argues that the trial judge erred in failing to confine the evidence
    about child pornography to the count alleging possession of that material, and
    in failing to conduct a similar fact analysis of that evidence before using it
    on the counts of sexual assault and sexual interference. He submits that the
    trial judge erred in failing to expressly deal with the risk that a trier of
    fact might conclude that someone who possessed child pornography was a person
    of bad character who therefore likely committed the sexual assaults.

[35]

There
    is no indication that the trial judge used the child pornography evidence for
    any improper purpose. Even in the absence of the count of possession of child
    pornography, the child pornography evidence would have been admissible to
    confirm the complainants evidence that the appellant showed her those images
    in the course of the assaults. In addition, the complainant provided direct
    evidence that the appellant knew about the child pornography on his computer,
    and that it was there for his use. The evidence of the presence of child
    pornography was relevant to both the sexual assault and sexual interference
    counts, and to the possession of pornography count. In this judge-alone trial,
    the trial judge was not obliged to expressly warn himself about moral
    prejudice.

(4)

Misapprehension of evidence and failure to consider exculpatory evidence

(a)

Limewire evidence

[36]

The
    appellant submits that the trial judge erred in rejecting his explanation for re-installing
    Limewire software on his computer, after having previously deleted it. Limewire
    is a file sharing program that could be used to access files of various kinds,
    including child pornography or music. The trial judge rejected the appellants
    explanation that he used the program to access music because [h]e said he
    could download music but he did not play it afterwards. He never played music
    on his computer. The Crown acknowledges that while the appellant did not play
    music on his computer, he did say that he could play music on his iPod.

[37]

The
    trial judges misapprehension of the evidence  that the appellant could not
    listen to music downloaded through Limewire at all  was inconsequential in
    this trial because of the appellants own evidence about his use of his
    computer.

[38]

The
    appellant testified that, in January or February 2009, he noticed that the Limewire
    program was open and might have been actively downloading material. He looked
    in the file he had designated to store Limewire downloads and found files he
    thought were pornography, though he testified he was unsure of whether they
    were child pornography. However, the names of the files were highly suggestive
    of child pornography. He deleted those files and uninstalled Limewire. He
    testified that many other people visited his home and had access to his
    computer. Several months later, he reinstalled Limewire because he said there
    was a particular song he wanted to download. When the appellant learned from
    his daughters that the complainant was accusing him of sexual misconduct, he
    immediately went to his computer and deleted more files containing child
    pornography. This was before he knew that the complainant had alleged a connection
    between the viewing of child pornography and the sexual assaults. The appellant
    testified that he deleted the files to prevent police from finding them. He
    said that someone else must have downloaded the files between January 2009 and
    July 2009.

[39]

The
    trial judge could and did draw inferences about the appellants knowledge of
    the child pornography and its use in the commission of the sexual assaults from
    the appellants actions in deleting the files as soon as he learned of the
    complainants allegations. The trial judge characterized the deletion of the
    child pornography in July 2009 as an attempt to destroy evidence that [the
    appellant] knew would support what she said he had done. Furthermore, the
    trial judge rejected the appellants suggestion that he did not know the files he
    deleted in January or February were child pornography, given the highly
    suggestive titles the appellant agreed he had seen. Given the number of files,
    and their various creation dates, the trial judge rejected the appellants
    claim that some other person must have come into the home and downloaded the
    child pornography.

[40]

Here,
    the trial judges misapprehension of the evidence  his failure to understand
    that the appellant could play downloaded music on his iPod  was peripheral to
    his reasoning and did not play an essential part in the reasoning process
    resulting in a conviction: see
R. v. Bains
, 2012 ONCA 305, 291 O.A.C.
    135, at paras. 11-15, citing
R. v. Morrissey
(1995), 22 O.R. (3d) 514
    (C.A.), at p. 541.  The force of the misapprehension pales in comparison to the
    inferences drawn from the appellants own evidence.

(b)

The police interview

[41]

The
    appellant also submits that the trial judge misapprehended the evidence when he
    concluded that the appellant had lied to police. The exchange in issue during
    the interview with police was as follows:

Officer: Okay, so this is completely way out of left field
    that, that, now which one of the girls is making the allegation?

[Appellant]: I dont know.

Officer: You dont know which one? Okay. Does it, it, this come
    way out of left field that one of them would say something like this?

[Appellant]: To me, yeah.

[42]

However,
    M.C. and C.C. told their father on the day before that the complainant was
    saying he had sexual contact with her. In other words, he knew that the
    complainant had made the allegations against him.

[43]

The
    trial judge concluded:

His response, I dont know was in reference to the question
    as to whether he knew which one had made the allegation. The officer confirmed
    his answer when he said, you dont know which one. His subsequent response,
    to me, yeah is responsive to the question with respect to whether the
    allegation came out of left field. His attempt to explain it otherwise in the
    trial was obvious prevarication.

[44]

This
    was the trial judges call to make and I see no basis to intervene.

[45]

There
    were several problems with the appellants credibility. He testified at trial
    on cross-examination:

Q. Now, in terms of your statement to the police, one of the
    other questions that you chose to answer was, when the police asked you: Are
    we going to find any child pornography on your computer?

A. Yes.

Q. And you answered them and you said: No.

A. Yes.

Q. And that is because you were confident that youd taken the
    step to delete LimeWire from your computer the night before, correct?

A. Um, yes.

[46]

Shortly
    afterwards, however, when asked whether the files he deleted in July 2009 had
    terms relating to sex and to children, he replied, Yes. Well, related to
    sex. Furthermore, as the trial judge observed, his previous claim that he did
    not know the files he deleted in January or February 2009 were child
    pornography was belied by the very explicit titles he said he saw and removed.

(c)

Failure to consider exculpatory evidence

[47]

The
    appellant also submits that the trial judge failed to give effect to
    exculpatory evidence, for example, the presence of DNA from at least four
    different males on the complainants pyjamas.

[48]

The
    forensic biologist testified at trial and indicated:

Q. All right. And in terms of what was analyzed coming from the
    pants

A. Correct.

Q.  you told us that you found a mixture essentially of D.N.A.
    from at least four males.

A. Correct.

Q. It might have been five. Its impossible to say?

A. Correct. And it could also be trace amounts of female
    D.N.A., but our male D.N.A. technology wont find that.

Q. And in terms of the sources of that D.N.A., theres a long
    list of possibilities obviously.

A. Yeah, because theres a small amount of D.N.A. present even
    sitting on a small amount of cellular material potentially could transfer to
    the pajamas and be the source, yes, from an external application.

Q. Right. And that list could cover possibilities from saliva
    to nasal secretions to trace amounts of blood not visible to the naked eye, to
    handling dandruff, to semen, impossible to be specific. Right?

A. Correct.

[49]

The
    trial judge recognized this evidence and gave it appropriate weight. He
    specifically acknowledged that the DNA from at least four males could have
    gotten on the complainants clothing through innocuous means.

[50]

The
    appellant also argues that the configuration of his computer and the child
    pornography files did not share the characteristics associated with a serious
    collector of child pornography. For example, the appellant did not control
    access to his computer with a password. He deleted material he thought
    inappropriate in January or February 2009, and again in July. The trial judge
    was not obliged to conclude from this that the appellant had nothing to do with
    the child pornography on his computer, especially in light of the appellants
    own evidence.

[51]

No
    error has been demonstrated in the judges treatment of the evidence which
    would justify intervention.

D.

Fresh Evidence

[52]

The
    appellant also seeks to introduce fresh evidence. According to an affidavit
    sworn by the appellant, following the trial judgment, the appellant learned
    that his brother, who had had free access to the appellants home and computer,
    was accused of sexual offences by his own step-daughter. Furthermore, according
    to the appellants affidavit, the brother told the appellant he had used the
    appellants computer to watch and attempt to download pornography. There was
    other evidence the brother had an interest in adult pornography. The appellant
    submits that the proposed fresh evidence is capable of raising a reasonable
    doubt as to whether he downloaded the child pornography found on his computers.

[53]

According
    to the material filed by the Crown, the 17-year-old step-daughter S.R. and the
    brothers 16-year-old niece Y.R. alleged that they were sexually assaulted by
    both the appellant and the brother. S.R. subsequently recanted her allegations
    about the brother, but maintained that the only thing that was true in her
    statement to police was the allegation about the appellant. The brother pled
    guilty to common assault of Y.R. Both Y.R. and S.R. refused to cooperate with
    police investigating the appellants role in any assault.

[54]

It
    is difficult to see how this fresh evidence could be of any assistance to the
    appellant. Even if one were to accept that the brother downloaded some form of
    pornography on the appellants computer, that is not at all inconsistent with the
    appellant knowingly possessing child pornography on that computer. This
    evidence does not meet the cogency test for admission of fresh evidence. As
    indicated in
R. v. Reeve
, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para.
    67:

The proffered evidence must be relevant to a potentially
    decisive issue; the evidence must be reasonably capable of belief; and the evidence
    must be sufficiently probative that when taken with the rest of the evidence
    adduced at trial, it could reasonably be expected to have affected the result.

[55]

As
    I discussed above, the conclusion that the appellant knew there was child
    pornography on his computer is inescapable from his own evidence at trial.

[56]

The
    proposed fresh evidence is not sufficiently probative that when taken with the
    rest of the evidence adduced at trial, it could reasonably be expected to have
    affected the result.

E.

The Sentence Appeal

[57]

Following
    conviction, the Crown sought a global sentence of five years: four and a half
    years for the sexual offences, and six months consecutive for possession of
    child pornography. The defence submitted that a global sentence of three years
    would be sufficient.

[58]

The
    trial judge imposed a global sentence of six years: five years for the sexual
    assault and sexual interference offences, and one year consecutive for
    possession of child pornography.

[59]

This
    was not a joint sentencing submission, so the factors that constrain a judge
    from departing from a joint submission do not apply.

[60]

Here,
    the sentence imposed was fit. The appellant was an adult offender, in a
    position of trust, who engaged in repeated sexual abuse of a young girl. He
    groomed her by showing her child pornography and threatened to abuse her sister
    if she told anyone. According to the trial judge, the victim suffered serious
    psychological and emotional trauma with the potential to scar her for life. Her
    family has been torn apart. She has lost her relationship with her older
    sisters. She was robbed of her childhood innocence, she now fears men and her
    future when and if she forms a relationship.

[61]

The
    trial judge expressly applied the sentencing principles set out in
R. v.
    D.D.
(2002), 58 O.R. (3d) 788 (C.A.), and reiterated in
R. v. Woodward
,
    2011 ONCA 610, 107 O.R. (3d) 81.

[62]

I
    do not accept the argument that he used the absence of remorse as an
    aggravating factor.

[63]

The
    sentence imposed was well within the range for offences of this nature and
    there is no basis to intervene.

F.

Conclusion

[64]

For
    these reasons, I would dismiss the appeal from conviction, grant leave to
    appeal sentence but dismiss the appeal from sentence, and dismiss the
    application to admit fresh evidence.

Released: (D.W.) FEB 02 2015

G. Pardu J.A.

I agree David Watt
    J.A.

I agree K. van
    Rensburg J.A.