COURT OF APPEAL FOR ONTARIO

CITATION: Michail v. Ontario English Catholic Teachers
    Association, 2019 ONCA 319

DATE: 20190424

DOCKET: M49883 (C65674)

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Myriam Michail

Moving party

and

Ontario English Catholic Teachers Association,
    Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone, and
    Sheila Brescia, London District Catholic School Board and Ontario Labour
    Relations Board

Respondents

Myriam Michail, in person

Christopher Perri, for the Ontario English Catholic
    Teachers Association

Aud Ranalli, for the Attorney General of Ontario

Liam Ledgerwood, for the London District Catholic School
    Board

Aaron Hart, for the Ontario Labour Relations Board

Heard: March 20, 2019

REASONS FOR DECISION

[1]

The central issue in this motion to review is whether parties in this
    court are entitled to obtain and disseminate audio recordings of proceedings in
    this court on their own terms. The answer is no.

Background

[2]

The moving party, Myriam Michail, is a former employee of the London
    District Catholic School Board. In 2010, she had a dispute with her former
    employer. The Ontario English Catholic Teachers Association (OECTA), her
    union, became involved on Ms. Michails behalf. Ms. Michail became dissatisfied
    with steps taken by the OECTA and filed an application with the Ontario Labour
    Relations Board (OLRB) complaining of unfair representation. That application
    was unsuccessful.

[3]

The course of proceedings since that time has been complex and irregular.
    An overview is provided in the reasons of this court dated October 25, 2018 and
    reported at 2018 ONCA 857. For the purposes of this motion, the following
    overview is sufficient. Ms. Michail brought an application for judicial review
    of the decisions of the OECTA and the OLRB before a single judge of the
    Superior Court, rather than the Divisional Court as would have been appropriate.
    Various procedural orders were made by the Superior Court in an attempt to
    regularize the process. Ms. Michail appealed those interlocutory orders to this
    court, and also brought a motion seeking, among other things, various
    exemptions from compliance with the
Rules of Civil Procedure
, R.R.0.
    1990, Reg. 194, in relation to the appeal. She was granted an extension of time
    to file her materials, but the balance of the motion was dismissed. The
    respondents then brought a motion to quash the appeal on the grounds that this
    court lacked jurisdiction over appeals from interlocutory orders of the
    Superior Court. That motion was successful and the appeal was quashed by this
    court, with reasons reported at 2018 ONCA 857.

[4]

Ms. Michail then brought another motion before a single judge of this
    court, seeking several orders chiefly related to the audio recordings from the
    hearings of the two earlier motions. She sought orders:

1. dispensing with the requirement that she sign a standard
    undertaking in order to obtain the release of audio recordings of the hearings
    of the motion of August 30, 2018, and the appeal of October 18, 2018;

2. permitting her to transcribe the proceedings;

3. directing the publication on the courts website of the
    reasons of Paciocco J.A. dated September 4, 2018; and

4. permitting her to challenge the constitutional validity and
    applicability of s. 136 of the
Courts of Justice Act,
R.S.O. 1990, c.
    C.43, specifically ss. 136(1)(a)(i), (b), (c), and 136(4).

[5]

That motion was heard in writing by Brown J.A. and dismissed, with
    reasons reported at 2018 ONCA 950, and is the subject of the present motion to
    review. Ms. Michail renews the arguments she made before the motion judge, and further
    argues that the motion judge erred in his holding on jurisdiction.
    Specifically, she argues that he erred in finding he did not have jurisdiction
    to grant the relief sought  an order exempting her from the requirement that
    she provide an undertaking not to publish the audio recordings  because there
    was no longer a live appeal before the court. She argued that if a judge of this
    court had no jurisdiction to consider her motion for an exemption from the
    practice direction regarding the use of electronic devices in court, then there
    would be no forum in which she could raise that issue.

[6]

Although we agree with Ms. Michail that the motion judge in fact had
    jurisdiction to decide her motion, the motion to review is nevertheless
    dismissed for reasons set out below.

Request to video record the hearing of the motion to review

[7]

At the outset of the hearing of this motion to review, Ms. Michail
    requested permission to video record the hearing of the motion and disseminate
    that recording. Ms. Michail took the position that the constitutional principle
    that proceedings of the courts be open to the public (the open courts
    principle) requires the court to permit video recording of its proceedings and
    dissemination of those recordings, subject to exceptions where justified.
    Accordingly, she argued, she was not required to provide any reason or
    justification for her request. In the alternative, she argued that video
    recording and publication was necessary in this instance as evidence of her
    experience in the court room. This is required, she argued, to keep judges and
    lawyers accountable to the public. She also argued that publication of the recording
    is necessary for public education.

[8]

We dismissed the request.

[9]

Video recording of proceedings in courts in Ontario are governed by s.
    136(1) of the
Courts of Justice Act
. Section 136(1) establishes a
    general prohibition against video recording, subject to exceptions provided in
    s. 136(3). That subsection provides that the general prohibition does not apply
    to a video recording made with the authorization of the judge. A judge is
    given statutory jurisdiction to authorize a video recording in three
    circumstances:

(a) where required for the presentation of evidence or the
    making of a record or for any other purpose of the court hearing;

(b) in connection with any investitive, naturalization, ceremonial
    or other similar proceeding; or

(c) with the consent of the parties and witnesses, for such
    educational or instructional purposes as the judge approves.

[10]

The
    moving partys principal submission was that she has a constitutional right to
    video record and disseminate the proceedings, subject to the court satisfying her
    that there is a compelling reason in the particular circumstance of this
    proceeding not to do so. As we understand it, the submission was not a
    constitutional challenge to s. 136, but rather grounded in the argument that
    all statutory grants of discretion must be exercised in accordance with the
    principles underlying the constitution. She argues that the open courts
    principle requires that video recording, streaming, and archiving be permitted.

[11]

We
    do not agree. The open courts principle is one constitutional principle among
    many and is not automatically dispositive. Judicial discretion in this
    instance, like all exercises of judicial discretion, must be exercised in a
    manner that conforms to the requirements of the rule of law:
Roncarelli v.
    Duplessis
, [1959] S.C.R. 121. This includes the requirement that the
    exercise not be arbitrary, and that it respect authoritative precedents and
    rules established in advance by other institutions. Judges have a wide
    discretion to authorize video recording under s. 136(3), but there must be some
    reason for it that relates to the circumstances of the particular case:
R.
    v. Dunstan
, 2017 ONCA 432, at para. 55. What the moving party is seeking
    is, in effect, to create a default authorization for video recording. This would
    be contrary to the
Act
. Proposals to amend the
Act
to allow
    video recording of hearings of motions and appeals, as the moving party pointed
    out, have been made from time to time. Whatever the merits of those proposals, they
    have not been adopted legislatively, and are not law.

[12]

In
    the alternative, the moving party also offered reasons for her demand. These
    were evidently framed so as to bring the demand within the exceptions in s.
    136(3)(a) and (c): that a video recording was required for the making of a
    record or for any other purpose of the court hearing, and for educational
    purposes.

[13]

With
    respect to educational purposes, she argued that it would benefit the people of
    Ontario generally, and those with an interest in labour law particularly, to be
    educated by viewing her arguing her motion to review the motion judges
    decision.

[14]

With
    respect to the making of a record or for any other purpose of the court
    hearing, she argued that a record of the proceedings was needed to document
    any abuse of process that might occur during the hearing.

[15]

In
    our view the moving party has not established that this is an appropriate case
    in which we should exercise the discretion provided by s. 136(3).

[16]

Courts
    have interpreted s. 136(3) as providing broad authority to authorize video
    recording where it facilitates the presentation of evidence or otherwise
    assists in the presentation of a partys case at trial:
Restoule v. Canada
    (Attorney General)
, 2018 ONSC 114, at para. 36;
Dunstan
, at para.
    52. In the unusual circumstances of
Restoule
, broadcasting and
    archiving of video recordings of the trial were permitted.  Unlike the present motion,
    which is at root a dispute between private parties with little if any broader
    significance, the issues in
Restoule
are public law disputes of great
    public significance  the interpretation of treaties signed in 1850, and Crown
    liability flowing from them. It was anticipated that the evidence to be
    presented would be significant:

The evidence already collected in the expert reports of the
    witnesses may be the best curated collection of the history of the events
    leading up to these treaties ever assembled. In addition, the evidence from
    Elders, Chiefs, and ethno-historians on the lives, culture and beliefs of the
    Great Lakes Anishinaabe constitutes a major collection in itself.

[17]

Most
    significantly, many of the treaty beneficiaries reside in remote and isolated
    communities spread out over a vast area of land. The extraordinary step of
    holding the proceedings in four separate communities was itself determined not
    to be an adequate response to the problem of lack of access to the proceedings
    for those affected. Accordingly, the motion judge in
Restoule
determined
    that live stream broadcasting and archiving of the proceedings was necessary
    for providing a process that is perceived to be fair by the parties, coming
    within the discretion provided by s. 136(3)(a) to grant an order for any other
    purpose of the court hearing.

[18]

The
    moving partys motion has nothing in common with
Restoule
. An idiosyncratic
    and unsubstantiated distrust in the legal system does not generate an
    entitlement to create a video record of proceedings on demand under s.
    136(3)(a). This court is not a court of record, and it is not clear what record
    the moving party wished to create. Unlike in
Restoule
, her appeal has
    been quashed and there is no proceeding in existence. And unlike in
Restoule
,
    the purpose for which she seeks a video recording is unrelated to the substance
    of the hearing itself.

[19]

The
    argument that a video recording was sought for public education purposes under
    the exception set out in s. 136(3)(c) likewise fails. The moving partys
    argument rests on reading education as encompassing the generation and
    dissemination of any piece of information. This is too broad a reading. The moving
    party is not engaged in education or instruction in the sense intended by the
    statute.

The motion to review the motion judges decision

[20]

This
    court makes digital audio recordings of its proceedings for internal use. These
    recordings are not governed by s. 136, which addresses the actions of third
    parties in making recordings. This court makes these recordings pursuant to its
    inherent power to govern its own process. As set out in s. 17 of the
Practice
    Direction Concerning Civil Appeals at the Court of Appeal for Ontario
, the
    court makes the recordings available to the parties upon request, for personal
    use only, and on the condition that the person requesting the recording sign an
    undertaking agreeing to respect the limits on the permitted uses of the
    recording.

[21]

Section
    17 of the
Practice Direction
prohibits dissemination of the digital
    audio recording, but also provides that the prohibition is subject to a court
    order to the contrary. In our view, the
Practice Direction
allows for
    an application to be made to a single justice of this court, for an order
    dispensing with the requirement that the digital audio recording not be
    disseminated. The moving partys motion was therefore properly before the
    motion judge. However, for the reasons given above with respect to the video
    recording, the motion is properly dismissed. The moving party did not provide
    any reason that would justify releasing her from the obligation not to
    disseminate.

[22]

The
    motion judge made no error in dismissing the motion for an order that certain
    reasons for decision be posted to the courts website. As the motion judge noted,
    it is left to the individual motion judge to decide whether or not to publish
    his or her reasons on the courts website. The operational decisions of this
    court are not subject to review.

[23]

With
    respect to the proposed challenge to the constitutional validity of the s. 136
    of the
Courts of Justice Act
, the motion judge made no error in
    dismissing the motion for lack of jurisdiction. A constitutional challenge to a
    statute cannot be brought in this court in the absence of a valid appeal. As
    the appeal had been quashed, the motion judge made no error in dismissing the
    motion.

DISPOSITION

[24]

The
    motion is dismissed. Costs are awarded to the respondent London District
    Catholic School Board in the amount of $1,000 inclusive of disbursements and
    HST.

Paul Rouleau J.A.

B.W. Miller J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mississauga (City) v. Mohenu, 2019 ONCA 318

DATE: 20190418

DOCKET: M48866 and M50324

Feldman J.A. (Motion Judge)

BETWEEN

City of Mississauga

Responding Party

and

Paul Mohenu

Moving Party

Paul Mohenu, appearing in person

Vitali Berdichevski, as
amicus curiae

Robert D. Ryan, for the responding party

Heard and released orally: April 17, 2019

APPEAL BOOK ENDORSEMENT

[1]

The appellant moves for an extension of time to perfect his
    motion for leave to appeal, under s. 131 of the
Provincial Offences Act
.

[2]

The motion for an
    extension is opposed by the City of Mississauga.  The conviction was in 2014,
    for a by-law infraction.  The applicant has had one appeal, which was dismissed
    by the Ontario Court of Justice.

[3]

The notice of motion for
    leave was filed in February 2018.  The applicant says he did not understand he
    had more to do and was waiting to hear from the court.

[4]

The problem is that the
    grounds of appeal raise a question of fact: is the driveway too wide?  He says
    it is not, but that is not a question of law or a matter of general public
    importance.  Therefore, on the potential merit ground, there is no basis to
    grant an extension of time.

[5]

The motion is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Peters v. Chasty, 2019 ONCA 294

DATE: 20190412

DOCKET: C62923

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Tiffany Peters

Plaintiff (Appellant)

and

John Chasty Principal, Peel District School
    Board,
Robin Benmergui Vice Principal, Lola Gayle Vice Principal,
Lana Del Maestro Track Coach

Defendants (Respondents)

Julius Omware, for the appellant

Jennifer Guy and Brendan Hughes, for the respondents

Heard: April 10, 2019

On appeal from the judgment of Justice D. L. Edwards of
    the Superior Court of Justice, dated August 2, 2016, with reasons reported at
    2016 ONSC 4788, and from the costs order, dated September 12, 2016.

REASONS FOR DECISION

[1]

The appellant was injured while practicing
    long-jump techniques at Bramalea Secondary School. She was part of the schools
    track and field team. She sued the school board and several employees, alleging
    negligence on their part which caused her to suffer injury. The trial judge
    found that the respondents did not breach their duty of care to the appellant
    and that their actions met the standard of a prudent parent. He accordingly
    dismissed the action.

[2]

The appellant argues that the trial judge ought
    to have assessed the evidence differently, and makes several related complaints:

1.

He ought not to have discounted the appellants
    credibility because of minor inconsistencies in her evidence.

2.

His reasons were inadequate to come to grips
    with competing versions of the events and factual matters in dispute.

3.

His failure to make factual findings in favour
    of the appellant showed bias.

4.

He did not adequately consider the evidence of
    Dr. Wong, a psychiatrist, although the appellant concedes that the trial judge addressed
    that evidence at length.

5.

He should have accepted the evidence of Dr.
    Getahun, an orthopedic surgeon, and the evidence of Dr. Thankappanpillai, a
    clinical psychologist.

6.

He should not have accepted the evidence of the respondents
    experts.

7.

He should have rejected the evidence of the
    school principal and also the evidence of the track and field coach present at
    the time of the injury.

8.

He applied a stricter standard to the evidence
    of the appellant than to the evidence of the respondents witnesses.

9.

He failed to draw an adverse inference from the
    absence of written records about the incident.

10.

He failed to consider the implausibility of the respondents evidence.

11.

He failed to appreciate the evidence, as a whole, either by
    disregarding important evidence or misapprehending that evidence.

[3]

We do not accept these arguments. The question
    of whether or not the respondents met the standard of care in a negligence
    action is a question of mixed fact and law. Absent an error in principle or a
    palpable and overriding error, the trial judges conclusions are owed
    deference.

[4]

Here the trial judge delivered comprehensive,
    detailed reasons after 14 days of trial. His conclusions were clearly linked to
    the evidence and reasonably available to him on the record. He remarked that some
    of the inconsistencies in the appellants evidence were minor, but that others
    were very significant. For example, the appellant testified that the coach had
    never instructed her about long jump techniques; this was contrary to her
    evidence on discovery and a significant inconsistency:
Peters v.
    Chasty
, 2016 ONSC 4788, at paras. 12-14. He correctly
    articulated the standard of care, the norm of a careful and prudent parent:
Peters
, at para. 18. We cannot identify any palpable and overriding error
    in his assessment of credibility, nor any material misapprehension of the
    evidence.

[5]

The appellant also asks this court to re-assess
    the trial judges cost award in favour of the respondents in the sum of
    $257,609.89 on the ground of the appellants impecuniosity. This was a 14 day
    trial with numerous expert witnesses. It was the culmination of litigation
    commenced in 2008. We see no error in the trial judges costs decision.

[6]

Accordingly the appeal is dismissed with costs
    to the respondents on a partial indemnity basis fixed at $21,000, inclusive of
    disbursements and HST.

P. Lauwers J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. 2095540 Inc., 2019 ONCA 296

DATE: 20190412

DOCKET: C64922

Benotto, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

2095540 Inc. and Dan Carley

Appellant

Philip B. Norton, duty counsel

James D.M. Clark, for the Crown

Heard: April 9, 2019

On appeal from the sentence imposed on August 3, 2016 by
    Justice Joseph R. Henderson of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The application judge said at para. 94 that he declined to
    consider the issue of proportionality. The Crown submits that  nonetheless
    the factual findings make it clear that forfeiture was the only available
    result.

[2]

We do not agree.

[3]

The application judge was required to consider proportionality in
    accordance with s. 19.1(3). In the event that the judge erred, the Crown urged
    this court to conduct our own proportionality analysis. The factors to be
    considered, as required by
R. v. Craig
, 2009 SCJ 23 are several and we
    are not in a position to do so.

[4]

The appeal is allowed and a new hearing on forfeiture is ordered.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bajwa, 2019 ONCA 295

DATE: 20190411

DOCKET: C62467

Benotto, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Bajwa

Appellant

Muhammad Bajwa, in person

Andrew Hotke, for the respondent

Heard: April 9, 2019

On appeal from the conviction entered on June 29, 2016
    and the sentence imposed on June 29, 2016 by Justice Michelle Fuerst of the Superior
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

This is an appeal from conviction and sentence. The appellant plead
    guilty to fraud over $5,000 and conspiracy to commit fraud. He was represented
    by senior, experienced trial counsel. An exhaustive plea inquiry was conducted
    in advance of the plea. We see no basis to set it aside.

[2]

The appellant also seeks leave to appeal his sentence and, if granted,
    appeals the $300,000 restitution order imposed. He agreed through counsel to
    that order. Again, we see no basis to set it aside.

[3]

The conviction appeal is dismissed. Leave to appeal sentence is granted,
    but the sentence appeal is dismissed.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 539(1),
    (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of
    the
Criminal Code
provide:

539(1)          Prior to the
    commencement of the taking of evidence at a preliminary inquiry, the justice
    holding the inquiry

(a) may, if application therefor is
    made by the prosecutor, and

(b) shall, if
    application therefor is made by any of the accused, make an order directing
    that the evidence taken at the inquiry shall not be published in any document
    or broadcast or transmitted in any way before such time as, in respect of each
    of the accused,

(c) he or she is
    discharged; or

(d) if he or she is
    ordered to stand trial, the trial is ended.

(2)     Where an accused is not
    represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who fails to comply
    with an order made pursuant to subsection (1) is guilty of an offence
    punishable on summary conviction

(4)      [Repealed, 2005, c. 32, s.
    18(2).]

R.S., 1985, c. C-46, s. 539;
    R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.S., 2019 ONCA 281

DATE: 20190409

DOCKET: C64653

Doherty, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.S.

Appellant

Ian B. Kasper, for the appellant

Sean Horgan, for the respondent

Heard and released orally: April 3, 2019

On appeal from the conviction entered on January 26, 2017
    by Justice S. Lavine of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of various offences arising out of
    the alleged sexual assault of S., his nine-year old daughter. S. testified and
    described various forms of sexual abuse that occurred over about a 10-month
    period. Her younger stepsister, A., also testified. She confirmed parts of S.s
    evidence about the sexual abuse, but in some ways her evidence was quite
    different than S.s evidence. The appellant testified and denied any sexual
    misconduct.

[2]

In the course of the defence, it put forward the position that S.
    had a motive to fabricate the allegations against the appellant and that A.
had gone along with S.s fabrication as a way of offering some
    explanation for how she came to be in possession of the vibrator that was found
    in her computer bag. The trial judge ultimately rejected the defence position
    and gave reasons for doing so.

[3]

The trial judge clearly appreciated the
    substance of the evidence and the respective positions of the parties. She
    articulated those positions in her reasons. The trial judge also instructed
    herself on key legal principles, including the burden of proof and the manner
    in which the evidence of children should be assessed.

[4]

The trial judge considered and rejected the
    appellants evidence. She gave two reasons for doing so. We need not go into
    any details with respect to those reasons as the appellants arguments focus on
    the trial judges acceptance of S.s evidence and not her rejection of the
    appellants evidence.

[5]

The trial judge was alive to the contradictions
    and inconsistencies in S.s evidence. She not only summarized those inconsistencies
    and contradictions, but referred to some of them in the context of her
    assessment of S.s credibility. The trial judge also referred to various
    factors in S.s demeanour and in the presentation of her evidence, which in the
    trial judges view enhanced her credibility.

[6]

Next, the trial judge contrasted S.s evidence
    with A.s testimony. She found S. credible and A. much less credible. This part
    of the trial judges reasons is significant for the purposes of appeal, in that
    it demonstrates that the trial judge appreciated the individualized nature of
    the credibility assessments she was obligated to make. The trial judge clearly
    made no inappropriate assumptions about the evidence of children or how
    children should behave when testifying. Rather, the trial judge made
    credibility findings after a critical analysis of the evidence of each witness.

[7]

In the end, the trial judge was clearly aware of
    the features in S.s testimony that could undermine her credibility and
    reliability. The trial judge also identified factors which, in her view,
    supported the credibility and reliability of the evidence. These factors
    considered, as a whole, ultimately led her to conclude, first, that S. was a
    credible witness whose evidence could be believed and, second, that her evidence
    established guilt beyond a reasonable doubt.

[8]

On a review of the reasons of the trial judge in
    the context of the entire record, it is clear how she arrived at her verdicts.
    She got there by first rejecting totally the material defence evidence as
    untruthful and secondly by a reasoned acceptance of the core of S.s evidence
    as it related to the allegations of sexual misconduct. The trial judge then
    placed that acceptance of S.s evidence in the context of the Crowns burden of
    proof and found that the case had been proved beyond a reasonable doubt.

[9]

For the reasons set out above, we are satisfied
    that the trial judges reasons did admit of appellate review and were adequate.
    We also find no error in the trial judges analysis of the evidence.

[10]

The appellant also submitted that the verdicts
    were unreasonable. We cannot agree with that submission. S.s evidence, if
    believed, and it was certainly reasonably capable of belief, provided ample
    evidence to support the verdicts arrived at by the trial judge.

[11]

The conviction appeal is dismissed.

[12]

Turning to the sentence appeal, the trial judge
    imposed a total sentence of three and one-half years. The appellant argues that
    the sentence should be reduced because the trial judge gave inadequate
    consideration to the appellants Aboriginal background. We disagree.

[13]

The reasons for sentence demonstrate that the
    trial judge gave proper consideration to this factor. The trial judge made
    numerous references to the
Gladue
Report that
    had been prepared for the purposes of sentencing. For example, she referenced
    the report at pp. 3 to 6 of her reasons for sentence. The trial judge also
    quoted from the relevant Supreme Court of Canada jurisprudence, e.g. see
R.
    v. Wells
, [2000] 1 S.C.R. 207
.

[14]

We are satisfied that the trial judge did give
    meaningful consideration to the appellants Aboriginal background. When
    considered with all of the other relevant factors in this case, which include
    the age of the victim, the seriousness of the abuse, and the egregious breach
    of trust, the sentence imposed was fit.

[15]

Leave to appeal sentence is granted, but the
    appeal from sentence is dismissed.

Doherty J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2019 ONCA 258

DATE: 20190403

DOCKET: C63994

Watt, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Brynn Campbell

Respondent

Susan Magotiaux, for the appellant

Ian B. Kasper, for the respondent

Heard: November 5, 2018

On appeal from the acquittal
    entered by Justice Bruce Glass of the Superior Court of Justice on May 31, 2017,
    sitting without a jury, with reasons reported at 2017 ONSC 3293.

van Rensburg J.A.:

INTRODUCTION

[1]

This is a Crown appeal of an acquittal. The sole ground of appeal
    is that the trial judge provided insufficient reasons for his
Charter

ruling excluding certain evidence from the trial.

[2]

On October 27, 2014, the respondents car collided head on with
    another car that was travelling in the wrong direction. Unfortunately, the
    occupant of the second car died of her injuries. The respondent was brought to
    the hospital. While there, she responded to the questions of two police
    officers. One of the officers noticed a faint odour of alcohol, but did not
    suspect that the respondent was impaired or that she had done anything to
    contribute to the collision. Urine and blood samples were taken at the hospital
    and eventually seized under warrant.  Subsequent analysis of the blood revealed
    that, at the time of the collision, the respondents blood alcohol
    concentration was well over the legal limit.

[3]

The respondent was charged with impaired care and control of a
    motor vehicle causing death, contrary to (what was then) s. 255(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, and care or control over 80 causing death,
    contrary to s. 255(3.1). By way of a pre-trial application, the respondent
    challenged the admissibility of her medical records and urine and blood samples
    that were seized under warrant, as well as oral statements she made to the
    police at the hospital and a written statement she later provided to police.
    The trial judge concluded that this evidence was obtained in breach of ss. 7
    and 8 of the
Canadian Charter of Rights and Freedoms

and must
    be excluded. After this evidence was excluded, the Crown called no evidence and
    the respondent was acquitted.

[4]

The Crown asserts that the trial judge provided insufficient
    reasons for granting the respondents
Charter

application, and asks
    this court to set aside the acquittal and order a new trial.

[5]

For the reasons that follow, I would decline to do so.

ANALYSIS

[6]

A Crown appeal of an acquittal will only be allowed if the Crown
    establishes that the trial judge made an error of law, and that the error might
    reasonably be thought, in the concrete reality of the case at hand, to have had
    a material bearing on the acquittal:
R. v. Graveline
, 2006 SCC 16,
    [2006] 1 S.C.R. 609, at para. 14. Only two of the issues raised by the Crown approach
    this threshold: (i) whether the trial judge provided insufficient reasons for his
    finding that P.C. Robinson (one of the officers who attended at the hospital) asked
    a nurse for the respondents urine ethanol results; and (ii) whether the trial
    judge provided insufficient reasons for excluding the search warrant evidence
    pursuant to s. 24(2) of the
Charter
. The determination of these issues
    is dispositive of the appeal.

(1)

The Finding That P.C. Robinson Asked for the Respondents Urine Ethanol
    Results

[7]

The police obtained search warrants authorizing the seizure of
    the respondents medical records pertaining to her treatment in hospital
    following the collision, as well as the samples of her blood and urine that
    were taken while she was there. The Information to Obtain (ITO) stated, among
    other things, that [d]uring the course of the investigation police learned
    that the [respondent] was taken to hospital and basic trauma blood work and
    urine were drawn for medical purposes, and that the respondents blood and
    urine were tested and registered positive and well above the legal limit for
    alcohol. (This statement was inaccurate in part, because at the time the ITO
    was prepared, the police had no information about the results of the respondents
    blood test.) The ITO also stated that P.C. Robinson overheard an ER nurse
    mention that [the respondents] urine results were 47 millimols [millimoles] and
    noted that this was equal to a BAC [blood alcohol concentration] of
186 mgs
/100
    mL of blood (emphasis in original). The ITO also referred to P.C. Robinsons
    observation of an odour of alcohol; statements by the respondent, including
    that she had consumed one alcoholic drink that evening; data downloaded from
    the air-bag control module of the respondents vehicle indicating that it was
    travelling 23 km/h above the speed limit, and that the driver took no evasive
    action prior to the collision; and an anonymous Crime Stoppers tip claiming
    that the respondent was impaired at the time of the collision.

[8]

The respondents primary position in her
Charter
application was that her statements were compelled, that the urine ethanol
    results were illegally obtained by P.C. Robinson, and that once such information
    was excised, the ITO was insufficient to support the warrants. As a result, the
    medical records and urine and blood samples were seized in violation of s. 8 of
    the
Charter
and ought to be excluded from evidence pursuant to s.
    24(2).

[9]

How the police came to know about the respondents urine ethanol
    readings was a central issue in the
Charter
application and the focus
    of much of the evidence and argument on the
voir dire
. The
    respondents counsel at trial described his argument on this point as the
    fundamental thrust of the application. The trial Crown identified the single
    overriding theme of what were doing today as a determination of whether or
    not the nurses statement to Officer Robinson about Ms. Campbells ethanol
    levels was obtained illegally such that it must be excluded. The trial Crown also
    conceded that, if the trial judge were to find that P.C. Robinson
asked
for the results (and not just overheard them, as stated in the ITO) and the
    results were excised from the ITO, the ITO could not support the warrants. Specifically,
    the trial Crown stated that if the urine ethanol results were to be excised
    from the ITO, this warrant is extremely weak if not completely deficient, and
    so there is no further case.

[10]

The trial judge ultimately excised from the ITO both the
    respondents statements to police (after finding they had been compelled and on
    the basis of
R. v. White
, [1999] 2 S.C.R. 417, and
R. v. Soules
,
    2011 ONCA 429, 105 O.R. (3d) 561, leave to appeal refd, [2011] S.C.C.A. No.
    375), and, after concluding that the police had obtained the information
    illegally, the reference to the respondents urine ethanol results. At paras.
    22 to 25 of his reasons, after addressing what was left, the trial judge concluded
    that the ITO was insufficient to support the issuance of the warrants.

[11]

The Crown focusses on the trial judges finding, at para. 18 of his
    reasons, that [t]he nurse provided the information to Constable Robinson after
    he asked about her readings. The Crown submits that the trial judge erred in
    law because he provided no reasons to explain this finding, and, in particular,
    how he resolved the conflict in the evidence between P.C. Robinsons testimony
    that he overheard the nurse speaking of the urine ethanol results and that of
    Douglas Campbell, the respondents father, that he heard the officer ask a
    nurse, Where is her level? or Wheres her level at? The Crown argues that
    the trial judges failure to explain the basis for his credibility finding, and
    in particular why he rejected the officers evidence and accepted Mr.
    Campbells evidence, is a fatal deficiency in his reasons.

[12]

In
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at
    para. 51, McLachlin C.J. stated that [t]he degree of detail required in
    explaining findings on credibility may  vary with the evidentiary record and
    the dynamic of the trial. She explained that [t]he factors supporting or
    detracting from credibility may be clear from the record, and, [i]n such
    cases, the trial judges reasons will not be found deficient simply because the
    trial judge failed to recite these factors: at para. 51.

[13]

As I will explain, although the trial judge did not articulate
    how he arrived at his conclusion that P.C. Robinson asked the nurse for the
    urine ethanol results, I consider his reasons to be sufficient because the
    factors supporting and detracting from the credibility and reliability of the witnesses
    on this issue were apparent on the record.

[14]

A key point here is that P.C. Robinsons evidence on the
voir
    dire
was not simply that he overheard a nurse mention the urine ethanol
    results, as stated in the ITO. Rather, after confirming that he overheard what a
    nurse was saying, the officer testified that he heard the sound of surprise,
    that he turned and looked, and that the nurse then looked at him and repeated
    her comment. Indeed, in his notebook P.C. Robinson wrote, Overheard nurses, Ethanol
    level 47, while his typed notes stated, I overheard a nurse mention urine
    results with ethanol level 47. I looked toward the nurses and the statement was
    repeated to me. I was unsure what that meant but noted it due to the surprised
    sound in the nurses voice.

[15]

P.C. Robinson testified that he did not know at the time nor at
    the
voir dire
what was meant by 47 or what a very high level of
    ethanol was, but D.C. Chad Lee (the lead investigator) testified that when he
    spoke with P.C. Robinson on the day of the collision, P.C. Robinson told him
    that the respondents ethanol levels were 43 and very high. The 43 reading
    was consistent with the hospital records. D.C. Lees notes also stated that P.C.
    Robinson advised him that the nurse told him the information. And while P.C.
    Robinson testified that he smelled alcohol on the respondent prior to speaking
    to D.C. Lee, D.C. Lee testified that according to his notes P.C. Robinson told
    him that he could not smell anything.

[16]

Mr. Campbell testified that he overheard P.C. Robinson ask a
    nurse, Where is her level or Wheres her level at? Under cross-examination
    he did not waver. In his submissions on the
Charter
application, Crown
    counsel challenged only the reliability of Mr. Campbells evidence, not his credibility.
    He suggested that Mr. Campbell was mistaken in what he overheard, due to his
    position (eight to ten feet away from P.C. Robinson, whose back was turned), or
    in his interpretation of what was said (which the Crown suggested was capable
    of a number of interpretations).

[17]

The problems with the contention that the respondents urine
    ethanol results had been simply overheard by the officer were apparent on the
    record. In important respects, P.C. Robinsons evidence was inconsistent with
    his own notebook notes and with D.C. Lees evidence. These inconsistencies
    undermined P.C. Robinsons credibility.  By contrast, Mr. Campbells
    credibility was not challenged. While his position was not ideal for overhearing
    what took place between P.C. Robinson and the nurse, he was clear in recounting
    what he could and could not hear. And, while the words Mr. Campbell heard might
    well be ambiguous in the abstract, in the context of this case their meaning is
    obvious  the officer was referring to the respondents urine ethanol level. In
    these circumstances it is apparent from the record why the trial judge found that
    P.C. Robinson asked a nurse about the respondents urine ethanol levels.

[18]

Accordingly, I would not give effect to the Crowns argument that
    the trial judges reasons on this point were insufficient. As already noted,
    the trial Crown conceded that it would be a breach of the
Charter

if
    the trial judge were to find that P.C. Robinson asked for the results and that,
    without the urine ethanol results, the ITO could not support the warrants
    (thereby constituting a breach of s. 8). I turn now to the trial judges
    decision to exclude the search warrant evidence under s. 24(2) of the
Charter
.

(2)

The Trial Judges Decision to Exclude the Evidence Obtained Pursuant to
    the Warrants

[19]

The Crowns second main argument on appeal is that the trial
    judges s. 24(2) analysis was inadequate. In particular, the Crown asserts that
    the trial judge made no case-specific findings, but addressed the
Grant

factors (
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353) in general
    terms only. Because of this, according to the Crown, it is impossible to
    determine the extent to which the trial judge took into consideration an
    erroneous factor  that is, his finding that the nurses were acting as state
    agents when they took the respondents blood without her consent. The Crown
    argues that if the trial judge had taken into consideration only the breach he
    found associated with the disclosure of confidential medical information (the
    urine ethanol results), the exclusion of evidence under s. 24(2) was not
    inevitable.

[20]

The trial judge was highly critical of the circumstances in which
    the respondents blood was taken. At paras. 17-19 of his reasons he noted that
    the respondent had refused to have blood taken or to have a needle inserted
    into her, both with EMS personnel and at the hospital. He accepted that she had
    a phobia about needles. He described the nurses taking of the respondents
    blood as a deliberate over-ride of her feelings. The trial judge then stated
    that the
nurses were acting as police agents
    when they took the respondents blood without her consent. He repeated this
    characterization again when he referred to the evidence of alcohol readings having
    been illegally obtained by nurses as agents of the state, and he concluded, at
    para. 19, that the evidence was the product of intrusion of the body of the [respondent].

[21]

The Crown contends that the conclusion that the nurses were
    acting as state agents when they took the respondents blood without her
    consent is not supported in fact or in law. The Crown points to evidence of a
    doctors order to draw blood, and the respondents acquiescence to her blood
    being drawn after she was told it was hospital procedure, as well as the
    absence of any direct evidence of a police request. The respondents counsel
    acknowledges that the trial judges conclusion that the nurses were acting as
    police agents when the blood was taken is troublesome.

[22]

The trial judge explained why he concluded that the nurses took
    the respondents blood without her consent, however he did not explain, and
    there is no real evidence to support, his conclusion that the nurses were
    acting as police or state agents when they did so. I would therefore accept the
    Crowns reasonable submission that the trial judge did in fact take into
    consideration an irrelevant factor in the course of his s. 24(2) analysis. And I
    agree that, because of the generality of the trial judges
s. 24(2)

analysis, it is
    impossible to say that how this factor affected his decision to exclude the
    search warrant evidence.

[23]

This is not the end of the matter, however. Where a trial judges
    ruling on s. 24(2) is unreasonable or reflects an error in principle, an appellate
    court is entitled to intervene and conduct the analysis afresh:
R. v.
    Davidson
, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 46. This court is
    entitled to do so here because of the trial judges reliance on an erroneous
    finding in his decision to exclude the search warrant evidence.

[24]

I pause here to note that the Crown argued that it would be
    impossible for this court to conduct a s. 24(2) analysis afresh due to the lack
    of clear factual findings by the trial judge upon which to ground the analysis.
    In particular, the Crown submitted that the trial judges failure to determine
    whether P.C. Robinson was acting in good faith or bad faith prevents this court
    from assessing the first
Grant

factor
i.e.

the
    seriousness of the
Charter
-infringing state conduct.

[25]

I disagree. In assessing the first
Grant

factor,
    the court considers the nature of the police conduct and whether it involves
    misconduct from which the court should seek to dissociate itself:
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22. At para. 23 of
    her reasons in
Harrison
, McLachlin C.J. suggested that the metaphor of
    a spectrum used in
R. v. Kitaitchik
(2002), 166 C.C.C. (3d) 14 (Ont.
    C.A.), at para. 41, may assist in characterizing police conduct for purposes of
    this factor in the
Grant

analysis. In
Kitaitchik
,
    Doherty J.A. wrote, at para. 41:

Police conduct can run the gamut
    from blameless conduct, through negligent conduct, to conduct demonstrating a
    blatant disregard for
Charter
rights[.]  What is important is the
    proper placement of the police conduct along that fault line, not the legal
    label attached to the conduct.

[26]

Here, the trial judge found, at para. 18 of his reasons, that
    [t]he nurse provided the information [regarding the respondents urine ethanol
    results] to Constable Robinson after he asked about her readings. The trial
    judge was critical of the police conduct, stating, at para. 20, In effect, the
    police had the answers and then justified their actions after-the-fact by
    getting a warrant. These findings provide this court with a sufficient basis
    upon which to assess the seriousness of the
Charter
-infringing state
    conduct and to place this conduct along the fault spectrum described by Doherty
    J.A. in
Kitaitchik
.

[27]

In my view, the
Charter
-
infringing state conduct
    here was at the serious end of the fault spectrum. The police intentionally
    obtained information from hospital staff in breach of medical confidentiality,
    and relied on that information to obtain a warrant that otherwise could not
    have been issued.

[28]

At trial, Crown counsel acknowledged that if the trial judge were
    to accept the defence position as to how the urine ethanol results were
    obtained, then the first
Grant
factor would lean toward exclusion. In
    fact, in his submissions, when referring to the disclosure of the respondents
    confidential medical information, the trial Crown stated, I will never try to
    defend what this unnamed nurse did. Given that the trial judge found that the
    nurse divulged the confidential medical information because P.C. Robinson asked
    for it, it is difficult to see how the officers conduct can be condoned if the
    nurses conduct was indefensible. Instead, I am of the view that P.C.
    Robinsons conduct in intentionally asking for the confidential medical
    information is precisely the type of conduct from which the court must distance
    itself, irrespective of the fact (which was emphasized by the Crown on appeal)
    that the officer otherwise treated the respondent with courtesy and respect.

[29]

As for the second
Grant

factor  the impact of
    the breach on the
Charter
-protected interests of the accused, the
    trial Crown stated that, on its face, police access to hospital records seems
    to favour exclusion, but later argued that because this evidence was collected
    in a non-intrusive manner, this factor did not lean toward inclusion or
    exclusion.

[30]

In my view, although the respondents confidential medical
    information was not obtained in a physically-intrusive manner, the impact of
    the breach on her informational privacy interest was significant.

[31]

The respondent was in hospital to receive medical care after the
    collision. As a patient, she was vulnerable, forced to reveal information of a
    most intimate character and to permit invasions of [her] body if [she] is to
    protect [her] life or health:
R. v. Dyment
,
    [1988] 2 S.C.R. 417, at p. 433. She was entitled to expect that the police
    would access her medical information only through proper legal channels
by the
well-known
    and recognized procedures for obtaining such evidence when the police have
    reasonable and probable grounds for believing a crime has been committed:
Dyment
,
    at p. 439. Instead, the police, with no reasonable and probable grounds to
    believe that the respondent had committed an offence, obtained her medical
    information unlawfully by asking a nurse to divulge the respondents urine
    ethanol results.

[32]

In
Dyment
, the police received the accuseds blood
    samples from a doctor who handed them over at the hospital. La Forest J. described
    the
Charter

breach as serious, stating, at p. 439:

[T]he sense of privacy transcends
    the physical. The
dignity of the
    human being is equally seriously violated when use is made of bodily substances
    taken by others for medical purposes in a manner that does not respect that
    limitation. In my view, the trust and confidence of the public in the
    administration of medical facilities would be seriously taxed if an easy and
    informal flow of information, and particularly of bodily substances from
    hospitals to the police, were allowed.
[1]

[33]

Similarly, in this case a sample of a substance from the
    respondents body  her urine  was taken for medical purposes. It was tested
    for ethanol. Police asked for and received this test result without legal
    authority, and then used this test result for their own, non-medical purpose,
    which was a purpose to which the respondent did not consent. In my view, this
    was a serious violation of the respondents dignity, which strongly favours
    exclusion.

[34]

On appeal, Crown counsel pressed the argument that, without the
    breach relating to how the blood samples were obtained, the effect of the remaining
    breach involving the illegal disclosure of the respondents confidential
    medical information on her
Charter
-protected interests was not so serious
    as to inevitably require the exclusion of the search warrant evidence. She
    relied on
R. v. Erickson
(1992), 72 C.C.C. (3d) 75 (Alta. C.A.), affd
    [1993] 2 S.C.R. 649,
[2]
and
R. v. Culotta
,

2018 ONCA 665, 142 O.R. (3d) 241, affd 2018
    SCC 57,
[3]
as examples of cases where a breach of medical confidentiality did not result
    in exclusion of an accuseds blood samples.

[35]

In
Erickson
, a police officer attended the hospital
    after a head-on motor vehicle collision and asked for and was shown the
    respondents alcohol screen results, which demonstrated a blood alcohol level
    in excess of the legal maximum. Relying on this information, the police officer
    obtained search warrants authorizing the seizure of the respondents hospital
    records and blood sample. Major J.A., as he then was, concluded that the search
    warrants were invalid because they were based on information obtained in
    violation of s. 8 of the
Charter
. Nevertheless, pursuant to the
    then-governing s. 24(2) framework set out in
R. v. Collins
, [1987] 1
    S.C.R. 265, he concluded that the admission of the search warrant evidence
    would not bring the administration of justice into disrepute, because the
    blood sample was real, pre-existing evidence that would have been discovered in
    any event, without any
Charter

violation. The sample would
    have been discovered in any event  because, had the officer not asked for and
    received the alcohol screen results, he still would have had reasonable and
    probable grounds to obtain a search warrant based upon other evidence in the
    case: at pp. 82-83.

[36]

In
Culotta
, following a boating accident, six samples of
    the appellants blood were taken at the hospital. Two samples were taken for
    police purposes without the appellants consent, and were excluded from
    evidence by the trial judge. The trial judge admitted hospital records
    respecting the other four samples. On appeal of her conviction, the appellant
    challenged the admission of her hospital records and certain statements she
    made to the police, based on the cumulative effect of three alleged
Charter

violations, including the unlawful seizure of the two extra samples of
    blood. A majority of this court dismissed the appeal. With respect to the
    medical records, Nordheimer J.A. rejected the assertion that the illegal
    seizure of the two samples that had been excluded from evidence irretrievably
    tainted the hospital records such that they should be excluded. The other four
    vials of the appellants blood were taken and tested for medical purposes. The
    hospital records pertaining to the testing of these samples were seized under a
    valid search warrant, obtained on the basis of reasonable and probable grounds,
    including information from witnesses that shed light on the appellants
    drinking prior to operating the boat, and the officers knowledge that tests
    had been done on the appellants blood that would commonly include tests of
    blood-alcohol concentration: at para. 24.

[37]

In both of these cases, there were reasonable and probable
    grounds, apart from any illegally obtained evidence, for search warrants to
    seize hospital records of the appellants blood alcohol results. In other
    words, the blood sample evidence was discoverable in any event. In this case
    the search warrants depended on the illegally obtained urine ethanol readings;
    the respondents medical records and urine and blood samples were not otherwise
    discoverable.

[38]

In my view, the second
Grant
factor favours exclusion in
    this case.

[39]

As for the third
Grant

factor, there is little
    question that societys interest in an adjudication of the charges against the
    respondent on the merits weighs in favour of inclusion of the illegally
    obtained evidence. The evidence at issue is reliable and essential to the prosecution.
    Once the blood alcohol readings were excluded the Crown elected to call no
    evidence, resulting in the respondents acquittal on serious charges in a case
    where the other driver was killed in the collision.

[40]

In balancing the three
Grant
factors, I am mindful of Brown
    J.s statement in
R. v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, at
    para. 56, that the third
Grant

factor must not be allowed to
    trump all other considerations, particularly where  the impugned conduct was
    serious and worked a substantial impact on the [accuseds]
Charter
right. In my view, this statement applies to the case at bar.

[41]

Intentionally
    obtaining confidential medical information and using it to obtain search
    warrants is serious
Charter
-infringing state conduct from which the
    court ought to distance itself. And, while the illegal disclosure of the
    confidential medical information was not a deliberate intrusion on bodily
    integrity that might serve to exclude the evidence notwithstanding its
    relevance and reliability (
Grant
, at para. 111), the effect on the
    respondent and her interest in informational privacy in a medical context was
    significant. In this case, but for the search warrants the police would not
    have been able to seize the respondents medical records and urine and blood
    samples, and those search warrants depended upon the illegally obtained urine
    ethanol results. Given that the
Charter
-
infringing state conduct
    here was at the serious end of the fault spectrum and the breach significantly
    impacted on the respondents informational privacy interest, the balance tips towards
    exclusion and is not outweighed by societys interest in an adjudication on the
    merits. To admit
the evidence in this case would
    permit the police to obtain evidence illegally, and then, as observed by the
    trial judge, attempt to justify this action by getting a warrant. Public
    confidence in the administration of justice is best served in this case through
    the exclusion of the evidence obtained in violation of the
Charter
.

CONCLUSION AND DISPOSITION

[42]

For the reasons set out above, I have concluded that the trial
    judges reasons are sufficient with respect to the finding that P.C. Robinson
    asked for the respondents urine ethanol results. It follows that these results
    were obtained in violation of s. 8 of the
Charter

and had to be
    excised from the ITO. Without these results, the ITO could not support the
    warrants.

[43]

The trial judge made a finding about the taking of the
    respondents blood at the hospital that is not supported by the evidence.
    Because his s. 24(2) analysis is very general, it is impossible to know what
    weight he gave to this erroneous factor. In conducting the s. 24(2) analysis
    afresh, I have concluded that, because of the seriousness of the
Charter
-infringing
    state conduct and the significant impact of the breach on the
Charter
-protected
    interests of the accused, and notwithstanding societys interest in an
    adjudication on the merits, the admission of the evidence seized pursuant to
    the search warrants would bring the administration of justice into disrepute. Without
    this evidence, the Crown had no case and an acquittal was inevitable.
    Accordingly, I would dismiss the Crowns appeal.

Released: April 3, 2019 DW

K.
    van Rensburg J.A.

I
    agree. David Watt J.A.

I
    agree. David Brown J.A.

[1]

La Forest J. wrote concurring reasons in this case, however
    this passage appears in his s. 24(2) analysis, which was adopted by the
    majority: see p. 441.

[2]
The only issue before the Supreme Court in
Erickson
was the s. 24(2)
    determination. The court agreed with the result reached in the Court of
    Appeal.

[3]
Subsequent to the hearing of this appeal, the Supreme Court released its
    decision in
Culotta
, but its decision does not impact the arguments
    made about the case in this appeal. A majority of the Supreme Court concluded
    that the appeal should be dismissed, substantially for the reasons of
    Nordheimer J.A. for the majority of the Court of Appeal. Abella and Martin JJ.
    would have allowed the appeal, substantially for the dissenting reasons of
    Pardu J.A. Thus, the legal result and reasoning remain the same.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chis, 2019 ONCA 289

DATE: 201904011

DOCKET: C63438

Feldman, Fairburn and Nordheimer JJA

BETWEEN

Her Majesty the Queen

Respondent

and

Christian Chis

Appellant

Adam Weisberg and Michelle Psutka, for the appellant

Jill Cameron, for the respondent

Heard: April 4, 2019

On appeal from the conviction entered by Justice Michelle
    Fuerst of the Superior Court of Justice, sitting with a jury, on April 14, 2015.

REASONS FOR DECISION

[1]

Mr. Chis appeals from his conviction for first degree murder. He raises
    two issues on his appeal. First, he submits that his conviction for first
    degree murder was an unreasonable verdict. Second, he submits that the trial
    judges instructions to the jury on the requisite element of planning and
    deliberation were flawed. In either case, the appellant submits that the
    conviction for first degree murder cannot stand and that a conviction for
    second degree murder should be substituted.

[2]

The appellant was convicted of the murder of his neighbour. They knew
    one another. The neighbour was retired and lived on a farm south of the
    appellants residence. The evidence showed that the deceased was hit in the
    head with an instrument, causing multiple skull fractures and resulting in his
    death. The deceaseds head was discovered in a farmers field approximately two
    months after his murder. The rest of the deceaseds body has never been found.

[3]

The evidence also showed that the victim had a large sum of money in his
    bank accounts. The trial Crown alleged a motive for the killing: financial
    gain. The evidence showed that the appellant, along with others, accessed the deceaseds
    bank accounts using his debit cards and associated PINs on the evening of the
    murder and in the following days.

[4]

At trial the appellant testified and denied he was the murderer. The
    jury had to decide first whether he was the murderer and second, if he was, if
    the killing was planned and deliberate.

[5]

On appeal the appellant does not challenge the jurys finding that he
    was the killer and that he intended to kill his neighbour. He therefore
    concedes that he is guilty of second degree murder. The appellants complaint
    is solely directed at the finding of guilt for first degree murder. He contends
    that there was no evidence upon which a properly instructed jury could find
    beyond a reasonable doubt that the murder involved planning and deliberation. The
    appellant says that the verdict of first degree murder is therefore
    unreasonable and we should substitute a verdict of second degree murder. We
    disagree.

[6]

The test for an unreasonable verdict was stated recently in
R. v.
    Mendez
, 2018 ONCA 354, where Pardu J.A. said, at para. 20:

A verdict is unreasonable if "a properly instructed jury,
    acting judicially could not have come to that verdict" [citations omitted].

[7]

In our view, it was open to the jury, on the evidence, to find that this
    murder was planned and deliberate. There was evidence from which the jury could
    infer that the date of the murder was June 26, 2011. A witness testified that the
    appellant had approached him to ask about facilitating contact with other
    people who might be in a position to use the fraudulent bank cards. Although
    that witness was a
Vetrovec
witness, it was up to the jury to decide what
    weight to give to his evidence. We agree with the respondent that there was
    some evidence upon which the jury could infer that the appellants initial approach
    to that witness came about a week before the murder. Phone records demonstrate
    that the appellant was, in fact, in touch with that witness in the week before
    the murder.

[8]

In his closing submissions, defence counsel (not counsel on appeal)
    appears to have accepted that the witness testified to that effect. On that
    basis alone, the jury could have come to the conclusion that this was a first
    degree murder.

[9]

In addition to the evidence referred to above, further support for
    planning and deliberation is found in the nature and circumstances of the
    murder. There was evidence that the appellant told a witness that he had beaten
    and kicked the victim in order to obtain his PINs for the debit cards. That
    statement accorded with the forensic pathology evidence. The jury could find
    that killing the victim, so that he could not alert the police or the banks to
    the theft of his cards by the appellant, was a necessary part of any plan to
    use those cards to take the deceaseds money.

[10]

This
    ground of appeal fails.

[11]

As
    for the second ground of appeal, there is no issue respecting the trial judges
    legal instruction to the jury on planning and deliberation. Rather, the appellant
    says that the trial judge failed to properly relate the evidence to the element
    of planning and deliberation. In her instructions to the jury on the evidence
    relating to planning and deliberation, the trial judge said:

I have already reviewed with you the evidence about Mr. Gavins
    bank accounts and the debit cards linked to them; the cell phone contact
    between Mr. Chis and Netis Patel on June 21st, 2011; Mr. Chiss utterance to
    Nayan Patel that he killed someone for the debit cards, along with Mr. Chiss
    denial that he made that utterance; Mr. Chiss utterance to Mr. Sawh-Bhawanie
    that he punched and kicked a person until he got the PIN numbers for the debit
    cards, along with Mr. Chiss denial that he made that utterance; the absence of
    activity on Mr. Chiss cell phone on the afternoon and early evening of June
    26th, 2011; the date and time of Mr. Gavins murder; the movement of Mr. Chiss
    cell phone south to Scarborough and Markham on the night of June 26th, 2011;
    Mr. Chiss cell phone calls on the night of June 26th, 2011, to the phone used
    by Mr. Sawh-Bhawanie; the use of Mr. Gavins debit cards by Mr. Shanmuganathan
    on the night of June 26th, 2011; the use of Mr. Gavins debit cards thereafter,
    including by Mr. Chis; the evidence of Mr. Shanmuganathan and Mr. Patel that
    they gave money they withdrew to Mr. Chis, along with Mr. Chiss denial that he
    was the person providing the cards to the others to use.

You can consider all of this evidence in deciding whether Crown
    counsel has proven beyond a reasonable doubt that the murder of Mr. Gavin was
    planned and deliberate on the part of Mr. Chis.

[12]

The
    appellant says that the above summary was too cursory. The trial judge needed
    to explain to the jury what evidence they should consider, how it might inform
    planning and deliberation, and how it might equally support an inference of
    nothing more than a murder committed in the heat of the moment. We disagree.

[13]

The
    trial judge had referred in detail to those same pieces of evidence earlier in
    other parts of her charge. The jury, therefore, would have been completely
    familiar with the details of that evidence and how it related to the issues
    that they had to determine. Indeed, the trial judge reminded the jury that she
    had already reviewed all of that evidence with them. We would also note that
    this specific objection was not made by defence counsel at the pre-charge
    conference  even though the instruction on planning and deliberation was the
    subject of discussion.

[14]

It
    is not necessary that evidence be repeated in all its details each time it
    relates to a different issue in jury instructions. One objective of jury
    instructions is to give a clear, but concise, recitation of the evidence  not
    a constant repetition of it. That observation is consistent with the concern
    about ever lengthening jury charges. As Moldaver J. observed in
R. v.
    Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 42:

It is apparent that taming the unchecked expansion of jury
    charges is not merely advisable  it is a legal necessity.

[15]

In
    our view, the instructions to the jury, read as a whole, provided the jury with
    the tools required to determine the issue of planning and deliberation. This
    ground of appeal also fails.

[16]

In
    the end result, the appeal is dismissed.

K.
    Feldman J.A.
Fairburn J.A.
I.V.B. Nordheimer J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.A., 2019 ONCA 310

DATE: 20190416

DOCKET: C65375

Feldman, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.A.

Appellant

Michael Dineen, duty counsel

Jessica Smith-Joy, for the Crown

Heard and released orally: April 10, 2019

On appeal from the sentence imposed on November 30, 2017
    by Justice J. Elliott Allen of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals the sentence of 12 years imposed for sexual
    assault, sexual exploitation and breaches of court orders, under s. 161 and s.
    515 of the
Code
, for sexual assaulting his teenaged step-granddaughter
    on an ongoing basis for one and a half years, including oral sex, masturbation,
    touching of her breasts and vagina, and digital penetration.

[2]

The appellant groomed the young girl to trust and depend on him. He had
    a previous conviction for sexual interference with the same girl when she was
    10 years old and was also convicted of sexually abusing her mother, his
    step-daughter back in the 1990s.

[3]

We agree with the Crown that the sentencing judge made no error in
    imposing the sentence of 12 years, which was fit, given the circumstances of
    this case and within the range referred to by this court in
R. v. D.M.
2012 ONCA 520, 111 O.R. (3d) 721, at para. 36.

[4]

The appellants letter to the court regarding his progress in the
    institution is to be commended, however, it does not affect the propriety of
    the sentence imposed.

[5]

The appellant also submits that the sentencing judge erred by imposing a
    non-communication order after calling the parties back about one month after
    the original sentence was imposed. We do not agree that the judge was
functus
    officio
at that point. He explained in his reasons that it was an
    oversight on his part not to impose the order under s. 743.21, following the
    original argument on the issue. He referred to it as an administrative
    correction that was within his purview: see
R. v. Hasiu
, 2018 ONCA 24,
    358 C.C.C. (3d) 503, at para.
35;
R. v. Malicia
(2006),
    82 O.R. (3d) 772 (C.A.), at para.
29.

[6]

In the result, leave to appeal sentence is granted but the appeal is
    dismissed.