COURT OF APPEAL FOR ONTARIO

CITATION: Smith (Re), 2022 ONCA 286

DATE: 20220411

DOCKET: C69775

Gillese, Brown and
    Coroza JJ.A.

IN THE MATTER OF: Jeffery Smith

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

BETWEEN

Jeffery Smith

Appellant

and

Her Majesty the Queen

Respondent

and

Person in Charge of
    St. Josephs Healthcare Hamilton

Respondent

Anita Szigeti and Maya Kotob, for the appellant

Heather Fregeau, for the respondent, Her Majesty the
    Queen

Julia Lefebvre, for the respondent, Person in Charge of St.
    Josephs Healthcare Hamilton

Heard: April 1, 2022 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated July 26, 2021, with reasons dated August 6, 2021.

REASONS FOR DECISION

OVERVIEW

[1]

On August 14, 2012, the appellant was found not criminally responsible (NCR)
    on account of mental disorder on two counts of assault and one count of
    uttering a threat to cause death or bodily harm. As a result, he came under the
    jurisdiction of the Ontario Review Board (the Board). After gradual release
    into the community, he was conditionally discharged in April 2018.

[2]

This appeal arises from the appellants annual review board hearing on
    July 21, 2021 (the Hearing).

[3]

At the Hearing, the appellant sought an absolute discharge. Dr. Prat,
    the appellants treating psychiatrist, opined that the appellant no longer
    posed a significant threat to the safety of the public and, therefore, was
    entitled to an absolute discharge. Dr. Chaimowitz, the head of the forensic
    psychiatry program at St. Josephs Healthcare Hamilton, took a different view.
    In his clinical opinion, the appellant continued to meet the test for significant
    threat.

[4]

The Board found that the appellant continued to pose a significant
    threat to public safety. By disposition dated July 26, 2021, it ordered a continuation
    of the appellants conditional discharge (the Disposition).

[5]

In this appeal, the appellant asks that the Disposition be quashed and
    an order substituted with an order that the appellant be absolutely discharged.

[6]

For the reasons that follow, the appeal is dismissed.

BACKGROUND

[7]

The appellant was found NCR in 2012 after assaulting his mother and then
    a neighbour who came to check on the family. He also threatened to kill the neighbour.
    At the time of this incident, the appellant was on a peace bond, stemming from
    a charge of assault and criminal harassment against his intimate partner.
    Several other violent but uncharged incidents also occurred before the index
    offences.

[8]

The hospital report dated July 15, 2021 sets out the appellants current
    diagnoses: other specified schizophrenia spectrum and psychotic disorder;
    alcohol use disorder, currently in remission; and, unspecified personality
    disorder with strong features of paranoid personality disorder and narcissistic
    personality disorder (by history). The appellant has been taking an
    antipsychotic medication since 2016 and has been treatment compliant.

[9]

The appellant has been found to be incapable of making his own treatment
    decisions. He did not challenge this finding at the Hearing (or otherwise).

[10]

While conditionally discharged, the appellant has maintained employment,
    complied with his medication, and attended his medical appointments.

[11]

On May 1, 2021, the appellant travelled to Huntsville, very near to where
    he had committed the index offences. While there, he was charged with stunt
    driving (the Incident).

[12]

On May 19, 2021, his treatment team learned that the appellant had been
    in Huntsville and charged with stunt driving. When they asked the appellant about
    the Incident the following day, he said he had gone to Huntsville for a day on
    his own and spent the day driving around the town. He denied using substances
    and said he had not been within 1 km of his family cottage or the cottage of
    the other victims of his index offences, which would have been in breach of his
    disposition. He said the police claimed he had been driving 164 km/h on a highway,
    but he thought he was likely travelling at 140 km/h. According to the occurrence
    report, the appellant was driving at 165 km/h in a

posted
    100 km/h zone.

[13]

After the Incident, the appellant's brother called the Crown Attorney
    assigned to his brothers case. He told the Crown Attorney that, following the
    Incident, he picked up the appellant from the hotel in which he was staying in
    Huntsville and drove him back to Hamilton. He said that there was an empty
    bottle of vodka in his brothers hotel room, his brother appeared mentally
    unstable, and he was worried about his brothers driving habits.

[14]

When the appellant later met with his treatment team, he admitted he had
    not been entirely truthful with them. He told them he had gone to Huntsville
    with his roommate and the pair stayed in a hotel there for two nights, in
    breach of a term of his disposition. He again denied using substances and claimed
    it was his roommate who had been consuming alcohol.

[15]

At the Hearing, Dr. Prat stated his opinion that the appellant no longer
    constituted a significant threat to public safety. He questioned whether the diagnosis
    of a personality disorder continued to be valid and indicated that he did not
    believe the events of the Incident were attributable to symptoms of mental
    illness. Dr. Prat acknowledged that the appellant continued to display a lack
    of insight into his need for medication but noted that the appellant now says he
    will follow medical advice. Dr. Prat also acknowledged there was no therapeutic
    relationship between the appellant and the Schizophrenia Outpatient Clinic and that
    the appellant said his involvement in cognitive behavioural therapy would
    depend on his workload. Further, Dr. Prat noted that the appellant had not
    challenged his incapacity finding, and he still considers the appellant incapable
    of making his own treatment decisions.

[16]

Dr. Chaimowitz also testified at the Hearing. Although he had not been directly
    involved in the appellants clinical care, based on the appellants health
    records and the hospital files, in his professional opinion, the appellant met
    the test for significant threat to a medical certainty and would meet that
    test even without considering the stunt driving Incident.

[17]

In Dr. Chaimowitzs opinion, absent Board supervision, the appellant
    would stop taking medication and revert to behaviour similar to that of the
    index offences. He explained that the appellant suffers from a serious mental
    disorder as well as a substance abuse disorder, and had frequently indicated
    that he is not mentally ill and does not need any antipsychotic medication. As
    well, the appellant has been found incapable of consenting to treatment, a
    determination which includes a finding that the appellant has an inability to
    appreciate the reasonably foreseeable consequences of a decision or lack of
    decision with respect to treatment. Dr. Chaimowitz stated that the
    appellants risk is high and well over the threshold finding required for a
    finding of significant risk. In Dr. Chaimowitzs opinion, the Incident tends to
    support the appellants original diagnosis of a personality disorder.

[18]

Dr. Chaimowitz also stated that he agreed with Dr. Sheridans clinical
    opinion of the appellant. Dr. Sheridan and Ms. Katrina Bouchard prepared a
    psychological risk assessment report of the appellant prior to his annual Board
    hearing in 2019 (the 2019 Report). In the 2019 Report, the authors state that
    the appellant represents a high risk of reoffence, well over the threshold finding
    required for a finding of significant risk. Because the appellant had refused
    to participate in the assessment that underlay the 2019 Report, the authors opinion
    was formed based on the appellant's health records. In a further report dated
    February 25, 2021, Dr. Sheridan updated the 2019 Report. He noted that in the prior
    year, the appellant had enjoyed a period of stability, in large part because of
    the monitoring and support of the Forensic Outpatient Program (FOP). He
    affirmed that the appellants long-term risk for future violence is high,
    absent the oversight of the ORB and support of the FOB or other intensive case
    management program. Dr. Sheridan said that, given his limited insight, the
    appellant would likely discontinue psychiatric follow-up, become nonadherent to
    medication, and/or resume regular substance use if granted an absolute
    discharge. In such a scenario, the appellant would experience a significant
    deterioration in his mental status and the recurrence of his psychotic
    symptoms. Ultimately, the coalescence of risk factors might prompt the
    appellant to act out violently, as he did at the time of the index offences, with
    the potential victims likely to be those closest to him, including family
    members.

ANALYSIS

[19]

The sole issue on this appeal is whether the Board erred in finding that
    the appellant is a significant threat to public safety (the Board finding).

[20]

We remind ourselves of the standard of review applicable to the Board
    finding. Section 672.78(1) of the
Criminal Code
, R.S.C. 1985, c. C-46 provides
    that an appeal against disposition may be allowed only where the court is of
    the opinion that:

a)

it is unreasonable or cannot be supported by the evidence;

b)

it is based on a wrong decision on a question of law; or

c)

there was a miscarriage of justice.

[21]

Guidance on the application of that provision by a reviewing court is
    found at paras. 29-37 of
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779.
    In those paragraphs, the Supreme Court begins by observing that to make the difficult
    assessments of mental disorders and attendant safety risks, the Board is
    provided with expert membership and broad inquisitorial powers: at para. 29. The
    assessment of whether an NCR individuals mental condition renders him or her a
    significant threat to public safety calls for significant expertise: at para. 30.
    The Boards medical expertise, specialized knowledge, and advantage in
    observing witnesses, commands deference: at para. 37. A Board decision on significant
    threat is reviewed on a reasonableness standard; such a decision is
    unreasonable if not supported by reasons that can bear even a somewhat probing
    examination:

at paras. 33, 37.

[22]

Our examination of the Boards reasons leads us to conclude that there
    is no basis on which to interfere with the Board finding of significant threat.
    That finding is reasonable based on:

-

The Boards acceptance of Dr. Chaimowitzs clinical opinion that absent
    Board oversight, the appellant would likely fall away from treatment and experience
    psychotic symptoms like those he experienced at the time of the index offences;

-

The risk assessment report and the assessors opinion that the
    appellants risk for future violence remains high, without Board oversight;

-

The appellants treatment hesitancy and family concerns that the appellant
    might not remain treatment compliant. Although the appellant has recently
    indicated he would follow medical advice, his treatment adherence has been entirely
    externally motivated, and he has historically denied his mental illness and
    need for medication;

-

The appellants incapacity to consent to treatment, which entails a
    finding of an inability to appreciate the reasonably foreseeable consequences
    of treatment decisions;

-

The lack of an established therapeutic relationship between the
    appellant and the Schizophrenia Outpatient Clinic;

-

The appellants significant history of psychosis, including delusions
    and paranoia, which has led him to act out and cause significant harm to
    members of his family and others;

-

The appellants history of being able to appear normal despite his experiencing
    psychotic symptoms;

-

The Boards acceptance of Dr. Chaimowitzs opinion that the stunt
    driving Incident supports the appellants personality disorder diagnosis; and

-

The appellants dishonesty regarding the Incident.

[23]

We conclude on this matter by addressing two points pressed by the
    appellant.

[24]

First, the appellant stressed the significance of Dr. Prats opinion, as
    his treating psychiatrist, that he no longer poses a significant threat to
    public safety. We appreciate the significance of that evidence. However, it was
    for the Board to decide which of the clinical opinions it would accept: that of
    Dr. Prat or of Dr. Chaimowitz. Its reasoned acceptance of Dr. Chaimowitzs
    evidence fell squarely within its expertise and was amply supported by the
    evidence. It is entitled to deference by this court.

[25]

Second, the appellant contended that the Board erred in law in finding that
    the civil mental health system was inadequate to manage any risk that he might
    pose if granted an absolute discharge. This contention rests on the words in
    the second sentence of para. 61 of the Boards reasons that a higher threshold
    is required for continued hospitalization under the
Mental Health Act
,
    R.S.O. 1990, c. M.7. Assuming that those words are incorrect, it does not
    derogate from the Boards overall finding that the civil mental health system could
    not adequately manage the appellants risk on an absolute discharge should he
    discontinue treatment and decompensate. The Board finding on this matter is
    reasonable, given its findings that: at the time of the Hearing, the appellant
    had not yet established a therapeutic relationship with the Schizophrenia
    Outpatient Clinic, participation in which is voluntary in any event; while the
    appellant benefits from strong family support, his family had expressed concern
    about the possibility of an absolute discharge and their reluctance to rely on
    a Form 2 to return him to hospital; the appellants decompensation when unmedicated
    would likely be gradual, making it more difficult to detect; and, his history
    of appearing normal while experiencing the symptoms of psychosis.

DISPOSITION

[26]

Accordingly, the appeal is dismissed.

E.E. Gillese J.A.

David Brown J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hall v. Niagara (Police Services Board), 2022 ONCA 288

DATE: 20220412

DOCKET: C68415

Brown, Paciocco and Sossin JJ.A.

BETWEEN

John Hall

Plaintiff (Respondent/

Appellant by way of cross-appeal)

and

Regional Municipality of
    Niagara Police Services Board
,
Steven Magistrale
,
    David Biggar, Shawn Donovan and General Motors of Canada Company

Defendants (
Appellants
/

Respondents by way of cross-appeal
)

Eugene G. Mazzuca and Rafal Szymanski, for the appellants/respondents
    by way of cross-appeal

Peter I. Waldmann and Cizan Suliman, for the respondent/appellant
    by way of cross-appeal

Heard: March 16, 2022, by video conference

On appeal from the judgment of Justice Linda M. Walters,
    dated April 21, 2020, with reasons at 2020 ONSC 241, and on cross-appeal from
    the ruling on costs, dated August 14, 2020, with reasons at 2020 ONSC 4867.

REASONS FOR DECISION

[1]

The appellants Regional Municipality of Niagara Police Services Board
    (the Board) and Detective Steven Magistrale (Det. Magistrale) were found
    liable to the respondent, John Hall, for $686,216.92 in damages for false
    arrest, negligent investigation, and malicious prosecution. The action against two
    other named defendants was dismissed and the action against General Motors of
    Canada Company (GM) was settled out of court.

[2]

The civil suit arises out of a police investigation resulting in the
    arrest of Mr. Hall for attempted theft of a copper bar from the GM
    assembly plant in St. Catharines, Ontario, contrary to s. 463(d) of the
Criminal
    Code
, R.S.C. 1985, c. C-46. Mr. Hall was acquitted at trial.

[3]

The appellants allege the trial judge made a number of factual and legal
    errors in her judgment in the civil suit which warrant intervention by this
    court.

[4]

The respondent cross-appeals and challenges the trial judges
    calculation of costs in his favour.

[5]

For the following reasons, we dismiss both the appeal and the
    cross-appeal.

BACKGROUND FACTS

[6]

In the evening of December 21, 2009, the GM plant on Glendale Ave. in
    St. Catharines, Ontario, experienced an electrical outage caused by a
    flash explosion in an electrical cabinet. After ruling out other possible
    causes, the investigative team concluded that the outage was the result of an
    arc flash explosion which could have been caused by a person attempting to
    remove a copper bar from the electrical cabinet. This theory was consistent
    with earlier incidents of copper being stolen from the Glendale plant.

[7]

GM referred the matter to the police, and Det. Magistrale eventually
    became the lead detective in the police investigation. His investigation led to
    the arrest of Mr. Hall, who was a security guard with Securitas, a company
    which was contracted to provide security at the Glendale plant.

[8]

Mr. Hall was on duty at the time of the incident and had physical symptoms
    afterwards, which Det. Magistrale understood as consistent with Mr. Halls
    involvement in the incident.

[9]

Mr. Hall was terminated from his employment following the incident.

[10]

The
    criminal trial took place over eight days before Wilkie J. in July 2012. In his
    reasons, Wilkie J. stated that, while a close case, he was left with a
    sliver of doubt as to whether Mr. Hall was the person responsible for the
    attempted theft of the copper bar and thus found Mr. Hall not guilty.

[11]

Mr.
    Hall launched his civil action in July 2014.

[12]

The
    trial took place over 16 days in May and August 2019.

PROCEEDING BELOW

[13]

The
    trial judge found Det. Magistrale liable for malicious prosecution (and the Board,
    in turn, liable for the actions of its officer).

[14]

Applying
    the test as set out by McIntyre J. in
Nelles v. Ontario
, [1989] 2 S.C.R.
    170, at p. 204, the trial judge considered the four elements of malicious
    prosecution which must be established by the plaintiff:

1.

The proceedings must have been initiated by the defendant;

2.

The proceedings must have terminated in favour of the plaintiff;

3.

The plaintiff must show that the proceedings were instituted without
    reasonable cause; and

4.

The defendant was actuated by malice.

[15]

In
    this case, the first two elements were not contested. The trial judges
    analysis focused on the latter two elements.

[16]

The
    trial judge recognized that in the case of malicious prosecution involving a
    police investigation, a key question is whether the police officer responsible
    for the arrest had reasonable and probable grounds for the arrest. The trial
    judge also highlighted the subjective and objective aspects of reasonable and
    probable grounds.

[17]

The
    trial judge found that Det. Magistrale lacked objective reasonable and probable
    grounds given the incomplete and improper investigation against Mr. Hall and
    the challenges with the circumstantial evidence gathered in that investigation.

[18]

Further,
    the trial judge found that Det. Magistrale was not credible with respect to his
    assertion that he believed he had reasonable and probable grounds for the
    arrest. Therefore, she found that Det. Magistrale lacked subjective reasonable
    and probable grounds as well.

[19]

With
    respect to malice, the trial judge found that Det. Magistrale acted with an
    improper purpose in the prosecution of Mr. Hall. She found that after the Crown
    and the defence inaccurately answered a question posed by the criminal trial
    judge, Det. Magistrale did not meet his obligation of notifying the Crown of
    the correct answer, which would have assisted Mr. Hall in his defence. The
    trial judge also found that Det. Magistrale engaged in inappropriate conduct in
    high fiving a Crown witness, and that inaccuracies in his police notes and testimony
    went beyond carelessness and amounted to deliberate falsehoods.

[20]

In
    light of these findings, the trial judge concluded that Det. Magistrale, and by
    extension the Board, were liable to Mr. Hall for malicious prosecution.

[21]

The
    trial judge also found that the appellants were liable for negligent
    investigation and false arrest.

[22]

With
    respect to damages, the trial judge fixed the general damages at $50,000. She
    found that special damages of $178,484.55 were appropriate in light of Mr. Halls
    legal fees to defend himself on the criminal charges and to obtain disability
    benefits from his own insurer. The trial judge fixed Mr. Halls past loss of
    income at $395,777.

[23]

In
    light of her other findings, the trial judge did not address the
Charter
claim.

[24]

After
    comparing the bills of costs of the parties,
and
    applying the principles in r. 57.01 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, the trial judge awarded
    costs against the appellants in the amount of $275,000, inclusive of fees and
    disbursements.

ANALYSIS

[25]

The
    appellants raise various grounds of appeal which may be organized into three
    main categories.

[26]

First,
    the appellants argue that the trial judge misapplied the law relating to
    reasonable and probable grounds in the context of malicious prosecution.

[27]

Second,
    the appellants argue that the trial judge misapplied the law relating to malice
    in the context of malicious prosecution.

[28]

Third,
    the appellants argue that the trial judge erred in her award of damages.

[29]

Finally,
    the respondent cross-appeals against the trial judges award of costs.

[30]

Each
    issue is addressed in turn.

(1)

The trial judge made
    no reversible error in finding that Det. Magistrale lacked reasonable and
    probable grounds for the arrest

[31]

In
    order to have reasonable and probable grounds to arrest, an arresting officer
    must subjectively believe they have reasonable and probable grounds on which to
    base the arrest, and those grounds must be justifiable from an objective point
    of view:
R. v. Storrey
, [1990] 1 S.C.R. 241, at pp. 250-51.

[32]

The
    question of whether there are reasonable and probable grounds to arrest rests
    on the trial judge's factual findings, which are entitled to deference on
    appeal. However, the trial judge's ultimate ruling that those facts were insufficient
    to constitute reasonable and probable grounds is reviewable on a correctness
    standard:
R. v. Shepherd
,
2009 SCC 35
, [2009] 2
    S.C.R. 527, at para.
20
.

[33]

As
    indicated, the trial judge found that Det. Magistrale lacked both subjective
    and objective reasonable and probable grounds for the arrest of Mr. Hall.

[34]

The
    trial judges conclusion that Det. Magistrale lacked subjective reasonable and
    probable grounds was based on her assessment of Det. Magistrales
    credibility. She stated, at para. 114, Magistrales assertions that he
    subjectively believed he had probable grounds to arrest are not credible. How
    else can one explain the discrepancies, exaggerations, inaccuracies, and an
    outright lie in Magistrales written reports and affidavits.

[35]

Her
    finding that Det. Magistrale lacked objective grounds was based on her
    conclusion that the circumstantial case against him was insufficient. This
    conclusion was buttressed by Det. Magistrales concession that prior to
    interviewing Mr. Hall he did not have reasonable and probable grounds to arrest
    him. After closely examining the interview the trial judge concluded that nothing
    occurred during the interview to furnish additional grounds. In contrast to
    Det. Magistrales submission that he had a strong circumstantial case against
    Mr. Hall, the trial judge found that there was a very weak circumstantial
    case. She added, at para. 67, I cannot even find that a crime was committed,
    let alone that all the evidence pointed to the commission of any offence by
    Hall.

[36]

In
    arguing that the trial judge erred in concluding that reasonable and probable grounds
    for the arrest of Mr. Hall was lacking, the appellants focus on the trial
    judges conclusion that the objective ground for arrest was insufficient.
    Specifically, they argue that the trial judge erred by focusing mistakenly on
    Det. Magistrales failure to exhaust all avenues of investigation,
    contrary to this courts decision in
Tremblay v. Ottawa (Police Services
    Board)
, 2018 ONCA 497, 48 C.C.L.T. (4th) 1. The appellants also argue
    that the trial judge erred by failing to consider the whole of the evidence
    available at the time of the appellants arrest and by failing to consider or to
    give due weight to the criminal proceeding as a whole, including the criminal
    trial judges decision to acquit Mr. Hall on a sliver of doubt and the
    prosecutors decision to proceed with the prosecution.

[37]

We
    need not decide whether any of these alleged errors occurred because the
    subjective and objective components of the reasonable and probable grounds test
    are conjunctive. Both the subjective and objective elements must be satisfied
    for reasonable and probable grounds to exist:
Nelles v. Ontario
, [1989]
    2 S.C.R. 170, at p.193. As explained, the trial judges decision that Det. Magistrale
    lacked the requisite subjective grounds is a credibility finding. This
    credibility finding is entitled to deference. Given this finding that Det. Magistrale
    lacked subjective reasonable and probable grounds for the arrest, we see no
    basis for disturbing the trial judges conclusion with respect to the third
    element of the test for malicious prosecution.

[38]

This
    ground of appeal is dismissed.

(2)

The trial judge made
    no error in finding that Det. Magistrale acted on the basis of malice

[39]

The
    appellants argue that the trial judge erred in concluding that Det. Magistrale
    acted for improper purposes sufficient to meet the test for malice as the
    fourth element of the test for malicious prosecution.

[40]

The
    trial judge based her conclusion on the following facts: (1) Det. Magistrale
    failed to intervene in the criminal trial to correct flawed evidence that was
    put to the judge; (2) Det. Magistrale and one of the GM witnesses for the
    prosecution were seen giving each other a high five outside the courtroom at
    the criminal trial; and (3) Det. Magistrale deliberately lied in his characterizing
    of the evidence of Mr. Gatti, a key witness at trial.

[41]

Turning
    to the first finding, the appellants argue that Det. Magistrale had no duty to
    intervene in the criminal trial on the issue of whether something one of
    witnesses, Dr. Zimakas, could not recall was in the record before him. It was
    in fact there, in a report by Det. Magistrale. Det. Magistrale knew that Dr.
    Zimakas had that information in front of him as he testified but did not advise
    Crown counsel, defence counsel or the court of this fact during the trial.

[42]

Det.
    Magistrale had included the correct information in a report dated February 8,
    2011, which was provided to defence counsel. According to the appellants, the
    police are under no duty to interrupt a trial to correct evidence, and Det. Magistrales
    failure to do so was not improper.

[43]

In
    making her finding, the trial judge relied on expert evidence regarding the
    duty of a police officer in these circumstances and drew an inference that Det. Magistrale
    remained silent in order to aid the prosecutions case. Such an inference was
    available on the record, and we see no error in the trial judges reliance on
    this inference.

[44]

With
    respect to the high five, the trial judge relied on evidence from defence
    counsel, whose veracity she had no reason to doubt. She not only drew an
    adverse inference from this concerning conduct, but from Det. Magistrales
    subsequent denial of it. These inferences were available on the record.

[45]

Finally,
    Det. Magistrales mistaken summary of Mr. Gattis evidence  that Mr. Gatti had
    seen Mr. Hall washing his face in the washroom after the incident  was
    described by the trial judge, at para. 145, as a deliberate attempt to tailor
    the evidence against Mr. Hall.

[46]

We
    see no error in this finding, nor in the trial judges conclusion in light of
    these findings that Det. Magistrales prosecution of Mr. Hall was motivated by
    an improper purpose sufficient to meet the threshold of malice with respect to
    liability for malicious prosecution.

[47]

This
    ground of appeal is dismissed.

(3)

The trial judge did
    not err in the award of damages

[48]

The
    parties spent little time on the issue of damages in their oral submissions. In
    the appellants written submissions, they argue the trial judge erred in
    awarding special damages. Specifically, the appellants contend that the trial
    judges award of special damages in the amount of $106,603 to Mr. Hall to
    compensate for the cost of his challenge to the denial of disability benefits was
    beyond any connection to actions of the appellants.

[49]

The
    appellants submit that the trial judge failed to distinguish between the costs
    of the prosecution of Mr. Hall and the costs of the disability benefits
    dispute. The disability benefits dispute, they submit, was too remote to
    constitute a basis for special damages in this action.

[50]

The
    trial judge found that expenses compensated by the special damages, both those related
    to the prosecution itself and those related to the disability benefits dispute,
    would not have been incurred but for the malicious prosecution. This finding is
    entitled to deference and we would not disturb it.

[51]

The
    appellants also take issue with the damages for lost income, as they argue Mr. Halls
    termination was not connected to his arrest and prosecution.

[52]

The
    trial judge found that there was no evidence for why Mr. Hall would be
    terminated by his employer, Securitas, but for the charge against him from this
    incident. We see no basis to interfere with this finding.

[53]

This
    ground of appeal is dismissed.

The cross-appeal and the trial judges award of costs

[54]

The
    respondent as appellant in the cross-appeal appeals against the award of costs
    on the basis of the trial judges comparative approach to the determination of costs.

[55]

The
    plaintiff had sought $611,393.36 in costs. The defendants had suggested that $182,322.56
    plus disbursements and a 15 percent gross-up would be a reasonable amount. The
    trial judge considered the bills of costs of each party and properly considered
    the criteria under r. 57.01 of the
Rules of Civil Procedure
.

[56]

According
    to the respondent as appellant in the cross-appeal, the trial judge should not
    have compared in-house counsel rates of the Board with the rates of Mr. Halls
    counsel.

[57]

We
    would not give effect to this argument.

[58]

The
    trial judge did not simply compare the costs sought by each party. She accepted
    that the plaintiff would be expected to claim higher costs than the defendants.
    Nonetheless, she found the hours claimed in Mr. Halls bill of costs to be
    excessive, especially in light of the fact that the issues in the trial were
    not complex.

[59]

The
    respondent as appellant in the cross-appeal also claims that the trial judge
    neglected to include the harmonized sales tax (HST) in her calculation of the
    costs award. The trial judge stated that the $275,000 in costs was inclusive
    of fees and disbursements. There is no basis to conclude that she did not
    intend HST to be counted within this inclusive language, especially as the
    other costs figures cited in her judgment as the amounts sought by each party
    also included HST along with other fees and disbursements.

[60]

The
    discretion afforded to trial judges in determining costs is broad. An appellate
    court will only interfere with a costs award where the judge making the award
    committed an error in principle or the costs award is clearly wrong:
Hamilton
    v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

[61]

We
    see no error in the approach taken or in the result reached by the trial judge
    in this award of costs.

DISPOSITION

[62]

For
    the reasons given above, both the appeal and the cross-appeal are dismissed.

[63]

The
    respondent is entitled to costs on the appeal.

[64]

The
    respondent submitted that he would be seeking $54,542.61, all-inclusive, in
    costs for the appeal.

[65]

We
    must also consider that the appellants, as respondents by way of cross-appeal,
    were successful on the cross-appeal. They submitted that they would be seeking
    approximately $4,350.50 on the cross-appeal.

[66]

Taking
    the success of the parties and their submissions with respect to costs in mind,
    we fix those costs in favour of Mr. Hall at $50,000, all-inclusive.

David Brown J.A.

David M. Paciocco J.A.

L. Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Lin, 2022 ONCA 289

DATE: 20220411

DOCKET: C67451 & C67452

Gillese, Lauwers and Brown JJ.A.

DOCKET:
    C67451

BETWEEN

Her Majesty the Queen

Respondent

and

Ting Lin

Appellant

DOCKET: C67452

AND BETWEEN

Her Majesty the Queen

Respondent

and

Shuhao Shi

Appellant

Ricardo Golec, for the appellants

Howard Piafsky, for the respondent

Heard: March 30, 2022 by video conference

On appeal from the convictions entered on January 28,
    2019 and the sentence imposed on September 26, 2019 by Justice John R. McCarthy
    of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

I.        OVERVIEW

[1]

Following a trial by judge and jury, the appellants, Ting Lin and Shuhao
    Shi, were convicted of: (i) Count 1 - unlawful possession of a Class A
    precursor, gamma butyrolactone (GBL), for the purpose of producing a
    controlled substance, gamma hydroxybutyrate (GHB), contrary to s. 6.1 of the
Precursor
    Control Regulations
, SOR/2002-359, and s. 46 of the
Controlled Drugs
    and Substances Act
, S.C. 1996, c. 19, as amended (
CDSA
); and
    (ii) Counts 2, 3, and 4 - unlawfully possessing ketamine for the purpose of
    trafficking contrary to s. 5(2) of the
CDSA
.

[2]

They were each sentenced to terms of imprisonment of six years,
    calculated as follows: Count 2  6 years; Count 1  2.5 years concurrent; Count
    3  6 years concurrent; and Count 4  6 months concurrent.

[3]

The appellants appeal their convictions and seek leave to appeal their
    sentences.

II.       BACKGROUND

[4]

The material facts were not in dispute. Indeed, in their closing
    submissions defence counsel told the jury to believe the testimony of all the
    police officers: Everything youve heard from them is true and is accurate.

[5]

Lin rented a locker in a public storage facility in Toronto. Lin and Shi
    attended the locker on a number of occasions, several of which were captured by
    the premises video surveillance cameras. The police entered and searched the
    locker five times pursuant to a general warrant. The searches disclosed that
    the appellants were in actual or constructive possession of GBL, a controlled
    precursor, and ketamine, a controlled substance. The appellants were also
    subject to police surveillance on three separate occasions.

[6]

According to the expert evidence led at trial, ketamine is sold for both
    medical and illegal use. GBL is a precursor, or chemical compound, that is used
    to make GHB. While GHB has several legitimate uses, including the treatment of
    sleep disorders, it is also popular as an intoxicant and party drug, sometimes
    used to facilitate sexual assaults.

III.      THE STATUTORY REGIME.

[7]

In respect of a Class A precursor such as GBL, s. 6.1 of the
Precursor
    Control Regulation
provides that no person may possess a Class A
    precursor for the purpose of producing a controlled substance unless the person
    is the holder of a licence issued under specified regulations or a ministerial
    exemption issued under s. 56 of the
CDSA
. Section 46 of the
CDSA
makes it an offence to contravene a provision of a regulation made under the
CDSA
.

[8]

As to ketamine, s. 5(2) of the
CDSA
makes it an offence to
    possess for the purpose of trafficking a substance such as ketamine that is included
    in Schedule 1. However, there are permitted uses of ketamine, as it is included
    in the schedule to the
Narcotic Control Regulations
, C.R.C., c. 1041,
    made under the
CDSA
. A licenced dealer may possess ketamine, as well
    as produce, assemble, sell, provide, transport, send, deliver, import or
    export ketamine:
Narcotic Control Regulations
, ss. 3(1)(a)(i), 3(2)
    and 8(1).

IV.      ISSUES ON APPEAL.

[9]

At the hearing of the appeal, the appellants submitted that the trial
    judge made two reversible errors. First, he erred by failing to put to the jury
    the defence that the appellants honestly but mistakenly believed an
    authorization existed that permitted them to engage in their activities with the
    two substances, ketamine and GBL. Second, and relatedly, the trial judge failed
    to include a proper instruction in his jury charge on the meaning of mistake of
    fact and to connect the principles of mistake of fact to the evidence.

V.       THE
    PRE-CHARGE CONFERENCE, CLOSING SUBMISSIONS, AND CHARGE

[10]

Assessing the appellants primary submission that the trial judge failed
    to put the defence of mistake of fact to the jury first requires a brief review
    of how the issue was dealt with at trial.

[11]

In the first portion of the pre-charge conference, before counsel went
    to the jury with their closings, defence counsel informed the trial judge that there
    are no positive defences but certainly theres a defence position. A
    discussion about how the trial judge would charge the jury on the specific elements
    of the offences and the defence position on those offences did not take place
    until after closing submissions.

[12]

In his closing to the jury, counsel for Lin acknowledged that the jury
    probably recognized that the accused were dealing suspiciously. He told the
    jury that there was a single issue for their consideration: did the accused
    know that the chemicals they were moving around were unlawful? Counsel
    submitted that the Crown had not proven beyond a reasonable doubt that the
    accused knew they were dealing with unlawful drugs; and it was not for the
    accused to address whether the entities from whom they acquired the two
    substances were legitimately licensed to deal with them, instead that was
    something about which the Crown had to give evidence. Defence counsel also contended
    that the open way in which the accused carried on their activities were
    inconsistent with them having guilty minds.

[13]

In his closing to the jury, counsel for Shi took a similar approach. The
    issue, he submitted, was that the Crown had to prove that the accused dealt
    with the two substances unlawfully: The issue for you here is not only whether
    these substances are legal or illegal, it is whether the accused had knowledge
    of that status. Thats vital. Since under the regulatory regime governing the
    two substances there are circumstances in which a person can lawfully possess
    them, the Crown had to prove that the accused unlawfully possessed the two
    substances. Counsel contended that the accused certainly did not behave as if
    they knew they were dealing with illicit substances.

[14]

Counsel for Shi framed for the jury the key issue concerning the two accused
    in the following terms:

Given that ketamine is available in both legal and illicit
    forms you have to ask yourselves, given the circumstances of this case, which
    is all that matters to us, which was the ketamine in this case in the accuseds
    mind? Did the accused know they had illicit rather than illegal, or sorry, did
    they have illicit or legal ketamine in their possession? Now, as to the GBL, there
    are a number of issues here. Was the GBL legitimately obtained? That is a
    central issue for you to consider. Did either Mr. Shi or Mr. Lin have an import
    licence? Were told with an import licence one can legally import that
    substance. We heard no evidence on that point whatsoever.

This is a very significant issue in this trial with respect to
    Count 1 on the indictment before you. That requires the, Count 1 on the
    indictment requires at its starting point the unlawful possession of GBL.
Its the Crowns duty, the Crowns responsibility to prove that
    to you. In my submission, they have not done so.
You have not heard any
    evidence on that point. GBL can be lawfully possessed with a licence. [Emphasis
    added]

[15]

Following counsels closings, the pre-charge conference continued.
    Counsel for Lin argued that the charge needed to address the unlawful aspect
    of the possession of the substances by including a sentence or two calling the
    jurys attention to what unlawful means in the context of each of these
    substances. When the trial judge commented that he was at a loss for the
    wording counsel wanted included in the charge, defence counsel agreed to
    provide him with some wording, which they did. In the result, the trial judge
    included in the charge the language proposed by defence counsel.

[16]

The parties provided the trial judge with summaries of their positions
    for inclusion in the charge. The charges section on the joint defence position
    included the following language:

Neither Shuhao Shi nor Ting Lin knew that the unlawful drugs
    ultimately seized were unlawful. Shuhao Shi and Ting Lin were living normal
    lives in plain sight. Their actions are consistent with people who had nothing
    to hide. Their actions are inconsistent with guilty minds.

The Crown did not lead any evidence to refute the inference
    that Shuhao Shi, Ting Lin, or other mentioned persons or companies did not
    possess a legal licence to import GBL. This is a vital consideration when trying
    to arrive to near certainty that Shuhao Shi and Ting Lin were involved, and
    knew that they were involved, with unlawful drugs.

To what extent would Shuhao Shi and Ting Lin have known that
    the ketamine found was illicit ketamine as opposed to legal, lawful ketamine?

To what extent would Shuhao Shi and Ting Lin have known that
    the packages passing customs through at least two countries would have illicit
    rather than legal, lawful substances?

While some of the evidence is suspicious, most of the evidence
    is also consistent with innocent minds, and a lack of knowledge about illicit
    or unlawful drugs. The Crown has failed to prove that the only reasonable
    inference is one of guilt.

[17]

Counsel did not make any objections to the charge as delivered.

[18]

Accordingly, the record discloses that: (i) at trial appellants counsel
    expressly stated they were not advancing any positive defence; (ii) they were
    able to put to the jury their positions that since both substances could be possessed
    lawfully or unlawfully, the Crown was required to prove beyond a reasonable
    doubt that the appellants knew the chemicals they possessed and handled were
    unlawful; (iii) when they submitted to the trial judge that the charge should
    so inform the jury, the trial judge incorporated into his charge the language
    on the point drafted by defence counsel; and (iv) defence counsel were able to
    put to the jury the case that the way the appellants carried on their
    activities with the substances did not disclose guilty minds. Simply put, the
    jury was instructed in the fashion sought by the appellants. The appellants
    received the charge they desired.

VI.      DID THE
    TRIAL JUDGE ERR BY FAILING TO CHARGE THE JURY ON MISTAKE OF FACT?

[19]

As advanced on appeal, the submissions of the appellants contain both legal
    and evidentiary components. First, the appellants argue that, as a matter of
    law,
an element of the offences charged required the
    Crown to prove beyond a reasonable doubt that the appellants did not operate
    under a mistaken belief that the drugs found in the storage locker were
    acquired through a proper authorization
. Second, they further argue that
    there was evidence in the record that the appellants honestly believed they
    lawfully possessed the substances which, if believed, could lead a properly
    instructed jury acting reasonably to acquit them.

The submission based on the law

[20]

We do not accept the appellants submission that an element of the
    offences charged required the Crown to prove beyond a reasonable doubt that the
    appellants did not operate under a mistaken belief that the drugs found in the
    storage locker were acquired through a proper authorization. We agree with the
    Crown that the appellants position would require the Crown to prove, in
    effect, that an accused knew the law. That would run counter to the
    established jurisprudence, s. 19 of the
Criminal Code
, R.S.C., 1985,
    c. C-46, which provides that [i]gnorance of the law by a person who commits an
    offence is not an excuse for committing that offence, and s. 48(2) of the
CDSA
,
    which provides:

48(2). In any prosecution under this Act, the
    prosecutor is not required, except by way of rebuttal, to prove that a certificate,
    licence, permit or other qualification does not operate in favour of the
    accused, whether or not the qualification is set out in the information or
    indictment.

[21]

In
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37, the Supreme
    Court of Canada considered the elements of the offence under s. 95(1) of the
Criminal
    Code
of possession of specified firearms without being the holder of an
    authorization (or licence) and registration certificate for the firearm. The
    Supreme Court held that the
mens rea
for the Crown to prove under s.
    95(1) does not include knowledge that possession of the firearm in the place in
    question is unauthorized. The Court explained, at paras. 55 and 56:

[K]nowledge that one possesses a loaded restricted firearm,
    together with an intention to possess the loaded firearm in that place, is
    enough.  An individual who knowingly possesses a loaded restricted firearm
    in a particular place with an intention to do so will be liable to punishment
    for the offence provided for in s. 95(1) unless he or she holds an
    authorization or a licence under which the firearm may be possessed in that
    place.  Thus, a proper authorization or licence serves to negate the
actus
    reus
of the offence, thereby allowing someone who legitimately
    possesses a restricted firearm in a given place to avoid liability.

With respect, the Court of Appeal erred
    in law by improperly reading a defence of ignorance of the law into s.
    95(1).  In the majoritys view, the Crown had to prove that Mr. MacDonald
    knew or was wilfully blind to the fact that his possession was
    unauthorized.  Such a burden would compel the Crown to prove that an
    accused knew the conditions of his or her authorization or licence.  This
    amounts to requiring the Crown to prove that the accused knew the law
.
    [Emphasis added]

[22]

More recently, in
R. v. Fan
, 2021 ONCA 674, 75 C.R. (7th) 1, a
    case involving offences under the
CDSA
, this court observed, at para.
    47, that s. 19 of the
Criminal Code
applies to the existence and
    language of offence-creating provisions, as well as authorizations required for
    regulated activities, such as the possession of firearms and drugs. Writing
    for the court, Trotter J.A. stated, at para. 50:

To require the Crown to prove that the appellants understood
    the legal framework in which they operated confuses
actus reus
and
mens
    rea
requirements. In this context, a proper authorization or licence
    negates the
actus reus
of activity that would otherwise be
    illegal. Conceived as a
mens rea
component, it would require
    the Crown to prove that an accused person knew the conditions of their licence
    or authorization. As Lamer C.J. held in
R. v. Forster
, [1992]
    1 S.C.R. 339, at p. 346: [K]nowledge that ones actions are contrary to the
    law is not a component of the
mens rea
for an offence, and
    consequently does not operate as a defence. See also
R. v. Docherty
,
    [1989] 2 S.C.R. 941, at pp. 960-61.

[23]

In the present case, the appellants submission that for each offence the
    Crown was required to prove that the appellants knew they were dealing with
    substances, the possession of which was unauthorized, is tantamount to
    requiring the Crown to prove the appellants knew the law. That position was
    clearly rejected by the Supreme Court in
MacDonald
and this court in
Fan
,
    runs counter to s. 19 of the
Criminal Code
, and is contrary to s.
    48(2) of the
CDSA
, which is a specific application of s. 19 in the
    forensic setting of a prosecution.
[1]
Accordingly, we see no basis for the appellants legal submission.

The submission based on the evidence

[24]

The appellants further argue that there was evidence in the record that
    they honestly but mistakenly believed they lawfully possessed both substances
    which, if believed, could lead a properly instructed jury acting reasonably to
    acquit them and, therefore, the trial judge erred by failing to place before
    the jury a formal defence of mistake of fact.

[25]

The threshold question for putting a defence of mistake of fact to a
    jury is whether there is evidence on the record upon which a properly
    instructed jury acting reasonably could acquit if it believed the evidence to
    be true, in the sense of whether the evidence put forth is reasonably capable
    of supporting the inferences required to acquit the accused:
R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49 and 82. The principles
    constituting the air of reality test are well-known: (i) a single air of
    reality test applies to all defences; (ii) a trial judge must put to the jury
    all defences that arise on the facts, whether or not they have been
    specifically raised by an accused; (iii) a trial judge has a positive duty to
    keep from the jury defences lacking an evidential foundation; (iv) the test
    imposes a burden on the accused that is merely evidential, rather than
    persuasive; it is the burden of putting an issue in play; (v) that said, the
    evidential foundation can emanate from any source on the record; there is no
    requirement that the evidence be adduced by the accused; (vi) in applying the
    test, a trial judge considers the totality of the evidence and assumes the
    evidence relied upon by the accused to be true; (vii) the trial judge does not
    make determinations about the credibility of witnesses, weigh the evidence,
    make findings of fact, or draw determinate factual inferences but engages in a
    limited weighing to ascertain the field of factual inferences that could
    reasonably be drawn from the evidence; (viii) the air of reality test is not
    intended to assess whether the defence is likely, unlikely, somewhat likely, or
    very likely to succeed at the end of the day; the question for the trial
    judge is whether the evidence discloses a real issue to be decided by the jury,
    and not how the jury should ultimately decide the issue; and (ix) where
    evidence does not permit a reasonable inference raising a reasonable doubt on
    the basis of the defence, the defence must be kept from the jury:
Cinous
,
    at paras. 50-57, 86, 90 and 91.

[26]

Whether or not there is an air of reality to a defence is a question of
    law, subject to appellate review. It is an error of law to put to the jury a
    defence lacking an air of reality, just as it is an error of law to keep from
    the jury a defence that has an air of reality:
Cinous
, at para. 55.

[27]

Appellants counsel acknowledged that there was no evidence in the
    record about the existence of an authorization or licence for the appellants
    activities nor any direct evidence that the appellants believed their activities
    were lawful  indeed, the appellants did not testify at trial. However, the
    appellants submit that evidence about how they handled both substances provided
    a basis upon which to put a formal defence of honest but mistaken belief to the
    jury: the appellants did not attempt to hide their activities; Lin rented the
    storage locker in his own name; they did not attempt to shield themselves from
    the surveillance cameras at the storage facility; they visited the storage
    facility during the day and used the access code given to Lin; they did not
    drive in a manner that attempted any counter-surveillance moves; they moved
    items in and out of their cars in plain sight of others; and on one occasion
    they complained to the police about the efforts by someone  it turned out to
    be a police officer  to follow them. According to the appellants, the evidence
    about what they did and what they did not do provided an air of reality to a
    defence of mistaken belief that their activities were authorized under the
    regulatory regime governing the two substances.

[28]

We are not persuaded by this submission. Quite apart from the
    speculative nature of many of the inferences advanced by the appellants, their
    submission faces a very high hurdle. The conduct which they now argue should
    have led the trial judge to put before the jury a formal defence of mistake of
    fact  notwithstanding trial counsels disavowal of asserting any positive
    defence  is exactly the same conduct defence trial counsel reviewed at length
    with the jury in their closing submissions in their bid to persuade the jury to
    acquit the appellants on the basis that their conduct did not disclose guilty
    minds. However, the jury obviously was not persuaded by those submissions and
    convicted the appellants.

[29]

Having put before the jury, at some length, their positions that what
    they did and what they did not do failed to disclose guilty minds, and having secured
    the charge they sought, it is not now open to the appellants to challenge, in
    effect, the jurys rejection of their submissions about their state of mind made
    at the close of the trial in the absence of demonstrating that the jurys
    verdict was unreasonable. Yet, the appellants are not advancing unreasonable
    verdict as a ground of appeal.

[30]

Accordingly, in the circumstances of this case we see no merit in the
    appellants contention that the trial judge erred by failing to put formally to
    the jury a defence of honest but mistaken belief. We accept the Crowns
    submission, at para. 36 of its factum, that [d]espite the absence of any
    evidence suggesting an honest but mistaken belief, the trial judge fully and
    fairly put the defence position to the jury.

[31]

At the hearing, appellants counsel acknowledged that should we conclude
    the trial judge did not err in failing to instruct formally on a defence of
    mistaken belief, the appellants second ground of appeal regarding the content
    of the charge on such a defence would fall away. We therefore need not deal
    with that ground of appeal.

[32]

For these reasons, the appeals from conviction are dismissed.

VII.     SENTENCE APPEALS

[33]

The appellants seek leave to appeal from their sentences.

[34]

Below, the defence sought global sentences of four to five years imprisonment.
    The Crown asked for eight and one-half year sentences. The sentencing judge
    imposed sentences of six years imprisonment.

[35]

The appellants contend their sentences were harsh and excessive, the
    result of the trial judge placing too much emphasis on the use of GBH to
    facilitate sexual assaults and insufficient weight on the relatively young
    age of the appellants. (At the time of sentencing, Lin was 37 years old and
    Shi was 36.) The appellants also contend that the highest sentence imposed for
    one of the ketamine offences  6 years concurrent on Count 3  was excessive
    and harsh since ketamine is not in the same category as more dangerous hard
    drugs such as cocaine and heroin.

[36]

We see no basis for appellate interference with the sentences. The
    appellants have not persuaded us that the sentencing judge erred in principle,
    failed to consider a relevant factor, or imposed a sentence that was
    demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    paras. 44 and 52. On the latter point, this court stated in
R. v. Lin
,
    2020 ONCA 768, 97 C.C.C. (3d) 471, at para. 27, that a sentence of between five
    and eight years would normally be imposed for possession of ketamine for the
    purpose of trafficking. In those circumstances, the trial judges balancing of
    the various factors relevant to sentencing is entitled to deference.

VIII.    DISPOSITION

[37]

The appeals from conviction are dismissed. Leave to appeal the sentences
    is granted and the appeals from sentence are dismissed.

E.E. Gillese J.A.

P. Lauwers J.A.

David Brown J.A.

[1]

CDSA
s. 48(2) contains language similar to that found in s. 7(2) of the
former
Narcotic Control Act
, which provided:
In any prosecution under this Act the burden of proving
    that an exception, exemption, excuse or qualification prescribed by law
    operates in favour of the accused is on the accused, and the prosecutor is not
    required, except by way of rebuttal, to prove that the exception, exemption,
    excuse or qualification does not operate in favour of the accused, whether or
    not it is set out in the information or indictment. In
Perka v. The Queen.
, [1984] 2 S.C.R.
    232, the majority of the Supreme Court commented, at p. 258, on the effect of
    s. 7(2):
One who wishes to plead the
    possession of a licence or other lawful authority in response to a charge of
    importation bears, under s. 7(2), the burden of persuading the trier of
    fact that such licence exists.


COURT OF APPEAL FOR ONTARIO

CITATION: Lavallee v. Isak, 2022 ONCA 290

DATE: 20220407

DOCKET: M53215 (C69999)

Roberts J.A. (Motion Judge)

BETWEEN

Shania Lavallee and Justine Lavallee

Plaintiffs
(Respondents/Moving Parties)

and

Solit Isak

Defendant
(Appellant/Responding Party)

Charles R. Daoust, for the moving parties

Cedric Nahum, for the responding party

Heard: March 10, 2022 by video conference

REASONS FOR DECISION

Overview

[1]

The moving parties, Shania and Justine
    Lavallee (the Lavallees) seek an order that the responding party, Solit Isak,
    post security for their costs: $30,000 as security for the $20,000 cost award granted
    to them in their successful defamation action; and $10,000 for their estimated appeal
    costs. The Lavallees argument, in a nutshell, is that they should not be
    subjected to the costs of an unmeritorious appeal that they will not be able to
    compel Ms. Isak to pay.

[2]

Ms. Isak has filed no evidence in response to
    this motion. Her counsel submits that she is impecunious and does not dispute
    that she has insufficient assets to pay the Lavallees costs. There is no
    objection to the amount requested as security for costs or that it covers both
    the trial and estimated appeal costs. However, she submits her appeal is
    meritorious and brought in good faith, and no security of costs should
    therefore be ordered.

[3]

In the alternative, if security for costs is
    not granted, the parties agree that the Lavallees may have an extension of time
    to file a cross-appeal and to file their factum.

[4]

The following reasons explain why I conclude
    that it is fair and just in all the circumstances that Ms. Isak post security
    for the Lavallees costs of the trial and the appeal.

Background

[5]

The Lavallees action arises out of Ms. Isaks
    online comments and actions in response to a screenshot from a video created by
    the Lavallees, who are sisters. Shania Lavallee posted a video of her sister
    and Shanias partner playfighting for a group of her followers on the media
    platform, Snapchat. An isolated screenshot of one scene from the video was
    surreptitiously taken by one of Shanias followers and then circulated. The
    screenshot ultimately reached Ms. Isak.

[6]

The screenshot shows Justine Lavallee lying
    facedown on the ground. Shanias partner has Justines arms pinned behind her
    back and his knee placed on the middle of Justines back. According to the
    unchallenged evidence filed by the Lavallees and other witnesses who had seen
    the video on Snapchat while it was still available online, the posted video was
    typical of those that Shania regularly took and posted of her sister and Shanias
    partner playfighting. They stated that the screenshot was only a small part of
    the entire video that showed Justine and Shanias partner playfighting. No
    comments or remarks related to George Floyd, police brutality, and/or racism
    were spoken in the video.

[7]

Ms. Isaks reaction was immediate. She testified
    that she unsuccessfully tried to obtain a copy of the video and spoke to a few
    people who had viewed it; one of them erroneously reported that the words
    police brutality were said in the video. Although Ms. Isak did not see (and
    has never seen) the entire video, she denounced the video, the screenshot and
    the Lavallees as racist in over 100 social media posts. She stated that they
    were mocking the tragic death of George Floyd that had occurred only days
    before the video was posted. She also called them disgusting, said they
    deserve to rot in hell, and labelled them K K & K. She did not know and
    had never met the Lavallees before receiving the screenshot, but managed to
    discover their addresses, phone numbers, and employers. She launched an online
    campaign encouraging others to denounce the Lavallees and have them dismissed
    from their employment.

[8]

As the motion judge found at para. 6 of his
    reasons, Ms. Isaks online campaign was successful: the Lavallees lost their
    employment; Shania was investigated by the Ontario College of Teachers and the
    Ottawa Catholic School Board rescinded their offer of employment; their home
    was vandalized; their neighbours car was seriously damaged; and their friends
    and family, who had nothing to do with Shanias posting, were subjected to death
    threats and harassing phone calls and social media messages.

[9]

In response to the unexpected viral and
    intense backlash that the screenshot had caused, Shania posted an apology
    including that she did not mean any disrespect, but she could see how the video
    could be taken out of context.

[10]

The Lavallees through their counsel attempted
    to resolve matters with Ms. Isak. In response, Ms. Isak intensified her
    campaign against them. The Lavallees commenced an action against Ms. Isak,
    seeking damages and a permanent injunction with respect to her postings. Ms.
    Isak defended the action, initially including and then abandoning a
    counterclaim. The Lavallees brought a motion for summary judgment and filed
    affidavits. Ms. Isak was examined for discovery but did not examine the
    Lavallees. Subsequently, Ms. Isak filed a very short affidavit in response to
    the motion for summary judgment that essentially adopted the contents of her
    statement of defence and examination for discovery.

[11]

The motion judge concluded that this was an
    appropriate case for summary judgment because there were no material facts in
    dispute and noted Ms. Isak did not challenge the appropriateness of summary judgment.
    He accepted the Lavallees unchallenged evidence concerning the nature and
    contents of the video. It was not contested that Ms. Isak was the author of her
    impugned statements, the statements were about the Lavallees, and her
    statements were published to third parties on social media accounts. He further
    found that Ms. Isaks statements denouncing the Lavallees as racist tended to lower
    the Lavallees reputations in the eyes of a reasonable person. Following
Grant
    v. Torstar
, 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 28-29, he
    determined that the three elements of defamation were established. He therefore
    concluded that Ms. Isaks postings were defamatory of the Lavallees.

[12]

The motion judge then turned to Ms. Isaks
    defences. He rejected Ms. Isaks defences of justification and fair comment. He
    noted that Ms. Isak had never seen the video and had only seen the screenshot
    before sharing it on social media and denouncing the screenshot, video, and the
    Lavallees as racist. He concluded that the defences were unavailable primarily
    because Ms. Isak did not establish an adequate factual foundation for her
    comments that the Lavallees actions and their video were racist, noting that
    she did not see the video. He rejected that Shanias posted apology represented
    an admission of guilt.

[13]

The motion judge allowed the motion for
    summary judgment and granted judgment to the Lavallees in the amount of $50,000
    to each party, plus costs. He noted that there was a real possibility that the
    Lavallees would not receive any compensation given that Ms. Isak was unemployed
    as of her examination for discovery in December 2020 and likely did not have
    significant financial resources to pay the judgment and costs awarded.

[14]

Ms. Isak appealed. The main thrust of her
    appeal is that the motion judge erred in finding that there was no provable,
    factual basis supporting her opinion that the Lavallees were racist because, in
    her view, the screenshot and their video mocked the tragic death of George
    Floyd.

Analysis

Security for costs

[15]

This motion is brought pursuant to rule 61.06(1)(a)
    and (c) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, which
    provide as follows:

In an appeal where it appears that,

(a) there is good reason to believe that the appeal is
    frivolous and vexatious and that the appellant has insufficient assets in
    Ontario to pay the costs of the appeal;

or

(c) for other good reason, security for costs should be ordered,

a judge of the appellate court, on motion by the respondent,
    may make such order for security for costs of the proceeding and of the appeal
    as is just.

[16]

The ordering of security for costs is
    discretionary and not routine. It involves the consideration of the criteria
    under rule 61.06(1) and requires the overarching assessment of whether it would
    be just to order security, having regard to the particular circumstances of the
    case and the interests of justice:
Yaiguaje v. Chevron Corporation
,
    2017 ONCA 827, 418 D.L.R. (4th) 679, at paras. 18-19, 22. As court further
    noted in
Yaiguaje
, at para. 25, as each case must be considered on its
    own facts, [i]t is neither helpful nor just to compose a static list of
    factors to be used in all cases in determining the justness for a security for
    costs order.

(i)

Rule 61.06(1)(a)

[17]

I agree that the provisions of rule 61.06(1)(a)
    are met. As earlier noted, it is conceded that Ms. Isak has insufficient assets
    to pay the Lavallees costs. Moreover, there is good reason to believe that Ms.
    Isaks appeal is frivolous and vexatious.

[18]

I am not required to determine that Ms. Isaks
    appeal
is
frivolous and vexatious; I must only be satisfied that there
    is good reason to believe that it is:
Schmidt v. Toronto Dominion Bank
(1995), 24 O.R. (3d) 1 (C.A.), at para. 16. Relevant factors to be considered
    in my analysis include those set out in the following oft-cited passage from
Schmidt
,
    at para. 18:

The apparent merits of the appeal, the presence or absence of
    an oblique motive for the launching of the appeal, and the appellants conduct
    in the prosecution of the appeal will be relevant to a determination of whether
    there appears to be good reason to believe that the appeal is frivolous and
    vexatious. No doubt, in specific cases, other factors will also be relevant.

[19]

The interpretation of frivolous and
    vexatious is not defined under the
Rules of Civil Procedure or the Courts
    of Justice Act
, RSO 1990, c C.43 nor has any rigid categorization arisen
    in the case law. Judicial treatment of these terms is however consistent. A frivolous
    appeal has been interpreted as meaning one readily recognizable as devoid of
    merit, as one having little prospect of success:
Pickard v. London Police
    Services Board
, 2010 ONCA 643, 268 O.A.C. 153, at para. 19. A vexatious
    appeal includes one taken to annoy or embarrass the opposite party or
    conducted in a less than diligent or vexatious manner:
York University
    v. Markicevic
, 2017 ONCA 651, at para. 33;
Henderson v. Wright
,
    2016 ONCA 89, 345 O.A.C. 231, at para. 20;
Pickard
, at para. 19;
Schmidt
,
    at para. 20. This may include an oblique motive for launching the appeal,
    such as to harm a party or delay the proceedings or a given result:
Heidari
    v. Naghshbandi
, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 10;
Schmidt
,
    at para. 20;
York University
, at paras. 33-34. It also may include a
    failure to comply with the rules, court orders and costs orders, including
    filing out of time and only when forced to:
Pickard
, at para. 25;
Schmidt
,
    at para. 20;
York University
, at para. 36;
Henderson
, at
    para. 20.

[20]

Ms. Isak says that her appeal is meritorious.
    She accepts that the motion judge applied the correct tests for the defences of
    justification and fair comment and acknowledges that those tests required her
    to demonstrate a factual foundation for her impugned statements. However, she maintains
    that the motion judge erred by conflating opinion with fact, and that the
    screenshot provided the factual basis for her opinion that the Lavallees were
    racist because it was open to her to describe the screenshot in the way that she
    did. Ms. Isak contends that the screenshot speaks for itself.

[21]

The difficulty with Ms. Isaks position is
    that her appeal essentially amounts to a challenge of the motion judges
    factual findings that were open to him to make on the record before him, contain
    no apparent error, and would therefore be owed deference on appellate review. Apposite
    are this courts comments in
Henderson
, at para. 16: This appeal does
    not raise any arguable error in law, and challenges findings of fact and credibility
    for which the trial judge set out detailed, facially sound reasons. This court
    has held that such appeals appear to have no merit (citations omitted).

[22]

In my view, Ms. Isak has not put forward an
    arguable basis to interfere with the trial judges findings. As the motion
    judge found, Ms. Isak based her views of the entire video and the Lavallees
    actions on an out of context screenshot and on others erroneous hearsay
    observations. Moreover, her impugned statements were not restricted to the screenshot:
    they included the video that she had never viewed. She anchored her statements that
    the Lavallees were racists on a misapprehension of what the video contained,
    including the erroneous allegation that it contained the words police
    brutality. The motion judge found that Ms. Isak did not and could not provide
    a factual foundation for her opinion that the Lavallees and their video were
    racist, because she had not seen the video, could not say what it contained,
    and the screenshot was taken out of context.

[23]

Importantly, as the motion judge found, Ms.
    Isak did not provide evidence of what the video contained to counter the
    Lavallees and their affiants evidence that the motion judge accepted. Her speculative
    assumption of what the video depicted, based on erroneous hearsay information and
    an isolated screenshot, was at odds with the evidence that the motion judge
    accepted to be the correct, factual description of what the video showed,
    including the screenshot. This was not a difference of opinions, as Ms. Isak
    argues, but evidence of the factual content of the video from witnesses who saw
    the video that the motion judge was entitled to accept. In my view, there is no
    apparent basis to interfere with the motion judges factual findings.

[24]

Ms. Isak contends that her appeal is not
    vexatious because she has brought and pursued her appeal in good faith, and not
    for any oblique purpose or to annoy or harass the Lavallees.

[25]

In considering this point, it is important not
    to conflate an appellants subjectively and firmly held belief in the rightness
    of an appeal with good faith. To be sure, deliberately pursuing an appeal in
    bad faith, for an oblique purpose, or to annoy, harass or harm are all indicia
    of a vexatious proceeding. However, so, too, is the failure to follow rules of
    procedure and court orders and the failure to pursue an appeal responsibly and with
    diligence:
Henderson
, at para. 20;
York
, at para. 36;
Schmidt
,
    at para. 20. In those circumstances, it can hardly be said that an appeal is
    being pursued in good faith. Rather, there is good reason to believe it is
    vexatious.

[26]

In the present case, there is good reason to
    believe that the appeal is vexatious. Ms. Isak did not pursue her appeal or
    follow the rules with diligence which resulted in unexplained and unnecessary delay
    and costs.

[27]

The motion judges reasons for decision were released
    on October 7, 2021. Ms. Isak did not serve her notice of appeal until November
    10, 2021 and then required the consent of the Lavallees counsel to the late
    filing of the notice on November 15, 2021. She failed to perfect her appeal by
    the deadline under the Rules. As a result, the Registrar issued a Notice of
    Intention to dismiss the appeal for delay dated December 20, 2021, which
    required perfection of the appeal on or before January 11, 2022. Ms. Isak again
    required the consent of the Lavallees counsel to the late filing of her appeal
    book, compendium, and factum on January 14, 2022.

[28]

With respect to the Lavallees motion for
    security for costs, the notice was served on November 24, 2021. However, the
    motion was not brought because of Ms. Isaks delay in perfecting her appeal.
    The original return date for the motion on March 2, 2022 was further adjourned
    by this court at Ms. Isaks last minute request because she did not realize
    the motion was set for that day although motion materials had been served on
    February 16, 2022. The court ordered Ms. Isak to pay costs of $500.

[29]

The appeals lack of merit combined with Ms.
    Isaks less than diligent pursuit of this appeal that resulted in unnecessary
    delay and costs provide good reason to believe the appeal is frivolous and
    vexatious:
Henderson
, at para. 20.

(ii)

Rule 61.06(1)(c)

[30]

If I am wrong in my analysis and conclusion with
    respect to rule 61.06(1)(a), I am of the view that the Lavallees are entitled
    to security for costs under rule 61.06(1)(c) which, as noted above, provides
    that security may be ordered for other good reason.

[31]

Jamal J.A. (as he then was), sitting as a
    motion judge, explored what other good reason means in
Heidari
,
at para. 23:

Although the list of reasons justifying security under this
    residual category is not closed, the other good reason must be: (1)
    consistent with the purpose for ordering security  namely, that the respondent
    is entitled to a measure of protection for costs; and (2) fairly compelling,
    because the residual category is only engaged where the respondent cannot meet
    the requirements of rules 61.06(1)(a) or (b). [Citations omitted.]

[32]

As this court observed in
Henderson
,
    at para. 28, the other good reason criterion balances the need to ensure an
    appellant is not denied access to the courts, with the respondents right to be
    protected from the risk the appellant will not satisfy the costs of the
    appeal.

[33]

In my view, there are compelling reasons here to
    order security for costs.

[34]

For the reasons earlier noted, I am of the
    view that the appeal is without merit. As Ms. Isak concedes that she does not
    have sufficient assets to satisfy the Lavallees costs, it will prove
    practically impossible for them to compel payment of their costs. There is no
    evidence, however, that Ms. Isak does not have any means to pay costs.

[35]

In balancing the equities here, I am mindful of
    this courts caution in
Yaiguaje
, at para. 23, that [c]ourts must be
    vigilant to ensure an order that is designed to be protective in nature is not
    used as a litigation tactic to prevent a case from being heard on its merits.
    That is not the case here.

[36]

There is no indication that an order for
    security for costs will effectively bring this appeal to an end. While I
    appreciate that it may prove difficult for Ms. Isak to post the security for
    costs requested by the Lavallees, she has not filed any evidence that she will
    be unable to do so. While it is conceded that she has insufficient assets to
    pay costs, Ms. Isak filed no evidence concerning her present employment or
    financial status or ability to raise or borrow funds. I also note the evidence
    from Shania Lavallees affidavit on the motion for summary judgment and Ms.
    Isaks examination for discovery that Ms. Isak previously had recourse to the
    GoFundMe website to raise donations for her legal costs at trial. Moreover, her
    counsel did not argue that she would be unable to post security; rather, she
    would need some time to do so.

[37]

The Lavallees motion for security for their
    costs is not a litigation tactic. They have incurred considerable expense
    to-date. As Shania Lavallee indicated in her uncontroverted affidavit filed on
    this motion, the Lavallees actual trial costs were more than double the costs
    awarded. Like Ms. Isak, the Lavallees are of modest means and their employment
    prospects were undone by Ms. Isaks actions that the motion judge characterized
    as inexcusable. As the motion judge found: [Ms. Isak] demonstrated
    complete disregard for the well-being of another human being and blindly
    embarked on a brutal and unempathetic campaign to destroy the lives of two
    young women.

[38]

Considering the lack of the appeals merit and
    Ms. Isaks delay in pursuing it, it would be unfair to expect the Lavallees to
    shoulder the burden of the costs of an unmeritorious appeal.

[39]

Even if I were to accept that Ms. Isak is
    impecunious, given my serious reservations about the merits of her appeal, it would
    be unfair to allow Ms. Isak to proceed in such circumstances with impunity.
    Doing so would cause the Lavallees to incur significant further costs
    themselves, without Ms. Isak having to face the normal consequences of costs if
    she is unsuccessful:
Schmidt
, at para. 17.

Conclusion

[40]

Stepping back and looking at all of the
    circumstances, I am persuaded that the justice of the case requires that
    security for the Lavallees estimated costs of the appeal in the amount of $15,000
    should be ordered to be paid into court by Ms. Isak. The circumstances of
    this case warrant security for both the trial and the appeal costs; however,
    the reduced amount recognizes Ms. Isaks limited financial circumstances.

[41]

In this event, the parties agree that the
    appeal shall be stayed until the security is paid, and that if the security is
    not paid by June 8, 2022, the appeal date shall be vacated, and the moving
    parties may move to dismiss the appeal under rule 61.06(2).

Disposition

[42]

For these reasons, order to go as follows:

1.

The appeal is stayed until security for costs is posted by Ms. Isak;

2.

Ms. Isak shall post security for costs in the amount of $15,000 by June
    8, 2022;

3.

If Ms. Isak fails to post the ordered security by June 8, 2022, the
    appeal date of June 27, 2022, shall be vacated and the Lavallees may move to
    dismiss the appeal under rule 61.06(2).

[43]

The Lavallees are entitled to their costs of
    this motion from Ms. Isak in the amount of $4,400, inclusive of disbursements
    and applicable taxes, payable forthwith.

L.B. Roberts J.A


COURT OF APPEAL FOR ONTARIO

CITATION: Jergovic (Re), 2022 ONCA 291

DATE: 20220412

DOCKET: C69836

Roberts, Miller and Zarnett JJ.A.

IN THE MATTER OF: Nikolas
    Jergovic

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Michael Davies, for the appellant

Alysa Holmes, for the respondent, Attorney General of
    Ontario

Hilary Chung, for the respondent, Person in Charge of Brockville
    Mental Health Centre

Heard: March 31, 2021 by video conference

On appeal from the disposition of
    the Ontario Review Board, dated June 4, 2021, with reasons dated June 24, 2021,
    reported at [2021] O.R.B.D. No. 1378.

REASONS FOR DECISION

[1]

Nikolas Jergovic has
    been under the supervision of the Ontario Review Board since December 21, 2010,
    when he was found not criminally responsible on account of mental disorder
    (NCR) for arson. He set fire to a newspaper distribution box and the police
    reported seeing him fanning and blowing on the flames. When the police
    attempted to arrest him, he actively resisted, attempted to punch one officer,
    kicked at them, and tried to run away. When placed handcuffed in the back of
    the police cruiser, he kicked at the cruisers rear right window, separating it
    from the frame.

[2]

Since June 2018, Mr.
    Jergovic has been alternatively living in an eight-hour supervised group home
    and a twenty-four-hour supervised residence, while followed by his treatment
    team at the Brockville Mental Health Centre. He has been under a conditional
    discharge order since June 2019.

[3]

Mr. Jergovic appeals
    the Boards most recent disposition, which continues the conditional discharge.
    He seeks an absolute discharge. Alternatively, he seeks a new hearing before a
    differently constituted panel. He submits that the Board erred in its analysis
    of the issue of whether he represented a significant risk to the public and that
    its decision was unreasonable because the evidence did not support the
    conclusion that he posed a significant risk to public safety.

[4]

The standard of
    appellate review is well established. An appellate court may only allow an
    appeal from a Boards disposition under s. 672.78(1) of the
Criminal
    Code of Canada
, R.S.C. 1985, c.
    C-46 where the Boards disposition is unreasonable or cannot be supported by
    the evidence, it is based on a wrong decision on a question of law, or there
    was a miscarriage of justice.

[5]

While we agree that the
    Board could have organized and written its reasons in a clearer fashion, when
    they are read as a whole and in light of the record, we are not persuaded that
    the Board erred in its analysis and conclusion that Mr. Jergovic continued
    to pose a significant risk to public safety. Moreover, the Boards disposition
    is amply supported by the record that it reviewed and referenced.

[6]

We are satisfied that the
    Boards reasons are able to withstand a somewhat probing examination, and
    that the decision is internally coherent, demonstrates a rational chain of
    analysis and is justified in relation to the facts and the law and falls
    within the range of possible outcomes:
Sim (Re)
, 2020 ONCA 563, at para. 68;
Nguyen
    (Re)
, 2020 ONCA 247, 387 C.C.C.
    (3d) 13, at para. 28;
Canada (Minister of Citizenship and Immigration)
    v.

Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 84-86.

[7]

There is no issue that
    the Board referenced the correct test. In assessing whether Mr. Jergovic posed
    a significant risk to public safety, the Board was required to analyze whether
    the evidence disclosed a significant or real risk to the community should Mr.
    Jergovic be released. Mr. Jergovic need not prove lack of dangerousness and,
    absent a finding of significant risk, is entitled to an absolute discharge. As
    a result, the Board had to assess the likelihood of that risk and the
    seriousness of the harm that would result if the risk materialized. As the
    Board also recognized, there must be a real, foreseeable risk that is more than
    speculative and that the consequent physical or psychological harm must be
    serious and criminal in nature: see
Winko v. British Columbia
    (Forensic Psychiatric Services)

[1999] 2 S.C.R. 625, at paras. 51, 54 and 57;
Carrick
    (Re),
2015 ONCA 866, 128 O.R.
    (3d) 209, at paras. 16-20;
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8.

[8]

Mr. Jergovic maintains
    that while the Board referenced the correct test, it did not apply it because
    it erred in its consideration of both the likelihood of the risk materializing
    and the seriousness of the harm that might occur, conflating significant risk
    with enhanced risk, which is not the test. According to Mr. Jergovic,
    the Boards overemphasis on his likelihood of relapse into drug abuse resulted
    in its failure to grapple with the relevant question of whether there was a
    real, foreseeable risk that he would cause physical or psychological harm, even
    if he relapsed.

[9]

We disagree.

[10]

The Boards summary of
    its conclusion on significant risk is set out in paragraph 46 of its reasons:

The panel is satisfied should [Mr. Jergovic]
    be granted an absolute discharge, it is a virtual certainty he will return to
    crack cocaine use. The use of crack cocaine will negatively impact his mental
    state and will enhance his threat to public safety. The panel is satisfied this
    threat is not speculative, but real.

[11]

This paragraph must be
    read in the context of the Boards thorough review of the constellation of
    relevant risk factors and the broad range of relevant evidence that the Board
    was required to examine, including the recommendations provided by Dr. Gray:
Winko
, at para. 61;
Mott (Re)
,
2019 ONCA 560, at para.
    10;
McAnuff (Re)
, 2020 ONCA 676, at para. 17
. The Board examined Mr. Jergovics long psychiatric
    history and diagnoses that included schizophrenia, cocaine and alcohol use
    disorders, Unspecified Disruptive, Impulse Control, and Conduct Disorder, and
    the fact that his mental illness has never been under complete control despite
    adherence to medications. The Board also considered his significant struggles
    with substance abuse and its destabilizing effect (including the index offence
    and his elopement from the hospitals grounds during the reporting year), his
    difficulties in transitioning to and numerous evictions from supervised housing,
    his lengthy criminal record that includes previous convictions for arson, pointing
    a firearm, and break and enter,
[1]
and which culminated in the index offence in 2010, his long history of anger
    management problems from his teens, his assault of a co-patient, his verbal
    aggressions (though the Board noted that they occurred some time ago), and
    finally his threat to smother a nurse with a rag because voices were telling
    him to do so.

[12]

We do not agree that
    the Boards reliance on Dr. Grays evidence concerning the cascade of factors
    that supported his opinion of significant risk of harm was misplaced or that
    Dr. Grays opinion was speculative. Dr. Gray testified that if he were granted
    an absolute discharge, Mr. Jergovic would inevitably relapse into drug abuse
    and that

the
    sequelae of disengagement with his treatment team and his medications would
    probably be followed by decompensation, psychosis, and unlawful conduct. While
    Dr. Gray could not say that it was even likely that the unlawful conduct would
    be very seriously violent, he did opine that the next step of Mr. Jergovic committing
    an offence of any sort was quite high and might include some kind of
    criminal harassment  a minor assault, a mischief, something like that. Dr.
    Gray also referenced Mr. Jergovics recent threat to smother a nurse which was
    de-escalated because he was within a controlled setting. The risk of this kind
    of unlawful conduct meets the threshold for risk of significant harm that is
    neither a minuscule risk of a grave harm nor a high risk of trivial harm:
Winko
, at para. 57.

[13]

Dr. Grays opinion was
    firmly grounded in the evidence. Notably, this evidence included the sequence
    of events that led to Mr. Jergovics commission of the index offence. The
    historical record demonstrates that Mr. Jergovics very serious substance abuse
    issues exacerbate the symptoms of his illness that are not completely
    controlled by medications and have caused him previously to engage in criminal
    activity and aggressive behaviour. Recently, they have led to numerous
    evictions from supervised housing and his elopement from the hospital grounds.

[14]

It is also important to
    note that the Board reviewed and weighed the very positive and encouraging
    evidence of Mr. Jergovics progress over the last few years: he has a very
    supportive relationship with members of his family, he has good insight into
    his illness and the need for medication, and he is engaged with his treatment
    team. He is compliant with medications and directions and, absent relapse into
    substance abuse, would continue to take his medications. He is also not
    physically violent and initially his residence in supervised housing went
    extremely well. All of these factors bode well for the future and underlie the
    treatment teams plan for Mr. Jergovic to live in the community, initially with
    support and supervision, until he has developed the skills to live more
    independently.

[15]

However, the Board concluded that at the
    time of the hearing, Mr. Jergovic posed a significant risk to public safety and
    that a conditional discharge was the least onerous and most appropriate
    disposition. This was a decision that was within the range of reasonable
    outcomes. We see no basis for appellate intervention.

Disposition

[16]

As a result, we dismiss
    the appeal.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.

B. Zarnett J.A.

[1]

The Board also referenced a number of withdrawn charges on
    Mr. Jergovics criminal record. We agree that without the factual underpinnings
    of those charges, those charges were irrelevant. However, we are not persuaded,
    and it was not forcefully argued, that the Boards reference to those charges was
    material to or tainted its decision.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. St. Pierre, 2022 ONCA 293

DATE: 20220413

DOCKET: C69646

van Rensburg, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrance St. Pierre

Appellant

Erec Rolfe, for the appellant

Maria Gaspar, for the respondent

Heard: in writing

On appeal from the sentence imposed by Justice Joe P.P. Fiorucci
    of the Ontario Court of Justice on June 30, 2021.

REASONS FOR DECISION

[1]

Mr. St. Pierre seeks leave to appeal the sentence imposed on him on his
    conviction for possession of cocaine for the purpose of trafficking. On consent
    of the respondent, we would grant leave to appeal and reduce the sentence.

[2]

The problem with the sentence imposed arose from an unfortunate
    miscommunication within the offices of the Public Prosecution Service of
    Canada. The prosecutions intention had been to propose a joint submission for
    a conditional sentence. However, that position was not properly communicated to
    the trial counsel. At the sentencing hearing, the prosecution actually sought a
    sentence of nine months. The defence sought a conditional sentence. The
    sentencing judge ultimately imposed a custodial sentence of six months.

[3]

As soon as the error was identified, the prosecution advised the appellants
    counsel, consented to bail for the appellant, and then co-operated in the
    expeditious hearing of the appeal.

[4]

We agree that in the particular personal circumstances of the appellant,
    a conditional sentence was appropriate. The appellant trafficked to support his
    drug addiction. He has taken steps to address his addiction. He is gainfully
    employed and has two young children. Further, the appellant pleaded guilty and
    was remorseful for his conduct.

[5]

For these reasons, we grant leave to appeal sentence, set aside the sentence
    imposed, and substitute a conditional sentence of 150 days on the terms set out
    in Appendix III of the joint factum.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

L. Sossin J.A.