COURT OF APPEAL FOR ONTARIO

CITATION:
Echelon
    Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763

DATE: 20211026

DOCKET: M52789

Miller J.A. (Motion
    Judge)

BETWEEN

Echelon Environmental
    Inc. and Robert Rainford

Responding Parties

and

Glassdoor Inc.

Responding Party

and

John Doe

Moving Party

Julia Lefebvre, for the moving party

Christine L. Lonsdale, for the responding parties, Echelon
    Environmental Inc. and Robert Rainford

Jonathan G. Colombo and Amrita V. Singh, for the
    responding party, Glassdoor Inc.

Heard: October 7, 2021 by video conference

ENDORSEMENT

[1]

John Doe brings this motion to extend the time
    to serve and file a Notice of Appeal from an order of Dow J., dated June 7,
    2021, which denied his standing to appear as an anonymous party and make
    submissions on an Anti-SLAPP motion.

[2]

For the reasons that follow, the motion is
    dismissed.

Background

[3]

An anonymous poster, identifying as a former
    employee of Echelon, posted an online review of Echelon on the Glassdoor
    website. Echelon responded by bringing a defamation action against Glassdoor
    and the anonymous poster, referred to as John Doe. The identity of John Doe has
    not been revealed to either Echelon or the courts.

[4]

Glassdoor took the position that Does post was
    expression relating to a matter of public interest, protected by s. 137.1(3) of
    the
Courts of Justice Act
, R.S.O.
    1990, c. C.43
. Relying on this section, Glassdoor brought an
    Anti-SLAPP motion to have Echelons action dismissed.

[5]

Counsel for Doe advised in March 2021 that she
    intended to file a factum and make oral submissions on the Anti-SLAPP motion.
    Echelon objected.

[6]

The parties appeared before Dow J. on June 7,
    2021. Dow J. was unable to hear the substance of the Anti-SLAPP motion that
    day, and he adjourned it to July 28. He was able to deal with two
    preliminary matters: a sealing order and the issue of Does right of
    participation. Dow J.s endorsement noted that Doe had not filed a Notice of
    Intent to Defend, and ruled that Doe had no standing and could not be heard
    from in the Anti-SLAPP motion, subject to any formal, on the record appearance
    by counsel for the John Doe and any step taken in the litigation as a result. Thirty
    days elapsed, and Doe did not appeal.

[7]

The Anti-SLAPP motion was returned before Pollak
    J on July 28. Counsel for Doe appeared, intending to reargue the issue of
    standing. However, Pollak J. adjourned all matters related to the Anti-SLAPP
    motion to Monday, August 16, 2021, to be heard by Dow J.

[8]

On August 13, sixty-seven days from the date of
    Dow J.s order denying Doe standing to appear at the Anti-SLAPP motion, Doe
    served a motion record seeking to extend his time to serve and file a Notice of
    Appeal. Counsel for Doe did not seek an adjournment of the Anti-SLAPP motion
    itself, which proceeded as scheduled on August 16, and was ultimately dismissed
    by Dow J. the day before this motion was heard. Glassdoors counsel advised
    this court that it intends to appeal the dismissal. Doe continues to press his
    motion to extend time to serve and file a Notice of Appeal from Dow J.s order
    denying him standing.

Analysis

[9]

This court will extend the time to serve and
    file a Notice of Appeal if an extension is required by the justice of the case:
2363523 Ontario Inc. v. Nowack
, 2018 ONCA 286, at para. 4. The court
    will generally consider the following factors:

1.

Whether the appellant formed a
bona
    fide
intention to appeal within the relevant time period;

2.

The length of delay in filing and the
    explanation for it;

3.

Any prejudice that would be caused to the responding
    party by allowing the motion;

4.

The merits of the proposed appeal.

See
Howard v. Martin,
2014
    ONCA 309, 42 R.F.L. (7th) 47, at para. 26;
Leighton v. Best
, 2014
    ONCA 667, 20 C.B.R. (6th) 326, at para. 1.

[10]

No one factor decides the outcome. All factors
    must be considered, but how they bear on what justice requires is context-specific:
    see
Enbridge Gas Distribution Inc. v. Froese
, 2013
    ONCA 131
, 114 O.R. (3d) 636, at para. 15;
Monteith v. Monteith
, 2010
    ONCA 78
, at para. 20.

Intention to appeal

[11]

Counsel for Doe argues that he formed an
    intention to appeal very shortly after appreciating the finality of Dow J.s
    decision.

[12]

Counsel for Echelon argues that the finality of Dow
    J.s decision was obvious on its face, and Doe waited to appeal as part of a
    tactical decision to make another attempt at getting a standing order from another
    judge. It was not until the collateral attack failed, and Doe realized that the
    motion would be returned before Dow J., that Doe decided to proceed with the appeal.
    Doe admits in his written submissions to this court that he only moved to
    appeal after it was clear that Justice Dows decision could not be challenged
    at the new hearing before Pollak J.

[13]

I agree that Dow J.s order was clearly final on
    its face. Dow J.s order states that if Doe did not identify himself, he would
    have no standing and no right of participation. Nothing that happened
    subsequently could have caused Dow J.s order to crystalize at a later date,
    as Does counsel contends. The actions of Doe given the obviousness of the
    finality of Dow J.s order and the absence of any change of circumstances suggest
    that Doe had no intention to appeal until well after the time period had
    expired, and that his delay was the result of a litigation strategy that
    failed.

[14]

Even on Does version of events, he did not form
    an intention to appeal during the relevant period. Doe claims to have only
    realized the finality of the order after Pollak J.s adjournment, several weeks
    after the deadline to appeal had expired. Therefore the only intention he could
    have formed during the period before the deadline expired was an intention to challenge
    Dow J.s order at the hearing before Pollak J., which is not the same as an
    intention to appeal: see, by analogy,
Cunningham v. Hutchings
, 2017
    ONCA 938, at paras. 13-16.

The length and explanation for the delay

[15]

The 67-day delay is not long, but Does
    explanation for it is weak. His explanation rests on his misunderstanding as to
    whether Dow J.s order was final. The salience of the explanation is diminished
    by the orders obvious finality.

Prejudice to the Responding Parties

[16]

In general, this court considers only prejudice
    caused by the delay in filing a notice of appeal, not prejudice that could be caused
    by the outcome of the appeal:
40 Park Lane Circle v. Aiello,
2019
    ONCA 451, at para. 6. But in this case, the two considerations merge, and a
    proper account of the justice of the case requires me to have regard to both.
    Echelon occupies a far more difficult litigation position because of the delay
    than it would have occupied had Doe filed in a timely manner.

[17]

Had Doe had brought his appeal in a timely manner,
    the Anti-SLAPP motion would have been adjourned, or Does appeal expedited, so
    that the question of standing would have been resolved prior to the hearing of
    the Anti-SLAPP motion.

[18]

Instead, Echelon will have to litigate Glassdoors
    appeal of the Anti-SLAPP dismissal on its merits, while simultaneously
    litigating an appeal of Does standing. If Echelon prevails against Glassdoor
    but Doe is successful, the Anti-SLAPP motion will have to be heard again on a
    new record involving Doe  effectively invalidating the victory against
    Glassdoor.

Merits of the Appeal

[19]

Doe argues that Dow J. made errors of law (1) in
    determining that Doe had no standing, and (2) in providing insufficient
    reasons.

[20]

Doe asserts private interest standing as a named
    defendant in the action, and argues that the Anti-SLAPP motion (or the appeal
    of it) could affect Does rights by resulting in the action being dismissed.

[21]

Doe and Glassdoor argue that s. 137.1 serves to
    protect anonymous speech, and that part of protecting anonymous speech is
    keeping it anonymous in the context of a defamation action.

[22]

I was not taken to any authority for the
    proposition that s. 137.1 modifies the general obligation that parties who wish
    to participate in litigation must identify themselves both to the court and to
    those against whom they are asserting rights. On its face, s. 137.1 does not
    provide for this. Section 137.1 protects a subset of speech not by maintaining
    its anonymity, but by providing an expedited procedure for having the action
    dismissed.

[23]

The claim made is not only novel, but seems contrary
    to well-established principle, and without support in law.

[24]

Doe is on slightly firmer ground with the
    argument that the reasons that were provided were insufficient. The reasons
    were brief and conclusory. But to be fair to the motion judge, the ruling he
    was asked to make was obvious. The difficulty on this motion is that I have no
    evidence of what argument the motion judge was invited to consider. Doe filed
    no materials and there is no transcript of the hearing. Even assuming the
    argument was the same as the one outlined before me  that the Anti-SLAPP
    provisions protect the anonymity of speech  it is nothing more than an
    assertion and need not have detained the motion judge.

The justice of the case

[25]

There are no further considerations that have
    not already been addressed. Doe made a strategic procedural choice. That
    failed, and when Doe decided to appeal, he did so at a time and in a manner that
    - if successful - would result in significant expense and repetition of matters
    already litigated. On balance, the justice of the case does not require this
    court to grant an extension.

Conclusion

[26]

The motion for leave to extend time is
    dismissed. The responding party is entitled to its costs of the motion. If the
    parties are unable to settle the quantum among themselves, I will receive brief
    submissions not exceeding three pages in addition to a bill of costs, to be
    filed with the court within 14 days of the date of this decision.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kerner v. Information Builders (Canada) Inc., 2021
    ONCA 756

DATE: 20211026

DOCKET: C68548

Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
    (
ad hoc
)

BETWEEN

David Kerner

Plaintiff (Respondent)

and

Information Builders (Canada) Inc.

Defendant (Appellant)

Hendrik Nieuwland, for the appellant

Philip R. White and Jason Wong, for the respondent

Heard: October 18, 2021 by video conference

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated July 16, 2020, with reasons reported at
    2020 ONSC 2975.

REASONS FOR DECISION

[1]

The sole issue on this appeal is whether the trial judge erred in
    awarding damages for wrongful dismissal based on a reasonable notice period of
    eight months.

[2]

The trial judges assessment of reasonable notice is entitled to
    deference and should not be disturbed unless it is outside an acceptable range
    or unless, in arriving at the figure, the trial judge erred in principle or
    made an unreasonable finding of fact. If the trial judge erred in principle, we
    may substitute our own figure, but we should do so sparingly if the trial
    judges award is within an acceptable range, despite the error in principle:
Holland
    v. Hostopia.Com Inc.
, 2015 ONCA 762, at para. 44.

[3]

The appellant submits that the trial judge made two errors in principle.
    First, she erred by having regard to the respondents prior service with the
    employer. That service (16 ½ years) ended when the respondent voluntarily resigned
    in 2013 to take up other employment. When the latter employment ended, the
    respondent was unemployed for about a year before returning to work with the
    appellant in January 2017. He was dismissed without reasonable notice in
    September 2018.

[4]

Second, the appellant submits that the trial judge erred by having
    regard to the time it took the respondent to find new employment after his
    termination.

[5]

Assuming these were errors in principle, we conclude that a notice
    period of eight months for
this
employee in
these circumstances
was reasonable.

[6]

The trial judge had regard to the
Bardal
principles. She
    adverted to the respondents age (56), the fact that his work experience was
    almost entirely in the IT/Enterprise sector, his recent employment with the
    appellant as Regional Sales Manager in New York, and his relatively high
    compensation package of approximately $300,000 per year. The trial judge could
    also have considered the fact (which she mentioned in her reasons) that before
    returning to the appellants employ in 2017, it had taken the respondent almost
    a year to find employment with the appellant after being terminated by his
    previous employer. This was a relevant indicator of the time it would
    reasonably take the respondent to find comparable employment.

[7]

Having considered the cases referred to by both parties, we are not
    satisfied that eight months was outside an acceptable range in the
    circumstances of this case. To state the obvious, the cases turn on their own
    facts. That said, the cases mentioned in the appellants factum are from
    jurisdictions other than Ontario and decisions involving other marketplaces
    must be viewed with some caution. The cases identified by the respondent, which
    include authorities from Ontario as well as other provinces, indicate that some
    senior managers in their fifties, drawing salaries lower than the respondents,
    with less than three years of service, have been awarded notice in the range of
    6 to 12 months.

[8]

The appeal is dismissed with costs to the respondent in the agreed
    amount of $9,000, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

B. Zarnett J.A.

Wilton-Siegel J.


COURT OF APPEAL FOR ONTARIO

CITATION:
N. v. F., 2021 ONCA 766

DATE: 20211026

DOCKET: C68926

Lauwers, Hourigan and
    Brown JJ.A.

BETWEEN

N.

Applicant (Respondent)

and

F.

Respondent (Appellant)

Fareen L. Jamal, Fadwa Yehia and Edward C. Conway, for
    the appellant

Bryan R.G. Smith, Lindsey Love-Forester and Andrew
    Lokan, for the respondent

Estée Garfin and Hera Evans, for the intervener
    Attorney General of Ontario

Caterina E. Tempesta and Sheena Scott, for the
    intervener Office of the Childrens Lawyer

Heard: January 21, 2021 by video conference

On appeal from the order of Justice Clayton Conlan of the
    Superior Court of Justice, dated December 15, 2020, with reasons reported at
    2020 ONSC 7789.

COSTS ENDORSEMENT

[1]

The respondent was entirely successful on the appeal. He seeks his costs
    on a full indemnity basis in the amount of $99,500, all-inclusive. This figure
    reflects a reduction of almost half from the actual time incurred by the
    respondents counsel and is reflective of the actual amount billed to and paid
    by the respondent for the appeal.

[2]

The appellant submits that each party should bear their own costs of the
    appeal. In any event, she argues that the costs incurred by the respondent are
    excessive and beyond the reasonable expectations of the parties. She notes that
    her costs of the appeal on a partial indemnity basis were approximately
    $48,500. Further, she submits that she has limited means to pay such a cost
    award.

[3]

We are not satisfied that there are special circumstances in this case
    that warrant either an award of costs on a higher scale or an order that each
    party should bear their own costs. In our view, the costs should follow the
    result. Having regard to the parties submissions and their reasonable
    expectations, we order that the appellant pay to the respondent his costs of
    the appeal in the all-inclusive sum of $50,000.

P. Lauwers J.A.

C.W. Hourigan J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jarrett, 2021 ONCA 758

DATE: 20211026

DOCKET: C65726

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melville Jarrett

Appellant

Riaz Sayani, for the appellant

Amanda Hauk, for the respondent

Heard: April 19, 2021, by video conference

On appeal from the conviction entered by Justice Robert
    B. Reid of the Superior Court of Justice on March 7, 2018.

Zarnett J.A.
:

INTRODUCTION

[1]

The appellant appeals his convictions for assaulting a police officer;
    failing to comply with a recognizance; possession of cocaine, oxycodone
[1]
, and hydromorphone
    for the purpose of trafficking; and possession of proceeds of crime. The appeal
    centres on the trial judges refusal
[2]
to stay charges or exclude evidence as a result of what the appellant contends
    were breaches of his protected rights under the
Canadian Charter of Rights
    and Freedoms
.

[2]

The trial judge dismissed the appellants application to stay
    proceedings on the basis that excessive force was used by police when he was
    arrested, thus violating his rights to life, liberty and security of the person,
    and to not be subjected to cruel and unusual punishment, under ss. 7 and 12,
    respectively, of the
Charter
. The appellant argues that the trial
    judge misallocated the burden of proof relating to whether excessive force was
    used, fatally tainting his conclusion that there was no
Charter
breach. He submits that the question of whether there was a violation of these
Charter
rights should be re-heard, and that the convictions for assaulting a police
    officer (which followed from the same evidence considered on the stay
    application) and breach of recognizance should be set aside and a new trial
    ordered.

[3]

The appellant also submits that the trial judge, after finding that
    there had been a violation of the appellants right, following his arrest, to
    retain and instruct counsel without delay under s. 10(b) of the
Charter
,
    erred in refusing to exclude evidence discovered by the police at the scene of
    the arrest. Since that evidence was the basis of the convictions for drug
    trafficking and possession of proceeds of crime, he asks that those convictions
    be set aside and acquittals entered.

[4]

I would not give effect to the argument that the trial judge erred in
    his approach to whether there was a breach of the appellants ss. 7 and 12
    rights. Contrary to the appellants argument, reading the trial judges reasons
    as a whole, he did not actually decide the matter by applying an incorrect
    burden of proof. He accepted the evidence proffered by the Crown, considered
    whether the force used was reasonable, and concluded that the force used was
    not excessive in the circumstances. His findings show that he concluded that
    what was the Crowns evidentiary burden was satisfied.

[5]

I would, however, allow the appeal from the drug trafficking and
    proceeds of crime convictions and substitute acquittals on those charges. As
    the trial judge noted, there was little dispute about the facts relevant to the
    s. 10(b) breach. The trial judge found that there had been a breach of the
    appellants right to counsel since although the police had made an initial
    effort  leaving a voicemail message with the appellants counsel of choice  they
    did not follow up or make any further efforts, leaving the appellant with no
    contact with counsel for 30 hours following his arrest, 20 of which he spent
    handcuffed to a hospital bed. As the trial judge also noted, whether exclusion
    of evidence was warranted turned on how the law applied to those facts. In my
    view, the trial judges analysis of the factors relevant to exclusion of
    evidence, set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
    was legally flawed. Performing the correct analysis, the evidence seized at the
    scene of the arrest ought to have been excluded under s. 24(2) of the
Charter
as a remedy for the s. 10(b) breach.

BACKGROUND

A.

The Arrest

[6]

On June 25, 2015, three plainclothes Niagara Regional Police detectives
    in an unmarked police car pulled up next to the appellants vehicle at an
    intersection in St. Catharines. The officers saw the appellant using a cell
    phone. They directed the appellant to pull his vehicle over to the side of the
    street. The appellant complied. Meanwhile, a fourth officer, in uniform,
    arrived at the scene.

[7]

One of the officers requested identification from the appellant and the
    three passengers in his vehicle. The appellant provided his drivers licence
    and registration in response to the request. Two of the officers performed
    database searches and learned that the appellant was on bail and a term of his
    release was to not possess a cell phone if it had not been registered with the
    Niagara Regional Police. As the cell phone had not been registered, the
    appellant was advised by one of the officers that he was being placed under arrest,
    and was asked to get out of his car.

[8]

As the trial judge noted, the circumstances of the arrest from that
    point forward were the main factual dispute between the parties. He described
    the evidence of the appellant and that of the police officers as diametrically
    opposed.

[9]

The appellant testified that as he got out of the car, he stumbled. A
    fanny pack he was wearing was caught in the seatbelt and he reached around to
    take it off and threw it back into the car. As he stumbled out of the car, the
    police officers did the following: administered a knee strike to his chest,
    causing excruciating pain; administered a knee strike to his head; wrestled him
    to the ground; tasered him three times; held him on the ground; and handcuffed
    him. He denied ever resisting the police or fighting with them.

[10]

The appellants girlfriend, Stacy Lamb, who was one of the passengers in
    his car, also testified. The trial judge noted that Ms. Lamb did not see
    exactly what happened. She said that the appellant stumbled as he got out of
    the car, that he fell into one of the officers who hit him multiple times,
    including a knee strike to the chest, and that the appellant was tasered three
    times and pepper sprayed two or three times. She believed the police
    incapacitated the appellant for no reason. She said that she had asked the
    appellant for the fanny pack before the officer returned to the car to tell the
    appellant he was under arrest, and that when he gave it to her, she tried to
    hide it so that the police would not find it. She testified that she had given
    an incorrect statement to the police on the day of the arrest, to the effect
    that the appellant had thrown it at her and that she did not know what to do
    with it and had panicked.

[11]

The police officers gave a different version of the events.

[12]

Det. DiFranco was the officer who took the licence and registration from
    the appellant and returned to arrest him. He described the appellant as
    aggressive and confrontational. He testified that as the appellant was getting
    out of his car, he reached for a fanny pack around his waist, leading Det.
    DiFranco to reach for it as well due to safety concerns, as he did not know
    what it contained. Det. DiFranco administered a knee strike to the appellants
    upper body area to create distance between them.

[13]

Cst. Poirier, the officer in uniform, was also at the appellants
    vehicle when he was asked to get out of it. He described the appellant as argumentative
    and extremely hostile, and also testified that he reached for the fanny pack
    while getting out of the car. Cst. Poirier grabbed the appellants left arm to
    arrest him, at which point the appellant began to struggle. Cst. Poirier applied
    knee strikes to the appellants leg to bring him to the ground, so as to
    handcuff him and complete the arrest. The appellant broke free, got up, charged
    at Cst. Poirier, headbutted him and put his hands around Cst. Poiriers waist
    in a bear hug, and they fell back onto the road.

[14]

Det. DiFranco and Cst. Poirier struggled with the appellant across the
    street, over a curb and sidewalk, and into a flower bed. Both described the
    arrest as one of, or the most, difficult they had ever had to make.

[15]

Det. Sgt. Knevel was at the scene initially focussing on the passengers
    in the appellants vehicle. He observed the struggle to subdue the appellant
    and joined it to assist. He described the appellant fighting violently to get
    away.

[16]

According to the three officers, when the knee strikes and wrestling did
    not bring the appellant under control to allow them to apply handcuffs, a
    decision was made to use a taser. Cst. Poirier deployed it three times within
    about 30 seconds. All of the officers testified that no pepper spray was used.

[17]

The evidence of the three officers was in part confirmed by the fourth
    officer at the scene, Det. Cunningham. The trial judge noted he was minimally
    involved in the interaction with the appellant but confirmed the dynamic
    nature of the situation and the struggle between the officers and [the
    appellant].

[18]

Mr. Eaton, a civilian who observed the confrontation, also testified. He
    saw an individual resisting efforts by the police to hold him down, and pushing
    himself up off the ground even after a taser was used. The trial judge
    considered his evidence to be generally consistent with that of the police
    officers, although his estimate that the entire struggle took 1.5 hours was
    grossly at odds with what was otherwise described as a brief but dynamic
    interaction.

B.

The
    Opportunity to Retain and Instruct Counsel

[19]

As the trial judge noted, there was relatively little dispute about the
    facts on this issue.

[20]

The appellant was advised of his right to counsel upon his arrest. He
    requested the opportunity to contact counsel, whom he identified by name.

[21]

The appellant was then taken to the hospital for medical attention as a
    result of the circumstances of his arrest. He remained there, in police
    custody, handcuffed to his bed, for about 20 hours. He had no contact with
    counsel, and was not offered the opportunity to contact counsel from the
    hospital, although there was no health reason that would have prevented him
    from having that contact.

[22]

The appellant only had contact with counsel sometime after being
    returned from the hospital to the police station or courthouse. The trial judge
    accepted that this occurred about 30 hours after the arrest.

[23]

Although the appellant asked the police for the opportunity to consult
    counsel at the time of his arrest, the only step taken to facilitate that was
    Det. DiFranco leaving a voicemail message for the appellants counsel after the
    detective returned to the police station, about an hour and a half after the
    arrest. The police did not tell the appellant they had made this call, or
    follow up when the call to counsel was not returned. Nor did the police make any
    further efforts to facilitate contact with counsel for the entire time the
    appellant was at the hospital, or until they facilitated contact from the
    police station or courthouse some 30 hours after the arrest.

[24]

The appellant was not asked for nor did he give any statement to the
    police prior to contacting counsel.

C.

The Fanny
    Pack

[25]

The police recovered the fanny pack at the scene. After the appellants
    arrest, it was searched. The fanny pack contained, among other things, 13 grams
    of cocaine, 40 oxycodone pills and 25 hydromorphone pills, and $125 in cash.

THE DECISIONS OF THE TRIAL JUDGE

A.

The Trial
    Judges Decision on the
Charter
Issues

[26]

The appellant applied for a stay of proceedings or that evidence be
    excluded on the basis of breaches of his
Charter
rights. He asserted
    that his rights under ss. 7 and 12 of the
Charter
were infringed when
    the arresting officers used excessive force, and that his rights under s. 10(b)
    of the
Charter
were infringed when he was not allowed to contact
    counsel for about 30 hours after the arrest.

[27]

The trial judge stated that: It is undisputed that [the appellant]
    bears the onus of establishing any
Charter
violation on the balance of
    probabilities.

[28]

Dealing with the issue of excessive force, the trial judge referred to
    ss. 7 and 12 of the
Charter
and observed that [i]t is trite to say
    that a section 7
Charter
breach will be established where excessive
    force is used in arresting a person. He noted that s. 25 of the
Criminal
    Code
, R.S.C. 1985, c. C-46 authorizes the police to use as much force as
    is necessary when lawfully arresting a person and case law also supports the
    use of reasonable force to maintain the state of being under arrest. He
    identified the key question after examining all the circumstances to be what
    amount of force was necessary and whether the actual force used was excessive.
    He referred to a list of factors from case law relevant to determining whether
    force used was reasonable or necessary in the circumstances.

[29]

The trial judge found the appellants evidence that he did not resist
    arrest to be inconsistent with the preponderance of evidence. He found that a
    struggle ensued immediately outside the drivers door of the appellants
    vehicle, and that even if there was an inadvertent stumble and a painful first
    knee strike, it was not reasonable to conclude that the appellant was compliant
    with subsequent efforts to arrest him. He accepted the evidence of the police
    officers concerning the struggle, and found it was supported by the evidence of
    Mr. Eaton. He did not consider the evidence of Ms. Lamb to be helpful to the
    appellant for various reasons relating to its reliability, including that Ms.
    Lamb had a limited view of the scene and an ongoing personal relationship with
    the appellant. He concluded that the appellant was in a physical condition to
    have represented a threat to the police officers, and I accept their evidence
    that it was not possible to physically subdue him despite the best efforts of three
    of them until the Taser was applied.

[30]

He stated that the appellant did not satisfy his onus of proving on a
    balance of probabilities that excessive force was used against him by the
    police. I find that the police used only the force necessary to effect the
    arrest in the circumstances. Therefore, there was no breach of [the appellants]
    section 7 or section 12
Charter
rights.

[31]

On the question of whether the appellants s. 10(b) right was infringed,
    the trial judge began by noting that the right had an informational and an
    implementational component, both aspects of which were to be provided
    immediately. He held that the implementational component was engaged when the
    appellant requested the opportunity to consult with a specific lawyer. It was
    reasonable for Det. DiFranco to assist by leaving a message for the lawyer, but
    not reasonable for the police to consider the matter ended there, leaving the
    appellant in the hospital for almost a day without being afforded the
    opportunity to contact counsel. Further efforts were required and were not
    taken. There was no evidence that proper arrangements could not have been made
    to facilitate contact from the hospital. He found that the appellants s. 10(b)
    right was violated.

[32]

Although the fanny pack was recovered at the scene of the arrest before
    the s. 10(b) breach occurred, he was satisfied that the breach that followed
    the arrest was part of the same transaction or chain of events that included
    the seizure of that evidence, and the temporal connection between the two was
    not too remote. Therefore, he found that the precondition to the exclusion of the
    fanny pack evidence under s. 24(2) of the
Charter
 that the evidence
    was obtained in a manner that infringed or denied
Charter
rights
    had been met.

[33]

However, the trial judge rejected the claim that the s. 10(b) breach
    justified the exclusion of the fanny pack evidence recovered at the scene,
    under s. 24(2) of the
Charter,
because he was not satisfied that
    admitting the evidence would bring the administration of justice into disrepute.
[3]

[34]

In considering whether admitting the evidence would bring the
    administration of justice into disrepute, the trial judge followed the method
    of analysis set out in
Grant
, at paras. 72-86, which requires
    consideration of the seriousness of the
Charter
-infringing state
    conduct, the impact of that conduct on the
Charter
-protected interests
    of the accused, and societys interest in an adjudication on the merits.

[35]

The trial judge found the breach arguably inadvertent, but not
    trivial, and that the serious nature of the breach militates against the
    admission of the evidence  while its apparently inadvertent nature militates
    toward admission of the evidence. He considered that this factor did not
    clearly require the exclusion of evidence. He found the breach had little
    practical effect as the appellant was aware of why he was arrested and was not
    requested to give a statement, and even if he had contacted counsel, the search
    would have continued and the fanny pack would have been found. He considered that
    the public interest would not be offended by the admission of evidence under
    this factor. And he found that the exclusion of relevant evidence would have
    rendered the trial unfair from the publics perspective, favouring the
    admission of the evidence. He concluded that the admission of the evidence
    would not bring the administration of justice into disrepute in the eyes of a
    reasonable person informed of all the relevant circumstances and the values
    underlying the
Charter
.

B.

The
    Convictions

[36]

After the
Charter
applications were dismissed, the drug
    trafficking, possession of proceeds of crime, and breach of recognizance
    charges proceeded with an agreed statement of facts. The agreed facts included
    that the contents of the fanny pack were in the appellants possession, that
    the contents included oxycodone and hydromorphone that he sold from time to
    time, that he had a cell phone in his possession, that he knew he had an
    obligation to ensure any cell phone in his possession was registered with the Niagara
    Regional Police and that this cell phone was not, and that the cash in the
    fanny pack included money from cocaine sales.

[37]

The charge of assaulting a police officer  Cst. Poirier  proceeded on
    the basis of the evidence in the
Charter
application, with further
    submissions. The trial judge repeated the findings made in his
Charter
decision. He directed himself that it was not simply a case of preferring the
    evidence of the officers to that of the appellant and Ms. Lamb. Applying
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, he concluded that the evidence of the
    appellant was not believable, and that it did not raise a reasonable doubt. He
    then considered whether on the evidence he did accept, the appellants guilt
    was proven beyond a reasonable doubt. He found that the appellant had applied
    force  a bear hug and headbutt  to Cst. Poirier, in the course of resisting
    lawful arrest by the police.

[38]

As a consequence, the trial judge entered the convictions appealed from.

[39]

The trial judge sentenced the appellant to 25 months in custody on the
    drug trafficking charges (counts 2, 3, and 4), two months concurrent on the
    proceeds of crime charge (count 9), one month consecutive for breach of
    recognizance (count 10), and three months consecutive for assaulting a police
    officer (count 1). Various ancillary orders were also made.

THE ISSUES

[40]

The appeal raises the following issues:

a.

Did the trial judge err in failing to exclude the fanny pack evidence as
    a remedy for the breach of the appellants right under s. 10(b) of the
Charter
?

b.

Did the trial judge misallocate the burden of proof as to whether
    excessive force was used in considering whether the appellants ss. 7 and 12
    rights under the
Charter
were breached, and if he did, should the
    curative proviso be applied?

ANALYSIS

A.

The
    Section 10(b) Issue

[41]

Section 10(b) guarantees to anyone arrested or detained the right to
    retain and instruct counsel without delay and to be informed of that right.
    Where, upon being informed of the right, the detained person exercises it, the
    police must immediately provide the detainee with a reasonable opportunity to
    speak to counsel:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
    paras. 38, 42.

[42]

The appellant exercised his s. 10(b) right by expressing the desire to
    speak to counsel immediately upon his arrest. The police breached the duty to
    immediately provide him with a reasonable opportunity to speak to counsel. The
    single message that was left with counsel, without any follow-up, did not
    actually provide an immediate opportunity for the appellant to speak to
    counsel. No such opportunity was provided for 30 hours. Nor was the single
    message, without any follow-up, reasonable, judged in all of the circumstances.
    The trial judge appropriately observed that it was unreasonable for the police
    to consider the single message sufficient and the matter ended there − further
    efforts were required. Yet the police took none. They did not explore whether
    there were other means of making contact with the counsel the appellant had
    specified. Nor was the appellant told that a message had been left with the
    counsel he had specified, or that it had not been answered. Thus, he was not
    given the opportunity to provide other contact information for that counsel if
    he had it, or to specify another counsel who might be more immediately
    responsive.

[43]

There are a number of ways in which the police may facilitate a
    detainees right to immediate contact with counsel. Where the police assume the
    responsibility of making first contact, rather than providing the detainee with
    direct access to a phone or internet connection, they must be taken to have
    assumed the obligation to pursue [the detainees] constitutional right to [access
    counsel] as diligently as she would have:
R. v. OShea
, 2019 ONSC
    1514, 372 C.C.C. (3d) 352, at para. 42;
R. v. Doobay
, 2019 ONSC
    7272, 61 M.V.R. (7th) 225, at paras. 29-33. Anything less would encourage
    token efforts by the police and imperil the right of those in detention to
    consult a lawyer of their choosing:
Doobay
, at para. 30. In this
    case, where the police undertook to contact a lawyer on the appellants behalf,
    it was unreasonable for them to have left a single voicemail and ended their efforts
    there.

[44]

Although there was no causal connection between, on the one hand, the
    discovery of the fanny pack and its contents, and on the other hand, the s.
    10(b) breach, there was, as the trial judge appropriately found, a sufficient
    temporal connection to consider the evidence to have been obtained in a manner
    that infringed a
Charter
right within the meaning of s. 24(2):
R.
    v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72;
R. v.
    Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35.

[45]

I accept the argument of the appellant that, against the backdrop of
    this breach, the trial judge erred in failing to find that having regard to
    all circumstances, the admission of [the evidence] in the proceedings would
    bring the administration of justice into disrepute within the meaning of s. 24(2),
    and therefore in failing to exclude the fanny pack evidence. Although the trial
    judge referenced the three-prong test articulated in
Grant
to assess
    this question, he made legal errors in its application, leading to an
    unreasonable determination. Appellate intervention is therefore warranted:
R.
    v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. In fairness to
    the trial judge, he did not have the benefit of this courts more recent
    decisions on the
Grant
analysis relating to s. 10(b) breaches.

[46]

The first
Grant
factor is the seriousness of the
Charter
-infringing
    state conduct. On this factor, the trial judges findings were equivocal. He
    referred to the breach as not trivial, and in one passage noted the serious
    nature of the breach. But he also referred to the breach as inadvertent or
    arguably inadvertent, because there had been an initial attempt to contact
    counsel. Because of this latter characterization of inadvertent, he held that
    this factor did not clearly require the exclusion of the evidence. In my view,
    the trial judge made two interrelated errors in coming to that conclusion.

[47]

First, the breach ought not to have been viewed as anything other than
    serious, given the extent the police conduct departed from the content of the
    appellants constitutional right. The duty of the police was to
immediately
provide the appellant with a reasonable
    opportunity to speak to counsel. Viewed from that perspective, the breach was
    very substantial  the delay in providing the opportunity to speak to counsel
    was about 30 hours.
[4]

[48]

Second, although the breach was arguably inadvertent  that is, not
    intentional and there was no evidence the delay was caused by a systemic
    practice  the circumstances did not take the case out of the serious breach category.
    The single, unsuccessful attempt to contact counsel referenced by the trial
    judge pales in comparison to the length of time over which the police failed to
    take any further steps to fulfill their duty. Indeed, immediately after
    describing the breach as arguably inadvertent, the trial judge noted that
    after their initial attempt to contact counsel, [n]o officer made any further
    attempt to either contact counsel, to ascertain whether counsel had contacted [the
    appellant], or to assist [the appellant] with contact from the hospital. The
    police are expected to comply with the
Charter
. The absence of
    evidence that the polices failure to comply with the
Charter
was
    systemic is not a mitigating factor when assessing the seriousness of the
    breach:
McGuffie
, at para. 67.

[49]

In
R. v. Noel
, 2019 ONCA 860, the fact that a police officer
    left a message with duty counsel without following up to ensure contact
    occurred did not attenuate the seriousness of a s. 10(b) breach, and was viewed
    by this court as part of a somewhat cavalier attitude about a fundamental,
    important, and long-settled
Charter
right to consult counsel without
    delay: at para. 32. In
R. v. Pileggi
, 2021 ONCA 4, 153 O.R. (3d) 561,
    this court concluded that a three-hour delay in providing the opportunity to
    consult counsel, resulting from collective negligence  in allowing the
    appellants s. 10(b) rights to fall through the cracks was a serious breach
    even though a police officer not only contacted duty counsel, but kept the
    accused informed of the efforts to engage counsel so that he was not left to
    languish alone interminably: at paras. 114, 119 and 124.

[50]

In this case, the sheer length of the delay, and the fact that over that
    lengthy period, nothing was done to inform the appellant that any effort to
    contact counsel was made, or to follow up on the contact, should have led the
    trial judge to conclude that the breach was serious and favoured exclusion of
    the evidence.

[51]

Moreover, the trial judge erred in his analysis of the second
Grant
factor, the impact of the breach. He viewed the breach as one that had little
    practical effect, as the appellant was aware of the reasons for his arrest, was
    not requested to give a statement, and the search and seizure of the fanny pack
    would have happened anyway.

[52]

Although the right to immediately consult counsel exists in part so that
    the accused can obtain advice about self-incrimination and the legality of
    searches, it extends to considerations beyond these, including obtaining
    reassurance and advice about how long detention may last and how liberty may be
    regained. The right to counsel is a lifeline for detained persons. Through
    that lifeline, detained persons obtain, not only legal advice and guidance
    about the procedures to which they will be subjected, but also the sense that
    they are not entirely at the mercy of the police while detained. The
    psychological value of access to counsel without delay should not be
    underestimated:
Rover
, at para. 45;
Noel
,

at paras.
    22-26. Holding a person without any explanation for why they cannot access counsel
    or any indication of when that might occur compromises their security of the
    person:
Rover
, at para. 46.

[53]

If the police had taken a statement or otherwise obtained evidence as a
    direct result of the s. 10(b) breach, that may have made the impact of the
    breach even more significant. But neither the fact that the police do not take
    a statement from the arrested person while violating the right to counsel, nor that
    there is no causal connection between the breach and evidence discovered, means
    that the breach will always lack a significant negative impact on the
    appellants
Charter
-protected rights:
Rover
, at paras. 43-47.
    The impact must be considered given the nature of the interests protected by
    the right to counsel, and the length of delay in providing it:
Noel
,
    at para. 27.

[54]

In
Rover
, this court considered the impact on the accused to be
    serious because he was held for almost six hours without any indication of
    when he might be allowed to speak to someone: at para. 46.

[55]

Here, the appellant was without the benefit of the immediate right to
    counsel, or any indication of when he might be allowed to speak to someone, for
    about 30 hours, 20 of which he spent handcuffed to a hospital bed. The
    trial judge failed to consider all of the interests the appellants immediate
    right to counsel is to protect in his evaluation of the impact of this lengthy
    breach. He placed undue emphasis on the lack of a causal connection between the
    seizure and search of the fanny pack and the s. 10(b) breach, and on the fact
    that the police did not take a statement. Moreover, his observation that the
    appellant knew why he was arrested was, with respect, beside the point. The
    appellant was entitled to consult counsel; he was not required to be his own
    legal adviser when he wanted to speak to a lawyer.

[56]

The trial judges conclusion that the second
Grant
factor did
    not favour exclusion is accordingly flawed. It did favour exclusion.

[57]

The trial judge correctly considered that the third
Grant
factor, the effect of excluding relevant reliable evidence, here pulled in
    favour of admission of the evidence. However, a proper analysis of the first
    two factors pulls strongly in favour of exclusion, and makes this one of those
    cases in which the long-term repute of the administration of justice requires
    the sacrifice of the short-term benefit of an adjudication on the merits of
    this case:
Rover
, at para. 49.

[58]

The fanny pack and its contents ought to have been excluded. I would
    accordingly allow the appeal and quash the convictions on counts 2, 3, 4, and
    9, and substitute acquittals on those counts.

B.

The
    Excessive Force Issue

[59]

The appellant argues that the trial judge, in considering whether his
Charter
rights were violated by the use of excessive force during his arrest, made the
    error identified in the dissenting reasons in
R. v. Davis
, 2013
    ABCA 15, 295 C.C.C. (3d) 508 (
Davis
), which were upheld by the
    Supreme Court of Canada: 2014 SCC 4, [2014] 1 S.C.R. 78 (
Davis
(
SCC
)).
    The error in
Davis
involved misallocating, to the accused, the burden
    of proving that excessive force was used. As this error may have tainted the
    assessment of the evidence as to whether excessive force was used, it could not
    be saved by the application of the curative proviso in s. 686(1)(b)(iii) of the
Code
.

[60]

The appellant relies on the first sentence of the following statement in
    para. 35 of the trial judges reasons to identify where he located the
    burden of proof
:

I conclude that [the appellant] has not
    satisfied his onus of proving on a balance of probabilities that excessive
    force was used against him by the police
.
I find that the police only used
    the force necessary to effect the arrest in the circumstances. Therefore, there
    was no breach of [the appellants] section 7 or section 12
Charter
rights. [Emphasis added.]

[61]

Davis
establishes that an accused only has the burden of
    demonstrating that a
Charter
remedy should be granted
. The accused
    does not have the burden of showing that excessive force was used. Rather, once
    an accused shows that the police used deadly force, a
prima facie
breach of s. 7 exists, and the evidentiary burden shifts to the Crown to prove
    the force used was justified. This requires a subjective-objective analysis.
    The court has to be satisfied that the police officer subjectively believed
    that the use of force was necessary in the circumstances to protect the officer
    or others from death or grievous bodily harm, and the belief must have been
    objectively reasonable:
Davis
, at paras. 76-78.

[62]

The appellant argues that the first sentence of the trial judges
    statement in para. 35 of his reasons  that the appellant has not satisfied
    his onus of proving on a balance of probabilities that excessive force was used
    against him by the police  shows he misallocated the burden of proof.
Rather
    than requiring the respondent to show the force was justified, he placed the
    burden on the appellant to demonstrate the force was excessive.

[63]

The appellant also submits that the error reflected in this sentence is
    neither corrected nor salvageable by the next sentences in the same para
.
    35, in which the trial judge said, I find that the police only used the force
    necessary to effect the arrest in the circumstances. Therefore, there was no
    breach of [the appellants] section 7 or section 12
Charter
rights. The
    appellant points out that the trial judge in
Davis
also made a finding
    on the evidence that the police officer was justified in acting as he did and
    did not breach [the accuseds
Charter
] rights. In
Davis
, the
    existence of that finding did not detract from the error in allocating the
    burden of proof, or justify applying the curative proviso, because as a product
    of misallocating the burden of proof, the trial judge did not properly process
    the evidence, relying only on the police officers subjective beliefs without
    addressing their objective reasonableness. This processing error may have
    tainted the trial judges ultimate finding on whether excessive force was used:
Davis
, at paras. 81-82 and 86-87;
Davis
(
SCC
), at
    para. 1. The appellant says the same approach should be taken here.

[64]

I would not give effect to this ground of appeal
. This is a materially
    different case than
Davis
.

[65]

In
Davis
, there was no question about where the trial judge had
    placed the burden of proof, and how she applied it.
She stated that the
    burden of showing a
Charter
violation rests on the accused, a statement
    that was correct as far as it goes:
Davis
, at para.

77. The
    trial judge in
Davis
then went further to say that that meant the
    burden of proving the force was excessive was on the accused, and further still
    to explain exactly what that meant. She said that the burden was on the accused
    to demonstrate that [the police officer] did not reasonably believe that force
    was necessary to preserve himself or others from death or grievous harm and
    that he could have prevented [the accuseds] flight by reasonable means less
    violent. This was an error of law, as the burden was on the Crown to prove
    that the force used was justified in the circumstances. To hold otherwise would
    be unfair to the accused, who would have to prove a negative, i.e., that the
    force was not justified. Moreover, her finding that she believed the police
    officer was the product of her focussing exclusively on the officers
    subjective belief, without adverting to the requirement of reasonableness. Any conclusion
    drawn from it may have been tainted by the misallocation of the burden of proof:
Davis
,

at paras. 76-79 and 86-87.

[66]

Here, although the trial judge referred to the appellant not having met
    a burden of showing that excessive force was used, that sentence stands alone
    in the reasons as a description of the burden the trial judge was actually
    applying to decide the excessive force issue
.
[5]
The reasons contain no elucidation of exactly what that burden required, as did
    the trial judges reasons in
Davis
. It did not, as in
Davis
,
    articulate the burden in such a way as to make it clear the appellant had been
    required to prove a negative  that the officers lacked a subjective belief
    that the force they used was necessary, or that if they did hold such a belief,
    that the belief was not objectively reasonable.

[67]

A review of the reasons as a whole does not support the view that the
    sentence in para. 35 of the reasons relied on by the appellant, rather than the
    one that follows, reflects the burden the trial judge actually applied in coming
    to his conclusion about a
Charter
breach.
The statement relied on
    by the appellant is immediately followed by a positive finding that would be
    unnecessary if the trial judge was reaching his conclusion on the basis of a
    failure of the appellant to have satisfied his burden. The trial judges statement
    that I find that the police used only the force necessary to effect the arrest
    in the circumstances is consistent with what is the evidentiary burden of the Crown
    having been fulfilled: to show that the force used was justified in the
    circumstances. As discussed below, unlike in
Davis
, that statement was
    not the product of a singular focus on the subjective beliefs of the officers
    because the trial judge did not advert to the requirement of reasonableness.
    Given how the trial judge arrived at his conclusions, they cannot be taken to
    have been tainted by a misapprehension of the burden of proof.

[68]

Before discussing the evidence, the trial judge referred to the
    authorization in s. 25 of the
Code
for the police to use as much force
    as is necessary when arresting an individual.
(Section 25 places the burden
    on the Crown to justify a police officers use of deadly force on a
    subjective-objective analysis:
Davis
, at paras. 41-45 and 78).
    Although his analysis of it was brief, he identified the key questions to be
    what force was necessary and whether the actual force was excessive after
    examining all of the circumstances as they existed at the time the force was
    used.

[69]

The trial judge also referred to case law, cited to him by both parties,
    that identified factors to be considered in assessing the reasonableness of,
    or necessity for, force used by the police in any particular situation.
Accordingly,
    the trial judge was alive to the need to look at the force used through the
    lens of reasonableness, not simply the subjective beliefs of the police
    officers.

[70]

When analysing the evidence, and before making the statements in para. 35
    of his reasons, the trial judge expressed himself more consistently with his
    having been satisfied the force used was justified, rather than on the basis
    that the appellant had the burden of showing the force used was not justified,
    but had fallen short of meeting that burden
. He did not express himself
    concerning the evidence on the basis that the appellant had been required, but
    had failed, to prove a negative.

[71]

The trial judge rejected the appellants evidence that he did not resist
    arrest as inconsistent with the preponderance of evidence.
He stated that
    he was satisfied about what had occurred based on the evidence of the
    officers that he accepted and the confirmation of Mr. Eaton. He did not limit
    himself to saying he was not satisfied that what the appellant contended had occurred.

[72]

His findings, although not always broken down between what the police
    officers believed and the reasonableness of their behaviour, covered matters
    that pertained to both, and were responsive to the arguments that were made
    before him.
He found that the police had engaged in a wrestling match with
    the appellant that covered some distance because he was satisfied on the
    evidence that that occurred. But he went on to find that there was no reason
    for them to have done so, or to apply a taser, other than the appellants
    non-compliance. On the evidence that he accepted, that non-compliance was
    aggressive, physical, confrontational, and continuing, and included an assault
    on one of the officers. He found, considering the height, weight, and physical
    condition of the appellant, that he represented a threat to the police
    officers, and stated that he accepted the officers evidence that it was not
    possible to physically subdue [the appellant] despite the best efforts of [the
    officers] until the Taser was applied. His positive finding that lesser
    measures than the force actually used were not possible is quite different than
    saying that the appellant had fallen short of proving excessive force was used.

[73]

The trial judges factual findings, read in light of his having prefaced
    them by his instruction to determine what amount of force was necessary and
    whether the actual force used was excessive, and to consider the
    reasonableness of, or necessity for, force used by the police reflect
    positive findings as to what the police believed and the reasonableness of
    those beliefs, rather than about a failure of the appellant to prove an absence
    of either.

[74]

All of those findings precede the impugned sentence in para. 35 of the
    reasons.
In my view, taken in context of what preceded it and what follows
    it, the sentence relied on by the appellant, while unfortunate, does not
    indicate the burden of proof the trial judge actually applied in coming to his
    decision. The better indicator of the burden of proof actually applied is in
    the sentences that follow. In them, the trial judge rejected the allegation of
Charter
breach (which the appellant had the onus of proving) because he made a positive
    finding, consequent on the positive findings he had made earlier in his reasons,
    that the police had used only the force necessary to effect the arrest in the
    circumstances. This is consistent with the Crowns onus of proof. The trial
    judge was satisfied the force used was justified.

[75]

As the Crown points out, in his reasons for sentence, the trial judge
    summarized what he had determined in dismissing the
Charter
application. He said: I accepted the evidence of the prosecution that [the
    appellant] aggressively resisted arrest and that reasonable force was used
    during the course of the arrest, including the application of a taser on three
    separate occasions.
This further supports the view that the trial judge
    actually decided the matter on a basis consistent with the Crowns onus of proof.

[76]

Because of the view I take on whether the burden of proof was
    misallocated, it is not necessary to address the argument as to whether, if
    that error had occurred, it should be viewed as harmless and the curative
    proviso applied.

CONCLUSION

[77]

On consent, the guilty plea to count 4 is set aside. The appeal is
    allowed as to counts 2, 3, 4, and 9, and the convictions on those counts are
    set aside and acquittals are entered. The appeal is dismissed as to counts 1
    and 10. Only the sentences and ancillary orders connected to counts 1 and 10
    remain in place.

Released: October 22, 2021 D.W.

B. Zarnett J.A.

I agree. David Watt J.A.

I agree. L.B. Roberts J.A.

[1]

The appellant pled guilty to the oxycodone possession charge,
    but the Crown consents to the admission of fresh evidence which shows that the
    plea was uninformed, and consents to the plea being set aside. The Crown and
    defence agreed that the appellant would preserve his appeal rights respecting
    the
Charter
ruling at issue in this appeal by not contesting the Crowns
    evidence relating to the drug charges, and the appellant pled guilty to the
    charge without appreciating the consequences of the plea.

[2]

R. v. Jarrett
, 2018 ONSC 1178.

[3]

He also rejected the claim that the s. 10(b) breach justified
    a stay under s. 24(1) of the
Charter
. That issue is not pursued on this
    appeal.

[4]
In
Rover
, this court characterized a delay of almost six hours as one
    that seriously impacted the rights of the arrested person: at para. 44.

[5]

The trial judge had earlier referred to the burden being on
    the appellant to prove
Charter
breaches, a statement that was correct
    as far as it goes:
Davis
, at para. 77.


COURT OF APPEAL FOR ONTARIO

CITATION:
Elguindy
v. Elguindy, 2021 ONCA 768

DATE: 20211027

DOCKET: M52719 (M52669)

Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
(
ad hoc
)

BETWEEN

Emad Elguindy and Irene Elguindy

Plaintiffs

and

Aziz Elguindy
and
Afrodite
Elguindy

Defendants (
Moving Party
/
Responding
Party
)

Aziz Elguindy, acting in person

Mitch Bates, for the responding party

Heard: October 22, 2021 by video conference

REASONS FOR DECISION

[1]

The moving party, Aziz Elguindy, asks that we reverse the order of van
Rensburg J.A., dated August 6, 2021. Her order refused to extend the time for the
moving party to appeal the dismissal of a motion he brought in the Superior
Court under r. 59.06 of the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194. In his r. 59.06 motion, the moving party sought to set aside a
costs order made at trial in favour of the responding party, Afrodite Elguindy.

[2]

At the conclusion of oral argument, we dismissed the motion with reasons
to follow. These are those reasons.

[3]

The moving party did not defend the proceeding below, and was noted in
default. After the trial judge made his disposition of the action, including
making an order for costs, the moving party sought leave to appeal the costs
order to this court. Leave was denied:
Elguindy v. Elguindy
, 2020 ONCA
739.

[4]

The moving party then sought to challenge the same costs order by
applying to the trial judge under r. 59.06, alleging that he had not been given
notice of the process that led to the costs order, or that the costs order had
been obtained by fraud. On May 13, 2021, the trial judge dismissed that motion on
the basis that, having been noted in default, the moving party was not entitled
to notice, and his allegations of fraud were unfounded, unproven and
irresponsible.

[5]

The moving partys request for an extension of time to appeal the
dismissal of his r. 59.06 motion was refused by van Rensburg J.A. on the basis that
no appeal lies to this court from it. She concluded that the order dismissing
the r. 59.06 motion was an interlocutory order, not a final order, and could
therefore only be appealed, with leave, to the Divisional Court.

[6]

We see no error in this conclusion in the circumstances of this case. A final
order is one that determines the real matter in dispute between the parties  the
very subject matter of the litigation  or a substantive right to relief of a
plaintiff or substantive right of a defendant. The rights of the moving party
were adjudicated by the trial judge, including in the costs order, consequent
upon the moving party having been noted in default. The moving party sought and
was denied leave to appeal the costs order that he is concerned about. The
dismissal of his r. 59.06 motion in these circumstances cannot be said to have
been a final order. It was not the determination of the very subject matter of
the litigation or of any substantive right to relief or defence in the action,
all of which had already been determined. The dismissal of the r. 59.06 motion
was an interlocutory order:
Antique Treasures of the World Inc. v. Bauer
,
2003 CanLII 35349 (Ont. C.A.), at para. 4.

[7]

The moving party cites the decision in
Mehedi v. 2057161 Ontario
Inc.
, 2015 ONCA 670, 391 D.L.R. (4th) 374. There is no discussion in
that case of appeal routes and it cannot be taken to provide that the dismissal
of the motion under r. 59.06 resulted in a final order in this case.

[8]

The motion is dismissed, with costs payable to the responding party in
the sum of $750, inclusive of disbursements and applicable taxes.

G.R. Strathy C.J.O.

B. Zarnett J.A.

Wilton-Siegel J.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hassan, 2021 ONCA 769

DATE: 20211027

DOCKET: C65319

Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Saad Hassan

Appellant

Nicholas A. Xynnis, for the appellant

Craig Harper, for the respondent

Heard and released orally: October 26, 2021 by
    video conference

On appeal from the convictions entered by Justice Grant
    R. Dow of the Superior Court of Justice, sitting with a jury, dated May 25,
    2017.

REASONS FOR DECISION

[1]

This is an appeal from conviction for one count of robbery, one count of
    attempted robbery, two counts of using an imitation firearm while committing
    robbery, and one count of uttering a threat. The offences involve the robbery
    of two women. When the appellant was located by the police in the area of the
    crimes not long after they occurred, the wallet of one woman and the imitation
    firearm used in the robberies were located in his car.

[2]

The appellant argues that the jury charge was inadequate in the sense
    that it:

1.

Failed to relate the evidence to the issues; and

2.

Failed to deal with the exculpatory evidence in the charge.

[3]

We disagree. This was a focused and straightforward trial involving only
    three days of evidence, much of which was not in dispute.

[4]

The jurys attention was properly focused on the live issues. The charge
    followed a two-step process. First, the trial judge outlined the legal issues
    the jury had to consider. No objection is taken to how those legal issues were
    expressed.

[5]

Second, the trial judge related the evidence to those issues. While the
    evidentiary review was not exhaustive in nature, it need not be, particularly
    in the context of a very short trial where the evidence is fresh in the minds
    of jurors and closing arguments have just been made.

[6]

The adequacy of the charge in this case is reflected in the absence of
    any objection. Moreover, the absence of objection exists in the face of having
    pre-vetted the charge with counsel where no concerns were expressed, specifically
    as they relate to the issues now raised on appeal.

[7]

We are satisfied that in this straightforward, three-day jury trial, the
    jury was well equipped to decide the issues that needed to be decided.

[8]

The appeal is dismissed.

Fairburn A.C.J.O.

Paul Rouleau J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Miragliotta
    v. Zanette, 2021 ONCA 764

DATE: 20211028

DOCKET: C67414

Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
    (
ad hoc
)

BETWEEN

Amelia Miragliotta and Francesco Di Nardo

Plaintiffs (Appellants)

and

Mark Zanette, Stephen Zanette, and Randy Zanette

Defendants (Respondents)

Patrick Di Monte, for the appellants

Brett D. Moldaver, for the respondents

Heard:
October 18, 2021 by video conference

On appeal from the order of Justice Chris de Sa of the
Superior Court of Justice
, dated
August 9,
    2019, with reasons reported at 2019 ONSC 4599
.

REASONS FOR DECISION

INTRODUCTION

[1]

The appellants
[1]
appeal from a decision that addressed two matters: (i) the amount the
    appellants should pay as a result of their having undertaken to be responsible
    for damages caused by an interim injunction they obtained against the
    respondents; and (ii) the amount that should be awarded to the appellants for
    expenditures to perform work that the respondents were obliged to complete
    under a 2010 court order. The appellants contend that the trial judge erred in
    his assessment of both amounts.
[2]

[2]

For the reasons that follow, we dismiss the
    appeal.

BACKGROUND

[3]

The appellants and the respondents own
    neighbouring development lands in the City of Vaughan. They have been involved
    in litigation concerning the lands for more than 10 years.

[4]

The 2010 court order provided that the parties would
    enter into an Agreement of Purchase and Sale under which the respondents would
    sell a small piece of land known as Block 7 to the appellants. It also provided
    that the respondents would be responsible for, among other things, completing
    the final coat of asphalt on a roadway known as the Appian Way by August 31,
    2013, and for completing the final curbs for Block 7.

[5]

The respondents did not comply with the deadline
    in the 2010 order. After giving notice to the respondents of their intention to
    hold them responsible for the cost of doing so, the appellants did the work to
    complete the curbs and added the final coat of asphalt to the Appian Way in May
    2014.

[6]

In August 2014, the respondents proposed a plan
    for their lands that involved creating, by severance, five building lots, two
    of which would have 50-foot frontages, rather than the 60 feet required under a
    city by-law. The respondents objected, and in October 2014, moved for an
    injunction, undertaking to be responsible for any damages flowing from the
    injunction. In January 2015, an injunction was granted restraining the
    respondents from proceeding with the development of the two building lots of 50
    feet. The injunction was set aside by a further order made on June 2, 2015,
    which the appellants appealed unsuccessfully.
[3]
When the injunction was set aside, a reference was directed to determine the
    damages for which the appellants were responsible as a result of their
    undertaking.

The Trial Judges Decision

[7]

The trial judge heard the reference on damages
    caused by the injunction, and a motion for summary judgment brought by the
    appellants to recover their expenditures for work relating to the respondents
    failure to comply with the 2010 order.

[8]

With respect to the damages caused by the
    injunction, the trial judge accepted the evidence of the respondents that they had
    obtained a commitment for new financing in September 2014, based on a five-lot
    development (with 50-foot lots). The refinancing would have allowed them to pay
    out their existing mortgages of $1,650,000, which were accruing interest at 9%
    and 13.7% in October 2014, with a new rate of 6.85% for an 18-month term. The
    motion for the injunction and the injunction itself prevented the refinancing
    from being finalized until May 2015; when it was finalized, it was based on four
    lots only and at a higher interest rate.

[9]

The trial judge awarded the respondents
    $30,289.58, representing the interest rate differentials as a result of their
    inability to refinance the property between October 2014 and May 2015; a
    further $22,252.50, representing higher interest on the eventual refinancing
    between May 2015 and November 2016; and a further $10,000 for [l]enders
    amendment fees. He described these as amounts the appellants did not
    seriously contest.

[10]

The trial judge denied the respondents claim
    for a further amount of about $121,000 of [i]nterest for carrying costs on the
    project due to  delays, as he found the delays complained of to support this
    aspect of the claim were not clearly associated with the injunction. Instead, the
    trial judge found that these costs were incurred as a result of the
    respondents development choices and natural delays caused by the circumstances
    surrounding the development.

[11]

The appellants claim relating to the final coat
    of asphalt and the curbs was allowed by the trial judge in the amount of
    $28,172.61, less $25,000 already paid. The trial judge also made an award of
    interest. He disallowed the higher amounts claimed by the appellants because
    they included interest calculated at 10%, rather than the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43 rate, and because they included amounts not
    attributable to the final coat of asphalt or the curbs as contemplated by the
    2010 order.

ANALYSIS

(i)

Damages Flowing from the Injunction

[12]

Before this court, the appellants argue that the
    trial judge ought not to have awarded the interest differential amounts or the
    lenders amendment fees. They essentially argue that the respondents did not
    have any municipal or planning approvals for five lots or four lots at the time
    of their planned or actual refinancing, and therefore ought not to have been approved
    for refinancing based on creating either number of lots. Therefore, they say
    the trial judge erred in finding the interest rate differentials, if there were
    any, and the lender amendment fees were caused by the injunction. They also
    argue that the respondents should have gone back to the lender and requested
    different terms once the injunction was dissolved in June 2015, in essence
    suggesting that there was a failure to mitigate.

[13]

We reject this ground of appeal.

[14]

The trial judge made findings of fact that the
    appellants had a lending commitment at a lower interest rate, that the
    injunction delayed its finalization, and that the respondents were only able to
    finalize it at a higher rate while the injunction was in effect. In other
    words, the respondents were deprived of the benefit of the September 2014
    lending commitment by reason of the injunction. The appellants do not argue
    that the trial judge made a palpable and overriding error in these findings, which
    are entitled to deference on appeal. These findings support the award of
    damages he made. It is immaterial whether the respondents,
vis-à-vis
their own lender, should have been approved for refinancing based
    on a particular number of lots before planning approvals were obtained. The
    damages flowing from the injunction were based on what the trial judge found had
    actually occurred, not what the respondents lender should have committed to in
    the circumstances.

[15]

Assuming that it is open to a party obligated to
    pay damages for obtaining an injunction to argue a failure to mitigate, the
    appellants would bear the onus of proof on that issue. The appellants pointed
    us to no evidence to support the argument that if the respondents had tried to
    renegotiate the refinancing after the injunction was dissolved, they would have
    succeeded.

(ii)

Compensation
    for Expenditures Under the 2010 Court Order

[16]

With respect to the award of compensation in
    their favour, the appellants argue that the trial judge gave them an inappropriately
    low sum. They say that the Appian Way road deteriorated due to the failure of
    the respondents to apply the final coat of asphalt by the deadline for doing
    so, and therefore they had to do additional work before they could apply the final
    coat. They say the trial judge took an unduly narrow view of what the 2010 order
    required.

[17]

We reject this ground of appeal as well. The
    trial judges interpretation of the terms of the 2010 order (which the
    appellants themselves stress was given on consent and was akin to a contract)
    is entitled to deference in this court. So is his comparison of what the
    appellants spent relative to what was required of the respondents under the
    2010 court order, as that is a matter with a heavily factual component. We see
    no error in the trial judges conclusions that would entitle this court to
    interfere.

CONCLUSION

[18]

The appeal is dismissed. The respondents are
    entitled to their costs of the appeal, fixed in the agreed amount of $12,500,
    inclusive of disbursements and applicable taxes.

G.R. Strathy C.J.O.

B. Zarnett J.A.

Wilton-Siegel J.

[1]

The appellant, Francesco Di Nardo, died while this appeal was
    pending. An order to continue the appeal under r. 10.02 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 was sought by his wife, Amelia Miragliotta, in the appellants
    factum.

[2]

The matter proceeded below both as a trial of issues on the
    damages flowing from the injunction and a motion for summary judgment for
    recovery of the appellants expenditures. For ease of reference, all references
    to the judge below describe him as the trial judge.

[3]

Pirpamer v. Zanette
,

2015 ONCA 723.


COURT OF APPEAL FOR ONTARIO

CITATION:
Motuz
    (Re), 2021 ONCA 765

DATE: 20211028

DOCKET: C69562

Rouleau, Benotto and Zarnett JJ.A.

IN THE MATTER OF: Gary Robert Motuz

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Gerald Brienza, for the respondent, Attorney General of
    Ontario

Julia Lefebvre, for the respondent, Person in Charge of
    Waypoint Centre for Mental Health Care

Heard: October 8, 2021 by video conference

On appeal against the disposition of the Ontario Review
    Board dated March 2, 2021, with reasons dated March 18, 2021.

REASONS FOR DECISION

[1]

Mr. Motuz has been in detention since June 2, 2015. He appeals the March 2,
    2021, disposition of the Ontario Review Board which refused to grant an
    absolute discharge. He seeks an absolute discharge or seeks to have the matter
    remitted to the Board for a new hearing.

BACKGROUND

[2]

The appellant has a lengthy criminal record, dating back to 1993. Five
    of these convictions were for violent offences. The most recent violent offence
    was the assault of a peace officer, of which he was convicted in 2004. His
    offences since then have been non-violent  most are for failure to comply with
    probation orders and trespass at night.

[3]

The appellant had a history panhandling. He was convicted of causing a
    disturbance and was required to stay away from a certain area on Dunlop Street
    in Barrie. In December 2014, police found him walking on Dunlop Street West and
    he was arrested.

[4]

Following his arrest, the appellant was required to attend for
    fingerprinting on January 12, 2015. He did not do so. Later in January 2015, he
    moved and failed to notify his probation officer of his change of address. He
    was convicted of breach of two probation orders. On June 2, 2015, he was found
    not criminally responsible on account of mental disorder on charges of failure
    to comply with probation order and failure to appear or comply with appearance
    notice.

[5]

Every year, on his review hearing, the Board continued his detention.
    His most recent hearing was February 24, 2021.

EVIDENCE AT THE HEARING

[6]

The appellants current psychiatric diagnoses are substance abuse,
    schizophrenia, and antisocial personality disorder. He was deemed incapable of
    making his own treatment decisions in August 2020.

[7]

The appellant has an inconsistent history of compliance with medication.
    In 2011, he was admitted to the hospital because of concerns that he was going
    to harm someone. He was brought to the Emergency Department where he had to be
    restrained and, once restrained, continued to spit at staff. In 2013, he
    appeared to throw a punch in the direction of a doctor while at the Central
    North Correctional Centre.

[8]

From the time that the appellant was detained following his NCR finding,
    his misconduct has been relatively minor in nature, such as slamming doors and
    badgering other residents and strangers for money and cigarettes. In February
    2019, the appellant was seen repeatedly picking up a chair and dropping it, he yelled
    at staff to fuck off, and slammed a door. He requested the seclusion room
    where he sat on a mattress and stared blankly at staff. He then began kicking
    the door, punching the window, and tied a pillowcase around his neck. He
    returned the pillowcase to staff when asked. This incident was later found to
    be the result of hyponatremia (water intoxication), after the appellant had
    consumed dangerous quantities of coffee, water, and pop.

[9]

The unanimous opinion of the treatment team was that the appellant poses
    a significant threat to the safety of the public

DECISION OF THE BOARD

[10]

The
    Board concluded that the appellant poses a significant threat to public safety.

[11]

He
    suffers from a major mental illness which is only partially controlled by
    medication. He also lacks insight into both the fact that he has a mental
    illness and the benefits of medication for that illness. He suffers from an
    antisocial personality disorder and has scored within the psychopathic range of
    the PCL-R.

[12]

While
    the appellant has not been convicted of violent offences in many years, he has
    exhibited aggressive behaviour, criminal in nature more recently. There is no
    doubt that if granted an absolute discharge, the appellant would cease
    medication and return to criminal behaviour. Even in the appellants more
    recent non-violent criminal history, he has been convicted of trespass at night
    which raises significant concerns about the nature of his activity and the
    potential consequences should he come across the residents of the property on
    which he is trespassing.

[13]

The
    appellant refuses to accept housing recommended by the hospital and has stated
    that if discharged, he would cease taking medication and consume marijuana.

ISSUE ON APPEAL

[14]

Was
    the boards refusal to grant an absolute discharge unreasonable?

The appellants position

[15]

The
    appellant submits that the Boards refusal to grant an absolute discharge was
    unreasonable for three reasons.

[16]

First,
    the appellant challenges the description of his more recent history as
    exhibiting aggressive behaviour that was criminal in nature. He submits that
    the Board misapprehended the evidence by failing to consider the lengthy
    absence of violent or aggressive behaviour by the appellant  including when he
    was unwell, precariously housed, and using illicit substances  in assessing
    whether he was a significant threat to public safety. This, the appellant submits,
    is evident in the Boards reasons at paras. 21 and 22 which provide the
    following:

21. The Board unanimously finds that Mr. Motuz continues to
    constitute a significant threat to the safety of the public. He suffers from a
    major mental illness which is only partially controlled by medication. He lacks
    insight into the fact that he has a mental illness, the positive impact of
    medication on that illness or the impact of marijuana use on his mental health.
    Although he has no convictions for violent offences for many years, he has
    exhibited aggressive behaviour, criminal in nature although not resulting in
    charges, both in and out of Hospital more recently. It is also noteworthy that
    for significant periods of time over the last many years he was either
    hospitalized or incarcerated and receiving treatment. Should he be granted an
    absolute discharge, there is no doubt that he would immediately cease
    medication and resume the use of intoxicants with decompensation and a return
    to criminal behaviour as a result.

22. Although Mr. Motuz' criminal record is largely nonviolent,
    it does include offences of violence and there is also a history of aggressive
    and threatening behaviour causing both physical and psychological harm which
    although criminal in nature did not result in criminal charges. It is also
    noteworthy that he has been convicted on a number of occasions of trespass at
    night, offences which raises significant concerns about the nature of his
    activity and the potential consequences should he come across the residents of
    the property on which he is trespassing.

[17]

The
    appellant submits that this also demonstrates that the Board erroneously
    conflated his past behaviour with his current condition.

[18]

Second,
    the appellant submits that the Board failed to consider evidence supporting a
    discharge, specifically, the dated nature of the appellants violent criminal
    history. The Board overemphasized the speculative concerns related to his more
    recent conduct, such as concerns that trespass at night provides an
    opportunity for violent behaviour that the appellant would seize on.

[19]

Third,
    the appellant submits that the evidence does not support the conclusion that he
    remains a significant risk to the public. Although the evidence before the
    Board supported its conclusion that, absent oversight, the appellant would
    likely stop taking medication, decompensate, and possibly return to criminal
    behaviour, this does not itself address whether the appellant poses a
    significant risk to public safety.

The Respondents position

[20]

The
    Crown and the Hospital submit that the Boards conclusion was reasonable. It
    should be read in combination with the evidence of Dr. Ann Jones and the
    Hospital Report, which the reasons for disposition adopt. The Board found that
    there was a significant threat to the public based on an holistic approach
    including his violent history, his mental illness, and  because the appellant
    has stated that he would not comply with treatment or take medication, and
    instead would take illicit substances, if he was no longer under the
    jurisdiction of the Board. The appellant also continues to refuse housing
    recommended by the hospital. They argue that the  appellant downplays the
    incidents of aggression with which he was involved when he submits that in the
    past, when he took illicit substances but not medication, he still did not act
    criminally or pose a danger to the public.

[21]

The
    Crown and the Hospital submit that given that the appellant resists efforts to
    integrate him into the community, a detention order is the least onerous and
    restriction disposition available.

ANALYSIS

[22]

We
    are not persuaded that the Board misapprehended the evidence concerning the appellants
    history of aggressive behaviour or  conflated the appellants recent behaviour
    with his past. The impugned paragraphs recognized both that he has no
    convictions for violent offences for many years (para.21) and that he has a
    history of aggressive and threating behaviour which included more recent
    incidents (para.22). Nor was there a failure to consider evidence in support of
    an absolute discharge. The Board considered the dated nature of the appellants
    criminal record for violent offences; however, based on the evidence as a
    whole, it decided that a detention order was warranted.

[23]

Nor
    are we persuaded that the record before the Board did not support its
    conclusion that the appellant remained a significant risk to the public.
    Although the Boards articulation of its reasons for finding significant risk
    is brief, the reasons must be read as a whole, in conjunction with the record:
    see
R. v. Dinardo,
2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. Even
    reasons which may rise to the level of concern and lack transparency have been
    considered not unreasonable when read with the evidence accepted by the Board: see
Re Marchese
,
2018 ONCA
    307, 359 C.C.C. (3d) 408, at paras. 11-12).

[24]

Here,
    in addition to its findings about the appellants history of violence and
    aggressive behaviour  the Board accepted the evidence of Dr. Jones and the
    unanimous opinion of the treatment team that the appellant poses a significant
    threat, and that detention is necessary to manage the risk. In particular, the
    Board accepted the following:

·

He suffers from a mental illness that is only partially
    controlled by medication.

·

He lacks insight into his illness and adamantly states he will
    discontinue medication.

·

Compliance with medication and avoidance of illicit substances is
    central to the mitigation of risk.

·

If granted an absolute discharge, he would immediately stop
    taking medication, would resume using intoxicants with decompensation, and would
    return to criminal behaviour.

·

His scores on psychiatric tests place him on the psychopathic
    range and his score on the VRAG (Violence Risk Appraisal Guide) was elevated
    suggesting he was in the high range of risk for violent recidivism.

·

He is not currently using his full privileges and is declining to
    engage in meaningful discussions about community living.

[25]

The
    Boards reasons, while brief, are not insufficient. When read in conjunction
    with the record, the disposition is not unreasonable.

DISPOSITION

[26]

The
    appeal is dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

B. Zarnett J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gauthier, 2021 ONCA 767

DATE: 20211028

DOCKET: C67880

Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

DArcy Gauthier

Appellant

Ian B. Kasper, for the appellant

Kristen Pollock, for the respondent

Heard and released orally: October 25, 2021 by
    video conference

On appeal from the conviction entered on September 19,
    2019 by Justice Gary W. Tranmer of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of a single count of sexual assault
    committed in 1989. The trial judges lengthy reasons turned largely on his
    assessment of the complainants credibility. The appeal rests on three
    interrelated grounds, all of which arise from the reasons for judgment:

1.

That the trial judge reversed the burden of proof in how he approached
    alibi evidence;

2.

That the trial judge erred by approaching the evidence in a piecemeal
    fashion; and

3.

That the verdict is unreasonable.

[2]

We see no reversal of the burden of proof. The trial judge clearly and
    correctly reviewed the applicable legal principles and applied them without
    error.

[3]

Nor do we see any error in how the trial judge approached the evidence,
    specifically regarding what were said to be inconsistencies and improbabilities
    arising from the complainants version of events. To the contrary, the trial
    judge painstakingly reviewed the alleged inconsistencies and improbabilities
    and reconciled them. His reasons adequately explain how he arrived at his
    credibility findings. The appellants core complaint is really that he does not
    like the conclusions reached by the trial judge. It was open to the trial judge
    to conclude as he did on these points. He is owed deference.

[4]

Bearing in mind the complainants evidence, the verdict was one that a
    properly instructed trier of fact, acting judicially, could reach. Therefore,
    the verdict is not unreasonable.

[5]

The appeal is dismissed.

Fairburn A.C.J.O.

Paul Rouleau J.A.

Grant Huscroft J.A.