COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Training, Colleges and
    Universities) v. Two Feathers Forest Products LP, 2013 ONCA 598

DATE: 20131002

DOCKET: C56138

Feldman, Lauwers and Strathy JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario as
    Represented by the Minister of Training, Colleges and Universities

Applicant (Respondent)

and

Two Feathers Forest Products LP, Pikangikum First
    Nation, Eagle Lake First Nation, 1670761 Ontario Inc., Wabigoon Lake Ojibway
    First Nation and
Pricewaterhousecoopers Inc.

Respondents (
Appellant
)

Richard W. Schwartz, for the appellant

Ronald E. Carr and Eric Wagner, for the respondent

Heard: June 4, 2013

On appeal from the judgment of Justice John S. Fregeau of
    the Superior Court of Justice, dated September 24, 2012, with reasons reported
    at 2012 ONSC 5077.

Feldman
    J.A.:

Introduction

[1]

The issue in this case is whether grant monies that were advanced by the
    respondent, Ontarios Minister of Training Colleges and Universities (the Ministry),
    to a First Nations limited partnership in northern Ontario, but not spent
    before the partnership sought to dissolve and appoint an interim receiver, were
    subject to a
Quistclose
trust
[1]
for the benefit of the Ministry. The application judge held that they were
    trust monies and that the receiver should therefore pay the monies to the Ministry.
    The receiver appeals. For the reasons that follow, I agree with the receiver
    that the monies are not subject to a
Quistclose
trust and are therefore
    available to be distributed in the receivership. .

Facts

[2]

Two Feathers Forest Products was a limited partnership consisting of
    three First Nations limited partners and a general partner. It was formed in
    2007 to develop and operate two plants, a planer mill and manufacturing plant
    in Dryden, Ontario and a saw mill in Red Lake, Ontario. In 2010, Two Feathers
    applied to the Northern Training Partnership Fund, recently established by the respondent
    Ministry to support project-based skills training for northern Ontario
    residents, for a grant to provide skills training for Aboriginal and non-Aboriginal
    residents of northern Ontario in its two proposed plants.

[3]

The application was accepted and a detailed written agreement for the
    advance of the funds was executed, effective February 14, 2011 (the funding
    agreement). In September, 2011, after the Ministry had advanced a total of
    $1,895,870.00 under the funding agreement in three instalments, one in March,
    one in May and one in July, two of the limited partners applied to dissolve Two
    Feathers. The appellant was appointed interim receiver and manager in October,
    2011.

[4]

The appellant traced the funds that had been advanced by the Ministry
    and found that $1,580,000.00 was paid to the third limited partner, Wabigoon
    Lake Forest Products LP (WLFP). From those funds, $563,911.25 had been used to
    purchase a planer mill. The balance was intended to be used to lease premises
    for the mill but was still in the hands of WLFP. Ultimately those monies were returned
    to the appellant pending the disposition of this court application.

[5]

The application judge found that the Ministry had satisfied the onus to
    prove that the original grant funds were impressed with a trust, known as a
Quistclose
Trust, in the hands of Two Feathers and the funds were therefore now being held
    by the interim receiver for the benefit of the Ministry.

[6]

To make that finding, the application judge examined the provisions of
    the funding agreement in detail. The funds were to be used only for the purpose
    of carrying out the project. The project is defined in Article 1.2 of the
    funding agreement to mean the undertaking as set out in Schedule A.
[2]
In addition to a requirement that it implement on-the-job training, the project
    is defined in the funding agreement with reference to Two Feathers proposal to
    the Ministry (the proposal). The proposal describes a specialized lumber
    manufacturing and export business where skills training would take place. It sets
    out specified amounts of proposed funding in three categories. The request was
    for $160,920 and $288,080 for on-the-job and classroom training, respectively.
    The larger portion of the funding, $3,026,000, was designated for [o]ther,
    which it further describes as [c]lassroom and equipment lease.
[3]

[7]

The funding agreement restricted Two Feathers to using the funds only in
    accordance with that agreement. Two Feathers had to segregate any funds not
    immediately required into an interest-bearing account, and the amount of any
    interest earned would be deducted from any further funds advanced under the
    funding agreement. The Ministry was not obliged to advance the funds unless it
    was satisfied with the progress of the project. It could also terminate the funding
    agreement on 30 days notice and demand return of any unused funds still in the
    possession or under the control of Two Feathers. Similarly, if the Ministry
    considered that Two Feathers breached the agreement, it could demand repayment
    of any remaining funds. Likewise, on the expiry of the funding agreement, Two
    Feathers was required to return any unused funds. In respect of the repayment
    or return of funds already advanced, Article 17 provides that monies owing to
    the Ministry by Two Feathers shall be deemed to be a debt due and owing to
    the Ministry.

[8]

The application judge concluded, based on his review of the entire
    funding agreement, that the funds advanced and not yet spent by Two Feathers
    were held subject to a
Quistclose
trust for the benefit of the
    Ministry and must be returned to the Ministry by the interim receiver. He based
    his conclusion on the following findings: 1) There was no intention that Two
    Feathers would be able to freely dispose of the advanced funds; rather, the
    funds were to be used only for the specific purpose of carrying out the
    project. To that end, the Ministry had the ability and the mechanisms to ensure
    that the funds were used only for that purpose and to have the funds returned
    if they were not being so used. 2) The three certainties of a trust, certainty
    of intention, certainty of subject-matter and certainty of object, had been
    established on a balance of probabilities. The object of the trust was the on-the-job
    skills training to be provided in the project.

Analysis

A.

history of the
Quistclose
trust

[9]

The genesis of the concept of the
Quistclose
trust was the
    House of Lords decision in
Barclays Bank Ltd. v. Quistclose Investments
    Ltd.
, [1970] A.C. 567. In that case, the trust arose in the following way:
    Rolls Razor was a client of Barclays Bank that was in financial difficulties and
    had exceeded its allowed overdraft at the bank by a significant margin. In
    order to try to recover financially, Rolls Razor found a lender who agreed to
    lend it one million pounds but on the condition that Rolls Razor obtain funds
    from another source to pay its shareholders the dividend of £209,719 8s. 6d,
    which it had already declared and which was to be paid within a short time. Quistclose
    became that source, agreeing to lend Rolls Razor the sum necessary to pay the
    dividend, on the condition that the funds would be used only for that purpose
    and that they would be held in a special account, newly opened for that
    purpose, until the dividend was paid.

[10]

One
    of the directors of Rolls Razor then made an oral agreement with its bank
    manager at Barclays, confirmed by the letter that Rolls Razor later sent to the
    bank with Quistcloses cheque. They agreed that the cheque was to be deposited
    into a special account and was to be used only to pay the declared dividend. Unfortunately,
    the company was unable to raise the further funds it needed to remain in
    business, and decided to voluntarily liquidate. Contrary to the agreement that
    the Quistclose loan would only be used to pay the shareholders dividend, the
    bank then set off the balance in the special account against part of the debit
    balance owed to it.

[11]

Quistclose
    sued the bank for return of the funds. Lord Wilberforce explained that in order
    for Quistclose to be able to claim the funds from the bank, it had to meet two
    requirements. First, it had to establish that the funds were impressed with a
    trust in its favour if the funds were not used to pay the dividend, and second,
    that the bank had such notice of the trust or of the circumstances giving rise
    to it as to make the trust binding upon them (at p. 579).

[12]

Lord
    Wilberforce had no trouble finding that the mutual intention of Rolls Razor,
    the borrower, and Quistclose, the lender, was that the funds were to be used
    only to pay the declared dividend and were not to form part of the assets of
    Rolls Razor. He concluded that a necessary consequence of their mutual
    intention was that if the dividend could not be paid, then the funds were to be
    returned to Quistclose. He stated that it had long been recognized that this
    type of arrangement created a fiduciary obligation to hold the funds in trust:

That arrangements of this character for the payment of a
    persons creditors by a third person, give rise to a relationship of a
    fiduciary character or trust, in favour, as a primary trust, of the creditors,
    and secondarily, if the primary trust fails, of the third person, has been
    recognised in a series of cases over some 150 years (at p. 580).

[13]

He
    referred to five historical cases, at pp. 580-81, all of which involved monies loaned
    for the purpose of paying a specific group of the borrowers creditors in order
    to stave off bankruptcy:
Toovey v. Milne
(1819), 2 B. & A. 683;
Edwards
    v. Glyn
(1859), 2 E. and E. 29;
In re Rogers, Ex parte Holland and Hannen
(1891), 8 Morr. B.C. 243;
In re Drucker (No.1)
, [1902] 2 K.B. 237;
In
    re Hooley, Ex parte Trustee
, [1915] H.B.R. 181.

[14]

Turning
    to the notice issue, Lord Wilberforce was satisfied that the bank had notice
    that the monies were provided by a third person as a loan, and were to be used
    only to pay the dividend. This information was sufficient to constitute notice
    of the trust. Therefore, the bank could not claim the money for its own benefit:
    at p. 582.

[15]

The
Quistclose
trust concept was originally drawn by Lord Wilberforce with
    narrowly defined parameters in the
Barclays Bank
decision. In
    particular, the fiduciary relationship arose where money was lent in emergent
    circumstances to allow a debtor to pay a certain creditor or group of its
    creditors in order to keep the debtor in business. If the funds could not be
    used for that purpose, then the funds were returned to the lender. Those
    parameters were, however, significantly broadened some thirty years later, when
    the House of Lords found a
Quistclose
trust arose in
Twinsectra
    Ltd. v. Yardley and others,
[2002] 2 A.C. 164.

[16]

In
    that case, Twinsectra agreed to lend £1 million to Y for the purpose of
    purchasing property, but on three conditions: 1) that Ys solicitor undertake
    to hold the funds until they were used by Y to purchase property; 2) that Ys
    solicitor undertake that the funds would only be used for that purpose; and 3)
    that Ys solicitor would guarantee repayment of the loan. When Ys solicitor
    would not give the guarantee, Y found another solicitor who agreed to give the
    undertakings and the guarantee. However, that solicitor essentially ignored his
    undertaking and paid the money over to Ys solicitor who allowed Y to use the
    money freely and not to purchase property. The loan was not repaid and the
    solicitor who gave the guarantee went bankrupt. In the action against Ys
    solicitor, one of the issues was whether Ys solicitor could be held
    responsible as a party to a breach of trust. As a threshold matter, therefore, the
    House of Lords first had to determine whether the circumstances of the loan gave
    rise to a
Quistclose
trust.

[17]

Both
    Lord Hoffmann and Lord Millett wrote on the issue. Lord Hoffmann stated that
    the trust and its terms were found in the undertaking contained in the first
    two conditions of the loan. Y was not free to dispose of the money as he wished
    but only to purchase property. The effect of the undertaking was that the money
    remained Twinsectras until it was used to buy property. Therefore, the
    solicitor who held the money held it in trust for the lender, Twinsectra,
    subject to a power to apply it as a loan to Y in accordance with the terms of
    the undertaking. Whether the subject funds were at the free disposal of the
    recipient is one of the essential identifying elements of a
Quistclose
trust.

[18]

Lord
    Hoffmann addressed the two problems that the trial judge believed prevented him
    from finding a
Quistclose
trust in the circumstances. The first was
    that the terms of the undertaking were too vague  no particular property was
    identified. Dealing with this point, Lord Hoffmann agreed that the undertaking
    was an unusual one: Twinsectra was not seeking any security over the property
    to be purchased, so that there was nothing to prevent Y from subsequently
    mortgaging the property and using the money for whatever he wished. Lord
    Hoffmanns response was that as long as a court could say whether the money was
    used for the described purpose, then the purpose was not too vague and not void
    for uncertainty.

[19]

The
    second objection was that Twinsectra did not intend to create a trust based on
    the undertakings because its security was the solicitors guarantee. To that
    Lord Hoffmann responded that the lenders intention was irrelevant:

Whether a trust was created and what were its terms must depend
    upon the construction of the undertaking (at para. 17).

[20]

Lord
    Milletts main focus was to properly characterize the operation of the
Quistclose
trust under trust principles by conducting an analysis of the locus of the
    legal and beneficial interest in the trust property.
[4]
He concluded that the monies are always held on a resulting trust for the
    lender who never parts with the entire beneficial interest in them and that it
    is the lender who is the person who can enforce the trust. He rejected the
    theory that anyone but the lender can enforce the trust, including the persons
    who are the primary objects of the trust, such as a subgroup of the borrowers
    creditors. In the context of that analysis, he addressed the question whether a
Quistclose
trusts primary purpose must be to benefit a subset of
    identified creditors as in the
Barclays Bank
case itself. He rejected
    that premise, referring to cases where his characterization of the purpose of
    the loan was not to benefit a group of people but to purchase equipment or to
    enable a bank to meet a run and where only the lender could oversee its
    enforcement. He concluded that, as in the
Twinsectra
circumstances, a
Quistclose
trust must be able to accommodate gifts and loans for an abstract
    purpose (at para. 89).

[21]

Lord
    Millett also reviewed the three certainties required for a trust: certainty of
    intention, of subject-matter and of objects, at paras. 71, 101. On the issue of
    the significance of certainty of the objects of the trust, Lord Millett agreed
    with Lord Hoffmann, pointing out as well that if the objects were not
    sufficiently certain, the result in law is that the monies revert back to the
    lender under a resulting trust  the same result as when the purpose cannot be
    carried out.  (para. 101)

[22]

One
    could conclude that after
Twinsectra
, any time monies are advanced on
    an undertaking to use the monies only for a stated purpose, which can be an
    abstract purpose, then regardless of the subjective intention of the person
    providing the funds and of the nature of the purpose, there is a resulting trust
    for the lender. This represents a significant expansion of the
Quistclose
trust, which had been narrowly described in the
Barclays Bank
case.

[23]

As
    I have concluded that the requirements for a
Quistclose
trust have not
    been met in this case, I do not need to decide to what extent that expansion
    should be adopted in Ontario. However, when that decision does have to be made,
    the court will have to consider a number of commercial consequences, one of the
    most significant of which is the potential effect on the creditors of the
    borrower (or grantee) of the subject funds. For example, as in this case, where
    funds are advanced to a business with no registration under the
Personal
    Property Security Act
, R.S.O. 1990, c. P-10, creditors will have no
    notice, and in many cases no knowledge, that they are dealing with a debtor
    whose money is subject to a trust and not available to general creditors.
[5]

B.

Was there a
quistclose
trust in this case?

[24]

The
    House of Lords authorities are clear that on the issue of the intention to
    create a trust, it is not the subjective intention of the lender (here the
    granter) but the intention of the two parties, discerned from the terms of the
    loan (here the grant). As Lord Millett put it:

A settlor must, of course, possess the necessary intention to
    create a trust, but his subjective intentions are irrelevant. If he enters into
    arrangements which have the effect of creating a trust, it is not necessary
    that he should appreciate that they do so; it is sufficient that he intends to
    enter into them (
Twinsectra
, at para. 71).

[25]

The
    application judge came to the factual conclusion  based on all of the terms of
    the funding agreement that had the effect of a) limiting Two Feathers use of
    the funds, and b) providing that the unused funds be returned to the Ministry
    that Two Feathers did not receive the funds for its free disposal but only for
    the purpose of carrying out the project. He then followed with the legal
    conclusion that: Viewed objectively, I am satisfied that the parties intended
    to enter into a trust arrangement.

[26]

However,
    a close examination of the terms of the funding agreement shows that the
    parties did not intend that Two Feathers would hold the funds in trust for the
    Ministry. In particular, the funding agreement specifically provides that any
    unused funds constitute a debt owing to the Ministry, not trust funds, and that
    Two Feathers had significant freedom to use the majority of the funds. As a
    result, in my view, the application judge erred in law in finding that the
    funds were held on a
Quistclose
trust.

[27]

First,
    the funding agreement specifically identifies the nature of the relationship
    between the parties respecting the funds while they are in the hands of Two
    Feathers but not yet expended  the critical time  as one not of trust, but of
    debtor/creditor. Article 17.1 provides that any monies under the funding
    agreement that the recipient, Two Feathers, owes to the Ministry shall be
    deemed to be a debt due and owing to the Ministry by the Recipient.

[28]

If
    the grant monies that Two Feathers has not yet spent constitute a debt that Two
    Feathers owes to the Ministry, they cannot be held by Two Feathers on trust for
    the Ministry. While the courts in a number of the
Quistclose
trust
    cases state that it is not necessary for the parties to use the word trust
    when creating their agreement, no court has said that when the parties have
    explicitly characterized their legal relationship in one way, the court will
    override their agreement and characterize it another way.

[29]

To
    be clear, there was an argument made in
Barclays Bank
that because the
    transaction between Quistclose and Rolls Razor was one of loan creating the
    legal obligation of debt, that excluded the implication of a trust, enforceable
    in equity. The House of Lords rejected that argument. The loan only arose once
    the funds were used for the designated purpose  until that time, the funds
    were held by the borrower on trust for the lender, and did not become the
    property of the borrower:

There is surely no difficulty in recognising the co-existence
    in one transaction of legal and equitable rights and remedies: when the money
    is advanced, the lender acquires an equitable right to see that it is applied
    for the primary designated purpose: when the purpose has been carried out
    (i.e., the debt paid) the lender has his remedy against the borrower in debt (
Barclays
    Bank
, at p. 581).

[30]

In
    this case, the transaction is one of grant, not loan. However, before the funds
    are actually expended for the purposes of the grant, or if they are left over
    and not needed for the agreed purposes, the parties agreed that they
    constituted, not a trust, but a debt owed by Two Feathers to the Ministry. To
    be a debt, the property in the funds belongs to the debtor, i.e., to Two Feathers,
    unlike a trust where only the legal title is held by the trustee, with the
    beneficial title in the trust beneficiary.

[31]

The
    application judge stated that

[t]he fact that the word trust does not appear in the
    agreement, and that Article 17 of the agreement stipulates that monies owing to
    [the Ministry] by Two Feathers shall be deemed to be a debt due and owing to
    [the Ministry] is not, in my opinion, determinative of the intention of the
    parties as to whether the funds were to be at the free disposal of Two Feathers
    once advanced by [the Ministry].

[32]

I
    agree with the application judge that agreeing that monies owed back to the Ministry
    are deemed to be a debt does not determine whether they are at the free
    disposal of Two Feathers. However, the effect of this characterization of the granted
    funds that have to be returned to the Ministry if they are not spent or needed
    for the project, is that until Two Feathers pays those funds back, it holds
    them as a debt due to the Ministry, not in trust for the Ministry. To override
    the express agreement of the parties, that any funds owed back to the Ministry
    under the agreement constitute a debt and for the court instead to imply a
    trust, would be contrary to the cardinal rule of interpreting written
    commercial contracts that the parties have intended what they said:
Ventas,
    Inc. v. Sunrise Senior Living Real Estate Investment Trust
, 2007 ONCA 205,
    at para. 24;
Venture Capital USA Inc. v. Yorkton Securities Inc.
(2005),
    75 O.R. (3d) 325 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No.
    334, at para. 26.

[33]

The
    second error is the application judges conclusion that the funds were not at
    the free disposal of Two Feathers, and it arises from an examination of
    Schedule B to the funding agreement. Schedule B is the budget that governs
    the actual spending requirement for the grant funds. It covers the three fiscal
    years of the term of the agreement, 2010-2011, 2011-2012 and 2012-2013. As
    discussed above, of the sum of $3,535,000, the total maximum amount to be
    granted, only $449,000, was to be spent on on-the-job and in-class training
    costs, while the vast majority of the funds, $3,026,000, are designated only as
    other in Schedule B. In the proposal, the other funds were described as being
    for [c]lassroom and equipment lease.

[34]

Since
    specific funds are designated in Schedule B for the actual costs of training,
    which was the purpose of the grant from the Ministry, the vast majority of the
    other funds appear to be  available over the term of the funding agreement to
    set up the business more generally, including lease and equipment costs for the
    whole business.

[35]

As
    a result, although the funding agreement requires that Two Feathers spend the
    grant money on the project, in fact, the budget in Schedule B gives Two
    Feathers significant discretion to spend the largest part of those monies. Contrary
    to the conclusion reached by the application judge, those monies were
    essentially at the free disposal of Two Feathers.

[36]

Finally,
    the circumstances of the grant transaction in this case do not have many of the
    characteristics that caused a trust to be found in either of the two seminal
    cases. It was not a situation where the limited partnership needed immediate
    funding to stave off bankruptcy; the funds were not needed to make a specific
    payment, whether to a group of creditors or to make a specific purchase;
    instead, they were obtained as a basic source of business funding for a
    long-term project.

[37]

Nor
    were the funds advanced based on a short or quickly drawn contractual
    arrangement; instead, they were the subject of a detailed government-approved
    funding agreement, fully executed by both parties that prescribed all aspects
    of the funding relationship between them. It is difficult to see the basis for
    implying a trust where a sophisticated party, such as a provincial ministry,
    provides funding by means of a commercial agreement in which its contractual
    rights and remedies are carefully and extensively defined.

[38]

This
    court has not yet applied the
Quistclose
trust concept.
[6]
However, the British Columbia Court of Appeal in
Cliffs Over Maple Bay
    Investments Ltd. (Re)
, 2011 BCCA 180, 17 B.C.L.R. (5th) 60, recently
    reversed a decision of a motion judge that had implied a
Quistclose
trust
    in circumstances where funds were loaned to be used for a general, long-term
    purpose, as in this case. There, funds were advanced by a debtor-in-possession
    lender in the context of a
Companies Creditors Arrangement Act
,
    R.S.C. 1985, c. C-36, order [t]o facilitate further construction of [a] golf
    course and development of [a series of] home lots and source an irrigation
    solution for the golf course: at para. 56. In rejecting the implication of a
Quistclose
trust for a number of reasons, the British Columbia Court of Appeal stated:

In short, although it is obvious that Cliffs agreed as a matter
    of contract that the funds would be used for the general purpose stated, I
    disagree that this restriction gives rise to any inference of an intention on
    the part of both parties to create the specialized vehicle that is a
Quistclose
trust(at para. 69).

[39]

To
    summarize my analysis, the Ministry entered into a detailed funding agreement
    with Two Feathers setting out the terms under which the Ministry granted
    funding for Two Feathers to provide on-the-job skills training to residents of
    northern Ontario. Although the funds provided were intended to be used only for
    the purpose described in the funding agreement, there is no basis to infer a
    mutual intention that the funds were to be held on trust for the Ministry. To
    the contrary, under the budget attached to the funding agreement, the
    recipient, Two Feathers, had significant  discretion to spend the majority of
    the funds as long as it was for the general purpose stated, as in the
Cliffs
    Over Maple Bay
case. And most importantly, Article 17 of the funding agreement
    defines the relationship between the parties with respect to any funds that
    have to be returned to the Ministry under the agreement as a debt, not a trust.

Conclusion

[40]

In
    my view, the application judge erred in law in concluding that in these
    circumstances, the court could imply a
Quistclose
trust. I would
    therefore allow the appeal, set aside the order of the application judge and dismiss
    the application with costs, fixed at $15,000.00, inclusive of disbursements and
    HST.

Released: KF October 2, 2013

K. Feldman J.A.

I agree. P. Lauwers
    J.A.

I agree. G.R.
    Strathy J.A.

[1]

Barclays Bank
    Ltd. v. Quistclose Investments Ltd.
, [1970] A.C. 567.

[2]
Schedule A is comprised of the following Project Description:

Background. The purpose of
    the Project is to provide support to project-based skills training to help
    Aboriginal and non-Aboriginal Northern Ontarians participate in and benefit
    from emerging economic development opportunities. The Province of Ontario
    announced this new initiative under the project of Jobs and Growth in Northern
    Ontario.

Objective. The objective of
    this initiative is to help Aboriginal and non-Aboriginal Northern Ontarians

·

[A]ttain workplace skills and sustain employment in the resource
    related sectors of mining, energy and greener economy, forestry, environment,
    bio-economy, tourism and agriculture by providing employers in Northern Ontario
    with skilled workers for current and future needs.

·

Develop innovative collaborations and models of delivery that are
    tailored to specific circumstances and needs of the community.

·

[E]nhance and add value to resources, programs and services already
    available in the community.

The Recipient shall carry
    out the Project in accordance with the Proposal.

The Ministry shall provide
    up to 75% of the overall eligible costs of approved projects. Project partners
    will provide3 a minimum of 25% of the overall funding of approved projects. The
    Ministry funding shall not exceed $15,000 per participant for each year of the
    Project.

On-the-Job Component. The
    Recipient shall ensure that the Project has an on-the-job component, including
    as part of a pre-apprenticeship type program must comply with all applicable
    legislation and regulations. The on-the-job component of a pre-apprenticeship
    type, must be trade-appropriate and based on the current Apprenticeship
    Training Standard or Schedule of Training.

The Recipient shall ensure
    participants and employers comply with all applicable legislation and
    regulations as well as the current Apprenticeship Training Standard or Schedule
    of Training.

The Recipient shall ensure
    where projects delivering the Level 1 Apprenticeship In-School Curriculum
    Standard are an approved Apprenticeship Training Delivery Agent for the trade
    including delivery format and for that location. Participants who successfully
    complete all of the requirements of Level 1 will be given credit for this level
    of training.

Apprenticeship Training
    Delivery Agents are required to issue participants who successfully complete
    Level 1 will be provided the same documentation given to registered apprentices
    (e.g. transcript). Project participants must meet the same requirements as
    registered apprentices to pass level 1.

In compulsory or restricted
    trades, Level 1 must be taught by a journeyperson with a current Certification
    of Qualification in that trade.

Performance Targets. The
    Recipient shall meet [a series of] performance targets

[3]
The details of the proposal are in Schedule F of the funding agreement.

[4]
Lord Millett embarked on his analysis to resolve the question of which party
    could enforce performance of a
Quistclose
trust: at paras. 77-100. This
    issue is significant because non-charitable purpose trusts may be invalid at
    common law if there is no party with standing to enforce performance of the
    trustees obligations  since an abstract purpose cannot come to court. The
    Alberta Court of Queens Bench invalidated a similar trust on this basis in
Ernst
    & Young Inc. v. Central Guaranty Trust Co.
, 2004 ABQB 389, 29 Alta.
    L.R. (4th) 269, though the decision was reversed on appeal on other grounds:
    2006 ABCA 337, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 9.

[5]
See also concerns raised in: Michael G. Bridge et al.,
Formalism,
    Functionalism, and Understanding the Law of Secured Transactions (1999) 44
    McGill L.J. 567, at pp. 610-614 (Security and Trust).

[6]
A number of Ontario trial level decisions have implied
Quistclose
trusts. These may be divided into four categories. First, two decisions
    accepted the
Quistclose
trust principle, but refused to apply it in
    the circumstances:
Del Grande v. McLeery
(1998), E.T.R. (2d) 30 (Ont. Gen.
    Div.), affd (2000), 31 E.T.R. (2d) 50 (Ont. C.A.);
Niedner Ltd. v. Lloyds
    Bank of Canada
(1990), 74 O.R. (2d) 574 (H.C.). Second, two decisions are
    consistent with the long line of authority cited in
Barclays Bank
in
    which a trust was implied with respect to a payment for a specific debt:
Ling
    v. Chinavision Canada Corp.
(1992), 10 O.R. (3d) 79 (Gen. Div.);
Continental
    Bank of Canada v. Boekamp Manufacturing Inc.
, [1990] O.J. No. 143 (H.C.).
    Third, a series of decisions implied a
Quistclose
trust, but with some
    ambiguity as to how much the case turned on the
Quistclose
trust
    analysis:
Cummings Estate v. Peopledge HR Services Inc.
, 2013 ONSC
    2781;
Teperman v. Teperman
, [2000] O.J. No. 4133 (S.C.);
Triax
    Resource Ltd. Partnership v. Research Capital Corp.
(1999), 96 O.T.C. 290
    (S.C.);
Smith v. Gold Key Construction Ltd.
, [1993] O.J. No. 147 (Gen.
    Div.);
Abulyha v. Montemurro
, [1984] O.J. No. 962 (H.C.). Finally, two
    decisions prior to
Twinsectra
extended the
Quistclose
trust
    concept beyond a payment to discharge a specified debt
: Ontario (Securities
    Commission) v. Consortium Construction Inc.
(1993), 1 C.C.L.S. 117 (Ont.
    Gen. Div.);
Gignac, Sutts v. National Bank of Canada
(1987), 5 C.B.R.
    (4th) 44 (Ont. H.C.).


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alton, 2013 ONCA 654

DATE: 20131029

DOCKET: C56064

Rosenberg, Rouleau and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wesley Alton

Appellant

Andrew Furgiuele, for the appellant

Kim Crosbie, for the respondent

Heard and released orally: October 11, 2013

On appeal from the conviction entered on May 28, 2012 and
    the sentence imposed on September 28, 2012 by Justice Edward J. Koke of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appeal from sentence is dismissed as abandoned. We also dismiss the
    appeal from conviction. The appellant raises several issues. The trial judges
    findings about demeanor are supported by the record. That the complainant was
    combative on a few occasions in response to an aggressive cross-examination did
    not detract from the trial judges positive finding.

[2]

The trial judge was fair in his treatment of the admissions by the witnesses.
    The stark factors that stood out are the appellants adamant denial that he was
    ever alone with the complainant or physically abused the Crown witnesses. The comparison
    drawn by the trial judge was grounded in the record.

[3]

We do not agree that the trial judge misapprehended the evidence in any
    relevant sense. For example, the record fully supports the trial judges
    conclusion that the mother did stand by while the appellant physically abused
    the children.

[4]

The trial judge gave the same scrutiny to the complainants evidence and
    the appellants evidence. He explained why he rejected the appellants evidence
    and accepted the Crowns evidence. Those findings are entitled to deference. We
    have not been persuaded we should interfere.

[5]

Accordingly, the appeal from conviction is dismissed.

M.
    Rosenberg J.A.

P.S.
    Rouleau J.A.

"G.R. Strathy
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brownson, 2013
    ONCA 619

DATE: 20131015

DOCKET: C54358

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffery Brownson

Applicant/Appellant

Robert J. Reynolds, for the applicant/appellant

Chris Dwornikiewicz, for the respondent

Heard: September 12, 2013

On appeal from the judgment of Justice G.I. Thomson of
    the Superior Court of Justice, sitting as a summary conviction appeal judge, dated
    September 30, 2011, with reasons reported at
2011 ONSC 5793,
[2011] O.J. No. 6403,
dismissing an appeal from the
    conviction entered by Justice S.J. Hunter of the Ontario Court of Justice, dated
    December 10, 2010.

MacPherson J.A.:

A.

Introduction

[1]

This appeal raises a narrow, but important issue: in what circumstances
    should this court permit the Crown to amend an information against an accused
    person at the appeal hearing?

B.

Facts

(1)

The parties and events

[2]

The appellant Jeffery Brownson was convicted of operating a motor
    vehicle (an ATV) while disqualified from doing so by reason of an order
    pursuant to s. 259(1) of the
Criminal Code
,
R.S.C. 1985, c. C-46, contrary to s. 259(4)(a) of the
Code
.
    He was sentenced to 15 days incarceration and a one year driving prohibition consecutive
    to any prohibition currently in place.

[3]

Pursuant to s. 259(5) of the
Code
, the fact of disqualification
    can be proven in two ways: by proof of disqualification under s. 259(1) of the
Code
,
or by proof of disqualification under a
    provincial law.  In this case, the information was particularized as follows:

That Jeffery Brownson on or about the 28
th
day of
    June in the year 2010 at the village of Marmora in the said Region, did operate
    a motor vehicle, to wit a 2006 yellow Bombardier ATV,
while disqualified
    from doing so by reason of an order pursuant to section 259(1) of the Criminal
    Code
contrary to section 259(4)(a) of the
Criminal Code of Canada
.
     [Emphasis added.]

[4]

At trial, the evidence established that the appellant had been
    disqualified not by an order under s. 259(1) of the
Code
, but rather
    by operation of an automatic provincial suspension.

[5]

The defence contended that since the evidence did not establish the emphasized
    passage in the information above, the accused should be acquitted.  The Crown
    did not seek to amend the information such that it would conform to the
    evidence about the source of the disqualification.  Rather, the Crown contended
    that it had to establish only that the accuseds licence was suspended at the
    relevant time; the source of the suspension was irrelevant.

[6]

The trial judge and the summary conviction appeal judge accepted the
    Crown position.

[7]

The trial judge carefully considered the decision of this court in
R.
    v. Chuang
, 2010 ONCA 555, [2010] O.J. No. 3476, where the information was
    essentially identical to the information in this case, and the evidence
    similarly did not establish the charge set out in the information.  In that
    decision, this court entered a verdict of acquittal. The trial judge set out
    the relevant passages from
Chuang
and purported to distinguish it from
    the factual situation in this case.  In the result, he convicted the
    appellant.  The summary conviction appeal judge agreed with the trial judges
    reasoning and result.

[8]

The appellant seeks leave to appeal and, if leave is granted, an order
    allowing the appeal, setting aside the conviction, and entering a verdict of
    acquittal.

C.

Issues

[9]

There are three issues on appeal:

(1)

Did the trial judge and the
    summary conviction appeal judge err in their analysis of s. 259 of the
Code
in the context of the information laid against the appellant?

(2)

If the answer to (1) is Yes,
    should leave to appeal be granted?

(3)

If the answer to (2) is Yes,
    should the Crown be permitted, on appeal, to amend the information to conform
    to the evidence at trial, thereby leading to a dismissal of the appeal and an
    affirmation of the conviction?

D.

Analysis

(1)

The merits of the two judgments

[10]

On
    appeal, the Crown resiled from the position it had taken in the trial and
    summary conviction appeal courts.  The Crown accepted the legal analysis,
    especially of
Chuang
, that was set out in the appellants factum.  As
    expressed in the Crowns factum, at para. 4:

The respondent acknowledges that the law in
Chuang
,
    and indeed in other cases where the Crown has failed to prove the case as
    particularized, remains clear: that if the Crown attempts to prove that an
    individual was driving while disqualified, either by way of a prohibition order
    or a suspension resulting from a conviction, they must either properly state
    the correct mode of disqualification in the Information or simply state that
    the driver was disqualified period and then lead evidence of either mode at
    trial.  All of which is to say that the appellant seems to be correct in noting
    that the summary conviction appeal judge committed a legal error in coming to
    the conclusion that he did.

[11]

At
    the appeal hearing, the panel indicated that it agreed with the persuasive
    analysis in the appellants factum and, therefore, accepted the Crown
    concession.  It follows that the decisions of the trial and summary conviction appeal
    courts were in error.

[12]

That,
    however, does not end the matter.

(2)

Leave to appeal

[13]

Because
    this is an appeal from a summary conviction appeal court decision, the
    appellant must seek and obtain leave to appeal: see
Criminal Code
,
s. 839.

[14]

The
    basic test for granting leave to appeal was summarized by Doherty J.A. in
R.
    v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37:

In summary, leave to appeal pursuant to s. 839 should be
    granted sparingly.  There is no single litmus test that can identify all
    cases in which leave should be granted.  There are, however, two key
    variables  the significance of the legal issues raised to the general
    administration of criminal justice, and the merits of the proposed grounds of
    appeal.  On the one hand, if the issues have significance to the
    administration of justice beyond the particular case, then leave to appeal may
    be granted even if the merits are not particularly strong, though the grounds
    must at least be arguable.
On the other hand, where the merits appear
    very strong, leave to appeal may be granted even if the issues have no general
    importance
,
especially if the convictions in issue are serious and the
    applicant is facing a significant deprivation of his or her liberty
.
    [Emphasis added.]

[15]

In
    its factum, the Crown took the position that leave to appeal should not be
    granted on the basis that
the
legal
    issues raised had no significance to the general administration of criminal
    justice and because the question of law raised did not merit a second appeal.

[16]

At
    the outset of the appeal hearing, the Crown announced that it was abandoning
    this position on the basis that the appeal came within the second branch of the
    test from
R.R.
emphasized above.  The panel indicated that it accepted
    this concession and granted leave to appeal.

[17]

I
    want to make one observation about this issue.  In my view, the Crown position
    at the appeal hearing was fair and professional.  I do not think that the
    second branch of the
R.R.
test should ever be ignored or even
    diminished.  A criminal conviction is
always
a serious matter.  A custodial
    sentence, even for a brief period, is
always
a serious matter.  In my
    view, in a case where the Crown concedes, and this court accepts, that a
    conviction for a criminal offence flows directly from a legal error in a
    judicial decision, it would be rare and remarkable for this court to refuse leave
    to appeal.

(3)

Amending the information

[18]

This
    is the live issue on appeal.

[19]

The
    Crown contends that, subsequent to granting leave, this court should amend the
    information pursuant to s. 683(1)(g) of the
Criminal Code
so that it
    conforms to the evidence led at trial, namely, that the appellants licence was
    suspended by operation of provincial law rather than prohibited pursuant to s.
    259(1) of the
Criminal Code
.  Doing so, the Crown submits, would cause
    no prejudice to the appellant, as he was fully aware of the case he had to meet
     that when he was driving the ATV, he did so knowing that his licence was
    suspended.

[20]

Section
    683(1)(g) explicitly authorizes an appeal court to amend an indictment (and, by
    analogy, an information):

683(1) For the purposes of an appeal under this Part,
    the court of appeal may, where it considers it in the interests of justice,

.

(g) amend the indictment, unless it is of the opinion
    that the accused has been misled or prejudiced in his defence or appeal.

[21]

Under
    this section, the scope of permissible amendments at the appeal stage is wide.
    As expressed by Doherty J.A. in
R. v. Irwin
(1998), 38 O.R. (3d) 689
    (C.A.), at 699-700, s. 683(1)(g) permits an amendment on appeal where the
    amendment cures a variance between the charge laid and the evidence led at
    trial regardless of whether the amendment materially changes the charge,
    substitutes a new charge for the initial charge, or adds an additional charge.

[22]

However,
    caution must be the watchword when an appeal court considers a Crown request to
    amend an indictment or information and enter a conviction for a person who
    would be acquitted on the basis of the un-amended indictment or information.
    As explained eloquently by Cory J. in
R. v. Tremblay
, [1993] 2 S.C.R.
    932, at 956-57:

It is, I think, an extraordinary step for an appellate court to
    amend the charge materially and then to enter a conviction on the basis of the
    charge as amended.  The unfairness that results from such a procedure was aptly
    described by Zuber J.A. in
R. v. Geauvreau
(1979), 51 C.C.C. (2d) 75 (Ont.
    C.A.). At p. 84 he wrote:

It is part of our law of criminal procedure that a person
    accused of crime is entitled to know the charge against him, whether contained
    in an information or an indictment, in reasonably specific terms and he is
    tried on that charge. This principle retains its vitality even though the
    formalism of an earlier era has been diminished and trial Courts now possess
    reasonably wide powers of amendment. However, even though criminal procedure
    has become less technical and more flexible, the concept of an amendment at an
    appellate stage involves difficult considerations. An amendment at trial
    contemplates a continuing ability by the accused to meet an amended charge; the
    appellate stage occurs long after the evidence has been led, arguments made and
    facts found. In my view, it would be an extraordinary step for an appellate
    Court to materially amend the charge and uphold a conviction based on the
    charge as amended.

See also:
R. v. Irwin
,
    at paras. 33-34.

[23]

When
    considering a Crown request to amend an indictment or information at the appeal
    stage of a criminal proceeding, the court must focus carefully on the precise
    qualifying words of s. 683(1)(g) of the
Criminal Code
,
and ask this question: has the accused
    been misled or prejudiced in his defence or appeal?

[24]

In
    my view, the answer to this question in this case is Yes, especially in the
    defence (trial) context, but also in the appeal context.

[25]

The
    trial was exceptionally brief.  The Crown called only one witness, the
    arresting officer Constable Craig Williams.  His entire testimony is recorded
    in just eight pages of transcript and, in conjunction with the documents
    entered into evidence at trial, established,
inter alia
, these four
    facts:

(1) the
    appellant had been convicted of operating a motor vehicle with a blood-alcohol
    concentration over .08 on February 13, 2009;

(2) pursuant
    to that conviction, he was prohibited from driving for one year;

(3) pursuant
    to provincial law, on February 20, 2009 the appellant was suspended from
    driving for three years from the date of conviction; and

(4) the
    appellant was arrested for driving while disqualified on June 28, 2010.

[26]

It
    is apparent from this chronology that when he was arrested, the appellant was
    disqualified from driving by operation of a provincial law, but not by virtue
    of the prohibition order under the
Criminal Code
.  The latter had
    expired.  However, the information specified that the appellant had been
    arrested for driving while disqualified by s. 259(1) of the
Criminal Code
.
    This was incorrect.

[27]

This
    background provides the context for considering defence counsels
    cross-examination of Constable Williams.  It was very brief.  Defence counsel
    asked only three questions and established a single fact: the date of the
    appellants previous conviction for driving with a blood-alcohol concentration
    in excess of .08 was February 13, 2009.

[28]

The
    closing submissions of trial counsel were not transcribed.  However, it is
    obvious from the cross-examination and from the trial judges reasons what
    defence counsel submitted: the evidence led at trial did not conform to the
    facts specified in the information.  The Crown now concedes, and this court
    accepts, that this was true.

[29]

It
    is impossible to know what questions defence counsel might have asked of
    Constable Williams if the information had simply stated the offence without
    particularization or with the correct particularization (the continuing three
    year suspension by operation of provincial law).  Presumably, he would have
    explored the facts relating to the provincial suspension and, perhaps, the
    administrative structure tying together s. 259 of the
Criminal Code
and the provincial law imposing the additional suspension.  In any event,
    defence counsels very focussed cross-examination aimed squarely at the
    incorrect particularization in the information. He almost certainly would not have
    solely addressed this issue if he had been faced with an information containing
    accurate or no particularization.  Thus, to the extent that the appellant
    relied on the information when formulating his defence at trial, he has been
    prejudiced.

[30]

In
    short, I do not think that the prejudice bar should be set very high in a case
    where the Crown seeks to amend an information on appeal, especially on a second
    appeal.  For the above reason, I conclude that the appellant has cleared the
    prejudice bar in this case.  Moreover, I observe that the problem the Crown
    faces in this case is easily solved.  The solution, as the Crown points out in
    its factum, at para. 4, is to simply state that the driver was disqualified
    period and then lead evidence of either mode at trial.

[31]

Finally,
    in light of the unique circumstances of this case, I am of the view that the
    Crowns attempt to amend the information at this juncture also prejudices the
    appellant on appeal, contrary to s. 683(1)(g) of the
Criminal Code
.

[32]

The
    issue of amending the information did not arise in the trial or summary
    conviction appeal courts.  The contested terrain in those courts was the
    interpretation of s. 259 of the
Code
and this courts decision in
Chuang
.
    The appellant lost those battles below, appealed to this court, and prepared a
    factum  an excellent factum  on those issues.  Only in this court did the
    Crown fold on those issues.  Only in this court did the Crown raise the issue
    of amending the information.

[33]

The
    appellants counsel did not file a supplementary factum on this issue, nor did
    he seek to do so.  He did not ask for an adjournment.  He did file a
    supplemental case brief just before the appeal hearing and he made oral
    arguments on the issue.  Nevertheless, the fact that the Crown raised this
    issue for the first time in its respondents appeal factum, and did so after
    abandoning its position on the legal issue that had been the sole focus in the
    two courts below, strikes me as a late-breaking curve ball that caused some
    prejudice to the appellant on this appeal.

[34]

By
    raising the issue of amendment on appeal, the Crown has made it more difficult
    for the appellant to prove that he has been prejudiced.  For the defence to
    demonstrate concrete prejudice on appeal, the defence would need to essentially
    re-try the underlying case and demonstrate how the appellant
could
have
    conducted himself differently at trial, and how this
could
have
    affected the trial outcome.  This task is made more difficult by the time that
    has passed between the trial and this second appeal, and the additional expense
    and effort that the defence would need to incur in order to determine prejudice
    at trial several years after the fact.  This, as well, exacerbates the
    prejudice suffered on appeal by the defence.  In light of the low bar for
    tolerable prejudice on appeal, this prejudice is fatal to the proposed
    amendment of the information.

E.

Disposition

[35]

I
    would grant leave to appeal, allow the appeal, set aside the conviction, and
    enter a verdict of acquittal.

J.C. MacPherson J.A.

I agree J. MacFarland J.A.

Epstein J.A. (dissenting):

[36]

I
    agree with my colleague MacPherson J.A. that, in the light of the Crowns
    concessions, the trial judge and the summary conviction appeal judge erred in
    law and leave to appeal ought to be granted.  The only issue to be determined,
    therefore, is whether this court should grant the Crowns request to amend the
    information to conform to the evidence led at trial indicating that the
    appellants driving disqualification was the result of a suspension under the
Highway
    Traffic Act
, rather than a s. 259(1) order under the
Criminal Code
.

[37]

My
    colleague, at para. 29 of his reasons, concludes that, in the context of the
    trial and appeal, the appellant has been misled or prejudiced. The basis of
    this conclusion is that defence counsel may have broadened the scope of
    cross-examination to explore the provincial suspension instead of focusing
    exclusively on the incorrect particularization in the information.

[38]

I
    have reached a different conclusion on the issue of whether this court ought to
    grant the amendment.   With respect, I am of the view that, without more,
    speculation about a possible defence position does not constitute prejudice
    that would preclude this court from amending the information.  In my opinion,
    in the circumstances of this case, it would be in the interests of justice for
    this court to exercise its discretion under s. 683(1)(g) of the
Code
and
    amend the information as requested by the Crown.

[39]

In
R. v. Irwin
(1998), 38 O.R. (3d) 689 (C.A.), Doherty J.A. canvassed
    the prerogative of an appellate court to amend the charge as originally laid.  At
    the conclusion of his extensive review of the relevant jurisprudence, Doherty
    J.A. made the following observations about an appellate courts power to amend
    an indictment or information, at pp. 693, 698-700:

1. Section 683(1)(g) permits an amendment on appeal to cure a
    variance between the charge laid and the evidence led at trial regardless of
    whether the amendment materially changes the charge, substitutes a new charge for
    the initial charge, or adds an additional charge.

2. There is no reason why the scope of the power to amend on
    appeal should be different from the scope of the power to amend at trial.

3. The limits on the amending power are found, not in the
    nature of the change made by the amendment, but in the effect of the amendment
    on the proceedings, and particularly, on the accused's ability to meet the
    charge.

[40]

Doherty
    J.A. identified prejudice to the appellant as the litmus test against which
    proposed amendments should be judged. The amending power should be exercised
    only if the appellant will not, as a result of the amendment, be misled or
    prejudiced in his defence or appeal.

[41]

As
    my colleague points out, at p. 700 in
Irwin
, Doherty J.A. counselled
    that  [t]he risk of prejudice is particularly great where it is proposed to
materially
amend an indictment on appeal and affirm the conviction on the basis of that
    amendment.  In setting out this principle, Doherty J.A. adopted Cory J.s
    statement from
R. v. Tremblay
, [1993] 2 S.C.R. 932, at p. 956, that it
    would be an extraordinary step for an appellate court to amend the charge
materially
and then to enter a conviction on the basis of the charge as amended (emphasis
    added).  See also
R. v. A.L.B.
(1998), 128 C.C.C. (3d) 87 (B.C.C.A.),
    at para. 24.

[42]

My
    reasoning that the application of the principles established in

Irwin
leads to the conclusion that it is in the interests of justice to allow the
    amendment to the information to replace the driving suspension from one under
    the
Criminal Code
to one under the
Highway Traffic Act
is as
    follows.

[43]

First,
    I do not agree that amending the information in this case would constitute an
    extraordinary step contemplated in
Tremblay

and in
Irwin
.
    In both decisions, Cory J. and Doherty J.A. explicitly state that the potential
    for prejudice is particularly high when the requested amendment to the charge
    is
material
.  In my view, a material amendment should be interpreted
    as one capable of having a demonstrable impact on a defence open to the
    accused.  An example that comes to mind is when the Crown requests an amendment
    to the date of the offence in circumstances in which the accused intended to
    rely on an alibi defence that would not apply to the proposed amended date.

[44]

I
    do not see the proposed amendment in this case as material.  The proposed
    amendment changes nothing other than the label applied to the offence.  The
    charge as originally laid required the Crown to establish two facts - the
    appellant was driving a motor vehicle and was doing so when his license was
    suspended.  If the appellant had been charged with driving while disqualified
    under the
Highway Traffic Act
rather than the
Code
, the Crown
    would have had to prove the same two facts.  It follows that while the exercise
    of this courts discretion to amend must, in this case as in all cases, be
    principled in the sense of being guided by wording of s. 683(1)(g) of the
Code
,
here no additional caution is called for.

[45]

This takes me to my second point - the important issue of
    prejudice.  The appellant seeks to rely on prejudice: it is therefore his onus
    to establish some form of prejudice.  See
R. v. Griffin
(1996), 111
    C.C.C. (3d) 567 (B.C.C.A.), at para.
22; and
R. v. Pelletier
(2012), 291 C.C.C. (3d) 279 (Ont. C.A.).

[46]

Prejudice
    speaks to the effect of the amendment on the appellants ability to meet the
    charge. In deciding whether to allow the amendment, consideration must be given
    to whether the appellant had a full opportunity to respond to all issues raised
    by the charge as amended and whether the defence would have been conducted
    any differently had the amended charge been before the trial court. If so,
    there is no prejudice: see
R. v. Foley
(1994), 90 C.C.C. (3d) 390
(Nfld. C.A.), at 400-403.

[47]

I
    am mindful that in this case, the defence strategy at trial focused entirely on
    showing that the appellants suspension was not the result of a s. 259(1) order,
    as set out in the information.  Yet in responding to the Crowns request for an
    amendment, the appellant has not been able to identify anything he would have
    done differently had the information properly identified the suspension as
    being under the
Highway Traffic Act
rather than the
Criminal Code
.

[48]

As
    set out above, my colleague suggests that the appellant may have expanded the scope
    of his cross-examination and explored facts relating to the provincial
    suspension and perhaps the inter-relationship of a driving suspension under the
Code
and under the
Highway Traffic Act
.

[49]

With
    respect, I am of the view that speculation about a possible different approach
    to the defence is insufficient to establish prejudice.  If it were, the
    discretion to amend at the appellate level would be rendered nugatory, as
    speculation of this nature would be available in every case.  I agree that the
    bar is low but it must be more than mere conjecture: see
Griffin
, at
    para. 23.

[50]

In
    my view, the appellant has not demonstrated that the amendment would cause him
    any prejudice.

[51]

Third,
    the interests of justice - the objective expressly identified in s. 683(1) as the
    controlling factor in the exercise of discretion to amend - lead me to conclude
    that the amendment ought to be allowed.

[52]

Denying
    the amendment strikes me as an unwarranted windfall for the appellant.  The
    appellant was not caught off guard.  He received full disclosure and knew that
    the Crowns evidence was directed at showing that his disqualification was the
    result of a provincial suspension. The appellant came to trial with a view to
    defeating the charge on a technicality.  I think it is fair to say that for
    some time now, in the interests of justice, the law has been moving away from
    giving effect to technical defences.  See
R. v. B.(G.)
[1990] 2 S.C.R.
    30 at para. 21 and
R. v. Sault Ste. Marie (City)
[1978] 2 S.C.R. 1299
    at p. 6.

[53]

I
    make one final comment relevant to the principal consideration of the
    interests of justice.  While the administration of justice has an interest in
    an accurate efficient criminal process, starting with charges that are correct
    or, if not, corrected at the first opportunity, I am of the view that the
    administration of justice has a greater interest in not allowing individuals to
    rely on a technicality to avoid responsibility for unlawful conduct. Allowing the
    Crowns request to amend the information in a manner that does not change the
    substance of the offence and where the amendment causes the appellant no
    prejudice would better serve the interests of justice than allowing the
    appellant to avoid the consequences of unlawful conduct recently denounced by
    this court in
R. v. Fernandes
, 2013 ONCA 436, 115 O.R. (3d) 746, at
    para. 117, as follows:

Parliament and the courts have long recognized that driving
    offences, particularly drinking and driving offences, are serious crimes with
    grave consequences.  Not infrequently, they result in significant societal
    damage and injury, often of a tragic and permanent nature.  In this
    context, driving while disqualified prosecutions assume great importance.

[54]

For
    these reasons, I would amend the information to charge the appellant with
    driving while disqualified under the
Highway Traffic Act
and dismiss
    the appeal.

Released: October 15, 2013 (J.C.M.)

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Cornish, 2013 ONCA 583

DATE: 20131002

DOCKET: C54195

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Cornish

Appellant

Delmar Doucette, for the appellant

Philippe G. Cowle, for the respondent

Heard: June 28, 2013

On appeal from the conviction entered on June 16, 2010 and
    the sentence imposed on July 22, 2010 by Justice L. Leitch of the Superior
    Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions for aggravated assault, forcible
    confinement and breaking and entering. He relies primarily on two pieces of
    fresh evidence. Alternatively, he asserts ineffective assistance by trial
    counsel.

[2]

The fresh expert evidence the appellant relies upon does persuade us
    that the blood pattern on the inside screen door, which was confirmed to be the
    appellants blood, could not have been caused by him being hit by a baseball
    bat, as asserted at trial. The fact remains, however, that his blood was found
    on the inside of the screen door and inside the house. His thumb and palm
    prints were found on the outside of the front wooden door, just below the
    broken glass window. His fingerprints were found on the inside of the door in a
    pattern and location indicating that his fingers had curled over the frame when
    there were broken shards of glass still protruding, thereby explaining why his
    blood was found on the screen door and in the house. In light of the evidence
    that there was no damage to the door before the attack on the victim, and that
    the appellant had never before been to the premises, the blood and prints
    provided ample evidence to conclude that he participated in the break-in at the
    victims house and was a party to the offences.

[3]

The second piece of fresh evidence, and the assertion of ineffective
    representation, relate to the alleged height disparity between the appellant
    and the description of the intruder who was hit by the baseball bat. This
    evidence was obviously available at trial, and the failure to adduce evidence
    or to conduct further cross-examination was the result of a deliberate and
    reasonable tactical decision by very experienced trial counsel. Nor was the
    evidence likely to have affected the result at trial, as the difference between
    the description of the intruder and the appellant was manifest.

[4]

We would therefore dismiss the application to adduce fresh
    evidence and dismiss the appeal.

J. Laskin J.A.

M. Tulloch J.A.

G.R. Strathy J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Graham, 2013 ONCA 652

DATE: 20131030

DOCKET: M42387 (C50624)

Rosenberg, Rouleau and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Graham

Applicant/Appellant

Dale Graham, appellant in person

Jill Copeland,
amicus curiae

Alison Wheeler, counsel for respondent

Heard: October 11, 2013

On an application for an order pursuant to s. 683(1)(b)
    of the
Criminal Code of Canada
for the examination of witnesses be
    examined before a judge of the Court of Appeal or before a special examiner.

ENDORSEMENT

[1]

We have had the benefit of an extensive record, submissions from
amicus
,
    a lengthy affidavit from the appellant, lengthy submissions from the appellant
    and submissions from Crown counsel. We have carefully considered this matter
    and this material. We are satisfied that this application under s. 683 of the
Criminal
    Code
must be dismissed.

[2]

We accept that the s. 683 test embraces two categories of evidence: evidence
    that could be admissible as fresh evidence and evidence that could assist in developing
    material that will be admissible as fresh evidence. The application in this
    case meets neither criteria. Any application under s. 683 must be measured against
    the uncontroverted facts at trial that are not subject to challenge.  In this
    case, there was simply no dispute that child pornography was found in the
    applicants computer. Much of the proposed fresh evidence centres on evidence
    that would simply be irrelevant given the undisputed facts. Other proposed
    evidence is redundant or mere speculation. There must be some reasonable
    possibility, and for the reasons set out in detail in the Crowns careful
    submissions, this evidence does not meet the test and the proposed examinations
    do not meet the reasonable possibility test.

[3]

Accordingly, the application is dismissed.

Released: MR October 30, 2013

M. Rosenberg J.A.

P.S. Rouleau J.A.

"G.R. Strathy J.A."