COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. Bogaerts, 2019 ONCA
    876

DATE: 20191114

DOCKET: C66542

Sharpe, Hourigan and Roberts JJ.A.

BETWEEN

The Attorney General of Ontario

Respondent (Appellant in appeal)

and

Jeffrey Bogaerts

Applicant (Respondent in appeal)

Daniel Huffaker, for the appellant

Kurtis R. Andrews, for the respondent

Shain Widdifield, for the intervener the Attorney
    General of Canada

Arden Beddoes, Camille Labchuk and Kaitlyn Mitchell, for
    the intervener Animal Justice Canada

Stephen McCammon, for the intervener the Information and
    Privacy Commissioner of Ontario

Andrew Faith and Brookelyn Kirkham, for the intervener Railway
    Association of Canada

Graeme A. Hamilton and Alannah Fotheringham, for the intervener
    Canadian Civil Liberties Association

Heard: October 1, 2019

On appeal from the order of Justice J.M. Johnston of the
    Superior Court of Justice, dated June 15, 2016, with reasons reported at 2016
    ONSC 3123, and the judgment of Justice Timothy Minnema of the Superior Court of
    Justice, dated January 2, 2019, with reasons reported at 2019 ONSC 41, 426
    C.R.R. (2d) 303.

Sharpe J.A.:

[1]

This appeal considers the constitutionality of
    the statutory authority conferred upon inspectors and agents designated by the
    Ontario Society for the Prevention of Cruelty to Animals (the OSPCA) to
    exercise the powers of a peace officer in the enforcement of laws pertaining to
    the welfare and prevention of cruelty to animals.

[2]

The respondent is a paralegal who was given
    public interest standing to challenge certain provisions of the
Ontario
    Society for the Prevention of Cruelty to Animals Act
,
R.S.O. 1990, c. O.36 (the Act).

[3]

The application judge dismissed the respondents
    argument that provisions in the Act creating offences were matters of criminal
    law and therefore beyond the legislative authority of the province. The
    application judge also dismissed the respondents contention that certain
    provisions in the Act infringed s. 8 of
Charter of Rights and
    Freedoms

guaranteeing the right to be secure
    against unreasonable search and seizure. However, the application judge
    accepted the submission that some of the Acts search and seizure provisions
    violated the s. 7 right not to be denied liberty and security of the person
    except in accordance with the principles of fundamental justice. He found that
    those search and seizure powers engaged the liberty and security of the person
    interests and he recognized a novel principle of fundamental justice, namely,
    that law enforcement bodies must be subject to reasonable standards of
    transparency and accountability. The application judge struck down the
    sections of the Act conferring the powers of a peace officer on OSPCA officers
    and agents as well as two sections authorizing search and seizure.

[4]

The appellant, the Attorney General of Ontario, appeals
    the order granting the respondent public interest standing and the s. 7 order
    striking down three sections of the Act. The respondent cross-appeals the dismissal
    of the s. 8 argument and seeks to add that law enforcement bodies must be
    funded in such manner to avoid actual or perceived conflicts of interest or
    apprehension of bias as an additional principle of fundamental justice.

[5]

For the following reasons, I would allow the
    appeal and dismiss the cross-appeal. In my view, the application judge erred in
    finding that the liberty and security of the person interests protected by s. 7
    were engaged. It is also my view that he further erred in accepting that law
    enforcement bodies must be subject to reasonable standards of transparency and
    accountability as a novel principle of fundamental justice. However, he did
    not err in dismissing the s. 8 claim.

OVERVIEW OF THE ACT

[6]

The relevant statutory provisions are set out in
    the Appendix to these reasons and may be summarized as follows.

[7]

The object of the Act is to facilitate and
    provide for the prevention of cruelty to animals and their protection and
    relief therefrom (s. 3). The Act constitutes the OSPCA and provides for its
    governance by a board of directors. While the OSPCA essentially functions as a
    private organization, the Lieutenant Governor in Council has the power to annul
    any by-law it enacts (s. 7(3)). The Act provides that the OSPCA shall appoint a
    Chief Inspector (s. 6.1(1)) who has the authority to establish qualifications,
    requirements and standards for inspectors and agents and to appoint, supervise
    and remove them (s. 6.1(2)).

[8]

The provision central to this challenge is s.
    11(1) which confers the powers of a police officer on OSPCA inspectors and
    agents for the purpose of enforcing the Act and any other law pertaining to
    animal safety and the prevention of cruelty to animals.

[9]

The Act establishes obligations and prohibitions
    regarding the care of and harm to animals.

[10]

The respondent challenged two provisions, ss.
    11.2(1) and 11.2(2), making it an offence to cause or permit an animal to be
    in distress, defined as the state of being in need of proper care, water,
    food or shelter or being injured, sick or in pain or suffering or being abused
    or subject to undue or unnecessary hardship, privation or neglect (s. 1). The
    application judge rejected the contention that those provisions were
ultra
    vires
the province on the ground that they were, in pith and
    substance, criminal law. No appeal is taken from that aspect of the application
    judges order.

[11]

The Act contains several provisions authorizing
    search and seizure. The respondents challenge to the following provisions was
    dismissed by the application judge:

·

Section 11.4 allows entry (without warrant into
    any place other than a dwelling, and into a dwelling with a warrant) where
    animals are kept for commercial purposes (exhibition, entertainment, boarding,
    hire or sale) to determine whether applicable standards are being met, provided
    that entry into a dwelling is not permitted without the consent of the occupier
    (s. 11.4(2));

·

Section 11.4.1(1) gives inspectors and agents
    the power to demand production of records in relation to the same class of
    animals;

·

Section 12(1) allows inspectors and agents with
    a warrant to search a building or place to determine if an animal is in
    distress;

·

Section 12(6) allows for entry without a
    warrant into any building or place other than a dwelling if the inspector or
    agent has reasonable grounds to believe that there is an animal in immediate
    distress, defined as distress that requires immediate intervention in order to
    alleviate suffering or to preserve life (s. 12(8));

·

Section 12.1 allows inspectors, agents and
    veterinarians who are lawfully in a place to take a carcass or sample of a
    carcass;

·

Section 13(1) allows an inspector or agent who has
    reasonable grounds to believe that an animal is in distress to order any person
    present or found promptly to take action to relieve the distress or to have the
    animal treated or examined by a veterinarian at the owner or custodians
    expense;

·

Section 13(6) allows for entry without a
    warrant if an order made under s. 13(1) remains in force to determine if the
    order has been complied with;

·

Section 14(1) allows an inspector or agent to
    remove an animal for the purpose of providing it with care upon reasonable
    grounds to believe that an animal is in distress and the owner or custodian
    cannot be found or if a s. 13 order has been made and not complied with.

[12]

The Act constitutes the Animal Care Review Board
    and gives it the authority to entertain appeals from compliance orders made
    under s. 13(1) and from animal removals pursuant to s. 14(1).

[13]

Section 22(2)(a) gives the Minister responsible
    for the administration of the Act the authority to make regulations prescribing
the powers and duties of the OSPCAs Chief Inspector,
    including the power to appoint, oversee and establish qualifications,
    requirements and standards for OSPCA inspectors and agents.

Pursuant to that provision, the Minister enacted
    O Reg 59/09, s. 1(1), requiring the Chief Inspector to establish such standards
    and to oversee inspectors and agents in the performance of their duties.

DECISION OF THE MOTION JUDGE ON STANDING

[14]

The respondent is a paralegal who works in the
    animal care area and owns animals. The Attorney General challenged his standing
    to bring this application. The motion judge ruled that the respondent lacked sufficient
    interest to satisfy the test for private interest standing but accepted that he
    should be given public interest standing.

[15]

The motion judge concluded that the respondent
    satisfied the test for public interest standing set out in
Canada
    (Attorney General) v. Downtown Eastside Sex Workers United Against Violence
    Society
, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 37:
(1) whether there is a serious justiciable issue raised; (2) whether
    the plaintiff has a real stake or a genuine interest in it; and (3)
    whether, in all the circumstances, the proposed suit is a reasonable and
    effective way to bring the issue before the courts. There was a justiciable
    issue, the respondent had a genuine interest as a paralegal who works in the
    area of animal welfare, and the proposed application was a reasonable and
    effective way to bring the issue before the courts.

[16]

Having granted public interest standing, the motion
    judge accepted the Attorney Generals argument that he should strike from the
    record affidavit evidence alleging specific complaints that inspectors, agents
    and members of the Animal Care Review Board had engaged in conduct that
    infringes or denies the
Charter

rights of
    non-parties. He did so on the basis that the public interest standing challenge
    was to the constitutionality of the Act, not to the specific exercise of
    discretion to which the affidavits were directed.

DECISION OF THE APPLICATION JUDGE

Federalism

[17]

The application judge rejected the respondents
    contention that ss. 11.2(1) and 11.2(2) were, in pith and substance, criminal
    law and therefore beyond the legislative competence of the province. He
    concluded that the matter of the OSPCA is animal protection and prevention of
    cruelty to animals and that it fell within s. 92(13) of the
Constitution
    Act
, 1867
, conferring upon
    the province the authority to make laws in relation to Property and Civil
    Rights in the Province. No appeal is taken from that aspect of the application
    judges decision.

Charter s. 8: Unreasonable Search
    and Seizure

[18]

The application judge dismissed the respondents
    contention that ss. 11.4, 12(6), 13(1) and (6), and 14(1)(b) and (c) breached
    s. 8 of the
Charter
.

[19]

He found that the purpose of s. 11.4 is to deal
    with commercial activity and that it is essentially regulatory in nature. He
    concluded that the respondent had failed to show a reasonable expectation of
    privacy when this provision was used for the purpose for which the section was
    intended, namely protection of vulnerable animals.

[20]

The application judge found that as s. 12(6)
    dealt with exigent circumstances and did not authorize warrantless searches of
    dwellings, it did not infringe s. 8 of the
Charter
, and he rejected the respondents argument that the legislature
    should have included certain safeguards.

[21]

With respect to ss. 13(1) and (6), the
    application judge found that as s. 13(6) simply allowed an inspector to follow
    up on a s. 13(1) order in relation to an animal in distress, no reasonable
    expectation of privacy was established.

[22]

Finally, the application judge found that the exercise
    of the powers conferred by s. 14(1)(b) and (c) to remove an animal in distress
    in order to provide it with the care required to relieve the distress did not
    give rise to a reasonable expectation of privacy.

Charter s. 7: Liberty, Security of
    the Person and the Principles of Fundamental Justice

[23]

The principal focus of the application was the
    argument that the delegation of police and other investigative powers in ss.
    11, 12 and 12.1 to the OSPCA, a private organization, violates s. 7 of the
Charter
.
The application judge properly
    analyzed this issue in two stages: first, do the impugned provisions engage
    life, liberty or security of the person; and if the answer is yes, second, is
    the denial of life, liberty or security of the person in accordance with the
    principles of fundamental justice.

[24]

The application judge accepted the submission
    that ss. 11, 12 and 12.1 deprive someone subjected to those powers of liberty
    and security of the person. He rejected the appellants contention that as a
    deprivation of liberty would only arise after prosecution, conviction and
    sentencing, the search powers were too remote to trigger a s. 7 claim. The
    application judge also found that the impugned provisions engaged the security
    of the person interest and he rejected the appellants submission that the
    challenge to the impugned provisions should proceed under the more specific
    guarantee of s. 8.

[25]

The application judge then turned to the issue
    of whether the interference with liberty and security of the person was in
    accordance with the principles of fundamental justice. He rejected the argument
    that the impugned provisions ran afoul of the principle of non-arbitrariness,
    the only accepted principle of fundamental justice raised by the respondent.
    However, he accepted as a novel principle of fundamental justice that law
    enforcement bodies must be subject to reasonable standards of transparency and
    accountability, while rejecting the inclusion of integrity as being too
    vague. He found, at para. 25, that while the respondent had
made a good case that the institutional integrity of the
OSPCA
may be lacking in the way it has been funded and structured, integrity
    was essentially a synonym for morality and a vague concept that did not
    amount to a legal principle.

[26]

The application judge found that this formulation
    met the three-part test set out by the Supreme Court of Canada in
R.
    v. Malmo-Levine
, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras.
    112-13 and
Canadian Foundation for Children, Youth and the Law v.
    Canada (Attorney General)
, 2004 SCC 4, [2004] 1 S.C.R. 76,
    at para. 8
.
It must be (1) a
    legal principle (2) that is
vital or fundamental to our
    societal notion of justice
and (3)
capable of being identified with precision and applied to situations
    in a manner that yields predictable results.

[27]

The application judge found that accountability
    and transparency were basic tenets of our legal system. It was, he ruled, vital
    for the public to have confidence in the enforcement of laws, and that a
    reasonable level of transparency and accountability is the cornerstone for that
    confidence. He was satisfied that the proposed principle was capable of being
    identified with precision and applied in a manner that would yield predictable
    results.

[28]

The application judge concluded that the
    impugned provisions contravened this novel principle of fundamental justice. As
    a private organization, the OSPCA lacked the required degree of transparency
    and accountability. OSPCA investigators and agents are not subject to the
Police
    Services Act
,
R.S.O. 1990,
    c. P.15, which provides a comprehensive system of oversight and accountability.
    He noted that while the OSPCA does have a policy manual relating to search and
    entry, it is not a public document and that complaints and discipline issues
    are dealt with by the OSPCA internally. Nor is the OSPCA subject to the
Ombudsman

Act
,
R.S.O. 1990,
    c. O.6, or the
Freedom of Information and Protection of Privacy Act
,
R.S.O. 1990, c. F31. He agreed with
    the interveners submission that although charged with law enforcement
    responsibilities, the OSPCA is opaque, insular, unaccountable, and potentially
    subject to external influence, and as such Ontarians cannot be confident that
    the laws it enforces will be fairly and impartially administered.

[29]

The application judge declared ss. 11, 12 and
    12.1 of no force and effect on the ground that they violated s. 7 of the
Charter
.
He suspended his declaration of invalidity
    for one year to give the legislature the opportunity to consider alternative
    arrangements.

INTERIM LEGISLATION

[30]

We were advised during oral argument that there
    has been a change in the legislation since the decision of the application
    judge. The OSPCA has withdrawn from enforcement of the Act. Interim
    legislation, the
Ontario Society for the Prevention of Cruelty to
    Animals Amendment Act (Interim Period)
, 2019, S.O. 2019,
    c. 11, allows for the appointment of a Chief Inspector who has the power to
    appoint any person as an inspector under the Act. The legislature has yet to
    enact any other legislation to deal with the suspended declaration of
    invalidity.

ISSUES

[31]

The following issues arise on the appeal and
    cross-appeal.

1.

Did the motion judge err by granting the respondent public interest
    standing?

2.

Did the application judge err by rejecting the s. 8 challenge to ss.
    13(6), 14(1)(b) and 14(1)(c)?

3.

Did the application judge err by finding that ss. 11, 12 and 12.1 engage
    the liberty and security of the person interests under s. 7?

4.

Did the application judge err in recognizing a novel principle of
    fundamental justice?

ANALYSIS

(1)

Did the motion judge err by granting the
    respondent public interest standing?

[32]

The Attorney General appeals the order of the
    motion judge granting the respondent public interest standing. However, the
    Attorney General rested on his factum and made no oral submissions on this
    point. As it is my view that this court should decide the appeal and
    cross-appeal in any event in order to clarify the law in relation to s. 7, I do
    not propose to deal with this ground of appeal in any detail.

[33]

I would, however, point out that the combined
    effect of the order granting the respondent public interest standing and
    striking out the affidavits providing specific instances of the infringement of
Charter
rights resulted in this court having a
    less than satisfactory record. In
Downtown Eastside Sex Workers
, the case recognizing generous scope for public interest standing,
    the Supreme Court noted, at para. 74, that there was a substantial record of
    affidavit evidence as to the operation and impact of the challenged
    legislation, to provide a concrete factual background for the challenge. By contrast,
    on this application and appeal, the constitutional arguments were advanced in
    the abstract without a proper factual foundation. In my view, it would have
    been preferable had this challenge come before the court either on the
    application of an individual who had been subjected to the challenged statutory
    powers, or upon some other proper record, to provide a concrete factual context
    for the consideration of the constitutional issues raised.

(2)

Did the application judge err by rejecting the
    s. 8 challenge to ss. 13(6), 14(1)(b) and 14(1)(c)?

[34]

As I have indicated, the respondents cross-appeal
    of the application judges dismissal of the s. 8 challenge is restricted to
    three provisions.

[35]

Section 13(6) allows for entry without a warrant if
    a s. 13(1) order remains in force. A s. 13(1) order can require an owner or
    custodian to take action to relieve the distress or to have an animal treated
    or examined by a veterinarian at the owners or custodians expense, where
    there are reasonable grounds to believe that an animal is in distress and the
    owner or custodian is present or may be found promptly.

[36]

Section 14(1)(b) allows an inspector or agent to
    remove an animal for the purpose of providing it with care where the inspector
    or agent has examined the animal and has reasonable grounds to believe that an
    animal is in distress and the owner or custodian is not present and cannot be
    found promptly.

[37]

Section 14(1)(c) allows for the removal of an
    animal where a s. 13(1) order has been made and not complied with.

[38]

The principal focus of the respondents
    cross-appeal is that all three provisions allow for warrantless searches of and
    seizures from dwellings.

[39]

It is worth noting that the OSPCAs internal
    policy requires inspectors and agents to obtain a warrant before searching a
    dwelling. Because of the public interest standing ruling, the case was argued
    in the abstract without a factual foundation. As a result, we do not have
    before us a warrantless search of a dwelling and, if the OSPCA follows its
    policy, none may exist. Courts should not be asked to decide hypothetical cases
    of this nature. However, for the sake of completeness, I will express my view
    on the challenge to these provisions.

[40]

The application judge rejected the s. 8
    challenge on the ground that a person subject to a search or seizure under the
    challenged provisions would not have a reasonable expectation of privacy, in
    part at least because of their non-criminal nature. I agree with the respondent
    that the application judges analysis is unpersuasive. There can be no doubt
    that individuals enjoy an expectation of privacy in their dwellings.

[41]

However, as I will explain, the search and
    seizure powers at issue all favour a lower standard of reasonableness.
    Considering certain specific features of the impugned provisions that I outline
    below, I am satisfied that they do not violate s. 8 of the
Charter
.

[42]

The powers conferred by ss. 13(6) and 14(1)(c)
    depend upon a s. 13(1) order having been made. To make a s. 13(1) order, an
    inspector or agent must have reasonable grounds to believe that an animal is in
    distress, that is, being in need of proper care, water, food or shelter or
    being injured, sick or in pain or suffering or being abused or subject to undue
    or unnecessary hardship, privation or neglect (s. 1(1)). A s. 13(1) order must
    be in writing. Upon being notified of the order, the owner of custodian is
    given the opportunity to challenge the order before the Animal Care Review
    Board. This means that entry into a dwelling can only take place after an inspector
    or agent has reasonable grounds to believe an animal is in distress, a written
    order has been given to the owner or custodian, and the owner or custodian has
    not complied with or challenged the order. While this falls short of the
    protection afforded by prior authorization obtained through a judicially
    approved search warrant, in my view, it is a sufficient safeguard against
    unreasonable search and seizure in the context of animal protection.

[43]

First, as the application judge observed, we are
    dealing with a regulatory rather than a criminal matter where a less strenuous
    and more flexible standard of reasonableness applies:
Thomson
    Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive
    Trade Practices Commission)
, [1990] 1 S.C.R. 425, at p.
    506.

[44]

Second, these provisions deal less with
    gathering evidence and more with the prevention and alleviation of harm. We are
    dealing with exigent circumstances where the expectation of privacy yields to
    prevention of imminent harm:
R. v. Godoy
,
    [1999] 1 S.C.R. 311, at para. 21. An animal in distress is unable to draw
    attention to its plight. More serious harm or even death may result if prompt
    action is not taken to relieve the animals distress. Entry under ss. 13(6) and
    14(1)(c) is only permitted where the owner or custodian has already been
    ordered to act to relieve animal distress. Seizure under s. 14(1)(b) is only
    permitted where an animal is in distress and the owner or custodian is not
    present and cannot be found promptly.

[45]

Given the nature of the search powers at issue,
    I would dismiss the cross-appeal with respect to ss. 13(6), 14(1)(b) and
    14(1)(c).

(3)

Did the application judge err by finding that
    ss. 11, 12 and 12.1 engage the liberty and security of the person interests
    under s. 7?

[46]

It is well-established that the analysis under
    s. 7 proceeds in two stages. The first question is whether the impugned law
    infringes life, liberty or security of the person. If the answer to that
    question is yes, the second question is whether the infringement is in
    accordance with the principles of fundamental justice. I turn first to whether
    ss. 11, 12 and 12.1 infringe the liberty or security of the person interest of those
    subjected to the powers conferred by those provisions.

Liberty

[47]

The application judge concluded that because the
    exercise of the powers conferred by ss. 11, 12 and 12.1 could lead to
    prosecution, conviction and imprisonment under the offence provisions of the
    Act, the liberty interest was engaged. In my respectful view, this amounted to
    an error of law for two reasons.

[48]

First, we are not dealing with an appeal from
    conviction. I agree with the appellant that viewed on their own, the powers
    conferred by those provisions are too remote from the possibility of conviction
    and imprisonment to engage the liberty interest. As the appellant points out,
    several steps would have to occur after the search before an individual would
    be deprived of liberty:

·

The criteria prescribed in those provisions search would have to be
    satisfied to authorize the search;

·

The search would have to yield evidence that could be used in a
    prosecution;

·

The person would have to be charged with an offence;

·

The person would have to be tried, convicted and sentenced to
    imprisonment for the offence.

[49]

We were given no authority for the proposition
    that a power of search and seizure, without more, engages the liberty interest.
    The case law suggests the contrary. Two decisions of this court hold that the
    risk of imprisonment for non-payment of a fine imposed for a provincial offence
    is too remote to permit a challenge to the provincial offence itself on the
    ground that it infringes the liberty interest protected by s. 7:
London
    (City) v. Polewsky

(2005), 202 C.C.C. (3d) 257
    (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 37 (speeding); and
R.
    v. Schmidt
, 2014 ONCA 188, 119 O.R. (3d) 145 (selling
    unpasteurized milk). While the prospect of imprisonment was arguably more
    remote in those cases, they do stand for the proposition that where there are
    intermediate steps between the operation of a provision and deprivation of
    liberty, the court will not engage in speculation as to the possible eventual
    outcome to bring the case within s. 7.

[50]

Second, holding that the risk of imprisonment is
    possible as an eventual consequence of a search would turn virtually every s. 8
    challenge into a s. 7 challenge as well. In my view, that would be wrong and
    contrary to established authority. As I will explain in more detail below with
    respect to security of the person, this would run counter to the principle that
    where a specific section of the
Charter

such as s. 8 is engaged,
Charter

scrutiny should be conducted under that specific provision and not
    under the more general guarantee of s. 7.

Security of the person

[51]

In my respectful view, the application judge
    also erred in concluding that the impugned provisions engaged the security of the
    person interest protected by s. 7.

[52]

To demonstrate an interference with security of
    the person, an applicant must show either (1) interference with bodily
    integrity and autonomy, including deprivation of control over ones body:
Carter
    v. Canada (Attorney General)
,
2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 66-67, or (2) serious
    state-imposed psychological stress:
Blencoe v. British Columbia
    (Human Rights Commission)
,
2000 SCC 44, [2002] 2 S.C.R. 307, at paras. 81-86; Hamish Stewart,
Fundamental
    Justice: Section 7 of the Canadian Charter of Rights and Freedoms
, 2nd ed. (Toronto: Irwin Law, 2019), at pp. 95-106.

[53]

The impugned powers plainly do not interfere
    with bodily integrity or control over ones body. No doubt it would be
    unsettling to have ones premises or dwelling subjected to a search under the
    impugned powers. However, as the application judge found, there is nothing in
    the record to suggest that a search of that nature would impose the level of
    state-imposed stress contemplated by the case law. In
Blencoe
, the Supreme Court warned, at para. 86, against stretch[ing] the
    meaning of this right by accepting lesser levels of stress as engaging the
    security of the person interest. It rejected the contention that a lengthy
    delay in dealing with a human rights complaint against the applicant, that had
    led to him suffering depression, humiliation and lack of employment, amounted a
    denial of security of the person.

[54]

Even in the case of a search that does involve
    an intrusion into bodily integrity (taking bodily samples), the Supreme Court
    of Canada held in
R. v. Rodgers
, 2006 SCC 15,
    [2006] 1 S.C.R. 554, at para. 23, that because s. 8 provides a more specific
    and complete illustration of the s. 7 right any s. 7 analysis is redundant.
    This follows the more general principle that where a
Charter

claim falls within one of the provisions of ss. 8 to 14,
    the challenge should be considered under that specific provision rather than
    under the more general guarantee found in s. 7:
R. v. Pearson
,
[1992] 3 S.C.R. 665, at p. 688;
R.
    v. Généreux
,
[1992] S.C.R.
    259, at p. 310;
R. v. Mills
,
[1999] 3 S.C.R. 668, at paras. 87-88;
R. v. Knight
, 2008 NLCA 67, 241 C.C.C. (3d) 353, at para. 48. In
Wakeling
    v. United States of America
, 2014 SCC 72, [2014] 3 S.C.R.
    549, the applicant challenged a wiretap under s. 7. He argued that transparency
    and accountability were principles of fundamental justice. As I explain below,
    that argument was rejected at first instance. The Supreme Court of Canada did
    not find in necessary to deal with the issue of whether transparency and
    accountability were principles of fundamental justice, but ruled, at para. 52,
    that the accountability concerns  are best dealt with under s. 8.

[55]

The failure of the respondent to show either interference
    with bodily integrity or serious state-imposed psychological stress should have
    ended the security of the person inquiry. The application judge held, however,
    that as ss. 8 to 14 of the
Charter

are
    specific illustrations of the s. 7 right not to be deprived of life, liberty
    and security of the person except in accordance with the principles of
    fundamental justice, the constitutionality of the impugned search and seizure
    powers could be considered under s. 7.

[56]

This produced an unusual result. The application
    judge dismissed the respondents s. 8 challenge to some of the Acts search
    provisions under the
Charters

specific
    guarantee against unreasonable search and seizure. The s. 7 challenge involved
    ss. 12 and 12.1, provisions that were not challenged under s. 8. However, in
    view of the application judges reasons on the s. 8 challenge, it is difficult
    to see any reason why the application judge would have not ruled the same way
    with respect to ss. 12 and 12.1. Yet he allowed the challenge to ss. 12 and
    12.1 under the more general constitutional standard found in s. 7 on the ground
    that s. 7 embraced the right conferred by s. 8.

[57]

In my view, the application judge should have
    confined his analysis of any challenged search and seizure provision to the specific
    s. 8 guarantee. I do not agree with the application judges determination that
    a s. 7 analysis was appropriate in the particular context of this case to
    address the respondents issues. There was a proper way to deal with the
    questions posed by the respondent. The issue should have been framed in terms
    of the reasonableness of the powers of search and seizure. To succeed, the
    respondent should have been required to show that conducting a search or
    seizure without reasonable standards to ensure transparency, accountability and
    adequate funding is unreasonable under s. 8.

[58]

The respondent submits that if we accept that
    the analysis should proceed under s. 8, we should still strike down ss. 11, 12
    and 12.1 on the grounds that the absence of transparency, accountability and adequate
    funding renders searches conducted under these provisions unreasonable.

[59]

I disagree. I explain below why I reject the
    proposition that law enforcement bodies must be subject to reasonable
    standards of transparency, adequate funding, and accountability is a principle
    of fundamental justice. In my view, the proposed principle fares no better when
    framed in terms of the reasonableness of the impugned powers of search and
    seizure. The proposed principle deals with general issues of governance and
    institutional design, not with the reasonableness, scope or exercise of powers
    of search and seizure. The alleged shortcomings in the legislation are too
    remote from the definition of the challenged statutory powers and the manner in
    which those powers are carried out. To succeed on this ground, the respondent
    would have to show that the lack of measures to ensure transparency,
    accountability and adequate funding realistically had or risked having an
    actual impact on the exercise of the challenged statutory powers. There is no
    such evidence in this case. The respondents complaint is with the general
    governance of the OSPCA, not with the definition of its statutory powers or the
    manner in which they are exercised.

[60]

The fact that the respondent had been given
    public interest standing to challenge the Act did not relieve him of the
    obligation to establish a
Charter

infringement.

[61]

I turn finally to the specific provisions
    challenged as being unreasonable. It will be recalled that the provisions at
    issue are ss. 12 and 12.1. Section 12(1) allows inspectors and agents with a
    warrant to search a building or place to determine if an animal is in distress while
    s. 12(6) allows for entry without a warrant upon reasonable grounds to believe
    that an animal is in immediate distress. Section 12.1 allows inspectors, agents
    and veterinarians who are lawfully in a place to take a carcass or sample of a
    carcass.

[62]

Neither provision authorizes the warrantless search
    of a dwelling. Section 12, dealing with exigent circumstances and the seizure
    of a carcass or part of a carcass, represents a minimal interference with the
    owners or custodians rights. They are arguably less intrusive of an owners
    or custodians privacy interest than the other provisions with which I have
    already dealt. For the reasons I gave with respect to the other provisions
    challenged under s. 8, I reject the challenge to ss. 12 and 12.1.

(4)

Did the application judge err in recognizing a
    novel principle of fundamental justice?

[63]

The appellant submits that the application judge
    erred by recognizing law enforcement bodies must be subject to reasonable
    standards of transparency and accountability as a novel principle of
    fundamental justice. The respondent cross-appeals, asking that we recognize as
    a principle of fundamental justice that law enforcement be properly funded,
    amplified in his factum as the principle that law enforcement bodies must be
    funded in such manner to avoid actual or perceived conflicts of interest or
    apprehension of bias. This is a re-formulation of the integrity argument the
    respondent made before the application judge.

[64]

I have no doubt that it would be a good idea and
    sound public policy to make all law enforcement bodies subject to reasonable
    standards of transparency, accountability and adequate funding and that they be
    properly funded. But not all good ideas and sound public policies are
    constitutionally protected or mandated. Our task is not to decide what would be
    sound policy. We are charged with the more specific task of deciding what the Constitution
    requires: see
Rodriguez v. British Columbia (Attorney General)
, [1993] 3 S.C.R. 519, at p. 590
: Principles
    of fundamental justice must not  be so broad as to be no more than vague generalizations
    about what society considers to be ethical or moral.

[65]

The fact that we are faced with a novel
Charter

claim does not, of course, mean that the claim cannot
    succeed. We are mandated to give the
Charter

a purposive interpretation, recognizing that it must be capable of
    growth and development over time to meet new social, political and historical
    realities often unimagined by its framers:
Hunter et al. v. Southam
    Inc.
, [1984] 2 S.C.R. 145, at p. 155. At the same time,
    we must recognize the importance not to overshoot the actual purpose of the
    right or freedom in question and ensure that the right or freedom is placed
    in its proper linguistic, philosophic and historical [context]:
R.
    v. Big M Drug Mart
,
[1985]
    1 S.C.R. 295, at p. 344.

[66]

The judicial interpretation of the Constitution should
    be broad and generous but must also be disciplined by the need to provide a
    reasoned justification based upon recognized principles and values of our
    constitutional order. These principles confer on the courts a legal duty to
    interpret and protect guaranteed rights in a generous manner. But because our
    mandate is legal, the capacity of the courts to right all perceived wrongs is
    limited.

[67]

As I will explain, since the enactment of the
Charter
,
the courts have recognized what has
    become a long list of new principles of fundamental justice. But the courts
    have also rejected a long list of other proposed principles of fundamental
    justice. It is not always easy to determine whether a novel principle of
    fundamental justice should or should not be recognized. However, we are
    assisted in that task by considering the pattern revealed by the decisions in
    past cases and by the need to satisfy three criteria summarized by the Supreme
    Court of Canada in
Malmo-Levine
, at para. 113,
    and
Canadian Foundation for Children
,
at para. 8.

[68]

The first criterion is that the proposed
    principle of fundamental justice must be a legal principle to satisfy two
    purposes: (1) that it
provides meaningful content for the
    s. 7 guarantee; and (2) that it avoids the adjudication of policy matters:
Re
    B.C. Motor Vehicle Act
, [1985] 2 S.C.R. 486, at p.
    503.

[69]

The second criterion is that the alleged principle
    must be vital or fundamental to our societal notion of justice:
Rodriguez
, at p. 590. This was explained in
Canadian Foundation for
    Children
, at para. 8: The principles of fundamental justice
    are the shared assumptions upon which our system of justice is
    grounded. They find their meaning in the cases and traditions that have
    long detailed the basic norms for how the state deals with its
    citizens. Society views them as essential to the administration of
    justice.

[70]

The third criterion is that the alleged principle
    must be capable of being identified with precision and applied to situations in
    a manner that yields predictable results:
Canadian Foundation for
    Children
, at para. 8.

[71]

I agree with the appellant that the proposed new
    principle of fundamental justice meets none of these three criteria.

[72]

I turn first to the question of whether transparency,
    accountability and adequate funding qualifies as a legal principle capable of
    supporting s. 7 analysis.

[73]

The application judge gave as examples of
    transparency the open court principle and legislation relating to access to
    information. The need to support legal decisions with reasons was given as an
    example of accountability. In my view, those examples fall short of supporting
    what is required to constitute a legal principle
that
provides meaningful content for the s. 7 guarantee and that avoids
    the adjudication of policy matters. A legal principle that is used as a rule
    or test in common law, statutory or international law will satisfy first
    criterion of the principles of fundamental justice test:
Canada
    (Attorney General) v. Federation of Law Societies of Canada
,
    2015 SCC 7, [2015] 1 S.C.R. 401, at para. 91. Transparency and accountability
    have a more limited legal pedigree. They are background values that the law
    sometimes takes into account in various ways and in various contexts. Courts
    may consider these values when interpreting the Constitution, statutes and
    common-law rules but they have not crystalized into the kind of operational or
    normative legal principle that can be independently deployed by a court to
    determine rights and obligations that will satisfy the s. 7 test.

[74]

Transparency and accountability were explicitly
    rejected by the Supreme Court of Canada in
Wakeling,
where the court stated, at para. 47:

[W]hile the concepts of openness, transparency
    and accountability are important values or objectives, they are not legal
    principles, fundamental to the legal system, which can be identified with
    sufficient precision to be regarded as principles of fundamental justice
    pursuant to the test identified in
Malmo-Levine
.

Rather, these
    concepts like the harm principle posited by the accused
in
Malmo-Levine
a
re more
    properly regarded as matters falling into the realm of public policy.

[75]

I agree with that assessment.

[76]

In
Malmo-Levine
, it
    was argued that s. 7 precluded the criminalization of possession of marijuana
    because doing so would violate the principle that the criminal law could only
    impose imprisonment for conduct that results in harm to others. The majority
    rejected that proposition, explaining that while harm may justify
    criminalization, the absence of proven harm does not preclude legislative
    action. At para. 114, the majority explained: the harm principle is better
    characterized as a description of an important state interest rather than a
    normative

legal

principle. In my view,
    the same can be said of transparency, accountability and proper funding. If the
    harm principle does not qualify as a legal principle, nor can the novel
    principle proposed in this case.

[77]

I turn to the second question, namely whether
    transparency, accountability and adequate funding are vital or fundamental to
    our societal notion of justice. In
Canadian Foundation for Children
,
the Supreme Court of Canada held that while
    the best interests of the child is a legal principle that succeeds at the
    first stage, it fails to meet the second criterion as a principle that is vital
    to our societal notion of justice. The majority stated, at para. 10, that while
    the best interests of the child is widely supported in legislation and
    social policy and is an important factor for consideration in many contexts, it
    is not a foundational requirement for the dispensation of justice because it
    is only one factor to be considered and it may be subordinated to other
    concerns in appropriate contexts.

[78]

In my view, best interests of the child is much
    closer to being vital or fundamental to our societal notion of justice than
    transparency, accountability and proper funding. The latter values are
    regularly subordinated to other concerns. For example, the right to access
    information under legislation such as the
Freedom of Information and
    Protection of Privacy Act
is heavily qualified by exemptions
    for matters such as Cabinet confidentiality, certain types of advice to
    government, the interests of law enforcement, and solicitor-client privilege.
    The open court principle is subject to many exceptions required to protect
    competing rights and interests. As explained by the British Columbia Supreme
    Court in
Wakeling
, at para. 49, with respect to
    transparency and accountability, [t]here are areas relating to the
    administration of justice in which the application of these principles is
    either unworkable or rendered of secondary import because of other, more
    compelling interests. The adequacy of funding for law enforcement bodies is
    plainly a matter for political debate and subject to being reconciled with
    other competing demands on the public purse.

[79]

Finally, I do not think that the proposed principle
    satisfies the third branch of the test that it be capable of being identified
    with precision and applied to situations in a manner that yields predictable
    results.

[80]

It is far from clear to me what measures would be
    required to satisfy this alleged principle of fundamental justice. Achieving
    transparency, accountability and adequate funding for any public body opens a
    complex and multifaceted inquiry that could yield a wide range of outcomes. In
    the words of
Re B.C. Motor Vehicle Act
,
at p. 503, transparency, accountability and adequate funding lie in
    the realm of general public policy and they do not fall within the category of
    the basic tenets of our legal system. Section 7 creates and protects
    individual legal rights and should not to be mistaken as a general guarantee of
    good governance. The design of a proper regime of law enforcement, one that
    ensures that peace officers are accountable, that their actions are subject to
    public scrutiny and that the law is enforced with integrity, are questions of
    public policy, not individual legal rights. The shape and contours of a
    properly designed system cannot be identified with some precision and we have
    been offered no standards that could be applied to situations in a manner that
    yields predictable results.

[81]

Again, the observations of the Supreme Court in
Canadian
    Foundation for Children
are applicable. The majority held,
    at para. 11, that best interests of the child fell short:

It functions as a factor considered along with
    others. Its application is inevitably highly contextual and subject to dispute;
    reasonable people may well disagree about the result that its application will
    yield, particularly in areas of the law where it is one consideration among
    many, such as the criminal justice system. It does not function as a
    principle of fundamental justice setting out our minimum requirements for the
    dispensation of justice.

[82]

If the best interests of the child principle
    falls short, transparency, accountability and adequate funding must fall well
    short. There is an extensive body of case law on best interests of the child.
    It is applied every day in the courts of this province. Lawyers and judges
    understand what it means and know how to apply it. Transparency, accountability
    and adequate funding are, on the other hand, background values that some laws
    promote with varying degrees of stringency.

[83]

As Prof. Stewart explains in
Fundamental
    Justice
,
at p. 124, recognizing
    a principle of fundamental justice creates a standard against which non-compliant
    legislation will be struck down. It is therefore essential that the principle
    be sufficiently precise so that the public, the legislature, and other courts
    and tribunals understand exactly what is the defect in the legislation that
    leads to its invalidation and how that defect might be cured. The respondent
    and the interveners have failed to identify with any degree of precision the
    content of this alleged principle. There is very little legal guidance on what
    it means or requires.

[84]

I recognize, of course, that to satisfy the
    third branch of the principles of fundamental justice test, a proposed
    principle does not have to define
a precise, bright-line
    rule
and
that the exercise of
    judgment may be required to determine its meaning in any given case. Obvious
    examples are the principles that laws must not be arbitrary, overly broad or
    grossly disproportionate: see
Canada (Attorney General) v. Bedford
,
2013 SCC 72, [2013] 3 S.C.R. 1101
. However, a proposed principle
    does have to set out what the Supreme Court described in a similar context as
    an intelligible standard, capable of providing an adequate basis for legal
    debate  as to its meaning by reasoned analysis applying legal criteria:
R.
    v. Nova Scotia Pharmaceutical Society
,
[1992] 2 S.C.R. 606, at p. 693. This requirement is satisfied in the
    case of arbitrariness, overbreadth and gross disproportionality. Those
    principles require the court to compare the rights infringement caused by the
    law with the objective of the law, not with the laws effectiveness:
Bedford
, at para. 123. The inquiry is disciplined, defined and confined by the
    right at issue and the contours and effect of the law that is being challenged.
    It requires the court to apply some general external value of good governance.

[85]

To accept transparency, accountability and adequate
    funding as a principle of fundamental justice would, in my view, create uncertainty
    and necessarily involve the courts in the adjudication of policy matters. As
    the Railway Association of Canada points out, federal and provincial
    legislation confer law enforcement powers on a wide array of individuals,
    including railway constables, who are not members of any formal police force.
    The
Criminal Code
gives such powers to every
    person in many situations, including: assisting a police officer (s. 25(4)),
    preventing an offence causing harm to others (s. 27), and preventing a breach
    of the peace (s. 30). The principle of fundamental justice accepted by the
    application judge would, in my view, invite more questions than it would
    answer. It would inevitably involve the courts in complex policy issues
    regarding law enforcement and institutional design, issues for which legal
    analysis under the
Charter
is ill-suited.

[86]

I think it important to add as a final note that
    the operation of the Act is not entirely devoid of transparency and
    accountability. If a prosecution is brought by the OSPCA, any searches or
    seizures are subject to judicial and
Charter
scrutiny. Orders regarding animals in distress, including removal orders, may
    be appealed to the Animal Care Review Board. These features do subject the
    OSPCA to a certain level of accountability. Persons charged with offences are
    entitled to full disclosure of the fruits of an investigation under the
    principle established in
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326, thereby ensuring transparency.

[87]

The Minister responsible for the administration of
    the Act has exercised the statutory authority to enact regulations to oversee
    the inspectors and agents of the [OSPCA] in the performance of their duties:
    s. 22(2)(a) of the Act. These regulations require the Chief Inspector to
    establish standards for inspectors and agents, to oversee inspectors and agents
    in the performance of their duties, and where appropriate, to remove them: O
    Reg 59/09, s. 1.

[88]

The OSPCA has developed a detailed
    Investigations Policy and Procedures Manual. While the Manual is not a public
    document, it does set out the OSPCAs policies regarding searches, seizures,
    enforcement and disciplinary procedures applicable to inspectors and agents.
    The OSPCAs funding agreements with the province require detailed reporting to the
    Ministries providing the funding.

CONCLUSION

[89]

For these reasons, I would allow the appeal and
    set aside the application judges declaration of invalidity. I would dismiss
    the cross-appeal.

COSTS

[90]

Both parties filed written costs submissions
    seeking costs of this appeal. The appellant submits that if successful, it
    should be awarded costs fixed at $20,000. The respondent submits that as a
    public interest litigant, he should be awarded $20,000, plus HST, regardless of
    the outcome of the appeal. None of the interveners asks for costs and no costs
    are requested against the interveners.

[91]

In my view, the circumstances of this appeal do
    not warrant an order requiring the respondent to pay the appellants costs. The
    respondent was successful at first instance and following that decision the
    OSPCA withdrew from enforcing the Act. The appellant brought the appeal because
    of concern over the implications of the application judges decision and to
    clarify the law. As is apparent from these reasons, I agree with the
    appellants concerns and in my view the appeal was properly brought. That said,
    as the OSPCA had withdrawn from enforcement duties, the respondent has achieved
    practical if not legal success. I am not persuaded that the ordinary loser
    pays rule should be applied in these circumstances.

[92]

The case law recognizes a discretion to depart
    from the loser pays principle and decline a costs order in favour of a
    successful government litigant in constitutional litigation: see
Incredible
    Electronics v. Canada (Attorney General)
(2006), 80 O.R.
    (3d) 723 (Sup. Ct.), at para. 74;
Thompson and Empowerment Council
    v. Ontario
,
2013 ONSC
    6357, 118 O.R. (3d) 34. I would apply that discretion in this case and decline
    to order costs in favour of the appellant.

[93]

There is also a discretion to award an
    unsuccessful public interest litigant costs in
Charter
litigation. However, highly unusual circumstances are required to
    justify such an order which should be made only in very rare cases:
B.
    (R.) v. Childrens Aid Society of Metropolitan Toronto
,
[1995] 1 S.C.R. 315, at p. 390. In my view, this case does not call
    for an exceptional order. The respondent is not a marginalized, disadvantaged
    person. There is no evidence that he is a person of limited means. He was given
    public interest standing and access to justice concerns are adequately met by
    departing from the loser pays principle and declining to order costs against
    him.

[94]

Accordingly, I would make no order as to the
    costs of this appeal.

Released: RJS NOV 14, 2019

Robert J. Sharpe J.A.
I agree. C.W. Hourigan J.A.
I agree. L.B. Roberts J.A.

APPENDIX

Charter of Rights and
    Freedoms

7.
Everyone has the
    right to life, liberty and security of the person and the right not to be
    deprived thereof except in accordance with the principles of fundamental
    justice.

8.
Everyone has the
    right to be secure against unreasonable search or seizure.

Ontario Society for the Prevention of Cruelty
    to Animals Act,
R.S.O., c. O.36

1
(1) In
    this Act,

distress means the state of being in need of proper care,
    water, food or shelter or being injured, sick or in pain or suffering or being
    abused or subject to undue or unnecessary hardship, privation or neglect;

3
The
    object of the Society is to facilitate and provide for the prevention of
    cruelty to animals and their protection and relief therefrom.

6.1
(1) The
    Society shall appoint an employee of the Society as the Chief Inspector.

(2) In addition to the powers and duties of an inspector or an
    agent of the Society, the Chief Inspector shall have the powers and duties that
    may be prescribed by regulation, including the power to establish
    qualifications, requirements and standards for inspectors and agents of the
    Society, to appoint inspectors and agents of the Society and to revoke their
    appointments and generally to oversee the inspectors and agents of the Society
    in the performance of their duties.

7
(3) The
    Lieutenant Governor in Council may annul any by-law of the Society.

11
(1) For
    the purposes of the enforcement of this Act or any other law in force in
    Ontario pertaining to the welfare of or the prevention of cruelty to animals,
    every inspector and agent of the Society has and may exercise any of the powers
    of a police officer.

11.2
(1) No
    person shall cause an animal to be in distress.

(2) No owner or custodian of an animal shall permit the animal
    to be in distress.

11.4
(1) An
    inspector or an agent of the Society may, without a warrant, enter and inspect
    a building or place where animals are kept in order to determine whether the
    standards of care or administrative requirements prescribed for the purpose of
    section 11.1 are being complied with if the animals are being kept for the
    purpose of animal exhibition, entertainment, boarding, hire or sale.

(2) The power to enter and inspect a building or place under
    this section shall not be exercised to enter and inspect a building or place
    used as a dwelling except with the consent of the occupier.

11.4.1
(1) An
    inspector or an agent of the Society may, for the purpose of ensuring that the
    standards of care or administrative requirements prescribed for the purpose of
    section 11.1 are being complied with, demand that a person produce a record or
    thing for inspection if the person owns or has custody or care of animals that
    are being kept for the purpose of animal exhibition, entertainment, boarding,
    hire or sale.

12
(1) If a
    justice of the peace or provincial judge is satisfied by information on oath
    that there are reasonable grounds to believe that there is in any building or
    place an animal that is in distress, he or she may issue a warrant authorizing
    one or more inspectors or agents of the Society named in the warrant to enter
    the building or place, either alone or accompanied by one or more veterinarians
    or other persons as the inspectors or agents consider advisable, and inspect
    the building or place and all the animals found there for the purpose of
    ascertaining whether there is any animal in distress.

(6) If an inspector or an agent of the Society has reasonable
    grounds to believe that there is an animal that is in immediate distress in any
    building or place, other than a dwelling, he or she may enter the building or
    place without a warrant, either alone or accompanied by one or more veterinarians
    or other persons as he or she considers advisable, and inspect the building or
    place and all the animals found there for the purpose of ascertaining whether
    there is any animal in immediate distress.

(8) For the purpose of subsection (6),

immediate distress means distress that requires immediate
    intervention in order to alleviate suffering or to preserve life.

13
(1) Where
    an inspector or an agent of the Society has reasonable grounds for believing
    that an animal is in distress and the owner or custodian of the animal is
    present or may be found promptly, the inspector or agent may order the owner or
    custodian to,

(a) take such action as may, in the opinion of the inspector or
    agent, be necessary to relieve the animal of its distress; or

(b) have the animal examined and treated by a veterinarian at
    the expense of the owner or custodian.

(6) If an order made under subsection (1) remains in force, an
    inspector or an agent of the Society may enter without a warrant any building
    or place where the animal that is the subject of the order is located, either
    alone or accompanied by one or more veterinarians or other persons as he or she
    considers advisable, and inspect the animal and the building or place for the
    purpose of determining whether the order has been complied with.

14
(1) An
    inspector or an agent of the Society may remove an animal from the building or
    place where it is and take possession thereof on behalf of the Society for the
    purpose of providing it with food, care or treatment to relieve its distress
    where,

(a) a veterinarian has examined the animal and has advised the
    inspector or agent in writing that the health and well-being of the animal
    necessitates its removal;

(b) the inspector or agent has inspected the animal and has reasonable
    grounds for believing that the animal is in distress and the owner or custodian
    of the animal is not present and cannot be found promptly; or

(c) an order respecting the animal has been made under section
    13 and the order has not been complied with.

22(2) The Minister responsible for the administration of this
    Act may make regulations,

(a) prescribing and governing the powers and duties of the Chief
    Inspector of the Society, including the power to establish qualifications,
    requirements and standards for inspectors and agents of the Society, to appoint
    inspectors and agents of the Society and to revoke their appointments and
    generally to oversee the inspectors and agents of the Society in the
    performance of their duties;


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Corporation Number 1009329 (Enterprise
    Rent-A-Car) v. Intact Insurance Company, 2019 ONCA 916

DATE: 20191121

DOCKET: C66164

Rouleau, Huscroft and Nordheimer JJ.A.

BETWEEN

Ontario Corporation Number 1009329 c.o.b. as
    Enterprise Rent-A-Car and/or Enterprise Rent-A-Car

Applicant/Appellant (Appellant)

and

Intact Insurance Company

Respondent/Respondent (Respondent)

Robert Love and Taha Hassan, for the appellant

Jonathan Heeney and Sean Cheskes, for the respondent

Brigette A. Morrison, for the intervenors Aviscar Inc.,
    Budgetcar Inc. and ACCRO Rental Systems, Inc. o/a ACCRO Services

Reine Reynolds for the intervenors Hertz Canada Limited
    and Dollar Thrifty Automotive Group

Alexander B. Paul for the intervenor New Horizons Car
    & Truck Rental Ltd. o/a Discount Car & Truck Rentals Ltd.

Heard: October 15, 2019

On appeal from the order of the Divisional Court (Regional
    Senior Justice Geoffrey B. Morawetz, Regional Senior Justice Robbie D. Gordon
    and Justice Barbara A. Conway, dated June 5, 2018, with reasons reported at 2018
    ONSC 3517, 27 M.V.R. (7th) 59, affirming the decision of Justice Edward M.
    Morgan, dated December 14, 2017, with reasons reported at 2017 ONSC 7515, 140
    O.R. (3d) 396.

REASONS FOR DECISION

[1]

Adi Perets was involved in a car accident while driving a rental car owned
    by the appellant Enterprise Rental Car (Enterprise). At the time, she was
    living with her parents and was a listed driver under a standard Ontario
    Automobile Policy (OAP1) issued to her father by the respondent, Intact
    Insurance (Intact). The policy covered two vehicles that she drove regularly.
    She was not a named insured on her fathers policy.

[2]

Ms. Perets was named as a defendant in the action arising from the 2013
    accident. There was a priority dispute as to whether Enterprises insurer or
    Intact was the first loss insurer. Enterprise and Intact entered into a reservation
    of rights agreement pursuant to which Enterprise agreed to defend Ms. Perets in
    the action until the priority dispute was resolved. In October 2017 the action
    settled and Enterprise paid $30,000 towards the settlement on behalf of Ms.
    Perets. Enterprise then sought $30,000 plus $17,483 in legal fees from Intact,
    resuming its claim that Intact was the first loss insurer.

[3]

The application judge dismissed Enterprises claim on the basis that
    coverage under the OAP1 issued by Intact was not available to Ms. Perets for a
    rental car and that the priority provision in the
Insurance Act
,
    R.S.O. 1990, c. I.8 did not apply as a result. Hence, liability fell to
    Enterprises insurer, not Intact, as the first loss insurer.
The
Divisional Court upheld the decision on appeal.

[4]

The appeal is dismissed for the reasons that follow.

[5]

This appeal concerns the interpretation of the
Insurance Act
and the provisions of a standard form contract of insurance. The standard of
    review is correctness:
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23.

[6]

The thrust of Enterprises argument, supported by the interveners, is
    that the OAP1 is in conflict with the
Insurance Act
. They argue that
    the OAP1, unlike s. 277(1.1)(2) of the
Insurance Act
, provides no
    coverage for a listed driver when driving a rental car and that the
Insurance
    Act

prevails as a result.

[7]

This argument was rejected by the application judge and the Divisional
    Court. We see no error in their analysis.

[8]

There is no doubt that the purpose of the amendments to the
Insurance
    Act
,

introduced in
    2005 by Bill 18,
Budget Measures Act
, 2005 (No. 2), S.O. 2005, c. 31, was
    to reduce the financial exposure of car rental companies by making the car rental
    companys insurance the policy of last resort on the priority ladder. But the
    short answer to this appeal is that priorities under the
Insurance Act
depend on the existence of coverage under the policy of insurance, and in this
    case no coverage is available to Ms. Perets under the Intact policy.

[9]

Section 277(1.1) of the
Insurance Act
provides as follows:

(1.1) Despite subsection (1), if an automobile is
    leased, the following rules apply to determine the order in which the third
    party liability provisions of any available motor vehicle liability policies
    shall respond in respect of liability arising from or occurring in connection
    with the ownership or, directly or indirectly, with the use or operation of the
    automobile on or after the day this subsection comes into force:

1. Firstly,
insurance available under a
    contract
evidenced by a motor vehicle liability policy
under which the
    lessee of the automobile is entitled to indemnity
as an insured named in
    the contract.

2. Secondly,
insurance available under a
    contract
evidenced by a motor vehicle liability policy
under which the
    driver of the automobile is entitled to indemnity
, either as an insured
    named in the contract, as the spouse of an insured named in the contract who
    resides with that insured or as a driver named in the contract, is excess to
    the insurance referred to in paragraph 1.

3. Thirdly,
insurance available under a
    contract
evidenced by a motor vehicle liability policy
under which the
    owner of the automobile is entitled to indemnity
as an insured named in the
    contract is excess to the insurance referred to in paragraphs 1 and 2.
    2005, c. 31, Sched. 12, s. 6 (1). [Emphasis added.]

[10]

As the highlighted terms emphasize, although s. 277(1.1) establishes
    priorities amongst insurers, it does not create insurance coverage where none
    is available. The operation of s. 277(1.1) depends on insurance being
available
    under a contract: Enterprise Rent-a-Car Canada Ltd. v. MelocheMonnex Financial
    Services Inc.
,
2010
    ONCA 277
, 102 O.R.
    (3d) 87,
at para. 20.
Put another
    way, the priorities of insurance coverage established in s. 277(1.1) do not
    come into play unless there is insurance coverage, and that is a matter that
    must be determined in accordance with the terms of the insurance contract.

[11]

Whether insurance is available to Ms. Perets depends on s. 2.2.4 of the
    OAP1. That section provides liability coverage for rental vehicles, but only
    when the vehicle is rented by you  the named insured  or a spouse who lives
    with the named insured. The named insured in this case is Adi Perets father.
    Ms. Perets is neither the named insured nor his spouse, and as a result is not
    covered by the OAP1 when driving rental vehicles.

[12]

In the absence of rental vehicle coverage, it follows that the priority
    rules established in sections 277(1.1)(1) and 277(1.1)(2) have no relevance in
    this case. Consequently, as the application judge and Divisional Court
    concluded, responsibility to provide coverage fell to Enterprises insurer
    under s. 277(1.1)(3).

[13]

This interpretation is confirmed, in our view, by the existence of a
    separate optional endorsement providing rental vehicle coverage, the OPCF 27,
    which was not purchased in this case. This endorsement covers listed drivers
    who drive, rent, or lease other vehicles, and so would have covered Ms. Perets.
    As the application judge concluded, there would be no reason for this
    endorsement if, as Enterprise submits, listed drivers were already covered. It
    would be redundant coverage.

[14]

Accordingly, the appeal is dismissed.

[15]

The respondent is entitled to costs from the appellant fixed in the
    agreed amount of $5,000, inclusive of taxes and disbursements. This amount
    includes costs of the leave application.

[16]

No costs are awarded to or against the interveners.

Paul Rouleau
    J.A.

Grant Huscroft
    J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Perkins v. Sheikhtavi, 2019 ONCA 925

DATE: 20191126

DOCKET: C66785

van Rensburg, Paciocco and Thorburn JJ.A.

BETWEEN

Richard Kim Perkins and Sylvia Perkins

Plaintiffs/Defendants by Counterclaim

(Respondents)

and

Shahla Sheikhtav
i

Defendant/Plaintiff
    by Counterclaim

(Appellant)

and

Karim Samadi and Homelife Victory Team Realty Inc.

Third Parties

Brian Sherman, for the appellant

Dylan OLeary, for the respondents

Allan D. Powell, for the third parties

Heard: November 18, 2019

On appeal from the judgment of Justice Philip W.
    Sutherland, of the Superior Court of Justice, dated March 11, 2019, with
    reasons reported at 2019 ONSC 1595.

REASONS FOR DECISION

OVERVIEW

[1]

This is an appeal of a motion granting summary judgment and awarding
    damages resulting from the failure to close the purchase of a home.

[2]

The appellant, Shahla Sheikhtavi, claims the agreement of purchase and
    sale was frustrated. In the alternative, she claims there was an implied
    condition in her offer that the agreement was conditional on her selling her
    own home and obtaining mortgage financing. Lastly, she claims that the motion
    judge rejected uncontested evidence.

BACKGROUND FACTS

[3]

The respondents listed their home for sale in March 2017. The appellant
    made an offer to purchase the home on April 3, 2017. There were thirteen offers
    to purchase the home. The appellants offer was the second highest.

[4]

The appellants offer was accepted by the vendor.

[5]

The terms of the offer included a purchase price of $1,871,000 and a
    deposit of $80,000 to be held in trust by the realtor until the closing
    scheduled to take place on July 10, 2017. The offer was unconditional.

[6]

After the unconditional offer was accepted but before closing, the
    government of Ontario made a policy announcement. The evidence of two real
    estate agents, who swore affidavits at the request of the appellant, was that
    within days of this announcement, real estate prices in the area dropped 20 to
    30 per cent.

[7]

On the day of closing, the appellant advised that she could not close,
    as she had been unable to sell her own home and could not obtain sufficient
    mortgage financing.

[8]

As a result of the failure to close, the respondent put the property
    back on the market and it sold for $1,251,888. This was $619,112 less than the
    appellant had agreed to pay.

[9]

The respondent commenced legal proceedings against the appellant
    seeking:

a)

$619,112, being
    the difference between the amount the appellant had offered and the amount the
    property later sold for; and

b)

carrying costs
    of the property between July 10, 2017 and the sale of the property.

[10]

The appellant opposed the motion for summary judgment claiming that the
    government announcement frustrated the agreement. She also brought her own
    motion seeking return of the deposit.

THE DECISION OF THE MOTION JUDGE

[11]

The motion judge held that,

I am not convinced that the
    doctrine of frustration applies in these circumstances.

Though I can agree that there was a
    supervening event, that is the announcement of the policy by the provincial
    government at the time, I do not find that this event was a radical change in
    obligation to force the defendant to do something radically different from
    what the parties agreed.

Any term to relieve the defendant
    from her obligation concerning financing could have been resolved by including
    a term concerning financing.

.

[T]he defendant knowingly did not
    include a term for financing.  The reason for not including such term is clear
    from the evidence on this motion: the defendant wanted to have her offer to
    purchase accepted by the plaintiffs. She anticipated that an offer to purchase
    with the price she offered with no conditions would more likely to be accepted.

The defendant got what she wanted, the property at the price
    she was offering to purchase. She did so knowing that she took a risk; that she
    may not be able to obtain financing by not being able to sell her existing
    home. This was a risk knowingly taken by the defendant.

[12]

He therefore ordered the appellant to pay $619,112 and carrying costs in
    the amount of $4,621.05.

ANALYSIS AND CONCLUSION

[13]

We find no error in the motion judges disposition of the motions.

[14]

Though there was a supervening event (the announcement of a new
    government policy), the supervening event did not constitute frustration of the
    agreement, as the announcement was not such that performance of the contract
    becomes a thing radically different from that which was undertaken by the
    contract:
Naylor Group Inc. v. Ellis-Don Construction Ltd.
, 2001 SCC
    58, [2001] 2 S.C.R. 943, at para. 53.

[15]

Frustration applies to contracts including real estate transactions,
    when a supervening event alters the nature of the appellants obligation to
    contract with the respondent to such an extent that to compel performance
    despite the new and changed circumstances would be to order the appellant to do
    something radically different from what the parties agree to under their
    contract:
Naylor
, at para. 55.

[16]

A contract is not frustrated if the supervening event was contemplated
    by the parties at the time of contracting and was provided for or deliberately
    chosen not to be provided for in the contract:
Capital Quality Homes
    Ltd. v. Colwyn Construction Ltd.

(1975),
9 O.R. (2d) 617
(C.A.), at p. 626
.

[17]

A party claiming that a contract has been frustrated has the onus
    of proving the constituent elements necessary to establish frustration:
Bang
    v. Sebastian
, 2018 ONSC 6226, at para. 30;
Gerstel v. Kelman
,
    2015 ONSC 978
,
40 B.L.R. (5th)
    314
.

[18]

In this case, the appellant deliberately chose not to include a
    condition that she had to be able to sell her home and obtain mortgage
    financing before closing as a term of her offer to purchase.

[19]

She would reasonably have known there was a risk her home would not sell
    at the price she sought but made an unconditional offer to purchase the
    respondents home because she wanted her offer to be accepted (although she was
    not the highest bidder).

[20]

The appellant was specifically told by her real estate agent that unless
    she put in an unconditional offer, her offer would not be accepted.

[21]

It was reasonable for the motion judge to conclude that the test for
    frustration was not met, as the policy announcement relied on by the appellant
    did not force her to do something radically different from what the parties
    agreed.
The appellants contract was not
    frustrated;
it was breached by the appellant.

[22]

Secondly, the agreement contains a clause that the written agreement is
    the entire agreement between the parties. We see no error in the motion judges
    conclusion that this precluded any implied condition or term as asserted by the
    appellant.

[23]

Lastly, the motion judge did not reject uncontested evidence. He
    accepted that there was an unforeseen event. While his reasons do not
    specifically mention the 20 to 30 per cent decrease in home prices cited by the
    real estate agents who filed affidavits in support of the appellants position,
    he accepted that there was a supervening event but found it was not a radical
    change such that the appellant should be relieved of her obligations under the
    contract. There was no rejection of uncontested evidence.

[24]

For these reasons, the appeal is dismissed. Partial
    indemnity costs to the respondents in the amount of $15,019.62 as per the Bill
    of Costs submitted.

K. van Rensburg J.A.

David M. Paciocco J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Plytas (Re), 2019 ONCA 931

DATE: 20191127

DOCKET: C66790

Feldman, Gillese and Miller JJ.A.

IN THE MATTER OF:  Constance Plytas

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Natalya Odorico, for the respondent

Heard: November 22, 2019

On appeal against the disposition of the Ontario Review
    Board dated January 24, 2019.

REASONS FOR DECISION

[1]

The appellant was found not criminally responsible on charges of
    dangerous operation of a motor vehicle, mischief not exceeding five thousand
    dollars, threatening death, and assault with a weapon. Following her fourth
    annual review hearing, the ORB found that she continued to constitute a
    significant threat to the safety of the public and ordered her continued
    detention in the general forensic unit of the St. Josephs Healthcare Hamilton,
    with privileges that include indirectly supervised community living (the
    Disposition).

[2]

The appellant challenges the Disposition on the basis that the Board
    erred in its articulation and application of the significant risk test, and
    unreasonably continued her detention. She seeks an absolute discharge or,
    alternatively, a conditional discharge.

[3]

For the reasons that follow, the appeal is dismissed.

The Finding of Significant Risk to Public Safety

No error in the legal test used
    by the Board

[4]

The appellant points to the last two sentences in paragraph 46 of the
    Boards Reasons for Disposition (Reasons), to support her contention that the
    Board used the wrong test in finding that the appellant continues to pose a
    significant risk to public safety. The impugned sentences read as follows:

[46]  The Board accepts that without close supervision that
    Ms. Plytas would likely become noncompliant with prescribed medication and
    follow-up by the team as was the case in May, 2017. This could lead to a
    decompensation and re-emergence of behaviours similar to that of the index
    offence[s].

[5]

This court criticized similar language in
R. v. Sheikh
2019
    ONCA 692, at para. 38. At para. 10 of Sheikh, the court notes that the test is
    not whether the appellants behavior could lead to decompensation and therefore
    the risk of serious harm but whether there is evidence to support a positive
    finding that there is a significant threat to public safety.

[6]

While the Board uses the word could in the impugned sentences, on a
    full reading of the Reasons, it is clear that the Board applied the correct
    test in finding that the appellant continues to pose a significant risk to
    public safety. Its finding was not speculative. Rather, as the discussion below
    of the application of the test shows, its finding of significant risk to public
    safety is fully supported by the evidence.

No error in application of the
    test

[7]

In terms of the Boards application of the test, the appellant says it
    committed three errors.

[8]

First, the appellant says that non-compliance with medication is no
    longer an active risk factor for her and the Board erred in its use of her
    historical non-compliance when making its determination of significant risk.

[9]

We do not agree. The Board explicitly recognized that, at the time of
    the hearing, the appellant was generally compliant with her oral antipsychotic
    and mood stabilizing medications. However, it was entitled to consider her
    lengthy history of medication non-compliance when concluding that, without
    close supervision, the appellant was likely to become noncompliant. Dr. Naidoo,
    the appellants attending psychiatrist, testified that medication
    non-compliance is a core risk factor for future violence.

[10]

Second, the appellant contends that her continued cannabis use, despite
    knowing that the conditions of her Disposition prohibit it, is insufficient to
    establish significant risk. She says that the concern about a link between the
    type of psychosis from which she suffers and cannabis use is only theoretical.
    Thus, the Board erred in relying on her cannabis use in making its finding of
    significant risk.

[11]

The appellants continued cannabis use in breach of the conditions of
    her Disposition is but one of several active risk factors on which the Board
    relied. The Board viewed her continued cannabis use, along with the aggressive
    incidents involving co-patients (discussed below), as indicative of poor
    impulse control and judgment. It was entitled to accept Dr. Naidoos evidence
    that he anticipated that continued cannabis use would lead to destabilization,
    increased disinhibition, and an increase in aggressive behaviours.

[12]

Third, the appellant submits that her three altercations with
    co-patients over the past reporting year cannot reasonably be found to
    demonstrate that she poses a significant risk of harm in the community.

[13]

The appellant engaged in numerous behavioural incidents in the year
    leading up to this annual hearing, including the three incidents of aggression
    that the Board singled out in its Reasons. The Board did not ignore the
    possibility that the incidents were in response to actual or perceived
    inappropriate comments or behaviours: it specifically acknowledged that.
    Rather, it found the appellants choice to resort to violence when confronted
    with perceived or actual threats was relevant to her likelihood of reoffending,
    if released unconditionally, because they showed ongoing mood lability and
    impulsivity.

Reasonableness of the Continued Detention Order

[14]

The appellant makes a number of arguments in support of her claim that
    the Board failed to meaningfully consider conditional discharge when
    determining the least onerous least restrictive disposition necessary to
    address her risk to public safety. Consequently, she says, the Board
    unreasonably continued her detention.

[15]

In oral argument, the appellant contended that the Reasons show that the
    Board required that she have a substantial period of stability in the community
    as a prerequisite for a conditional discharge. She relies on paragraph 52 of
    the Reasons for this submission. Paragraph 52 reads as follows:

52. We note that [the appellant] has not yet progressed under
    her existing Detention Order to the point of exercising the full range of
    privileges offered thereunder. While all remain hopeful that [the appellant]
    will progress to community reintegration in the near future, this has not yet
    occurred. In this panels assessment, a period of community living would be
    warranted before cascading [the appellant] to a less restrictive Conditional
    Discharge.

[16]

We do not read the impugned passage as requiring a substantial period of
    stable community living as a prerequisite to the granting of a conditional
    discharge. Rather, it reflects the appellants unique circumstances, where
    instability is an active risk factor. Dr. Naidoos evidence was that the appellant
    was not ready to be released into the community because her risk to the public
    was not yet suitably managed through medication and her baseline symptoms were too
    severe for her to safely function in the community. The appellants last period
    of living in the community, pursuant to the then-operative Detention Order,
    ended with the hospital requiring the police to escort the appellant to
    hospital after she missed several scheduled appointments and avoided contact
    with the outpatient treatment team. The Disposition includes orders for
    community living privileges that give the hospital wide latitude to
    re-integrate the appellant into the community once it sees that, while
    adequately medicated and in the absence of destabilizing factors, the appellant
    can behave in a non-aggressive manner in response to perceived persecution.

[17]

The appellant also argued that the Board unreasonably required the
    hospital to have the power to rapidly readmit the appellant in the event of
    decompensation. On the record, given the fragile nature of her illness, this
    conclusion is amply supported.

[18]

In her factum, the appellant also complains that the Board failed to
    consider the appropriateness of a Community Treatment Order (CTO) to address
    medication compliance issues. However, the appellant did not request a CTO as
    an alternative to a Board disposition and led no evidence in support of it. In
    any event, medication non-compliance was only one of several active risk
    factors the Board relied on in concluding that the appellant met the
    significant risk test. Even if this issue could be adequately dealt with by a
    CTO, the other risk factors remain.

[19]

In her factum, the appellant also complains that the Board failed to
    inquire into the possibility of a Young clause. The fact that this matter was
    not raised before the Board is a full answer to this complaint.

Disposition

[20]

Accordingly, the appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Province Estate v. Province, 2019 ONCA 912

DATE: 20191120

DOCKET: C66955

Pepall, Tulloch and Benotto JJ.A.

BETWEEN

Margaret Teri-Lynn
    Widner as Representative
of the Estate of Joanne Underhill Province

Applicant (Respondent in Appeal)

and

Chantel Province

Co-Applicant (Respondent in Appeal)

and

Jason
    Province

Co-Applicant (Respondent in
    Appeal)

and

Jim
    Province

Respondent (Appellant)

Paul Ledroit
, for the appellant

Joel J.W.G. Szaefer
, for the
    respondent

Heard and released orally: November 15, 2019

On appeal from the
    order of Justice John A. Desotti, of the Superior Court of Justice, dated April
    23, 2019.

REASONS FOR DECISION

[1]

James (Jim) Province appeals the order of
    Desotti J. which finalized a long and horrible saga which began with a high
    conflict matrimonial proceeding and ended when he brutally murdered his wife in
    her home. Two of the three children were in the home at the time. The youngest
    was eight years old. The appellant was found guilty of first-degree murder on
    December 1, 2015 and sentenced to life imprisonment. This court unanimously
    dismissed his appeal and referred as follows to the family law litigation:

Rancour was its
    predominant characteristic. The appellant bristled at the amounts he was
    required to pay for spousal and child support. He warned the deceased that she
    was not going to get his money. (
R. v. Province
(2019) ONCA 638 at para 127.)

[2]

After the murder, the matrimonial litigation devolved
    to the Estate of the deceased, but it remained high conflict. Mr. Province
    failed to comply with a court order restricting him from depleting his
    property. He misrepresented his financial information. He dissipated other
    assets through his brother, Tom Province, in Florida. Of the approximately
    $260,000 in dissipated funds, about $180,000 went missing through his brothers
    actions. The Estate claimed against the brother as part of its efforts to
    determine the amount of money available for equalization payments. Despite
    receiving a judgment of over $125,000 against Tom Province, the Estate did not
    pursue the collection efforts due to the complexities of Florida law.

[3]

The Estate has only been able to periodically
    enforce Mr. Provinces child support obligations for the youngest child and it bears
    the cost of these court orders.

[4]

Finally, the Estate moved to finalize the
    equalization payment. After multiple adjournments, the motion judge granted the
    final order in April 2019. It was the same case-management judge who, seven
    years earlier had made several orders, including the non-dissipation order.

[5]

T
he motion judge ordered
    that Mr. Province pay the Estate an equalization payment of $410,000, plus
    interest at 4% per year, commencing from November 8, 2009; the payment be paid
    through a vesting order on the appellants property; the funds in the CIBC bank
    accounts be vested in the Estate on account of child support payable; and 50%
    of the appellants Dow Chemical pension be transferred to and vested in the
    Estate.

[6]

Mr. Province appeals on the basis of:

1.

a lack of procedural fairness;

2.

the trial judges reliance on a net family
    property statement that was prepared for a settlement conference, (we note that
    this issue raised in the factum was not pursued in oral submission);

3.

the granting of an unequal equalization payment;
    and

4.

a failure by the trial judge to adjust child support and unfreeze
    the respondents assets.

[7]

We accept none of these submissions.

[8]

There was no procedural unfairness. The appellant
    repeatedly disobeyed court orders for child support, non-dissipation and
    financial disclosure. The Estates motion for the equalization payment was originally
    returnable on May 20, 2018. The appellant asked for and received 10
    adjournments, some of which were marked peremptory to him. Although the appellant
    had legal counsel, he requested many of the adjournments on the basis that he
    needed to find legal counsel.

[9]

Although the case management judge gave no formal
    written reasons for his order, a review of the history of the case and the
    continuing record make his reasons clear.

[10]

The motion judge made no error in granting the
    equalization payment. He relied on a sworn Net Family Property statement (NFP) prepared
    by the appellant shortly before the murder. Under these unique circumstances,
    it was reasonable for the motion judge to exercise his discretion and rely on
    the Net Family Property Statement.

[11]

The decision to award an unequal division of net
    family property was entirely discretionary and justified here.

[12]

Finally, there was no basis to adjust child
    support.

[13]

In summary, the appellant has presented no
    reason to interfere with the discretion of the motion judge in bringing to a finality
    this long and sordid case.

[14]

The appeal is dismissed.

[15]

The appellant is to pay costs to the Estate
    fixed in the amount of $20,000 inclusive of disbursements and applicable taxes.

S.E.
    Pepall J.A.

M.
    Tulloch J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Aulenback, 2019 ONCA 881

DATE: 20191107

DOCKET: C64029

Watt, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Aulenback

Appellant

Mark Halfyard, for the appellant

Jennifer Conroy and Geoffrey Roy, for the respondent

Heard: November 4, 2019

On appeal from the conviction entered on June 29, 2017 by
    Justice Louise L. Gauthier of the Superior Court of Justice, with reasons reported
    at
2016 ONSC 6523
.

REASONS FOR DECISION

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking, contrary to s. 5(2) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. He was sentenced to imprisonment for one year. He appeals his
    conviction.

[2]

On November 5, 2013 the police conducted surveillance on the appellant.
    They followed him as he drove a car from Sudbury to Toronto. Shortly after the
    appellant entered an apartment building in Toronto, he left the building with a
    backpack and commenced his return trip. The police eventually pulled the
    vehicle over and discovered a large quantity of cocaine, a cutting agent, brass
    knuckles, an expandable baton, and $350 in Canadian currency.

[3]

Months earlier, on August 1, 2013, a police officer swore an information
    to obtain (ITO) seeking a production order under s. 487.012(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, as it read at the time, to obtain details
    relating to the appellants rental of two cars. On October 30, 2013 the same
    police officer swore a second ITO seeking further production orders, tracking
    warrants, and production of telephone records:
Criminal Code
, ss. 492.1
    and 492.2. In both ITOs, the affiant relied upon information provided by two
    confidential informants (CIs).

[4]

The appellant applied to quash both authorizations, arguing that the
    ITOs were deficient in the way they addressed the information provided by the
    CIs. In thorough reasons, the trial judge applied the well-known factors in
R.
    v. Debot
, [1989] 2 S.C.R. 1140 and concluded that there were reasonable
    grounds upon which the issuing judge could have granted the orders that were
    sought: see
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992.

[5]

The appellant submits that certain language in the trial judges reasons
    suggests that she misapprehended the test under s. 487.012(3) and applied a
    standard of reasonable suspicion, rather than reasonable grounds to believe.

[6]

We disagree. When read as a whole, it is clear from the trial
    judges reasons that she
applied the correct
    statutory test under s. 487.012(3): see
R. v. Nero
, 2016 ONCA 160,
334
    C.C.C. (3d) 148,
at paras. 61-62.

[7]

The appellant submits that the trial
    judge erred in her application of the
Debot

factors. At
trial, the appellant focused on the fact that the affiant asserted, without
    elaboration, that the information provided by the CIs was based on personal
    knowledge. The trial judge agreed with the appellant that personal knowledge
    does not equate with firsthand knowledge. However, the trial judge held that
    this did not render the assertion bald and conclusory. She found that there was
    texture and detail to the information provided by the CIs.

[8]

The trial judge recognized that, based on their past their track records,
    both CIs had proven themselves to be reliable. Further, the trial judge found
    that the lengthy investigation conducted by the police provided the type of
    corroboration required in the circumstances.

[9]

In conducting the balancing required under
Debot
,

the
    trial judge appreciated that she was tasked with considering the totality of
    circumstances and that weakness in one area may be compensated to some extent
    by strengths in the other two areas:
Debot
, at p. 1168.

[10]

We see no error in the trial judges findings, analysis, or her ultimate
    conclusion. We dismiss this ground of appeal.

[11]

After the trial judge dismissed this application, the appellant brought
    a further application seeking disclosure of the notes recorded by the handler
    of the two CIs. The appellant claimed that these handwritten notes were
    relevant to his constitutional challenge to the legality of his roadside
    detention and search. In separate reasons, the trial judge dismissed the
    application, finding that the notes could only be relevant to the personal
    knowledge issue, one that she had already decided: 2016 ONSC 6840.

[12]

We see no error in the trial judges ruling. First, we fail to see how
    the handlers notes were relevant to the lawfulness of the warrantless search
    of the appellants vehicle. Second, the trial judge had already resolved the
    personal knowledge issue, and in a manner favourable to the appellant. Re-litigating
    this issue would serve no purpose. We also note that, after this application
    was dismissed, the appellant abandoned his challenge to the legality of the
    vehicle search.

[13]

We would dismiss this ground of appeal.

[14]

The appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.