COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Da Silva, 2021 ONCA 693

DATE: 20211006

DOCKET: M52666

(C69670)

Miller
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Responding Party

and

Gabriel
    Da Silva

Applicant

Breana Vandebeek, for the applicant

Michelle Campbell, for the responding
    party

Heard: October 4, 2021 by video conference

ENDORSEMENT

[1]

The applicant was convicted of sexual assault
    and failing to comply with a court order. He has received a custodial sentence
    of three years.

[2]

The complainant was a 70-year-old personal
    support worker who had attended at the applicants home to assist the applicant
    with physiotherapy exercises and showering. The applicant had been injured in a
    workplace accident.

[3]

In order to succeed on an application for bail
    pending appeal, the applicant must establish, per s. 679(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, that: a) the appeal is not frivolous; b)
    the applicant will surrender himself into custody in accordance with the terms
    of the release order; and c) the applicants detention is not necessary in the
    public interest. The applicant has the burden of establishing that each
    criterion is satisfied on a balance of probabilities:
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19;
R. v. Ruthowsky
, 2018
    ONCA 552, at para. 3.

[4]

The Crown contests the application on the first
    and third grounds, arguing that the appeal is borderline frivolous, and that
    detention is necessary in the public interest.

[5]

For the reasons that follow, I dismiss the
    application on the basis that the applicant has not established that his
    detention is not necessary in the public interest.

Analysis

[6]

Establishing that detention is not necessary in
    the public interest turns on two considerations: public safety and public
    confidence in the administration of justice:
Oland
, at paras. 23, 26. Public
    safety and public confidence are not to be treated as separate silos:
Oland
,
    at para. 27. In this case, either public safety or public confidence
    considerations are sufficient to justify the applicants continued detention.

A.

Public Safety

[7]

Public safety justifies continued detention if
    the convicted individual is substantially likely to commit another offence or interfere
    with the administration of justice, and thereby endanger the safety of the
    public; and if detention is necessary for public safety:
R. v. Morales,
[1992] 3 S.C.R. 711, at p. 737;
R v. Stojanovski
, 2020 ONCA 285
    at para. 18;
R v. T.S.D.
, 2020 ONCA 733 at para. 47.

[8]

The applicant poses a sufficiently serious risk
    to public safety to justify his continued detention. He has a track record of
    failing to comply with court orders, notwithstanding that there were no
    incidents while he was on bail pending trial on these charges. The applicants
    charge for disobeying a court order arises out of a peace bond he entered for a
    previous sexual assault charge. There is a substantial likelihood that the
    applicant will commit another sexual crime or fail to abide by the terms of a
    release order, thereby endangering the safety of the public; continued detention
    is necessary in these circumstances.

B.

Public Confidence

[9]

Public confidence involves a balancing of the
    public interest in the reviewability of judgments against the public interest
    in enforcement. Factors to be considered are the strength of the grounds of
    appeal, the seriousness of the offences, the circumstances of their commission,
    and the sentence imposed:
Oland
, at paras. 24-25, 37-39.

[10]

The seriousness of the crime, particularly when
    the victim was vulnerable, plays an important role in assessing the strength of
    the enforceability interest:
T.S.D.
, at para. 52. The applicant has
    been convicted of a very serious offence: sexual assault of an elderly woman
    who was alone in his home in order to provide him personal care. It was a gross
    violation. It was not an aberration for the applicant, but the most violent and
    intrusive episode in a 30 year career of offending against the physical
    integrity of particularly vulnerable women.

[11]

These are factors weighing strongly in favour of
    immediate enforceability of the judgment.

[12]

With respect to the strength of the applicants
    appeal, the grounds of appeal  uneven scrutiny and misapprehension of evidence
     do not clearly surpass the not frivolous standard, and therefore do not weigh
    strongly in favour of the reviewability interest. The trial judge convicted the
    applicant on the basis of factual findings for which the trial judge gave
    detailed reasons. The applicant is, for the most part, challenging findings on
    which the trial judge will be given the highest deference on appeal:
R. v.
    C.L.,
2018 ONCA 470, at para. 24. The claimed misapprehensions of evidence
    largely relate to inconsistencies in the complainants evidence. The trial
    judge, however, was alive to these inconsistencies  which he characterized as minor
     and either reconciled them in his reasons or found them to be
    inconsequential. He found that the complainant was at times confused and her reliability,
    that is, her accuracy on some points, was suspect. Nevertheless, the trial
    judge found that her evidence on the core of the allegations  the sexual
    assault  was consistent and reliable and I accept her evidence.

[13]

The uneven scrutiny argument is, in general, a
    difficult ground on which to succeed:
R. v. Jones
, 2018 CarswellOnt
    11703, at para 8. The trial judge gave reasons for believing the complainants
    evidence. He also gave reasons for disbelieving the applicant, whom he
    characterized as a remarkably poor witness, particularly inconsistencies
    between the applicants police statement and his evidence at trial as to the
    nature and extent of his disability at the time of the incident. The trial
    judge found that at trial the applicant was overstating the degree of his
    disability and did not believe him. Neither was the trial judge persuaded by
    the applicants evidence that it was the complainant who was the aggressor, and
    initiated sex with him in the hope that the applicant would reward her with a
    generous tip. The trial judge gave the lengthy and careful reasons for
    believing or not believing the witnesses at this trial. Given the trial judges
    approach to the evidence and the deferential standard of review, this ground of
    appeal does not clearly surpass the not frivolous standard.

[14]

At the hearing of this application, counsel for
    the applicant suggested that an ineffective assistance of counsel argument
    might also be raised in the future. In support, she provided an email exchange
    said to have taken place between the applicant and his counsel during trial,
    relating to whether the applicant should lead evidence as to his physical
    disability.

[15]

Whether the applicant actually chooses to pursue
    this ground of appeal in the future, he has not yet done so. The proffered
    email is not in evidence on this motion, and I do not consider this potential
    ground of appeal in the analysis of the present motion.

[16]

The reviewability interest is related to the
    strength of the grounds of appeal. I have already indicated that I believe
    these grounds to be extremely weak. I conclude that the public interest in the
    immediate enforcement of the applicants sentence outweighs the interest in
    releasing him pending an appeal of his conviction on the grounds stated,
    notwithstanding the absence of a flight risk. It is unlikely that the applicant
    will have fully served his sentence before the appeal is heard. The applicant
    can seek to have the appeal heard on an expedited basis.

Conclusion

[17]

The application is dismissed.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Knight v. Knight-Kerr, 2021 ONCA
    686

DATE: 20211007

DOCKET: C69063

Feldman, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Randal Allan Knight

Applicant

(Appellant)

and

Mary Lynne Isobel Louise Knight-Kerr

Respondent

(Respondent)

Lorrie Stojni-Kassik and Emily F.
    Metcalfe, for the appellant

Mary Lynne Isobel Louise Knight-Kerr, acting
    in person

Heard: September 2, 2021 by video conference

On appeal from the order of Justice
    Russell M. Raikes of the Superior Court of Justice, dated January 4, 2021, with
    reasons reported at 2021 ONSC 55.

Feldman J.A.:

A.

Background

[1]

The parties married on March 14, 2009, after
    signing a domestic contract, the Family Agreement, that the wife prepared.
    Neither party had the assistance of a lawyer. They separated in July 2017.

[2]

The wife brought the original matrimonial home
    into the marriage. The parties lived in that home for a few years, then sold it
    and purchased a second home, where they lived at the date of separation. The Family
    Agreement contains the following provision regarding the treatment of the
    matrimonial home on marriage break-up:

Louise will receive the first $45,000
    (repayment of the original house deposit). This continues forward should they
    move to another location. Randy and Louise shall benefit equally from the
    remainder of house profits.

[3]

In this action to determine equalization of net
    family property (NFP), the husband denied that he had signed the Family
    Agreement and claimed that the wife forged his signature. That claim was
    rejected by the trial judge. The other issue that took significant time at
    trial was custody of the family dog, which was awarded to the husband. Neither
    of those findings is challenged on the appeal.

[4]

The sole issue raised by the husband on the
    appeal is the calculation of the NFP in respect of the treatment of the two
    homes, and the interpretation and application of the Family Agreement provision
    regarding the $45,000.

B.

The Trial Judges Decision

[5]

The trial judge found that the husband did sign
    the Family Agreement, and that it was a valid and binding domestic contract.
    The trial judge then dealt with equalization, including the wifes entitlement
    to the $45,000 pursuant to the Family Agreement. He did so by reference to the
    form of the NFP statement and what should be included in each Part of the form.

[6]

With respect to the value of assets owned on the
    valuation date, under Part 4(a): Land, the trial judge found that the second
    home, known as the Jackson property, was purchased in 2012 for $250,000 and
    sold in 2018 for $572,000. At paras. 87-88, he stated:

[87]    The first $45,000 should be deducted
    pursuant to the terms of the Family Agreement. Those funds belong to the
    Respondent [wife] and come off the top of the sale proceeds. The net amount is
    $527,000. That amount is divided equally: $263,500 each.

[88]    For equalization purposes, Part 4(a)
    should show the following: Applicant [husband] $263,500, Respondent [wife]
    $308,500. In order to ensure that the $45,000 is neutral and not counted in her
    net family property, a corresponding exclusion is necessary in Part 7 (see
    below) pursuant to s. 4(2) item 6 of the
Family Law Act
.

[7]

In other words, because the parties agreed that
    the wife was entitled to $45,000 more than the husband out of the valuation-date
    value of the matrimonial home, his share of the value of the Jackson property
    is $263,500, while hers is $308,500. At the same time, the $45,000 is shown as
    an exclusion from the wifes NFP because, pursuant to the Family Agreement, the
    $45,000 deposit belongs exclusively to her and is not shared with the husband.
    The wife receives that amount over and above any equalization payment. That is
    the correct way to account for an exclusion on an NFP statement.

[8]

The next relevant section of the NFP form is Part
    6: Property, Debts, and Other Liabilities on Date of Marriage. On the wifes
    side of the ledger, the trial judge included the value of the first home, known
    as the Kroeger property, of $250,000, and deducted the mortgage of $157,715,
    noting there was no dispute regarding these figures. He thereby included the
    full amount of the equity in the Kroeger property at the date of marriage,
    namely $92,285, as a deduction on the wifes side of the ledger.

[9]

The last part of the NFP form is Part 7: Value
    of Property Excluded under Subs. 4(2) of Family Law Act. With respect to
    exclusions, the trial judge stated:

The Family Agreement applies at this stage.
    First, the Respondent [wife] is entitled to exclude $45,000 representing her
    deposit from the Kroeger Crescent home.

[10]

By applying the inclusions, deductions, and the
    exclusion as part of the overall calculation, the trial judge found that the
    husband owed the wife an equalization payment of $43,547. He concluded, at
    para. 149, that from the sale proceeds of the Jackson property that were (and
    still are) being held in trust:

Based on my findings above, the Respondent
    [wife] is entitled to $45,000 from the sale of the home per the Family
    Agreement less $19,000 already received ($26,000), $43,547 for equalization,
    and prejudgment interest on both amounts. Those amounts should be paid to her
    from funds held in trust. The balance of any monies held in trust, regardless
    where and by whom held, should be divided equally between the parties.

[11]

The trial judge added at the conclusion of his
    reasons that, if there was an arithmetic error, the parties should notify the
    trial coordinator to schedule a remote hearing with the trial judge to deal
    with it.

C.

Issue

[12]

The appellants position on this appeal is that
    the trial judge erred in his approach to the equalization payment by double
    counting the respondent wifes $45,000 deposit in the Kroeger property.
    Specifically, he argues that the trial judge gave the wife the benefit of the
    $45,000 both as part of the equity she brought into the marriage that entitled
    her to a marriage-date deduction, and then again in satisfaction of the Family
    Agreement, and possibly yet again in the overall effect of the final order. He
    submits this constituted an error by the trial judge in interpreting the Family
    Agreement and/or in applying it to the equalization of net family properties under
    the
Family Law Act
, R.S.O. 1990, c. F.3 (the
FLA
).

D.

Analysis

[13]

The Family Agreement must be interpreted in the
    legislative context of Part I of the
FLA
, which deals with family
    property on marriage breakdown.

(1)

Division of Family Property under the
FLA

[14]

Under s. 4(1) of the

FLA
, net
    family property is defined as:

the value of all the property,
    except property described in subsection (2), that a spouse owns on the
    valuation date, after deducting,

(a)     the spouses debts and
    other liabilities, and

(b)     the value of property,
    other than a matrimonial home, that the spouse owned on the date of the
    marriage, after deducting the spouses debts and other liabilities, other than
    debts or liabilities related directly to the acquisition or significant
    improvement of a matrimonial home, calculated as of the date of marriage.

[15]

Section 5(1) then provides that on marriage
    breakdown, the spouse whose net family property is the lesser of the two net
    family properties is entitled to one-half the difference between them. This is
    also referred to as the equalization of net family properties.

[16]

The matrimonial home is given special treatment
    under the
FLA
in the calculation of net family property. In accordance
    with the definition of net family property in s. 4(1)(b), while a spouse can
    ordinarily deduct the value of property that they brought into the marriage in
    calculating the NFP, deductions connected to the matrimonial home are not
    allowed.

[17]

Section 18 defines the matrimonial home as:

18(1)  Every property in which a
    person has an interest and that is or, if the spouses have separated, was at
    the time of separation ordinarily occupied by the person and his or her spouse
    as their family residence is their matrimonial home.

[18]

The effect of these sections, read together, is
    that where a person brings a property into the marriage that becomes and remains
    the couples matrimonial home on the date of separation, the spouse who brought
    the property into the marriage may not deduct the marriage-date value of that
    property from their net family property to be equalized. But if the original
    property is no longer a matrimonial home within the definition in s. 18 at the
    date of separation  for example, if it was sold during the marriage  then the
    value of the original property on the date of marriage is a deduction for the spouse
    who brought it into the marriage.

[19]

However, s. 2(10) of the
FLA
allows the
    parties to agree to different arrangements, subject to ss. 52(1) and (2), by
    entering into a marriage contract.

[20]

In this case, by their Family Agreement, the
    parties agreed to specific treatment of $45,000 representing the deposit that
    the wife paid to purchase the Kroeger property, which became the parties
    matrimonial home. The Family Agreement specified that the wife would preserve
    her entitlement to this $45,000 from the sale proceeds of whatever home they
    were living in in the event of marriage breakdown, whether the parties still
    lived in the Kroeger property or had moved to another home.

(2)

Application to this Case

[21]

The issue raised by the appellant husband is
    whether the trial judge erred in his interpretation of the Family Agreement
    and/or in applying it to the equalization of net family properties under the
FLA
.

[22]

The trial judge did not discuss the possible
    interpretations of the $45,000 provision of the Family Agreement in his
    reasons. The wife was unrepresented at trial. The NFP statement filed by the
    husband was based on his main position that he had not signed the Family
    Agreement, and therefore he did not include any treatment of the $45,000 in his
    NFP. During closing submissions, counsel for the husband (not appeal counsel) and
    the trial judge had a brief colloquy regarding the treatment of the $45,000 in
    the event he found that the husband had in fact signed the Family Agreement,
    but there was no detailed discussion of alternative treatments to take into
    account the combined effect of the Family Agreement and the
FLA
.

[23]

In order to give effect to the Family Agreement,
    the trial judge treated the first $45,000 of the proceeds of sale of the
    Jackson property as an exclusion from the wifes net family property under s.
    4(2), and ordered that $45,000 be paid to the wife out of those proceeds. Item
    6 of s. 4(2) provides:

4(2)    The value of the following
    property that a spouse owns on the valuation date does not form part of the
    spouses net family property:

6.       Property that the
    spouses have agreed by a domestic contract is not to be included in the
    spouses net family property.

[24]

I see no error in the trial judges approach to
    the treatment of the $45,000 as agreed by the parties. The proceeds of the
    Jackson property were jointly owned on the valuation date and the Family
    Agreement provides that $45,000 of the proceeds of the sale are to be treated
    as belonging to the wife. The
FLA

provides that that amount is
    an exclusion from her net family property.

[25]

Because the parties had sold the Kroeger
    property, it was no longer their matrimonial home at the date of separation,
    and therefore its marriage date value was deductible by the wife. However, the trial
    judge allowed the wife to deduct the full marriage-date value of the Kroeger
    property in the amount of $92,285, which included the value of the $45,000
    deposit. In other words, he allowed an excluded property (the $45,000 deposit)
    to also be deducted. This was an error because the same property cannot be both
    an exclusion and a marriage-date deduction. The effect of this error was to
    double count the $45,000 in the wifes favour.

[26]

The appellant has argued, in the alternative,
    that the trial judges error was allowing the wife any deduction for her equity
    in the Kroeger property. He says the Family Agreement should be interpreted to
    mean that, while under the
FLA
the wife would have been entitled to
    deduct her entire date of marriage equity in the first home as it was no longer
    the matrimonial home at the valuation date, the effect of the Family Agreement
    was that she gave up that benefit.

[27]

I would not give effect to this argument. While
    it represents one possible interpretation of the agreement, other reasonable
    interpretations are that the word profits in the clause benefit equally from
    the remainder of the house profits refers to proceeds of the sale of the house
    over and above the existing equity, or it could be referring only to profits in
    a subsequent house if they bought one. In addition, there is no language in the
    Family Agreement that suggests that the parties intended to contract out of the
FLA
other than preserving for the wife her original deposit of $45,000
    on the Kroeger property.

[28]

In my view, the only error made by the trial
    judge occurred at the intersection of the effect of the contract and the operation
    of the net family property provisions of the
FLA
. That is, having
    correctly characterized the agreement between the parties as an agreement to
    exclude the wifes $45,000, when considering the appropriate amount to include as
    the wifes marriage-date deduction, it was necessary not to again count the
    same $45,000 deposit that was part of the value of the Kroeger property.

[29]

I would allow the appeal to the extent that I
    would subtract $45,000 from the wifes date of marriage deduction of $92,285, representing
    her equity in the Kroeger property, and then recalculate the equalization
    payment owed by the husband to the wife.

[30]

The result is that instead of owing the wife an
    equalization payment of $43,547, the husband owes the wife an equalization
    payment of $38,924.

E.

Conclusion

[31]

I would change para. 4 of the order dated
    January 4, 2021, to read as follows:

4.       The Applicant, Randal Allan Knight,
    shall pay to the Respondent $38,924 for equalization.

[32]

I would dismiss the rest of the appeal, leaving
    the remainder of the order in full force and effect.

[33]

The husbands success on the appeal has been
    extremely limited: he has succeeded in reducing his payment to the respondent
    by $4,623 in total. In addition, the husband could have avoided the appeal
    process by accepting the invitation of the trial judge to bring any arithmetic
    errors to his attention for correction. I would therefore not make any order
    for the costs of the appeal.

Released: October 7, 2021 K.F.

K. Feldman J.A.

I agree. David M. Paciocco J.A.

I agree. I.V.B. N
ordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davies, 2021 ONCA 695

DATE: 20211007

DOCKET: C69192

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Colton Davies

Appellant

Jessica Zita, for the appellant

Kristen Pollock, for the respondent

Heard and released orally:
    October 5, 2021 by video conference

On appeal from the sentence imposed by
    Justice Amanda J. Camara of the Ontario Court of Justice on December 4, 2020.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to 14 offences
    committed over a 9-month period, ranging from possession of property over
    $5,000 (namely stolen motor vehicles), to operating those vehicles while
    prohibited, to failing to stop for the police, to drug trafficking and firearm
    offences.

[2]

He entered guilty pleas knowing that, together,
    the provincial and federal Crowns would request a total sentence of 46 months
    less time served. On his behalf, duty counsel requested a sentence of 30
    months.

[3]

The appellant was sentenced immediately
    following the conclusion of submissions. He received a global sentence of 46
    months less 672 days of presentence custody, leaving a remainder of 708 days to
    serve.

[4]

The appellant argues that the sentencing judge
    erred in arriving upon this sentence.

[5]

First, he argues that the sentencing judge
    failed to take into account certain mitigating factors. In oral submissions,
    the appellant has focused upon what is described as a failure to provide
    sufficient mitigation arising from the appellants guilty pleas. We do not
    agree. The sentencing judge specifically acknowledged the guilty pleas as a
    factor in mitigation. There is no specific mathematical formula that applies to
    mitigation arising from a guilty plea and there is nothing to suggest that the
    guilty pleas were not taken into account when arriving upon the ultimate sentence.
    Further, in light of the seriousness of the offences and the appellants lengthy
    criminal record, the Crown position on sentence clearly took the guilty pleas
    into account.

[6]

Although not advanced in oral submissions, the
    appellant also contends that the sentence was not properly individualized. This
    submission seems to be related to what is said to be a decision by the trial
    judge not to make an order for counselling. As no submissions were made or
    evidence led as to what counselling would have been appropriate, this ground of
    appeal is without support.

[7]

Third, the appellant argues that the reasons for
    sentence are insufficient. We do not agree. The reasons, which were delivered
    in the immediate wake of submissions, must be read within that wider context.
    They adequately explain the decision arrived upon and are amenable to review.

[8]

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

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless
    an order is made under section 486.4, on application of the prosecutor in
    respect of a victim or a witness, or on application of a victim or a witness, a
    judge or justice may make an order directing that any information that could
    identify the victim or witness shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is of the opinion that
    the order is in the interest of the proper administration of justice.

(2)     On
    application of the prosecutor in respect of a justice system participant who is
    involved in proceedings in respect of an offence referred to in subsection (2.1),
    or on application of such a justice system participant, a judge or justice may
    make an order directing that any information that could identify the justice
    system participant shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is in
    the interest of the proper administration of justice.

(2.1)
    The offences for the purposes of subsection (2) are

(a)
    an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a
    serious offence committed for the benefit of, at the direction of, or in
    association with, a criminal organization;

(b) a
    terrorism offence;

(c)
    an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security
    of Information Act
; or

(d)
    an offence under subsection 21(1) or section 23 of the
Security of
    Information Act
that is committed in relation to an offence referred to in
    paragraph (c).

(3)     An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice if it is not the
    purpose of the disclosure to make the information known in the community.

(4)     An applicant for an order
    shall

(a)
    apply in writing to the presiding judge or justice or, if the judge or justice
    has not been determined, to a judge of a superior court of criminal
    jurisdiction in the judicial district where the proceedings will take place;
    and

(b)
    provide notice of the application to the prosecutor, the accused and any other
    person affected by the order that the judge or justice specifies.

(5)     An
    applicant for an order shall set out the grounds on which the applicant relies
    to establish that the order is necessary for the proper administration of
    justice.

(6)     The
    judge or justice may hold a hearing to determine whether an order should be
    made, and the hearing may be in private.

(7)     In
    determining whether to make an order, the judge or justice shall consider

(a)
    the right to a fair and public hearing;

(b)
    whether there is a real and substantial risk that the victim, witness or
    justice system participant would suffer harm if their identity were disclosed;

(c)
    whether the victim, witness or justice system participant needs the order for
    their security or to protect them from intimidation or retaliation;

(d)
    societys interest in encouraging the reporting of offences and the
    participation of victims, witnesses and justice system participants in the
    criminal justice process;

(e)
    whether effective alternatives are available to protect the identity of the
    victim, witness or justice system participant;

(f)
    the salutary and deleterious effects of the proposed order;

(g)
    the impact of the proposed order on the freedom of
expression
of those affected by it; and

(h)
    any other factor that the judge or justice considers relevant.

(8)     An
    order may be subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a)
    the contents of an application;

(b)
    any evidence taken, information given or submissions made at a hearing under
    subsection (6); or

(c)
    any other information that could identify the person to whom the application
    relates as a victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c.
    13, s. 19

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gregson, 2021 ONCA 685

DATE: 20211007

DOCKET: C55241 & C62290

Watt, Benotto and Harvison Young
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Gregson

Appellant

Michael Lacy and Bryan Badali, for the
    appellant

Alexander Alvaro, for the respondent

Heard: May 18, 2021 by video conference

On appeal
    from the conviction entered and the sentence imposed on March 13, 2012 by
    Justice Douglas J.A. Rutherford of the Superior Court of Justice.

Harvison Young J.A.
:

[1]

The appellant Kevin Gregson was convicted of the first degree murder of
    a police officer and robbery. The sole issue on appeal is whether this court
    should quash the convictions and order a new trial on the basis that his
    counsel at trial, Craig Fleming, breached the duty of loyalty owed to his
    client. In essence, the appellant argues that Mr. Fleming was acting as
amicus curiae
rather than as defence counsel acting in
    the interests of the appellant, that he undermined the appellants defence, and
    that his conduct effectively deprived the appellant of counsel at trial. The
    appellant points to a number of instances that illustrate this. The appellant
    argues that Mr. Flemings conduct prior to the trial went beyond mere
    ineffective assistance of counsel and, for that reason, the appellant does not
    have to show that Mr. Flemings conduct could have affected the verdict in the
    case.

[2]

For the following reasons, I would dismiss the appeal. While a number of
    Mr. Flemings actions were misguided and inadvisable, Mr. Fleming cannot be
    said to have breached his duty of loyalty to his client according to the
    applicable law. At its highest, this may have been a case of ineffective
    assistance of counsel. However, an appeal based on ineffective assistance could
    not have succeeded because Mr. Flemings actions cannot be said to have had any
    effect on the verdict.

A.

Background facts

(1)

The Offence

[3]

It is common ground that the appellant is guilty of at least
    manslaughter. It is also common ground that he was a difficult client. As will
    be discussed below, Mr. Fleming agreed to take on the case after the trial
    judge acceded to the appellants former lawyers request to be removed from the
    record a few weeks before the start of the trial.

[4]

There is no doubt about what happened on the night of December 28, 2009
    and the early morning hours of December 29, 2009. Mr. Gregsons life had been
    coming apart. A few years earlier, he had been suspended with pay from his job
    as an RCMP officer as a result of a number of incidents. In November 2009, the
    final decision was that the appellant either resign or be discharged, and the
    appellant learned that his pay had stopped and that he had been overpaid for a
    few months and owed money to the RCMP, so financial concerns were added to his
    stressors. In early December, the discharge order came into effect. He had been
    preoccupied, even obsessed, with getting his job back. He had also been accused
    of sexual assault on December 28. This distressed him even more as he believed
    that this accusation would ruin his reputation and any chance he had of
    clearing himself with the RCMP.

[5]

According to the appellant, in the evening of December 28, he decided to
    kill himself, so he cut his own throat, passed out, and then woke up. After
    that, he decided to steal a car, find a police officer, take their gun, and go
    home and shoot himself. He obtained a car by threatening a young couple with what
    appeared to be a gun. After driving around and not finding a police officer, he
    went home, had a snack, washed his clothes, and then decided to go to the
    Ottawa Civic Hospital where he knew there were often police cars and officers.
    He was wearing two bulletproof vests and carried handcuffs, a BB gun, and two
    knives. His evidence at trial was that he did not want to die when he
    confronted a police officer as he wanted to be able to die in his sweet spot
    on his couch at home.

[6]

Constable Czapnik was in his squad car doing paperwork outside the
    Ottawa Civic Hospital at around 4:30 a.m. on December 29. Four paramedics saw a
    vehicle pull up and Mr. Gregson get out of the car and approach the police car
    with something in his hand. Constable Czapnik exited his vehicle and an
    altercation ensued. The paramedics rushed to help and saw the appellant
    straddling the officer with his right hand going up and down, making short,
    little punches. One of the paramedics pulled the appellant off the officer and
    the appellants arm came up holding a knife. Another paramedic managed to stomp
    or kick the knife out of Mr. Gregsons hand. Despite immediate medical
    assistance, the officer succumbed to his injuries a short time later. He had
    suffered a number of wounds, including lacerations that cut his left-side
    jugular vein, vagus nerve, and carotid artery.

[7]

According to the appellants evidence at trial, when he got to the
    hospital and saw a police car, he approached, pointed his BB gun, opened his door,
    and told Constable Czapnik to get out. The appellant then ordered him to get
    on his knees and to put his hands up. Constable Czapnik complied initially but
    then attempted to pull his gun from his holster, at which point the appellant
    threw down his gun, jumped on him, and tried to get his gun. The officer
    punched the appellant in the head, and the appellant just reacted and stated
    that I stabbed him because he hit me in the head and I reacted. The appellant
    said he remembered stabbing the officer only twice, although the officer
    received more than two stab injuries. He attributed his reaction to training
    and instinct, stating that he did not intend to kill the officer.

[8]

The appellant was arrested at the scene. He was eager to talk and made
    several spontaneous statements, including Im the one who car jacked two
    people earlier today, and I came here looking for a fight. You city cops are
    tough. He told one paramedic that he had tried to cut his own jugular veins earlier
    that day but they had clotted too quickly, and stated to another that [i]t
    didnt have to end this way, all he had to do was give me his gun. When a
    nurse at the hospital asked if he knew why he was there, he said [b]ecause I
    killed a cop.

[9]

The appellant spoke to counsel while at the hospital and again at the
    police station. While he was in the cells at the police station, he asked
    whether the incident had been in the news and what the maximum penalty was for
    manslaughter. In a videotaped police interview on December 29, 2009, he told
    officers that he had hydrocephalus and colloid cysts which made him more
    aggressive. While he admitted to killing the officer, he was not prepared to
    call it murder. In short, the only issue for trial was
mens
    rea
and whether there was any basis for an argument of diminished
    capacity.

[10]

Three forensic psychiatric assessments were completed for the
    appellant in 2010-2011 after the incident. None found a basis for a defence of
    not criminally responsible due to mental disorder. The appellants defence
    counsel obtained one of these assessments from Dr. Bradford, dated September
    10, 2011. Dr. Bradford concluded that the appellant was not psychotic prior to,
    during, or subsequent to the incident, and the conditions he suffered from
    would not affect his ability to appreciate the nature and quality of his
    actions or that they were wrong. Dr. Bradford did however also conclude that
    the appellant suffered from colloid cysts and that they caused persistent
    personality disturbance and could have had other psychiatric manifestations.
    After reviewing Dr. Bradfords 2011 report, Dr. Sinclair, the appellants
    treating neurosurgeon, rejected Dr. Bradfords diagnosis of colloid cysts based
    on the appellants brain imaging studies and stated that Dr. Bradfords
    contention that the appellants personality abnormalities were related to
    colloid cysts was not plausible. An expert in diagnostic neuroradiology called
    by the Crown, Dr. Kingstone, also testified at trial that the appellant did not
    have colloid cysts.

[11]

The appellant did have an episode of hydrocephalus in 2006, as a
    result of which a shunt was surgically inserted to drain the fluid from his
    brain. Dr. Sinclair testified at the trial, opining that the appellant had
    atypical type 3 perivascular spaces in his brain, also called Virchow-Robin
    spaces, but that the appellants medical condition would not have impaired his
    ability to think clearly or make decisions on December 29, 2009.

[12]

The
    defence did not call Dr. Bradford at trial, having concluded that his opinions
    were not favourable to the appellant. It is clear that there was no expert
    evidence that could have supported an NCR defence, and that no diminished
    capacity defence could have succeeded. The reports also diagnosed narcissistic personality
    disorder with antisocial features. While this would not have supported a
    diminished capacity defence, it does tend to confirm what was already clear
    from the record: the appellant was a difficult person and client, and thought
    he knew best.

(2)

Mr. Flemings conduct

[13]

The appellant introduces fresh evidence on
    appeal with the consent of the respondent. This fresh evidence outlines the
    allegedly objectionable aspects of Mr. Flemings conduct, prior to the trial
    proper, that the appellant relies on to demonstrate a breach of the duty of
    loyalty. At the time that Mr. Fleming was retained by the appellant, he was a
    staff lawyer working for Legal Aid Ontario (LAO). After the appellants
    former lawyer had been removed from the record, it was difficult to find a
    lawyer willing to take the case at such short notice, and LAO proposed that one
    of their staff, Mr. Fleming, could represent the appellant and take the trial
    without much delay.

[14]

Mr. Flemings unusual conduct in the course of this case forms the
    basis for the appellants breach of loyalty claim, and four particular
    instances will be discussed further below. Some points on the chronology of
    events leading up to the trial will place Mr. Flemings conduct in context and highlight
    the particular conduct that the appellant points to:

·

October 17, 2011: The appellants former counsel sought to be
    removed and was removed from the record due to a violent outburst from the
    appellant. Prior to this, the appellants counsel and Crown had reached a
    substantial level of agreement on possible evidentiary issues to be addressed
    in the course of pre-trial motions.

·

October 26, 2011: Before the court, the Crown brought up the
    status of agreements regarding the resolution of pre-trial motions. Mr. Gregson
    said no agreements were reached on pre-trial motions. Mr. Gregson also said he
    was willing to have an LAO practitioner assigned, saying [l]ets just have Mr.
    Fleming.

·

October 29, 2011: Mr. Fleming met with Mr. Gregson for the first
    time.

·

November 1, 2011: Mr. Fleming was formally placed on the record
    as counsel for the appellant. The appellant now apparently consented to the
    admissibility of almost all controversial evidence. In the following weeks, Mr.
    Fleming drafted written instructions for Mr. Gregson to sign.

·

December 16, 2011: Mr. Fleming sent the appellants draft
    instructions to the Crown for review.

·

January 18, 2012: The appellant suddenly reversed his
    instructions and wanted to contest everything he previously consented to. He wanted
    to wage war with the Crown. Mr. Fleming wrote to the Crown about Mr.
    Gregsons significant volte-face the next day, saying I cannot allow any
    failure to respect his instructions to open an appeal door.

·

January 20, 2012: Mr. Fleming wrote to Dr. Bradford seeking an
    additional opinion on diminished capacity and non-insane automatism as a result
    of the appellants change in instructions.

·

January 26, 2012: During an appearance at court, it was revealed
    that the appellant reversed his instructions again, now conceding everything
    except the voluntariness and admissibility of his videotaped confession. Mr.
    Fleming and Crown counsel went through the proposed agreements and admissions.
    Mr. Fleming then consulted Mr. Gregson, and the appellant did not object to the
    positions discussed by counsel.

·

January 27, 2012: Mr. Fleming wrote to Dr. Bradford seeking an
    additional opinion on operating mind. In his letter, Mr. Fleming stated that
    [i]t would be of great assistance to be able to provide Mr. Gregson with your
    conclusive explanation that he had an operating mind.

·

February 7, 2012: Mr. Fleming wrote an email to the Crown
    regarding operating mind and voluntariness, stating that he was quite openly
    passing the buck to Mr. Justice Rutherford to provide a decision, so that the
    Court of Appeal cannot criticize my failure to do so, by awarding Gregson a new
    kick based on my alleged incompetence, or his obstinacy.

·

February 8-9, 2012: The evidence for the
voir
    dire
on the voluntariness of the videotaped confession was heard.

·

February 13, 2012: Mr. Fleming wrote to the Crown asking to speak
    with Dr. Sinclair in the presence of Crown counsel. Mr. Fleming mentioned
    consulting with a neurologist who suggested that atypical type 3 Virchow-Robin
    spaces could result in symptomatic problems of a psychological order. Mr.
    Fleming needed that comfort of Dr. Sinclair being able to say clearly that he
    did not observe any such psychological deficits in Mr. Gregson and the
    comfort  that Dr. Sinclair had in fact turned his mind to the rare diagnostic
    possibility of psychological trauma, and had specifically discounted this. Mr.
    Fleming expressed his belief that Dr. Sinclair is best-positioned and
    well-qualified to close this particular door. Mr. Fleming also said [f]inally,
    my aim is to make sure this trial does not take any longer than necessary. Mr.
    Fleming noted that he did not anticipate that he would receive any supporting
    expert opinions for diminished capacity or automatism and that he would likely
    be unable to make these arguments.

·

February 15, 2012: Mr. Fleming sent a draft factum on
    voluntariness to the Crown and suggested that he go first and concede
    admissibility of all, to avert possible problems with Mr. Gregson.

·

February 21, 2012: Counsel provided submissions on voluntariness,
    and the confession was declared to be admissible.

·

February 27, 2012: The trial proper began with jury selection.

·

March 13, 2012: The jury returned guilty verdicts for first
    degree murder and robbery.

(3)

Investigation after trial

[15]

A
    limited s. 684 appointment under the
Criminal Code
,
    R.S.C. 1985, c. C-46, was made to determine whether there was merit to an
    appeal of the murder conviction and whether an application should be made for a
    full s. 684 appointment. Ms. Apple Newton-Smith, then Mr. Gregsons appellate
    counsel, reviewed the trial record and, in March 2015, communicated to Mr.
    Fleming that there were concerns with respect to his representation of the
    appellant and the appearance that he was not advocating for the appellants
    interests. She referred to some of the appellants correspondence with the
    Crown and Dr. Bradford and Mr. Flemings factum on voluntariness.
In the fresh evidence before this court, there is a summary of Mr.
    Flemings responses explaining his conduct and his work on the case.

[16]

LAO
    engaged Mr. Philip Campbell to advise on whether effective and ethical legal
    services were provided to the appellant by Mr. Fleming. In a report dated
    October 28, 2015, Mr. Campbell provided a thorough review of the circumstances
    of the case, the impugned conduct and correspondence, and Mr. Flemings
    explanations. Mr. Campbell believed that there is no reasonable possibility
    that an allegation of [ineffective assistance of counsel], in its usual form,
    could succeed on an appeal by Mr. Gregson
. However, Mr.
    Campbell also observed that an accused is entitled to a lawyer who is loyal to
    the interests of the accused and if the appellant could establish that Mr.
    Fleming was indifferent to or actively advocating against his interests, there
    would be a miscarriage of justice, even if it could not be established that a
    lawyer vigorously defending his interests could have achieved a different
    result.

[17]

After
    Mr. Campbells report, it came to light that Mr. Fleming had lied about being
    an RCMP officer when he first met the appellant. He had also lied when he
    explained his February 13, 2012 letter to the Crown in response to Ms.
    Newton-Smiths concerns. He had said that he had consulted his daughter, who
    was a neurosurgeon. It turned out that Mr. Fleming does not have a daughter.
Mr. Fleming was cross-examined by appellate counsel in 2019 on his
    conduct of the trial. He has retired since the trial. He now suffers from
    cognitive deficits, as a result of which his memory of the events is extremely
    limited.

B.

Issues on appeal

[18]

The appellant claims that Mr. Fleming did not
    act with undivided loyalty such that the appellant did not have a lawyer
    looking after his interests. He insists that this is not a claim of ineffective
    assistance of counsel in the ordinary sense, but a claim of denial of counsel
    altogether. He compares this case to
R. v. Al-Enzi
, 2014 ONCA 569, 121
    O.R. (3d) 583, where this court held that a trial judges denial of a severance
    or mistrial produced a miscarriage of justice for Mr. Al-Enzi, whose counsel
    withdrew in the middle of trial, because while an
amicus
was appointed
    an
amicus
was not an adequate substitute for defence counsel. The
    appellant asserts that Mr. Fleming viewed himself as
amicus
and Mr.
    Flemings conduct similarly deprived him of counsel, implicated the integrity
    of the administration of justice, compromised the appearance of fairness, and
    resulted in a miscarriage of justice. He argues that the verdict cannot be
    allowed to stand regardless of the strength of the Crowns case, the absence of
    prejudice, or the inevitability of the verdict.

[19]

The appellant points to four particular
    instances which he says illustrate a breach of Mr. Flemings duty to his client:

1.

Mr. Fleming lied to gain the appellants trust
    so that the appellant would retain him;

2.

Mr. Fleming represented to the appellant that he
    would contest the voluntariness of certain admissions and statements, but he
    knew and communicated to Crown counsel that this argument would not succeed
    without advising the appellant about the legal merits;

3.

Mr. Fleming misunderstood his role and
    improperly shared defence trial strategy and the weaknesses of defence
    arguments with Crown counsel; and

4.

Mr. Fleming lied about having consulted with his
    own expert with respect to diminished capacity, which was the one possible
    defence the appellant might have had at trial.

[20]

The respondent takes the position that, whatever
    Mr. Flemings failings as counsel, he was not motivated by a desire to sell
    out his client and acted at all times with his best interests in mind, even if
    some of his actions were inadvisable or misguided. The record, including the
    fresh evidence filed on this appeal, indicates that Mr. Fleming was doing his
    best for Mr. Gregson in very difficult circumstances.

C.

Discussion

(1)

The duty
    of loyalty

[21]

Despite the appellants broad framing of the
    appeal as a general miscarriage of justice issue, properly understood, the
    appellants argument is that Mr. Fleming breached his duty of loyalty to the
    appellant.

[22]

The duty of loyalty owed by a lawyer to their
    client is undoubtedly a foundational principle in the adversarial system. As
    explained in
R. v. Neil
, 2002 SCC 70, [2002] 3 S.C.R. 631, at para.
    12, [u]nless a litigant is assured of the undivided loyalty of the lawyer,
    neither the public nor the litigant will have confidence that the legal system,
    which may appear to them to be a hostile and hideously complicated environment,
    is a reliable and trustworthy means of resolving their disputes and
    controversies. The principle of the duty of loyalty endures because it is
    essential to the integrity of the administration of justice: at para. 12. It
    consists of several dimensions, including a duty not to disclose confidential
    information, a duty to avoid conflicting interests, a duty of commitment to the
    clients cause or zealous representation, and a duty of candour with the client
    on matters relevant to the retainer: at paras. 18-19.

[23]

That said, the duty is not unlimited. Lord Reids
    remarks in
Rondel v. Worsley
, [1969] 1 A.C. 191 (U.K. H.L.), at pp.
    227-28, accepted by this court in
R. v. Samra
(1998), 129 C.C.C. (3d)
    144 (C.A.), at para. 64, illustrate this point:

Every counsel has
    a duty to his client fearlessly to raise every issue, advance every argument,
    and ask every question, however distasteful, which he thinks will help his
    client's case.
But, as an officer of the court concerned
    in the administration of justice, he has an overriding duty to the court, to
    the standards of his profession, and to the public, which may and often does
    lead to a conflict with his client's wishes or with what the client thinks are
    his personal interests
. Counsel must not mislead the court, he must not
    lend himself to casting aspersions on the other party or witnesses for which
    there is no sufficient basis in the information in his possession, he must not
    withhold authorities or documents which may tell against his clients but which
    the law or the standards of his profession require him to produce. And by so
    acting he may well incur the displeasure or worse of his client so that if the
    case is lost, his client would or might seek legal redress if that were open to
    him. [Emphasis added.]

[24]

Allan C. Hutchinson, in his textbook
Legal
    Ethics and Professional Responsibility
, 2nd ed. (Toronto: Irwin Law,
    2006), at pp. 106-7, similarly explains that there are limits to lawyers
    obligations to place their clients interests ahead of all others. One of the
    primary constraints is a lawyers duty to the courts.

[25]

It is also useful to remember that the concepts
    of ineffective assistance and disloyalty cannot be conflated. A breach of the
    duty of loyalty does not occur whenever a clients interests are damaged by a
    lawyers actions. A lawyer acting with intent to further a clients interests
    sometimes can, by incompetence, damage those interests. Such a lawyer has not
    breached the duty of loyalty. Otherwise, every incompetent act would be an act
    of disloyalty.

[26]

The existing test for whether there has been a breach of loyalty
    owed by a lawyer to their client, when raised for the first time on appeal, may
    be stated as follows. First, there must have been an actual conflict of
    interest between the respective interests represented by counsel and, second, as
    a result of that conflict, there must have been some impairment of counsels
    ability to represent the interests of the appellant:
R. v. W.(W.)
(1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 237;
Neil
, at para. 39;
    and
R. v. Silvini
(1991), 68 C.C.C. (3d) 251 (Ont. C.A.), at pp.
    258-59.

[27]

As the Supreme Court accepted in
Neil
,
    a conflict is a substantial risk that the lawyer's representation of the
    client would be materially and adversely affected by the lawyer's own interests
    or by the lawyer's duties to another current client, a former client, or a
    third person: at para. 31. Where the allegation of a conflict of interest is
    raised for the first time on appeal, the court must be concerned with actual
    conflicts of interest, not just potential or possible conflicts, and whether
    counsels representation was in fact compromised in such a way as to result in
    a miscarriage of justice:
W.(W.)
, at pp. 238-39.

[28]

This court noted in
Samra
that the
    problem of conflict of interest has usually arisen because counsel has been
    retained to act for a client opposed in interest to the former client: at para.
    19. In the context of joint representation of co-accused, an actual conflict
    exists when a course of conduct dictated by the best interest of one accused
    would, if followed, be inconsistent with the best interests of the co-accused:
W.(W.)
,
    at p. 239.

[29]

In
Samra
, the appellant alleged that a
    miscarriage of justice had occurred when the appointed
amicus
, who had
    formerly been the appellants defence counsel for the same matter, had
    disclosed confidential information when he clarified something the appellants
    new counsel had said. This court noted that this was the only time an actual
    conflict of interest might have arisen and where possibly confidential
    information was disclosed, but even so, there was no adverse effect on the
    appellants defence as a result of that conflict. As such, while it was not
    necessary to decide whether an actual conflict existed, this court doubted, at
    para. 63, that there was a conflict:

It is not unusual
    that counsel may find themselves in a conflict between their duty to the client
    and their duty to the court. It has never been suggested that when such a
    conflict arises counsel is always disqualified from continuing to act in the
    case.

[30]

If the two-part test is satisfied, the court may
    order a new trial:
Neil
, at para. 40.

(2)

Did Mr. Fleming breach his duty of loyalty to
    the appellant?

[31]

In my view, Mr. Fleming did not breach his duty
    of loyalty to the appellant. At the outset, it is important to emphasize the
    circumstances that form the context of Mr. Flemings actions. Mr. Fleming, a
    staff lawyer for LAO, agreed to represent an accused on the eve of trial in a
    notorious murder of a police officer. The Crown case was strong. The only, and
    faint, hope was that some aspect of diminished capacity could result in a
    verdict of manslaughter. The accused was not likely to be (and was not in fact)
    a sympathetic witness; he insisted on testifying, and it would have been
    obvious that he would not be helping his cause. Mr. Fleming was in an
    unenviable position.

[32]

That said, Mr. Fleming was not in a position of
    conflict. While he clearly understood that his obligation to his client had to
    be tempered by his duty to the administration of justice and he made some
    decisions which were not advisable, these cannot be understood as arising from
    any conflicting loyalty. The appellant points to Mr. Flemings statements and
    conduct and asks this court to infer that Mr. Fleming believed he was a friend
    to the court and was preoccupied with trial expediency, saving LAO the expense
    of another lawyer, and avoiding an appeal. While Mr. Fleming may have been
    concerned with some of these considerations, he was not, however, placed in a position
    where he had to choose between the appellants best interests and his own best
    interests or the best interests of some other entity or client. Nor did he make
    any choices that preferred other interests over the appellants interests as a
    result of a conflict of interest. There were no actual conflicts that impaired
    Mr. Flemings representation of the appellant. This becomes apparent when
    considering the examples the appellant relies on as breaches of the lawyers
    duty of loyalty.

[33]

The first basis relied on by the appellant as
    illustrating divided loyalty is what he refers to as the foundational lie.
    When he first met with the appellant, Mr. Fleming told him that he had been a
    member of the RCMP and that he had killed two people in the course of duty. As
    the fresh evidence indicates, this was not true. Mr. Fleming was never a member
    of the RCMP. In his affidavit, the appellant states that this contributed to
    his confidence in Mr. Fleming as they shared an experience. For reasons that are
    difficult to understand, Mr. Fleming had previously told his former law partner
    the same fabrication. Whatever motivated Mr. Fleming to tell this story, the
    fact that it was not a fabrication communicated only to the appellant tends to
    undermine any suggestion that it can be explained by divided loyalties on the
    part of Mr. Fleming.

[34]

Obviously, the fabrication of ones biographical
    details in any situation is unethical and should not be condoned. This lie,
    however, was not foundational and cannot be understood to have essentially
    undermined the entire relationship as the appellant argues.

[35]

While the appellant says that the lie helped him
    feel comfortable with Mr. Fleming, he does not say that he would not otherwise
    have retained him.

[36]

Moreover, according to the law in Canada as set
    out above, even if such a lie were foundational to the relationship it would
    not constitute a breach of loyalty unless it was occasioned by a conflict and
    it impaired counsels representation: see
Neil
at para. 39. As Mr.
    Fleming had not actually taken any actions as counsel at the time of that
    conversation, there could be no impairment of his representation at that point.
    The only inference that can reasonably be drawn from the record is that he was
    concerned to develop a rapport with the appellant so that he could retain some
    control and prevent his client from losing his temper, changing instructions,
    and possibly firing him mid-trial, a situation Mr. Fleming understood would not
    be in the interests of the appellant or the administration of justice. While
    his means for effecting this were not laudable, they do not indicate disloyalty
    on the part of Mr. Fleming.

[37]

Second, the circumstances around the somewhat
    bizarre factum submitted by Mr. Fleming on the voluntariness
voir dire
further illustrate the same pattern: a misguided attempt to provide the best
    defence possible for the appellant in the face of a very strong Crown case and
    no evidence to support the appellants assertion that he did not have an
    operating mind when he made the statements as a result of his personal and
    medical circumstances as well as the blow to his head delivered by the officer.

[38]

When the appellant was insisting on pressing
    this argument in the voluntariness
voir dire
, Mr. Fleming wrote two
    additional letters to Dr. Bradford seeking input as to whether, in his view,
    the appellants condition could provide the basis for any limited capacity
    defence. His suggestion that he meet with Dr. Sinclair, the Crown expert, to
    see if there might be anything there before the trial was strange and unusual
    as well but it was clearly motivated by his wish to do all he could. The report
    from Dr. Bradford did not support an NCR defence but did leave a very small
    crack open for an argument that he might have had some sort of diminished
    capacity. However, the basis for such an argument was directly addressed and
    answered by Dr. Sinclairs report. In the end, Mr. Fleming did not obtain a
    response from Dr. Bradford before the
voir dire
,
and no meeting with Dr. Sinclair ever
    took place.

[39]

Mr. Flemings explanation for his voluntariness
    factum was that the appellants statements were going to be admitted no matter
    what. Mr. Fleming, facing that reality, was concerned that if he simply
    conceded, the appellant would be furious, discharge him, and that would derail
    matters, presumably in a way that would not help the appellant. While this was
    questionable, there is no basis to suggest that it was borne out of disloyalty.
    It was a function of Mr. Flemings manner of dealing with his client: build a
    respectful relationship and allow him to determine how his defence would be
    conducted.

[40]

Third, Mr. Flemings communications with the
    Crown in which he sent the written instructions he wanted his client to sign
    was unquestionably misguided and wrong. However, his explanations for this do
    not support a finding that it was driven by disloyalty to his client. Again,
    Mr. Fleming had a volatile client who was not taking his advice. He believed,
    rightly or wrongly, that the best he could do for him in the circumstances was
    to keep him calm with a view to preventing him from further instruction
    reversals and from ending up without a lawyer mid-trial. In addition, he
    expressed the view, in an email he sent to Mr. Delmar Doucette seeking advice
    with his instructions, that the documents were not, in substance, different
    from the admissions that the appellants former lawyer had filed when she was
    counsel on the agreement of Mr. Gregson.

[41]

Mr. Doucette subsequently advised Mr. Fleming
    that the communication of a clients instructions was never acceptable and
    should not have been attempted. In retrospect, Mr. Fleming acknowledged to Mr.
    Campbell that it had been an error for him to attempt to share the instructions
    with the Crown. It was not done as a result of any conflict on Mr. Flemings
    part.

[42]

Fourth, the appellant raises Mr. Flemings letter
    to the Crown dated February 13, 2012, in which Mr. Fleming claimed to have
    spoken with a consultant and raised the possibility of speaking with Dr.
    Sinclair. Mr. Fleming subsequently told Mr. Campbell that the consultant was
    his daughter, a neurosurgery resident in the United States. Mr. Fleming claimed
    she had agreed with Dr. Sinclairs report that the usual manifestations of the
    appellants conditions, if any, were impairments of balance, sight and hearing.
    She had added that there were possibilities of psychological brain function
    impairment and suggested that he ask someone such as Dr. Sinclair.

[43]

The fresh evidence indicates that Mr. Fleming
    does not have a daughter or any child or step-child who is a neurosurgeon.
    There is no way of knowing who, if anyone, Mr. Fleming spoke to or why he would
    have made this up. That said, there is again an absence of any conflict on his
    part that could provide a motive for him to lie. It is clear that he was trying
    to find support for some sort of limited capacity defence. The problem was that
    the evidence simply did not support it. In fact, the contemporaneous evidence
    shows that he was trying his best for his client and was personally discouraged
    by the prospects for his client. Mr. Campbell included his notes taken from his
    interview with François Dulude, a lawyer who had assisted Mr. Fleming during
    the trial. Mr. Dulude recalled that Mr. Fleming was discouraged by the lack of
    evidence that could support any diminished capacity defence and that Mr.
    Fleming worked hard on the case. Mr. Doucette, who Mr. Fleming consulted on the
    subject of drafting instructions, also expressed the view that Mr. Fleming, while
    seeing the case as largely hopeless, never threw in the towel. These
    observations do not support the suggestion that Mr. Fleming was in any sort of
    conflict.

[44]

In sum, the evidence on the conduct on the part
    of Mr. Fleming that the appellant points to does not reveal any actual conflict
    of interest that could ground a finding of a breach of the duty of loyalty,
    pursuant to the test in
Neil
. Given the difficult circumstances in
    which Mr. Fleming was acting, there were reasonable explanations for his at
    times misguided conduct, including that he was trying to pursue any possible
    defence available to the appellant and to seek concessions or favours from the
    Crown. In my view, Mr. Fleming was not acting out of divided loyalty, but was
    committed to his clients cause. As a result, the appellants sole ground of
    appeal on the breach of the duty of loyalty cannot succeed.

[45]

As the appeal from conviction is dismissed, it
    will not be necessary to address the sentence appeal, given the minimum
    sentence for first degree murder.

D.

Disposition

[46]

I would dismiss the appeal.

Released: October 7, 2021 D.W.

A. Harvison Young J.A.

I agree David Watt J.A.

I agree M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawlor, 2021 ONCA 692

DATE: 20211007

DOCKET: C63960

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Linda Lawlor

Appellant

Amit Thakore, for the appellant

Andrew Hotke, for the respondent

Heard and released orally:
    October 4, 2021 by video conference

On appeal from the conviction entered by
    Justice B.A. Allen of the Superior Court of Justice on June 30, 2016 and the
    sentence imposed on June 30, 2017.

REASONS FOR DECISION

[1]

After a trial by judge alone, the appellant was
    convicted of one count of fraud over $5,000. She received a conditional
    sentence of two years, less a day and was ordered to pay a fine in lieu of
    forfeiture of $603,437. The appellant was given 20 years to pay the fine and,
    in default, a three-year penitentiary sentence.

[2]

The appellant appeals conviction and, if leave
    is granted, appeals from the fine in lieu of forfeiture portion of her
    sentence.

Background

[3]

The appellant and a co-accused were charged with
    several offences relating to transactions involving eight different properties
    owned by the co-accuseds elderly father. At the conclusion of the preliminary
    inquiry, the presiding judge indicated the co-accused would be committed for
    trial with respect to each of the eight properties. The appellant, however,
    would be committed for trial only in respect of the property on St. Clair
    Avenue.

[4]

The appellant and the co-accused eventually
    proceeded to trial in the Superior Court on a single-count indictment, alleging
    fraud over $5,000. The timeframe in the indictment captured all eight
    transactions, but the indictment contained no particulars and made no reference
    to any specific property.

[5]

The trial proceeded. The Crown led evidence in
    respect of all eight transactions. No one objected. The co-accused testified.
    The appellant did not.

[6]

It would appear that counsel and the trial judge
    proceeded on the basis that all of the evidence was admissible against both the
    appellant and the co-accused, and that the allegation against the appellant encompassed
    all eight properties.

[7]

The case against the appellant on the St. Clair
    Avenue property was straightforward. She accessed the land titles system using
    a personal security licence (PSL) she had initially obtained while working as
    a legal assistant in a law firm. The appellant transferred ownership of the St.
    Clair Avenue property from the co-accuseds elderly father to the co-accused
    and another person. The co-accused had the same last name as his father. The
    father had no knowledge of the transfer until years later.

[8]

Within about a month of the fraudulent transfer
    of the property, a mortgage in the amount of about $355,000 was placed on the
    St. Clair Avenue property. A second mortgage in the amount of about $250,000
    was placed on the property a year later. Proceeds from those mortgages went
    into a corporate bank account controlled by the appellant and two others.

[9]

The trial judge was satisfied the appellant knew
    she had no authority to transfer the St. Clair Avenue property from the true
    owner to her co-accused and another party. That transfer clearly put the
    fathers economic interests at risk, resulting in deprivation.

[10]

The trial judge was also satisfied the appellant
    appreciated the consequences to the economic interests of the father brought
    about by the dishonest transfer of the ownership of the St. Clair Avenue
    property: see Reasons for Judgment, at paras. 173-79.

The Conviction Appeal

[11]

In her reasons for judgment, the trial judge proceeded
    on the basis that the appellant could be convicted if the Crown proved her
    fraudulent involvement in any of the transactions. On the evidence, the
    appellant had some involvement in properties on Harwood Avenue and Ruden
    Crescent, as well as the St. Clair Avenue property. In reference to 200 Harwood
    Avenue, the trial judge described the appellants involvement as minimal. The
    trial judge indicated the appellant had a more significant connection with the
    Ruden Crescent property. However, the trial judge expressly indicated her conviction
    of the appellant rested on the appellants involvement with the St. Clair
    Avenue property and the trial judges conclusion that her involvement
    established her guilt on a charge of fraud over $5,000 beyond a reasonable
    doubt.

[12]

After the trial judge released her reasons
    convicting the appellant, the appellant, represented by new counsel, sought a
    mistrial on the basis that the trial judge had misunderstood the nature of the
    charge against the appellant. Counsel argued that the appellants lawyer, the
    trial judge, and the Crown had mistakenly proceeded on the basis that the
    appellant could be convicted based on her involvement with any of the
    properties. In fact, argued the accused on the mistrial motion, while the case
    against the co-accused related to all properties, the appellant could only be convicted
    in respect of the St. Clair Avenue property. In advancing this submission, the
    appellant relied on the terms of the committal for trial.

[13]

On the motion for a mistrial, counsel argued
    that a mistrial was the only appropriate remedy, specifically rejecting the
    Crown suggestion that the evidence could be reopened to allow the defence to
    call any evidence it may not have called because of the misunderstanding as to
    the nature of the charge against the appellant.

[14]

The trial judge dismissed the motion for a
    mistrial.

[15]

The appellant renews the arguments that were
    rejected by the trial judge. She contends the misapprehension of the scope of
    the evidence led to the admission of evidence that was inadmissible against her.
    The appellant also submits that the misapprehension of the nature of the charge
    caused her to lose the right to make properly informed decisions as to the
    conduct of her defence.

[16]

We reject those submissions for three reasons.
    First, it is clear the conviction rested on the trial judges finding in
    respect of the St. Clair Avenue property. The evidence in respect of that
    property was overwhelming. The appellant transferred ownership with no
    authority and within a month found herself in possession of the proceeds of a substantial
    mortgage placed on the property. No explanation was ever offered.

[17]

Not only did the trial judge make it clear that
    the conviction rested on the evidence relating to the St. Clair Avenue
    property, she also made it clear the evidence in respect of the other
    properties could not support a conviction.

[18]

Second, the limited evidence of the appellants
    involvement in transactions involving two of the other properties, particularly
    the Ruden Crescent property, was admissible to show the existence of the
    relationship between the appellant and the co-accused, specifically in relation
    to transactions involving the property of the co-accuseds elderly father.
    There is nothing in the reasons to suggest that the trial judge misused the
    evidence in respect of the appellants involvement in the other properties.

[19]

Third, while the appellant submits the
    misunderstanding as to the nature of the charge deprived her of the right to
    make certain informed choices, she offers no specifics, either in the affidavit
    filed on the mistrial application, or in her former trial lawyers affidavit in
    support of that position. The appellant argues that counsels advice to her
    during the trial was guided by this misunderstanding. However, the appellant,
    as is her right, has refused to waive client-solicitor privilege, thereby
    making it impossible to evaluate the legitimacy of this claim.

[20]

The St. Clair Avenue property was clearly the
    focus of the Crowns allegation against the appellant. The appellant chose not
    to testify. We see no basis upon which to conclude that choice may have been
    different had she understood the allegations in respect of the St. Clair Avenue
    property were not just the central thrust of the Crowns case, but were in fact
    the entirety of the Crowns case.

[21]

We also see no merit in the argument the trial
    judge failed to allow the defence to reopen the evidence. The defence at trial
    did not seek to reopen the evidence. To the contrary, the defence indicated
    reopening the evidence would not assist. Even after the trial judge made her
    ruling denying the mistrial, she left open the possibility of a defence motion
    to reopen the evidence. The defence made no such motion.

[22]

Finally, nothing has been put before this court
    to suggest what additional evidence may have been led, had the evidence been
    reopened, that could possibly have made any difference to the outcome of the
    charge as it related to the St. Clair Avenue property.

[23]

The conviction appeal is dismissed.

The Sentence Appeal

[24]

The appellant had control over funds obtained as
    a result of the fraudulent mortgages placed on the St. Clair Avenue property
    and deposited into the corporate account. Two other individuals also had
    signing authority over that account. The charges against both were withdrawn in
    the Provincial Court.

[25]

We reject the submission that the appellant had
    less than total control over the funds in the account. The fact that others had
    signing authority does not diminish the appellants control over the funds.

[26]

The appellant argues that the fine in lieu of
    forfeiture should have been limited to the amount that could actually be traced
    into the appellants pocket. The quantum of a fine in lieu of forfeiture is not
    limited to the amount of the benefit actually obtained. Once the sentencing court
    decides a fine in lieu of forfeiture should be imposed, the amount of the fine
    is equal to the value of the property over which the offender has the
    requisite control: see
R. v. Piccinini
, 2015 ONCA 446, at para. 18.

[27]

Given the factual finding by the trial judge
    that the co-accused had no control over the funds generated by the fraudulent
    mortgages placed on the St. Clair Avenue property, the appellant could not look
    to the co-accused to pay some part of the fine ordered in lieu of forfeiture:
    see
R. v. Dieckmann
, 2017 ONCA 575, at para. 100.

[28]

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

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mustard, 2021 ONCA 696

DATE: 20211007

DOCKET: C68896

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles Mustard

Appellant

Jeff Carolin and Taufiq Hashmani, for
    the appellant

Benita Wassenaar, for the respondent

Heard and released orally:
    October 5, 2021 by video conference

On appeal from the order of Justice W.
    Low of the Superior Court of Justice, dismissing an application for
certiorari
,
    dated November 13, 2020.

REASONS FOR DECISION

[1]

We agree with
    the application judge that there was a basis in the evidence upon which the
    provincial court judge could come to the conclusion that a properly instructed
    jury could convict on a charge of first degree murder: see Reasons of
    application judge, dated November 13, 2020, at pp. 8-12.

[2]

Consequently,
certiorari
was properly refused and the appeal is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Stephens, 2021 ONCA 699

DATE: 20211007

DOCKET: M52798 (C58723)

Rouleau,
    Benotto and Zarnett JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent/Responding Party

and

William Russel Stephens

Appellant/Moving Party

William
    Russel Stephens, acting in person

Nicole
    Rivers, for the respondent

Heard and released
    orally: October 5, 2021 by video conference

REASONS
    FOR DECISION

[1]

The moving party seeks a stay pending his leave to
    appeal application to the Supreme Court of Canada. The moving party abandoned
    his motion for leave to appeal from the summary conviction appeal court judges
    dismissal of his appeal. A subsequent application to our court to reopen the
    leave was denied. There is therefore, in our view, nothing that can be stayed.

[2]

Accordingly, the motion is dismissed.

Paul
    Rouleau J.A.

M.L.
    Benotto J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Smith v. GCAT Group Inc., 2021
    ONCA 700

DATE: 20211007

DOCKET: C68067

Hourigan, Huscroft and Coroza
    JJ.A.

BETWEEN

Henry Smith and Susyn Smith

Plaintiffs (Appellants)

and

GCAT Group Inc., Danial
    Hadizadeh and Akbar Hadizadeh

Defendants (Respondents)

Richard Macklin and Lucinda Bendu, for
    the appellants

Pavle Masic, for the respondents

Heard: October 6, 2021 by
    video conference

On appeal from the order of Justice Robert
    F. Goldstein of the Superior Court of Justice, dated January 24, 2020.

REASONS FOR DECISION

[1]

The motion judge dismissed the appellants claim against the respondents
    for breach of contract, alleging that the respondents supplied inferior
    synthetic limestone rather than the Italian limestone for which they had
    contracted. The appellants claim, which commenced in 2012, was dismissed under
    r. 60.12(b) because the appellants failed to comply with interlocutory orders requiring
    them to permit the respondents to inspect the limestone at the centre of the
    dispute.

[2]

The appellants argue that they should have been permitted a final
    opportunity to provide access to the respondents to inspect the limestone.

[3]

There is no merit in the appellants position.

[4]

Rule 60.12(b) is designed to facilitate compliance with interlocutory orders,
    and among other things provides that the motion judge has the discretion to
    dismiss a proceeding. It is no light thing to dismiss a proceeding, but there
    was ample basis for the motion judge to do so in this case.

[5]

The respondents first sought to inspect the limestone in 2017 and
    brought a motion to permit inspection in 2018. Testing was ordered by Master
    Jolley but did not take place. The appellants brought a motion to vary the
    Masters order but this was rejected by the Master, who described it as
    smacking of an attempt to appeal my order after the appeal period had
    expired, and full indemnity costs were awarded against the appellants. The
    appellants appealed this order and the appeal judge found that the appeal was entirely
    devoid of merit and completely frivolous. He inferred that the appellants
    had appealed in order to avoid implementing the inspection order. Following
    this appeal, the appellants refused to pay costs unless the respondents signed
    a satisfaction piece, a requirement that had not existed in the Rules for
    over thirty years. The appellants continued to advance the argument that the
    respondents had lost their right to inspect the limestone, an argument that had
    been rejected by both the Master and the appeal judge. The motion judge
    inferred that the appellants continued to play games.

[6]

The motion judge carefully reviewed the history of the action. He found that
    no matter how many times the [appellants] are told they must permit an
    inspection, they will not do so. The motion judge drew the inference that the
    appellants have no case and they must know it. In these circumstances,
    dismissal of the action under r. 60.12(b) was amply justified. The motion judge
    was not required to provide the appellants with yet another opportunity to
    disobey a court order before dismissing the action.

[7]

The appellants blame their former lawyer for pursuing what they describe
    as a stubborn litigation strategy. They seek leave to file fresh evidence
    demonstrating that he gave erroneous advice on which they relied.

[8]

There is no basis to set aside the motion judges order because of the
    appellants complaint about their counsels strategy and we do not admit the
    fresh evidence that purports to demonstrate counsels failings. It is supported
    only by a self-interested affidavit filed by one of the appellants, which
    indicates that he was not aware of the litigation strategy his counsel pursued.
    There is ample evidence in the record to the contrary. In any event, the
    appellants may pursue a negligence action against their lawyer if they think he
    provided erroneous advice: see
Oz Merchandising Inc. v. Canadian
    Professional Soccer League Inc.
, 2021 ONCA 520 at para. 44.

[9]

In summary, the motion judge applied the relevant law and made no error
    in doing so. His decision to dismiss the appellants action is entitled to
    deference.

[10]

Leave
    to introduce the fresh evidence is denied. The appeal is dismissed.

[11]

The
    respondents are entitled to costs for the appeal, including the fresh evidence
    motion, fixed at $13,000 all inclusive.

C.W. Hourigan
    J.A.

Grant Huscroft
    J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lalonde v. Agha, 2021 ONCA 704

DATE: 20211008

DOCKET: C68482

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Sophie Lalonde

Applicant

(Respondent)

and

Samer Agha

Respondent

(Appellant)

Robert J.M. Ballance, for the appellant

Michelle DiCarlo, for the respondent

Heard: June 29, 2021 by video
    conference

On appeal
    from the order of Justice Kirk W. Munroe of the Superior Court of Justice dated
    June 3, 2020, with reasons reported at 2020 ONSC 3486.

COSTS ENDORSEMENT

[1]

On September 24, 2021, we dismissed the
    appellants appeal. As the appellant concedes, the respondent was successful
    and is entitled to her costs of the appeal.

[2]

We do not agree that this is one
    of those exceptional cases that merits an award of full indemnity costs. The
    respondent is entitled to her costs of the appeal in the amount of $5,000,
    inclusive of all disbursements and applicable taxes.

David Brown J.A.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.