CITATION:
R. v. Neundorf, 2011 ONCA 732

DATE: 20111123

DOCKET: C49385

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dara Lynn Neundorf

Appellant

Brian H. Greenspan and Jill D. Makepeace, for the appellant

Christine Tier, for the respondent

Heard: October 12, 2011

On appeal from conviction entered by Justice R. Boyko of the
          Superior Court of Justice, dated June 20, 2008.

BY THE COURT

Introduction

[1]

The appellant mother was convicted of taking away her two boys in
    contravention of the terms of a custody order, with the intent of depriving the
    boys father of possession of the boys, contrary to s. 282(1)(a) of the
Criminal
    Code
. While the order granted custody of the boys to the mother, the father
    had access rights to see the boys over Christmas and on spring break. The
    mother and her new husband took the boys to Singapore in October 2001 for an
    indefinite time, initially without informing the father and then providing him
    with misleading information regarding their whereabouts and contact
    information, finally returning in May 2002.

[2]

The appellant argues on appeal that the conviction should be set aside
    because the essential elements of the offence were not made out and the trial
    judge misapprehended the evidence. In the alternative, the sentence imposed was
    overly harsh in its consequences.

[3]

For the reasons that follow, we dismiss the appeal against conviction,
    grant leave to appeal sentence, and reduce the sentence to an absolute discharge.

Facts

[4]

From 1986 to 1993, the appellant and John Baird were in a common law
    relationship and lived in Markham Ontario.  They had two sons, born
    respectively in 1989 and 1993. The couple separated, and in 1996, the appellant
    married Jim Neundorf. Thereafter the appellant and Baird became engaged in
    acrimonious custody and access proceedings regarding their two sons. In 1998,
    the appellant moved with the children to Calgary to pursue Ph.D. studies at the
    University of Calgary. This made it difficult for Baird to have access to the
    children, and there were further variations of the court orders on access. A
    trial in Family Court in Newmarket, Ontario in March 2000 culminated in a
    consent order dated May 4, 2000; this was later amended by a final consent order
    of December 11, 2000 dealing with custody and access details.

[5]

The December 2000 order gave the appellant sole custody of the children,
    and gave Baird access to the children during Christmas, the spring, and the
    summer of each year. The order provided fixed dates for the Christmas and
    summer access. The spring access was to coincide with the boys spring break
    from school, and the appellant was to inform Baird of these dates by October 15
    of the previous year. Baird was to arrange and pay for the childrens travel
    from Calgary to Toronto for the access visits and had to provide information
    regarding flight times to the appellant 30 days in advance. Baird had Christmas
    access in December 2000 and spring and summer access in 2001.

[6]

The order also provided for telephone access. The children were entitled
    to phone the parent they were not with at reasonable times, and the parents
    were entitled to call the children every second day when they did not have
    access.

[7]

In the spring of 2001, Mr. Neundorf lost his job in Toronto. In the
    summer, he accepted an invitation to present a paper in Singapore, hoping that
    this would lead to employment there. The appellant decided to join him and use
    the opportunity for a family vacation. On a motion to dispense with Bairds
    consent to travel for the purpose of obtaining passports for the children, Baird
    testified that he was not opposed to the children travelling, but was concerned
    that the appellant might not return, suspecting that she intended to move to
    Singapore. Although the appellants motion was successful, Baird brought a
    further
ex parte
motion in Ontario on August 8, 2001 seeking to prevent
    the travel, but the motion was not heard. The appellant and the boys travelled to
    Singapore and other east Asian countries from August 9 to September 17, 2001.

[8]

After the Singapore conference, Mr. Neundorf accepted a two to three
    month employment contract in Singapore. At that point, the family was
    experiencing financial issues.   Mr. Neundorf and the appellant decided that
    she and the children would also come to Singapore. They sold their house in
    Calgary and moved their furniture, phone line and permanent mailing address to
    a rental property they owned in Calgary. They boarded their pets in Toronto.
    The boys were taken out of private school in Calgary and transferred to an
    internet-based home schooling program. Without informing Baird, the appellant
    and the children returned to Singapore on October 7, 2001.

[9]

Baird did not know that the appellant had taken the children back to
    Singapore a second time or that the boys were no longer in school in Calgary. In
    October he attempted to contact them at their Calgary number and sent e-mails
    to the children which were unanswered. Finally he had his lawyer write to the
    appellants lawyer on October 26, 2001 saying: Your client and the children
    have gone missing and are incommunicado.

[10]

After arriving in Singapore, the appellant, Mr. Neundorf and the boys
    stayed with their friends, the Andersons.  They did not provide this
    information to Baird. Instead, they contacted Baird through the appellants
    lawyer.  On October 30, 2001, Baird received the following letter from the
    appellants lawyer:

I received an e-mail from my client on Tuesday,
    October 23, 2001. She indicates that after she and her husband returned home to
    Canada from the trip to Singapore, her husband was offered a job in Asia.
    Apparently, this was done by telephone interview from overseas. My client
    indicates that she attempted to contact me to advise me of this development,
    but was unsuccessful in reaching me. Due to my schedule, I was unable to meet
    with her to discuss this. Because of the developments in the United States, my
    client was concerned about flights, and accordingly, she and the children left
    to go back to Singapore.

The children will be schooled at a virtual school
    at the School of Hope out of Vermillion, Alberta. My client has elected to take
    an academical sabbatical based in Singapore while her husband works there. She
    will be using that sabbatical to prepare for her candidacy exams for her Ph.D.
    as an applied psychologist at the University of Calgary.

I have been instructed by my client to close my
    file. I will no longer be representing her in this matter. Your clients
    records, and the childrens new address is as follows:

10 Anson Road #
    16-16

Suite #5324

Singapore 079903

Telephone: +65 (227) 1558 x 5324

My client advises that she will be setting up an
    e-mail address for the children in the future and will have them contact your
    client directly when same is in place.

As I am no longer retained by my client, I would
    request that you contact Ms. Taylor-Neundorf directly if need be. Accordingly,
    please find attached the original and one copy of our Notice of Ceasing to Act
    in this matter. Kindly admit service on the second copy where indicated and
    return same to our offices at your earliest opportunity.

[11]

In fact, the children were not at the Anson Road address or the
    telephone number provided; the address was for a P.O. box and the telephone
    number was for a messaging service.

[12]

Mr. Neundorfs Singapore employment fell through. The family decided that
    because of their financial problems, it would be cheaper to travel in Asia and
    continue home schooling the children until they could return to Canada once he
    had secured employment there, rather than to return to Canada immediately. They
    spent part of the time at the Andersons in Singapore and part of the time
    travelling. Neundorf had ongoing negotiations to resume his Toronto employment.
    The date for his return to Toronto was pushed forward from January to February
    and finally, to March 1, 2002.  He returned to Canada in February to get ready
    to commence work. The appellant had air tickets for herself and the children
    with flexible return dates. They did not return to Canada until May.

[13]

Two days before their return, the appellant facilitated a call from one of
    the children to Baird. She testified that the purpose of the call was for the
    boy, who was nine years old, to tell Baird that they were returning to Canada.
    However, the boy did not do so. Instead, when asked where they were, he replied
    that he didnt think his mother and Mr. Neundorf wanted him to tell, then said
    they were in Singapore. The boy said they were going to be renting a house. The
    appellant testified that this conversation should have indicated to Baird that
    they were returning to Canada, but he instead understood that they would be
    renting in Singapore.

[14]

There was some limited e-mail and other communication between Baird and
    the children and the appellant over the period. However, Baird was never told
    exactly where they were or what their plans were. He was not given regular
    telephone access to the children, as provided for in the custody order. When he
    sent an email on December 8, 2001 asking about his Christmas access visit, the
    appellant took the position with him that he had not given her 30 days notice
    in accordance with the court order and therefore could not have his Christmas access.

[15]

Baird went to the authorities in Canada in December 2001. A Canada-wide
    warrant was issued for the appellant in March 2002 and was executed when the
    appellant landed in Vancouver in May 2002. She was arrested and the children
    were first put into foster care until they flew to Toronto pursuant to a
    temporary custody order that Baird obtained. Eventually the children returned
    to live with the appellant in Markham, Ontario.

[16]

At the trial the appellant testified, explaining that she never intended
    to deprive the father of his access rights, and stating that she always
    intended to return with the boys to Canada. She took the position that because
    the father did not give 30 days notice of flights from Calgary to Toronto over
    Christmas, he had forfeited his right to access. The trial judge rejected her
    evidence and found that the appellants conduct in travelling to Singapore and
    staying in Asia travelling around for seven months with no specific plan to
    return home constituted a taking and that she intended to deprive the father
    of his access rights at Christmas and in the spring. The trial judge imposed a
    conditional sentence of 12 months plus 12 months probation and 110 hours of
    community service. The trial judge declined to impose a discharge, which was
    requested by the appellant.

Issues

(1) The appellant submits that despite her technical
    non-compliance with the custody order, her conduct did not constitute criminal
    child abduction within the meaning of s. 282(1) of the
Code
, and that
    neither the
actus reus
nor the
mens rea
of the offence were
    established on the evidence.

(2)
    The appellant further submits that the trial judge misapprehended portions of
    the evidence and applied different standards of scrutiny to the evidence of the
    crown and of the defence.

(3)
    On the issue of sentence, the appellant submits that the trial judge wrongly
    believed that the appellant was disentitled to a conditional discharge, and
    that she erred in her treatment of aggravating factors.

Analysis

(1)       Conviction Appeal

[17]

Section 282(1) of the
Code
provides:

282(1) Every one who, being the parent, guardian or
    person having the lawful care or charge of a person under the age of fourteen
    years, takes, entices away, conceals, detains, receives or harbours that
    person, in contravention of the custody provisions of a custody order in
    relation to that person made by a court anywhere in Canada, with the intent to
    deprive a parent or guardian, or any other person who has the lawful care or
    charge of that person, of the possession of that person is guilty of

(a) an indictable offence
    and liable to imprisonment for a term not exceeding ten years;

(b)  an offence punishable
    on summary conviction.

[18]

The appellant asserts that this is a case like
R. v. McDougall
(1990), 1 O.R. (3d) 247 (Ont. C.A.), where this court admonished parents in the
    throes of post-separation acrimony over custody and access to their children,
    not to seek to use the criminal law to help them deal with their difficulties
    unless there has truly been an abduction of a child or children. However, the
    facts of that case are in no way comparable to this one. There the father had
    the right to weekend access to his two children. Because of a snow-storm, he decided

not to return them from Oshawa to Brampton on Sunday night, but instead to
    return them on Monday after work. Although the father called the mother on
    Sunday and said he left a message, he made no further attempt to contact her or
    the childrens school the next day. The situation was further exacerbated when
    the baby-sitter lied to the mother, telling her she did not know where the
    children were. At that point, the mother called the police, and the father was
    ultimately arrested.

[19]

On those facts, Doherty J.A. held that the father did not intend to
    deprive the mother of possession of the children. He explained at p. 260:

A  consideration of the purpose of the legislation,
    the context in which the words intent to deprive appear and the generally
    accepted meaning of the word deprive lead me to conclude that the section
    requires proof of an intention to deny, defeat or take away the other parents
    ability to regain physical control or custody of the child. If the overholding
    parent intends only not to assist the other parent in taking possession of the
    child but does not intend to deny that other parents right to possession,
    then, in my view, it cannot be said that the overholding parent intends to
    deprive the other parent of possession of the child. This is particularly so
    when, as in this case, it is found that the overholding parent intended to
    assist in the returning of the children to the other parent later on the same
    day.

And at p. 259, the court further defined the meaning of intent
    to deprive in the context of the section as follows:

To intend to deprive the other parent of that
    physical control or custody, one must intend to somehow put the child beyond
    the reach of that control or custody.

[20]

In this case, the appellant did not merely overhold the children for a
    day. Furthermore, she did not intend to return them to Canada in time for the
    Christmas or the spring access visits with Baird provided by the custody order
    of December 2000.  Although this case may be seen as less serious than others
    because the appellant eventually returned with the children, the deprivation of
    access provided in a custody order is also a very serious matter, and has long
    been held to be within the meaning of the section: see
R. v. Petropoulos
(1990), 59 C.C.C. (3d) 393 (B.C.C.A.).

[21]

As the trial judge found at para. 46, the appellant intended to deprive Baird
    of physical control over the children as long as she remained in Asia:

I find that the mother chose to move to Singapore
    with undefined plans to begin with other than knowing she would be gone for a
    considerably long period of time to warrant taking the children out of school
    and enrolling them in an internet home schooling program. Further, when her
    preliminary plans about where she would live changed when James Neundorf did
    get the job he hoped for, she did not update the father about her living or
    travel itinerary. Lastly, her communication with him was for all intents and
    purposes incomplete and deceitful. She did nothing to facilitate the access she
    knew he was entitled to under the existing court orders.

[22]

The appellant also submitted that she did not prevent Baird from
    exercising control over the children by taking them to Singapore. She submits
    that Baird abdicated his right to Christmas access by failing to give 30 days notice
    of the childrens travel arrangements as required by the custody order.
    Therefore, she did not take the children in the sense described by the Supreme
    Court of Canada in
R. v. Dawson
, [1996] 3 S.C.R. 783  i.e. preventing
    the other parent from exercising control over the child.

[23]

There is no merit in this submission. The order provided for
    unconditional Christmas access. The trial judge addressed this submission with
    a specific finding that she did not believe the appellants testimony that she
    would have returned the children for Christmas had Baird given the 30 day
    notice. She found at para. 41:

Her conduct, long before the deadline the father
    had under the court order to give notice of his intention to exercise Christmas
    access by buying tickets and sending them to the 10 Anson Road postal address,
    revealed an intention to deprive him of his Christmas access by effectively
    frustrating any meaningful contact between him and his sons either by email or
    telephone and misleading him about her actual location and travel itinerary.

[24]

In other words, the trial judge found as a fact that when she left
    Canada, the appellant took the children with the intention of depriving Baird
    of his access before he had to purchase the plane tickets and provide the
    details for the childrens travel from Calgary to Toronto. On the evidence, it
    was open to the trial judge to make this factual finding and there is no basis
    for appellate interference.

[25]

The appellants second alleged error by the trial judge is that she
    misapprehended evidence in 15 findings of fact, and that there was evidence
    that the appellant did not intend to deprive the father of his access to the
    children.

[26]

The appellant is effectively asking this court to reassess the evidence
    and to reject the findings of fact made by the trial judge. The alleged errors
    of misapprehension are either minor and inconsequential or are not errors at
    all. As an example, the appellant argues that the trial judge erred by stating
    in her reasons that Mr. Neundorf remained in Singapore between the first and
    second trip, when his evidence was that he returned to Canada after the first
    trip. This error was of no consequence.

[27]

For another example, the appellant alleges that the trial judge erred
    in finding that the appellant failed to disclose their true location and travel
    itinerary to Baird, despite Bairds repeated expressions of concern. The
    appellant argues that Baird was provided with a legitimate mailing address,
    which he failed to use, and that she was not required to provide a travel
    itinerary.  This argument misses the point. The appellant would not have been
    required to provide Baird with the childrens travel itinerary and whereabouts,
    had she ensured that he could contact the children and have his access to them on
    the court-ordered occasions. Because she did not do so, her failure to provide
    a travel itinerary exacerbated the situation. There is no basis to conclude
    that the trial judge misapprehended the evidence in this regard.

[28]

Finally, the appellant alleges that the trial judge applied a different
    level of scrutiny to the evidence of the appellant and of Baird and did not
    refer to the evidence of Mr. Neundorf on behalf of the appellant. As this court
    stated in
R. v. J.H.
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para.
    46-47, this argument is often an invitation for the Court of Appeal to reassess
    credibility findings, which is tantamount to a submission that the verdict is
    unreasonable.

[29]

The court explained that in order to succeed on this ground the
    appellant must point to something in the reasons of the trial judge or perhaps
    elsewhere in the record that make it clear that the trial judge had applied
    different standards in assessing the evidence of the appellant and the
    complainant.
J.H.
, at para. 59.

[30]

The trial judge fully reviewed the record and made clear findings of
    credibility based on her assessment of all of the evidence and of the
    witnesses. There is nothing in the reasons which suggests that the trial judge
    did anything other than consider the evidence fairly and make her findings
    based on her assessment. We would not give effect to this ground.

Sentence Appeal

[31]

The trial judge gave full reasons for the sentence she imposed of twelve
    months conditional to be served in the community, 110 hours of community
    service, followed by 12 months probation. She specifically declined to impose a
    conditional or absolute discharge. She declined to do so because of the
    aggravating factors including the alienation that was caused between the father
    and the boys. The trial judge also noted a significant number of mitigating
    factors including the fact that the appellant has no criminal record, the fact
    that the appellant returned voluntarily to Canada, the appellants strong
    family and community support, the fact that a relatively small amount of access
    was missed, the fact that the appellant is gainfully employed, and the fact that
    the appellant served five days in pre-trial custody. The trial judge also noted
    that specific deterrence had been met.

[32]

Although the trial judge gave full reasons on sentence, there were two
    matters that were submitted to her by the defence which she did not appear to
    consider in deciding to impose a conditional sentence rather than a conditional
    discharge. The first was that because the appellant is a professional who
    travels to speak, a criminal record would be a particular hardship to her as it
    would preclude her travelling to the United States. On appeal, the court was
    further advised that the appellant has a sister in the United States.

[33]

The second and much more significant issue was that as a result of her
    arrest and the change in the custody and access rights of the parties, the
    appellant did not see the children for over a year. This was a significant
    hardship on a mother and something that should have been factored in when
    considering the appropriate sentence in all the circumstances of this case.

[34]

On the appeal, the appellant asks this court to substitute a discharge
    in order to remove the appellants criminal record. The appellant has fully
    served the conditional sentence and performed all of her obligations as
    originally imposed. In those circumstances, we would allow the appeal against
    sentence, and substitute a discharge, which, at this stage will be an absolute
    discharge.

Result

[35]

In the result, the appeal against conviction is dismissed, leave to
    appeal the sentence is granted, the appeal against sentence is allowed and an
    absolute discharge is substituted.

RELEASED:

NOV 23 2011                                            M.J.
    Moldaver J.A.

KF J.A.                                                       Kathryn
    Feldman J.A.

Robert
    J. Sharpe J.A.


CITATION:
R. v. Opoku, 2011 ONCA 712

DATE: 20111114

DOCKET: M39896

COURT OF APPEAL FOR ONTARIO

Cronk J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Theresa Opoku

Applicant

Theresa Opoku, in person

H. Book,
Amicus
counsel

Christine Tier, for the respondent

Heard:
October 19, 2011

On a motion for leave to appeal from the
          order of Justice P. H. Reinhardt of the Ontario Court of Justice, dated
          January 24, 2011, under the
Provincial Offences Act
.

ENDORSEMENT

Background

[1]

On May 20, 2010, the applicant, Theresa Opoku, was found guilty by
    Justice of the Peace R. Whittaker, of the Ontario Court of Justice, of making a
    false statement to a police officer regarding her motor vehicle insurance,
    contrary to s. 13.1 of the
Compulsory Automobile Insurance Act
, R.S.O.
    1990, c. 25 (the CAI Act).   She was ordered to pay a $5,000 fine, within 30
    days.
[1]
As Ms. Opoku did not attend court on May 20, 2010, Justice of the Peace
    Whittaker proceeded on an
ex parte
basis and Ms. Opoku was convicted
in
    absentia
.

[2]

The charge against Ms. Opoku arose from a traffic stop allegedly
    conducted on February 8, 2008.  Once stopped, Ms. Opoku was asked to produce
    her car ownership and insurance documentation.  She was cautioned about her
    driving and no charges were laid.  However, on subsequent investigation, the
    involved police officer concluded that Ms. Opoku had falsely declared that her
    motor vehicle was insured at the time of the traffic stop.  As a result, Ms.
    Opoku was charged accordingly under s. 13.1 of the CAI Act.

[3]

Ms. Opoku did not file an appeal within the prescribed time.  On August
    19, 2010, she applied for an extension of time to appeal her conviction under
    the
Provincial Offences Act
, R.S.O. 1990, c. P. 33 (the POA).  The application
    was spoken to in court on December 2, 2010, in the presence of Ms. Opoku.  On
    consent, the matter was adjourned to January 24, 2011.

[4]

Ms. Opoku failed to attend court on January 24, 2011.  Consequently, Reinhardt
    J. of the Ontario Court of Justice, sitting as a POA appeal judge, dismissed
    her extension of time motion, as abandoned, on request of the Crown.

[5]

Ms. Opoku now seeks leave to appeal Reinhardt J.s decision to this
    court, pursuant to s. 131 of the POA.  She argues that she had motor vehicle
    insurance as of April 3, 2008, effective March 26, 2008, that the involved
    police officer misrepresented the alleged date of the offence to the court,
    that she was out of the country for her trial date of May 20, 2010, and that
    she understood the assigned appeal court date was January 25, 2011, rather than
    January 24, 2011.

[6]

Ms. Opokus leave motion before this court was adjourned on August 24,
    2011 to await the preparation of two transcripts.  The outstanding transcripts
    are now available but were only provided to Crown counsel on October 19, 2011,
    the return date of the leave motion.  However, after reviewing the transcripts,
    Crown counsel indicated that she was prepared to proceed without a further
    adjournment.

[7]

The Crown opposed Ms. Opokus leave motion on the merits and on
    jurisdictional grounds.  In particular, relying on the recent decisions of
    Juriansz J.A. of this court (in chambers) in
R. v. Borges
, 2011 ONCA 621,
    and Epstein J.A. of this court (in chambers) in
R. v. Melaku
(2011), 106
    O.R. (3d) 481, Crown counsel argued that this court has no jurisdiction to
    grant leave to appeal from the Ontario Court of Justices refusal to extend
    time for Ms. Opoku to appeal her conviction.  Ms. Opoku was previously informed
    of this jurisdictional issue and of the Crowns position, by letter from Crown
    counsel dated October 12, 2011.

[8]

Amicus
counsel was prepared to argue the jurisdictional issue
    raised by the Crown, as well as the merits of Ms. Opokus leave to appeal
    motion.  After discussion, it was determined that argument on the jurisdictional
    question would proceed and, depending on the outcome of that issue, the leave
    motion would be rescheduled for argument on the merits, if necessary.

Jurisdictional Issue

[9]

Three decisions of judges of this court (in chambers) are relevant to the
    determination of the jurisdictional issue raised by the Crown in this case.

[10]

First, in
Melaku
, Epstein J.A. (in chambers) ruled that this
    court does not have jurisdiction to hear an appeal from a decision dismissing a
    motion for an extension of time to appeal a conviction for an offence under
    Part I of the POA.  Justice Epstein reasoned, at para. 44, that a limited right
    of appeal in respect of such convictions is consistent with the scheme and
    objects of the POA and the intention of the legislature, which clearly
    contemplate a summary procedure, one that is efficient and expedient, when it
    comes to the progress of certain types of offences ... that are more regulatory
    than criminal in nature.

[11]

Next, in
Borges
, Juriansz J.A. (in chambers) addressed the question
    of whether this court has jurisdiction to hear an appeal from a decision
    dismissing a motion for an extension of time to appeal a conviction for an
    offence under Part III of the POA.  He noted that appeals of POA Part I
    offences, as in
Melaku
, are provided for under sections of the POA that
    differ from those pertaining to appeals of POA Part III offences and that the
    decision in
Melaku
turned on the particular wording of those different
    sections.

[12]

Justice Juriansz then considered the decision of Gillese J.A. (in
    chambers) in
R. v. Belanger
, [2006] O.J. No. 3453, the third decision of
    this court relevant to this motion.
Belanger
involved consideration of
    an appeal to this court from the judgment of the court, with leave, under s.
    131 of the POA.  Justice Gillese expressed the view that there is no reason to
    restrict the meaning of the word judgment in s. 131 so as to exclude
    decisions refusing to extend time.  She concluded, at para. 15, that the
    decision denying an extension of time to appeal was a judgment in respect of
    which leave to appeal may be sought under s. 131 of the POA.

[13]

However, Gillese J.A. also noted that in
R. v. Gonsalves
, [1995]
    O.J. No. 4046, a panel of this court queried this courts jurisdiction to hear
    an appeal from an order denying an extension of time to appeal in a summary
    conviction matter.  In light of
Gonsalves
, Gillese J.A. granted leave to
    appeal in
Belanger
but directed that the Crown in that case was at
    liberty to raise the jurisdictional question again before the panel hearing the
    appeal, if so advised.  As it happened, the appeal in the
Belanger
case
    did not proceed.

[14]

In
Borges
, Juriansz J.A. concluded that a decision at first
    instance under s. 85 of the POA denying a motion for an extension of time to
    appeal is not an appealable decision under s. 131 of the POA.  In his view, s.
    131 does not apply to a decision denying an extension of time to appeal;
    rather, s. 131 provides only for further appeals, with leave, from judgments
    made under s. 116 of the POA.  The core of his reasoning, at para. 10, was as
    follows:

As noted above, s. 131 is found in Part VII of the
    POA, which creates a two tier route for appeals to this court.  Section 131,
    dealing with appeals to this court for Part III offences, must be read in
    conjunction with s. 116, which provides for the initial appeal.  If s. 131 is
    construed literally in isolation, it would allow appeals from all judgments of
    the court, even those at first instance, thereby nullifying the two tier route
    of appeals that is clearly intended for Part III offences.  That construction
    would render s. 116 superfluous and provide two different routes to appeal POA
    judgments at first instance to the Court of Appeal.  For example, the original
    decision of the justice of the peace in this case would be a judgment of the
    court and so would be appealable directly to this court.  Such a result is
    inconsistent with the structure of the POA and the route of appeals it clearly
    provides for.  Section 131 must be construed in conjunction with s. 116.  The
    words the judgment of the court in s. 131 must mean the judgment of the court
    to which the initial appeal is taken under s. 116.

[15]

In this case,
amicus
counsel argues on behalf of Ms. Opoku that
    there is a conflict between the decisions in
Borges
and
Melaku
,
    on the one hand, and the decision in
Belanger
, on the other hand,
    regarding the jurisdiction of this court to entertain an appeal from a decision
    denying a motion for an extension of time to appeal a conviction on a POA
    offence.  In light of this conflict, she argues, Ms. Opoku should be granted
    leave to appeal Reinhardt J.s dismissal of her motion for an extension of time
    to appeal her conviction particularly,
amicus
counsel contends, as Ms.
    Opoku has an arguable appeal on the merits warranting leave to appeal.

[16]

I note, first, that there is no conflict between
Melaku
and
Borges
.
Melaku
concerned a situation in which leave to appeal a conviction on a
    POA Part I offence was sought.  The decision in
Melaku
stands for the
    proposition that this court does not have jurisdiction to hear an appeal from a
    decision dismissing a motion for an extension of time to appeal a conviction on
    a POA Part I offence.

[17]

In contrast,
Borges
involved a motion under s. 131 of the POA for
    leave to appeal the denial of an extension of time to appeal to the Ontario
    Court of Justice under s. 85(1) of the POA from a conviction on a POA Part III
    offence.  The jurisdictional issue raised in
Borges
, therefore, was
    distinct from the jurisdictional challenge in
Melaku
.

[18]

Belanger
also concerned a motion under s. 131 of the POA for
    leave to appeal an Ontario Court of Justice decision denying an extension of
    time to appeal what appears to have been a conviction entered on a POA Part III
    offence (driving while under license suspension)
[2]
.
    As I have said, in
Belanger
, Gillese J.A. expressed the view that such a
    decision is a judgment for which leave to appeal may properly be sought
    pursuant to s. 131 of the POA.

[19]

In
Belanger
, the Crowns right to raise the jurisdictional
    question again was expressly reserved by Gillese J.A. to the panel of this
    court hearing the appeal.  No panel adjudication on the jurisdictional issue
    took place because an appeal was not pursued.  In this sense, it is argued,
    there was no final determination of the jurisdictional issue in
Belanger
.

[20]

Be that as it may, jurisdiction was assumed by this court in
Belanger
,
    at least for the purpose of granting leave to appeal, subject to any ultimate
    jurisdictional ruling by a full panel of this court.  In these circumstances, I
    agree with
amicus
counsel that there is at least an arguable conflict
    between the decisions in
Borges
and
Belanger
.

[21]

In these circumstances, and given the history of this courts
    consideration to date of the jurisdictional issue raised on this leave motion,
    I conclude that the jurisdictional issue should be considered and determined by
    a panel of this court.  I therefore adjourn this leave motion to a panel of
    this court under the authority of s. 7(4) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, to be heard by a panel on the first available date to be
    set by the Registrar.

[22]

The necessary arrangements to set a hearing date for the leave motion
    before a panel of the court will be made by the Registrar.  I would ask that
    Ms. Book, as
amicus
, appear and participate in the leave motion before
    the panel, if possible.  The panel will be assisted by submissions from both
    counsel, as well as from Ms. Opoku.  I anticipate that counsel will wish to
    file written submissions with the panel on the jurisdictional issue and an
    appropriate timetable in which to do so may be settled by counsel with the
    Registrar.

Disposition

[23]

In accordance with these reasons, Ms. Opokus motion for leave to appeal
    is adjourned to a panel of this court for determination.

[24]

I thank both counsel for their assistance in this matter.

E.A. Cronk J.A.

[1]
Under s. 13.1(2) of the CAI Act, a person convicted of a first offence under s.
    13.1 is liable to a fine of not less than $10,000.  Nonetheless, a $5,000 fine
    was imposed in this case.

[2]
The reasons in
Belanger
do not indicate expressly that the proceeding
    was commenced by an information, as envisaged by Part III of the POA.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

111. (1)
Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138. (1)
Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a)       is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding two years; or

(b)       is guilty of an offence punishable on summary
    conviction.

CITATION:
R. v. S.P., 2011 ONCA 743

DATE: 20111125

DOCKET: C51110, C51116 and C51208

COURT OF APPEAL FOR ONTARIO

MacPherson, Simmons and Blair JJ.A.

C51110

BETWEEN

Her Majesty the Queen

Respondent

and

S.P.

Appellant

C51116

BETWEEN

Her Majesty the Queen

Respondent

and

F.S.

Appellant

C51208

BETWEEN

Her Majesty the Queen

Respondent

and

K.S.

Appellant

Véronique Henry, for the appellant S.P.

G. Dhaliwal, for the appellant F.S.

Paul Calarco, for the appellant K.S.

Andreea Baiasu, for the respondent

Heard and released orally: November 24, 2011

On appeal from the conviction entered on August 6, 2009, and
          the sentence imposed on September 14, 2009 by Justice David P. Cole of the
          Ontario Court of Justice.

ENDORSEMENT

[1]

The three appellants were jointly convicted of committing a gang sexual
    assault, along with two others who do not appeal.  S.P. and F.S.
    were also convicted of forcible confinement.  S.P. was also convicted of
    assault arising out of an entirely differently incident; he does not appeal
    from this conviction.

[2]

At the trial, it was not in dispute that the appellants and the
    complainant knew each other, were hanging out together in an abandoned apartment
    after school, and that four boys in succession had sex with the complainant.
    The central issue at the trial was whether the complainant had consented to
    have sex, or whether she was forcibly confined and sexually assaulted by the
    boys.  The trial judge held that the complainant had not consented, and that
    the boys did not have an honest belief in her consent.

[3]

On the honest but mistaken belief in consent issue, all three appellants
    contend that the trial judge ignored relevant evidence in making his
    credibility and reliability findings, misapplied the
W.(D.)
analysis,
    and applied different levels of scrutiny to, on the one hand, the complainants
    evidence and, on the other hand, the appellants evidence.

[4]

We do not accept these submissions.  The trial judge explicitly followed
    the
W.(D.)
analysis.  He carefully reviewed the evidence of all the
    witnesses and made supportable credibility findings relating to them.  His
    scrutiny of the various witnesses strikes us as even-handed.

[5]

In the end, the trial judge accepted the complainants evidence that she
    clearly told S.P. and F.S.  that she did not want to engage in sexual
    activity.  In addition, the trial judge rejected K.S.s evidence in its
    entirety, including his evidence suggesting that the complainant had agreed to
    have sex with him.  In doing so, he found that K.S. was part of a plan worked
    out in advance that all the boys would have sex with the complainant.  It was
    open to him to make this finding.

[6]

The appeals are dismissed.

J.C. MacPherson J.A.

Janet Simmons J.A.

R.A. Blair J.A.


CITATION:
R. v. Sahota, 2011
          ONCA 679

DATE:  20111102

DOCKET: C51908

COURT OF APPEAL FOR ONTARIO

Doherty, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jaswinder Sahota

Appellant

Erin Dann, for the appellant

B.G. Puddington, for the respondent

Heard and released orally:
October 28, 2011

On appeal from the conviction entered by a jury presided over
          by Justice Ricchetti of the Superior Court of Justice dated October 22, 2009
          and the sentence imposed on March 17, 2010.

ENDORSEMENT

[1]

There are two grounds of appeal:

·

Did the trial judge fail to adequately put the theory of the
    defence to the jury?

·

Did the trial judge err in his response to the jurys request for
    a copy of counsels closing addresses?

The Theory of the Defence

[2]

This was a single issue case  had the Crown proved beyond a reasonable
    doubt that the appellant knew that heroin was in his suitcase when he entered
    Canada.  The respective positions of the Crown and the defence were plain and
    obvious.  The evidence was simple and straightforward.  We have no doubt that
    the jury understood the positions of the parties and understood the application
    of the burden of proof, which was properly explained to them, to the only live
    issue in the case.  We also have no doubt that the jury would have no problem
    relating the evidence, particularly the defence evidence, to the question of
    the appellants knowledge.

[3]

The trial judge could have said more about the position of the defence
    and could have reviewed the evidence a second time in the context of putting
    the position of the defence.  In our view, however, neither was necessary to
    ensure that the accused received a fair trial.  This ground of appeal fails.

The Jurys Question

[4]

Shortly after the jury retired, it requested copies of the transcripts
    of counsels closing addresses.  The trial judge instructed the jury that
    transcripts could not be provided and told them they should rely on their
    recollections of counsels arguments.  This instruction was given with the
    support of both counsel.

[5]

The next morning while the jury was still deliberating, Crown counsel
    brought certain case law to the trial judges attention.  Crown counsel
    submitted that the case law suggested that the jury should have been told that
    they could listen to the addresses of counsel if they wished to do so.  Counsel
    for the appellant opposed any suggestion to the jury that they could listen to
    the closing addresses.  He was concerned about one particular part of the
    Crowns address.

[6]

The trial judge decided, based on the case law brought to his attention,
    that he should bring the jury back and instruct them that they could listen to
    counsels closing addresses if they wished to do so.  By the time the trial
    judge could carry out this decision, he was advised that the jury had arrived
    at a verdict.  The trial judge recalled the jury and before taking the verdict,
    told them that while transcripts of counsels arguments were not available, the
    reporter could read those arguments to the jury if they wished to hear them.  The
    trial judge asked the jury to retire and consider whether they wanted to listen
    to closing arguments before returning their verdict.  After briefly considering
    the matter, the jury returned to the courtroom, advised the trial judge that they
    no longer wished to hear the closing addresses and were prepared to return
    their verdict.  It returned a guilty verdict.

[7]

The trial judge should have told the jury in his initial response to
    their question that they could hear the closing addresses if they wished to do
    so.  The question on appeal is whether his correct response came too late in
    light of the jurys indication that it had reached a verdict.

[8]

Despite counsels able argument, we do not agree that because the jury
    indicated they had reached a verdict, the trial judge could not invite them to
    listen to counsels addresses before returning their verdict if they wished to
    do so.

[9]

The trial judge made it clear that the jury could listen to the closing
    addresses before reaching their verdict.  They saw no need to do so.  We will
    not speculate as to why they chose that course of action.  In the end, before
    the jury returned its verdict, the jury understood that it could listen to the
    addresses if it wished to do so.  The trial judge ultimately answered the
    jurys request correctly.  The timing of his answer did not result in any
    unfairness to the appellant.

[10]

The appeal is dismissed.

Doherty J.A.

R.G. Juriansz J.A.

G.J. Epstein J.A.


CITATION: R. v. Smith, 2011
          ONCA 748

DATE:  20111129

DOCKET: C51325

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Philip Smith

Respondent

Robin Flumerfelt, for the appellant

Frank Addario, for the respondent

Heard and released orally:
November 25,
          2011

On appeal from the acquittal entered by Justice R.E. Jennis of
          the Ontario Court of Justice dated October 29, 2009.

ENDORSEMENT

[1]

The trial judge determined that the combination of a tip from an
    untested informant that lacked any information as to the source of the
    tipsters alleged assertion that the respondent was a drug dealer, combined
    with the very brief observation of the respondent meeting with an unidentified
    person in the respondents vehicle, did not provide a reasonable basis upon
    which the police could arrest the respondent.  The trial judges analysis
    reveals no legal error and, in our view, does not reveal any material
    misapprehension of the evidence.

[2]

We agree with the trial judges characterization of the tip provided by
    the informant and the surveillance observations made by the police officer.
    The very short duration of the meeting between the respondent and the
    unidentified person in the respondents car, the only fact relied on by the
    police to support the inference that the meeting involved a drug transaction,
    was, on any reasonable view, a neutral fact.

[3]

It follows from the finding that the arrest was illegal that the
    subsequent search of the respondent and his vehicle were unconstitutional.  The
    search of the residence based upon a warrant founded on information flowing
    from the unconstitutional arrest and searches of the respondent and the vehicle
    was also unconstitutional.  These violations were compounded by the officers
    admitted and, in our view, serious breach of the respondents right to counsel
    at the time of his arrest.

[4]

We also reject the submission that the trial judge erred in excluding
    the evidence under s. 24(2). The trial judge conducted a s. 24(2) analysis that
    tracked closely the template in
R. v. Grant
.  We defer to that analysis.

[5]

The appeal is dismissed.

Doherty J.A.

M. Rosenberg J.A.

R.G. Juriansz J.A.


CITATION:
R. v. Stairs, 2011
          ONCA 734

DATE: 20111122

DOCKET: C52773

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wyatt Floyd Stairs

Applicant (Appellant)

Nicholas A. Xynnis, for the applicant (appellant)

Sarah Shaikh, for the respondent

Heard: November 21, 2011

On appeal from the conviction
          entered on July 2, 2010 by Justice L.P. Thibideau of the Ontario Court of
          Justice.

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that there was a basis upon which the trial judge could
    find that the police had articulable cause to detain the appellant for investigative
    purposes.  We would add, however, that while counsel at trial are to be
    commended for arriving at an agreed statement, some evidentiary context for the
    police actions would have been helpful.

[2]

The trial judges s. 24(2) analysis faithfully tracks
R. v. Grant
.
    We defer to that analysis.

[3]

The appeal is dismissed.


CITATION:
R. v. Suntok, 2011
          ONCA 733

DATE: 20111122

DOCKET: C51478

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Suntok

Appellant

Gregory J. Worobec, for the appellant

Peter Scrutton, for the respondent

Heard: November 21, 2011

On appeal from the sentence imposed
          on December 5, 2005 by Justice P.R. Currie of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

Even assuming there was no joint submission with respect to a weapon
    prohibition, we are satisfied that a ten-year prohibition under s. 110 is
    appropriate given the serious circumstances of the offence.

[2]

The lifetime ban under s. 109 is struck. The lifetime ban under s. 110
    is varied to 10 years.

[3]

Appeal allowed per this endorsement.


WARNING

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

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

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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION:
R. v. W.M., 2011 ONCA 685

DATE: 20111103

DOCKET: C51185

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.M.

Appellant

John H. Hale, for the appellant

Jennifer Mannen, for the respondent

Heard:
October 31, 2011

On appeal from the decision of the
          Summary Conviction Appeal Court dated September 30, 2009 by Justice Michael
          Z. Charbonneau, dismissing the appeal from the conviction entered on November
          8, 2007 by Justice J.F. Reginald Lévèsque of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We are not satisfied that the appellant has met the test for leave in
R.
    v. R.(R
.) (2008), 234 C.C.C. (3d) 463 (Ont. C.A.).

[2]

The appellants sole ground of appeal on the leave application is that
    the trial judges scrutiny of his evidence compared to the complainants
    evidence was uneven.  The principle of uneven scrutiny is well established and
    this appeal has no significance to the general administration of justice.

[3]

On the second branch of
R.(R.)
we see little merit to the
    argument.  We agree generally with the Summary Conviction Appeal judges
    analysis of this issue at paras. 9-10 of his reasons.

[4]

Leave to appeal is denied.


CITATION:
R. v. Youmans, 2011 ONCA 708

DATE: 20111114

DOCKET: C52583

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Jeffrey Youmans

Appellant

Michael J. Venturi, for the appellant

Catherine Mullaly, for the respondent

Heard and endorsed: November 10, 2011

On appeal from sentence imposed by Justice Patricia Hennessey
          of the Superior Court of Justice, dated April 1, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The only issue raised is the credit for pre-sentence custody. There were
    ample reasons in the record for giving only 1.5:1 credit, particularly the
    appellants  extensive record for the crimes of violence and history of
    violating release conditions, which made parole highly unlikely.

[2]

Accordingly, while leave to appeal sentence is granted, the appeal is
    dismissed.


CITATION:
Sabre
          Inc. v. International Air Transport Association, 2011 ONCA 747

DATE: 20111130

DOCKET: C53268

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin JJ.A. and Hackland J. (
ad hoc
)

BETWEEN

Sabre Inc. and Sabre International, Inc.

Plaintiffs (Appellants)

and

International Air Transport Association
,
          Lufthansa Systems AG and Lufthansa Systems Airlines Services GmbH

Defendants (Respondent)

Malcolm M. Mercer, Steven Mason and Moya Graham, for the
          appellants

Robert S. Harrison, Paul F. Monahan and Emmeline Morse, for
          the respondent

Heard:  November 14, 2011

On appeal from the judgment of
          Justice James M. Spence of the Superior Court of Justice, dated January 11,
          2011, with reasons reported at 2011 ONSC 206.

Doherty J.A.:

[1]

The appellants (herein referred to as Sabre) sued the International
    Air Transport Association (IATA) for breach of confidence in connection with
    IATAs alleged misuse of certain information provided to it by Sabre.  The
    evidence was detailed and made almost impenetrable by the host of acronyms used
    to describe various entities in the evidence.  In his reasons dismissing the
    claim, the trial judge has provided an excellent summary of the evidence and I will
    refer to the evidence in broader terms and only to the extent necessary to
    address the grounds of appeal.

[2]

Sabre operates a worldwide service that is referred to in the travel
    industry business as a global distribution system (GDS).  A GDS is a
    computerized system that allows travel agents and those using travel agency
    websites to access current airline scheduling and pricing information for the
    purpose of booking and purchasing airplane tickets.  Sabre has developed
    sophisticated databases that allow it to collect, assemble, select, compile,
    verify, structure, organize, and arrange ticket related information.

[3]

Sabre contracts for services with travel agencies around the world.  Generally,
    those agencies do not pay for the service.  However, individual airlines pay a
    fee for each ticket booked on their airline through Sabres services.  Sabres
    GDS generates millions of dollars in revenue for Sabre.

[4]

The booking data as obtained and assembled by Sabre through its GDS is
    commercially valuable information.  Sabre has used that information to create
    data products that provide information to those in the air travel industry.
    One of those data products is referred to as MIDT.  The sale of MIDT and other
    data products is also a significant source of income for Sabre.

[5]

IATA is a trade association of airlines that represents and services
    airlines around the world.  As of 2007, IATA had some 270 airline members
    around the world, including all of the major airlines.

[6]

IATA has established a passenger agency conference (the PAConf) made
    up of member passenger airlines.  The PAConf is responsible for the
    relationship between and among member airlines, accredited travel agents, and
    intermediaries, including GDS providers such as Sabre.  PAConf members adopt
    resolutions that govern IATA, member airlines, accredited agents, and GDSs.

[7]

IATA provides a number of services to its members, including the establishment
    and maintenance of billing and settlement plans (BSP) for the settlement of ticket
    transactions between airlines and accredited agents.  There are approximately
    87 BSPs operating around the world.  The BSPs assist airlines and accredited
    agents with the flow of data and the billing and settlement of payments
    associated with the purchase and sale of airline tickets.  Airlines are not required
    to participate in a BSP.  However, the service provided by a BSP is a valuable one
    for airlines as it significantly enhances the flow of payments between
    individual airlines and accredited agents.

[8]

When an accredited agent uses a GDS, such as the Sabre GDS, to book a
    flight, the GDS transmits data files containing information relating to the
    ticket sale to a data processing centre contracted by IATA.  The transmission
    is pursuant to a BSP agreement between the GDS and an individual BSP.  The data
    is sent on a daily basis by the GDS in a format established by IATA.  The data
    is referred to as a RET file and contains a daily compilation of all of the
    data referable to all ticket sales involving a particular GDS settled through a
    specific BSP.  The RET files contain only data for issued tickets, that is
    tickets actually paid for by the traveller.

[9]

IATA processes the data received from the GDSs and produces reports that
    are sent to the airlines and accredited agents.  The data reports sent to the
    airlines are referred to as HOT files and show all individual transactions made
    for that airline on a given day.  The files forwarded to a particular airline
    refer only to the tickets purchased from that airline.  Files forwarded to a
    particular accredited agent show all transactions for a given week by that
    accredited agent, but do not show any data relating to transactions involving
    other accredited agents in the BSP.

[10]

In the summer of 2005, IATA began to market to the airline industry data
    products referred to as PaxIS.  PaxIS is a comprehensive airline market
    intelligence database that uses information referable to ticket sales.  That
    information comes from the RET files accumulated through the information
    provided to IATA data processing centres by GDSs, including Sabre.  The PaxIS
    product includes data analysis, calibration and market intelligence, together
    with a web tool created for access to the PaxIS data.  Its purpose is to
    provide accurate market data to those in the airline industry.  The PaxIS
    product competes with the MIDT product sold by Sabre.

The Nature of the Dispute

[11]

In the lawsuit, Sabre contends that IATA breached its obligation of
    confidence with respect to Sabres information by using information provided exclusively
    for purposes relevant to the BSPs to create data products that would compete
    with Sabres existing data products.

[12]

Sabre acknowledges that individual passengers, airlines and travel
    agents have access to the same information in respect of individual
    transactions involving a particular airline, travel agent or passenger.  Sabre
    contends, however, that its compilation of all of the data relating to the
    individual transactions renders the totality of that information confidential,
    at least as regards IATA.

[13]

Clearly, the compilation of the data gives Sabres data value that data
    referable to the individual transactions would not have.  One of the questions
    for the trial judge was whether it also imbues that data with a confidentiality
    that data referable to an individual transaction would not have.

[14]

The trial judge, relying on
Lac Minerals Ltd. v. International Corona
    Resources Ltd.
, [1989] 2 S.C.R. 574 and
Cadbury Schweppes Inc. v. FBI
    Foods Ltd.
, [1999] 1 S.C.R. 142, identified the three elements that must be
    proved to establish a breach of confidence claim:

·

Did the information conveyed have the necessary quality of
    confidence?

·

Was the information communicated in confidence?

·

Was the information misused by the party to whom it was
    communicated?

[15]

As I read the reasons, the trial judge, at paras. 56-66, did not decide
    whether the information had the necessary quality of confidence.  He was
    prepared to assume that it did given his finding that the second requirement
    that the information be communicated in confidence  was not established by
    Sabre.  This appeal focuses on that finding made by the trial judge.

Sabres Arguments

[16]

Counsel for the appellant, in his submissions, accepts that the trial
    judge asked himself the correct question in determining whether the information
    was communicated in confidence.  The trial judge relied on the well known
    passage from
Coco v. A. N. Clark (Engineers) Ltd.
, [1969] R.P.C. 41 (Ch.).
    At p. 48, Megarry J. wrote:

It seems to me that if the circumstances are such
    that any reasonable man standing in the shoes of the recipient of the
    information would have realized that upon reasonable grounds the information
    was being given to him in confidence, then this should suffice to impose upon
    him the equitable obligation of confidence. [Footnotes omitted.]

[17]

Like other manifestations of the reasonable person analysis found in the
    common law, this inquiry is necessarily contextual and sensitive to the
    specific assembly of facts and circumstances presented by the evidence in an
    individual case.  The trial judges analysis correctly reflects the
    fact-sensitive nature of the analysis required.

[18]

In assessing whether IATA would reasonably have understood that the
    Sabre information was communicated in confidence, the trial judge placed
    considerable emphasis on the terms of the agreements governing Sabres
    participation in various BSPs.  Sabre first entered into a BSP agreement in
    1995 and has entered into many similar agreements since then.  The agreements
    contain a confidentiality clause obliging Sabre to keep the airlines
    information confidential.  There was no confidentiality clause in favour of
    Sabre.  The trial judge said, at para. 81:

In considering whether it had a duty of
    confidentiality to the TSPs [Sabre] in respect of the information it received
    from them,
IATA would reasonably consider that the absence of such a clause
    made it unlikely that the TSPs were entering into the agreement on the
    assumption of a duty of confidentiality unless there is some other reason that
    would make it likely that that assumption was held.  It would be relevant to
    this assessment that the parties to the ETSPAs [the BSP agreements] are
    sophisticated business companies which can reasonably be taken to be well
    acquainted with the use of confidential clauses in agreements for the
    disclosure of information.
[Emphasis added.]

[19]

In reference to the confidentiality clause, the trial judge said, at
    para. 80:

A reasonable person in the position of IATA when it
    was engaged in settling the agreement might well have considered that, in view
    of a clause dealing with confidentiality having been added to the draft
    agreement, if Sabre or British Airways had any confidentiality concerns on
    their own behalf they would have raised them as matters to be dealt with in the
    agreement.

[20]

Counsel for the appellant accepts that the terms of an agreement referable
    to the relationship between the parties giving rise to the sharing of
    information can constitute part of the factual matrix to be examined in
    deciding whether a reasonable person would understand that the information
    received came to that person in confidence:  see
Cadbury Schweppes
, at
    pp. 166-67.  Counsel submits, however, that the trial judge failed to consider
    the true nature of the BSP agreements, the actual parties to those agreements,
    and the purpose of those agreements.  He argues that the agreements were not made
    between Sabre and IATA, but were made between Sabre and the various airlines who
    were parties to any particular BSP.  Counsel contends that the agreements, properly
    understood, were not commercial contracts in the normal sense, but were rather
    technical intra-industry agreements designed to create narrow and clearly
    delineated zones of cooperation among airlines in what was in most other
    respects a fiercely competitive business.  Counsel further submits that the
    agreements had nothing to do with the use of the information provided pursuant
    to those agreements outside of the operation of the BSPs.

[21]

The trial judge did not make the error attributed to him in this
    submission.  With respect, counsels interpretation of the BSP agreements favours
    form over substance.  IATA was intimately involved in the creation and
    operation of the BSPs from the outset.  IATA was also directly involved in the
    creation of the relevant agreements, to the extent that even on the evidence of
    one of the appellants witnesses, IATA lawyers probably drafted the
    confidentiality clause.  Prior to 1999, the agreements were executed by IATA on
    behalf of the participating airlines.  After 1999, when IATA took over direct
    day-to-day operation of the BSPs, the agreements were executed directly by a
    representative of IATA.  Either way, it is accurate to describe IATA as a party
    to the agreements.

[22]

It was open to the trial judge to take the view of the BSP agreements
    that he did.  On that view, the existence of a unilateral confidentiality
    clause in favour of the participating airlines was properly regarded by the
    trial judge as an important consideration in determining whether IATA would
    reasonably have regarded the information provided by Sabre pursuant to those
    agreements as confidential between Sabre and IATA.

[23]

I would add that even on Sabres view of the nature and scope of the BSP
    agreements, those agreements undercut Sabres confidentiality claim.  As I
    understand Sabres position, it acknowledges that individual airlines could use
    Sabres data for purposes other than the BSP without infringing any
    confidentiality obligation.  That acknowledgement seems to me to make it
    difficult to assert that IATA should have reasonably regarded the information
    in its hands to be confidential, even though the information was not
    confidential in the hands of the individual IATA members.

[24]

Counsel next submits that the trial judge erred in law in failing to
    place a heavy onus on IATA to rebut the conclusion that the information was
    imparted in confidence.  Counsel relies on a passage from
Coco
, at p.
    48:

In particular, where information of commercial or
    industrial value is given on a business-like basis and with some avowed common
    object in mind, such as a joint venture or the manufacture of articles by one
    party for the other, I would regard the recipient as carrying a heavy burden if
    he seeks to repel a contention that he was bound by an obligation of
    confidence.

[25]

That passage was cited with approval in the reasons of both Sopinka J., at
    pp. 612-13, and LaForest J., at p. 642, in
Lac Minerals
.  Counsel
    describes this passage as doctrine, declaring as a matter of law that the
    legal or ultimate burden moves from the plaintiff to the defendant where
    certain factual prerequisites are established.

[26]

I do not read the passage as intending to move the legal burden of
    proof.  In my view, an approach that would shift the burden upon certain facts
    being established would undermine the fact-sensitive inquiry demanded by the
    determination of whether a reasonable person in the circumstances would
    understand that the information was given in confidence.  The evidentiary
    weight to be given to any particular fact or constellation of facts must depend
    on the trier of facts assessment of the entirety of the factual picture.  To
    regard certain facts as always shifting the legal burden of proof is to distort
    the reasonable person inquiry.

[27]

I think Megarry J. in
Coco
was describing his assessment of the
    impact of certain important facts on the confidentiality claim made in the case
    before him.  His Lordship was satisfied that the value of the information, the
    business-like basis upon which the information was provided, and the joint
    venture nature of the discussions in which the information was provided, combined
    to place a heavy evidentiary burden on the defendant.  Megarry J. was
    responding to the evidence he heard and the nature of the confidentiality claim
    made in that case.  He was not pronouncing any legal doctrine.  Nor do the
    references to the passages from
Coco
in
Lac Minerals
elevate
    Megarry J.s comments to the status of legal doctrine.

[28]

The facts of this case, particularly the nature of the information in
    issue, the prospective nature of the information-sharing contemplated by the
    parties, and the existence of an agreement speaking directly to
    confidentiality, make this a very different case from
Coco
.  It is not
    surprising that the analysis of the relevant evidence in this case bears little
    similarity to the analysis of the relevant facts in
Coco
.

[29]

Counsel next argues that the trial judge erred in law in imposing a
    requirement that Sabre clearly communicate to IATA the assertion that its
    information provided through the BSP agreement was given in confidence.  The
    trial judge said, at para. 71:

Because the focus is on the reasonable understanding
    of the person to whom the information is being imparted, that party will not be
    found to have breached any obligations of confidence if the disclosing party
    does not, through words or conduct, clearly communicate that the information is
    to be held in confidence or does not communicate that the subsequently
    complained of use was not permitted.

[30]

I agree that if the above-quoted passage is understood as a general
    statement of a legal principle applicable in all cases, the statement is
    somewhat overbroad.  I do not read it that way.  I understand the passage to be
    directed at the fact situation encountered by the trial judge.  The trial judge
    was faced with a case in which all parties were sophisticated business entities.
    They were aware of the nature of the information being provided and the
    potential commercial use of that information, and they had turned their minds
    specifically to the question of the confidentiality of the information.
    Sabres failure to assert, by word or conduct, any confidentiality claim was
    part of the factual matrix.  It was open to the trial judge, as the trier of
    fact, to give that silence considerable weight in deciding whether Sabre had
    shown that IATA would reasonably understand that the information conveyed to it
    by Sabre was conveyed in confidence.

[31]

Counsel next submits that the trial judge erred in holding that no duty
    of confidence could arise unless a reasonable person would have in mind the
    particular misuse of the information which ultimately led to the dispute.
    Counsel submits that this requirement doomed Sabres case as PaxIS did not even
    exist when the information in issue began to flow from Sabre to IATA.

[32]

Having referred to the essential elements of a breach of confidence claim
    in the abstract, the trial judge put them in terms of the specifics of this
    case, at para. 74:

In the present case, the test may be stated as
    follows:  would IATA, on entering into the ETSPA [the BSP agreements] have
    realized, if it were acting reasonably, that the information which the [TSP]
    participants [Sabre] would henceforth be transmitting to the DPC [the data
    processing centre] be given on the confidential basis alleged by Sabre,
i.e.
that the information was to be used only by the DPC and only for billing and
    settlement purposes?

[33]

I think the trial judge captured the nature of the claim.  He did not
    impose an obligation on Sabre to show that IATA had in mind the use of the information
    to compete with Sabres data products at the time it obtained the information.
    As the trial judge observed, the outcome of this case depended on whether a
    reasonable person would understand that Sabres information was to be used only
    in the context of the BSPs.

[34]

Counsel for Sabre has industriously advanced the arguments on behalf of
    Sabre.  Each focuses on an individual component of the trial judges analysis.
    Appellate review must focus on the analysis as a whole and must have regard to
    the nature of the case placed before the trial judge.

[35]

The legal principles were not in dispute in this case.  The elements of
    the claim were not in dispute.  Most of the primary facts were not in dispute.
    The question, essentially a factual one, was whether a reasonable person in
    IATAs position would in all the circumstances appreciate that the information from
    the ticket sales was given to it in confidence by Sabre.  The trial judge
    reviewed at length the several factors relevant to that question.  It was for
    him to decide the relative significance of the various factors.  His findings reflect
    a reasonable assessment of those factors.  This court cannot redo that exercise.
    I would not interfere with the trial judges finding.

[36]

Sabre raised other grounds of appeal. However, as I would not interfere
    with the trial judges finding that the evidence was not imparted in confidence,
    it is unnecessary for me to address those other arguments.  I do not propose to
    do so.

[37]

I would dismiss the appeal.  IATA is entitled to its costs of the appeal
    fixed at $40,000, inclusive of disbursements and all applicable taxes.

RELEASED:
DD  NOV 30 2011

Doherty J.A.

I agree John I. Laskin
    J.A.

I agree Hackland J. (
ad
    hoc
)


CITATION:
Sabourin and Sun Group of
      Companies v. Laiken, 2011 ONCA 757

DATE: 20111130

DOCKET: M40696 (C54546)

COURT OF APPEAL FOR ONTARIO

Sharpe J.A. (In Chambers)

BETWEEN

Sabourin and Sun Group Companies

Plaintiff/Defendant by Counterclaim

and

Judith Laiken

Defendant/Plaintiff
          by Counterclaim
(Respondent)

AND BETWEEN

Judith Laiken

Defendant/Plaintiff
          by Counterclaim
(Respondent)

and

Sabourin and Sun Group of Companies, Peter
          Sabourin, Sabourin and Sun Canada Inc., Sabourin and Sun
          Inc., a Bahamas Corporation, Sabourin and Sun BVI Trust,
          and Intervest Direct Inc., 1077472 Ontario Limited,
          Greg Irwin, Sabourin and Sun Inc. and 1061971 Ontario Limited

Defendants to
          Counterclaim

P.F.
          Schindler, for the moving party Peter Carey

Kevin D. Toyne, for the responding
          party Judith Laiken

Heard:
November 28, 2011

Sharpe J.A.:

[1]

The appellant, a lawyer, moves for a stay of an order finding him in
    contempt of court. The contempt finding arises from a
Mareva
injunction
    (the order) obtained by the respondent against the appellants client. After
    the order freezing the clients assets on strict terms had been made, the
    appellant received a cheque from his client for a very substantial sum. The
    appellant deposited the cheque in his trust account. He deducted his
    outstanding fees and, because he believed that following his clients
    instructions to use the remainder to settle some debts would violate the order,
    he instead returned the balance to the client.

[2]

The motion judge found that the appellants conduct constituted contempt
    of the order which,
inter alia
, ordered any person with knowledge of the
    order to prevent the withdrawal of monies held in the clients name in a trust
    account. The appellant seeks to reverse that finding, essentially on the grounds
    that the motion judge erred in her interpretation of the order and that the
    order was not sufficiently clear to forbid the course of action he took.

[3]

Upon giving her reasons for finding the appellant in contempt, the
    motion judge adjourned the matter pursuant to rule 60.11 (1), (5) and (8):

CONTEMPT ORDER

Motion
    for Contempt Order

60.11
(1)  A contempt
    order to enforce an order requiring a person to do an act, other than the
    payment of money, or to abstain from doing an act, may be obtained only on
    motion to a judge in the proceeding in which the order to be enforced was made.

Content of Order

(5)  In disposing of a motion under
    subrule (1), the judge may make such order as is just, and where a finding of
    contempt is made, the judge may order that the person in contempt,

(a)
    be imprisoned for such period and on such terms as are just;

(b)
    be imprisoned if the person fails to comply with a term of the order;

(c)
    pay a fine;

(d)
    do or refrain from doing an act;

(e)
    pay such costs as are just; and

(f)
    comply with any other order that the judge considers necessary,

and may grant leave to issue a writ
    of sequestration under rule 60.09 against the persons property.

Discharging or
    Setting Aside Contempt Order

On motion, a judge may discharge, set aside, vary or give directions in
    respect of an order under subrule (5) or (6) and may grant such other relief
    and make such other order as is just.

[4]

The motion judge explained what she was doing as follows:

As a result, the parties
    shall appear before me for a hearing during the week of December 19, 2011 at
    361 University Avenue. Mr. Careys attendance is required at the hearing
    although he is not obliged to call any evidence or testify. At that hearing, if
    he wishes, Mr. Carey shall have the opportunity to present any further
    evidence, including
viva voce
evidence, and make any submissions that he
    wishes to make. The plaintiff shall also have the opportunity to file any
    further material, call evidence, cross-examine at the hearing, and make
    submissions. I shall take all of this into account in making any order under rule
    60.11(5) and (8) of the
Rules of Civil Procedure
.

[5]

The appellant submits that it would be appropriate for this court to
    stay the proceedings at this stage and to entertain his appeal from the
    contempt finding before allowing the motion judge to make her final disposition
    pursuant to rule 60.11(5).

[6]

For the following reasons, I am unable to accept the appellants
    submission.

[7]

In my view, it would be premature to grant a stay at this point
    in the contempt proceedings. A stay would interrupt the Superior Court proceedings
    and run a serious risk of fragmenting any appeals to this court. If the appeal
    from the contempt finding were to succeed, that would end the matter, but if it
    failed, the appellant would still have a right of appeal from any sanction the
    motion judge imposed. Appeals that interrupt a proceeding and risk a fragmented
    appeal are almost invariably discouraged. It is almost always preferable and
    more efficient for appeals to await the completion of proceedings in the trial
    court so that a complete record and disposition is presented on appeal: see,
    e.g.
Laudon v. Roberts
, 2009 ONCA 383, 308 D.L.R. (4
th
) 422,
    at para. 25:
The time-honoured practice of reserving to
    the conclusion of trial the appeal of various rulings made during the
    proceedings is sound in that it preserves court time and costs.

[8]

The appellant cites
Bell ExpressVu Ltd. Partnership v. Torroni,
2009 ONCA 85, 304 D.L.R. (4
th
) 431, as a case where this court
    appears to have entertained an appeal from a finding of contempt before the
    sanction was imposed: see para. 19. However, as I read that case, the court
    entertained the appeal without any consideration of the point at issue here.
    Accordingly, I do not view
Bell ExpressVu
as authority to depart from
    the established rule against hearing appeals on a piecemeal basis or as
    authority for the proposition that appeals from contempt findings should
    ordinarily be heard before the sanction has been imposed.

[9]

To stay the contempt proceedings at this stage would also interfere with
    the design of the commonly followed procedure that is permitted, if not
    prescribed, by rule 60.11 (5) and (8), of dividing a contempt proceeding into
    two phases, the first dealing with the issue of whether the party is in contempt
    and the second dealing with the issue of sanction. Until the order has been
    made under 60.11 (5), the contempt proceedings have not come to their final
    conclusion. Until the sanction has been imposed, the judge has not expressed
    his or her final view of the case. It is clear from the passage quoted above
    from the motion judges reasons that she has not yet completed her adjudication
    of the contempt proceedings. Indeed, her specific reference to rule 60.11 (8)
    indicates that she remains open to a wide range of possible outcomes. Until she
    completes her work, this court will not know if the motion judge considered the
    contempt to be serious or trivial or how the judge intended to use the sanction
    of contempt to bring about compliance or to punish the contemnor. These are
    elements integral to the nature and character of the contempt proceeding and
    essential to an appellate courts full appreciation of the disposition under
    appeal.

[10]

Finally, even if I were to approach the matter solely from the
    perspective of applying the test for a stay, it is my view that the appellants
    request for a would stay fail.

[11]

I will assume for these purposes that the appellant can satisfy the
    first branch of the test and show that there is, as required by the
RJR
    MacDonald Inc. v. Canada
[1994] 1 S.C.R. 311 test, a serious issue for this
    court to decide, or, in the words of Finlayson J.A. in
Vassallo v. Mulberry
    Street Ltd.
(1995), 83 O.A.C. 386 at para. 15, that the merits of the
    appeal deserve the attention of the full court.

[12]

The appellant cannot, however, demonstrate either irreparable harm or
    that at this stage, the balance of convenience favours a stay.

[13]

Until the motion judge makes her order under rule 60.11 (5), we do not
    know what harm the appellant will suffer as a result of the finding of contempt
    and so we cannot say that the harm is irreparable. I do not accept the
    appellants submission that the mere risk that he will be sent to jail is
    sufficient to demonstrate irreparable harm. Indeed, the respondent has stated
    that she will not seek immediate committal at the sentencing hearing. If, at
    some point, the sanction of imprisonment is imposed, the appellant can move
    immediately for a stay and the court can then assess the merits of the stay
    application with a complete picture of the peril he faces. This would follow
    the practice used in criminal appeals where an appellant cannot seek judicial
    interim release until the appeal from conviction is heard until sentence has
    been imposed Furthermore, the appellant will almost certainly have an advantage
    over most criminal appellants as it is very unlikely that in a civil contempt
    proceeding he will be taken immediately to jail without the opportunity to seek
    a stay.

[14]

Nor, in my view, can the appellant show that the balance of interest
    favours granting a stay at this point in the proceedings. The balance of
    convenience can only be assessed in the light of the sanction the appellant
    seeks to avoid on appeal. And, as I have explained, the interests of justice
    strongly favour postponing the stay decision until after the motion judge has
    decided upon the appropriate sanction.

[15]

Accordingly, the motion for a stay is dismissed with costs to the
    respondent fixed at $3,000 inclusive of disbursements and HST.

Robert J. Sharpe J.A.

RELEASED: November 30, 2011