COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Baig, 2022 ONCA 129

DATE: 20220211

DOCKET:
    M51749

Tulloch
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Responding Party

and

Nicholas
    Baig

Moving Party

Nicholas Baig, acting in person

Michael Crystal, appearing as duty
    counsel

Nicole Rivers, for the responding party

Heard: November 1, 2021 by video conference

REASONS
    FOR DECISION

[1]

This is a motion for an extension of time for an
    appeal against conviction. Nicholas Baig pleaded guilty to second-degree murder
    for the murder of his wife who was, at the time, nine months pregnant with the
    couples unborn child.

[2]

In his motion for an extension of time, Mr. Baig
    states that he had previously understood that he could not appeal a conviction
    since he pleaded guilty and that he only recently became aware that it was
    possible to strike a guilty plea. He now seeks an extension of time to file a
    conviction appeal, as there was evidence from his case that was not presented
    during his court proceedings and on which basis he would not have pleaded
    guilty.

[3]

At the conclusion of oral arguments, I dismissed
    the motion with reasons to follow. These are my reasons.

Background Facts

[4]

The case was originally set for trial but
    eventually proceeded by way of a guilty plea to the charge of second-degree
    murder. The underlying facts which gave rise to the charge were set out in an
    agreed statement of facts which was read out by the Crown prosecutor. The
    underlying facts are set out below.

[5]

Mr. Baig and his wife, Arianna Goberdhan were
    married on November 6, 2016. During the marriage, their relationship
    was very volatile, resulting in Ms. Goberdhan moving back to live with her
    parents in January 2017. At some point between November 2016 and March 2017,
    Mr. Baig and his wife engaged in a series of hostile text message exchanges
    during which Mr. Baig called Ms. Goberdhan a skank, bitch, whore and
    slut. During the text message exchange, Mr. Baig also said to his wife:

I really dont want to be married to you. I
    dont want nothing to do with you or this baby anymore. I hope to God you stop
    breathing while you drive. And youre a lying whore and I hope you die
    delivering.

[6]

Sometime on April 1 or 2, 2017, Mr. Baig and Ms.
    Goberdhan engaged in a very heated argument, resulting in Mr. Baig breaking
    into Ms. Goberdhan parents home. In the process, Mr. Baig broke the door that
    led from the garage into the residence and attempted to gain entry to the home.

[7]

On April 7, 2017, Ms. Goberdhan told family and
    friends that she was going to pick Mr. Baig up at work and give him a drive to
    his home. She indicated that she was going to take her fathers car so that she
    would have an excuse to leave that residence. In fact, Mr. Baigs brother drove
    him home and they arrived home at around 5:50 p.m.

[8]

Ms. Goberdhan attended at Mr. Baigs home around
    6:30 p.m. that night. At approximately 9:43 p.m., Durham Regional Police
    received a 911 call from Ms. Goberdhans cell phone. Ms. Goberdhan did not
    speak directly to the 911 operator, but the operator could hear her saying
    something to the following effect: you have to let me go. You cant keep me
    here. I have to go home. The call then ended abruptly.

[9]

Uniformed police officers attended the
    residence. Mr. Baigs brother also arrived at the residence and provided them
    with access to the home. Ms. Goberdhan was found upstairs. Emergency
    Medical Services (EMS) personnel arrived at the residence and attended to Ms.
    Goberdhan. They noted she had what appeared to be multiple stab wounds to her
    head, face, neck, and body. The EMS personnel were unable to locate any vital
    signs and placed a call to a doctor who pronounced Ms. Goberdhan deceased. Her
    body was removed from the house later that night.

[10]

Ms. Goberdhan had no defensive injuries. She was
    stabbed seven times in the neck and head area. She was stabbed seven times in
    the torso, and she was stabbed three times in the arm. According to the
    pathology report, her unborn baby was fully developed and healthy and did not
    have any external injuries to the body.

[11]

Mr. Baig was charged with first-degree murder.
    After a very extensive period of pre-trial hearings, Mr. Baig entered a guilty
    plea to the charge of second-degree murder. Throughout the court process, Mr.
    Baig was represented by experienced senior counsel who specializes in criminal
    law.

[12]

Prior to the plea, counsel for Mr. Baig
    indicated to the court that he had taken time to explain to Mr. Baig his rights
    and obligations pertaining to a guilty plea, in accordance with s. 606(1.1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46. The lawyer further indicated
    that Mr. Baigs plea was voluntary and without threats or duress.

[13]

The guilty plea was entered on January 19, 2019,
    based on an agreed statement of facts. Mr. Baig accepted the facts as read into
    evidence that he murdered his wife. He accepted that he understood and
    appreciated that he had a right to a trial, that he had a right to testify,
    that he had a right to face his accusers, and that he had a right to require
    the Crown to prove the case against him beyond a reasonable doubt. Mr. Baig
    expressly waived his right to a trial. After the agreed statement of facts was
    read into evidence, Mr. Baig agreed to the facts as read, and the court
    accepted the guilty plea.

Issues

[14]

Mr. Baig now seeks to appeal his conviction and
    sentence on the basis that he was confused and unaware of what he was doing. Specifically,
    he submits:

1.

Due to his lack of knowledge of the legal
    system, he was under the impression that since he pleaded guilty, he could not
    appeal his conviction.

2.

It was only recently brought to his attention
    that there are grounds on which to strike a guilty plea.

3.

He only recently began reviewing all the
    documents in his possession and came across information, including additional
    official evidence that was never presented in his initial court proceedings
    and that leads him to believe his guilty plea was uninformed.

4.

It has been extremely stressful for him in
    custody due to the COVID-19 pandemic and the disruptions that it has created
    within the institution.

Analysis

[15]

Mr. Baig brings this motion pursuant to s.
    678(2) of the
Criminal Code
, seeking to extend the time within which
    to file a notice of appeal to his conviction for second-degree murder.

[16]

In deciding whether to grant a motion for an extension
    of time to file a notice of appeal, I am guided by the following guiding
    factors set out in
Enbridge Gas Distribution Inc. v. Froese
, 2013 ONCA
    131, 114 O.R. (3d) 636, at para. 15 and
R. v. J.C.M
. (2002),
    162 C.C.C. (3rd) 233 (Ont. C.A.), at para. 20:

1.

Whether the applicant has shown a
bona fide
intention to appeal within the appeal period;

2.

Whether the applicant has accounted for or
    explained the delay; and

3.

Whether there is merit to the proposed appeal.

[17]

The overriding principle is the justice of the
    case, and whether the applicant has demonstrated that justice requires that the
    extension of time be granted:
Enbridge Gas
, at para. 15;
J.C.M
.,
    at para. 21.

[18]

I am not satisfied that Mr. Baig has shown that
    he had a
bona fide
intention to appeal within the specified appeal
    period, which would have been 30 days after the completion of his guilty plea
    and sentence. Mr. Baig entered his guilty plea on January 19, 2019. Now, more
    than two and a half years later, he brings this motion for an extension of
    time. In addition, he was charged for the offence in April 2017, over four
    years ago.

[19]

Mr. Baig has not provided any reasonable basis
    or adequate explanation as to why he delayed initiating his appeal. His only
    explanation is that he did not know that he could appeal a guilty plea until
    very recently. However, he has not established that he brought this motion
    within a reasonable time of becoming aware that he could appeal a guilty plea.

[20]

In my view, there is also no merit to Mr. Baigs
    claim that he entered an uninformed guilty plea and was ignorant of the legal
    system. There is no issue that a guilty plea must be voluntary, unequivocal,
    and informed:
R. v. Davis
, 2020 ONCA 326, at para. 10. A
    plea is an informed one if the accused is aware of the effects and consequences
    of the plea. On the record before me, I am not satisfied that Mr. Baig was not
    properly informed before entering his guilty plea, or that his decision to plead
    guilty was not voluntary and unequivocal. Throughout the proceedings, Mr. Baig
    was represented by experienced senior counsel, who conducted a very extensive
    pre-trial of the case. Mr. Baigs counsel also represented to the court, on the
    record, that he had very extensive consultations with Mr. Baig in preparation
    for trial and his subsequent decision to enter a guilty plea.

[21]

While there are cases in which our court and
    other appellate courts have granted an extension of time to allow an appellant
    to file an appeal seeking to set aside a guilty plea notwithstanding very
    lengthy unexplained delays, these tend to be cases in which there are
    unexpected consequences of the conviction, and there is good reason to doubt
    the validity of the conviction:
J.C.M
., at para. 24; see also
R.
    v. Brooks
, 2020 ONCA 605. For example, this may be the case where there
    are immigration consequences for non-citizens who receive incarceration periods
    of six months or more after entering a guilty plea. In these cases, the
    appellant was either uninformed or misinformed as to collateral immigration
    consequences of the guilty plea or sentence.

[22]

Mr. Baigs situation, however, does not fall in
    this category of cases. This is a case in which there was strong evidence of
    animus against the deceased by the applicant. The relationship was volatile.
    There was evidence of previous violence used against the deceased and her
    family on the part of Mr. Baig, just days before her murder. Mr. Baigs actions
    leading up to Ms. Goberdhans death were violent, and intimidating. At trial,
    there was no issue that it was Mr. Baig who stabbed and caused the death of
    both Ms. Goberdhan and their unborn child.

[23]

The trial judge was very thorough in her
    allocution and in satisfying herself that the appellant was pleading guilty
    voluntarily, and that he fully understood the consequences of such a guilty
    plea. The following meticulous exchange at the time of the plea highlights the
    transparency of the process:

[DEFENCE COUNSEL]: He pleads not guilty to the
    charge as read, but guilty to the lesser and included offence of second-degree
    murder.

CLERK REGISTRAR: Harken to your plea as the
    court hath recorded it. You pled not guilty to Count 1 as charged but guilty to
    the included offence of second-degree murder.

THE COURT: Mr. Baig.

NICHOLAS BAIG: Yes.

THE COURT: I want to have a conversation with
    you. You can have a seat.

NICHOLAS BAIG: Yeah.

THE COURT: Id like you to confirm what your
    counsel just indicated to the court, and that is that you are entering a plea
    of guilty to second-degree murder. Is that right?

NICHOLAS BAIG: Yes, maam.

THE COURT: Do you understand that you have the
    right to plead not guilty and have a trial?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading
    guilty you are giving up your right to a trial?

NICHOLAS BAIG: Yes. I do.

THE COURT: Are you making this guilty plea
    voluntarily?

NICHOLAS BAIG: Yes.

THE COURT: Because its what you want to do?

NICHOLAS BAIG: Yes.

THE COURT: It is your choice?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading
    guilty you are admitting the essential elements of the offence, specifically,
    that you killed the victim?

NICHOLAS BAIG: Yes.

THE COURT: That you intended to kill her or to
    cause her bodily harm that you knew was likely to cause death and was reckless
    as to whether death ensued or not?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading
    guilty you are admitting your guilt and that you will be sentenced?

NICHOLAS BAIG: Yes.

THE COURT: And do you understand that the
    ultimate decision as to what your period of parole ineligibility will be is up
    to me?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that the
    mandatory sentence for the offence to which youve pleaded guilty is life
    imprisonment and the only issue to be determined by the court is when you will
    be eligible to apply for parole?

NICHOLAS BAIG: Yes.

THE COURT: I know that theres no agreement
    between the Crown and your counsel but you understand that whatever their
    position is, I have an unfettered discretion bound only by the maximum and
    minimum in the
Criminal Code
to impose the period of parole
    ineligibility that I determine to be appropriate?

NICHOLAS BAIG: Yes.

THE COURT: Okay. In all of those circumstances
    I'm satisfied that the plea is voluntary as required to be a valid guilty plea
    and I accept your plea of guilty, Mr. Baig

[DEFENCE COUNSEL]: Yes. Thank you, Your
    Honour. And, I just wanted to indicate that I have reviewed everything that is
    going to be presented for the facts of the case with Mr. Baig and Ive
    indicated, and weve had lengthy discussions, I'm certainly content that
    everything that is going to be presented is admissible

[DEFENCE COUNSEL]: And just to confirm again,
    Your Honour, Mr. Baig has reviewed all of this [exhibits admitted] and was
    certainly content that it be deemed admissible on the sentencing hearing.

[24]

It is clear from the above excerpt that the trial
    judge was very thorough, and that Mr. Baig and his trial counsel were both very
    responsive to the trial judges inquiry.

[25]

I adopt the words of Carthy J.A. in
R. v.
    Closs
(1998), 105 O.A.C. 392 (C.A.), at para. 8:

It is my view that such orders should be made
    only in exceptional circumstances where there is a real concern that an
    injustice may have occurred. There are many negative consequences of having a
    criminal conviction and it cannot be expected that these will all be explained
    to an accused prior to a plea; nor should the convicted person expect the
    judicial system to provide a fresh start when a surprising consequence of the
    conviction is encountered. We must have finality except where the demands of
    justice dictate otherwise.

[26]

Recently, the majority of the Supreme Court in
R.
    v. Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696 reiterated this principle, at
    para. 65:

The onus is on a person who appeals a
    conviction on the ground of an invalid plea to show that the plea was in fact
    invalid:
T. (R.)
, at p. 519. The integrity of the plea bargaining
    process and the certainty and order which are essential to the criminal process
    depend on the finality of guilty pleas. The benefits associated with guilty
    pleas will be lost and the very functioning of the criminal justice system will
    be threatened if such pleas are set aside lightly. Accordingly, there is a
    considerable public interest in preserving the finality of guilty pleas, and
    the burden of showing that a guilty plea was invalid falls to the accused.

[27]

Having reviewed the record in this case, I am
    not satisfied that Mr. Baig has established that he formed a
bona fide
intention in the required period, that there is a reasonable explanation for
    the delay, or that there is any merit to the proposed appeal. Furthermore,
    there is no real concern that an injustice may have occurred. In contrast,
    granting the requested motion after this significant length of time could cause
    real prejudice to the deceaseds family, who will be forced to re-live the
    ordeal of her death and the death of her unborn child all over again, and be
    denied closure to this very tragic and sad chapter of their lives.

[28]

Accordingly, the motion is denied.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bakhsh v. Merdad, 2022 ONCA 130

DATE: 20220215

DOCKET: C69201

van Rensburg and Roberts JJ.A. and
    Tzimas J. (
ad hoc
)

BETWEEN

Rana Abdulrahman Bakhsh

Plaintiff
(Respondent)

and

Khalid Bin Abdul-Aziz Abbas
    Merdad

Defendant
(Appellant)

Steven Benmor and Misha Leslie, for the
    appellant

W. Douglas R. Beamish, for the respondent

Heard: November 26, 2021

On appeal
    from the order of Justice Shaun OBrien of the Superior Court of Justice dated
    February 19, 2021.

REASONS
    FOR DECISION

[1]

This appeal involves a dispute over a
    condominium property located in Ontario (the condominium property). The
    parties are former spouses who were married and resided, and whose marriage was
    annulled, in Saudi Arabia. The central issue is whether the claim by the
    respondent, Ms. Bakhsh, in relation to the condominium property, is an
    equalization claim under the
Family Law Act
, R.S.O. 1990, c. F.3 (
FLA
),
    as the appellant, Mr. Merdad, argues, or a resulting or constructive trust
    claim as Ms. Bakhsh pleaded.

[2]

In Ms. Bakhshs statement of claim, she has
    claimed, among other things, a declaration of her 100% beneficial interest in
    the condominium property whose legal title is in Mr. Merdads name. In
    response, Mr. Merdad brought a motion under rr. 21.01(1)(a) and (3) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, to dismiss the action on the
    bases that the court has no jurisdiction over the subject matter of the action,
    or that it is
res judicata
or statute-barred.

[3]

Mr. Merdad argued that Ms. Bakhshs Ontario claim
    is an equalization claim. As such, it was precluded because: Ontario has no
    jurisdiction over this matter that is governed by Saudi Arabian law and should
    have been heard there; the parties property issues had already been decided in
    their annulment proceedings in Saudi Arabia, making this claim
res judicata
;
    and, in any event, Ms. Bakhshs equalization claim is statute-barred as it was
    not commenced within the applicable two-year limitation period under s. 7(3)(a)
    of the
FLA
. Mr. Merdad asked in the alternative that the proceedings
    be transferred to the family law list. The motion judge refused Mr. Merdads motion
    to dismiss Ms. Bakhshs action, transferred it to the

family law list,
    and granted Ms. Bakhsh $10,000 as her costs of the motion.

[4]

Mr. Merdad repeats the same arguments on
    appeal about the characterization of Ms. Bakhshs claim as a statute-barred
    equalization claim, which the motion judge rejected. We see no error that
    warrants appellate intervention.

The court has jurisdiction and the claim is not
res judicata

[5]

First, does the Ontario court lack
    jurisdiction over the subject matter of Ms. Bakhshs claim because the
    claim should have been brought in the parties annulment proceedings or other
    civil proceedings in Saudi Arabia, and is it also
res judicata
? The
    answer is no.

[6]

Ms. Bakhsh could not have brought her claim in
    Saudi Arabia. It is not disputed that, as the motion judge found, in accordance
    with s. 15 of the
FLA
, the law of Saudi Arabia, as the parties last
    common habitual residence, applies to Ms. Bakhshs claim in respect of the
    Ontario property. Based on the expert evidence called by the parties, the
    motion judge determined, correctly, in our view, that the question of the
    parties interests in property located outside Saudi Arabia had not been
    decided and could not have been decided in their annulment proceedings or in
    the separate civil proceedings concerning a property in Saudi Arabia.

[7]

The parties annulment proceedings only dissolved
    the marriage and did not resolve any other legal issues. As the parties
    experts agreed, and the motion judge accepted, Saudi Arabian law does not
    provide for equalization claims. The family courts in Saudi Arabia resolve
    issues related to the status of marriages, such as divorces and annulments, but
    do not have jurisdiction over property and financial disputes. The motion judge
    accepted Ms. Bakhshs experts evidence that property and financial disputes
    are within the jurisdiction of the Saudi Arabian civil courts.

[8]

In fact, and in confirmation of Ms. Bakhshs
    experts opinion accepted by the motion judge, the parties have been engaged in
    separate civil proceedings, apart from their annulment proceedings, in the civil
    court in Saudi Arabia. Ms. Bakhsh commenced a lawsuit in the civil court to
    determine the parties respective interests in property located in Jeddah,
    Saudi Arabia, that was acquired during their marriage. Further, the motion
    judge accepted Ms. Bakhshs experts unchallenged evidence that the civil
    courts of Saudi Arabia decline jurisdiction to deal with claims involving ownership
    of property and land outside of Saudi Arabia.

[9]

It is therefore clear that Ms. Bakhsh could
    not bring her claim for the condominium property in Saudi Arabia. Saudi Arabia
    does not have jurisdiction over the claim and the claim is therefore not
res
    judicata
. Moreover, Ontario clearly has jurisdiction to adjudicate the
    claim of Ms. Bakhsh, who resides in Ontario, concerning property located in
    Ontario, legal title to which is in Mr. Merdads name.

[10]

The motion judges determination that the Ontario court does
    not lack jurisdiction and that Ms. Bakhshs claim was not
res judicata
was amply supported by the record and contains no error.

The claim is not an equalization claim nor is it statute-barred

[11]

Next, is Ms. Bakhshs equitable trust claim in fact an
    equalization claim under the
FLA
and
is it therefore barred by the two-year limitation period set out in s. 7(3)(a) of
    the
FLA
?

[12]

Absent any evidence as to the law of limitation of actions in
    Saudi Arabia, it appears to be common ground that Ontario law would apply. If Ms.
    Bakhshs claim is not an equalization claim, the ten-year limitation period
    under s. 4 of the
Real Property Limitations Act
, R.S.O. 1990, c. L.15,
    would apply and the respondents action would not be statute-barred. This
    courts decision in
McConnell v. Huxtable
, 2014 ONCA 86, 118 O.R. (3d)
    561, supports the application of the ten-year limitation period under the
Real
    Property Limitations Act
to family law constructive trust claims.

[13]

It is clear in our view that Ms. Bakhshs claim is not a
    thinly veiled attempt to dress up an equalization claim as an equitable trust
    claim. Rather, Ms. Bakhsh seeks to impose a resulting or constructive trust
    over the condominium property that she financially maintained and in respect of
    which she seeks a declaration of sole beneficial ownership. Indeed, Mr. Merdad does
    not suggest that the claim represents an abuse of process but rather that any
    claim involving the former spouses property acquired during the marriage is
    necessarily an equalization claim under the
FLA

and is now
    statute-barred under s. 7(3)(a). According to Mr. Merdad, the
FLA
and its rules provide a complete code for equalization of property claims
    between spouses and former spouse.

[14]

We disagree with Mr. Merdads submission that all property
    claims between spouses or former spouses must necessarily be equalization
    claims. And it does not follow that the expiration of time to bring an
    equalization claim entails the expiration of a constructive or remedial trust
    claim. Equalization claims and equitable trust claims remain distinct.

[15]

The
FLA
equalization provisions do not deal with property,
per se
, but, rather, with the equitable calculation, division, and distribution
    of the
value
of net family property. Here, Ms.
    Bakhsh brings forward an equitable trust claim and not a claim for equalization
    of the value of the parties net family property. A claim of ownership is
    distinct from a claim for a share in property value; an equitable trust claim
    addresses the former and the equalization regime of the
FLA
covers
    only the latter:
McNamee v. McNamee
, 2011 ONCA 533, 106 O.R. (3d) 401,
    at para. 59.

[16]

The equalization provisions of the
FLA
also do not
    preclude an equitable trust claim respecting property. Section 10(1) of the
FLA
expressly permits a court application for a determination between spouses or
    former spouses as to the ownership or right to possession of particular
    property, other than a question arising out of an equalization of net family
    properties and the court may declare the ownership or right to possession,
    as the respondent has claimed, among other remedies. Importantly, the two-year
    limitation period in s. 7(3)(a) of the
FLA
applies only to an
    application based on subsections 5(1) or (2) and not to the determination of a question
    of ownership between spouses set out in s. 10(1) of that Act.

[17]

The appellants reliance on the Supreme Court of Canadas
    decision in
Rawluk v. Rawluk
, [1990] 1 S.C.R. 70, is, respectfully,
    misplaced. Rather, it supports Ms. Bakhshs position.

[18]

At issue in
Rawluk
was whether the doctrine of
    constructive trust could be applied to determine the ownership of assets of
    married spouses under the provisions of the
FLA
or whether the remedy
    was abolished and superseded by the equalization of matrimonial property and
    other provisions under the
FLA
. Mrs. Rawluk claimed a one-half
    interest in the matrimonial property by way of a remedial constructive trust.

[19]

The Supreme Court in
Rawluk
confirmed that the
FLA
incorporated the constructive trust remedy that could be used in the
    matrimonial property context to allocate proprietary interests and that the
FLA
did not constitute an exclusive code for determining the ownership of
    matrimonial property: at pp. 89-91, 93 and 97. While the doctrine of
    constructive trust can be used to settle questions of ownership for the purpose
    of determining the net family property of each spouse, this function is
    totally distinct from the process of determining how the value of matrimonial
    property should be distributed under the equalization process: at p. 93.

[20]

As a result, we reject the appellants submission that Ms.
    Bakhshs claim is an equalization claim that is statute-barred. The motion
    judge was correct to conclude that the two-year limitation period under the
FLA
,
    which applies to equalization claims,

does not apply to Ms. Bakhshs
    claim.

There is no error with the motion judges costs order

[21]

Finally, Mr. Merdad takes issue with the motion judges
    $10,000 costs order in favour of Ms. Bakhsh. He argues that because he was
    successful in having the proceedings transferred to the family law list, the
    costs award was punitive.

[22]

There is no basis to interfere with the motion judges discretionary
    costs decision. The parties had agreed that the successful party on the motion
    would be entitled to costs in the amount of $10,000. It was entirely within the
    motion judges reasonable exercise of her discretion to determine that Ms.
    Bakhsh was the successful party, especially since she prevailed on the
    principal disputed issues on the motion.

Disposition

[23]

The appeal and motion for leave to appeal costs are
    therefore dismissed.

[24]

The respondent is entitled to partial indemnity costs from
    the appellant in the agreed upon amount of $7,915.01, inclusive of
    disbursements and applicable taxes.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.

E.
    Ria Tzimas, J. (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION: Collingwood Aviation Partners Ltd.
    v. Winterland Airfield Holdings Ltd., 2022 ONCA 131

DATE: 20220215

DOCKET: C69470, C69471

Huscroft, Sossin and Favreau
    JJ.A.

BETWEEN

Collingwood Aviation Partners
    Ltd.

Applicant (Respondent in Appeal)

and

Winterland Airfield Holdings
    Ltd.

Respondent (Appellant)

AND BETWEEN

Winterland Airfield Holdings
    Ltd.

Applicant (Appellant)

and

Collingwood Aviation Partners
    Ltd.

Respondent (Respondent in Appeal)

David W. Levangie and Teodora Prpa, for
    the appellant

Nancy Roberts and Mark Sheeley, for the
    respondent

Heard: February 2, 2022 by
    video conference

On appeal from the judgment of Justice Edward
    M. Morgan of the Superior Court, dated April 26, 2021, with reasons reported at
    2021 ONSC 3023.

REASONS FOR DECISION

[1]

The appellant, Winterland Airfield Holdings Ltd.
    (Winterland), owns and operates an airport in Collingwood, Ontario.

[2]

The respondent, Collingwood Aviation Partners
    Ltd. (CAPL), owns the adjoining property and operates air services and a
    flight school. CAPL uses the runways on Winterlands airport lands for its air
    services and the flight school.

[3]

Winterland appeals the application judges judgment
    in which he granted declarations that CAPL is entitled to unimpeded access to
    the airport lands and that Winterland is not entitled to charge user fees to
    CAPL for access to those lands.

[4]

For the reasons that follow, the appeal is
    dismissed.

Background

[5]

Before 1968, the Town of Collingwood did not
    have an airport. The original owners of CAPL set up a company to build a runway
    on land owned by the Town that was designated for an airport. In exchange, the
    Town gave CAPLs predecessor a plot of land abutting the airport lands. As part
    of the arrangement between the parties, CAPLs predecessor also agreed to
    provide air services, including the operation of a flight school, on those
    lands.

[6]

As described by the application judge, [o]ver
    the decades, the relationship between the two owners embodied this symbiotic
    existence. Three consecutive owners of what is now the CAPL property provided
    the requisite air services, operated the flight school, and enjoyed unimpeded
    access to the airports land.

[7]

In 2014, after CAPL bought the flight school
    lands, it asked that the arrangement with the Town be reduced to writing. The
    parties entered an Operating Agreement on June 16, 2014. The Operating
    Agreement set out CAPLs right to access the airport lands as follows:

The Owner [CAPL] and its tenants/licensees
    shall have full access to the Collingwood Region Airports runway systems and
    other facilities and services necessary for flight operation across the Airport
    Landson a 24 hour per day/365 days per year basis, subject to applicable
    government regulations, as long as an airport continues to be operated on the
    Airport Lands...

[8]

In 2019, Winterland bought the airport from the
    Town. As part of this transaction, the Town assigned the Operating Agreement to
    Winterland.

[9]

In December 2019, Winterland erected a wire
    fence that surrounded CAPLs property on three sides. The fence only left a
    90-foot wide opening along the eastern boundary between the properties, thereby
    reducing CAPLs previous 240-foot access to the runways on the airport lands.
    The fence on the northern boundary of CAPLs property impeded access to a field
    area that CAPLs tenants used to turn airplanes around. The fence on the
    southern boundary blocked CAPLs access to a drainage ditch, which caused
    problems with snow removal and flooding. The fence also blocked footpath access
    between the two properties.

[10]

CAPL removed the wire fence from its eastern
    boundary a week after it was erected, but Winterland replaced the fence with a concrete
    barrier. The concrete barrier was removed in January 2020, pending the outcome
    of this litigation.

[11]

CAPL brought an application to the Superior
    Court, seeking declaratory relief in relation to its right of access to the
    airport property. Winterland brought a cross-application in which it sought
    declaratory relief in relation to its rights to control access between the two
    properties. As part of the cross-application, Winterland also sought a
    declaration that CAPL was underinsured.

[12]

The application judge granted CAPLs application
    and dismissed Winterlands cross-application. In doing so, he found that CAPL has
    a right of unimpeded access to the airport lands along CAPLs eastern
    boundary, based on the Operating Agreement and a right of easement. He also
    found that Winterland was not entitled to charge any user fees for CAPLs
    access to the airport lands. Finally, he found that Winterland did not meet its
    burden of proving that CAPL was underinsured. Based on these findings, the
    application judge made the following declarations:

a.

a Declaration that the CAPL property has the benefit of full access
    to the airport property along the 240-foot boundary between the CAPL property
    and the airport property, being the eastern boundary to the CAPL property;

b.

a Declaration that under the Operating Agreement and as a common law
    easement, the CAPL property has a right, subject to applicable government
    regulation, to unimpeded access to the airport property along the 240-foot
    eastern boundary of the CAPL property;

c.

a Declaration that CAPL has no obligation to pay an access fee for
    the purpose of accessing the airport property;

d.

an Order than any fence erected by Winterland to the north of the
    CAPL property is to be at least 30 feet north of the boundary line between the
    two properties;

e.

a Declaration that CAPL has a right of access to the drainage
    infrastructure along its southern property line for the purposes of snow
    removal and for ensuring proper drainage on its property.

[13]

By separate endorsement dated October 18, 2021,
    the application judge granted $311,228.77 in costs to CAPL.

[14]

Winterland challenges all aspects of the
    application judges decision.

[15]

Many of Winterlands arguments invite this court
    to make different findings of fact and reweigh the evidence. However, it is not
    the role of the court to consider the issues decided by the application judge
    afresh. The court will only interfere with the application judges decision if
    he made errors of law or palpable and overriding errors of fact or mixed fact
    and law.

[16]

As set out below, we are satisfied that the
    application judge made no reversible errors.

Access Rights in the Operating Agreement

[17]

Winterland argues that the application judge
    erred in interpreting the reference to full access in the Operating Agreement
    to mean unimpeded access. The application judge found that full access
    meant unimpeded access based on the surrounding circumstances which, in this
    case, included evidence that the Town of Collingwood and CAPL intended the
    Operating Agreement to capture the access CAPL had enjoyed to the airport lands
    prior to the signature of the agreement. The application judge found that CAPLs
    historical access to the airport lands was unimpeded. This is a finding of
    mixed fact and law which is entitled to deference and that is well supported by
    the record.

[18]

Winterland argues that this interpretation of
    full access is unreasonable because it ignores the safety requirements of an
    airport. We disagree. The application judge was not satisfied that Winterland
    presented sufficient evidence of safety concerns to justify the proposed
    fencing. As part of Winterlands evidence of safety concerns, it included a
    photograph of a child in the vicinity of the runway. While the application
    judge may have made a factual error in describing the timing of the photo, this
    error on its own was not palpable and overriding. It relates to one isolated
    incident and does not detract from the application judges overall assessment
    of the paucity of evidence presented by Winterland regarding safety concerns
    that would justify the fencing. In fact, the application judge found that the
    fencing posed concerns for the safe operation of the flight school. These were
    findings of fact available on the record.

[19]

Winterland also argues that the application
    judge failed to consider s. 301.08 of the
Canadian Aviation Regulations
,
    SOR/96-433, which prohibits activities such as walking, standing, driving a
    vehicle or parking a vehicle or aircraft in the area of an aerodrome without
    permission of the operator. While the application judge did not address this
    argument in his decision, there is no requirement that a court consider all
    arguments made by a party. In any event, this provision does not run contrary to
    the application judges finding that the Operating Agreement gives CAPL
    unimpeded access to the airport lands. Rather, as pointed out by CAPL, the
    Operating Agreement gives CAPL the necessary permission to access the airport
    lands.

[20]

Ultimately, the Operating Agreement and the
    declarations granted by the application judge require CAPL to comply with all
    government laws and regulations. If CAPL does not comply with a particular law
    or regulation, Winterland can pursue available remedies to enforce compliance.
    The declarations made by the application judge do not preclude Winterland from
    doing so.

[21]

Accordingly, we see no error in the application
    judges interpretation of the access clause in the Operating Agreement.

Easement by implication

[22]

We see no errors in the application judges
    finding that CAPL has a right to unimpeded access to the airport property on
    the basis of a common law easement by implication.

[23]

Winterland does not dispute that the application
    judge properly articulated the test for an easement by implication but argues
    that the application judge erred in his application of the test.

[24]

The application judge relied on the following
    test for an easement by implication set out in Anne Warner La Forest,
Anger
    & Honsberger
,
Law of Real Property
, loose-leaf, 3rd ed.
    (Toronto: Thompson Reuters, 2021), at para. 17.12:

In order for a quasi-easement which was
    exercised during unity of ownership to become an easement by implication of
    law, the right claimed must meet certain criteria:

a)

it must be necessary to the reasonable enjoyment of the part
    granted;

b)

it must have been used by the owner of the entirety for the benefit
    of the part granted up to and at the time of the grant; and

c)

it must have been apparent at the time the land for which the
    easement is claimed was acquired.

For an easement to be apparent, its previous
    use must be indicated by some visible, audible or other apparent evidence on
    either the quasi-dominant or the quasi-servient tenement which could be seen,
    heard or smelled by a reasonable inspection.

[25]

The application judge made findings of fact
    about the agreement between the Town and CAPLs predecessor at the time the
    lands were severed. Based on those findings, the application judge was
    satisfied that the rights of access were apparent at the time the agreement
    was concluded. For example, the application judge found that it would be
    impossible for CAPLs predecessor to operate a flight school without broad
    runway access on CAPLs eastern boundary, as well as a buffer zone access on
    CAPLs northern side and footpath access for pilots and students.

[26]

Winterland argues that the application judge
    erred in finding that unimpeded access is necessary to CAPLs reasonable enjoyment
    of its lands. The application judge made no such error. He considered that necessity
    forms part of the test for an easement by implication and he found that being
    ringfenced and losing its historic access to the airport lands would be
    substantially more harmful to it than a mere inconvenience. The application
    judge went on to review the evidence of how CAPL had to conduct its business
    while the fencing was up and the overall impact of the fencing on the three
    relevant sides of the property. He ultimately concluded that the fencing and
    restrictions are not just inconvenient, they are a serious interference with
    CAPLs use of its property and, in addition, impose unnecessary hazards for the
    operation of the aircraft by CAPL and its tenants. These were findings of fact
    supported by the record.

[27]

Winterland also argues that the application
    judge erred in failing to address and find that a 1992 agreement extinguished
    any easement right that may have previously existed. Again, the court is not
    required to address all arguments made by the parties. In this case, as pointed
    out by CAPL, the 1992 agreement did not address access rights and, therefore,
    there is no basis for a finding that it extinguished the easement the
    application judge found exists in this case.

[28]

Finally, Winterland argues that the application
    judge erred by failing to consider that, even if an easement exists, it does
    not preclude Winterland from exercising some control over access to its
    property through the use of fences. In making this argument, Winterland relies on
    the decision in
Gardiner v. Robinson
, 2006 BCSC 1014, where the
    Supreme Court of British Columbia held that broad rights of access to footpaths
    did not prevent a property owner from erecting a fence and gates. However, in
Gardiner
,
    the Court emphasized, at para. 27, that the landowners ability to erect
    fencing and gates depends on whether they interfered in a substantial and
    unreasonable way with the petitioners right of access. As reviewed above,
    this is precisely the analysis the application judge conducted in this case. He
    concluded that the proposed fencing would constitute a substantial interference
    with CAPLs enjoyment of its property.

[29]

Ultimately, the application judge committed no errors
    in his application of the common law test for an easement by implication.

User fees

[30]

We see no error in the application judges
    finding that Winterland cannot charge user fees to CAPL for access to the
    airport lands.

[31]

The Operating Agreement contains the following
    provision dealing with access fees:

This Agreement does not preclude the Owner
    [CAPL] or tenants of the [CAPL] Property to be exempt from any applicable user
    fee as determined by the Town from time to time.

[32]

The application judge held that this provision
    does not allow Winterland to charge access fees to CAPL, reasoning that
    Winterland cannot charge for a right of access which CAPL already owns. The
    application judge held that the provision in the Operating Agreement dealing
    with fees confirms that CAPL will not be exempt from user fees levied on users
    of the Airport generally, with the exception, of course, of those fees that
    touch on access to the airport lands, which are specifically given to CAPL as
    of right.

[33]

Winterland argues that this finding is contrary
    to the plain wording of the relevant provision and that it is commercially
    unreasonable.

[34]

When interpreting the Operating Agreement, the
    application judge was required to consider the wording of the relevant
    provision and the factual matrix. In this case, given his finding that the
    Operating Agreement and implied easement give CAPL unimpeded access to the
    airport lands, we see no error in the application judges finding that Winterland
    has no right to charge fees for this access.

[35]

Winterlands inability to charge access fees
    does not make the agreement commercially unreasonable. Winterland is entitled
    to charge other fees and, as pointed out by CAPL, the Town and now Winterland
    have derived other benefits from the arrangement between the parties, including
    CAPLs obligation to buy fuel exclusively at the airport.

Insurance coverage

[36]

We see no error in the application judges
    finding that Winterland did not prove that CAPL is underinsured.

[37]

The Operating Agreement requires CAPL to at its
    own expense, procure and maintain in force adequate insurance for the CAPL
    Property and its uses that is acceptable to Winterland, acting reasonably,
    naming Winterland as additional insured. When Winterland raised the issue of
    insurance, CAPL increased its coverage from $1,000,000 to $5,000,000 and
    produced a Certificate of Insurance.

[38]

The application judge rejected Winterlands
    argument that CAPL was underinsured on the basis that there was no objective
    evidence to support this position.

[39]

Winterland argues that the application judge
    improperly shifted the burden of proof on this issue. We see no merit to this
    argument. Winterland sought a declaration regarding the issue of insurance on
    the cross-application. It provided no evidencenotably presenting no expert
    evidencethat CAPLs insurance coverage was inadequate. In the circumstances,
    the application judge made no error in dismissing this aspect of Winterlands
    cross-application.

Dismissal of cross-application

[40]

Winterland argues that the application judge
    erred in dismissing the cross-application without giving it any proper
    consideration. Specifically, it argues that it had put forward a proposal for a
    rolling fence between the properties that could be opened as needed.

[41]

We see no merit to this argument. While the
    application judges conclusions on the cross-application are contained in a
    conclusory one paragraph section of his decision, it is evident from his
    decision as a whole that he considered the applicants cross-application.

[42]

For the most part, the cross-application was a
    mirror to CAPLs application, and sought declarations related to the parties
    respective rights in relation to the boundaries between both properties. The application
    judges declarations address those issues.

[43]

In addition, it was Winterland that raised the
    issue of insurance coverage in its cross-application, an issue that the
    application judge addressed and dismissed.

[44]

Finally, while in its argument before this
    court, Winterland placed significant emphasis on the issue of a rolling fence,
    it is evident that this issue was not significant to the arguments before the application
    judge and does not detract from his finding that CAPL is entitled to unimpeded
    access to the airport lands.

Motion for leave to appeal costs order

[45]

Following the commencement of the appeal, the appellant
    served a supplementary notice of appeal, seeking leave to appeal the
    application judges costs order.

[46]

Other than this supplementary notice, the
    materials filed by the appellant did not include a costs order or the application
    judges costs endorsement. The appellants factum did not address the issue of
    costs and the appellants counsel did not make any arguments on the issue
    during oral arguments.

[47]

In the circumstances, we see no basis for
    granting the motion for leave to appeal the application judges costs order.

Conclusion

[48]

For these reasons, we dismiss the appeal and the
    motion for leave to appeal costs.

[49]

The respondent is entitled to costs of the
    appeal which we fix at $60,000, all inclusive.

Grant
    Huscroft J.A.

L.
    Sossin J.A.

L. Favreau
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Savory, 2022 ONCA 132

DATE: 20220211

DOCKET: C66294

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

BETWEEN

Her Majesty the Queen

Respondent

and

Craig Savory

Appellant

Mark Halfyard, for the appellant

Marie Comiskey, for the respondent

Heard: February 10, 2022 by
    video conference

On appeal from the conviction entered by
    Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury, on
    September 26, 2018.

REASONS FOR DECISION

[1]

The appellant stands convicted of possession of cocaine for the purpose
    of trafficking.

[2]

Almost 2.5 kilograms of cocaine were found in a hidden compartment located
    in the backside upholstery of the front passenger seat in the appellants SUV.
    The sole issue at trial was possession, specifically whether the appellant knew
    that the cocaine was in his vehicle. The sole issue on appeal is whether the
    jurys verdict is an unreasonable one.

[3]

The appellant argues that there was little evidence to support the
    conviction in this case. As he points out, despite being under on-and-off
    surveillance for over a year, he was never seen accessing the secret
    compartment. Nor did his minimalist lifestyle lend support to the theory that
    he was a drug trafficker, operating in high amounts of cocaine.

[4]

The appellant pointed to his brother as the likely culprit. The
    appellants brother, a previously convicted drug dealer and someone who was
    also found to possess drug paraphernalia around the same time as the
    appellants arrest, had gifted him the vehicle. The appellant testified that his
    brother continued to access the SUV with the appellants permission, right up
    to the day prior to the search.

[5]

Against that factual backdrop, the appellant hypothesizes that the jury
    may have come to their erroneous conclusion on what is described as a weak yet
    legally correct instruction on circumstantial evidence. If a more robust
    instruction had been given, one that exceeded the specimen jury instructions,
    then the jury may not have been so quick to fill in the evidentiary blanks with
    guilty inferences.

[6]

The appellant emphasizes that his view of the case was shared by the
    trial judge. At sentencing, the trial judge expressed the view that she may
    not agree with the verdict, that she would have done something different,
    and that she was sympathetic to the appellant. While the appellant
    acknowledges that the trial judges view of the case is not determinative of this
    appeal, he argues that the fact that she expressed such strong sentiments about
    the jurys verdict goes some distance to raising concerns over whether the
    verdict was in fact unreasonable.

[7]

In the end, the appellant argues that the conviction in this case
    represents a perverse verdict, one that no properly instructed jury acting
    reasonably could have rendered.

[8]

We do not accept this submission. While it is correct that the
    trial judge expressed the view that she may well have arrived at a different
    verdict, the voicing of that thought did not render the verdict unreasonable.
    The appellant exercised his right to a jury trial. Having done so, the jury
    became the fact finder in this case, and [a]ny judicial system must tolerate
    reasonable differences of opinion on factual issues:
R. v.
Biniaris
, 2000 SCC 15
, at para. 24. This may well
    be one of those cases.

[9]

Our task is not to displace the jurys verdict
    because the trial judge may have come to a different conclusion. Rather, our
    task is to consider whether, based upon the totality of the evidence, the
    admittedly properly instructed jury could have arrived at the verdict.

[10]

The evidence in this case included the
    following:

-

The SUV was registered to and legally owned by
    the appellant for almost two year prior to the search;

-

He was seen driving that vehicle on multiple
    occasions in that time frame;

-

During the last 14 months prior to the search,
    the appellant was the sole person seen by surveillance officers driving that
    vehicle, meaning that his brother was never seen driving it;

-

The appellant had children whose car seats  which
    he had installed  were in the backseat of the vehicle, from which the secret
    compartment was visible;

-

Indeed, one of the car seats was so close to the
    secret compartment that an officer testified that a childs feet could touch
    it;

-

The appellant was seen by surveillance putting
    his children into the backseat of the car; and

-

The police discovered the secret compartment
    because it looked weird, describing it as a large upholstered panel affixed
    to the back of the seat with a gap as wide as about two centimeters, which
    allowed an officer to put his fingers behind the panel and pull it back,
    revealing plastic bags containing all of the cocaine.

[11]

That evidence, combined with the sheer value of
    2.48 kilograms of cocaine, a quantity of cocaine that was unlikely to have been
    left by anyone in the appellants unwitting control, made for a factual case
    upon which a properly instructed jury could reasonably arrive at a conclusion
    of guilt.

[12]

The appeal is dismissed.

Fairburn
    A.C.J.O.

Doherty
    J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicholls, 2022 ONCA 133

DATE: 20220216

DOCKET: C69491

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

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Nicholls

Appellant

Carter Martell, for the appellant

Michael Dineen, for the respondent

Heard: February 8, 2022 by
    video conference

On appeal from the conviction entered and
    sentence imposed on December 10, 2020 by Justice M.A. Garson of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The Stratford police were conducting a drug
    investigation. Based primarily on information provided by two confidential
    informants (C.I.) and surveillance on the evening of the arrest, the police
    arrested the appellant, believing he was in possession of narcotics. When the
    police searched the appellant incident to his arrest, they did not find any
    drugs, but they did find a partially loaded, concealed firearm in his computer
    bag. The appellant was charged with several firearm offences. He was ultimately
    convicted and, after credit for pretrial custody and other considerations, he received
    a net sentence of 3½ years. He appeals conviction and seeks leave to appeal
    sentence.

[2]

At trial, the appellant conceded he was in
    possession of the firearm. However, he argued the police did not have
    reasonable and probable grounds to arrest him, rendering his arrest arbitrary
    and contrary to s. 9 of the
Charter
. The appellant further argued that
    as his arrest was unlawful, the search was also unlawful and a breach of s. 8
    of the
Charter
. The appellant argued the weapon should be excluded
    from evidence under s. 24(2) of the
Charter
leading to acquittals on
    the charges.

[3]

The trial judge held that the police did not
    have reasonable and probable grounds to arrest the appellant. Both the arrest
    and the subsequent search of the appellant were unconstitutional. The trial
    judge held, however, that the appellant had failed to establish that the
    admission of the seized handgun into evidence could bring the administration of
    justice into disrepute. The trial judge declined to exclude the gun from
    evidence. Convictions followed.

Was the Arrest Unlawful?

[4]

The trial judge accepted that the arresting
    officer believed he had reasonable and probable grounds to arrest the appellant
    on drug charges. The trial judge went on, however, to hold, at paras. 49-50:

[49] However, objectively viewed, I am not
    satisfied that these grounds were reasonable. The information from the C.I.s
    was neither overly credible nor compelling and was subject to limited
    corroboration. The limited surveillance of and confirmed association between
    the applicant and the third party did not sufficiently elaborate the grounds
    held by the police to believe the applicant possessed C.D.S.A. substances that
    evening. More specifically, the circumstances known to the police at the time,
    coupled with the inferences they were entitled to draw based on their training
    and experience, were not enough to allow DC Serf to form the necessary grounds
    to arrest the applicant for possession of C.D.S.A. substances.

I wish to be clear. The police had some
    grounds to believe a criminal offence had taken place, but those grounds fell
    just short of the necessary standard when viewed objectively.

[5]

The appellant submits the trial judge correctly
    held the arrest and search were unlawful, but wrongly failed to exclude the
    evidence. The Crown argues that the admissibility of the evidence should never
    have been in play, as the arrest and therefore the search were lawful.

[6]

In support of the claim that the trial judge
    properly held the arrest was unlawful, the appellant submits the grounds relied
    on by the police came down almost entirely to the unsupported word of unproven
    and uncorroborated C.I.s, combined with what was, in reality, innocuous
    evidence of association between the appellant and a person the C.I.s described
    as a drug dealer. The appellant maintains that, at best, this evidence supported
    a suspicion that the appellant was involved in drug trafficking. Suspicion is
    not enough to justify an arrest. The appellant goes on to argue, correctly,
    that in the absence of a lawful arrest, the search which produced the gun was
    unreasonable.

[7]

The Crown contends the trial judge was wrong in
    holding that the totality of the circumstances known to the police did not
    provide reasonable and probable grounds. The Crown argues there was firsthand
    information from a C.I. that the appellant supplied drugs to the party with
    whom he was associating immediately before his arrest. The police also had
    firsthand information from a different C.I. that the party with whom the
    appellant was associating before his arrest was a drug dealer. The Crown
    contends that the movements of the appellant and the others in the several
    hours that they were under surveillance before the arrest added some additional
    support for the belief that the appellant was involved in drug dealing. The Crown
    contends that, on a proper application of the law governing arrest to the
    evidence, the police had reasonable and probable grounds to believe the
    appellant had in the past committed, or was in the course of committing,
    drug-related crimes.

[8]

We see no basis upon which to set aside the
    trial judges finding that the police did not have reasonable and probable
    grounds to arrest the appellant. The trial judge applied the correct legal
    principles. He made no material error in his review of the relevant evidence
    and no error in his fact-finding. His conclusion was not unreasonable. This
    court must defer to that finding.

Should the Evidence Have Been Excluded?

[9]

The trial judge followed the well-established
    three-part analysis first articulated in
R. v. Grant
, 2009, SCC 32. In
    the course of considering the seriousness of the state misconduct, the trial
    judge observed:

The seriousness of police conduct in these
    circumstances clearly falls at the lower end of the scale with minimal impact
    on the rights of the applicant.

[10]

In the above passage, the trial judge improperly
    mixed together the first and second factors to be considered in the
Grant
analysis. The first factor, the seriousness of the police conduct, is not
    concerned with the impact of the
Charter
breach on the rights of the
    accused. That impact is considered in the second
Grant
factor. The
    trial judges reference to the minimal impact on the accuseds rights is
    misplaced in his consideration of the first
Grant
factor.

[11]

In any event, the impact on the appellants
Charter
rights was far from minimal. The trial judge recognized that when he turned to
    the second factor in his analysis. When considering the impact of the
Charter
breaches on the appellants rights, the trial judge said:

This was [a] serious breach that undermined
    the applicants right to privacy, liberty and security of the person. I note
    the arrest and search took place when he was riding his bicycle on the road.

[12]

Considering the reasons as a whole, the trial
    judge properly addressed the factors relevant to the s. 24(2) analysis. He
    placed police misconduct at the less serious end of the police misconduct spectrum,
    while acknowledging the serious impact of the breaches on the appellants
    rights. The trial judge misspoke in his initial reference to the minimal
    impact on the rights of the applicant, but clarified any confusion when he was
    addressing the relevance of the impact of the breach on the appellants rights.
    Read as a whole, the reasons made it clear that the trial judge regarded the
    impact of the breach on the appellants rights as serious.

[13]

The trial judges assessment of the
    blameworthiness of the police conduct reflected his finding that, while the
    police did not have reasonable and probable grounds, the evidence relied on by
    them came close to meeting that standard. The appellant argues that this was an
    unreasonable finding by the trial judge. The appellant contends the information
    available to the police came nowhere close to reasonable and probable grounds
    and, that in acting on that evidence to arrest the appellant, the police misconduct
    was minimally negligent and cannot be said to reflect any good faith on their
    part. The appellant places the police misconduct significantly further toward
    the serious end of the police misconduct spectrum.

[14]

I see no error in the trial judges s. 24(2)
    analysis. This was, in some respects, a difficult record in the sense that
    there were gaps in the narrative and uncertainties as to exactly what some of
    the evidence meant. We think it was open to the trial judge to characterize the
    evidence as he did and to conclude the grounds were close to meeting the
    reasonable and probable grounds standard. Deference is owed to that finding:
R.
    v. Buchanan
, 2020 ONCA 245. Having regard to the facts as found by the
    trial judge, this case was not unlike many cases heard on a daily basis in the
    trial courts. The state misconduct provided some, but not strong, support for
    excluding the evidence. The impact of the breach on the appellants rights
    favoured exclusion. The third factor, societys interest in an adjudication on
    the merits, provided significant support for admitting the evidence, especially
    in light of the reliability of the evidence and its importance to the prosecution
    of a serious criminal charge. On this not uncommon constellation of the
    relevant s. 24(2) factors, trial judges are charged with the responsibility of
    balancing those factors in each case and determining whether the admission of the
    evidence would bring the administration of justice into dispute. When all
    proper factors have been considered, appellate courts must show deference to
    the balance struck by the trial judge:
Grant
, at para. 86.

[15]

The conviction appeals are dismissed.

The Sentence Appeal

[16]

The sentence appeal raises a single question.
    The appellant argues that the sentence of 6 months imposed on the concealed
    weapon charge should have been made concurrent rather than consecutive to the
    other sentences. There is no doubt the trial judge could have exercised his
    discretion and made the sentence concurrent. He did not explain why he chose to
    make the sentence consecutive.

[17]

The ultimate question on sentence, however, is
    the fitness of the total sentence imposed. Bearing in mind the seriousness of
    the offence, and the appellants horrendous criminal record, we see no error in
    the total sentence imposed. We would grant leave to appeal sentence, but would
    dismiss the sentence appeal.

Fairburn A.C.J.O.

Doherty J.A.

David M. Paciocco J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. E.A.P., 2022 ONCA 134

DATE: 20220214

DOCKET: C68636

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

BETWEEN

Her Majesty the Queen

Respondent

and

E.A.P.

Appellant

Colleen McKeown, for the appellant

Nicole Rivers, for the respondent

Heard: February 8, 2022 by
    video conference

On appeal from the conviction entered by
    Justice G.P. Renwick of the Ontario Court of Justice on December 19, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of sexually
    assaulting X.F. The trial was short. There were three witnesses. There was one
    main issue in dispute. X.F. said she did not consent to sexual intercourse with
    the appellant. He testified she did.

[2]

The appellant appeals conviction only.

[3]

X.F. and the appellant had met at a car rally.
    X.F. modelled at those rallies. She placed an ad on Instagram, looking for a
    location for a photoshoot. The appellant offered his house. X.F. agreed to meet
    him at the house. The appellant picked her up and they drove to a local Walmart
    to buy some drinks. From there, they proceeded to the home.

[4]

The appellant and X.F. both testified they had
    sexual intercourse at the appellants home. According to him, it was consensual
    and was the culmination of a series of consensual sexual contacts that began
    when he and X.F. were walking around Walmart. According to the appellant, he
    had his arm around X.F.s waist and, on one occasion, touched her buttocks.
    X.F. acknowledged that this occurred. Although it made her feel somewhat
    uncomfortable, she did not say anything or move away from the appellant.

[5]

X.F. testified the appellant made sexual
    advances after they arrived at his house. At one point, she told him she was
    fine with kisses, but nothing else was going to happen. The appellant persisted
    in his advances. After about 40 minutes, X.F., who was becoming upset, told the
    appellant she had no interest in having sex with anyone and nothing was going
    to happen.

[6]

According to the appellant, he told X.F. that he
    wanted to make love with her and she said, thats fine but that she would not
    see him again.

[7]

X.F. testified that she eventually made her way
    out of the bedroom to the bathroom. The appellant followed. He picked X.F. up
    and placed her on the countertop. A couple of minutes later, he carried her to
    the bed. The appellant did not ask permission to do any of these things. X.F.
    did not tell him he could not do any of these things.

[8]

X.F. testified, that when the appellant put her
    on the bed, she told him her pants were not coming off. She also told him that
    if he attempted to have sex with her, she would never speak to him again. She
    told the appellant she did not want to have sex or bang. She was crying.

[9]

The appellant proceeded to insert his penis into
    X.F.s vagina. A short time later, he stopped and said he was sorry.

[10]

According to the appellant, X.F. never said she
    did not want to have sex. To the contrary, when he told her he wanted to make
    love to her, she nodded and said, thats fine. She was not crying and she did
    not raise any objection to his actions. She told him everything was okay
    while they were having sex. He stopped when it seemed to him that they were not
    connecting emotionally.

[11]

Immediately after the sexual intercourse, X.F.
    asked the appellant to take her home. She testified the appellant admitted he
    should not have had sex with her. Later that night, the appellant and X.F.
    exchanged text messages. He apologized, indicating that when he held her, it
    just felt right. X.F. told him he had to get better control of himself.

[12]

The day after the alleged rape, X.F. spoke with
    her foster mother and told her she had been raped. Her foster mother took her
    to the hospital. X.F. was seen by Social Services and the police took a
    statement later that day. According to X.F.s foster mother, X.F. was very
    upset when she spoke to her foster mother. In fact, her foster mother testified
    she had never seen X.F. so upset.

[13]

The trial judge reviewed the evidence of the
    complainant and the appellant at some length. The central findings by the trial
    judge are set out below (at para. 39):

In the end, on the critical parts of his
    testimony, I do not accept as true what the defendant said about X.F.s
    purported consent to have intercourse that night. Instead, I find as a fact
    that X.F. specifically told the defendant that her pants were to stay on and
    she did not want to bang or have sex. Despite her clear words, the
    defendant chose to disregard her wishes and took advantage of her physically
    because she was smaller, younger, and did not protest when he pursued his
    desires: (para. 31). There was no vibe that X.F. exuded to permit the
    defendant to engage in intercourse with her. I accept the defendants evidence
    that his statement I want to make love was said. X.F. did not deny this.
    However, she never agreed to this, she never said it was fine for him to act
    on his wishes and she did not give consent, nor say or do anything from which
    consent could reasonably be inferred. To the contrary, I find the complainant
    was clear that she was not interested in having sexual intercourse with the
    defendant and he simply chose to disregard her stated intentions.

grounds of appeal

Ground #1: The alleged undue reliance on X.F.s
    demeanour when assessing her credibility

[14]

Trial judges reasons must be examined as a
    whole, having regard to the live issues at trial, the evidentiary record and
    the arguments. They must also be examined, bearing in mind the trial judges
    assumed knowledge of the operative legal principles and the trial judges understanding
    of the fact-finding role.

[15]

Where error is alleged, it is incumbent on the
    appellant to demonstrate that error, not merely a possible error, or an
    ambiguous turn of phrase capable of being read on appeal as a misapprehension
    of the law or a misunderstanding of the evidence:
R. v. G.F.
, 2021 SCC
    20, at paras. 68-72.

[16]

When, as in this case, the challenge on appeal
    is to the trial judges credibility findings, appellate courts have repeatedly
    acknowledged the advantaged position of trial judges and approached arguments
    about credibility errors with strong deference to the trial judges findings:
G.F.
,
    at paras. 81-82. As observed in
G.F.
, credibility assessments are not to
    be overturned simply because a surgical parsing by the appellate court of the
    trial judges reasons reveals an imperfect or summary expression on the part
    of the trial judge:
G.F.
, at para. 76.

[17]

The trial judge made several references to
    elements of the complainants demeanour in his assessment of her credibility.
    Read as a whole, however, we cannot say those references demonstrate that the
    trial judges reliance on demeanour was undue. The trial judge addressed
    several other factors that were also relevant to credibility. He noted:

·

X.F.s evidence of the overall narrative was
    largely unchallenged;

·

her evidence was internally consistent;

·

she gave her evidence in a balanced way,
    acknowledging parts of the narrative which potentially assisted the appellant;

·

she had a very good recollection of collateral
    detail; and

·

her foster mothers evidence that X.F. was very
    upset the following morning was confirmatory of her version of events.

[18]

Counsel for the appellant submits that the
    finding that X.F.s evidence was balanced was no more than a finding that she
    did not exaggerate her evidence, or make allegations that were worse than the
    ones she did make. We read the finding that the evidence was balanced as a
    finding that X.F. told her story frankly and in a manner which did not suggest she
    was shaping her evidence to put herself in the best light, or the appellant in
    the worst light. X.F. acknowledged facts that were not helpful to her, and
    offered some support for the appellants position. A finding properly rooted in
    the evidence that there are strong
indicia
of candour and
    forthrightness in a witnesss testimony, are positive features of that
    witnesss evidence, capable of supporting a finding that the witnesss evidence
    is credible.

[19]

We accept that the mere absence of deliberate
    exaggeration by a witness does not make the witness more credible. In our view,
    however, the trial judges description of X.F. as giving balanced evidence
    went well beyond a mere finding that she did not deliberately exaggerate her
    evidence.

[20]

Counsels argument that the trial judge failed
    to deal with inconsistencies between the complainants evidence and her
    statement to the police is not borne out by the record. There was one
    inconsistency identified by counsel. X.F. used different language in her
    statement and in her testimony when describing her reaction to the appellants
    advances at Walmart. To the extent that the two versions are inconsistent, the
    failure by the trial judge to expressly deal with this one inconsistency in no
    way undermines the overall force of the reasons. This kind of microscopic
    review of a trial judges credibility assessments is exactly what the Supreme
    Court has cautioned against in several cases, including
G.F.

[21]

Demeanour certainly factored into the trial
    judges assessment of credibility. No one suggests that it should not have. The
    appellant has not satisfied us that the trial judges consideration of
    demeanour was undue.

Ground #2: Did the trial judge take an overly
    narrow view of how consent can be communicated?

[22]

The trial judge clearly and unequivocally accepted
    the evidence of X.F. that she told the appellant more than once that she did
    not want to have sex with him and was not consenting to sexual intercourse. The
    trial judge equally clearly and unequivocally rejected the appellants evidence
    that X.F. had communicated her consent to have sex with him by telling him
    thats fine when he asked if he could make love to her. Therefore, the
    verdict in no way turned on how consent could or could not be communicated. On
    the findings, there was no consent to sexual intercourse of any kind
    communicated by X.F.

[23]

The appellant nonetheless argues that, in
    rejecting the appellants testimony, the trial judge erred by relying upon an
    overly narrow view of how consent can be communicated. Specifically, based on
    the appellants acknowledgements that he had repeatedly touched the complainant
    in sexually suggestive ways throughout the evening without asking permission,
    the trial judge said, one of the main problems I have with the defendants
    testimony is that the defendant made assumptions about the level of physical
    contact X.F. wanted with him and mistook her silence or acquiescence as
    consent. It is clear from the decision, as a whole, that the trial judge
    reasoned that the appellants testimony about the communication that occurred
    relating specifically to sexual intercourse was implausible, given his pattern
    of behaviour relating to consent throughout the evening. We see no error in
    this reasoning. It does not reveal an overly narrow view of how consent can be
    communicated but instead, constitutes a pattern of conduct that the trial judge
    was entitled to rely upon.

Ground #3: Did the trial judge reverse the
    burden of proof on the question of mistaken belief in consent?

[24]

The trial judge began his reasons with a full
    and accurate description of the Crowns burden of proof. Near the end of his
    reasons, after finding that X.F. did not consent, the trial judge said:

I have considered whether on all of the
    evidence it is established that the defendant could have reasonably held an
    honest but mistaken belief in consent. In light of the factual findings I have
    come to, this defence also fails.

[25]

The appellant submits that the above-quoted
    passage wrongly puts the onus on the appellant to establish a reasonable but
    mistaken belief in consent. There is some merit to the appellants submission,
    if the above-quoted passage is considered in isolation from the trial judges
    earlier, more detailed description of the burden of proof.

[26]

In any event, on the trial judges findings of
    fact, all of which stand given our rejection of the first ground of appeal,
    there was no air of reality to a claim of an honest and reasonably held belief
    in consent. On the trial judges findings, there was sexual intercourse in the
    face of repeated refusals by X.F. to consent to sexual intercourse.

conclusion

[27]

As indicated at the end of argument, the appeal
    is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: S.I. Systems Partnership v. Geng,
    2022 ONCA 138

DATE: 20220211

DOCKET: C69018

Simmons, Pardu and Brown JJ.A.

BETWEEN

S.I. Systems Partnership

Plaintiff (Appellant)

and

Li Geng, Xin Xu a.k.a. Jimmy Xu,
    Quarksys Consulting Inc. and X & C Hi-Tech Inc.

Defendants (Respondents)

Jennifer Dolman and Isabelle Crew, for
    the appellant

Melynda Layton and Kenneth Krupat, for
    the respondents

Heard: February 11, 2022 by video conference

On appeal from the judgment of Justice Calum
    U.C. MacLeod of the Superior Court of Justice, dated December 23, 2020.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge dismissed the appellant's claim
    for breach of restrictive covenants in its contracts with the respondent
    independent contractors. In his reasons, the trial judge found the covenants
    had not been brought to the attention of Mr. Geng and Quarksys Consulting Inc.;
    that they were, in any event, unenforceable; and further, that the appellant
    had not proven its damages. The appellant has not appealed the finding
    concerning damages. In the circumstances, we see no basis on which to set aside
    the trial judge's order dismissing the action. The appeal is therefore
    dismissed.

[2]

Costs of the appeal are to the respondents,
    fixed in the amount of $30,000 on a partial indemnity scale inclusive of
    disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Flight (Re), 2022 ONCA 139

DATE: 20220211

DOCKET: M53087 (C69594)

Simmons
    J.A. (Motions Judge)

In the
    Matter of the Bankruptcy of Brian Wayne Flight, of the City of London, in the
    Province of Ontario

Nicholas Kluge and C. Haddon Murray
[1]
, for the moving parties/appellants,
    Adamson & Associates Inc. and John Adamson

Tara Vasdani, for the responding party/respondent,
    Brian Wayne Flight

Jacob Pollice, for the intervener
    Superintendent of Bankruptcy
[2]

Heard: January 20, 2022 by video conference

COSTS ENDORSEMENT

[1]

The moving parties and the responding party
    shall bear their own costs of the motion for leave to amend the notice of
    appeal to add a request, in the alternative, for leave to appeal under s.
    193(e) of the BIA.

[2]

The moving parties' lengthy delay in applying
    for leave to amend and the absence of any reasonable explanation for their
    delay may have supported a modest costs award in favour of the responding party
    for opposing the in-writing motion. However, because I found it necessary to
    require the parties' attendance to address concerns about the material filed on
    the motion and, ultimately, to strike portions of both parties' material, I
    conclude that the parties should bear their own costs.

Janet
    Simmons J.A.

[1]

Mr. Murray prepared the in-writing submissions on behalf of
    the moving parties/appellants for the in-writing motion. Due to a conflict, Mr.
    Kluge appeared for the purposes of oral submissions on the motion and filed
    submissions on costs.

[2]

Mr. Pollice appeared on the motion but made no written or
    oral submissions on behalf of the intervener.


COURT OF APPEAL FOR ONTARIO

CITATION: Williams (Re), 2022 ONCA 141

DATE: 20220214

DOCKET: C69374

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

IN
    THE MATTER OF:  KYLE WILLIAMS

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL CODE

Paul Socka, for the appellant

Samuel G. Walker, for the respondent,
    Her Majesty the Queen

Julie Zamprogna, for the Southwest
    Centre for Forensic Mental Health Care

Heard and released orally:
    February 11, 2022 by video conference

On appeal against the disposition of the
    Ontario Review Board, dated March 15, 2021.

REASONS FOR DECISION

[1]

This is an appeal from a detention order imposed
    by the Ontario Review Board (ORB) on March 15, 2021.

[2]

On September 19, 2018, the appellant was found
    not criminally responsible on account of mental disorder. He has been under the
    jurisdiction of the ORB since that time.

[3]

The index offences involved an attempt to pull a
    young child from her grandmothers vehicle. When the grandmother intervened,
    the appellant bit her. As a result of his psychiatric condition, the appellant
    thought that the young child was frightened and in need of help.

[4]

The appellant is diagnosed with bipolar disorder
    with psychotic features, attention deficit hyperactivity disorder and substance
    abuse disorder, the most problematic substance being crystal methamphetamine.

[5]

In the year leading up to the most recent
    hearing, the appellant experienced relapses into substance use. A little over a
    month before the hearing, there was a restriction of liberty hearing at which
    all parties jointly submitted that the restriction of liberty, involving hospital
    detention, was necessary and appropriate in the circumstances.

[6]

The appellants psychiatrist testified before
    the Board. She provided information about the appellants grandiose delusions,
    a condition that led to the index offences and a condition that is aggravated
    by drug use. With increased substance use, the appellant could misinterpret his
    environment and respond in a way that puts people at risk. The impact of drug
    use, creating the serious risk to safety, could take root quickly.

[7]

The appellant contends that the Board erred in
    failing to meaningfully consider a conditional discharge. The appellant says
    that there was an air of reality to a conditional discharge and, therefore, the
    Board was obliged to consider whether his risk could be managed by that form of
    disposition. In our view, the Boards reasons clearly explain why the necessary
    and appropriate disposition is a detention order and, by implication, not a
    conditional discharge.

[8]

Although the issue of significant threat was
    conceded at the hearing, the Board still addressed the issue. The Board relied
    upon the treating psychiatrists evidence to find that, among other things, the
    appellant has little insight into his mental illness with ongoing symptoms and
    is only compliant with antipsychotic medication because of the structure and
    support available under a detention order. Further, based upon his history and
    current views regarding his recommended medication regime, rejecting that it is
    necessary, there is a serious risk that he would be non-medication compliant
    absent proper supervision by the hospital. Without his medication he would
    decompensate and his behaviour could become violent.

[9]

As the appellant conceded the issue of
    significant risk, the only issue for the Boards determination was the
    necessary and appropriate disposition. The Boards reasons clearly reveal why a
    conditional discharge was not available. The record before the Board, as
    accepted in its reasons, establish its conclusion that the appellants lack of
    insight into his illness and lack of acceptance of the need for treatment,
    means that his risk to the public cannot be managed outside of a detention
    order. Accordingly, the Board cannot be criticized for not inquiring into
    matters that would only be relevant if a conditional discharge had an air of
    reality.

[10]

The appeal is dismissed.

Fairburn
    A.C.J.O.

Doherty
    J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Olivetti, 2022 ONCA 142

DATE: 20220217

DOCKET: C69371

Miller,
    Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Olivetti

Appellant

George Olivetti, acting in person

Samuel G. Walker, for the respondent

Heard: February 9, 2022 by
    video conference

On appeal from
    the sentence imposed by Justice Alison J. Wheeler of the Ontario Court of
    Justice on January 28, 2021.

REASONS FOR DECISION

[1]

The appellant entered pleas of guilty to one
    count of possessing child pornography (
Criminal Code
, s. 163.1(4)),
    and one count of accessing child pornography (s.163.1(4.1)).

[2]

On July 1, 2020, the National Child Exploitation
    Coordination Centre detected an attempt by the appellant to download an image
    of a prepubescent female from the internet. The Kingston Police were alerted.
    When they entered the appellants home with a search warrant, he was sitting in
    front of his computer. The computer was seized. The hard drive was found to contain
    11,000 images and 88 videos that were characterized as child pornography
    (primarily depictions of prepubescent girls).

[3]

The Crown and the defence presented a joint
    submission of four years imprisonment and other ancillary orders. After
    deducting credit for pre-sentence custody, it was proposed that the appellant would
    serve a further 1,220 days in custody.

[4]

At the time of sentencing, the appellant was 77
    years old. Before retiring, he was employed in the financial services industry.
    The appellant has an extended family of adult children, as well as
    grandchildren and great grandchildren. He attends church. At the time of
    sentencing, he expressed remorse for his actions, commenting, This is the most
    heinous activity.

[5]

The appellant has a prior criminal record. In
    2007, he was sentenced to a 10 ½ year penitentiary term for numerous historical
    sexual offences against children. No further information about these offences
    was provided to the sentencing judge, nor were we apprised of any details.

[6]

The sentencing judge acceded to the joint
    submission. She observed that the appellant had amassed a very large
    collection of child pornography. She noted the further aggravating factor of
    his prior criminal record. However, these factors were somewhat mitigated by
    the appellants guilty plea, his demonstrated insight into the harmfulness of
    his offending, and his stated commitment to change.

[7]

The appellant submits that the sentence imposed
    was too harsh in all of the circumstances. He also relies on fresh evidence
    which provides updated personal information. This includes the support of some
    of his family members. One of his sons (and his sons wife) have offered to
    have the appellant live with them once he is released.

[8]

The appellant also relies on medical records
    that outline ongoing health issues, including a cerebral cyst and a kidney
    cyst. From the limited information provided to us, it would appear that both cysts
    are benign and the appellant is receiving appropriate treatment.

[9]

We do not accept the submission that the
    sentence was unfit when it was imposed. It was imposed further to a joint
    submission. Before accepting it, the sentencing judge assured herself that the
    proposed sentence was within the appropriate range. We agree with her
    assessment.

[10]

Nor are we persuaded that the updated
    information about the appellants personal circumstances could justify a
    reduction of what we consider to be an otherwise fit sentence. The appellant
    has been eligible for day parole since September of 2021 and will be eligible
    for full parole in March of 2022. Issues concerning the appellants health and
    well-being are best dealt with by the Parole Board of Canada.

[11]

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

B.W.
    Miller J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Barrett, 2022 ONCA 143

DATE: 20220216

DOCKET: C69516

Miller, Trotter and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bismark Barrett

Appellant

Bismark Barrett, acting in person

Andrew Furgiuele, appearing as duty
    counsel

David Morlog, for the respondent

Heard: February 8, 2022 by
    video conference

On appeal from the sentence imposed on October
    29, 2020 by Justice Joseph A. De Filippis of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to possession of
    cocaine for the purpose of trafficking and was ultimately sentenced to incarceration
    for a period of 30 months.

[2]

After the sentencing judge prepared his initial
    reasons for sentence, he agreed to receive supplementary submissions from the
    defence. On the supplementary submissions, the defence revised its initial
    position and sought a conditional sentence. The basis for seeking a conditional
    sentence was (1) this courts judgment in
R. v. Sharma
, 2020 ONCA 48, (leave
    to appeal to the SCC granted 2021-01-14), which greatly expanded the courts
    ability to impose conditional sentences, and (2) worsening developments in the
    Covid-19 pandemic, which the defence argued weighed heavily in favour of a
    conditional sentence. The trial Crown argued that the risk of contracting
    Covid-19 while incarcerated was not any higher than the risk of infection the
    appellant faced by residing in Toronto, and in any event that a conditional
    sentence was not appropriate.

[3]

The sentencing judge received the submissions
    and issued his reasons for sentence. He provided his original reasons, prepared
    prior to hearing the supplementary submissions, with the supplementary reasons
    appended. The original reasons provided for a custodial sentence of 30 months. The
    supplementary reasons explained that he was not persuaded by the supplementary
    submissions to depart from the original sentence.

[4]

On appeal, Mr. Furgiuele (acting as duty
    counsel), advanced the argument that although the sentencing judge did not
    accept the trial Crowns questionable submissions on relative rates of risk, the
    sentencing judge nevertheless took an unduly narrow view of the impact of Covid
    on inmates. The sentencing judges focus, Mr. Furgiuele argued, ought not to
    have been restricted to the risk of infection faced by the appellant, and should
    have also included the negative impact of the measures that penal institutions
    were imposing to reduce the risk of Covid spread  particularly the widespread
    use of lockdowns and suspension of programs.

[5]

Despite Mr.
Furgiuele
s able submissions, we do
    not agree that the sentencing judge made any errors. The sentencing judge
    considered the submissions about the appellants risk from Covid-19 in the
    institutional setting and determined, that at that point in the pandemic, it
    did not justify a reduction in sentence below what he originally contemplated. It
    was within the discretion of the sentencing judge whether to reduce the
    appellants sentence to compensate for the deprivations that could be expected
    to result from the institutions response to Covid-19. He chose not to do so.
    This was a discretionary decision, and we are not persuaded that there is any
    basis to interfere with it.

DISPOSITION

[6]

The appeal is dismissed.

B.W.
    Miller J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.