COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shute, 2018 ONCA 805

DATE: 20181004

DOCKET: C65811

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darin Shute

Appellant

Scott C. Hutchison and Karen Heath, for the appellant

Nicole Rivers, for the respondent

Heard and released orally: October 4, 2018

On appeal from the sentence imposed by Justice William R. Wolski
    of the Ontario Court of Justice on July 26, 2018.

REASONS FOR DECISION

[1]

Following extended sentencing discussions, the
    appellant pleaded guilty to aggravated assault and breach of probation. Counsel
    agreed that the appellants pretrial custody should be credited on a 1.5 to 1
    basis and subtracted from any sentence imposed.

[2]

Counsel further agreed that the Crown would seek
    a sentence of 18 to 24 months less pretrial custody, and that the appellant
    would ask for sentence of 15 months less pretrial custody.

[3]

During the sentencing discussions, the Crown did
    not advert to pretrial custody and the appellants counsel inadvertently asked
    for sentence of 15 months in addition to pretrial custody, an equivalent of
    over 28 months.

[4]

The Crown agrees that the fresh evidence
    relating to the plea discussion and submissions should be admitted, that leave
    to appeal sentence should be granted and that the sentence appeal should be
    allowed. The issue is what sentence ought this court to impose. The Crown
    maintains its position that a sentence in the range of 18 to 24 months would be
    appropriate. The appellant acknowledges that this range is appropriate and
    asked for a sentence at the low end of the range of 18 months. The appellant
    has served 276 days of pretrial custody to be credited as 414 days.

[5]

The appellant stabbed the victim with a broken
    box cutter following an earlier altercation between the two men. The appellant
    does have an extensive criminal record, including several convictions for
    offences of violence, albeit less serious than the present offence.

[6]

Taking into account the guilty plea and the fact
    that the sentencing judge found that the appellants prospects for
    rehabilitation were good, it is our view that a sentence at the low end of the
    range suggested by the Crown would be appropriate, namely, 18 months less credit
    for time served in pretrial custody.

[7]

Accordingly, we substitute a sentence of four
    months from the date of sentencing, July 26, 2018 for the 15 months imposed by
    the sentencing judge. We impose the same two year probation term as imposed by
    the sentencing judge and we maintain the probation order.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

K.
    van Rensburg 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(1), (1.1), (2), or (3) of the
Criminal Code
shall continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an
    accused shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or on his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made,
    during the proceedings, to the presiding judge or justice or, before the
    proceedings begin, to the judge or the justice who will preside at the
    proceedings or, if that judge or justice has not yet been determined, to any
    judge or justice having jurisdiction in the judicial district where the
    proceedings will take place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging
    the reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests
    of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give
    a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to
    the making of the proposed order are available in the circumstances;

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

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

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985,
    c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16,
    s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133;
    2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1,
    s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

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. W.B.R., 2018 ONCA 802

DATE: 20181003

DOCKET: C64535

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.B.R.

Appellant

David North, for the appellant

Luke Schwalm, for the respondent

Heard: October 1, 2018

On appeal from the conviction entered on March 1, 2017 by
    Justice Susan E. Healey of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexually assaulting the complainant, his
    spouses daughter, over a period of time when the complainant was between 9 and
    11 years old. Family home life was chaotic and marred with alcohol and drug
    abuse as well as domestic violence. In January 2011, when the complainant was
    11 years old, neighbours attended at the house to intervene when the appellant
    was assaulting the complainants mother. The next day, the complainant advised
    her school principal of the domestic violence, and she and her brother were
    apprehended by the Childrens Aid Society and were subsequently adopted by an
    aunt and uncle.

[2]

In August 2015, when the complainant was 15 years old, she went alone to
    a police station to disclose the sexual assaults. This was the first time she
    had disclosed the sexual assaults to anyone.

[3]

The appellant was convicted of sexual assault and sexual interference.

[4]

At the hearing of the appeal, we dismissed the appeal with reasons to
    follow. These are those reasons.

[5]

The appellant appealed his convictions on two grounds: (1) the trial
    judge misapprehended his evidence in two serious respects; and (2) the trial
    judge applied a higher standard of scrutiny to the appellants evidence than
    the complainants.

[6]

With respect to the first ground of appeal, the appellant argued that
    the trial judge misapprehended his evidence with respect to the January 2011
    assault on the complainants mother. Specifically, he objected both to the
    trial judges finding that the appellant did not remember the incident, and the
    trial judges use of that finding to support the conclusion that his evidence
    was unreliable. The appellant argued that because the assault on the
    complainants mother was not the focus of the trial, and the complainants
    testimony about the assault was only introduced for the purposes of providing
    background narrative to explain the circumstances of the complainants
    apprehension by the CAS, it was therefore unfair to fault him for not having a
    better recollection of the incident. It was, he argued, a comparatively minor
    point. Furthermore, he argued that it was unfair because he was not questioned
    directly about what he remembered of the incident.

[7]

We do not agree that the trial judge erred. The appellant was asked both
    in examination in chief and cross-examination about the incident and he
    provided his answers. There was no obligation to follow up with more pointed
    questions. Although the appellant was not on trial for the assault against the
    complainants mother, it was nevertheless a significant event, immediately
    preceding the complainants apprehension by the CAS, and one which the
    appellant could fairly be expected to recall.

[8]

With respect to the second ground of appeal, the appellant argued that
    the trial judge erred in applying a higher standard of scrutiny to his evidence
    than the complainants. Again, we reject this argument. There were, to be sure,
    difficulties with both the appellants and the complainants evidence. However,
    the trial judge made no error in how she resolved the various inconsistencies,
    making allowance for the fact that the complainant was a young child in a
    chaotic home environment at the time of the offences. The trial judge considered
    the specific weaknesses and inconsistencies in the complainants testimony,
    but reasoned to the conclusion that they provided no reason to reject the core
    of her allegations going to the elements of each offence. She did not apply a
    differential standard of scrutiny.

DISPOSITION

[9]

The appeal is dismissed.

C.W. Hourigan J.A.

B.W. Miller J.A.

Gary T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: RJM56 Holdings Inc. v. Bazinet, 2018 ONCA
    791

DATE: 20181002

DOCKET: C64658

Simmons, Miller and Fairburn JJ.A.

BETWEEN

RJM56 Holdings Inc. and
    Kobuck Ltd.

Applicants (Appellants)

and

Michel Bazinet
, Robert Jennings and
Replicor
    Inc.

Respondents (
Respondents
)

Melvyn L. Solmon and Cameron Wetmore, for the appellants

Craig Colraine and Matthew Di Giovanni, for the
    respondent, Michel Bazinet

Linda Fuerst and Ted Brook, for the respondent, Replicor
    Inc.

Heard: September 24, 2018

On appeal from the judgment
    of Justice Frederick L. Myers of the Superior Court of Justice, dated October
    26, 2017.

REASONS FOR DECISION

[1]

The motion judge characterized the appellants' claim as one for
    oppression under the
Canada Business Corporations Act
, R.S.C. 1985, c.
    C. 44 (the "CBCA"). Relying on
Incorporated Broadcasters Ltd. v. Canwest
    Global Communications Corp.
, 63 O.R. (3d) 431 (C.A.), leave to appeal to
    S.C.C. denied, [2003] S.C.C.A. No. 186, he found that Ontario was
forum non
    conveniens
. While many of the factors in the analysis did not satisfy what
    he described as the heavy burden at play for a stay of the Ontario application,
    he concluded that the core of the dispute involved shareholders'
    dissatisfaction with internal management decisions and actions of a company
    based in Quebec, which dictated that any proceeding be dealt with there.

[2]

The appellants appeal from the motion judges decision. They argue that he
    misconstrued their claim as being simply for oppression and by failing to appreciate
    that it also included a common law claim for fraudulent misrepresentation. The
    appellants contend that had the motion judge understood the broader scope of
    the claim, he would have understood that it had a strong connection to Ontario
    where the fraudulent misrepresentations are said to have been made. His failure
    to do so is said to be an error in principle, entitling this court to revisit
    the
forum non conveniens
analysis.

[3]

We reject this argument. In their factum filed before the motion judge,
    the appellants characterized their claim as "an oppression application
    brought pursuant to s. 241 of the [CBCA]" and a statutory oppression application
    based on material misrepresentations. They asserted that the applicable law is
    the oppression provisions of the CBCA. As the motion judge noted, the
    appellants commenced their proceeding by application and chose not to sue by
    action for fraudulent misrepresentation.

[4]

Before us, the appellants pointed out that they relied on rule
    14.05(3)(h) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    which permits applications even where an action would be the norm where it is
    unlikely that there will be any material facts in dispute. They pointed also
    to para. 1(e) of the prayer for relief in their amended notice of application
    in which they claim an order setting aside or rescinding the sale transactions
    in issue  a remedy available in a common law action for fraudulent
    misrepresentation. In oral argument, they also provided copies of
1100997 Ontario Ltd.
v. North Elgin
    Centre Inc.
,
2016 ONCA 848, 409 D.L.R. (4th) 382, a decision
    confirming that courts must consider affidavit materials on an application as
    pleadings. In that case, a decision precluding the plaintiffs from adding
    certain claims for relief following a direction to deliver a statement of claim
    in an application was reversed on appeal because the material facts necessary
    to support the proposed claims had been set out in affidavits and were based on
    the same factual nexus as originally set out in the notice of application.

[5]

We find the appellants argument that any common law claim for
    fraudulent misrepresentation they may wish to pursue could proceed by
    application under rule 14.05(3)(h) a significant stretch. Because of the early
    stage of the proceeding and the
forum non conveniens
motion, the
    respondents have not delivered responding material. Given the nature of the
    claim, which normally proceeds by action, we consider the possibility it is
    unlikely that there will be any material facts in dispute remote. In any
    event, the appellants did not pursue a common law remedy in their application.
    The prayer for relief in their amended notice of application is explicitly
    confined in the preamble to requests for relief under the CBCA. Further, the
    appellants position before the motion judge as set out in their factum was
    that their claim was for oppression.  Whether
1100997 Ontario Limited

might permit some form of amendment or addition is not the issue. The
    motion judge made no error in characterizing the claim that was in front of
    him.

[6]

We also reject the appellants' arguments that the motion judge
    erred by failing to consider or give proper weight to relevant factors and by
    taking account of irrelevant factors in holding that Ontario was
forum non
    conveniens
.

[7]

The motion judge took account of
    the Ontario defamation action in reaching his decision and held that it weighed
    weakly in favour of keeping the case in Ontario. In our view, the appellants'
    argument concerning this issue is no more than a request to have us reweigh the
    relevant considerations. As the
forum non conveniens
analysis is discretionary, that is not our function
    on appeal:
Black v. Breeden,
2012 SCC 19, [2012] 1 S.C.R. 666.

[8]

The motion judge also noted this proceeding is at a very early stage and
    concluded there would be no extraordinary costs involved in either moving the case
    or keeping it here. Even assuming there is no case management system in Quebec,
    something the appellants maintain that the respondents should have proven, we fail
    to see how the presence of case management in Ontario demonstrates the case would
    necessarily proceed more quickly or efficiently in Ontario than in Quebec.
    There was limited evidence on the motion concerning Replicor Inc.'s financial
    position. We see no basis on which to interfere with the motion judges
    assessment of costs and efficiency factors in conducting his analysis. The
    proposed fresh evidence does not alter this conclusion.

[9]

The motion judges references to the Quebec oppression proceeding
    brought by Mr. Jennings were in the nature of a comment on the genuineness of
    the appellants' purported concerns about efficiency and the risk of
    inconsistent verdicts and on the significance of the libel case. These comments
    did not drive the outcome of his analysis.

[10]

Finally,
    the appellants' claim that post representation events were irrelevant is
    without merit. As the motion judge observed, the representations themselves are
    not really in issue. Rather, it is the post representation actions of the
    respondents that are at the core of the dispute and likely to render material
    facts in dispute. This reality is what drove the motion judges analysis.

[11]

The
    fresh evidence motion and the appeal are dismissed. Costs of the appeal are to
    the respondents on a partial indemnity scale payable by the appellants fixed in
    the agreed upon amounts of $22,000 to Mr. Bazinet and $7,500 to Replicor Inc.

Janet Simmons J.A.

B.W. Miller J.A.
Fairburn J.A.