CITATION:
R. v. Sinclair, 2013
ONCA 64

DATE: 20130131

DOCKET: C53020

Goudge, Rouleau JJ.A. and Ray J. (ad hoc)

BETWEEN

Her Majesty the Queen

(Respondent)

and

Ishmael Jahmar Sinclair

(Appellant)

Paul Calarco, for the appellant

Andreea Baiasu, for the respondent

Heard: November 28, 2012

On appeal from the conviction entered on June 18, 2009 by
Justice J.C. Murray of the Superior Court of Justice, sitting with a jury.

Rouleau J.A.:

INTRODUCTION

[1]

Following an eight-day jury trial, the appellant was convicted of
assault causing bodily harm, assault with an imitation firearm, attempted unlawful
confinement, using an imitation firearm in the commission of an offence, and
threatening death, all in relation to his former girlfriend.

[2]

The appellant appeals his convictions on the basis that he was
effectively excluded from his own trial when the trial judge engaged in private
conversations with potential jurors and, thereafter, excused them without
providing any explanations or soliciting any input from counsel. The appellant
also argues that the trial judge engaged in private discussions in chambers
with counsel for the Crown and the appellant concerning the form of the
Parks
question. The appellant submits that, because he was not present during these
discussions, this also constitutes reversible error.

[3]

For the reasons that follow, I would dismiss the appeal and affirm the
appellants convictions.

FACTS

(1)

The offences

[4]

As the appeal concerns only the jury selection process, a brief summary
of the facts of the offences suffices. The charges arose from two incidents
between the appellant and his former girlfriend, the complainant. The first
assault happened when the appellant put the complainant in a headlock and
twisted her body, breaking her ankle. The second incident occurred following
their break-up; the appellant accosted the complainant on her way home,
threatened her and, using an imitation handgun, tried to force her into his
car. The complainant managed to take refuge in a house nearby, called the
police, and charges were laid.

(2)

The in-chambers discussion of the
Parks
question

[5]

Prior to the appellants arraignment, counsel for the Crown and for the
accused met in chambers with the trial judge for preliminary discussions
concerning the defences in chambers application to challenge potential jurors
for cause. Following the in chambers meeting, the court convened. The
discussions which took place were summarized for the record and the wording of
the
Parks
question was finalized in open court with the appellant
present. After all counsel agreed upon the appropriate wording for the
Parks
question, the appellant was arraigned and the jury panel was brought into court.
Subsequently, the trial judge issued a written ruling on the appropriate
wording for the
Parks
question.

(3)

The private conversations with potential jurors

[6]

After the appellant was arraigned, the trial judge welcomed the jury
panel and explained to them the various reasons for which jurors might be
excused from serving on the jury. The trial judge proceeded by identifying
categories which would exempt a person from serving as a juror and then
requesting that any potential juror concerned that he or she might fall into
that category to come forward. As each juror came forward with a concern, the
trial judge ruled on whether that potential juror should be excused.

[7]

The first three categories were as follows:

1) those who may be
related to or closely associated with anyone involved in the case;

2) those who may be
related to or closely associated with any witness scheduled to testify in the
case; and

3) those with personal
knowledge of the alleged offences.

[8]

As potential jurors came forward, they expressed their concerns on the
record and the trial judge made his rulings. The difficulty arose when the
trial judge arrived at the fourth category: whether any of the potential jurors
had been accused of offences similar to those alleged in the case, knew someone
who had been accused of offences of that nature or had been a victim or was
otherwise involved in a similar offence. After setting out the category, the
trial judge remarked: We dont wish to embarrass anyone by asking questions
about personal matters. At the same time, we need to know about these things
because they may make it difficult for you to perform jury duty in this case.
If you come forward, I will discuss your situation with you.

[9]

The transcript of the first three potential jurors discussions with the
judge reads as follows:

COURT SERVICES OFFICER: Juror number 956.

THE COURT: Yes maam. You can come or if you want it to be
personal you can come closer to me. All right. This juror is excused.

COURT SERVICES OFFICER: Juror number 845.

THE COURT: Yes maam.

DISCUSSION IN PRIVATE

THE COURT: All right. Youre excused.

COURT SERVICES OFFICER: Juror number 3182.

THE COURT: Yes maam.

DISCUSSION IN PRIVATE

THE COURT: Youre excused maam.

[10]

When
the fourth potential juror came forward, the following exchange occurred:

COURT SERVICES OFFICER: Juror number 2896.

THE COURT: Yes maam.

DISCUSSION IN PRIVATE

THE COURT: Do you mind saying that out loud and Ill ask others
if they have submissions? Just the counsel, just tell them what youve said to
me and Ill ask them if they have any concerns.

DISCUSSION IN PRIVATE

Ms. MACKENZIE: Um, given the circumstances, Your Honour, Id
have some difficulty with this lady sitting as a juror.

MR. GIRVIN: I take no issue.

THE COURT: All right. I think you can take your place in the
body of the courtroom. Thank you. Thank you for coming forward.

[11]

The
fifth potential juror then came forward, explaining her difficulty with English.
The trial judge excused her, but explained for the record that she properly ought
to have come forward later when that category of concerns was being canvassed.

[12]

The
process continued for jurors who came forward in this fourth category of
English language competency and for the later categories including Canadian citizenship,
medical concerns and personal hardship. A total of 11 potential jurors were
excused after speaking privately with the trial judge.

ISSUES

[13]

There
are two issues raised in this appeal:

1.

Were the in chambers
preliminary discussions concerning the form of the
Parks
question part
of the appellants trial for the purposes of s. 650(1) of the Criminal Code?;
and

2.

Can the curative
proviso of s. 686(b)(iv),
Criminal Code
cure the breach of s. 650(1) of
the
Criminal Code
arising from the trial judges private discussions with
potential jurors?

ANALYSIS

[14]

The
issues raised in this case engage the law governing the right of an accused to
be present during the whole of his trial, as provided by s. 650(1) of the
Criminal
Code,
and the scope of application of the
Criminal

Code
s
curative proviso.

(1)  Governing Principles

[15]

Section
650(1) of the
Criminal Code
provides that an accused must be present
in court during the whole of his  trial. In the context of s. 650(1), trial
carries a broad meaning, although generally the trial proper does not commence
until after a plea is entered. Martin J.A. explained the broad interpretation
of trial for s. 650(1) purposes at para. 50 of
R. v. Hertrich
(1982), 67 C.C.C. (2d) 510 (Ont. C.A.):

trial for the purpose of the principle that an accused is
entitled to be present at his trial
clearly includes
proceedings which are part of the normal trial process for determining the
guilt or innocence of the accused such as arraignment and plea, the empanelling
of the jury,
the reception of evidence (including
voir dire
proceedings with respect to the admissibility of evidence), rulings on
evidence, arguments of counsel, addresses of counsel to the jury, the judges
charge, including requests by the jury for further instructions, the reception
of the verdict and imposition of sentence if the accused is found guilty.
[Emphasis added.]

In determining whether something which occurred at
trial falls within the meaning of trial pursuant to s. 650(1), the court must
ask whether what transpired involved the accuseds vital interests (
Hertrich
,
at para. 82).

(2)  Application to the case at bar

A. The in-chambers discussion of the form of the
Parks
question

[16]

The
appellant does not take issue with the final wording of the
Parks
question. Rather, he argues that the judges in-chambers discussion of the
wording of the
Parks
question with counsel, in the absence of the
accused, contravened s. 650(1) of the
Criminal Code
.

[17]

I
disagree. The in chambers discussions in this case were preliminary in nature.
The trial judge subsequently summarized the nature of these discussions on the
record in open court and in the accuseds presence. Counsel for both sides were
then given the opportunity to comment on the form of the question. The question
was changed and finally agreed to by all counsel. Further, all of the foregoing
took place before the appellant was arraigned and entered his plea. In
R.
v. Simon,
2010 ONCA 754, this Court held that in-chambers discussions
which are of a preliminary nature, [do] not involve any final determination
and [are] recounted in open court in the presence of the accused (para. 117)
do not form part of the trial within the meaning of s. 650(1). In my view, the
in chambers discussion of the form of the
Parks
question that occurred
in this case falls squarely into the category of discussions which are
preliminary in nature and the appellants exclusion from the discussion did not
breach s. 650(1) of the Criminal Code.

B. Did the trial judges private discussions with
potential jurors breach s. 650(1) of the
Criminal Code
and if so, does
the curative proviso apply?

(i) s. 650(1) of the
Criminal Code

[18]

The
appellant argues that, by granting potential jurors private audiences, the
trial judge improperly excluded the appellant from his trial. In 11 cases,
potential jurors were excused following these private discussions and nothing
on the record allows the appellant to know what transpired during these
discussions or why the potential jurors were excused. This breach was serious. In
the appellants submission, this breach cannot be cured by application of the
proviso and necessitates a new trial.

[19]

It
is conceded by the Crown that the screening of potential jurors following
arraignment forms part of the accuseds trial and the accused has the right to
be present. See
Hertrich
at para. 50.

[20]

The
breach of s. 650(1) in this case has been clearly established. The questioning
of the potential jurors took place after the appellant was arraigned and after
his plea was entered. In
R. v. Barrow
, [1987] 2 S.C.R. 694, the majority
held that, because the questioning of prospective jurors on issues relevant to
potential partiality occurred after arraignment and plea, it was part of the
trial for purposes of s. 650(1) (then s. 577). As set out by this court in
R.
v.

Kakegamic,
2010 ONCA 903

(at para. 29)
, whether
these inquiries occurred with respect to a jurors potential partiality or concerned
personal reasons for being excused from the jury is irrelevant. Both engage the
accuseds statutory right to be present.

(ii) Is the curative proviso applicable?

[21]

The
Crown submits, however, that this is an appropriate case to apply the curative
proviso in s. 686(1)(b)(iv). This provision of the
Criminal Code
reads
as follows:

686.
(1) On
the hearing of an appeal against a conviction or against a verdict that the
appellant is unfit to stand trial or not criminally responsible on account of
mental disorder, the court of appeal []

(
b
) may dismiss the appeal where

(iv) notwithstanding any procedural irregularity
at trial, the trial court had jurisdiction over the class of offence of which
the appellant was convicted and the court of appeal is of the opinion that the
appellant suffered no prejudice thereby []

[22]

The
Crown submits that the factors identified by this court in
R. v. Simon
as
relevant for the application of the s. 686(1)(b)(iv) proviso establish that the
appellant suffered no prejudice from not being able to hear the conversations
with some of the prospective jurors.

[23]

The
Crowns focus in submissions was on the absence of actual prejudice to the
appellant. However, in my view the concerns raised by the trial judges private
in-chambers discussions are broader than whether there was actual prejudice.
The exclusion of the appellant from discussions held with potential jurors
impairs the appearance of fairness, compromises the transparency of the trial
proceedings and is at odds with the open court principle. As set out by this
court in
R. v. F.E.E.
2011 ONCA 783 at para. 51:

Proof of actual prejudice is not a condition precedent to
demonstration of a miscarriage of justice. An appearance of unfairness will
suffice. [Citation omitted.]

[24]

The
Crown submits that, as in
Kakegamic
, the failure of the appellants
trial counsel to object should weigh strongly in favour of dismissing the
appeal. In
Kakegamic
this court applied the proviso to cure a breach
of s. 650(1) arising from discussions between the trial judge and prospective
jurors carried out of earshot of the accused. The present case, however, is
more problematic than
Kakegamic
. In
that
case
,
with one
exception,
trial counsel were able to hear the exchange that
occurred between the judge and potential jurors. In applying the proviso this
court held that, to the reasonable observer, the presence of counsel during the
conversations ensures that the interests of the appellant are fully protected
and erases the appearance that the trial judge is engaged in private
conversations concerning matters that are unknown to the accused. (para. 41) The
presence of counsel during the communications with the potential jurors distinguished
Kakegamic
from
Barrow
. In
Barrow
, the trial judge
carried out the questioning out of earshot of all counsel as well as the
accused and over the objections of counsel for the accused.

[25]

Although
I view the exclusion of counsel as highly problematic, I am, following a
careful review of the record, nonetheless satisfied that in the circumstances of
this case, the errors occasioned no prejudice or appearance of unfairness and
thus fall within the ambit of the curative proviso. I arrive at that conclusion
for several reasons.

[26]

First,
the appellants trial counsel was present throughout the entire jury selection process
and raised no objection. He did not ask to be included in the exchanges with
potential jurors, nor did he ask the trial judge to ensure that the exchanges
with the potential jurors be placed on the record. Although the failure to
object is not determinative, it is nonetheless an important factor in the
assessment of prejudice pursuant to s. 686(1)(b)(iv):
R. v. Kakegamic
,
para. 38,
R. v. Khan
, 2001 SCC 86, per LeBel J., concurring, at paras.
85-86;
Barrow
, at p. 717.

[27]

Second,
by proceeding in categories as he did, the trial judge effectively indicated to
counsel and to this court on appeal, the reason for each of the exclusions,
thus minimizing the gaps in the record that s. 650(1) strives to avoid. I draw
some comfort that this indeed was the case from the comments the trial judge
made when the fifth potential juror came forward, explaining her difficulty in
English. The judge noted that the category of concern over language would be
dealt with later, suggesting that he adhered to the procedure he outlined.

[28]

Third,
there is no reason to suggest that the process of jury selection was carried
out in anything but a manner free from prejudice to the accused. As disclosed
by the record, when the trial judge was unsure of whether a concern raised by a
potential juror justified excusing that juror, he raised it with counsel and sought
submissions. Nothing in the trial record or tendered on appeal suggests that
any of the prospective jurors were excused improperly.

[29]

Fourth,
all of the potential jurors who engaged in private conversations with the judge
were excused. As a result, we know that no one selected for the jury had
engaged in private conversations and neither the Crown nor the appellants
trial counsel used any of their peremptory challenges to challenge a juror who
engaged in a private conversation. Further, whenever a potential juror was not
excused, the explanation for the trial judges decision was placed on the
record so that counsel would not be left to guess as to why that potential
juror was left on the list.

[30]

Fifth,
the exclusion of the accused was, in a sense, inadvertent: neither the trial
judge nor counsel seems to have considered that the private conversations with
the prospective jurors might engage the accuseds right to be present under s.
650(1) of the
Criminal Code
. This inadvertence may be explained, in
part, by the fact that the trial took place before this courts decision in
Kakegamic
.
The trial judges comments on the record indicate that he was motivated by
concern that potential jurors not be embarrassed or reluctant to raise personal
issues that might impact on their potential jury service.

[31]

Although
I am satisfied that no prejudice occurred in this case and that the proviso can
safely be applied, I should not be taken to condone the practice of trial
judges engaging in private conversations with potential jurors. I acknowledge
that, as
Kakegamic
explains
,
trial judges are properly concerned about the legitimate privacy interests of
prospective jurors. A person called for jury duty is carrying out a public duty
and should not be required to publicly disclose matters that are highly personal
and sensitive. Nevertheless,
in Kakegamic
, this court explained that
the trial judge should strive to ensure that all conversations with prospective
jurors are recorded and made part of the trial record. Recording the conversations
enhances the transparency of the proceedings and accountability through
appellate review:
Kakegamic
, at para. 43. In addition, the trial
judge should place a brief explanation on the record each time a juror is
excused.

[32]

In
my view, it is also important for the trial judge, prior to undertaking the
jury selection process, to place on the record the process he or she proposes
to follow and seek comments from counsel on that process. Counsels concerns may
then be resolved and the selection may proceed in accordance with that process.
I understand, for example, that certain jurisdictions in Ontario follow a
process whereby persons summoned for jury duty who have not been excused from
attending (see for example sections 19, 23 and 24 of the
Juries Act
R.S.O. 1990 c. J.3) can express their concerns on a written form. If the
persons name is called, the person hands the form to the judge presiding over
the selection of the jury. The judge reviews it and then states for the record
whether the potential juror is excused and, with little or no detail, why. The
form, which might contain highly personal information, is available for review
by counsel and the accused and, although it is not filed as an exhibit in the
trial, is retained and serves as a record of the concern expressed by the potential
juror.

[33]

In
summary, therefore, I suggest the following steps for the jury screening and
selection process as a means by which the rights of the accused and the
appearance of the due administration of justice might be preserved while
minimizing intrusions into the privacy interests of prospective jurors:

(i) the trial judge would
first seek agreement with counsel as to the process to be followed in screening
prospective jurors and, if agreement were not forthcoming, would exercise the
discretion to decide on the process and advise counsel of it;

(ii) ensuring that a
record of the exchange between potential jurors and the trial judge is made and
retained; and

(iii) placing a brief statement
or other sufficient indication on the record as to the reason for excusing or
not excusing a potential juror.

[34]

I
acknowledge that these steps were not taken in this case. Nonetheless, in the
particular circumstances of the present case, no prejudice can be said to have
been caused to the appellant or to the appearance of justice. I would therefore
apply s. 686(1)(b)(iv) of the
Code
.

[35]

For
these reason, the appeal is dismissed.

Paul Rouleau J.A.

I agree S.T. Goudge
J.A.

I agree T.D. Ray
J.A.

Released:


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Skedden, 2013
    ONCA 49

DATE: 20130129

DOCKET: C37957

Goudge, Rouleau JJ.A., and Ray J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl James Skedden

Appellant

Catriona Verner, for the appellant

Gregory J. Tweney and Michael Medeiros, for the
    respondent

Heard: November 27, 2012

On appeal from the conviction entered on August 10, 1999
    and the sentence imposed on June 5, 2001 by Justice Joseph Scime of the Superior
    Court of Justice, sitting with a jury.

Goudge J.A. and Ray J.
(
ad hoc
):

[1]

In August of 1999, the appellant was tried for sexual assault before a
    judge and jury. He was convicted. The Crown then brought an application to have
    the appellant declared a dangerous offender and on June 5, 2001, after a
    lengthy hearing, the trial judge declared him to be a dangerous offender.

[2]

The appellant appeals his conviction, and if leave is granted, his
    sentence. For the reasons that follow, we would dismiss both appeals.

[3]

The appellant was charged with sexually assaulting the 16-year-old girl
    who was babysitting his girlfriends 10-year-old daughter Felicia.

[4]

The complainants evidence was that she had slept on the bed in
    Felicias room while Felicia slept on the floor beside her. The appellant
    entered the bedroom shortly after 7:00 a.m. while Felicia was still asleep. The
    appellant pushed the complainant onto the bed, removed her night-shirt and had forced
    sexual intercourse with her. The complainant tried to push him off and told him
    he should not be doing this, but her efforts failed. Both Felicia and her
    mother testified that Felicia was a light sleeper, at least after 6:30 in the
    morning. Felicia did not wake up during the assault. The appellants semen was
    found on the complainants underwear and night-shirt.

[5]

The appellant did not give evidence. He argued that his semen could be
    explained by consensual sexual activity, and that the frailties in the
    complainants evidence should have left the jury with a reasonable doubt
    regarding consent. He did not raise the issue of mistaken belief in consent.

[6]

The appellant raises six arguments with respect to his appeal against
    conviction.

[7]

First, he says that although the trial judge instructed the jury
    properly on the need to find beyond a reasonable doubt that there was an
    assault of a sexual nature for which there was no consent, he erred in failing
    to charge the jury that the Crown had to satisfy them beyond a reasonable doubt
    that the appellant knew that the complainant was not consenting, or was
    reckless as to whether she was consenting or not.

[8]

We reject this argument.
R. v. Robertson
, [1987] 1 S.C.R. 918
    is clear authority contrary to the proposition that such an instruction is
    always required in a sexual assault case. Nor, in our view, was there any basis
    for requiring such an instruction on the facts of this particular case. There
    was no objection at trial to this aspect of the charge. The issue at trial was
    consent. It was not whether the appellant knew of, or was reckless about the
    complainants lack of consent. There was no evidence suggesting the appellant
    did not know or care about the lack of consent. Nor was there any evidence at
    all of his honest belief in consent. Even if the complainants evidence of her resistance
    and protestations were rejected, the evidence of Felicia and her mother suggested
    no more than the complainants passivity or lack or resistance which clearly
    could not constitute consent. Nor was there any other basis for the judge to
    have to charge the jury about whether the appellant knew or was reckless as to
    the complainants non-consent.

[9]

The appellants second argument is that the trial judge invited the jury
    to speculate in two respects. First he says the trial judge suggested to the
    jury that the complainant may have feared that an outcry would provoke a
    violent response from the appellant, and therefore did not scream or cry out.
    Second, the trial judge suggested to the jury that it was open to them to find
    that the appellant appeared to be twice the appellants age and that this could
    be considered on the issue on the issue of consent.

[10]

We do not
    agree with this argument. The trial judge repeatedly instructed the jury that
    they were the sole judges of the facts. Moreover, the complainant did give
    evidence that she was scared of the appellant. This was certainly something the
    jury could consider as a basis for her not screaming or crying out. In
    addition, the apparent ages of the appellant and the complainant were before
    the jury and any comparison and the relevance of it to their deliberations was
    something the jury could assess on a common sense basis.

[11]

Third, the
    appellant argues that the trial judge erred in instructing the jury to
    disregard all questions not adopted witness. The appellant says that this
    amounts to an instruction to disregard the defence theory. Related to this, the
    appellant also argues that the trial judge erred in responding to the jurys
    question regarding the complainants version of the order of events, by reading
    back only the complainants evidence-in-chief, not her cross-examination.

[12]

We agree
    with neither of these points. The impugned instruction was merely a correct
    assertion that a question posed in the form of a suggestion does not become
    part of the evidence unless the witness adopts the suggestion. This instruction
    would not have been interpreted as a direction to disregard the defence theory.
    Indeed the charge explained the position of the defence without issue or
    complaint from counsel. Nor do we see any error in the trial judges response
    to the jurys question. It clearly sought the complainants evidence of the
    sequence of events. Prior to responding, the trial judge and counsel agreed
    that there was nothing in the complainants cross-examination on the sequence
    of events and therefore no need to include it in the read-back. We agree.

[13]

Fourth,
    the appellant argues that the trial judge erred in suggesting to the jury that
    there was an onus on the appellant to introduce evidence of the complainants
    motive to fabricate before they could acquit.

[14]

We
    disagree. At no point does the charge suggest an obligation on the appellant to
    call evidence of the complainants motive to fabricate. Rather, the trial judge
    clearly placed the onus on the prosecution throughout and made clear to the
    jury that the appellant bore no burden of proof whatsoever.

[15]

Fifth, the
    appellant says that the trial judge erred in telling the jury that they could
    use the complainants prior consistent statements to assess her credibility.

[16]

Taking it
    as a whole, we do not read the charge that way. The trial judge clearly
    explained that the prior statements cannot be used for the truth of their
    contents. He said that they were receivable as part of the narrative and
    merely to show consistency. While the last phrase would have been better left
    unsaid, we view it as benign in this context, particularly where the
    complainants prior statements contained no detail, in contrast to her detailed
    trial evidence.

[17]

Lastly,
    the appellant submits that the trial judge erred in instructing the jury that,
    if after considering the complainants evidence alone, they believed her, they
    could convict rather than considering that evidence in the context of all of
    the evidence.

[18]

We cannot
    accept this reading of the charge. The trial judge repeatedly told the jury to
    consider all the evidence in determining whether the prosecution had proven the
    allegations beyond a reasonable doubt. The jury would not have thought that
    they could assess the complainants evidence in isolation.

[19]

In
    summary, we would reject the various arguments advanced by the appellant. The
    conviction appeal must be dismissed.

Sentence

[20]

The
    dangerous offender hearing proceeded on the assumption that the long term
    offender should only be considered if the Crown failed to establish the
    appellant was a dangerous offender. This is now known as the Johnson error,
    following the case of that name decided two years later
[1]
.
    The court ruled that this approach is an error of law, and that judges must
    consider the applicability of the long term offender provisions before imposing
    a dangerous offender designation. The court also ruled that while, it would
    only be in the rarest of circumstances that an appeal would be dismissed
    because the error had created no substantial wrong or miscarriage of justice,
    the threshold would be crossed where it can be shown that there is no
    reasonable possibility that the verdict would have been any different had the
    error of law not been made.
[2]

[21]

In this
    case, we are satisfied that, an indeterminate sentence was the only appropriate
    sentence. The evidence before the trial judge made it clear that there was no
    reasonable possibility that the trial judge could have made a long term offender
    order had the procedure outlined in
Johnson
been followed. The fresh
    evidence tendered on appeal simply reinforces that conclusion.

[22]

The
    dangerous offender hearing was lengthy. It lasted 47 days over five months,
    during which 50 witnesses testified, including the appellant. The evidence fell
    roughly into two categories: the factual framework for the appellants very
    lengthy criminal record; and medical and other evidence concerning the
    appellants treatment history, psychiatric profile and prognosis. The trial
    judge gave thorough reasons of more than 70 pages.

[23]

The medical
    evidence included six experts (three psychologists and three psychiatrists) for
    the crown and one for the defence (a psychologist). The Crowns experts were
    unanimous based on the appellants treatment history and documented recidivism
    that he had a high risk to reoffend with very little chance of control. The
    point of departure amongst the experts was that Dr. Langevin for the defence
    was of the opinion that the appellants risk could be managed by a particular
    one-on-one therapy, whereas Dr. Dickey for the Crown both disagreed with Dr.
    Langevins diagnosis and with his suggested therapy, which incidentally was not
    available in the federal correctional system. The trial judge rejected Dr.
    Langevins opinion as an effective means of managing the appellants risk to
    reoffend, and accepted Dr. Dickeys opinion that the appellant was heterosexual
    with the classic clinical history of a sadist and not an ego dystonic
    homosexual.  This finding was open to the trial judge and is entitled to
    deference. It removes any possibility of the ability to manage the risk posed
    by the appellant in the community.

[24]

The trial
    judge was alive to the different tests for long term offender and dangerous
    offender, and while he did not proceed first with consideration of the long
    term offender designation, it is implicit in his thoughtful and detailed review
    of the evidence that he nevertheless conducted a thorough enquiry into the
    criteria for the long term offender designation and concluded that the
    dangerous offender finding was not only reasonable but inevitable.

[25]

There was
    nothing in the fresh evidence before us to suggest any significant change since
    the hearing in 1998.

[26]

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

Released: January 29, 2013 (S.T.G.)

S.T. Goudge J.A.

T. Ray J. (
ad hoc
)

I agree Paul Rouleau J.A.

[1]

R v. Johnson
, (2003), 177 C.C.C. (3d) 97 (S.C.C.)

[2]
Supra, page 121.This was followed more recently by this court in
R v Sipos
,
    2012 ONCA 751


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Sweitzer, 2013 ONCA 60

DATE: 20130130

DOCKET: C55356

Doherty, Simmons and Tulloch JJ.A.

Her Majesty the Queen

Respondent

and

Ronald Sweitzer

Appellant

Frances S. Brennan, for the appellant

R. Hubbard, for the respondent

Heard:  January 29, 2013

On appeal from the convictions entered by Justice R.J.
    Haines of the Superior Court of Justice, dated January 4, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We would dismiss the appeal.  The reasons demonstrate a full appreciation
    of the evidence and the specific arguments raised by the defence.  The trial
    judge addressed each argument.  He was not obligated to resolve each and every
    inconsistency in the evidence to arrive at a verdict.  We do not agree that the
    trial judge failed to examine rigorously the reliability of the complainants
    evidence.  He did so in the context of considering and rejecting the specific
    arguments of the defence.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Swift, 2013
ONCA 63

DATE: 20130131

DOCKET: C51015

Rosenberg, Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Swift

Appellant

Russell S. Silverstein, for the appellant

Melissa Adams, for the respondent

Heard: January 23, 2013

On appeal from the conviction entered on February 27,
2009 by Justice Gail S. Dobney of the Ontario Court of Justice, sitting without
a jury.

ENDORSEMENT

[1]

The appellant appeals from the judgment of Dobney J. convicting him on
charges of attempted murder, weapons dangerous, unlawful confinement, uttering threats
and assault with a weapon. The charges arise out of an incident on February 19,
2004 at a home on Hart Avenue in Toronto owned by the family of Ryan Capri, a
friend of the appellants. The principal evidence for the prosecution came from
one of two victims, William Thornhill. The other victim, Cathy Chown, did not
appear at trial. In short, it was the prosecutions case that in the course of
a confrontation about who had the right to stay in the home, the appellant
stabbed Thornhill in the abdomen and then confined him and Chown for a
considerable time. During that time the appellant assaulted Chown and
threatened her and Thornhill. There was no dispute at trial that the appellant
had stabbed Thornhill; his defence was self-defence.

[2]

The appellant did not testify. Instead he relied upon the evidence of a
friend, Afzal Dadhisheth (referred to in the evidence as Aya), who was also at
the home for part of the time. Dadhisheth testified that he saw Thornhill take
hold of a baseball bat and swing it at the appellants head. He saw the
appellant attempt to protect his head with his hands but the bat connected with
the appellants face at least once, drawing blood. Dadhisheth then left the
house. He did not see the appellant take hold of a knife, did not see how the
appellant was able to disarm Thornhill, and did not see how the appellant
stabbed Thornhill.

[3]

The appellant submits that the trial judge applied different standards
of scrutiny, applying a stricter standard to Dadhisheths evidence than
Thornhills. He also submits that the trial judge misapprehended some of the
evidence. In the result, the trial judge wrongly rejected Dadhisheths evidence.
We do not agree and accordingly, the appeal is dismissed.

[4]

The appellants argument centres on the summary of reasons the trial
judge gave for rejecting Dadhisheths evidence:

I must comment on the credibility of Ayas evidence. I find it
implausible, if he had truly seen his friend struck in the face with a baseball
type swing, that he would have done nothing. While he himself might not have
been of a physical stature to get involved, he had options, including asking
for help from other friends of Mr. Swift who were there in the house. Aya
contradicted Mr. Capris evidence as to who was in charge of the house,
indicating he himself had been asked to take charge in his absence. He did not
tell anyone but Mr. Capri about events that happened that evening, leaving
questions as to his memory of events. No baseball bat was seen by the police anywhere
in the house, although the complainant himself agrees that there had been one,
although not in his hands.

Mr. Thornhill agrees that Aya left the premise without helping,
but indicated that this was after Mr. Swift had stabbed him the first time. In
my view this is a much more understandable state of affairs in that a relative
stranger, not his friend Mr. Swift, was in trouble, and Aya was neither able
nor inclined to help him.

In holding this it is implicit in my finding that I do not
accept the evidence of Aya that Mr. Thornhill had a bat in his hands and was
swinging it and connecting with the face of Mr. Swift. The injury described by
Aya from this alleged swing with a bat consisted of nothing but a bit of blood,
and no other harm that would be more in keeping with a vicious assault to the
face with a weapon.

[5]

In his very helpful submissions, Mr. Silverstein carefully reviewed each
of the reasons given by the trial judge in an attempt to demonstrate that they
represented either a stricter level or scrutiny or involved a misapprehension
of the evidence. We briefly consider each of those submissions.

Implausibility of leaving without helping; not telling anyone
else about the attack by Thornhill

[6]

The appellant submits that the trial judge failed to take into account
that Dadhisheth was young and probably frightened and it was a natural reaction
to want to not get involved. This could be one explanation for the conduct, but
the trial judge could properly consider the implausibility of Dadhisheths
conduct as a whole. It was not just that Dadhisheth left without summoning help
or doing anything else; for two years, he told no one other than Ryan Capri what
he had witnessed, and did not come forward to the prosecution or the defence to
help the appellant, someone he described as a very close friend. According to
Capri, Dadhisheth was present when the police came to the house. Dadhisheth did
not tell them that his close friend had been attacked. Given the full context,
the trial judge was entitled to find Dadhisheths conduct implausible, if he
really witnessed the attack by Thornhill, and that it was therefore
unbelievable that the incident he described had occurred.

Contradiction as to who was in charge of the house

[7]

Ryan Capris family owned the house where the incident occurred. He was
staying in Hamilton during the relevant time. There was a dispute as to who he had
left in charge of the house. Thornhill claimed that he had been left in charge.
At the time he was living with Chown, who was Capris aunt. Capri testified
that he left only the appellant in charge. Dadhisheth testified that Capri told
him, the appellant and an occupant of the home, Andrew Brunelle, that they were
in charge. The trial judge found as a fact that Capri had left the appellant in
charge of the house and not Thornhill, who was a virtual stranger to him. The
trial judge held, however, that Thornhill still might have had the belief that
he had some role to play in looking after the house.

[8]

The appellant submits that the trial judge was applying different
standards of scrutiny on this issue. While she found it understandable that
Thornhill could believe he had a role, she held it against Dadhisheth that he
believed he had a role. In our view, this does not reflect an erroneous
approach to the assessment of credibility. The trial judge explained why
Thornhill could have this belief, because of his relationship with the owners
aunt. Dadhisheth had no similar connection. He did not live at the home and was
nothing more than a frequent visitor.

No baseball bat was found

[9]

The appellant submits that given that Thornhill testified to seeing a
bat, the trial judge erred in taking into account that the police did not find
one. We agree that the trial judge ought not to have attached any weight to
this issue. However, this was but one factor of several and not a determinative
point.

The injury to the appellant

[10]

The
appellant submits that the trial judge misapprehended the evidence by stating
that Dadhisheth only saw a bit of blood. It may not have been entirely
accurate to describe Dadhisheths evidence as being that he only saw a bit of
blood, but this was not a decisive misapprehension of the evidence and the
trial judges finding against Dadhisheths credibility on this issue was
well-founded in the evidence. Dadhisheth described an attack of considerable
force and brutality in which Thornhill was really going at it like he was
playing baseball. That Dadhisheth only saw some blood on the appellants face
and no other injuries and no other effect on the appellant strongly suggested
that the attack did not take place as described by Dadhisheth. There was no
independent evidence of any injuries to the appellant. In short, the objective
evidence was inconsistent with Dadhisheths version of events.

The injury to Thornhills hand

[11]

The
appellant submits that the trial judge misapprehended the evidence of the
injury to Thornhills hand. The trial judge found that the injury to
Thornhills hand was inconsistent with Dadhisheths description of the way
Thornhill was holding the bat. The appellant submits that properly understood
the injury to Thornhills hand was to the outside and therefore it was possible
that Thornhill was holding a bat when his hand was struck with the knife.
Unfortunately, no oral evidence was called from a physician and the parties
relied upon a medical report that is difficult to interpret. However, the
transcript shows that Thornhill showed the scar to his hand to the trial judge.
The trial judges description of the placement of the scar confirms that it
could not have been inflicted if Thornhill was holding a bat as described by
Dadhisheth. More to the point, the trial judge was in the preferred position to
make this factual determination. The record does not support the allegation
that she misapprehended the evidence.

The Assessment of Thornhills testimony

[12]

The
appellants submits that the trial judge was on the whole more forgiving of
problems with Thornhills evidence than was warranted by the record. He submits
that she forgave serious inconsistencies in his evidence and failed to
appreciate how those inconsistencies undermined Thornhills evidence. We do not
agree. The trial judge fairly assessed Thornhills evidence. She noted his
tendency to exaggerate and took it into account. The fact remains that there
was no dispute that the appellant stabbed and gravely injured Thornhill. The
evidence in support of self-defence was frail. Even giving some credit to
Dadhisheths account, the balance of the evidence is simply against
self-defence. We have noted the lack of evidence of any injuries to the
appellant. There is no evidence as to how the appellant disarmed Thornhill, how
he inflicted the grievous knife wound to Thornhills abdomen in self-defence or
why he had to resort to potentially deadly force.

DISPOSITION

[13]

The
test for reversing a trial judges verdict based upon alleged misapprehension
of the evidence and approach to credibility assessment is whether the trial
judge committed a palpable or overriding error. While we have noted a minor
error by the trial judge, that error does not rise to the level of reversible
error.

[14]

Accordingly,
the appeal is dismissed.

M. Rosenberg J.A.

Janet
Simmons J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Tang, 2013
    ONCA 45

DATE: 20130125

DOCKET: C50864

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiang Tang

Appellant

Russell Silverstein, for the appellant

Amy Alyea, for the respondent

Heard and released orally: January 17, 2013

On appeal from the decision of Justice Jane E. Kelly of
    the Superior Court of Justice, sitting as a summary conviction appeal court judge,
    dated July 10, 2009, dismissing the appeal from the conviction entered by
    Justice C.H. Paris of the Ontario Court of Justice, on November 29, 2006.

ENDORSEMENT

[1]

The appellant was charged with two counts of assault, assault with a
    weapon and possession of a weapon for the purpose of committing an offence, arising
    out of a domestic dispute with his wife.  At trial, he was acquitted of the two
    assault charges and convicted of the assault with a weapon charge.  The weapon
    possession charge was stayed on the basis of
R. v. Kienapple
, [1975] 1
    S.C.R. 729.  The appellant received a suspended sentence, plus one year
    probation.  His appeal from conviction and sentence to the summary conviction
    appeal court was dismissed.  He now seeks leave to appeal to this court and, if
    leave be granted, appeals from conviction on the sole ground that the trial
    verdict was unreasonable.

[2]

It is well settled that leave to appeal to this court on a question of
    law alone under s. 839(1)(b) of the
Criminal Code
is granted sparingly
    and only in exceptional cases.  In
R. v. R.R.
, 2008 ONCA 497, Doherty
    J.A. of this court described the limited circumstances in which leave to appeal
    should be granted as falling generally within two categories of cases: (1)
    where the proposed question of law has significance to the administration of
    criminal justice generally; or (2) where there appears to be a clear error,
    even if it cannot be said that the error has significance to the administration
    of justice beyond the specific case.

[3]

The appellant argues that this case comes within the second category of
    cases.  We disagree.

[4]

We are not satisfied that the appellant has met the requisite threshold
    for leave.  Contrary to the appellants submission, there was direct evidence
    in this case on which a properly instructed jury, acting judicially, could have
    convicted the appellant of the assault with a weapon charge.  The appellants
    14-year old son witnessed the altercation between the appellant and his wife.
    His evidence of the events that transpired, including the appellants holding
    of a knife in his wifes direction while their argument continued and the
    appellant demanded money, was sufficient to ground the conviction.  The trial
    judge did not err in his appreciation or treatment of the evidence.  On the
    contrary, he properly took account of the full circumstances surrounding the
    incident, including the fact that the appellant had pushed his wife moments
    before fetching the knife, and, based on that evaluation, concluded that the
    assault with a weapon charge had been made out.

[5]

It follows that the summary conviction appeal court judge properly found
    that the trial verdict was not unreasonable.  In these circumstances, we see no
    merit to the appellants proposed appeal.  The appellant merely seeks to
    relitigate the same issue that was fully and properly addressed by the summary
    conviction appeal court judge.

[6]

The requirements for leave to appeal not having been met, leave to
    appeal is denied.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.

Sarah
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Toulouse, 2013
    ONCA 22

DATE: 20130116

DOCKET: C55193

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jordan Toulouse

Respondent

Greg Skerkowski, for the appellant

Julie Santarossa, for the respondent

Heard and released orally: January 11, 2013

On appeal from the sentence imposed on February 14, 2012
    by Justice Dianne Pettit Baig of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The Crown appeals from the 14-month conditional sentence imposed by the
    trial judge for aggravated assault.  The respondent agrees that the trial judge
    erred in law and that a conditional sentence was not available for this offence.
    We agree that a sentence of incarceration would have been appropriate.

[2]

However, the respondent has served approximately 11 months of his
    sentence and we think no useful purpose would be served by incarcerating the
    respondent at this time.  We are of the opinion that, having regard to the
    strong rehabilitative potential the appellant has shown and, bearing in mind
    the
Gladue
principles, the appeal as to sentence should be allowed and
    the sentence varied to a jail sentence of approximately 11 months, whose time
    has been served.  In addition, we affirm the trial judges order for the taking
    of DNA samples pursuant to s. 487.051 of the
Criminal Code
and the
    order under s. 109 of the
Criminal Code
prohibiting the respondent
    from possessing weapons for five years.  We also impose a probation order of 12
    months from today on the terms indicated in the order.

K.M. Weiler J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Rinaldo
    Hair Stylist Limited v. bcIMC Realty Corporation,
2013 ONCA 38

DATE: 20130122

DOCKET: C55703

Doherty, Laskin and Blair JJ.A.

BETWEEN

Rinaldo Hair Stylist Limited

Plaintiff (Appellant)

and

bcIMC Realty Corporation and Bentall Retail
    Services LP

Defendants (Respondents)

Kenneth Radnoff, Q.C. and Brian N. Radnoff, for the
    appellant

Raymond M. Slattery and Sepideh Nassabi, for the
    respondent bcIMC Realty Corporation

Jeff G. Saikaley, for the respondent Bentall Retail
    Services LP

Heard and released orally: January 16, 2013

On appeal from the judgment of Justice Wolfram Tausendfreund
    of the Superior Court of Justice, dated May 29, 2012.

ENDORSEMENT

[1]

This was an appropriate case for summary judgment, in our view. Given the
    record, the motion judge was in a position to have a full appreciation of the
    evidence, and we do not see that the trial judge would have a record that
    would be in any way substantially different.

[2]

We do not agree that the motion judge purported to apply a principle
    that as a matter of law there were two periods of negotiation (one before the
    time for renewing the option and a new ball game thereafter). Rather, he
    reviewed the conduct of the parties as a whole and concluded that that conduct
    did not amount to wai
ver of the notice requirement in the
    circumstances. His findings at para. 24 of his reasons are well supported on
    the record.

[3]

With respect to the post-deadline negotiations, the motion judge simply
    concluded that they were not negotiations about the tenants renewal option,
    but were instead negotiations regarding a potential new and different lease.
    This conclusion was also supported by the record.

[4]

In these circumstances, we also disagree that it was bad faith on the
    part of the landlord to consider other tenant options either before or after
    the renewal period or that its conduct somehow impeded or eviscerated the
    renewal option right.

[5]

The appeal is therefore dismissed with costs to each respondent fixed in
    the amount of $10,000 inclusive of disbursements and applicable taxes.

D. Doherty J.A.

John Laskin J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Schutzman (Re), 2013 ONCA 48

DATE: 20130129

DOCKET: C55775

Rosenberg, Epstein and Lauwers JJ.A.

IN THE MATTER OF: SCOTT J. SCHUTZMAN a.k.a. PROFESSOR
    STARSON

AN APPEAL UNDER PART XX.1 OF THE
CODE

Professor Starson, appearing in person

Anita Szigeti,
amicus curaie

Avene Derwa, for the Crown

Janice Blackburn, for the person in charge of the Centre
    for Addiction and Mental Health

Heard: January 22, 2013

On appeal against the disposition of the Ontario Review
    Board dated, June 17, 2012.

ENDORSEMENT

[1]

Professor Starson appeals the June 17, 2012 disposition of the Ontario
    Review Board in which the Board, rather than granting the appellant the
    absolute discharge he sought, granted a conditional discharge on terms that
    included reporting to the person in charge of the Centre for Addiction and
    Mental Health once a week.

[2]

The appellant has been detained in various mental health facilities
    since November 1998 when he was found not criminally responsible for two counts
    of threatening death.

[3]

While exceptionally gifted in physics, Professor Starson unfortunately
    suffers from a condition identified as schizoaffective disorder.  At this point
    his symptoms, which include extremely intimidating behaviour, are controlled by
    anti-psychotic medication.

[4]

The appellant, supported by
amicus
, argues before this court as
    he did before the Board, that the evidence does not support a finding that he
    poses a significant threat to public safety per
Winko v. BC (Forensic
    Psychiatric Institute)
, (1999) 135 C.C.C (3d) 129 (SCC) per McLachlin J.
    at p.  163, para 61, and therefore the Board erred in not ordering an absolute
    discharge.

[5]

In our view, based on the circumstances at the time of the hearing, the
    Board reasonably concluded that the appellant remains a significant threat to
    the safety of the public.  The Board relied on the expert medical evidence of
    Dr.  Mark Pearce, who is Professor Starsons long-time psychiatrist, and on the
    historical evidence referred to by Dr. Pearce and laid out in the medical
    history. The evidence was overwhelming that if he were to be unsupervised, the
    appellant would immediately stop all medication; this, in fact, was his own
    evidence.  The Board found that without his medication the appellant would
    quickly decompensate and become delusional, and would soon engage in
    threatening behaviour that would create a significant risk of harm to members
    of the public.

[6]

After balancing the goals of public safety with fair treatment of the
    appellant, the Board also reasonably concluded that a discharge with conditions
    that would ensure that his condition is regularly monitored and that he takes
    his medication, was the "least onerous and least restrictive"
    disposition available.

[7]

The Boards conclusions are owed considerable deference:
R. v. Owen,

(2003) 174 C.C.C. (3d) 1 (SCC).  Given that the Board made no error of law
    and that its findings were supported by the evidence, there is no basis to
    interfere.

[8]

The appeal is therefore dismissed.

M. Rosenberg J.A.

Gloria
    Epstein J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Selznick v. Selznick, 2013
    ONCA 35

DATE: 20130121

DOCKET: C55060

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Mirilyn Rachel Selznick (now Mirilyn Rachel
    Sharp)

Applicant/Appellant
    in Appeal

and

Stephen Selznick

Respondent/Respondent in Appeal

Stephen Grant, for the appellant

Diane E. Klukach, for the respondent

Heard: September 19 and 20, 2012

Released: October 12, 2012

On appeal from the order of Justice Susan E. Greer of the
    Superior Court of Justice dated November 9, 2011 and January 21, 2012.

COSTS ENDORSEMENT

Costs
    of the Appeal

[1]

The appellant seeks her costs of the appeal from the respondent, on a
    full recovery basis, in the amount of $79,472.30. Alternatively, the costs she
    claims, on a partial recovery basis, are $39,924.36.

[2]

The respondent seeks his costs of the appeal from the appellant, on a
    partial recovery basis, in the amount of $29,733.61.

[3]

As this court has observed, a costs award should reflect an amount that
    is fair and reasonable for the unsuccessful party to pay: see
Boucher v.
    Public Accountants Council for the Province of Ontario
(2004), 71 O.R. (3d)
    291. The principles embodied in the
Family Law Rules
, O. Reg. 114/99, also
    provide guidance in addressing costs in a family law appeal, even though those
    rules do not strictly apply to this court: see rule 1(2).

[4]

Rule 24(1) of the
Family Law Rules
provides that there is a
    presumption that a successful party is entitled to the costs of an appeal.

[5]

The parties identified five issues to be argued on the appeal. The
    respondent was successful on four of those issues, but was unsuccessful on the
    fifth, his motion to introduce fresh evidence.

[6]

Apart from the issue of the admission of fresh evidence, the respondent
    was therefore successful on the appeal. As such, he is entitled to his costs of
    the appeal.

[7]

Rule 24(11) of the
Family Law Rules
provides that the court
    should consider the following factors when fixing the amount of costs:

a)

the importance,
    complexity or difficulty of the issues;

b)

the reasonableness or
    unreasonableness of each partys behaviour in the case;

c)

the lawyers rates;

d)

the time properly
    spent on the case, including conversations between the lawyer and the party or
    witnesses, drafting documents and correspondence, attempts to settle,
    preparation, hearing, argument and preparation and signature of the order;

e)

expenses properly paid
    or payable; and

f)

any other
    relevant matter.

[8]

The issues were of obvious importance to the parties and, based on a
    review of the parties respective bills of costs, the time spent on behalf of
    the respondent by his lawyers and their hourly rates are reasonable. The
    respondent reduced his claim for costs by 10% to reflect his lack of success on
    the fifth issue. He legitimately included a claim for the costs of the August
    28, 2012 court attendance, at which time Ducharme J.A. reserved the costs of
    the attendance to the panel hearing the appeal.

[9]

Certainly the appeal record was voluminous. Not all of the costs claimed
    by the respondent that are associated with the appellants numerous motions and
    factums filed in this court are appropriately visited upon the appellant,
    however. In particular, the costs arising from the appellants August 14, 2012 motion
    to file a reply factum, which addressed the inclusion of a new document in the
    respondents materials, should not be borne by the appellant.

[10]

The
    appellants offers to settle the appeal do not attract the cost consequences
    contained in Rule 18 of the
Family Law

Rules
(or Rule 49 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194). The motion judges order was
    upheld on appeal. The total amount the motion judge ordered the respondent to pay
    to the appellant was less than the total amount requested in the appellants
    offers. The appellant was always able to bring a motion to seek an additional
    contribution to the Cornell University expenses. The appeal did not change this
    fact.

[11]

In
    our view, a costs award of $25,000 in favour of the respondent is fair and
    reasonable in the circumstances.

[12]

The
    respondent requests that the costs award be enforceable against the appellant
    by the Family Responsibility Office. This costs order is a support order under
    s. 1(1) of the
Family Responsibility and Support Arrears Enforcement Act,
    1996
, S.O. 1996, c. 31, and is therefore enforceable by the Family
    Responsibility Office: see e.g.
A.M.D. v. A.J.P.
(2003), 167 O.A.C. 274
    (C.A.). The respondents request is therefore granted.

Costs of the Underlying Motion

[13]

The
    appellant also seeks her costs of the underlying motion in the amount of
    $54,192.74.

[14]

The
    costs award of the motion judge was rendered one day before the hearing of this
    appeal. She awarded the respondent costs in the amount of $32,974.57 inclusive
    of HST and disbursements.

[15]

The
    appellant did not seek leave to appeal the motion judges cost award and that award
    was not properly before this court. Counsel on the appeal were expressly
    advised that this court did not propose to address the costs awarded in the
    motions court.

[16]

If
    the appellant persists in her desire to appeal the motion judges cost award,
    she must seek leave of this court pursuant to s. 133(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43. Counsel for the respondent indicated
    that the respondent would not take the position that the appellant was out of
    time to seek leave to appeal the motion judges cost award. If the appellant
    decides to pursue a request for leave, she should do so on an expeditious
    basis.

[17]

In
    summary, the appellant is to pay the respondent his costs fixed in the amount
    of $25,000 inclusive of disbursements and applicable taxes.

Doherty J.A.

Alexandra Hoy J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Steen v. Islamic
    Republic of Iran, 2013 ONCA 30

DATE: 20130121

DOCKET: C54635

Winkler C.J.O., Armstrong and Watt JJ.A.

BETWEEN

Alann B. Steen, John Rose Jr. (Representative of
    the Estate of Virginia Steen), Eric Jacobsen, Paul Jacobsen, Diane Jacobsen and
    Doris Fisher

Plaintiffs (Appellants/Respondents
  by way of cross-appeal)

and

Islamic
    Republic of Iran, Iranian Ministry of Information and Security, and
    Iranian Revolutionary Guard

Defendants (Respondents/Appellants
  by way of cross-appeal)

Mark H. Arnold, François Larocque and Syed Ali Ahmed,
    for the appellants/ respondents by way of cross-appeal

James A. Woods, Sarah Woods and Barbra Miller, for the
    respondents/ appellants by way of cross-appeal

Heard: May 23, 2012

On appeal from the judgment of Justice Katherine B.
    Corrick of the Superior Court of Justice, dated November 1, 2011, with reasons
    reported at 2011 ONSC 6464, 108 O.R. (3d) 301.

Armstrong
    J.A.:

Introduction

[1]

This is an appeal from a judgment granting a motion to dismiss the
    appellants claim for enforcement of two American judgments against the
    respondents, Islamic Republic of Iran, Iranian Ministry of Information and
    Security, and Iranian Revolutionary Guard. The motion judge granted the
    respondents motion on the basis that the
State Immunity Act
, R.S.C.
    1985, c. S-18 (the
SIA
), bars the appellants enforcement claim. The
    cross-appeal concerns the motion judges decision to award costs against the
    respondents even though they were successful on the motion. For the reasons
    that follow, I would dismiss both the appeal and the cross-appeal.

Background

[2]

Between 1982 and 1988, Iran directed the kidnapping and detention of 18
    American citizens in Beirut, Lebanon, for the purpose of collecting a ransom.
    Alann Steen and David Jacobson were two of the individuals kidnapped. Both were
    detained for an extended period of time, kept in inhumane conditions, and
    subjected to mental and physical abuse.

[3]

Alann Steen and his wife, Virginia Steen, sued the respondents in the
    United States District Court for the District of Columbia for damages arising
    out of Mr. Steens captivity. The respondents did not appear. On July 31, 2003,
    the court awarded a judgment of US$342,750,000 against the respondents.

[4]

David Jacobsens children, Eric, Paul and Diane, and his sister, Doris
    Fisher, sued the respondents in the same court for damages arising out of David
    Jacobsons captivity.
[1]
Again, the respondents did not appear. On October 6, 2006, the court awarded a
    judgment totalling US$6,400,000 against the respondents.

[5]

These judgments have not been satisfied in the United States and the
    appellants commenced an action in Ontario seeking to enforce them. The
    respondents moved under rule 21.01(2) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, to dismiss this action on the basis that they are immune
    from the jurisdiction of any court in Canada pursuant to s. 3(1) of the
SIA
.
    This provision reads: Except as provided by this Act, a foreign state is
    immune from the jurisdiction of any court in Canada.

[6]

Before the motion judge, the appellants submitted that the respondents
    conduct that gave rise to the American judgments constituted commercial
    activity within the definition of s. 5 of the
SIA
, which states: A
    foreign state is not immune from the jurisdiction of a court in any proceedings
    that relate to any commercial activity of the foreign state. The appellants
    argued that, based on the commercial activity exception, the respondents are
    not immune from the courts jurisdiction. In the alternative, the appellants
    contended that the common law of state immunity continues to apply, which
    precludes immunity for acts of terrorism, kidnapping, torture and
    hostage-taking committed by or on behalf of sovereign states.

[7]

The motion judge held that kidnapping and detention do not constitute
    commercial activity under the
SIA
and therefore the exception under s.
    5 does not apply. Following this courts decision in
Bouzari v. Iran

(2004), 71 O.R. (3d) 675, the motion judge also concluded that the
SIA
is a complete code that permits no common law exceptions.

[8]

The appellants also sought a stay of the proceedings pursuant to s. 106
    of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, in the event that
    the motion judge ruled that the
SIA
barred the action. The request for
    a stay was premised on proposed legislation then before the House of Commons,
    which would have amended the
SIA
to prevent a listed foreign state
    from claiming immunity from the jurisdiction of the Canadian courts in relation
    to its actions in support of terrorism. It was submitted that Iran would be one
    of the listed states, which would remove its immunity under the
SIA
.

[9]

The motion judge declined to grant the stay as the proposed legislation
    had not passed through Parliament.

[10]

Despite
    the respondents success on the motion, the appellants were awarded costs of
    $70,000.

The Change in the Law Since the Decision of the Motion Judge

[11]

Following
    the motion judges decision, the
Justice for Victims of Terrorism Act
,
    S.C. 2012, c. 1, s. 2 (the
JVTA
), came into force on March 13, 2012.
    Section 4(5) of the
JVTA
provides:

A court of competent jurisdiction must recognize a judgment of
    a foreign court that, in addition to meeting the criteria under Canadian law
    for being recognized in Canada, is in favour of a person that has suffered loss
    or damage [as a result of terrorist acts that would be punishable under Part
    II.1 of the
Criminal Code
]. However, if the judgment is against a
    foreign state, that state must be set out on the list referred to in subsection
    6.1(2) of the
State Immunity Act
for the judgment to be recognized.

Concomitantly, the
SIA
was amended to provide
    for a list of countries that would not [be] immune from the jurisdiction of a
    court in proceedings against it for its support of terrorism on or after
    January 1, 1985:
SIA
, s. 6.1(1). On September 7, 2012  after this
    appeal had been heard  the Governor General in Council established the list of
    countries, which includes the Islamic Republic of Iran:
Order Establishing
    a List of Foreign State Supporters of Terrorism
, SOR/2012-170, s. 2.

[12]

At
    the time of the argument of this appeal (May 23, 2012) counsel for the appellants
    knew that Iran would likely be listed pursuant to s. 6.1(2) of the
SIA
in September 2012. Counsel advised that he expected the appellants would pursue
    whatever rights they had as a result of the new legislative regime. However,
    the appellants still wished to pursue this appeal.

[13]

In
    oral argument, the court questioned counsel for the appellants about the need
    for pursuing this appeal. The court pointed to what appeared to be at that time
    the imminent addition of Iran to the list of countries that are not immune from
    jurisdiction in proceedings concerning a states support for terrorism.

[14]

Counsel
    acknowledged having considered the question of mootness with respect to this
    appeal. However, counsel took the position that it was not certain at that point
    whether Iran would be added to the list, and so the appeal was not yet moot.
    Counsel requested the court to decide the issues on the appeal in light of the
    law as it stood at the time the appeal was argued.

[15]

This
    court cannot simply ignore that Iran has been added to the list of foreign
    state supporters of terrorism referred to in s. 6.1(2) of the
SIA
.
    However, I would be prepared to decide the issues raised by the appellants
    because it is not a foregone conclusion that the addition of Iran to the list
    will result in a successful proceeding to enforce the two American judgments.
    Such further proceeding in the Superior Court of Justice would require a
    consideration,
inter alia
, of the application of s. 6.1(1) of the
SIA
and s. 4 of the
JVTA
to the
    present circumstances
.

The Appeal

[16]

The
    appellants raise the following grounds of appeal:

(i)    The
    motion judge erred in concluding that the kidnapping and detention of Alann
    Steen and David Jacobsen did not constitute commercial activity within s. 5 of
    the
SIA
.

(ii)   The
    motion judge erred in failing to apply a common law exception to state immunity.

(iii)  The
    motion judge erred in failing to conclude that the respondents lost the benefit
    of state immunity by committing acts in violation of peremptory norms of
    international law (
jus cogens
).

Analysis

(i)

The Commercial Activity Exception

[17]

In
Bouzari
, some of the same legal issues were raised before this court.
    While the facts in
Bouzari
are not identical, there are similarities
    to the case at bar. Over a six-month period, Houshang Bouzari was abducted,
    imprisoned and brutally tortured by agents of the Iranian government. After his
    release, he escaped from Iran and eventually ended up in Canada as a landed
    immigrant where he sued Iran for damages.

[18]

On
    a motion before in the Ontario Superior Court of Justice, Swinton J. found that
    the action could not succeed because it was barred by the
SIA
and it
    did not fall within the exceptions in the
SIA
. The case was appealed
    to this court.

[19]

Goudge
    J.A., writing for the court, agreed with the motion judge that the commercial
    activity exception in s. 5 of the
SIA
did not apply. At para. 51 of
    his reasons he said:

I agree ... that the commercial activity exception does not
    apply here. Section 5 of the Act requires that the acts to which the
    proceedings relate (namely the acts of torture) be commercial in nature. It is
    not enough that the proceedings relate to acts which, in turn, relate to
    commercial activity of the foreign state. To interpret the exception in this
    way, as the appellant contends, would broaden the exception beyond the clear
    language of the
SIA
.

[20]

The
    appellants submit that the present case is distinguishable from
Bouzari
.
    In that case, Mr. Bouzari was kidnapped, imprisoned and tortured for refusing
    to pay a bribe in the context of an oil and gas transaction. Goudge J.A. held,
    at para. 53, that apart from their purpose, the acts of torture underpinning
    the appellants action cannot be said to have anything to do with commerce. In
    essence, torture is not a commercial act.

[21]

The appellants argue that in this case, the systematic
    exchange of hostages for money and guns does constitute a commercial act. They
    contend that it makes no difference to the legal analysis that the
    consideration for money and guns was human beings, rather than a commodity like
    oil.

[22]

I
    agree with the motion judge, at para. 42, that the exchange of human beings
    for weapons and money [does not fall] within the ordinary meaning of commercial
    activity in s. 5 of the [
SIA
]. A mere nexus to commercial activity is
    insufficient to invoke the exception. Rather, the nature of the acts for which
    relief is sought  in this case kidnapping, detention and torture  must be
    commercial. As the motion judge held, at para. 42, [t]he fact that Iran
    demanded the payment of money and weapons before releasing Mr. Jacobsen and Mr.
    Steen does not alter the true nature of hostage taking as a brutal criminal
    act.

[23]

I
    thus would not give effect to the first ground of appeal.

(ii)

The
    Alleged Common Law Exception to State Immunity

[24]

The
    appellants argue that the motion judge failed to apply the decision of the
    Supreme Court of Canada in
Kuwait Airways Corp. v. Iraq
, 2010 SCC 40,
    [2010] 2 S.C.R. 571, which they submit left open the question whether there is
    a common law exception to state immunity. LeBel J., writing for the court, said
    at para. 24:

As I mentioned above, the
SIA
represents a clear
    rejection of the view that the immunity of foreign states is absolute. It
    reflects a recognition that there are now exceptions to the principle of state
    immunity and in so doing reflects the evolution of that principle at the international
    level. But I need not determine here whether the
SIA
is exhaustive in
    this respect or whether the evolution of international law and of the common
    law has led to the development of new exceptions to the principles of immunity
    from jurisdiction and immunity from execution (on this issue and the
    controversies it has generated, see F. Larocque, La
Loi sur limmunité des
    États
canadienne et la torture (2010), 55 McGill L.J. 81). It will
    suffice to determine whether the commercial activity exception applies in the
    case at bar.

According to the appellants, at common law, Iran does
    not benefit from state immunity on the facts of this case.

[25]

In
Kuwait Airways
, LeBel J. found it was unnecessary to decide the issue
    whether common law exceptions to state immunity exist, since the case could be
    disposed of on other grounds. However, this court in
Bouzari
concluded
    that the exceptions to state immunity listed in the
SIA
are
    exhaustive. At paras. 56-59, Goudge J.A. said:

The final argument related to the
SIA
issue is raised
    by the intervener CLAIHR. It argues that the enactment of the
SIA
has
    not displaced the common law of state immunity and that, under that common law,
    torture cannot be legitimized as a government act and cannot therefore attract
    immunity.

In my view, the wording of the
SIA
must be taken as a
    complete answer to this argument. Section 3(1) could not be clearer. To
    reiterate, it says:

3.(1)
Except
    as provided by this Act
, a foreign state is immune from the jurisdiction
    of any court in Canada [Emphasis added].

The plain and ordinary meaning of these words
    is that they codify the law of sovereign immunity. Indeed in
Re Canada
    Labour Code
, [
[1992] 2 S.C.R. 50]

La Forest J.
    says exactly that at 69:

This appeal raises the issue of sovereign
    immunity,
as codified in the
State Immunity Act.

[Emphasis added].

Thus the appellant is left with the exceptions
    in the Act

[26]

Counsel
    for the appellants invites us to reconsider the courts characterization of the
SIA
in
Bouzari
and to apply a common law exception to state
    immunity. In my view, not only are we bound by the courts conclusion in
Bouzari
,
    Goudge J.A.s reasoning for reaching that conclusion is persuasive.

[27]

Indeed,
    after this appeal was argued, the Quebec Court of Appeal in
Islamic
    Republic of Iran v. Hashemi
, 2012 QCCA 1449, expressed its agreement with
    the above analysis in
Bouzari
. Morissette J.A., writing for the court,
    held at para. 42:

In my view, what Goudge J.A. wrote on behalf of the Court in
    paragraphs [56] to [59] of his reasons is entirely apposite  in fact, it
    coincides with most of the preceding observations on the
SIA.
I
    therefore see no reason to depart from his reasoning: the exceptions to state
    immunity in Canadian positive law are those set out in the
SIA
, not in
    some remnant of a hypothetical common law doctrine that would coexist with the
    Act, or in some rule of customary international law that might modulate the
    interpretation of a statutory phrase which in fact is in no need of
    interpretation.

[28]

I
    agree that the language in s. 3(1) of the
SIA
is clear and does not
    permit the application of a common law exception to state immunity.

(iii)

Jus
    Cogens

[29]

I
    now turn to the concept of
jus cogens
and whether the motion judge
    erred in failing to conclude that the respondents lost their entitlement to
    sovereign immunity because their acts were in violation of peremptory norms of
    international law.

[30]

Peremptory
    norms of international law, or
jus cogens
, are higher forms of
    customary international law from which no derogation is permitted: see
Bouzari
,
    at para. 86. The content of
jus cogens
is not settled, however,
    generally-accepted examples of such norms include the prohibitions against
    genocide, slavery, apartheid and torture: John H. Currie, Craig Forcese and
    Valerie Oosterveld,
International Law: Doctrine, Practice, and Theory
(Toronto: Irwin Law Inc., 2007), at p. 159
.
    According to the appellants, a state that violates peremptory norms of
    international law  which they say include prohibitions against torture and
    terrorism  cannot rely on the immunity provided in the
SIA
because, in committing such acts, the state is not
    acting in a sovereign capacity.

[31]

The
jus cogens
issue was addressed by the court in
Bouzari
.
    Goudge J.A. concluded at para. 94 of the reasons: The peremptory norm of
    prohibition against torture does not encompass the civil remedy contended for
    by the appellant. Goudge J.A. further remarked at para. 95:

Both under customary international law and
    international treaty there is today a balance struck between the condemnation
    of torture as an international crime against humanity and the principle that
    states must treat each other as equals not to be subjected to each others
    jurisdiction. It would be inconsistent with this balance to provide a civil
    remedy against a foreign state for torture committed abroad. In the future,
    perhaps as the international human rights movement gathers greater force, this
    balance may change, either through the domestic legislation of states or by
    international treaty. However, this is not a change to be effected by a
    domestic court adding an exception to the
SIA
that is not there, or
    seeing a widespread state practice that does not exist today.

[32]

In the recent decision in
Hashemi
, released on August
    15, 2012, the Quebec Court of Appeal rejected the argument that customary
    international law has developed to recognize an exception to state immunity in
    cases where violations of
jus cogens
norms are alleged. In rejecting
    this argument, Morissette J.A. relied on the decision of t
he
    International Court of Justice in
Jurisdictional Immunities of the
    State (Germany v. Italy
:
Greece Intervening
),
Judgment (3 February 2012), ICJ
    General List No. 143, online: International Court of Justice,
    www.icj-cij.org/docket/files/143/16883.pdf.

[33]

The majority judgment of the ICJ considered the
    relationship between
jus cogens
and the rule
    of state immunity at para. 93:

This argument therefore depends upon the
    existence of a conflict between a rule, or rules, of
jus cogens
, and the rule of customary law which requires one State to accord
    immunity to another. In the opinion of the Court, however, no such conflict
    exists The two sets of rules address different matters. The rules of State
    immunity are procedural in character and are confined to determining whether or
    not the courts of one State may exercise jurisdiction in respect of another
    State. They do not bear upon the question whether or not the conduct in respect
    of which the proceedings are brought was lawful or unlawful.

[34]

The majority went on to survey the treatment of this issue in
    courts of various nations, including this court in
Bouzari
. The
    majority, at paras. 96-97, concluded that alleged violations of
jus cogens
norms do not affect state immunity
:

[T]his argument about the effect of
jus
    cogens
displacing the law of State immunity has been rejected by the
    national courts of the United Kingdom (
Jones
v.
Saudi Arabia
,
    House of Lords, [2007] 1
AC
270;
ILR
, Vol. 129, p. 629), Canada (
Bouzari
v.
Islamic Republic of Iran
, Court of Appeal of Ontario,
DLR
,
    4th Series, Vol. 243, p. 406;
ILR
, Vol. 128, p. 586), Poland (
Natoniewski
,
    Supreme Court,
Polish Yearbook of International Law
, Vol. XXX, 2010, p.
    299), Slovenia (
case No. Up-13/99
, Constitutional Court of Slovenia),
    New Zealand (
Fang
v.
Jiang
, High Court, [2007]
NZAR
p.
    420;
ILR
, Vol. 141, p. 702), and Greece (
Margellos
, Special
    Supreme Court,
ILR
, Vol. 129, p. 525), as well as by the European Court
    of Human Rights in
Al-Adsani
v.
United Kingdom
and
Kalogeropoulou
    and others
v.
Greece and Germany
(which are discussed in paragraph
    90 above), in each case after careful consideration.

Accordingly, the Court concludes that even on
    the assumption that the proceedings in the Italian courts involved violations
    of
jus cogens
rules, the applicability of the customary international
    law on State immunity was not affected.

[35]

In
Hashemi
, at para. 55, Morissette
    J.A. observed that the ICJs judgment in
Germany v. Italy
provides a conclusive refutation of the arguments against
    jurisdictional immunity which several parties in this case based on customary
    international law and on a
jus cogens
protection of human rights.

[36]

In
    sum, the appellants contention that customary international law has developed
    to recognize an exception for state immunity where violations of
jus cogens
norms are alleged is contrary to this courts conclusion in
Bouzari
,
    and the more recent decisions of the majority of the ICJ in
Germany v.
    Italy
and the Quebec Court of Appeal in
Hashemi
. I thus see no
    merit in this ground of appeal.

[37]

For
    the above reasons, I would dismiss the appeal.

A.

The cross-appeal

[38]

The
    respondents require leave to appeal the costs award. In
Brad-Jay
    Investments Ltd. v. Szijjarto
(2006), 218 O.A.C. 315 (C.A.), at para. 21,
    this court set out the test for leave to appeal a costs order as follows:

Leave to appeal a costs order will not be granted save in
    obvious cases where the parties seeking leave convinces the court that there
    are strong grounds upon which the appellate court could find that the judge
    erred in exercising his discretion.

[39]

In
    making her costs award, the motion judge said at para. 56 of her reasons: The
    defendants [respondents in the appeal] did not seek costs and are content to
    leave the matter of costs to the court. In spite of this position before the
    motion judge, the respondents now seek to appeal her costs award.

[40]

The
    respondents submit that the motion judge did not have jurisdiction to make a
    costs award against them by virtue of sovereign immunity under the
SIA
,
    or in the alternative, that the motion judge improperly exercised her
    discretion under rule 57.01(2) to award costs against the respondents who were
    successful on the motion.

[41]

I
    am not satisfied that there are strong grounds to find that the motion judge
    erred in exercising her discretion. This is particularly so when the
    respondents left the issue of costs in the hands of the judge.

[42]

In
    these circumstances, I would not grant leave to appeal the costs award.

Disposition

[43]

I
    would dismiss the appeal without prejudice to the appellants right to take the
    appropriate steps to have their judgments recognized by the Superior Court
    pursuant to the new legislative regime under the
JVTA
and the
SIA
referred to above. I would not make any award as to the costs of the appeal.

[44]

I
    would not grant the respondents leave to appeal the costs award. I would not
    make any costs award in respect of the leave to appeal.

Released:

RPA                             Robert P. Armstrong
    J.A.

JAN 21 2013                 I agree W. Winkler C.J.O.

I agree David Watt
    J.A.

[1]
David Jacobsen had previously pursued an action on his own behalf and
    successfully collected on a judgment of US$9,000,000: see
Cicippio v.
    Islamic Republic of Iran
, 18 F. Supp. (2d) 62 (D.D.C. 1998). As such, he
    is not a party to this action.