COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Atwima, 2022 ONCA 268

DATE: 20220401

DOCKET: C67342, C69515, C67344, C68039,
    C67336, C69507, C67343 & C69506

Fairburn A.C.J.O., Miller and
    George JJ.A.

DOCKET:
    C67342 & C69515

BETWEEN

Her Majesty the Queen

Appellant/

Respondent by way of cross-appeal

and

Samuel Atwima

Respondent/

Appellant by way of cross-appeal

DOCKET: C67343 & C69506

AND BETWEEN

Her Majesty the Queen

Appellant/

Respondent by way of cross-appeal

and

Triston Johnson

Respondent/

Appellant by way of cross-appeal

DOCKET: C67344 & C68039

AND BETWEEN

Her Majesty the Queen

Appellant/

Respondent by way of cross-appeal

and

Kevin Okrah

Respondent/

Appellant by way of cross-appeal

DOCKET: C67336 & C69507

AND BETWEEN

Her Majesty the Queen

Appellant/

Respondent by way of cross-appeal

and

David Ratnam

Respondent/

Appellant by way of cross-appeal

Roger Pinnock and Erica Whitford, for
    the appellant/respondent by way of cross-appeal

Joelle Klein, for the respondent/appellant
    by way of cross-appeal Samuel Atwima

Andrew Stastny, for the respondent/appellant
    by way of cross-appeal Triston Johnson

Faisal Mirza and Melody Izadi, for the
    respondent/appellant by way of cross-appeal Kevin Okrah

Shedrack Agbakwa and Grant Purves, for
    the respondent/appellant by way of cross-appeal David Ratnam

Heard: February 16 and March 3,
    2022 by video conference

On appeal from the acquittals entered by
    Justice Sharon Lavine of the Superior Court of Justice, sitting with a jury, on
    July 29, 2019 and July 30, 2019 (C67342, C67343, C67344, & C67336).

On appeal from the stay entered by Justice
    Sharon Lavine of the Superior Court of Justice, sitting with a jury, on July
    23, 2019 (C67336).

On appeal from the convictions entered by
    Justice Sharon Lavine of the Superior Court of Justice, sitting with a jury, on
    August 16, 2019 (C69515, C69506, C68039, & C69507).

Fairburn A.C.J.O.:

I.

OVERVIEW

[1]

On
    March 13, 2017, four masked men attempted to enter a jewellery store. They were
    unsuccessful. Thirty minutes later, four masked men, dressed in the same attire
    as those at the first jewellery store, gained entry to and robbed a second jewellery
    store close by the first one. The next day, four masked men robbed a third
    jewellery store, not far from the first two stores. Each incident was caught on
    video. The getaway car was also caught on video at the second and third stores.

[2]

About
    90 minutes following the final robbery, police located the getaway car and a
    high-speed police chase ensued. When the car finally came to rest, Mr. Ratnam was
    removed from the drivers seat, Mr. Johnson from the front passengers seat,
    and Mr. Atwima and Mr. Okrah from the back. There was also a fifth person in
    the back. He was separately tried as a young offender.

[3]

The
    four adults were tried by judge and jury in the Superior Court of Justice. The
    indictment contained ten counts in total, including a count of attempt to
    commit robbery, accompanied by a count of disguise with intent to commit an
    indictable offence. The indictment also contained two counts of robbery, each accompanied
    by counts of disguise with intent to commit an indictable offence and use of an
    imitation firearm while committing an indictable offence. Finally, the
    indictment contained one count of aggravated assault and one count of failing
    to stop. All four accused faced each count except the fail to stop. Only Mr.
    Ratnam, who was in the drivers seat of the getaway car, was charged with that
    offence.

[4]

The jury
    started hearing evidence on June 20, 2019. About four weeks later, the Crown closed
    its case and the jury was sent home so the trial judge could hear two
    applications: (1) the Crown applied to have similar act evidence admitted
    across all counts to prove identity; and (2) Mr. Ratnam, on the basis of lost
    evidence, applied for a stay of proceedings in relation to the count of failing
    to stop.

[5]

The trial
    Crowns similar act application was allowed only in part, leaving the Crown
    unable to prove identity on multiple counts. This gave rise to applications for
    directed verdicts of acquittal in relation to many counts. Those applications
    were successful, and acquittals were entered on multiple counts. In addition, the
    fail to stop count was stayed.

[6]

Almost
    a month after the Crowns case had closed, the jury was recalled to decide the
    case on what remained of the indictment. The jury returned guilty verdicts on almost
    all counts. A chart containing all the counts and verdicts is included at
    Appendix A to these reasons.

[7]

The
    Crown appeals from the directed verdicts of acquittal on the basis that the
    trial judge erred in law when she excluded similar act evidence across counts
    to prove identity. In particular, the Crown contends that the trial judges reasons
    on the similar act application are insufficient. The Crown also appeals from
    the stay of proceedings in relation to the count involving the fail to stop.

[8]

Mr. Ratnam,
    Mr. Johnson, Mr. Atwima and Mr. Okrah (collectively the respondents) each
    bring a cross-appeal, raising five issues in total. Those appeals are directed
    at the convictions.

[9]

For the reasons that follow, I would grant the Crown appeal and
    dismiss the cross-appeals.

II.

BACKGROUND

[10]

On March 13, 2017, in broad daylight, four masked men attempted
    to gain access to Graziella Fine Jewellery in Ajax, Ontario. The door was
    locked, and an employee refused to open it. The men eventually left when they
    could not gain access to the store. Everything was caught on video. One of the
    men was carrying a red Adidas bag. The men were wearing:

§

Man One: a black hoodie with white stripes and
    white logo

§

Man Two: a light grey jacket with three stripes
    on the sleeves

§

Man Three: black clothing

§

Man Four: black clothing

[11]

Thirty minutes later, four masked men approached
    the door of Galbraith Jewellers, which is located very near Graziellas. Again,
    the men were caught on video. Again, one of the men was carrying a red Adidas
    bag. Again, the men were wearing:

§

Man One: a black hoodie with white stripes and
    white logo

§

Man Two: a light grey jacket with three stripes
    on the sleeves

§

Man Three:  black clothing

§

Man Four: black clothing

[12]

The difference this time was that the men succeeded
    in gaining entry to the jewellery store. Once inside, they brandished two guns.
    The men dominated the employees and customers, two of whom testified at trial
    about feeling what they believed to be guns on their backs when they were made
    to lie on the floor. One of the masked men used a hammer with white tape to
    smash the jewellery cases. Another placed the jewellery in a black Adidas
    backpack. Then they left.

[13]

A small blue car was waiting for the men, with a
    driver behind the wheel. This was all caught on video. They made good their
    escape.

[14]

The next day, again in broad daylight, four
    masked men were again caught on video, this time gaining entry to Valdis Jewellery
    Shop in Oshawa, Ontario. Valdis was a short drive from the other two jewellery
    stores. Again, there were two guns. Again, the store employee was dominated.
    Again, one of the men used a hammer with white tape to smash the jewellery cases.
    Again, one of the men placed the jewellery in a black Adidas backpack. Again, a
    small blue car was waiting for them with a driver behind the wheel. Again, they
    made good their escape, but this time it was not for long.

[15]

The only significant difference between the two robberies
    was that an employee at the second jewellery store was badly assaulted by the masked
    men. He sustained multiple lacerations to his head and broken teeth.

[16]

Not even 90 minutes after the second robbery, a small
    blue car was located close to the scene. The police ascertained its location by
    pinging Mr. Ratnams cellular phone. Those pings were sent out by the police
    after they discovered that Mr. Ratnam had rented a small blue car the previous day,
    prior to the attempted robbery. A Hertz Rental Record was filed in evidence, establishing
    that Mr. Ratnam rented the small blue vehicle under his name.

[17]

A high-speed police chase ensued, with a police
    vehicle being struck at one point by the blue vehicle and a police vehicle striking
    a civilian vehicle. Eventually, the police brought the blue vehicle to rest on
    Highway 401. Police removed the respondents from the car. Mr. Ratnam, who had
    been driving the vehicle, had an imitation firearm in his pocket.

[18]

Some of the items found in the vehicle included:

(1)     an imitation firearm on the backseat;

(2)     jewellery and other items from both robberies;

(3)     price tags, receipts and boxes from the jewellery shops;

(4)     a black Adidas backpack;

(5)     shoes containing glass shards;

(6)     a hammer with white tape;

(7)     clothing, some of which was similar to the clothing seen on
    the perpetrators the day before at the scene of the attempted robbery and the first
    robbery; and

(8)     blood from the victim of aggravated assault, including on a
    grey Adidas jacket with three stripes on the sleeves.

[19]

When many of those items, such as the hammer,
    clothing, and firearms, were compared with the images captured on video at the
    scenes of the crimes, the resemblance was striking in nature.

[20]

Mr. Atwimas phone also contained some highly probative circumstantial
    evidence, connecting him to each crime scene, including the scene of the
    attempted robbery. For instance, on March 13 and 14, 2017, the days of the
    crimes, Mr. Atwimas phone search history included:

(1)

jewelry
    store in oshawa;

(2)

jewelry
    in oshawa;

(3)

small
    ajax jewelry;

(4)

Valdis Jewellery Shop Oshawa, ON;

(5)

Ron Ga
    braith Jewellers Ajax, ON; and

(6)

oshawa
    jewlery.

[21]

This was a powerful Crown case.

III.

CROWN
APPEAL

(a) Overview

[22]

As previously noted, the Crown appeal rests on two broad grounds.
    The Crown argues that the trial judge erred in law when she: (1) excluded
    similar act evidence across counts to prove identity; and (2) stayed the
    proceedings in relation to the count involving fail to stop. I agree that the
    trial judge committed both errors.

[23]

I will start with the ground of appeal involving the similar act
    evidence.

(b) The Error in Relation to the Similar Act Evidence

(i) Overview

[24]

Trial judges face inherent challenges when
    dealing with multi-accused, multi-count indictments involving Crown
    applications to admit similar act evidence across counts. Owing to the nature
    of these applications, typically brought at the end of the Crowns case, and
    outside the presence of the jury, there is often a good deal of pressure placed
    upon trial judges to apply complex legal principles to lengthy factual records,
    while being mindful not to keep the jury waiting for too long.

[25]

That was the challenging situation the trial
    judge faced in this case. The record demonstrates that as she worked her way
    through the issues she was keenly alive to the fact that the jury was waiting
    and made efforts to move the matter forward as expeditiously as possible. Despite
    those best efforts, as will be seen, the application developed a life of its
    own, and ultimately ended in error.

(ii) The Parties
      Positions at Trial

[26]

Immediately after the prosecutions case closed,
    the jury was sent home, the trial Crown laid out its arguments for why the
    evidence on each count should be admissible on the other counts to prove the
    identity of each accused.

[27]

The trial Crowns primary position was based
    upon a theory of group similar act: that the crimes were strikingly similar in
    nature and that each was committed by the same group of men, that the accused
    were those men and that there was evidence specifically linking each accused to
    the group at the relevant time.

[28]

The trial Crowns secondary position was that,
    even if the trial judge was not satisfied that the group was constant, the similar
    act evidence was still admissible across counts to prove the respondents
    identity in each crime. This secondary position was rooted in the submission
    that the crimes were all strikingly similar in nature and, with the exception
    of Mr. Okrah, there was independent evidence linking each of the accused to
    each of those crimes. In relation to Mr. Okrah, and for reasons that are not
    entirely clear on this record, the trial Crown seems to have been of the view
    that there was only independent evidence linking Mr. Okrah to the last robbery
    scene.
[1]

[29]

The respondents took different positions in response to the trial
    Crowns similar act application.

[30]

Mr. Atwima conceded the entire application, acknowledging that
    the similar act evidence could apply across counts to prove his identity.
[2]

[31]

Mr. Johnson conceded the similar act application
    as it related to the robberies, but not the attempted robbery. Therefore, he
    acknowledged that the jury could properly receive a similar act instruction in
    relation to the Galbraith and Valdis robberies (and the associated counts
    connected to those robberies).

[32]

Mr. Okrah altogether resisted the cross-count
    application of the evidence. While he acknowledged the highly similar nature of
    the crimes, he maintained that there was no evidence linking him to any of
    those crimes. His presence in the getaway car shortly after the second robbery
    was said to be just that: presence in a car.

[33]

Mr. Ratnam also resisted the cross-count
    application of the evidence. While he was prepared to accept that he was linked
    to the final robbery by virtue of his status as the driver of the getaway car,
    he maintained that there was no other evidence linking him to any of the other crimes.

(iii) The Law of Similar Act Evidence
      to Establish Identity in  the Group Context

[34]

Before
    reviewing the rulings appealed from, it is helpful to first summarize the legal
    principles underpinning the trial Crowns application. These legal principles provide
    some necessary context for the impugned rulings, which I will review in the
    following section of these reasons.

[35]

I
    start by noting that the trial Crown was not seeking to admit similar act evidence
    that was extraneous to the indictment into the trial but was seeking to admit
    similar act evidence across counts on the indictment. Therefore, the entire
    subject of the similar act application was already intrinsic to the indictment
    and included evidence that the jury had already heard.

[36]

As
    similar act evidence is presumptively inadmissible, even across counts, the sole
    question to be resolved at the application was whether the jury would be
    required to determine the issue of identity on each count by considering only the
    evidence admitted on that count (the presumptive position) or whether the jury
    would be entitled to determine the issue of identity on each count by
    considering all of the evidence heard at trial (the similar act position): see
R. v. Poulin
, 2017 ONCA 175, 346 C.C.C. (3d) 191, at
    para. 40.

[37]

The
    onus rests on the Crown to establish the admissibility of similar act evidence by
    satisfying the trial judge that its probative value outweighs its potential
    prejudicial effect in the context of the particular case: see
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para.
    55. The ultimate weighing of probative value and prejudicial effect requires an
    initial calibration of both.

[38]

The probative
    value of similar act evidence springs from the objective improbability of
    coincidence:
Handy
, at paras. 47-48. In
    contrast, the prejudicial effect of similar act evidence springs from the moral
    and reasoning prejudice that may result from the admission of the evidence. Moral
    prejudice is rooted in concerns over whether the trier of fact will decide the
    case based upon the perceived bad character of the accused. Reasoning prejudice
    is rooted in concerns over things like the potential injection of delay and
    complexity into a trial, as well as juror distraction and confusion: see
R. v. Shearing
,
2002 SCC 58, [2002] 3 S.C.R. 33,
    at para. 68. See also:
Handy
,
at paras.
    31, 36;
R. v. Lo
,
2020 ONCA 622, 152
    O.R. (3d) 609, at paras. 110-11. Of course, many of these concerns for
    prejudice will be attenuated, like in this case, where the application to admit
    similar act evidence relates to the cross-count use of evidence already
    elicited at trial: see
R. v. Norris
,
2020
    ONCA 847, 398 C.C.C. (3d) 1, at para. 24;
R. v. J.M.
,
2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 87.

[39]

Coming
    back to probative value, where the issue upon which the evidence is proffered
    is identity, such as this case, the demand for similarity between acts increases.
    The bar for similarity in the identity context is often referred to as a high
    degree of similarity or strikingly similar:
R. v. Arp
, [1998] 3 S.C.R. 339,
at
    para. 45. See also:
R. v. Perrier
, 2004 SCC
    56, [2004] 3 S.C.R. 228, at para. 20;
R. v. Durant
,
    2019 ONCA 74, 144 O.R. (3d) 465, at para. 98. The reason for the heightened bar
    for similarity relates to the driver of cogency in relation to similar act
    evidence used to establish identity: the improbability that two persons would
    display the same configuration of matching characteristics in committing a
    crime:
Perrier
,
at para. 19. See also
Handy
, at para. 78.

[40]

At
    the first stage of the similar act analysis involving questions of identity,
    the similarity stage, the court looks to the acts and asks how similar they
    are. From time-to-time, acts will contain signatures or trademarks, such that
    their similarity will be striking:
Arp
, at
    para. 45. See e.g.,
R. v. Jesse
, 2012 SCC 21,
    [2012] 1 S.C.R. 716, at paras. 5, 10, 12 and 24. More frequently, though, the
    requisite degree of similarity will result from an accumulation of
    commonalities, none of which will be sufficiently significant to constitute a
    signature or trademark.

[41]

In assessing
    whether the evidence has that cumulative effect, we take guidance from
Handy
, at para. 82, where Binnie J. provided the
    following list of helpful considerations: (a) the proximity in time of the
    similar acts; (b) the extent to which the acts are similar in detail; (c)
    the number of occurrences involved; (d) the circumstances surrounding or
    relating to the similar acts; (e) the distinctive features involved in those
    acts; (f) whether there were any intervening events; and (g) any other factor
    which would tend to support or rebut the underlying unity of the similar acts.

[42]

Where
    the evidence of similarity points towards the acts having been likely committed
    by the same person, the trial judge must go on to the second stage and consider
    whether there is evidence linking the accused to the similar acts:
Perrier
, at paras. 23-24;
R. v. Woodcock
(2003)
, 177
    C.C.C. (3d) 346 (Ont. C.A.), at para. 81; and
Arp
,
at paras. 54-56. There need
    only be some evidence linking the accused to those acts:
R. v. Sweitzer
, [1982] 1 S.C.R. 949, at p. 954;
Arp
,
at paras. 56-57; and
Perrier
,

at
    para. 24. The some evidence threshold requires more than mere opportunity or
    possibility but does not demand more than some evidence upon which it can be
    said that the acts were in fact the acts of the accused:
Sweitzer
,
at p. 954, cited with
    approval in
Arp
,
at paras. 54, 56-57, and in
Perrier
, at paras. 23-24. See also
Durant
,
    at para. 91. This has been characterized as a low evidentiary threshold at
    the admissibility stage:
Jesse
,
at
    para. 63.

[43]

Such
    are the legal principles underpinning the trial Crowns secondary position:
    that there was a high degree of similarity between the crimes and that, except
    for Mr. Okrah, there was some evidence linking each of the respondents to each
    of those crimes.

[44]

As
    for the trial Crowns primary position, it rested on a theory of group similar
    act, the legal principles for which are set out below.

[45]

Crimes
    committed by groups can present special challenges in the context of similar
    act evidence applications aimed at proving the identity of an individual
    accused.
To use group similar act evidence to establish
    individual identity (as opposed to group identity), the Crown must first
    establish that it is highly improbable that more than one group employing
    the same
modus operandi

committed the crimes at issue:
Perrier
,
at para. 26. The same factors outlined in
Handy
,
at para.
    82, will be used to determine that degree of improbability.

[46]

Once the requisite degree of improbability has been established,
    then the Crown must go on to establish a link between the individual and the
    crimes of the group.
This is because it is individuals, not groups, who
    ultimately bear the responsibility for crimes. Therefore, even where it is
    highly improbable that different groups committed the crimes,
the signature of the offence is the signature of the group only:
Perrier
,
at para. 25.

[47]

Accordingly, where group similar act evidence will be used to
    identify a particular accused, linkage evidence remains critical to the
    admissibility analysis. The means by which to identify that link, though, will
    fluctuate depending on whether the groups membership remains static across the
    acts or whether the groups membership rotates across the acts.

[48]

Justice
    Major in
Perrier
, at para. 25, addressed both
    scenarios, first dealing with the situation where the group has static membership
    and then dealing with the situation where the group membership rotates:

If the Crown can prove that
membership in the gang never changed and that all members were
    present and participating in all offences, then the signature of the group will
    be the signature of the accused
such that a similar fact instruction
    will likely be justified (provided that the overall probative value of the
    evidence outweighs its prejudice).
However, where
    group membership was not constant
, the fact that an individual may have
    been a member of the gang on one occasion proves nothing more than a mere
    possibility that he was a member on another occasion.  In this case
the evidence of group activity must be accompanied by evidence
    linking the individual to each of the groups offences for which he has been
    charged
, either by virtue of the distinctiveness of his role or by other
    independent evidence. [Emphasis added.]

Recall that in this case, it was the
    trial Crowns primary position that, to adopt the words of
Perrier
,
at para. 25: membership in the gang never changed and that all members
    were present and participating in all offences.

[49]

Perrier

goes
    on to describe in more detail the means by which to prove the link between the
    individual accused and the group. At para. 32(1), Major J. addressed how to
    establish that link in the context of a group with static membership:

If the Crown can prove that
group membership never changed
, that the gang always
    remained intact and never committed the criminal acts unless all were present, and
    that the accused was a member of the group, and present, at the relevant time,
    that will be sufficient to connect the individual to the crimes of the group,
    and the evidence will usually have sufficient probative value to be admitted as
    similar fact.  [Emphasis added.]

[50]

Where
    the Crown cannot prove that group membership never changed and that the gang
    always remained intact and never committed the criminal acts unless all were
    present, then in accordance with
Perrier
,
at
    para. 32(2), the following must be established:

Where membership in the
    group is not constant

then an
additional link or connection must be made
in order to use evidence of group activity against a particular accused.  This
    additional requirement will be satisfied where (a) the accuseds role was
    sufficiently distinctive that no other member of the group or person could have
    performed it; thus he necessarily must have participated in all offences; or
    (b) there is independent evidence linking the accused to each crime.
[Emphasis added.]

(iv) The Cascading Rulings and Clarifications

[51]

By way of recap, based on the legal principles
    set out above, the trial Crown argued first that the similar act evidence
    should be admitted across counts on the basis of group similar act: the crimes
    were strikingly similar in nature, each was committed by the same group of men,
    the accused were those men, and there was evidence specifically linking each
    accused to the group at the relevant time:
Perrier
,

at paras.
    25, 32(1). In the event that the trial judge, as the gatekeeper of this
    evidence, was not satisfied that group membership never changed, then, aside
    from Mr. Okrah, there was an additional link or connection in the sense of
    independent evidence linking the accused to each crime:
Perrier
, at paras.
    25, 32(2).

[52]

After the similar act evidence ruling went under
    reserve, the jury started expressing concerns over delay. Two jurors had to be relieved
    of their duties. Accordingly, pressure was mounting to move the matter along. Against
    that backdrop, the trial judge gave what I will describe as the initial
    ruling, prefacing
the ruling with the observation that she was
    reserving the right to provide fuller reasons. The full extent of the initial
    ruling follows:

The Crown seeks the admission of the evidence in each count in
    respect of the other counts on the indictment in relation to each of the
    individual accused on the basis of group identity. I am not satisfied that the
    Crown has established constancy of the group. I am not satisfied that Mr. Okrah
    is sufficiently connected to both robberies. In this context, an admission of
    evidence on a group identity basis would cause potential prejudice to Mr. Okrah
    and undue complexity. The application, as brought on a group identity basis, is
    dismissed.

[53]

The trial Crown sought immediate clarification
    as to whether this ruling related only to Mr. Okrah or all persons. A good deal
    of back and forth ensued. Eventually, on the same day as the initial ruling,
    and despite the confusion swirling around the breadth of the ruling and the
    fact that applications for directed verdicts of acquittal were yet to be heard,
    all agreed that the jury could be recalled so that the defence case could be
    closed. Each accused elected to call no defence.

[54]

The
    jury was again sent home and the dialogue about the reach of the similar act
    ruling continued. This resulted in the trial judge providing what I will refer
    to as the first clarification:

When I stated I am not satisfied the Crown has established the
    constancy of the group, I am not satisfied that Mr. Okrah is sufficiently
    connected to both robberies. What should be clear, is that by saying [the group
    has not been established], I was then, as counsel had all submitted during the
    application, referring to the alternate option that two independent evidence
    linking the accused to both robberies was then required and as I had understood,
    [the Crown] had conceded that there was only one connection for Mr. Okrah.
Mr. Okrah was therefore not sufficiently
    connected to both robberies and therefore the required connectivity was not
    made out. I did not refer to Mr. Atwima or Mr. Johnson, because it was conceded
    by them that similar act evidence was admissible against them and it is
    implicit in my ruling, having not mentioned Mr. Ratnam, that I was satisfied
    that the connectivity requirement had been made out for Mr. Ratnam
.
    [Emphasis added.]

[55]

On
    my reading, the trial judges first clarification seems to suggest that, while
    the Crowns primary position had failed, the Crowns secondary position had
    succeeded. Therefore, the similar act evidence would be admissible against all
    but Mr. Okrah in relation to both robberies and the attempted robbery.

[56]

Requests
    for further clarification continued. This resulted in what I will refer to as the
    second clarification, where the trial judge agreed with the trial Crowns stated
    understanding of the scope of the ruling: I heard Your Honours ruling to be
    that its admissible on all matters in relation to Mr. Atwima, Johnson, and
    Ratnam. The trial judge responded affirmatively.

[57]

Eventually
    court adjourned for the weekend. Requests for clarification continued on the
    Monday. After much back-and-forth, a brief final ruling was given:

Having considered the submissions of counsel, I am not
    satisfied that in the context of this case, with different jointly charged
    accused on the two robbery charges, that similar fact evidence can be admitted
    on a group identity basis without undue complexity and the prejudicial effect
    outweighing the probative value. The similar fact evidence with respect to Mr.
    Johnson and Mr. Atwima will be admitted.

[58]

Again,
    counsel sought clarification. I will refer to what came of those requests as
    the final clarifications. Counsel to Mr. Johnson asked whether the final
    ruling related only to the robberies and not the attempted robbery. The trial
    judge confirmed the similar act would only apply across robbery counts and only
    in relation to Mr. Johnson and Mr. Atwima.

[59]

Mr.
    Ratnams counsel asked for clarification as to where Mr. Ratnam stood on the
    question of admissibility. The trial judge responded that the evidence was only
    admissible across the robbery counts as it related to Mr. Johnson and Mr.
    Atwima. The trial judges comment therefore implied that the Crowns similar
    act application, as it related to Mr. Ratnam, was dismissed. At least all
    parties proceeded on that understanding.

[60]

As
    for Mr. Okrah, it was clear from the initial ruling that the trial Crowns
    application was dismissed on the basis that the trial judge was not satisfied
    that the trial Crown had established that the group membership remained
    constant.

[61]

Therefore,
    as between the initial ruling and the final clarifications:

(1)
        things remained static in relation to Mr. Okrah, with the entire similar
    act application dismissed;

(2)
        between the first and final clarifications, the trial Crowns application
    to admit similar act evidence across all counts in relation to Mr. Johnson and
    Mr. Atwima went from being granted across all counts to being dismissed as it
    related to the counts involving the attempted robbery; and

(3)
        between the second clarification and the final clarifications, the trial Crowns
    application to admit similar act evidence across all counts in relation to Mr.
    Ratnam went from being granted across all counts to being dismissed across all
    counts.

[62]

Subsequent
    reasons were never provided to explain how the trial judge reached these
    results.

[63]

Once
    the final clarifications were given, applications for directed verdicts of
    acquittal flowed. There is no need to get into the complexity of how those
    applications unfolded. What is important is that, at the end of the day,
    directed verdicts of acquittal were entered for each accused in relation to the
    count of attempted robbery and its related count of wearing a disguise. Mr.
    Okrah also obtained directed verdicts of acquittal on all counts arising from
    the Galbraith robbery on March 13, 2017 (the first robbery).

(v)

The
Parties Positions on Appeal

[64]

The
    Crowns fundamental objection on appeal is that the similar act application was
    resolved in a perfunctory way, without providing any insight into how the
    decision was reached. In short, the Crown contends that the rulings and clarifications
    fall well short of providing any degree of reasoning as to why the evidence was
    excluded, evidence that the Crown maintains called out for admission across all
    counts.

[65]

While
    acknowledging that the reasons are somewhat thin, the respondents maintain that
    the rulings and clarifications must be read together, in light of the record as
    a whole and the parties positions taken at the
voir dire
.
    When considered in their proper context, the reasons are said to reveal a chain
    of reasoning that is sufficient to explain why the trial Crowns application largely
    failed at trial. It is said that we should defer to that result.

(vi) The Failure to Provide
    Reasons

[66]

Trial
    judges have an obligation to provide reasons for their decisions. At their
    core, reasons provide a level of public accountability for all judicial
    decisions, an accountability that is fundamental to maintaining the rule of
    law. Reasons serve important purposes, including: justifying the result, explaining
    to the public how the result was achieved, telling the party that lost why they
    lost, allowing for informed consideration as to whether an appeal should be
    taken, and if an appeal is taken, allowing for effective appellate review:

see
R. v
.
Sheppard
,

2002
    SCC 26, [2002] 1 S.C.R. 869, at para. 55;
R. v. R.E.M.
,

2008 SCC 51, [2008] 3 S.C.R. 3, at
    paras. 11, 35.

[67]

Of
    course, when it comes to evidentiary rulings, the failure to provide reasons
    will not always be fatal provided that the decision is supportable on the
    evidence or the basis for the decision is apparent from the circumstances:
R
.
v
.
Tsekouras
, 2017 ONCA 290, 353 C.C.C. (3d) 349,

at para. 156, leave
    to appeal refused, [2017] S.C.C.A. No. 225;
R. v.

Barrett
, [1995] 1 S.C.R. 752, at para. 1.

[68]

Although
    the standard for reasons in evidentiary rulings is more relaxed, an overarching
    duty of procedural fairness nevertheless remains. The subject matter of a
    ruling will necessarily inform the determination of whether procedural fairness
    requires that more detailed reasons, as opposed to bottom line rulings, be
    given:
Tsekouras
, at para. 156. Where an
    evidentiary ruling is pivotal to one of the parties positions, and especially
    where it carries the weight of that partys case, the duty of procedural
    fairness is heightened and there will sometimes be a requirement for reasons that
    are more akin to those we expect in the context of a judgment: see
R. v.

Woodard
, 2009 MBCA
    42, 245 C.C.C. (3d) 552, at para. 25.

[69]

Undoubtedly, the trial Crowns similar act evidence application carried
    the whole weight of the prosecutions case in the context of the attempted
    robbery. And, based upon the trial Crowns concession at trial, it carried the
    weight of the prosecutions case as it related to Mr. Okrahs alleged
    involvement in the Galbraith robbery. To understand the centrality of the similar
    act evidence to the prosecutions case one need look no further than the fact
    that the directed verdicts of acquittal were entered as a result of the similar
    act evidence rulings and clarifications. Accordingly, the duty of procedural
    fairness required that at least some reasoning be provided for excluding the
    similar act evidence.

[70]

That
    duty was not met. There were formidable factual underpinnings to the similar
    act application that suggested the need in this case for an explanation. A
    proper application of the facts to the Crowns primary and, indeed, secondary
    positions, pointed powerfully towards the admission of the similar act evidence,
    evidence that was already intrinsic to the indictment, across all counts to
    prove identity.

[71]

Even
    when all of the rulings and clarifications are considered together, the trial
    judge never explained how she reached the conclusions she did.
At the end of the reasons and clarifications, o
ne is left
    wondering about the most important question: why? Why exactly was the evidence
    of similar acts excluded? Where did the Crowns argument fall short? Why was
    the evidence of linkage judged to be insufficient?

[72]

This
    was not a marginal Crown application. The Crown presented a formidable case for
    the admission of similar act evidence across counts to establish identity. The
    striking similarity between the crimes and the static nature of the membership
    of the group that committed those crimes springs from the videos of each crime,
    still-shots taken, and witness accounts.

[73]

Starting with the actual robberies: they were proximate
    in time, similar in detail, and contained distinctive features. The victim
    stores were geographically proximate to each other. They were robbed less than
    24 hours apart. They were both small business operations. Video footage shows that
    the four masked men played similar roles once inside of those jewellery stores.
    The victims were dominated in a similar fashion. Two of the men wielded firearms.
    One yielded a hammer with white tape. The hammer was used to break the jewellery
    cases and the jewellery was placed into a black Adidas backpack. A fifth
    person, the driver, waited nearby in the same small blue getaway car. To
    reiterate, all of this was caught on videotape.

[74]

Regarding the attempted robbery, like the
    robberies, it also involved a small business operation. The scene of the
    attempted robbery was mere minutes away by car from the scene of the first robbery.
    The first and second crimes were committed 30 minutes apart, and all three
    crimes were committed in broad daylight.

[75]

Further, like the robberies, the attempted
    robbery involved four masked men. Those men were of similar builds to the men
    seen in the other videos captured at the other crime scenes. Importantly, the
    men, who robbed Galbraiths only 30 minutes after the attempted robbery of
    Graziellas, were wearing exactly the same clothing:

§

Man One:    a black hoodie with white stripes
      and white logo

§

Man Two:    a light grey jacket with three
      stripes on the sleeves

§

Man Three:  black clothing

§

Man Four:   black clothing

[76]

In summary, there was a powerful argument to be
    made that there was a striking similarity between the two actual robberies and
    that they were committed by the same four men. There was also a powerful argument
    that the four masked men who walked into and robbed Galbraiths (the same men
    who robbed Valdis the next day) were exactly the same men who attempted to rob
    the first jewellery store. In other words, there was a powerful Crown argument
    that each crime was committed by the same group of men, that the accused were
    those men, and that the respondents, by virtue of their presence in the getaway
    car after the Valdis robbery, a car which contained items associated to the
    crimes, were linked to the group at the relevant time.

[77]

As for the trial Crowns secondary position,
    requiring some evidence linking the accused to each of the similar acts, describing
    it as a strong position would not be an overstatement. Merely considering the
    fact that they were found together in the getaway car 90 minutes after the
    final robbery
─
a car which
    contained two identical looking firearms to those used at the robberies,
    jewellery from the robberies, DNA from the victim of aggravated assault, and
    clothing from the attempted robbery
─
created multiple, powerful links. Of course, there was also the
    evidence that Mr. Ratnam rented the getaway vehicle prior to the attempted robbery,
    and Mr. Atwima conducted internet searches connected to the locations of the crimes.

[78]

In the face of the evidentiary record, it was
    incumbent on the trial judge to address the degree of similarity between the
    crimes. It was also incumbent on the trial judge to explain how she concluded
    that the Crown had failed to establish the constancy of the group and that
    there was insufficient linkage evidence.

[79]

The trial judge suggested at one point that it would
cause
    undue complexity to allow the similar act evidence on a group identity basis to
    apply across counts, but it is unclear why that would be so. While increasing
    the complexity of the deliberative process is quite properly something to be
    weighed in determining whether similar act evidence should be admitted, the
    jury was already going to have to face this complexity since the trial judge
    permitted the evidence to apply for purposes of the robbery counts faced by Mr.
    Johnson and Mr. Atwima.

[80]

In
    the circumstances, it was necessary for the trial judge to explain how she
    arrived at the result in this similar act application. The failure to have done
    so constitutes an error of law.

(vii) The Remedy

[81]

This
    leaves the question of remedy. It is easier to understand this section of these
    reasons by reference to Appendix A to these reasons.

[82]

There
    is no dispute that the directed verdicts of acquittal were entered as a result
    of the similar act rulings. Accordingly, the Crowns position is that a new
    trial must be ordered on each count where a directed verdict of acquittal was
    entered, as well as the two counts where the jury brought back verdicts of not
    guilty.

[83]

The respondents
    argue that if a new trial is ordered, it should be a retrial of everything,
    including the convictions. They take this position on the basis that if the
    trial judge is found to have committed a reversible error on the similar act application,
    and a new trial is ordered in relation to the counts involving directed
    verdicts of acquittal, then the error must be equally fatal to the convictions.
[3]

[84]

Counsel
    to
Mr. Okrah argues that this way of approaching the remedy is
    a fair one. In his submissions, Mr. Okrah argues that things may have unfolded
    differently had the similar act ruling gone differently and we cannot unring
    the bell at this stage, so to speak. For example, the decision not to testify
    may well have changed had the similar act ruling been different. Accordingly, if
    the counts involving the acquittals are to be retried, so too should the counts
    involving the convictions since all the results were tainted by the error.

[85]

Respectfully, I see no basis upon which to set
    aside the convictions in this case. I say this for a few reasons.

[86]

First, as for Mr. Atwima, he originally consented
    to the Crown application and, therefore, to the admission of the similar act
    evidence across all counts to prove his identity. He later withdrew his consent
    to admission of the evidence on the attempted robbery count. He ended up with a
    ruling that excluded the evidence in relation to the attempted robbery. Consequently,
    the ruling he received was actually more beneficial to him than what he had
    originally agreed to and precisely in line with his final position at the
    admissibility
voir dire
.
In these circumstances, I see no
    basis upon which to set aside his convictions.

[87]

Second, as for Mr. Johnson, he consented to the
    admission of the similar act evidence across the robbery counts. Therefore, he
    ended up with evidence being used in a way that he consented to. In these
    circumstances, I see no basis upon which to set aside his convictions.

[88]

Finally, as for Mr. Ratnam and Mr. Okrah, the
    similar act rulings also gave them exactly what they asked for: exclusion of
    the similar acts against them. In these circumstances, they cannot now claim
    that their convictions flowed from an inadequate ruling on similar act
    evidence. To the contrary, the jury did not consider similar act evidence
    across counts when finding that they committed the crimes they were found
    guilty of. In my view, the impugned ruling did nothing more than inure to their
    benefit. In these circumstances, I see no basis upon which to set aside their convictions.

[89]

While I accept that in some cases it may be
    difficult to determine how a trial would have unfolded had rulings been
    different, in this case such a submission is rooted in speculation. The record
    in this case undermines the suggestion that the accused may have testified. Early
    on, counsel to Mr. Okrah, and others, made clear that, regardless of the result
    of the similar act application ruling, they were, as put by trial counsel to
    Mr. Okrah, happy to declare that the accused would not be testifying or
    calling any evidence. Accordingly, the similar act rulings and clarifications
    had no impact on that choice.

[90]

One last issue on remedy needs to be briefly
    addressed. In its factum, the Crown asks this court to order a new trial on all
    counts impacted by the erroneous rulings. At the hearing of the appeal, it
    became clear that this request was meant to cover both the directed verdicts of
    acquittal and the acquittals decided upon by the jury.

[91]

As reflected at Appendix A to these reasons,
    the jury returned two verdicts of acquittal. They both involved Mr. Ratnam.
    Those acquittals are not reflected in the Crowns Notice of Appeal.
    Accordingly, I would not set them aside.

[92]

I would, though, set aside each directed verdict
    of acquittal and order a new trial on those counts.

(c)     The Stay of Proceedings

(i) Overview

[93]

The Crown also appeals from the stay entered on
    the count of failing to stop, the only count on the indictment that Mr. Ratnam faced
    alone. As previously reviewed, Mr. Ratnam led the police on a dangerous chase.
    Before his vehicle finally came to rest on the shoulder of Highway 401, Mr.
    Ratnam sideswiped a police vehicle and a police vehicle struck a civilian
    vehicle.

[94]

For the reasons that follow, I conclude that the
    trial judge erred in law by finding that the proceedings on this count had to
    be stayed.

(ii) The Parties
      Positions at Trial

[95]

At the end of the Crowns case, Mr. Ratnam
    brought an application to stay the fail to stop count. The application was
    predicated on lost evidence: photos taken by a police officer at the scene
    where the getaway car came to rest.

[96]

During the trial, it emerged that officers from
    another police service had investigated the circumstances around the chase of the
    getaway vehicle. At Mr. Ratnams request, the trial Crown attempted to obtain
    photos that appeared to have been taken by an officer of the other police
    service. The trial Crown was unsuccessful because the phone on which those
    photos had been taken had been recalled in 2018 and, therefore, the photos no
    longer existed.

[97]

While the photos were no longer available for
    disclosure, the trial Crown was able to obtain the accident collision report
    prepared by the officer who took the photos. That report included a diagram
    clearly depicting where the getaway car had come to rest on Highway 401, and
    where it sat relative to other vehicles near it. The Crown disclosed that
    report, as well as the police notes.

[98]

Mr. Ratnam argued that his rights under s. 7 of
    the
Canadian
Charter of Rights and Freedoms
had been violated
    as a result of the lost photos, the absence of which were said to adversely
    impact his ability to make full answer and defence. He argued that he needed
    the photos to better understand how the getaway vehicle and others had come to
    a stop on Highway 401, something that would place the defence in a much more
    solid position to challenge the credibility of the police officers who
    testified about the pursuit. Mr. Ratnam said that no remedy other than a stay
    of proceedings would suffice to address the prejudice he experienced as a
    result of the lost photos.

[99]

While the trial Crown was prepared to concede that the lost
    photos triggered a s. 7
Charter

breach, he maintained that no
    remedy was required because there was no prejudice arising from the breach. Even
    if the location of the stopped getaway car was somehow relevant to the fail to
    stop count, the trial Crown maintained that the diagram contained in the
    accident collision report was more than adequate to meet the needs of the
    defence. The trial Crown emphasized that, despite having that diagram in hand
    when the officers testified during the case for the Crown, Mr. Ratnam had
    chosen not to cross-examine those officers on that diagram. The failure to do
    so underscored what little relevance the photos would have had in the trial.

(iii) The Ruling
      Appealed From

[100]

While
    reserving the right to prepare more  complete reasons for [the] ruling, the
    trial judge ruled as follows:

The Crown acknowledges that there has been a breach of Mr.
    Ratnams Section 7 rights. In determining the appropriate remedy, I would have
    been inclined to provide an alternate or intermediate remedy, rather than a
    stay of the charge of evade police, however, at this juncture, and in the very
    particular circumstances of this case, the only available remedy is a stay of
    proceedings of the charge of evade police, and that is granted.

No subsequent reasons were provided.

(iv) The Proceedings
      Should Not have been Stayed

[101]

Pursuant to s. 24(1)
    of the
Charter
,
an accused whose s. 7 rights have been breached
    because of lost evidence is entitled not to a stay of proceedings but to an
    appropriate and just remedy. Therefore, an accused is not automatically
    entitled to a stay of proceedings, or any remedy for that matter, simply
    because relevant evidence has been lost. Whether a remedy should be granted
    and, if so, what that remedy should be, turns on the question of prejudice
    caused by the breach: see
R. v. La
, [1997] 2 S.C.R.
    680, at paras.
24-25;
R. v.
Bero
(2000), 151 C.C.C. (3d) 545 (Ont. C.A.),

at paras.
42-43; and
R. v.
Hersi
,

2019 ONCA 94, 373 C.C.C. (3d) 229,

at paras. 25, 36.

[102]

Accordingly, standing
    on its own, the fact that evidence is missing, evidence that might or might
    not affect the defence, is not sufficient to establish that a remedy is owed
    and certainly not enough to establish that a stay of proceedings is required:
    see
R. v. Bradford
(2001), 52 O.R. (3d) 257,
    at para. 8.

[103]

Indeed, a stay of
    proceedings is an extraordinary remedy, one that should be granted only in the
    clearest of cases: see
R. v. Carosella
, [1997]
    1 S.C.R. 80, at para.
52
; R. v.
OConnor,
[1995] 4 S.C.R. 411, at para. 82;

La
, at paras.
23-25;
R. v. Sheng
,

2010 ONCA 296, 254 C.C.C. (3d) 153, at
    para. 44; and
Bero
,
at para. 42
.
Those
    circumstances will arise only where the prejudice to the accuseds right to
    make full answer and defence cannot be remedied through other means, or where
    prejudice would be caused to the administration of justice should the
    prosecution continue.

[104]

When determining the
    degree of prejudice caused by the lost evidence, the trial judge must consider
    all of the other evidence available to the defence to fill the gap:
Sheng
,
at para. 47.

[105]

Respectfully, there is
    no indication in the brief reasons of an attempt to determine what prejudice the
    lost photos caused to Mr. Ratnams full answer and defence. The reasons proceed
    as if a remedy had to be given, and that while an alternate or intermediate
    remedy may have been appropriate, at that juncture, and in the very
    particular circumstances of this case, the only available remedy was a stay of
    proceedings. This statement leaves a number of questions, including the most
    significant question: what was the prejudice arising from the lost photos? It
    was an error in law to fail to address that question.

[106]

In my view, there was
    no prejudice here and no remedy was owed. I say this for a few reasons.

[107]

First, there was
    nothing in the submissions from the defence that supported the notion of
    prejudice, other than a bald claim that the photos would put the defence in a
    much more solid position.

[108]

Second, the defence
    had the OPP accident collision report that included a clear diagram of where
    the getaway vehicle had come to rest relative to the other vehicles on the
    highway. The officer who drew the diagram was the same officer who took the
    photos of the scene and he testified at trial. In these circumstances, it is
    difficult to imagine what more the photos could have contributed to the trier
    of facts understanding about where the vehicles came to rest.

[109]

Third, the fail to
    stop count rested not on where vehicles came to rest, but on the
viva voce
evidence of multiple witnesses who testified about Mr. Ratnams driving
    maneuvers.

[110]

Finally, while the report
    and diagram had already been disclosed to Mr. Ratnam by the time that multiple
    officers testified about Mr. Ratnams driving maneuvers, counsel did not
    cross-examine the officers on the content of those documents. The failure to do
    so highlights the lack of prejudice arising from the lost photos.

[111]

The trial judge erred
    in failing to consider prejudice. No remedy was required. I would set aside the
    stay of proceedings on the count of fail to stop and remit the matter to a new
    trial.

IV.     CROSS-APPEALS

[112]

The respondents combine
    to advance five grounds of appeal against conviction. They do so in different
    combinations and permutations.

(a) Severance

[113]

Mr. Okrah and Mr.
    Ratnam argue that the trial judge erred when she refused to grant the
    respondents severance following the directed verdicts of acquittal. Mr. Okrah
    in particular submits that because he was acquitted of all counts except those
    related to the final robbery, he fell vulnerable to being found guilty of that
    series of offences through improper reasoning involving guilt by association.
    He adds that the trial Crown improperly emphasized those associations in the Crowns
    closing address.

[114]

I would not give
    effect to this ground of appeal.

[115]

I start by addressing the
    second point first. Contrary to the submissions made, the trial Crowns closing
    did not suggest to the jury that they could convict on the basis of guilt by
    association. I see no need to review the impugned passages in detail. Suffice
    to say that they relate to a Crown submission that quite appropriately pointed
    the jury to the totality of circumstances in which the accused found themselves,
    caught in the getaway car after the Valdis robbery, as circumstantial evidence
    that they were among the men involved in that robbery. The absence of any
    objection to the Crowns closing on this point underscores the lack of
    impropriety.

[116]

As for the trial
    judges refusal to grant the severance application, her reasons are solid and
    legally supported.

[117]

Applications to sever the
    trial of accused under s. 591(3)(b) of the
Criminal Code
,

R.S.C., 1985, c. C-46, like applications to sever counts under s.
    591(3)(a),

call for the exercise of discretion. Severance will be
    granted only where the interests of justice so require:
R.
    v. Moore
,

2020 ONCA 827, 153 O.R. (3d) 698, at para. 10. In
    this context, the interests of justice strive to balance the accuseds right to
    be tried on the evidence admissible against that accused, while at the same
    time preserving the societal interest in seeing justice done in a reasonably
    efficient and cost-effective manner:
R. v. Last
,

2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16.

[118]

Given the absence of
    statutory guidelines for granting severance, deference must be afforded to the
    trial judges ruling. Therefore, as long as the trial judge acts judicially
    and the ruling does not result in an injustice, deference is owed:
Last
,
at paras. 14, 21.

[119]

The trial judge
    accurately summarized the severance applications. She rejected the suggestion
    that jury instructions would be insufficient to enable the jury to conduct its
    task correctly without engaging in improper propensity reasoning. Instead, she
    found that carefully crafted and clear instructions on prohibited propensity
    reasoning would suffice. She in fact gave that instruction and no objection was
    raised as to its content. In my view, the decision to deny severance in this
    case is owed deference because it was judicially made and did not result in an
    injustice.

(b) Failure to Instruct on Party Liability

[120]

Mr. Okrah, joined by Mr.
    Ratnam, objects to the jury charge as it relates to aiding and abetting.

[121]

Having considered the
    instructions on aiding and abetting, it is not clear to me what the alleged
    deficiencies relate to. The instructions were vetted with the respondents
    during the pre-charge conference. No objections were taken to the main charge
    nor to the re-charge. Nor were any concerns expressed after the charge was
    delivered.

[122]

Mr. Okrah acknowledges
    that the charge covered the point that mere presence at the place of the crime
    is insufficient to make out guilt. However, he argues that the charge was
    deficient in that it failed to make clear what findings were permissible from
    Mr. Okrahs presence in the getaway car with the other accused. Again, I will
    not set out a rather lengthy passage from the charge on this point. Suffice to
    say that the jury was clearly told that just being there does not make a
    person guilty.

[123]

To the extent that
    there is an objection for the first time on appeal about the instruction
    involving common purpose, I would also note that the jury received a clear
    instruction in accordance with the specimen charge available. The instruction
    was also approved of by all counsel. I will not go through the charge in
    detail.

[124]

In my view, the path
    to findings of guilt for Mr. Okrah and Mr. Ratnam was through legally correct
    jury instructions.

(c) Failure to Give a Copy of the Charge to the Jury

[125]

All of the respondents
    argue that a written copy of the charge should have been provided to the jury. While
    they recognize that it is not mandatory to do so, they argue that it should be
    done in cases where there are multiple co-accused that are differently
    situated.

[126]

Whether to provide a written
    copy of the charge to the jury is a matter of discretion for the trial judge.
    In some cases, it may well be helpful to the jury to have a copy of the charge
    while deliberating. At the same time, no adverse inference can be drawn that a
    jury did not understand the instructions simply because they did not have a
    copy during the actual deliberative process.

[127]

In this case, the
    trial judge decided not to provide a copy to the jury. She was not asked to
    provide one and, importantly, no one suggested, as they now suggest on appeal,
    that providing a copy was essential for the jury to properly deliberate. I
    would not give effect to this ground of appeal.

(d) Unreasonable Verdict

[128]

Mr. Okrah alone says
    that the evidence at trial could not reasonably support his convictions in
    relation to the Valdis robbery. I will deal with this ground of appeal briefly.

[129]

To succeed on his
    unreasonable verdict claim under s. 686(1)(a)(i) of the
Criminal
    Code
,
Mr. Okrah must establish that no properly instructed
    jury, acting judicially, could reasonably have found him guilty: see
R. v. Biniaris
,
2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. So, could
    a properly instructed jury, acting judicially, reasonably find him guilty? In
    my view, the answer is clearly yes.

[130]

Mr. Okrah was arrested
    while seated in the getaway car about 90 minutes after the Valdis robbery,
    along with his three co-accused. The car contained jewellery taken from that
    robbery and weapons consistent with those used at that robbery, as well as the
    hammer with white tape and the backpack used to store the jewellery.

[131]

This was not an
    unreasonable verdict.

(e) Failure to
    Find a
Charter
Breach Arising from the Warrantless Pings of Mr. Ratnams
    Phone

[132]

All the respondents
    raise this fifth and final ground of appeal. They challenge the trial judges
    finding that the warrantless pings of Mr. Ratnams phone did not give rise to a
Charter
breach.

[133]

As previously noted, to
    find the getaway car, the police pinged Mr. Ratnams cellular phone. In the
    normal course the police require prior judicial authorization to track a cell
    phone, but exigent circumstances can justify doing so without that prior
    authorization.

[134]

At the time of the
    offences forming the subject matter of this appeal, the police were already
    investigating Mr. Ratnam for other jewellery store robberies that had been
    committed a few weeks prior. Therefore, once the Galbraith and Valdis
    robberies were committed and the getaway car was identified, police were able
    to identify Mr. Ratnam as the renter of that vehicle. The police decided that
    it was necessary to immediately locate Mr. Ratnam in an effort to prevent another
    violent armed robbery.

[135]

Ultimately, Mr.
    Ratnams phone was pinged three times, after which the getaway car was located.

[136]

Mr. Ratnam brought a
    ss. 8 and 9
Charter

application,
    claiming that the warrantless pings breached his right to privacy and that this
    in turn led to his arbitrary and unlawful detention. The other accused joined
    the application on the basis that their detentions resulted from the breach of
    Mr. Ratnams s. 8 rights.

[137]

The trial judge found
    no breach of Mr. Ratnams s. 8 rights, concluding that it was entirely
    reasonable for the police to believe that another robbery was imminent and,
    therefore, to exercise their powers in urgent circumstances. The respondents
    challenge this finding on appeal.

[138]

In my view, there is
    no basis upon which to interfere with the trial judges finding on the s. 8
    issue or the careful reasons that underpin it. It is therefore unnecessary to
    address the issue of standing.

[139]

Where exigent
    circumstances exist, the police can use a cellular telephone ping to locate a suspect:
    see, for e.g.,
R. v. Bakal
, 2021 ONCA 584, at
    paras. 24-25. These circumstances will arise where there is an imminent threat
    to the police or public safety, or the risk of the imminent loss or destruction
    of evidence: see
R. v. Paterson
, 2017 SCC 15, [2017]
    1 S.C.R. 202, at paras. 32-33;
Bakal
, at para.
    19.

[140]

This record is built
    on exigent circumstances. There had been two very recent, violent robberies
    committed close to one another. The suspects were armed. They had demonstrated
    their penchant for terrorizing their victims by threatening them with guns. At
    the most recent robbery, they had demonstrated their willingness to seriously
    harm a victim, leaving him bleeding profusely from the head. The violence was
    escalating from crime-to-crime. The police had to act.

[141]

While there was some
    discrepancy in the police evidence as to exactly when the decision was made to
    ping the phone, the trial judge was alive to that discrepancy and reviewed it
    in her ruling. Despite expressing some concern over those inconsistencies, the
    trial judge noted the practical fact that the decision was made in a fluid and
    dangerous situation. In the end, she found that the discrepancies, to the
    extent they existed, did not undermine the police evidence on this point. It
    was open to the trial judge to come to that decision. It was a reasonable one.

V. CONCLUSION

[142]

The Crown appeal is
    granted. The cross-appeals are dismissed.

[143]

All directed verdicts
    of acquittal are set aside. The stay of proceedings is set aside. A new trial
    is ordered on those counts.

Released: April 1, 2022 JMF

Fairburn A.C.J.O.

I agree B.W. Miller J.A.

I agree. George J.A.

APPENDIX A: ALL COUNTS AND
    VERDICTS

Graziellas Fine Jewellery (March
          13, 2017)

Attempt robbery

(s. 463(a) of the
Criminal Code
)

Mr. Atwima

Directed verdict

Mr. Johnson

Directed verdict

Mr. Okrah

Directed verdict

Mr. Ratnam

Directed verdict

Disguise with intent to commit
          indictable offence (s. 351(2) of the
Criminal Code
)

Mr. Atwima

Directed verdict

Mr. Johnson

Directed verdict

Mr. Okrah

Directed verdict

Mr. Ratnam

Directed verdict

Ron Galbraith
          Jewellers (March 14, 2017)

Robbery using restricted or prohibited
          firearm (s. 344(1)(a) of the
Criminal Code
)

Mr. Atwima

Guilty

Mr. Johnson

Guilty

Mr. Okrah

Directed verdict

Mr. Ratnam

Guilty

Disguise with intent to commit
          indictable offence (s. 351(2) of the
Criminal Code
)

Mr. Atwima

Guilty

Mr. Johnson

Guilty

Mr. Okrah

Directed verdict

Mr. Ratnam

Guilty

Use of imitation firearm while
          committing the indictable offence of robbery (s. 85(2)(a) of the
Criminal
          Code
)

Mr. Atwima

Guilty

Mr. Johnson

Guilty

Mr. Okrah

Directed verdict

Mr. Ratnam

Not guilty

Valdis
          Jewellery Shop (March 14, 2017)

Robbery using restricted or prohibited
          firearm (s. 344(1)(a) of the
Criminal Code
)

Mr. Atwima

Guilty

Mr. Johnson

Guilty

Mr. Okrah

Guilty

Mr. Ratnam

Guilty

Aggravated assault (s. 268 of the
Criminal
          Code
)

Mr. Atwima

Guilty

Mr. Johnson

Guilty

Mr. Okrah

Guilty

Mr. Ratnam

Not guilty

Disguise with intent to commit
          indictable offence (s. 351(2) of the
Criminal Code
)

Mr. Atwima

Guilty

Mr. Johnson

Guilty

Mr. Okrah

Guilty

Mr. Ratnam

Guilty

Use of imitation firearm while
          committing the indictable offence of robbery (s. 85(2)(a) of the
Criminal
          Code
)

Mr. Atwima

Guilty

Mr. Johnson

Guilty

Mr. Okrah

Guilty

Mr. Ratnam

Guilty

Driving incident
          following Valdis Jewellery Shop (March 14, 2017)

Fail to stop (s. 249.1(1) of the
Criminal
          Code
)

Mr. Ratnam

Stayed

[1]
I say for
    reasons not entirely clear on the record because, despite the trial Crowns
    concession at trial on this point, the record reveals a good deal of evidence
    also linking Mr. Okrah to, by way of example and, at a minimum, the Galbraith
    robbery. After all, when caught in the getaway vehicle, Mr. Okrah (and his
    compatriots) were surrounded by a plethora of evidence from both robberies.

[2]

Following
    the trial judges initial ruling discussed below, Mr. Atwima changed his
    position to align with that of Mr. Johnson.

[3]
During oral submissions at
the hearing of the appeal, Crown
    counsel was asked whether the Crown agreed with the respondents that, if a new
    trial were to be ordered on the similar act evidence issue, all verdicts,
    including the convictions, should be set aside and all counts (except the fail
    to stop count that was stayed), returned for retrial. The Crown agreed with
    that position. Shortly after the hearing of the appeal, the court communicated
    with counsel, asking for reattendance to assist the court with understanding
    why, if the Crown appeal succeeded, the convictions should also be set aside.
    Crown counsel then withdrew the earlier position, taken during oral
    submissions, asking only that the acquittals be set aside and a retrial ordered
    on those counts. All counsel were provided with a full opportunity to respond.


COURT OF APPEAL FOR ONTARIO

CITATION: Licata v. Shure, 2022 ONCA 270

DATE: 20220401

DOCKET: C68543

Feldman, Roberts and Favreau
    JJ.A.

BETWEEN

Alfonso Licata

Applicant (Respondent)

and

Julia Shure

Respondent (Appellant)

Theodore Nemetz, for the appellant

Kristen Normandin and Cara Senese, for
    the respondent

Heard: March 18, 2022 by video
    conference

On appeal from the order of Justice Susanne
    Boucher of the Superior Court of Justice, dated March 9, 2020, and signed May
    11, 2021.

Favreau J.A.:

[1]

The appellant mother, Julia Shure, appeals an
    order terminating child support for the two oldest children from her marriage
    to the respondent father, Alfonso Licata. She also seeks to appeal the costs
    order made against her in the amount of $80,183.06.

[2]

For the reasons below, I would allow the appeal.

BACKGROUND

[3]

The parties were married for twenty years and
    separated in 2014.

[4]

The parties have three children, including H.S.L.
    (born in 1998) and A.E.L. (born in 2000).

[5]

In 2015, the parties entered into a separation
    agreement, which formed the basis for a consent order dated March 10, 2017, signed
    by J. Wilson J. (the 2017 Order). The 2017 Order resolved the issues of
    spousal support, child support, special and extraordinary expenses, division of
    property, and parenting arrangements.

[6]

With respect to child support, the 2017 Order required
    the father to pay $2,895.00 per month to the mother for all three children. The
    order also provided a formula for the parties to share special and
    extraordinary expenses, which included post-secondary education and related
    expenses for the children and specified amounts for tutoring expenses for each
    child.

[7]

Additionally, the 2017 Order included the
    following term:

[T]he quantum of support set out in this Court
    Order may be varied if there is a material change in the circumstances of
    either party or the Children, which may include any of the following events:

(a)
Any of the Children residing away from home for the purposes of
    pursuing post-secondary education;

(b)
Any of the Children changing their residence(s);

(c)
A significant change in the quantum of the Childrens special or
    extraordinary expenses; or

(d)
A material change in the Applicant/Husbands income, being an
    increase or decrease in his annual income of 15% or more.

[8]

In 2019, the father brought a motion to change the
    2017 Order pursuant to s. 17 of the
Divorce Act
, R.S.C. 1985, c.
    3 (2nd Supp.). He sought termination of child support for H.S.L. and A.E.L.,
    and reimbursement for various payments. The mother responded to the motion to
    change seeking, among other orders, an order for increased spousal support.

[9]

In a decision dated March 9, 2020, the motion judge
    terminated child support for H.S.L. In doing so, she held that there was a
    material change in circumstances because H.S.L. had reached the age of majority.
    She then reviewed H.S.L.s record as a university student and determined that, given
    that H.S.L. had obtained very few credits in her program, she was not devoting
    herself to university studies and could instead work to support herself. The motion
    judge concluded that H.S.L. could therefore withdraw from parental control. On
    that basis, the motion judge terminated child support for H.S.L.

[10]

With respect to A.E.L., the motion judge found
    that, despite also having reached the age of majority, she was enrolled in a
    full-time university program and, accordingly, the father should continue to
    pay child support for her. However, as a condition of continuing child support,
    the motion judge directed the mother to provide proof of A.E.L.s full-time enrolment
    in post-secondary studies within 45 days of the end of each academic term.

[11]

The motion judge declined to order an increase
    in spousal support for the mother.

[12]

Following the release of the motion judges
    reasons, the parties were invited to make submissions on costs. As part of his submissions,
    the father provided some information that A.E.L. was not enrolled in full-time university
    studies, and therefore asked that child support for A.E.L. be terminated as
    well.

[13]

In a costs endorsement dated May 1, 2020, the motion
    judge awarded $80,183.06 in costs to the father. In doing so, she found that he
    was substantially successful in bringing his motion to change and in defending
    against the mothers response to the motion to change requesting increased
    spousal support. As well, the motion judge explained that the mothers conduct throughout
    the litigation justified awarding costs on a substantial indemnity basis.

[14]

Seven months following the release of the costs
    endorsement, the father filed a Form 14B notice of motion under rr. 14(10) and
    25(1) of the
Family Law Rules
, O. Reg. 114/99, for the purpose of settling
    the order. As part of the materials filed on the motion, the father again
    renewed his position that child support for A.E.L. should be terminated, and he
    provided a draft order to that effect.

[15]

On May 11, 2021, the motion judge released an
    endorsement approving the order as proposed by the father, which included a provision
    terminating child support for A.E.L. The motion judge did not provide reasons for
    doing so other than stating that she had reviewed the affidavit and email
    materials filed on the motion.

DISCUSSION

[16]

The mother challenges the termination of child
    support for H.S.L. and A.E.L., as well as the costs order.

[17]

It is acknowledged that on appeal from a decision
    dealing with a support order, the court should not overturn the order unless
    the reasons disclose an error in principle, demonstrate a significant
    misapprehension of the evidence, or result in an award that is clearly wrong; the
    court is not to overturn a support order merely because it would have reached a
    different decision or balanced the factors differently:
Gray v. Rizzi
,
    2016 ONCA 152, 129 O.R. (3d) 201, at para. 18, referring to
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518, at paras. 11-12. However, as reviewed below, I
    have concluded that the motion judge made errors in principle in terminating
    child support for H.S.L. and A.E.L. Given that conclusion, I would also set
    aside the costs.

Issue 1: The termination of child support for
    H.S.L.

[18]

The mother argues that the motion judge erred in
    her articulation and application of the test on a motion to change. I agree.

[19]

Section 17(1)(a) of the
Divorce Act
gives
    a court of competent jurisdiction the power to vary a support order. Section
    17(4) precludes the court from varying a child support order unless there has
    been a change of circumstances since the initial support order or the last
    variation order was made. Section 14(b) of the
Federal Child Support Guidelines
,
    SOR/97-175, contemplates that a change of circumstances constitutes any change
    in the condition, means, needs or other circumstances of either spouse or of
    any child who is entitled to support. As reviewed above, the 2017 Order also
    contained a term allowing for the variation of support when there is a material
    change in circumstances.

[20]

In conducting an inquiry into whether there is a
    material change in circumstances, courts have required the party seeking the
    variation to demonstrate a material change of circumstances that was not
    contemplated by the parties at the time that the initial order was made and
    that, if such a change had been known, would likely have resulted in different
    terms:
L.M.P. v. L.S.
, 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32,
    citing
Willick v. Willick
, [1994] 3 S.C.R. 670, at p. 688.

[21]

The Supreme Court of Canada set out the test for
    determining whether there has been a material change of circumstances in
Gordon
    v. Goertz
, [1996] 2 S.C.R. 27, at paras. 10-13. This court, in
N.L. v.
    R.R.M.
, 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that
    test as having three components:

1) a change in the condition, means, needs or
    circumstances of the child and/or or the ability of the parents to meet those
    needs;

2) the change must materially affect the
    child; and

3) the change was either not foreseen or could
    not have been reasonably contemplated by the judge who made the initial order.

[22]

In this case, the motion judge described her
    approach to deciding whether there had been a material change in circumstances
    as follows:

Because [A.E.L.] and [H.S.L.] have reached the
    age of majority, their ages would constitute a material change in circumstances
    justifying variation of the 2017 order, unless there is evidence that they are
    unable by reason of illness, disability or other cause, to withdraw from the
    charge of the parents.
Divorce Act s.2(1)(b)
;
s.17(4)
.
The
    person who seeks support to continue for a child over the age of majority bears
    the onus of establishing the need for continued support, but the court looks to
    the overall evidentiary record to determine the issue.

[23]

On this basis, the motion judge started from the
    premise that there had been a material change in circumstances because H.S.L. had
    reached the age of majority. She then required the mother to demonstrate that H.S.L.
    was not capable of withdrawing from parental control. This was an error in
    principle. H.S.L. was already over the age of majority when the 2017 Order was
    made, at which time she was also already attending university. There was no
    material change in circumstances from the time of the 2017 Order.

[24]

Notably, the 2017 Order specifically
    contemplated a child residing away from home for the purposes of pursuing
    post-secondary education as an example of a material change in circumstances
    that would warrant a change in the amount of support. The presence of the
    additional requirement of the child residing away from home clearly implies
    that attending post-secondary education would not in and of itself create a
    material change in circumstances attracting a variation of support.

[25]

Accordingly, at the time that the 2017 Order was
    made, the parties had clearly contemplated that support would continue after
    H.S.L. was 18 years old and that she would attend university. This was the appropriate
    starting point for assessing whether there had been a material change in
    circumstances that justified terminating or reducing child support for H.S.L.;
    not whether H.S.L. had attained the age of majority.

[26]

The motion judge further erred by placing the
    burden on the mother to prove that H.S.L. required continuing child support. She
    conducted this inquiry as though it was an initial application for child
    support pursuant to s. 15.1(1) of the
Divorce Act
, which would require
    a determination of whether H.S.L. was still a child of the marriage as
    defined in s. 2(1).

[27]

In doing so, the motion judge reviewed the
Farden
factors, which assist in determining whether an individual is a child of the
    marriage:
Farden v. Farden
(1993), 48 R.F.L. (3d) 60 (B.C. S.C.).

[28]

The motion judge then considered H.S.L.s
    progress in her university program:

[H.S.L.s] university transcripts show that
    she has completed only about 3.5 credits in 4 years, and a degree at her
    university generally requires at least 20 credits.
From the transcripts, it
    seems [H.S.L.] has been a full-time student or nearly a full-time student at
    various points, but she did not necessarily attain credits for all her courses
.
    [Emphasis added.]

[29]

The motion judge went on to review the mothers explanation
    for this slow progress, which she accepted as a finding of fact:

[The mother] says that [H.S.L.] has learning
    disabilities and that she is completing her university courses slowly. She says
    that [H.S.L.s] issues have been present since she was in the third grade,
and
    that [the father] has always been aware of this
. She says he has paid for [H.S.L.s]
    tutoring for many years and was involved in the original hiring of the tutor.
I accept [the mothers] evidence on the point
. [Emphasis added.].

[30]

Nevertheless, the motion judge ultimately found
    that H.S.L.s progress in university was not reasonable and that H.S.L. should
    therefore not be considered a child of the marriage. In particular, the motion
    judge stated that there was no evidence about H.S.L.s educational limitations
    or career plans. On that basis, the motion judge concluded that the mother had
    not met what she characterized as the mothers onus:

Because [H.S.L.] is over the age of
    majority, it is [the mothers] onus to establish that [H.S.L.] is unable to
    withdraw from parental control
. There is
    insufficient evidence before the court of her inability to withdraw from her
    parents at present according to the
Divorce Act
definition, given the
    evidence that she works at least part time and the insufficient justification
    advanced for the supported pursuit of her current educational plan. [H.S.L.] is
    no longer a child of the marriage. [Emphasis added.]

[31]

The motion judge erred by reversing the onus and
    requiring the mother to prove that H.S.L. was not able to withdraw from
    parental control.

[32]

On an initial application for child support
    pursuant to s. 15.1(1) of the
Divorce Act
, a court may make an order
    for the payment of child support for any or all children of the marriage. For
    children who are at the age of majority or older, s. 2(1) of the
Divorce
    Act
defines them as being a child of the marriage if they are under [parental]
    charge but unable, by reason of illness, disability or other cause, to withdraw
    from their charge or to obtain the necessaries of life.

[33]

When a parent claims child support for a child
    who is at the age of majority or older, that parent has the onus of proving
    that the child remains under parental charge:
Whitton v. Whitton
(1989), 21 R.F.L. (3d) 261 (Ont. C.A.), at p. 263;
Dring v. Gheyle
,
    2018 BCCA 435, 430 D.L.R. (4th) 181, at para. 49;
Olson v. Olson
, 2003
    ABCA 56, 225 D.L.R. (4th) 735, at para. 13. This onus can be satisfied by identifying
    circumstances such as, for example, the child being enrolled in higher
    education: see
W.P.N. v. B.J.N.
, 2005 BCCA 7, 249 D.L.R. (4th) 352, at
    para. 18.

[34]

In this case, it was an error for the motion judge
    to treat this as an initial request for child support for a child who is at or above
    the age of majority. The parties had already agreed and obtained an order in
    2017 that contemplated that support was to be paid for H.S.L. The only relevant
    question at the variation stage was whether the father had proven that there had
    been a material change in circumstances since the 2017 Order, and specifically
    whether it was beyond the parties contemplation at that time that H.S.L. would
    take an extended period of time to complete her university studies.

[35]

Based on the record before the motion judge, had
    she conducted the proper inquiry, she should have found that the father had not
    established a material change in circumstances. As reviewed above, the evidence
    was that H.S.L. was a full-time student or nearly a full-time student during
    the relevant period. The motion judge noted that the 2017 Order contemplated
    payments for a tutor for H.S.L. In addition, the motion judge accepted the mothers
    evidence that the father was familiar with H.S.L.s learning challenges. In the
    circumstances, the motion judge should not have found that the mother failed to
    prove that H.S.L.s course of study was reasonable. Rather, she should have
    found that the father had failed to meet his burden of proving that there was a
    material change in circumstances from the time that the 2017 Order was made.

[36]

This does not mean that the father should be
    required to pay child support for H.S.L. indefinitely. But child support should
    not be terminated for H.S.L. until the father can demonstrate that there has
    been a material change in circumstances not contemplated at the time of the 2017
    Order and that H.S.L. is able to withdraw from parental control.

[37]

Accordingly, the order terminating child support
    for H.S.L. cannot stand. Instead, I would reinstate the support payments for
    H.S.L. that were required under the 2017 order, supported by a Family
    Responsibility Enforcement order.

Issue 2: The termination of child support for
    A.E.L.

[38]

The mother argues that the motion judge also erred
    in terminating child support for A.E.L. because the order that she approved was
    inconsistent with her reasons. I agree.

[39]

As reviewed above, in her original decision, the
    motion judge found that child support for A.E.L. should continue as long as the
    mother provided proof that A.E.L. was enrolled in a full-time university
    program within 45 days after the end of each academic term.

[40]

In the context of submissions on costs, the father
    again sought an order terminating child support for A.E.L., claiming that she
    was not enrolled in a full-time university program. In her costs endorsement,
    the motion judge appeared to reject this argument as follows:

[The father] takes the position in his
    written brief that because [A.E.L.] is enrolled in 4 courses rather than 6,
    that this disentitles her to support. I do not agree with this position
. I would note for the parties that full-time school attendance may
    not necessarily be required of the children of the marriage, depending on their
    overall limitations at any given time, based on any [medical] or psychological
    issues, and given the overall circumstances that present. For example, less
    than full time attendance, if caused by outside employment or other activities
    may reduce the amount that [the father] would be required to pay for their
    support or may disentitle them to support, depending on the overall
    circumstances. Less than full-time attendance because of a medical or
    psychological issue may require full support, however continued slow progress
    may not merit continued support periods if the lack of progress extends beyond
    a reasonable period of time, depending on the overall goals. All this is to
    point out that a motion to change would be required to stop the requirement to
    pay support for the children if they are enrolled in less than full-time school,
    so that the judge could analyze whether the children still fall within the definition
    under the
Divorce Act
, given the governing caselaw. [Emphasis added.]

[41]

However, later in her costs endorsement, the motion
    judge directed that the costs award be taken out as drafted in the order
    regarding the trial results as prepared by [the fathers] counsel.

[42]

This appears to have led to disagreement between
    the parties over the terms of the order, given that the order proposed by the father
    included a term ending child support for A.E.L.

[43]

The father then brought a Form 14B motion,
    seeking to settle the order. His materials on the motion included an affidavit
    that attached various documents from A.E.L.s university program. The documents
    included a letter from the university stating that A.E.L. was indeed enrolled in
    full-time studies. The materials also included a transcript showing that A.E.L.
    was enrolled in four courses in her first two terms. Finally, the materials
    included pages from a university calendar listing the full-time course load in
    the first year of A.E.L.s university program as consisting of 6 specified courses
    in the first semester and 5 specified courses in the second semester.

[44]

The motion judge released her endorsement regarding
    the Form 14B motion on May 11, 2021. Her endorsement did not explicitly address
    the issue of whether child support for A.E.L. should be terminated. Rather, she
    granted the fathers motion and signed the draft order provided by his counsel
    [b]ased on [her] review of the affidavit and email materials filed, as well as
    the application and the consents signed by the parties.

[45]

I find that it was an error for the motion judge
    to approve the order proposed by the father, which included a provision
    terminating child support for A.E.L. It is not clear whether this error was
    inadvertent or substantive. It was nevertheless an error.

[46]

If the motion judges intention was to terminate
    A.E.L.s child support based on the fathers position that she was not enrolled
    in a full-time university program, no reasons were provided for this finding. Notably,
    the termination of child support for A.E.L. contradicts the paragraph in the
    costs endorsement where the motion judge directly addressed this issue, and where
    she explicitly stated that another motion to change would be required to determine
    whether child support for A.E.L. should be terminated. No such motion appears
    to have been brought.

[47]

In any event, the evidence put forward by the father
    does not support an unequivocal finding that A.E.L. was not enrolled in full-time
    university studies. The materials the father provided to the motion judge included
    a letter from the university stating that A.E.L. is enrolled in a full-time
    program. The only evidence to the contrary was the fathers interpretation of a
    general statement in the calendar for A.E.L.s university program characterizing
    a full-time course load for first-year students in the first semester as requiring
    six courses.

[48]

Finally, the motion judges initial approach to
    determining whether child support should be continued for A.E.L. was the same
    as her approach to child support for H.S.L. Ultimately, as reviewed above,
    child support for A.E.L. could only be terminated if the father had been able
    to establish a material change in circumstances since the time of the 2017
    Order and that A.E.L. is able to withdraw from parental control.

[49]

While I have concluded that the motion judge
    erred in terminating child support for A.E.L. based on the discrepancies
    between her reasons for decision and her final order, I note that any future motion
    to change would have to be based on a proper evidentiary foundation and an analysis
    of whether there was a material change in circumstances, and cannot simply be
    based on evidence that A.E.L. is no longer enrolled in full-time studies.

[50]

Accordingly, the order terminating child support
    for A.E.L. is set aside. Instead, the 2017 order requiring the father to continue
    paying child support for A.E.L. is reinstated, supported by a Family
    Responsibility Support enforcement order.

Issue 3: Costs order

[51]

The mother argues that the costs order should be
    set aside because the motion judge erred in finding that the father was
    substantially successful.

[52]

It is not necessary to decide whether the motion
    judge erred in awarding costs to the father given that the appeal is allowed on
    the two other issues raised. The entitlement and quantum of costs for the
    proceedings below will have to be decided afresh based on the outcome of this appeal.
    Directions are provided below for the submission of materials on this issue.

DISPOSITION

[53]

In conclusion, I would allow the appeal and: (a)
    strike paragraphs 2, 3, and 9 of the motion judges order dated March 9, 2020
    (signed May 11, 2021); and (b) make an order requiring the father to pay
    ongoing child support for H.S.L. and A.E.L. according to the terms of the 2017
    order.

[54]

Because I would allow the appeal, the mother is entitled
    to the return of the amount that she posted as security for costs. Accordingly,
    I would order that the sum of $100,000 posted as security for costs by the mother
    is to be released to her.

[55]

The parties should try to agree on costs below
    and for the appeal. If they are unable to agree, they may make brief
    submissions (no longer than three pages) within three weeks of the release of
    these reasons, addressing the costs of the appeal as well as costs of the
    motions below.

Released: April 1, 2022 K.F.

L.
    Favreau J.A.

I
    agree. K. Feldman J.A.

I
    agree. L.B. Roberts J.A.