COURT OF APPEAL FOR ONTARIO

CITATION: Philip
    Services Corp. v. Deloitte & Touche, 2015 ONCA 60

DATE: 20150130

DOCKET: C59046

Hoy A.C.J.O., Simmons and Tulloch JJ.A.

BETWEEN

Philip Services Corp. by its receiver and
    manager, Robert Cumming, High River Limited Partnership and Canadian Imperial
    Bank of Commerce

Appellants

and

Deloitte & Touche, Deloitte
    & Touche LLP, Deloitte Touche Tohmatsu, Deloitte Touche Tohmatsu LLP and
    Deloitte Touche Tohmatsu f/k/a Deloitte Touche Tohmatsu International

Respondents

Thomas Dunne and John Callaghan, for the appellants

Robb C. Heintzman, Michael Schafler and Mark Evans, for
    the respondents

Paul F. Farley and Brian Bellmore, for the Institute of
    Chartered Accountants of Ontario

Heard: December 15, 2014

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated June 10, 2014.

Hoy A.C.J.O.:

[1]

The appellants  Philip Services Corp.
(Philip)
    by its receiver and manager, Robert Cumming, High River Limited Partnership and
    Canadian Imperial Bank of Commerce  appeal the June 10, 2014 order of the
    motion judge, dismissing their motion under rule 30.10(1) of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

The appellants are the representative plaintiffs in a billion dollar
    class action involving allegations that the respondent, Deloitte & Touche (Deloitte),
    was negligent in preparing the 1995 and 1996 annual statements of Philip, a
    public company.

[3]

In 1998, about two years before the appellants commenced their action,
    the Institute of Chartered Accountants of Ontario (the Institute) commenced
    an investigation into Deloittes audits of Philip for 1995 and 1996. In 2007, the
    Institute brought charges against Noel Woodsford, the senior partner at
    Deloitte responsible for the audits, and in 2008 it found Mr. Woodsford guilty
    of professional misconduct.

[4]

In June 2014, the appellants sought an order under rule 30.10(1)
    requiring the Institute  a non-party to the litigation  to produce its
    investigators report, witness statements, notes of interviews conducted and
    other documentation concerning the Institutes investigation and discipline of
    Mr. Woodsford. The motion judge dismissed their application. He concluded that
    it would not be unfair for the appellants to proceed to trial without having
    discovery of the material sought and that, in any event, the materials need not
    be produced because they are subject to a Wigmore case-by-case privilege.

[5]

The appellants advance four arguments on appeal:

1.
    the motion judge erred in concluding that it would not be unfair for them to
    proceed to trial without discovery of the documents;

2.
    in
Canadian Imperial Bank of Commerce v. Deloitte & Touche
, 2014
    ONCA 89, 118 O.R. (3d) 508 (the Prior Decision), this court determined that
    material relating to the discipline proceedings against Mr. Woodford is
    admissible, and not privileged;

3. if
    the issue of privilege was not resolved by the Prior Decision,  the motion
    judge erred in any event in finding that the documents were privileged by
    case-by-case privilege; and

4. the
    motion judge erred in making his findings without inspecting the documents at
    issue.

[6]

Given the requirements of rule 30.10 (reproduced below), to  succeed on
    this appeal the appellants must establish both that the material at issue is
    not privileged and that it would be unfair to require them to proceed to trial
    without having discovery of the material. While I am not persuaded that the
    Prior Decision determined the issue of privilege, I agree with the appellants
    that the motion judge erred in finding that the documents were privileged by
    case-by-case privilege. However, there is no basis to interfere with the motion
    judges finding that it would not be unfair for the appellants to proceed to
    trial without discovery of the material at issue.  And the motion judge was not
    required to inspect the material.  I would accordingly dismiss this appeal.

[7]

Below, I first set out the text of rule 30.10 for reference. Then I
    briefly address the appellants argument that the motion judge was required to
    inspect the documents at issue before making his ruling. Next, I turn to the issue
    of whether it would be unfair to require the appellants to proceed to trial
    without having discovery of the documents. While that issue is dispositive, I
    also address both of the appellants arguments with respect to privilege as the
    motion judges finding of a case-by-case privilege may have ramifications at
    trial.

Text of Rule 30.10

[8]

Rule 30.10 addresses production by non-parties. It reads in relevant
    part:

Order for Inspection

30.10  (1)  The
    court may, on motion by a party, order production for inspection of a document
    that is in the possession, control or power of a person not a party and is
not
    privileged
where the court is satisfied that,

(a) the document is relevant to a material issue in the
    action; and

(b) it would be
unfair
to
    require the moving party to proceed to trial without having discovery of the
    document.

[]

Court may Inspect Document

(3)  Where
    privilege is claimed for a document referred to in subrule (1), or where the
    court is uncertain of the relevance of or necessity for discovery of the
    document, the
court may inspect
the document to determine the issue. [Emphasis
    added.]

Failure to Inspect the
    Documents

[9]

Rule 30.10(3) is discretionary. It does not require the motion judge to
    inspect the documents. The motion judge is also the case management judge for
    the class proceeding. Among the motions that he has heard is a motion for
    productions. He would clearly have understood the nature and significance of
    the documents at issue. His decision not to inspect the documents is entitled
    to deference.

Not Unfair to Proceed to Trial Without Documents

[10]

Rule
    30.10(1) is also discretionary.  The determination of the motion judge  who as
    I note above is also the case management judge for the class proceeding  was
    fact-specific and is entitled to deference. He applied this courts decision in
Ontario (Attorney General) v. Stavro
(1995), 26 O.R. (3d) 39 (C.A.),
    and considered the relevant factors in his analysis. As the motion judge wrote
    at para. 131:

The [appellants] have all the information that Deloitte
    provided to the Institutes investigators, and the [appellants] have and have had
    their own experts to evaluate and opine on the significance of that evidence.
    The [appellants] have and continue to have the benefit of extensive
    examinations for discovery where they can question the principal actors in the
    events that lead to the allegedly negligent and reckless audit of Philips
    accounts.

[11]

There
    is no basis to interfere with the motion judges conclusion that the appellants
    do not need the Institutes file or its investigators report  either to prove
    the technical elements of the issue estoppel they plead based on the
    Institutes finding of professional misconduct or to defend Deloittes summary
    judgment motion, which will turn on whether Deloitte owed Philips lenders a
    duty of care.

[12]

Further,
    as this court held in
Stavro
, Rule 30.10 assumes that it is not
per
    se
unfair to require a party to go to trial without the forced production
    of relevant documents in the possession of third parties. There is no basis to
    interfere with the motion judges conclusion that the appellants have failed to
    overcome this presumption.

Impact of the Prior Decision

[13]

I
    am not persuaded that the Prior Decision forecloses an argument that the
    material is privileged based on case-by-case privilege.

[14]

The
    Prior Decision was an appeal from the motion judges decision that s. 61 of the
Chartered Accountants Act, 2010
, S.O. 2010, c. 6, Sch. C. (the
CAA,
    2010
) applied to discipline proceedings under the
Chartered
    Accountants Act, 1956
, S.O. 1956, c. 7 (the
CAA, 1956
), and
    accordingly precluded the appellants from pleading issue estoppel based on the
    Institutes decision finding Mr. Woodsford guilty of professional misconduct.
    Section 61 of the
CAA, 2010
renders material relating to professional
    discipline proceedings involving the Institute inadmissible in most civil
    proceedings. It is a new provision: the
CAA, 1956
has no equivalent.

[15]

In
    the Prior Decision, this court engaged in an exercise of statutory interpretation.
    It considered whether s. 61 applied only to material relating to proceedings
    under the
CAA 2010
, or also applied to discipline proceedings under
    the legislative authority of the
CAA, 1956
, such as those against Mr.
    Woodsford. If s. 61 applied to proceedings under the
CAA, 1956
, the
    appellants could not amend their statement of claim to plead issue estoppel
    based on the Institutes decision finding Mr. Woodsford guilty of professional
    misconduct. This court concluded that s. 61 only applied to proceedings under the
CAA, 2010
and the appellants could therefore plead issue estoppel.

[16]

At
    para. 52 of the Prior Decision, Doherty J.A., writing for the court, refers to
    the possibility that a party in a civil proceeding might seek to introduce
    documents relating to a discipline proceeding under the
CAA, 1956
.
    Properly understood, he determined that s. 61 would not be a bar to the
    admission of such documents.  He did not determine that they are in all cases
    admissible.

Case-by-case Privilege

[17]

While
    the motion judge correctly articulated the appropriate test for determining
    case-by-case privilege, his conclusion resulting from his application of the
    test cannot stand.

[18]

The
    four elements examined in analyzing a case-by-case privilege  the Wigmore
    criteria
[1]
 are as follows:

1.

the
    communication must originate in a confidence that they will not be disclosed;

2.

the
    confidentiality must be essential to the full and satisfactory maintenance of
    the relation between the parties;

3.

the relation
    must be one which in the opinion of the community ought to be sedulously
    fostered; and

4.

the injury that
    would inure to the relation by the disclosure of the communications must be
    greater than the benefit thereby gained for the correct disposal of litigation.

[19]

At
    para. 145 of his reasons, the motion judge concluded that:  the Institute gave
    assurances of confidentiality; the confidentiality was essential for the
    maintenance of the relationship between a regulator of a self-governing and
    self-disciplining profession and its members; it is in the public interest to
    sedulously foster that relationship and the role of the regulator; and
    impairing the relationship by the disclosure of confidential communications is
    more injurious to the public interest than the advantages to the court in its
    pursuit of truth and accuracy. At para. 148 of his reasons, the motion judge considered
    that s. 61 of the
CAA, 2010
was some evidence that it is in the
    public interest to have a case-by-case privilege that keeps the members
    communications with the Institute about discipline proceedings confidential.

[20]

With
    respect, the motion judges conclusion that the Wigmore criteria are established
    in this case flows from a reversible error. Understood in context
    particularly in light of the Institutes practice to produce the material at
    issue to the affected member at or before the time charges are laid  the
    Institutes assurance as to confidentiality only applied until charges were
    laid.

[21]

By
    letter dated May 12, 1998, the Institute advised Mr. Woodsford that it was
    commencing an investigation and required a reply. The Institute enclosed a copy
    of its Complaints Investigation and Disciplinary Procedures. That document
    indicated that [m]atters under investigation and information gathered by the
    professional conduct committee are confidential to the committee
except to the extent necessary to carry out a prosecution where
    charges are laid
 (emphasis added).

[22]

Subsequently,
    in its decision of May 31, 1999 denying Mr. Woodsfords request that the
    Institute defer its investigation because it could prejudice Deloitte in the
    parallel U.S. civil proceedings alleging negligence, the Institute wrote:

The professional conduct committee is aware of the risk that a
    court may order production of material, including investigators reports, which
    the committee views as confidential and subject to qualified privilege. The
    committee has, in the past, successfully argued against court ordered
    production of investigators reports. The committee fully intends to resist any
    future applications for production of materials gathered as a result of an
    investigation brought by the committee
that have not been
    made public through a discipline prosecution. This assurance of confidentiality
    that has been given to members in the past
, who are the subject of an
    investigation, is extended to Messrs. McNeill
[2]
and Woodford [
sic
] (emphasis added).

[23]

In
    this case, charges were laid against Mr. Woodsford, but  in a departure from
    the Institutes normal practice, involving what counsel for the Institute
    characterized in oral argument as a unique settlement agreement  the
    materials were not delivered to Mr. Woodsford before charges were laid or made
    public in the subsequent discipline prosecution.

[24]

Importantly,
    as counsel for the Institute acknowledges, since
Howe v. Institute of
    Chartered Accountants (Ontario)
(1994), 19 O.R. (3d) 483 (C.A.), leave to
    appeal to S.C.C refused, [1994] S.C.C.A. No. 348, was decided, the Institutes practice
    is to provide disclosure to the subject of the complaint when charges are laid,
    in fulfillment of its
Stinchcombe
disclosure obligations. Indeed, but
    for seemingly tactical decisions by Mr. Woodsford and Deloitte not to accept
    the disclosure available to them and to conclude an agreement with the
    Institute that ensured the investigators report and other contentious
    materials would not be led in evidence at the discipline hearing, the material
    at issue would have been in the hands of Mr. Woodsford and Deloitte and
    compellable on discovery and would have been made public through the discipline
    process.

[25]

The
    discipline committees decision of October 16, 2008 indicates that the parties
    agreed that the professional conduct committee would only call one witness, who
    would not be cross-examined, and that counsel for Mr. Woodsford would not call
    evidence with respect to the question of guilt or innocence. The witness was
    one of the investigators retained by the professional conduct committee. He
    provided an opinion as to Mr. Woodsfords conduct, with reference to a brief of
    documents and a brief of authorities. The investigators report was not filed
    in evidence before the discipline committee.

[26]

The
    actual agreement between the Institute and Mr. Woodsford has not been
    disclosed. However, the most reasonable inference from the record is that it
    was not entered into until
after
the assurances at issue had been
    made,
after
the allegedly confidential communications had been made to
    the Institute, and
after
Mr. Woodsford was notified that charges would
    be drafted.

[27]

By
    January 2005, the Institute had completed its investigation. At the beginning
    of February 2005, the Institute held a disclosure meeting with Mr. Woodsford or
    his counsel. Within the week, counsel for the Institute notified counsel for
    Mr. Woodsford that he had been instructed to draft charges against Mr.
    Woodsford. A delay of nearly two years ensued before, on January 21, 2007,
    charges were finally laid against Mr. Woodsford. And the discipline committee
    did not hear the matter until October 16, 2008. Presumably, this delay was
    occasioned by the negotiation of the agreement between Mr. Woodsford and the
    Institute.

[28]

In
    my view, the communications could not have originated in a confidence that they
    would not be disclosed after charges were laid, and after Mr. Woodsford would,
    in the normal course, be in possession of the materials and could himself be
    compelled to disclose them. Nor  given the Institutes normal practice  could
    Mr. Woodsfords communications have originated in a confidence that they would
    not be disclosed at the discipline hearing. The Institute says that the
    agreement as a result of which the investigators report and other materials
    were not disclosed at the hearing is unique. The assurance that the Institute
    extended to Mr. Woodsford in its decision of May 31, 1999 was the assurance of
    confidentiality that has been given to members in the past. Those past
    assurances did not involve a unique agreement, such as that entered into with
    Mr. Woodsford.

[29]

In
    my view, the first element of the Wigmore test is not made out. Further, the
    motion judges palpable and overriding error in relation to this first element
    taints the balance of his Wigmore analysis.

[30]

With
    respect to the second Wigmore criterion, the motion judge rejected the
    appellants argument that where, as here, a member is compelled to cooperate
    with a regulator,
[3]
and the governing statute does not provide assurances as to confidentiality,
    confidentiality is not essential to the full and satisfactory maintenance of
    the relation between the parties. The motion judge wrote, at para. 147, the
    Institute [gave] the assurances of confidentiality because
its policy
was that proceeding in this way was the
    appropriate way to maintain
the relationship
between the regulator and the member being regulated (emphasis added).

[31]

However,
    not providing disclosure to the member to be charged and entering into an
    agreement such as the unique agreement it entered into in this case were
    contrary to the Institutes normal practices, and not consistent with the
    Institutes policy. While the motion judge did not articulate the nature of the
    particular relationship that was sought to be maintained, presumably he was referring
    to the Institutes argument on this appeal: while a member under investigation
    is obligated to cooperate with the Institute, he or she will be more
    cooperative if the Institute provides an assurance of confidentiality. But, as
    I explain above, the assurances were given, and the communications to the
    Institute made, before the agreement between Mr. Woodsford and the Institute was
    formed. The Institute had obtained the disclosure it required to fulfill its
    regulatory function before it entered into the agreement.

[32]

While
    the Institute did not provide specific submissions to this effect, I suspect that,
    as a result of the agreement, Mr. Woodsford cooperated at the discipline
    hearing and the hearing was more efficient than it would have otherwise been.
    Efficiency should generally be encouraged. However, I have inferred that the
    negotiation of the agreement also had a role in the delay in laying the charges
    and proceeding with the hearing. Hence, it is not clear that the agreement
    and the additional assurances of confidentiality through the agreement
    resulted in overall efficiency in this case.

[33]

In
    my view, where a member is required to cooperate with its self-regulating body,
    where the self-regulating body has an obligation to provide disclosure to the
    member at or before the time charges are laid, and where the governing framework
    does not provide an assurance as to confidentiality, confidentiality after
    charges are laid would usually not be found to be essential to the full and
    satisfactory maintenance of the relation between the parties.

[34]

As
    I note above, after charges were laid in this case, but for a tactical ploy,
    Mr. Woodsford would have had possession of the materials, and could have been
    compelled to disclose them. Further, those materials would have been made public
    through the discipline process. In my view, after charges were laid, confidentiality
    was not essential to the full and satisfactory relationship between the
    Institute (qua regulator, with a public duty to investigate, to promote and
    protect the public interest and maintain the credibility of the profession as a
    self-regulatory body) and Mr. Woodsford. Confidentiality  in this case and at
    this stage  is not essential to the full and satisfactory maintenance of the
    relation between the parties.

[35]

Nor
    do I accept that this type of tactical cooperation between the regulator and a
    member is something that, in the opinion of the community, should be
    sedulously fostered, or that the injury to the relation between the Institute
    and Mr. Woodsford by the disclosure of the materials at issue would be greater
    than the benefit thereby gained for the correct disposal of the litigation.

[36]

The
    Institutes claim for case-by-case privilege therefore fails.

Disposition and Costs

[37]

I
    would accordingly dismiss this appeal. As agreed by the parties, I would award
    costs, as between the appellants and Deloitte, in the cause and would order the
    appellants to pay the Institute costs in the amount of $20,000, inclusive of
    disbursements and applicable taxes.

Alexandra Hoy A.C.J.O.

Released: January 30, 2015
    (A.H.)                         I agree Janet Simmons J.A.

I
    agree M. Tulloch J.A.

[1]
The four Wigmore criteria were recognized by the Supreme Court of Canada in
Slavutych
    v. Baker
, [1976] 1 S.C.R. 254.

[2]
Following the investigation, charges were not laid against Mr. McNeill.

[3]
Members are compelled by the Institutes by-laws and rules to co-operate with
    an investigation by the Institute, including by complying with requests for information,
    documents and interviews.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A. L.,
    2015 ONCA 57

DATE: 20150129

DOCKET: C57718

Watt, Pepall and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. L.

Applicant/Appellant

Michael Davies, for the appellant

Philippe G. Cowle, for the respondent

Heard: January 27, 2015

On appeal from the sentence imposed on December 13, 2012
    by Justice Hugh R. McLean of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The applicant seeks leave to appeal from an effective sentence of nine
    and three-quarter years imprisonment imposed after trial on counts of sexual
    assault and sexual touching. Mr. Davies does not claim a specific error in principle,
    rather contends that the sentence imposed exceeds the range of sentence
    appropriate for these offences and this offender.

[2]

We are not prepared to interfere with the sentence imposed at trial. The
    offences involved multiple acts of sexual intercourse with a child of whom the
    applicant was the godfather. The abuse extended over five years when the complainant
    was between six and 11 years of age. The applicant has a related record which
    also attracted a penitentiary sentence and has abused domestic partners and at
    least one child before.

[3]

The applicants conduct had a profound and enduring impact on the complainant.
    In these circumstances, we are not prepared to interfere with the sentence
    imposed.

[4]

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


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bakajika, 2015 ONCA 2

DATE: 20150105

DOCKET: C58678

Strathy C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arsene Bakajika

Appellant

Lauren M. Wilhelm, for the appellant

Geoffrey Roy, for the respondent

Heard and released orally: December 19, 2014

On appeal from the conviction entered on October 10, 2013
    by Justice Richard J. LeDressay of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for possession of cocaine and
    marijuana for the purposes of trafficking. He says the trial judge erred in law
    in finding that the arresting officer had reasonable and probable grounds to
    arrest him, that the ensuing search incidental to arrest was a violation of his
    s. 8
Charter
rights and that the evidence seized should have been
    excluded.

[2]

The trial proceeded as a blended
voir dire
. It was acknowledged
    that the officer subjectively believed that he had reasonable and probable
    grounds to arrest and the issue was whether the grounds were objectively
    reasonable.

[3]

The appellant accepts the findings of fact made by the trial judge. He
    acknowledges that the trial judge stated the correct legal test, but says he
    erred in law in the application of that test.

[4]

It is common ground that whether the facts found by the trial judge
    amount in law to reasonable and probable grounds is a question of law and is
    subject to review for correctness:
R. v. Mackenzie
, [2013] S.C.R. 250.

[5]

The trial judge summarized, at paragraphs 6-11 of his reasons, the
    observations (nine in all) that led the officer to believe that he had
    reasonable and probable grounds. After reviewing the relevant authorities, the
    trial judge set out his assessment of the evidence at paragraphs 45 to 47. He
    noted in particular, the need to consider the entirety of the constellation of
    factors taken into consideration by the officer as well as the dynamics of the
    situation in that the decision to arrest had to be made relatively quickly.

[6]

We agree with his analysis of those factors and with his conclusions. It
    is therefore unnecessary to address the s. 24(2)
Charter
issue.

[7]

For these reasons, we dismiss the appeal.

G.R. Strathy C.J.O.

Doherty J.A.

David Watt J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. P.C., 2015
    ONCA 30

DATE: 20150121

DOCKET: C56813

Doherty, Lauwers JJ.A. and Speyer J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

P.C. (a young person)

Appellant

John R. Mann III, for the appellant

Eric Siebenmorgen, for the respondent

Heard: December 19, 2014

On appeal from the conviction entered on September 27,
    2012 and the sentence imposed on March 1, 2013 by Justice Anne M. Molloy of the
    Superior Court of Justice, sitting with a jury.

Lauwers J.A.:

[1]

The appellant was convicted of manslaughter in relation to the beating
    death of 20-year-old Jin Tao Zhu. The appellant was 15 years of age at the time
    of the offence. He did not dispute that he was part of the group of men
    responsible for the beating, but denied both that he had prior knowledge of a
    plan to assault the victim and that he was a willing participant. The appellant
    also denied that he unlawfully confined the victim at the ringleaders home.
    The appellant asserted the defence of duress.

[2]

For the reasons set out below, I would dismiss the conviction appeal. The
    appellant abandoned the sentence appeal.

A.

FACTS

[3]

The ringleader of the assault, Xiao Ming Chen (Xiao), was angry with
    the victim over a romantic rivalry. On February 14, 2010, Xiao told his friend,
    Peng Ren (Peng) that he would find the victim and beat him up. Xiao wanted to
    give [the victim] a lesson. According to the appellant, Xiao called the
    appellant and demanded he come out to meet him, threatening that if he did not
    comply, Xiao would bury him. The appellant took this statement to be a threat
    of violence, which he took seriously since he claimed Xiao had beaten him other
    times in the past. The appellant joined Xiao and Peng at a restaurant.

[4]

Xiao telephoned the victim and discovered he was at a bar with the woman
    Xiao liked. Another friend, Zhao Hui Chen (Zhao), picked Xiao, Peng and the
    appellant up and drove them to the bar where the victim was located. Xiao asked
    the victim to join him outside, and told the woman who was with the victim to
    go home by taxi. Xiao, Peng, Zhao, the appellant and the victim then got into
    the car and drove to a park near the lakeshore. Zhong Rong Zheng ("Zhong")
    joined the group at the park at some point after the beating had commenced. The
    appellant claimed that he himself had been driven to the same park and beaten
    by Xiao a month earlier.

[5]

The appellant testified that Xiao took a stick from the trunk of the
    car and began beating the victim with his fists, the stick and a rock. The
    appellant claimed he attempted to step in to prevent the beating, but that Xiao
    grabbed his collar and threatened to beat the group if they did not participate
    in the assault. They complied, but the appellant claimed he gave only slight
    slaps with the palm of his hand that did not contribute to the victims
    injuries. The victim did not fight back.

[6]

When the beating stopped, the victim could not walk properly and was
    helped to the car. The appellant climbed into the trunk, upon Xiao's request. The
    appellant testified that, from the trunk, he overheard the victim tell Xiao he
    wanted to go home. Xiao refused, saying he was worried the victims family
    would call the police. The victim was taken to Xiaos residence. The appellant
    claimed that, along with others, he helped the victim upstairs and into a bed
    in one of the bedrooms. The appellant then went home.

[7]

The appellant testified that he was afraid for the victim when he left
    him at Xiaos residence, thinking Xiao might beat him again, but also said
    inconsistently that he did not think the victim was in danger. He did not call
    the police or seek medical help for the victim, claiming that Xiao had
    threatened to kill the group if they did not keep quiet.

[8]

The victim died during the night at Xiaos house. The pathologist testified
    that the cause of death was internal hemorrhaging from blunt force injuries,
    and that the victim likely would have survived had he received medical
    attention. When Xiao found the body the next morning, he contacted the police
    and sought medical attention for the victim. Xiao cooperated with the
    investigation.

B.

Procedural History

[9]

The four other participants in the assault  Xiao, Peng, Zhao and Zhong
     were adults at the time of the offence. They were charged with first degree
    murder. Because the appellant was under 18 years of age at the time of the
    offence, under the
Youth Criminal Justice Act
, S.C. 2002, c.1, he
    could not be tried together with the adult accused.

[10]

The
    Crown issued a subpoena to compel the appellant to testify at the preliminary
    hearing for the adult accused other than Zhong, since Zhong had already pleaded
    guilty to aggravated assault. Defence counsel brought an application in the
    Superior Court of Justice to quash the subpoena. Justice Code dismissed the
    application, with reasons reported at 2011 ONSC 1824, 231 C.R.R. (2d) 215. He
    held that the appellant had relevant evidence in relation to the adult accused
    that the Crown could reasonably seek to adduce at the preliminary hearing.
    Further, the Crown had provided an undertaking to examine the appellant only in
    relation to the case against the adult accused and not for the purpose of
    discovering either additional evidence against the appellant or his potential
    defences. Justice Code also pointed out that the appellant's evidence from the
    preliminary hearing would be protected from the Crowns subsequent use and derivative
    use under ss. 13 and 7 of the
Canadian Charter of Rights and Freedoms
,
    respectively. Finally, Code J. noted that the Crown already knew the general
    nature of the appellants trial defence, namely the absence of intent and the
    defence of duress.

[11]

The
    appellant appealed and sought a stay of Code J.s decision. Justice Rosenberg
    of this court dismissed the stay application on the basis that the Crown had a
    legitimate public purpose for calling the appellant as a witness, and that
    there would be no irreparable harm to the appellant given the protections
    afforded to him by the
Charter, the Youth Criminal Justice Act
, s. 5
    of the
Canada Evidence Act
, R.S.C. 1985, c. C-5, the undertaking given
    by the Crown and the supervisory powers of the preliminary hearing judge.

[12]

The
    appellant testified at the preliminary hearing of the three adult accused in
    March 2011. All of the adult accused eventually pleaded guilty, variously, to
    second degree murder (Xiao), manslaughter (Peng and Zhao) and aggravated
    assault (Zhong).

C.

Crown and Defence Trial Positions

[13]

The
    Crowns case was that the appellant aided and abetted in the assault on the
    victim and in his forcible confinement at Xiaos residence after the assault,
    and that this materially contributed to the victims death. The Crown also
    argued that, in taking these actions, the appellant had the requisite
mens
    rea
to have aided and abetted in the murder. The appellant was therefore
    guilty of murder as a party to the offence under s. 21(1)(b) of the
Criminal
    Code
.

[14]

The
    appellants trial position was that he did not intend to assist Xiao in beating
    the victim or in confining him and that he was under duress throughout the
    events at issue. The appellant testified that he pretended to beat the victim
    with slight slaps, and that his only purpose in assisting the victim to bed
    at Xiaos house was so [the victim] could rest. Defence counsel submitted
    that the evidence established that the appellant had no intent to assist
    anyone, in particular [Xiao], in the causing of bodily harm to the victim. The
    trial judge put this defence position to the jury.

D.

ISSUES

[15]

The
    appellant raises a number of issues that can be conveniently grouped under the
    following headings: violations of the appellants right to silence; flaws in
    the jury instruction; and the admission of the guilty pleas by the adult
    accused. The appellant asserts that these errors rendered his trial unfair and
    the jurys verdict unreasonable.

E.

Analysis

[16]

The
    jury acquitted the appellant of murder and convicted him of manslaughter. Their
    verdict indicates that while the jury was satisfied that the Crown had proved
    the appellant was a party to an unlawful act (assault and/or unlawful
    confinement) that materially contributed to the victims death, the jury was
    not satisfied that the Crown had proved the appellant had the
mens rea
necessary to make him a party to murder.

(1)

Was the Appellants Right to Silence Violated?

[17]

The
    appellant did not provide a statement to the police. In the pre-trial
    application to stay the prosecution, defence counsel argued that the
    appellant's right to silence was violated when he was compelled to testify at
    the preliminary hearing for three of the adult accused, and that this
    automatically rendered the upcoming trial unfair. The trial judge rejected the
    application, with reasons reported at 2012 ONSC 5657, on the basis that:

In this case, there was no misconduct by the Crown and no
    breach of its undertaking. The Crown received no information that assisted in
    the preparation of the case against P.C. and obtained no advantage as a result
    of his testimony. Further, there has been no unfairness to P.C. as a result of
    his testimony at the preliminary hearing. There has been no injury and no
    wrong, and hence no right to any remedy, much less a stay of proceedings.
    (Para.17)

[18]

On
    appeal, the appellant argued again that his right to silence had been violated.
    This argument is based on two specific complaints in relation to the
    cross-examination of the appellant by the Crown. The first is that the Crown
    breached its undertaking not to use any new information disclosed by the
    appellant in his testimony at the preliminary hearing against him at his own
    trial. The second complaint is that, in relation to the duress defence, the
    Crown improperly su
gg
ested that the
    appellant had

re
c
ently

f
a
bric
a
ted

evidence

about
his
con
c
ern

f
or his famil
y.
I will also address the appellant's
    more general argument that his testimony at the preliminary hearing precluded
    the Crown from challenging his credibility.

(a)

Did the Crown Use the Appellants Preliminary Hearing Testimony
    Improperly?

[19]

The
    appellant testified that after the beating, he accompanied the victim and the
    adult accused to Xiaos home. As noted, the appellant rode in the trunk of the
    car and overheard a conversation between Xiao and the victim. The appellant
    argues that the Crown improperly questioned the appellant about what he heard
    from the trunk, based on the following exchange:

Q. Okay. You
    can hear the conversation in the car?

A. Yes.

Q. Sure you
    can. You heard [the victim] say, I want to go home?

A. Yes.

Q. And you
    heard [Xiao] say, No, because your sisters will see your injuries and the
    police will be called, correct?

A. And it
    seemed that he said if [the victim] was sent back home, he was afraid that his
    family would call police.

[20]

The
    effect of this testimony was to fix the appellant with knowledge that the
    victim was being held against his will, thereby establishing an element of
    forcible confinement.

[21]

The
    appellant submits that the questions in this exchange were improper leading
    questions, either because they drew on the appellants preliminary hearing
    evidence or because they did not flow from his examination-in-chief. Had the
    appellant answered in the negative, the appellant asserts that the Crown could
    not have impeached the appellant using his preliminary inquiry testimony due to
    its undertaking. As a result, there was no good faith basis for the Crowns
    questions.

[22]

The
    appellant takes particular issue with the leading question that the appellant
    could overhear the conversation in the car from his position in the trunk,
    something he denied in his preliminary hearing testimony. The appellant makes
    similar arguments regarding evidence about the timeline of the evening
    including when the appellant became aware of Xiaos plan to attack the victim, how
    the victim was set up for the assault, the degree of the appellants
    participation in the assault, and the evidence that Xiao struck the victim with
    a rock and forced him to roll in the snow.

[23]

There
    is no merit to these arguments. While the appellant was protected against the
    use of his preliminary hearing testimony under s. 13 of the
Charter

and
s. 5 of the
Canada Evidence Act
and against the use of evidence derived from his preliminary hearing testimony
    under s. 7 of the
Charter,
t
he
    impugned cross-examination did not violate any of these prohibitions.

[24]

The
    Crown became aware of the appellants knowledge that the victim would be beaten
    through the appellants sisters witness statement, which she provided before
    the preliminary inquiry. The photographs of his knuckles were taken by the
    investigating officers on the night of his arrest, countering the appellants
    assertion that his blows against the victim were minimal. The appellant
    revealed his ability to overhear the conversation in the car from his position
    in the trunk during his examination-in-chief. Similarly, the other portions of
    the cross-examination attacked by the appellant were variously based on the
    police investigation, the appellants examination-in-chief, the evidence given
    by Peng and Xiao at the appellants trial and other information the Crown
    already possessed. These questions were not based on the appellants
    preliminary hearing evidence.

(b)

The Allegation of Recent Fabrication

[25]

The
    appellants second complaint is that his right to silence was violated by
the Crowns
su
gg
estion in cross-examination that the appellant had somehow
testified in the past and had
re
c
ently

f
a
bric
a
ted
his
evidence

about
his
con
c
ern

f
or
    his famil
y as part of the duress defence.

[26]

This argument is based on the following exchange
:

Q.

The

first time
y
ou
'
ve

mentioned,

sir,

conc
e
rn

about

y
our

f
a
mily

is

when

y
ou
'
ve

testified
th
i
s
m
o
r
n
in
g
;
i
s
n
'
t
t
ha
t

c
o
r
r
e
c
t?

A.
C
on
cer
n
e
d
a
bout my

fa
mil
y?

Q.

The

first

time

y
ou

mentioned

any

conc
e
rn

about

y
our

f
a
mily

being

taken

to

the

L
akesho
r
e
    and be
a
ten by

Xiao Ming

Chen is
    this
m
orning

when
y
ou
'
ve testified.

A.

I

s
a
id
t
h
a
t

I

w
a
s
w
o
r
r
ie
d

t
h
a
t
X
i
a
o
M
ing

Ch
e
n

w
o
u
ld

n
ot

be

d
o
ing

a
n
y
th
i
ng

g
o
o
d

to
m
y
fa
mil
y.

Q.

T
h
e

f
i
r
s
t

t
i
me

y
o
u
've

men
t
io
n
e
d

t
h
a
t,

s
i
r
,

is

th
i
s

m
o
r
n
ing

w
h
e
n

y
ou

t
e
st
i
f
ie
d

to

t
r
y

to
e
xpl
a
in
y
o
u
r
a
c
ti
o
ns

f
o
r
g
oi
n
g

o
u
t
w
ith

him

th
a
t n
i
g
ht.

[27]

The

trial

judge

immediately

excused

the

j
ury
    after this exchange and

cautioned

the

Crown:

Y
o
u
'
r
e

v
e
r
y
c
lo
s
e

t
o

s
uggesti
n
g

th
a
t

[the
    appellant]

di
d

n
o
t

t
e
ll
people

this

befo
r
e.

[From
    the perspective of

a

ju
r
or]

I

don
'
t

know

if

he

did

or

did

not.

I

don
'
t

know.

I

don
'
t

know

if

he
g
a
v
e

a

st
a
t
e
m
e
n
t

t
o

p
ol
ice
,

a
n
d

h
e

t
e
st
i
f
ie
d

b
e
f
o
r
e

u
n
d
e
r

s
u
b
p
o
e
n
a
.

[28]

The
    Crown explained to the trial judge that this questioning referred only to the
    fact that the appellant did not mention the possible threat to his family in his
    earlier examination-in-chief during his trial. The trial judge warned the Crown
    to be careful, but declined to provide a cautionary instruction to the jury on
    the basis that the Crowns questioning approached but did not cross the line of
    propriety.

[29]

Given
    the brevity of the impugned exchange, I would not interfere with the trial
    judges assessment of how best to address it
.

(c)

The General Argument

[30]

Finally,
    the appellant made a more general argument that since the Crown had called the
    appellant as its witness at the preliminary hearing for the adult accused, the
    Crown was precluded from challenging the appellants credibility at his own
    trial by means of cross-examination. Counsel did not refer the court to any
    supporting authority for this argument.

[31]

I
    would reject this argument. Apart from the absence of precedent, there is no
    support in principle for this approach. To the contrary, this argument is quite
    inconsistent with the operation of the
Youth Criminal Justice Act
, ss.
    7 and 13 of the
Charter
and s. 5 of the
Canada Evidence Act
,
which afforded the appellant
    significant protections related to his preliminary hearing testimony, but did
    not render him immune from prosecution or from appropriately limited
    cross-examination when he chose to testify at his trial: see
R. v. S.
    (R.J.)
, [1995] 1 S.C.R. 451.

(2)

Flaws in the Jury Instructions

[32]

The
    trial defence, as explained in the appellants factum, had two stages:

The first stage: Prior to considering the defence of duress in
    any way, P.C. had no intent to assist or aid murder or manslaughter pursuant to
    s. 21(1)(b) party liability. The second stage: Nevertheless,
if
the Jury
    found P.C. guilty as a party before considering any duress facts, was his guilt
    then
excused
by the defence of duress.

[33]

The
    appellant asserts that the trial judge made errors in her jury instruction at
    both stages. Since duress was raised as a defence, the trial judge had to
    explain the required mental element for aiding and abetting and the defence of
    duress, which operates only after the Crown proves the requisite mental element
for aiding and abetting
. Because the
    jury convicted the appellant of the included offence of manslaughter rather
    than second degree murder, this courts concern is with the aiding and abetting
    instruction specifically as it relates to manslaughter. The jury instructions
    specific to murder are not germane in light of the verdict.

(a)

The Aiding and Abetting
Mens Rea

Instruction

[34]

The
    trial judges jury instruction on the mental element for aiding and abetting
    manslaughter used language that faithfully tracked s. 21(1)(b) of the
Criminal
    Code
and the Supreme Court of Canadas decision in
R. v. Hibbert
,
[1995] 2 S.C.R. 973. I see no error in
    that instruction.

(b)

The Duress Instruction

[35]

The
    appellant argues that the trial judge erred in her jury instruction on duress. The
    Crown concedes that there was an air of reality to the duress defence on the
    evidence and that it was appropriate for the judge to instruct the jury on the
    defence. (The Crown also accepts, for the purpose of this appeal, that the
    common law duress defence is available to a charge of being a party to murder,
    although this specific issue is on reserve in another case before the
    court.)

[36]

The
    jury charge in this case predates the decision of the Supreme Court of Canada
    in
R. v.
Ryan
,

2013 SCC 3, [2013] 1 S.C.R. 14. Unsurprisingly, the charge is not
    organized precisely in accordance with the scheme of the duress defence as set
    down in that decision.

[37]

Counsel
    for the appellant, however, points to only one specific error in the duress
    instruction that follows from
Ryan
. He argues that
Ryan

established
    that the threat of future harm is a viable basis for the duress defence, and
    that the trial judge erred by failing to explain this in her charge to the
    jury. But this assertion is not correct. The trial judge specifically referred
    to the risk of future harm when she said: The threat must be of a specific
    kind. It must threaten that P.C.
will be
killed or
    suffer serious bodily harm. [Emphasis added.]

[38]

In
    her review of the evidence, the trial judge referred to all of the evidence related
    to the threats and left the duress defence to the jury. In my view, this
    instruction sufficiently conveyed that threats of future harm fall within the
    scope of a duress defence. As a result, I find no error in the trial judges
    duress instruction.

(3)

Evidence of the Guilty Pleas of the Other Accused

[39]

As
    noted, the adult accused eventually pleaded guilty, variously, to second degree
    murder (Xiao), manslaughter (Peng and Zhao) and aggravated assault (Zhong).
    Xiao and Peng testified at the appellants trial, while Zhao and Zhong did not.
    One issue at trial was how the guilty pleas and convictions of the adult
    accused should be addressed.

[40]

I
    agree with the Crowns submission that the trial judge correctly permitted the
    Crown to adduce evidence of Xiao and Pengs guilty pleas, particularly given
    defence counsels refusal to undertake to refrain from cross-examining on their
    pleas and convictions. The pleas and convictions were relevant to Xiao and
    Pengs credibility as witnesses, and the Crown understandably wanted to elicit
    this information instead of having it disclosed as a possible surprise during
    their cross-examination by defence counsel. Zhao and Zhongs pleas were not
    introduced at the appellants trial since they were not witnesses.

[41]

The
    trial judge provided the following explanation of the process of entering pleas
    and convictions in her jury charge:

At the time a guilty plea is taken, there is an inquiry before
    a judge as to the facts upon which that plea is based, and the judge must be
    satisfied that those facts support a conviction in respect of the charge to
    which the plea is entered.

[42]

This
    explanation was unnecessary
and potentially
    prejudicial. The potential for prejudice lay in the fact that the jury might
    interpret this instruction as providing a judicial endorsement
that
    Xiao and Pengs pleas should be given more weight. As the Crown acknowledged on
    appeal, the details of this excerpted explanation had no relevance to any of
    this jurys tasks. There was no reason for the trial judge to address this
    matter with the jury and she should not have done so.

[43]

The
    trial judge went on to make it clear that Pengs guilty plea to manslaughter
    had no relevance to the appellants guilt. However, she said something quite
    different about Xiaos guilty plea and conviction for second degree murder. The
    trial judge explained that the determination that Xiao had committed murder was
    the logical first step in deciding whether the appellant had aided and abetted
    Xiao in committing an unlawful act. She told the jury they could use that plea
    and conviction to conclude that Xiao had committed murder.

[44]

The
    trial judge erred in law when she told the jury that it could use Xiaos guilty
    plea and conviction as evidence against the appellant. See
R. v. Simpson
,
    [1988] 1 S.C.R. 3;
R. v. MacGregor
(1981), 64 C.C.C. (2d) 353 (Ont.
    C.A.);
R. v. Pentiluk

(1974), 21 C.C.C. (2d) 87 (C.A.), at 92.

[45]

Xiaos
    guilty plea was no more than hearsay evidence that Xiao had committed murder,
    and could not be considered in determining the appellants guilt. In
R. v.
    MacGregor,
Martin J.A. said, at pp. 357-58:

Admittedly, it was error for the trial Judge to fail to
    instruct the jury that in considering the case against the appellant they
    should disregard the pleas of guilty of manslaughter by the co-accused and that
    those pleas were not in any way to be taken into account in considering the
    case against the appellant.

[46]

This
    statement of the law was adopted by the Supreme Court in
R. v. Simpson
.
    However, the court also adopted Martin J.A.s position in
MacGregor
,
    at p. 358, that this type of error is not necessarily fatal unless it causes
    prejudice to the accused.

[47]

This
    misdirection could have been significant had the jury convicted the appellant
    of murder. However, because the jury convicted the appellant of the included
    offence of manslaughter, I am satisfied that the error caused no substantial
    wrong or miscarriage of justice.

[48]

To
    convict of manslaughter, the jury had to be satisfied that the appellant aided
    or abetted in an unlawful assault and/or unlawful confinement that caused
    death. To reach these conclusions the jury did not have to be satisfied that
    Xiao was guilty of murder, but only that he had unlawfully caused the victims
    death. It was central to both the defence and the appellants cases at trial
    that Xiao had assaulted and confined the victim and that this caused the
    victims death. The jury had no need to resort to Xiaos guilty plea to make
    that finding. I observe that Xiao also testified and the jury had ample
    opportunity to take his measure quite apart from his guilty plea. Given the
    manslaughter verdict, it can be safely said that the evidence of Xiaos murder plea
    and conviction did not play a role in the jurys verdict.

[49]

Since
    the jury therefore started from the fact that Xiao had unlawfully caused the
    victims death, the trial judges reference to Xiaos murder plea caused the
    appellant no prejudice. Xiaos liability for murder, as opposed to his accepted
    liability for the unlawful acts that caused death, is irrelevant given the
    manslaughter verdict. Since the jury convicted the appellant of manslaughter,
    it is unnecessary to consider the adequacy of any instructions as to how the
    jury might have moved beyond that accepted premise to the further finding that
    Xiao was guilty of murder.

[50]

Examined
    contextually, the trial judges erroneous instruction concerning the guilty
    pleas did not cause any substantial wrong or miscarriage of justice.

F.

CONCLUSION

[51]

The
    appellants arguments that violations of the appellants right to silence,
    errors in the jury charge, and the admission of evidence of guilty pleas by the
    adult accused rendered his trial unfair and led to an unreasonable verdict are
    unfounded.

G.

Disposition

[52]

I
    would dismiss the appeal.

Released: January 21, 2015 D.D.

P.
    Lauwers J.A.

I
    agree Doherty J.A.

I
    agree C.M. Speyer J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Catton, 2015 ONCA 13

DATE: 20150114

DOCKET: C54265 and C55351

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Catton and Shawn DeForest

Appellants

Timothy E. Breen, for the appellants

Sean Doyle, for the respondent

Heard: November 25, 2014

On appeal from the convictions entered on February 17,
    2011 and the sentences imposed on November 18, 2011 by Justice A Mullins of the
    Superior Court of Justice, sitting with a jury.

Doherty
    J.A.:

I.

Overview

[1]

The appellants were in a vehicle driving southbound on Mill Street in
    Angus, Ontario. They attempted to turn left at a stop light. The light was
    green. As the appellants vehicle crossed into the northbound lanes it struck a
    northbound vehicle driven by Jerry Barnes. Mr. Barnes was proceeding on the
    green light through the intersection. Mr. Barnes vehicle was then struck from
    behind by a northbound motorcycle. The driver of the motorcycle, Greg Reaume
    suffered minor injuries. His passenger, Audra Armstrong was thrown from the
    motorcycle and suffered serious injuries. She died in the hospital seven days
    later.

[2]

At the time of the accident the appellants were boyfriend and
    girlfriend. Ms. Catton was 19 and Mr. DeForest was 20. Ms. Catton owned the
    vehicle involved in the accident. Mr. DeForest did not have a drivers licence.

[3]

It was the Crowns position that Mr. DeForest was driving the vehicle at
    the time of the accident. It was the appellants position that Ms. Catton was
    the driver.  Ms. Catton testified. Mr. DeForest did not testify.

[4]

The trial proceeded on a six count indictment. Five of those charges are
    relevant to his appeal. Mr. DeForest was convicted of dangerous driving causing
    Ms. Armstrongs death (count one) but acquitted of dangerous driving causing
    bodily harm to Mr. Reaume (count two). Both Mr. DeForest and Ms. Catton were
    convicted of obstructing police by falsely identifying Ms. Catton as the driver
    of the vehicle (counts five and six). Ms. Catton was convicted as an accessory
    after the fact to Mr. DeForests dangerous driving (count four). This charge
    also arose out of Ms. Cattons alleged lies to the police identifying herself
    as the driver.

[5]

Mr. DeForest received 15 months on the dangerous driving causing death
    conviction, and 3 months consecutive on the obstruction of police conviction.
    He was given 15 days credit for presentence custody resulting in an effective jail
    sentence of 17 ½ months. The trial judge also imposed a five-year driving
    prohibition, 12 months probation, and required Mr. DeForest to provide a DNA
    sample pursuant to s. 487.051(3) of the
Criminal Code
.

[6]

Ms. Catton received a 90-day conditional sentence to be followed by six
    months probation.  She was given credit for four days pre-trial custody yielding
    an effective conditional sentence of 86 days. Both appellants appeal conviction
    and sentence.

[7]

Mr. Breen, on behalf of the appellants, advanced several grounds of
    appeal. I need consider only his submission that the conviction on count one
    (dangerous driving causing death) and the acquittal on count two (dangerous
    driving causing bodily harm) are irreconcilably inconsistent thereby rendering
    the conviction on count one unreasonable within the meaning of s. 686(1)(a)(i)
    of the
Criminal Code
. For the reasons that follow, I agree with this
    submission. I also agree with Mr. Breens submission that the irreconcilable
    inconsistency between the verdicts on counts one and two undermines the
    legitimacy and reliability of the convictions on the other charges.  In my view,
    all of the convictions must be quashed. I would enter an acquittal on count one
    (dangerous driving causing death), an acquittal on count four (accessory after
    the fact), and order a new trial on the obstruct police charges (counts five
    and six).

II.

The Verdicts on the Dangerous Driving Charges (Counts 1 and 2)

[8]

On count one, the charge of dangerous driving causing the death of Ms.
    Armstrong, the Crown had to prove beyond a reasonable doubt first that Mr. DeForest
    was operating the motor vehicle; second that he was doing so in a manner that
    was dangerous to the public as described in s. 249 of the
Criminal Code
;
    and finally that his operation of the motor vehicle was a contributing cause of
    the accident that admittedly caused Ms. Armstrongs death. The identity of the
    driver and the nature of the driving were both very much at issue at trial.

[9]

The defence maintained that Ms. Catton was driving the vehicle at the
    time of the accident and that the evidence showed only a momentary lapse of
    judgment, not dangerous driving as described in the
Criminal Code
. I
    will not detail the evidence relevant to either the identity of the driver, or
    the nature of the driving. It was reasonably open to the jury, depending on its
    assessment of the evidence, to find for or against the Crown or defence on either
    or both issues.

[10]

The
    trial judge told the jury that it had two possible verdicts on count one. The
    jury could find Mr. DeForest guilty of dangerous driving causing death or not guilty.
     Although a conviction on the included offence of dangerous driving may
    technically have been available on count one, the defence did not argue that even
    if Mr. DeForest was the driver and was driving in a criminally dangerous
    manner, the jury could have a reasonable doubt as to whether his driving was a contributing
    cause in Ms. Armstrongs death.

[11]

On
    count two, the charge of dangerous driving causing bodily harm, the trial judge
    instructed the jury that there were three possible verdicts. The jury could
    convict of dangerous driving causing bodily harm, convict on the included
    offence of dangerous driving, or acquit Mr. DeForest outright.  The included
    offence of dangerous driving was in play on count two because the relatively
    minor nature of Mr. Reaumes injuries may not have been viewed by the jury as
    constituting bodily harm.

[12]

Toward
    the end of her instructions, the trial judge provided the jury with a verdict
    sheet outlining the possible verdicts on each of the six counts.  She told the
    jury that after it had reached its verdicts, the foreperson should place a
    check mark in the box opposite the appropriate verdict on each count.  She went
    on to instruct the jury that after it arrived at the verdicts, the jury would
    return to the courtroom and the foreperson would give the verdict sheet to the
    registrar who would then give it to the trial judge for examination.  The trial
    judge told the jury that she would return the verdict sheet to the foreperson
    and the foreperson would announce the verdicts in open court.  The trial judge
    also explained to the jurors that they would be asked if they agreed with the
    verdicts as read by the foreperson.

[13]

The
    jury began deliberating in the late afternoon.  Late the next afternoon the
    jury returned to the courtroom with its verdicts.  The following exchange
    occurred:

REGISTRAR:        Please indicate the verdict on each accused
    and on each count as I call it. On count  please stand. On count one dangerous
    driving causing death, how do you find Shawn DeForest, guilty or not guilty?

FOREPERSON:     Guilty.

REGISTRAR:        On count two dangerous driving causing bodily
    harm, how do find Shawn DeForest, guilty or not guilty?

FOREPERSON:     Not guilty.

[14]

The
    registrar took the verdicts on the four remaining counts, after which the
    registrar said:

Members of the jury, harken to your verdict as the court has
    recorded it, you say the accused at the bar, Shawn DeForest is guilty on count
    one, not guilty on count two,  so say you all.

JURY:         Yes.

[15]

There
    is no indication in the trial transcript that the foreperson gave the verdict
    sheet to the registrar or that the trial judge examined the verdict sheet
    before taking the verdicts from the foreperson.  The endorsement on the
    indictment tracks the verdicts announced by the foreperson indicating a finding
    of guilty on count one and not guilty on count two.

[16]

In
    the sentencing proceedings that followed over several months, counsel and the
    trial judge proceeded on the basis that the jury had convicted on count one and
    acquitted outright on count two.  No one adverted to any apparent inconsistency
    between the verdicts on counts 1 and 2.

[17]

The
    trial exhibit list in the original papers sent from the trial court to this
    court, indicates that a verdict sheet was marked as exhibit B.  There is no
    reference in the trial transcript to a verdict sheet being marked as an
    exhibit.  The verdict sheet contained in the trial file corresponds with the
    verdicts returned in open court by this jury except for the verdict on count
    two. The verdict sheet indicates that the jury convicted on the included
    offence finding Mr. DeForest not guilty of dangerous driving causing bodily
    harm, but guilty of dangerous driving. The verdict sheet is not signed or
    dated.  The trial judge did not tell the foreperson to sign or date the verdict
    sheet in her instructions.

[18]

The
    verdicts on counts one and two as recorded in the verdict sheet remove any inconsistency
    between the verdicts on those counts.  The conviction on the included offence
    of dangerous driving in count two is explained by a reasonable doubt as to
    whether Mr. Reaumes injuries amounted to bodily harm.

[19]

It
    is certainly possible that the jury intended to return the verdict on count two
    indicated on the verdict sheet. Indeed one could reasonably go so far as to say
    that the jury probably intended to return the verdicts as recorded on the
    verdict sheet.  That is not however what happened.  The verdict as returned in
    open court was an unqualified finding of not guilty on count two.

[20]

A
    trial court has a limited power to inquire into and correct a verdict when
    there is reason to doubt that the verdict returned by the jury is the verdict
    intended by the jury: see
R. v. Burke
, [2002] 2 S.C.R. at para. 23.
    Crown counsel on appeal accepts, correctly in my view, that the narrow
    authority described in
Burke
is of no assistance on this appeal. No
    inquiry into the verdicts was conducted at trial. Nor could any inquiry be
    conducted in this court several years after the verdicts were returned and the
    jury discharged.  The verdicts must be taken as announced by the jury in open
    court  guilty of dangerous driving causing death on count one and not guilty
    on count two.

[21]

Inconsistent
    verdicts are a subspecies of unreasonable verdicts:
R. v. Pittiman
, [2006]
    1 S.C.R. 381 at para. 6. If a trier of fact returns a conviction on one count
    (or against one accused), and an acquittal on another count (or against a
    co-accused), the inconsistency in the verdicts will only render the conviction
    unreasonable if the appellant can demonstrate that on any realistic view of the
    evidence, the verdicts cannot be reconciled on any rational or logical basis:
R.
    v. McShannock
(1980), 55 C.C.C. (2d) 53 (Ont. C.A.) at 56;
Pittiman
,
    at paras. 7-8.

[22]

As
    explained in
Pittiman
at paras. 7-8, because juries give no reasons
    for their verdicts, it can be difficult to attack jury verdicts as
    inconsistent. Verdicts that may at first impression appear inconsistent can
    often be explained by distinctions in the essential elements of the different
    offences or in the quality of the evidence relevant to the different offences.

[23]

I
    find no basis upon which the conviction on count one and the acquittal on count
    two can be reconciled. To convict on count one, the jury had to be satisfied
    beyond a reasonable doubt that Mr. DeForest was the driver and that his driving
    was dangerous within the meaning of the
Criminal Code
. The same two
    issues had to be determined in favour of the Crown before the jury could convict
    for either dangerous driving causing bodily harm or dangerous driving on count
    two. The evidence on which those two issues had to be determined was exactly
    the same on the two counts. The jurys conviction on count one indicates that
    the jury was satisfied beyond a reasonable doubt that Mr. DeForest was the
    driver and that his driving met the test for dangerous driving.  The jurys
    acquittal on count two indicates that the jury had a reasonable doubt on either
    or both of the same two issues that it had decided against Mr. DeForest in
    convicting him on count one.

[24]

Nothing
    in the different causation elements of the offences charged in count one and
    count two, or in the evidence relevant to the counts, affords any explanation
    for the different verdicts.  The appellant has demonstrated that no jury could
    reasonably convict on count one and acquit outright on count two.  The
    conviction on count one must be quashed.

III.

The Appropriate Order on Count One

[25]

When
    an appeal court determines that a conviction is unreasonable because it is
    inconsistent with an acquittal returned by the same trier of fact, the appeal
    court may order a new trial or enter an acquittal:
Criminal Code
, s.
    686(2).
Pittiman
at para. 14 instructs that in most cases the appeal
    court will order a new trial.  In some circumstances, however, an acquittal is
    the appropriate order: see
R. v. J.F.
, [2008] 3 S.C.R. 215 at paras.
    38-42. Like the court in
J.F.
, I think an acquittal is the appropriate
    order in this circumstance. The appellant stands acquitted on count two. That
    acquittal was not appealed.  Nor do I suggest that the Crown had any grounds
    upon which to appeal that acquittal.  If this court ordered a new trial on
    count one, it would invite a repetition of the very inconsistency that led to
    the quashing of the conviction on count one on this appeal.

[26]

The
    recent jurisprudence in the Supreme Court of Canada explaining the application
    of
issue estoppel
in criminal proceedings demonstrates that an
    acquittal is the appropriate order in this case: see
R. v. Mahalingan
,
    2008 SCC 63, [2008] 3 S.C.R. 316;
R. v. Punko
, 2012 SCC 39,
[2012] 2 S.C.R. 396. Those
    cases hold that if a factual issue is decided in favour of an accused at a
    previous trial, the Crown is precluded from leading evidence at a subsequent trial
    to prove the contrary. The Chief Justice in
Mahalingan
at para. 23 put
    it this way:

It is thus not every factual issue in the trial resulting in an
    acquittal which results in an estoppel at a subsequent trial, but only those
    issues which were expressly resolved or, given how the case was argued, had to
    be resolved for there to be an acquittal. If a particular issue was decided in
    favour of the accused at a previous trial, even if the issue was decided on the
    basis of reasonable doubt,
issue estoppel
applies.

[27]

As
    outlined above, the jury could have acquitted Mr. DeForest outright on count
    two if it had a doubt as to his identity as the driver, the nature of the
    driving, or both. Any of those three explanations would, if this court were to
    order a new trial on count one, give rise to a successful
estoppel
claim on behalf of Mr. DeForest at a new trial on the allegation of dangerous
    driving causing death (count one). An order directing a new trial on that count
    would be pointless. I would enter an acquittal on count one.

IV.

Can Mr. DeForests conviction for obstruct police (count six) stand?

[28]

In
    returning a conviction on the obstruct police charge (count six) the jury must
    have been satisfied beyond a reasonable doubt that Mr. DeForest was the driver
    of the car and that he lied to the police with the requisite intent when he
    identified Ms. Catton as the driver.  Those findings are not necessarily
    inconsistent with the acquittal on count two (dangerous driving causing bodily
    harm).  That acquittal may have been based on a reasonable doubt as to the
    nature of the driving. Mr. DeForests conviction for obstruct police cannot be
    quashed on the basis that it is inconsistent with his acquittal on count two
    and therefore unreasonable.

[29]

However,
    the irreconcilable inconsistency between the conviction on count one and the
    acquittal on count two, raises serious doubts about all of the convictions.
    The inconsistent verdicts on counts one and two suggest either a serious
    misunderstanding of the trial judges instructions, or a misguided compromise
    among the jurors as to the appropriate verdicts:
McShannock
, at p. 56.
    In either case the inconsistent verdicts undermine the reliability of all the convictions.

[30]

In
    so holding I disregard because I think I must as a matter of law, the distinct possibility
    that the real problem lies in the jurys miscommunication of its intended verdict
    on count two.  This court cannot go behind the verdict announced by the jury. To
    consider the possibility that the jury intended to deliver a different verdict
    on count two when assessing whether the verdict on the obstruct police charge
    can stand would be contrary to the principles respecting jury verdicts set down
    in
Burke
.  I would quash Mr. DeForests conviction on the charge of
    obstructing police (count six).

[31]

However,
    unlike count one, a new trial on the obstruct police charge would not run
    aground on the doctrine of
issue estoppel
. It cannot be said that acquittals
    of Mr. DeForest on the dangerous driving charges decided a factual issue in his
    favour that would be essential to the Crowns proof of the charge of obstruct
    police.  A reasonable jury could, for the reasons set out above (para. 28),
    convict Mr. DeForest on the obstruct police charge even in the face of his
    acquittals on the charges of dangerous driving causing death and dangerous
    driving causing bodily harm.  A new trial on that charge is the appropriate
    order.

V.

Can Ms. Cattons convictions stand?

[32]

Ms.
    Catton was convicted of obstruct police (count five) and being an accessory
    after the fact to Mr. DeForests dangerous driving (count four).  Both charges
    were predicated on the allegation that Ms. Catton falsely identified herself to
    the police as the driver of the vehicle at the time of the accident.

[33]

There
    is no reason to distinguish between Ms. Cattons conviction on the obstruct
    police charge and Mr. DeForests conviction on the identical allegation. Just
    as with Mr. DeForest, I would quash Ms. Cattons conviction on the obstruct
    police charge and order a new trial.

[34]

Ms.
    Cattons conviction on the charge of being an accessory after the fact to Mr. DeForests
    dangerous driving must also be quashed.  The trial judge instructed the jury
    that it could convict Ms. Catton as an accessory after the fact only if
    satisfied beyond a reasonable doubt that Mr. DeForest had committed the crime
    of dangerous driving. The jurys conviction of Ms. Catton as an accessory after
    the fact is therefore inconsistent with its acquittal of Mr. DeForest on the
    dangerous driving causing bodily harm charge in count two.  That inconsistency
    is not cured by Mr. DeForests conviction on count one, the charge of dangerous
    driving causing death.  The fact that Ms. Cattons conviction as an accessory after
    the fact is consistent with the conviction on count one does not make it any
    less inconsistent with the acquittal on count two.

[35]

The
    question of whether this court should enter an acquittal on the accessory after
    the fact charge or direct a new trial raises a surprisingly complicated
    problem.  Ms. Catton was not charged in counts one and two.  Mr. DeForests
    acquittal on those two counts cannot be said to have resolved any issue in
    favour of Ms. Catton.  Were the court to order a new trial on the accessory
    after the fact charge, Ms. Catton could not raise
issue estoppel
relying on Mr. DeForests acquittals on the dangerous driving charges at the
    first trial:
Mahalingan
, at paras. 49, 56-58.

[36]

Nor
    does Mr. DeForests acquittals on the dangerous driving charges necessarily bar
    Ms. Cattons subsequent prosecution and conviction as an accessory after the fact
    to Mr. DeForests dangerous driving:
Criminal Code
23.1;
R. v. S.
    (F.J.)
,
1997 NSCA 87,
    aff., [1998] 1 S.C.R. 88.

[37]

Even
    though Ms. Cattons retrial on the accessory after the fact charge would not
    run afoul of
issue estoppel
principles and her conviction would not
    necessarily be inconsistent with Mr. DeForests acquittals on the dangerous
    driving charges, a retrial does not seem appropriate. Were there a retrial, Ms.
    Cattons jury would be asked to find beyond a reasonable doubt that Mr.
    DeForest was guilty of dangerous driving based on the same evidence that
    resulted in his acquittals at the initial trial.  That result seems
    unsatisfactory even if legally defensible.

[38]

When
    an appeal court decides to quash a conviction it has discretion to order a new
    trial or direct an acquittal under s. 686(2):
R. v. Levy
(1991), 62
    C.C.C. (3d) 97 (Ont. C.A.) at 104.  I would exercise that discretion in favour
    of entering an acquittal on the accessory charge for two reasons.  First, an
    acquittal would avoid the risk of the anomalous result described above.
    Second, the essence of the accessory after the fact charge, like the obstruct
    police charge, is that Ms. Catton lied to the police to mislead them in their
    investigation.  Ms. Catton, if guilty of that misconduct, can be called to
    account by her prosecution and conviction on the obstruct police charge.  As I
    would order a new trial on the obstruct police charge, a retrial on the accessory
    after the fact charge would, to a large extent, be redundant.

VI   Conclusion

[39]

I
    would allow the appeals.  I would quash all of the convictions.  I would acquit
    Mr. DeForest on count one (dangerous driving causing death) and I would acquit
    Ms. Catton on count four (being an accessory after the fact to dangerous
    driving).  I would order a new trial for Mr. DeForest and Ms. Catton on the
    obstruct police charges (counts five and six).

Released: DD  JAN 14 2015

Doherty J.A.

I agree K. Feldman J.A.

I agree Gloria
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Davy, 2015 ONCA 26

DATE: 20150120

DOCKET: C56230

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cheimene Davy

Appellant

Michael Dineen, for the appellant

Andrew Wiese, for the respondent

Heard: January 15, 2015

On appeal from the conviction entered on April 5, 2012
    and the sentence imposed on April 10, 2012 by Justice Deena F. Baltman of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant raises two grounds of appeal.  The first is that the trial
    judge erred by rejecting the defence request, in addition to a
Parkes
challenge, for a challenge for cause based on the fact that the defence was
    asserting that the appellant was a prostitute.  The defence position was that the
    appellant imported cocaine from Guyana under duress from two pimps.

[2]

The trial judge gave very brief reasons for rejecting the challenge,
    stating:

With respect to the first application, namely for the defence
    to include a question in the challenge for cause relating to the defendants
    work in the sex trade, that application is declined.  While I accept that there
    may be an element of society that is potentially biased against sex trade
    workers, I am not persuaded that such individuals are incapable of setting
    aside their bias on instructions from the trial judge. [see
R. v. Barnes
,
    Ont. C.A., September 1999]

[3]

The decision to allow or decline a challenge for cause question is a discretionary
    one.  On the record before her, in this case, we see no error in principle by
    the trial judge, and no basis to overturn that decision.

[4]

Second, the appellant submits that the Crowns cross-examination of the
    appellant on her notebook went too far and resulted in an unfair trial.

[5]

We disagree.

[6]

The notebook was admitted into evidence on consent of the defence and
    indeed was used as part of the defence examination-in-chief of the appellant.
    Apart from one objection on the Crowns cross-examination to which the trial
    judge gave effect, the defence did not object to the remainder of the
    cross-examination or to the charge to the jury.

[7]

To guard against a possible misuse of the evidence, the trial judge
    provided numerous cautions to the jury on the use of the notebook evidence.

[8]

We would not give effect to this ground of appeal.

[9]

Accordingly, the appeal is dismissed.

K. Feldman J.A.

J. Simmons J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davy, 2015 ONCA 38

DATE: 20150122

DOCKET: C57104

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cheimene Davy

Appellant

Michael Dineen, for the appellant

B. Crackower, for the respondent

Heard: January 8, 2015

On appeal from the conviction entered and sentence
    imposed by Justice Steven R. Clark of the Ontario Court of Justice, dated
    January 10, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The sentence appeal is dismissed as abandoned.  We would dismiss the
    conviction appeal.

[2]

The trial judge characterized the alibi evidence as vague.  That
    characterization was a reasonable one.  He also placed significant weight on the
    late disclosure of the alibi (almost two years after the relevant event).  He
    was entitled to do so.

[3]

The trial judge reviewed the evidence of the eyewitnesses in some
    detail.  He outlined the position of the defence and the various dangers
    inherent in the evidence.  While contrary to the trial judge, we would describe
    the opportunity to observe as fleeting, we would not interfere with the trial
    judges assessment of the evidence.

[4]

This was a recognition case and not an identification case.  Two witnesses,
    acting independently of each other, made the recognition.  The trial judges
    reasons fully explain why the trial judge chose to accept and act on the
    evidence of the witnesses.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gibbons, 2015 ONCA 47

DATE: 20150126

DOCKET: C56895

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Linda Gibbons

Appellant

Nicolas M. Rouleau and Daniel C. Santoro, for the
    appellant

Susan Magotiaux, for the respondent

Heard: January 16, 2015

On appeal from the judgment of Summary Conviction Appeal
    Judge Gary T. Trotter of the Superior Court of Justice dated March 15, 2013,
    with reasons reported at 2013 ONSC 1403, dismissing the appeal from the
    conviction entered on April 12, 2011 by Justice Mara B. Greene of the Ontario
    Court of Justice, with reasons reported at 2010 ONCJ 470 and 2011 ONCJ 218.

By
    the Court:

[1]

The appellant seeks leave to appeal a summary conviction
    appeal court judges order dismissing an appeal from a conviction under s. 127
    of the
Criminal Code
,
R.S.C. 1985, c. C-46.
    Section 127 makes it an offence to disobey a lawful order, other than an order
    for the payment of money, without lawful excuse, unless a punishment or other
    mode of proceeding is expressly provided by law.
[1]

[2]

On January 20, 2009, the appellant breached an
    interlocutory injunction, issued in 1994 by a judge of the Ontario Court
    (General Division), which prohibits anti-abortion protests within 60 feet of certain
    abortion clinics.

[3]

At trial, the appellant did not contest the
    Crowns assertion that she acted in a manner that violated the terms of the
    injunction. Rather, the appellant argued before both the trial judge and the
    summary conviction appeal court judge, as she does on this appeal, that, by
    virtue of its delay and other conduct in the civil proceeding, the Crowns
    prosecution of her is an abuse of process. In addition, the appellant argued,
    and argues, that s. 127 of the
Criminal Code
is unconstitutional. In comprehensive reasons, both the trial judge and the
    summary conviction appeal court judge rejected these submissions.

[4]

For the reasons that follow, leave to appeal is
    granted but the appeal is dismissed and the appellants application to
    introduce fresh evidence on appeal is denied.

(1)

Abuse of Process

[5]

In our view, the summary conviction appeal court
    judge was correct to dismiss the appellants abuse of process argument.

[6]

The trial judges findings concerning this issue
    included the following:

·

she was unable to conclude that the Crown was
    intentionally delaying the injunction proceeding, because it appeared that all
    parties, at least as was known to the Crown at the time, have been content with
    the pace of litigation;

·

she was unable to conclude that the Crown was
    prosecuting the appellant knowing that the delay on the part of the Crown Law
    Office  Civil was malicious, as [f]rom the evidence presented at the hearing,
    the delay seem[ed] to be by agreement of all parties;

·

she was not satisfied that the delay in the
    injunction proceeding standing alone would be a basis for setting aside the
    interlocutory injunction; and

·

based on the confusion concerning whether the appellants
    counsel in the injunction proceeding continued to represent her, the trial
    judge was not satisfied that the Crown was negligent in failing to involve her
    in that proceeding.

[7]

The test for granting a stay based on abuse of
    process on the residual ground on which the appellant relies creates a high
    threshold: an abuse of process occurs where a prosecution is conducted in such
    a manner as to connote unfairness or vexatiousness of such a degree that it
    contravenes fundamental notions of justice and thus undermines the integrity of
    the judicial process:
R. v. OConnor
, [1995]
    4 S.C.R. 411,

at para. 73; see also
R. v. Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 49-50.

[8]

In the face of the trial judges findings, as
    set out above, there was no basis for a finding that the prosecution of the
    appellant for breach of the interlocutory injunction constituted an abuse of
    process. The fact of the delay and the trial judges additional statements that
    she was troubled by the delay and somewhat troubled by the Crowns laissez
    fair[e] attitude do not change that.

[9]

In any event, we also agree with the summary
    appeal court judge and the trial judge that the abuse of process argument is an
    impermissible collateral attack on the underlying order for an interlocutory
    injunction for the reasons they explained. The appellants proposed fresh
    evidence, which indicates that the Crown has not moved the civil proceeding
    forward following her conviction, does not alter this conclusion. We decline to
    admit the fresh evidence.

(2)

Constitutionality of s. 127

[10]

There are two aspects of the appellants
    constitutional argument. First, the appellant raises a division of powers
    argument. On this issue, we agree with the reasons of the summary conviction appeal
    court judge and the trial judge.

[11]

In this court, the appellant focused on an
    argument that s. 127 is
ultra vires
Parliament
    because the section impermissibly delegates part of the federal criminal law power
    to provincial legislatures through the exception contained in s. 127. The
    appellant also argued that s. 127 lacks a valid criminal law purpose.

[12]

We reject the appellants division of powers argument.
    The Supreme Court of Canada has made it clear that Parliament may delegate legislative
    authority to bodies other than provincial legislatures, it may incorporate
    provincial legislation by reference and it may limit the reach of its
    legislation by a condition, namely the existence of provincial legislation:
R.
    v. Furtney
, [1991] 3 S.C.R. 89, at pp. 104-105. In our
    view, s. 127 is an example of the latter. See also
R. v. Hydro-Quebec
, [1997] 3 S.C.R. 213, at para. 153, where the court observed, with
    respect to federal legislation, that Parliament has made it clear that the
    provisions of this Part are not to apply where a matter is otherwise regulated
    under other equivalent federal or provincial legislation.

[13]

Further, as the summary conviction appeal judge pointed
    out at para. 21 of his reasons, McLachlin J. addressed this issue in
United
    Nurses of Alberta v. Alberta (Attorney General)
, [1992] 1
    S.C.R. 901, at p. 938. She said:

The distinction between creating the criminal
    law and engaging it is illustrated by consideration of s. 127 of the [
Criminal
]
Code
, which makes it an offence
    to disobey a lawful order made by a court of justice or by a person or body of
    persons authorized by any Act to make or give the order. Act is defined (in
    s. 2 of the
Code
) to include an Act of the
    legislature of a province. This means it is
always
a criminal offence to breach an order of a provincial tribunal,
    even if that tribunal is not authorized by provincial law to file the order as
    an order of the court. It is clear that the province is not enacting criminal
    law every time it empowers a tribunal to make orders which may not be filed
    with the court, even though it is a criminal offence to breach such an order;
    rather, the province has enacted non-criminal law, which is within its sphere
    of competence, and Parliament, acting within its sphere, has decided to make it
    a criminal offence to breach this provincial law. Similarly, the province is
    not enacting a new criminal law each time it provides that orders of a
    particular tribunal are to be enforced as a court order. Such a provision is
    non-criminal law; it is the common law which provides that breach of such an
    order may, in certain circumstances, be a criminal offence. [Emphasis in
    original.]

[14]

Although the constitutionality of s. 127 was not at issue in
United
    Nurses
, it is clear that this analysis would only apply to a
    constitutionally valid exercise of the federal power over criminal law.

[15]

We also reject the appellants submission that s. 127 is unconstitutional
    because it does not reflect a valid criminal law purpose, for the reasons given
    by the trial judge and the summary conviction appeal judge.

[16]

Based on the foregoing reasons, we would not
    give effect to the appellants division of powers argument.

[17]

The second aspect of the appellants
    constitutional argument is that s. 127 contravenes s. 7 of the
Canadian
    Charter of Rights and Freedoms
because it is arbitrary,
    overbroad and grossly disproportionate. We see no merit in these arguments. We
    agree with the Crown that, because the purpose of s. 127 is directed at maintaining
    public order and preserving respect for the administration of justice  and
    because the section is a specific-intent offence that provides for a
defence
of lawful excuse, is hybrid in nature and has internal limitations
     the effect of s. 127 cannot be arbitrary, overbroad or grossly
    disproportionate and does not breach s. 7 of the
Charter
. We decline to
    give effect to this ground of appeal.

(3)

Disposition

[18]

Leave to appeal is granted, but the
    appeal and the application to introduce fresh evidence on appeal are dismissed.

K. Feldman J.A.

Janet Simmons J.A.

S.E.
    Pepall J.A.

[1]

The full text of s. 127(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, is as follows:

127. (1) Every one who, without
    lawful excuse, disobeys a lawful order made by a court of justice or by a
    person or body of persons authorized by any Act to make or give the order,
    other than an order for the payment of money, is, unless a punishment or other
    mode of proceeding is expressly provided by law, guilty of

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

(
b
)
    an offence punishable on summary conviction.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Harrison, 2015 ONCA 34

DATE: 20150121

DOCKET: C57649

Laskin, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Harrison

Appellant

Kristin Bailey, for the appellant

Hannah Freeman, for the respondent

Heard: January 16, 2015

On appeal from the sentence imposed on July 11, 2013 by
    Justice
Eleanor M.
Schnall of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

The sentencing judge did not have the benefit of the Supreme Court of
    Canadas decision in
Summers
. There is no suggestion the appellant
    would not have received parole. Having regard to paragraph 71 of the Supreme
    Court of Canadas decision, the appellant is entitled to 1:5 to 1 credit for
    all of his pre-sentence custody.

[2]

The appeal is allowed and the appellant is entitled to a further 5
    months credit for pre-sentence custody.