COURT OF APPEAL FOR ONTARIO

CITATION: Net Connect Installation Inc. v. Mobile Zone Inc.,
    2017 ONCA 766

DATE: 20171003

DOCKET: C63190

Hourigan, Roberts and Nordheimer JJ.A.

BETWEEN

Net Connect Installation Inc.

Plaintiff (Respondent)

and

Mobile Zone Inc. and Mohammad Shahzad

and Swati Damle

Defendants (Appellants)

AND BETWEEN

Mobile Zone Inc.,
    Mohammad Shahzad and Swati Damle

Plaintiffs by Counterclaim

(Appellants)

and

Net Connect Installation
    Inc., ICT North Inc., Wayne LaPlante

and Charleen Wunderlich

Defendants to the Counterclaim

(Respondents)

Ralph Swaine, for the appellant

Christopher Salazar, for the respondent

Heard and released orally: September 29, 2017

On appeal from the judgment of Justice Guy P. DiTomaso of
    the Superior Court of Justice, dated November 30, 2016.

REASONS FOR DECISION

[1]

This is an appeal of an order granting summary judgment to the
    respondents for damages and other related relief. The appellants also seek leave
    to appeal the full indemnity costs award made against them in the amount of
    $144,991.

[2]

This case involves an oral agreement between the parties regarding the
    sale and installation of Shaw Cable packages in Ontario. The motion judge found
    that the appellants were in breach of the agreement and had misappropriated
    funds owing to the respondents under the agreement. He further found that the
    appellants owed monies to the respondents pursuant to loans made by the
    respondents.

[3]

On appeal, the appellants submit that the motion judge erred in:

(I)

finding that the agreement was not a joint venture;

(II)

finding that the appellants breached the agreement;

(III)

finding that the agreement was not varied by further agreements made in
    March and November 2013;

(IV)

finding that one of the appellants, Swati Damle, impermissibly
    dissipated her assets; and

(V)

awarding judgment to a non-party.

[4]

The agreement between the parties is not a standard form contract.
    Accordingly, absent an extricable legal error, the motion judges findings are
    entitled to deference from this court. The palpable and overriding error
    standard of review applies:
Heritage Capital Corp. v. Equitable Trust Co.
,
    2016 SCC 19, [2016] 1 S.C.R. 306, at paras. 21-24.

[5]

The motion judge conducted a very thorough review of the evidence
    regarding the contractual arrangements entered into by the parties. With
    respect to issues (i), (ii) and (iii), we see no legal error or palpable and
    overriding error in the motion judges analysis. Specifically, in reaching the
    conclusion that the parties were not engaged in a joint venture, the motion
    judge found that there was no common undertaking, no mutual control, and no
    expectation to share in profits. These findings were available on the record.
    The appellants argument that there had been a breach of the agreement is
    premised on the incorrect notion that the parties were engaged in a joint
    venture. Further, the motion judges finding that there had not been variations
    to the agreement in March and November 2013 was also available to him on the
    record and the appellants have not identified any error he made in making that
    finding.

[6]

With respect to the finding that Ms. Damle impermissibly dissipated her
    assets, the evidence establishes that she sold and encumbered properties during
    the course of these proceedings. In any event, in determining the issues among
    the parties the motion judge did not rely upon that finding other than as one
    ground among many in support of his costs award. For the reasons discussed
    below, we decline to grant leave to appeal costs.

[7]

We are of the view that the motion judge erred in making his damage
    award in favour of all of the respondents, as only the corporate litigants were
    parties to the agreement. Accordingly we order the judgment be varied to remove
    the handwritten amendment in paragraph 3.

[8]

While we would not interfere with the costs award made by the motion
    judge, we would express a cautionary note on this issue. In this case, the
    motion judge awarded costs on a full indemnity basis. There is a significant
    and important distinction between full indemnity costs and substantial
    indemnity costs. An award of costs on an elevated scale is justified in only
    very narrow circumstances  where an offer to settle is engaged or where the
    losing party has engaged in behaviour worthy of sanction:
Davies v.
    Clarington (Municipality)
(2009), 100 O.R. (3d) 66 (C.A.) at para. 28.
    Substantial indemnity costs is the elevated scale of costs normally resorted to
    when the court wishes to express its disapproval of the conduct of a party to
    the litigation. It follows that conduct worthy of sanction would have to be
    especially egregious to justify the highest scale of full indemnity costs.

[9]

In this case, full indemnity costs were warranted given the factual
    findings that the motion judge made regarding the conduct of the appellants,
    especially the movement of funds out of the country in an effort to place them
    out of reach of the respondents and the instances of fabricated evidence. We
    would reiterate, however, that it is only in rare and exceptional cases where
    such a costs award is justified.

[10]

Leave to appeal the costs award is dismissed.

[11]

The appeal is dismissed, other than the amendment to the judgment below.

[12]

Counsel for the respondent sought an order that the funds paid into
    court by order of Justice Cronk on June 23, 2017 be paid out of court to his
    law firm in trust. The appellants counsel does not oppose that order, provided
    that the Mareva injunction currently extant against his clients referenced in
    para. 11 of the judgment appealed from is lifted. The respondents do not oppose
    the lifting of the Mareva injunction. Accordingly, an order will go paying out
    of court the funds ordered into court by Justice Cronk on June 23, 2017 to be
    paid to the respondents law firm in trust. An order will also go lifting the
    Mareva injunction against the appellants, once the payment out of court has
    been made.

[13]

The appellants shall pay costs of the appeal to the respondents in the
    amount of $20,000, inclusive of fees, disbursements and taxes.

C.W. Hourigan J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. Reyes, 2017 ONCA 786

DATE: 20171012

DOCKET: C63925

Sharpe, Blair and Epstein JJ.A.

BETWEEN

The Attorney General of Ontario

Respondent/ Plaintiff

and

Althea Reyes

Appellant/ Defendant

Althea Reyes, acting in person

Domenico Polla, for the respondent

Heard and released orally: October 6, 2017

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated May 31, 2017.

REASONS FOR DECISION

[1]

The appellant asked for an adjournment of this appeal as she claims she
    did not receive the responding materials of the Attorney General.

[2]

We deny that request. The appellant has a history of making claims of
    this nature. The Attorney Generals materials were served in a timely fashion
    in accordance with the Order of Master Short and in addition, by mail at the
    address provided by the appellant on her notice of appeal.

[3]

We see no merit in this appeal. There is a lengthy history of vexatious
    proceedings, thoroughly set out in the reasons of the application judge, which
    fully justify a vexatious litigant order.

[4]

In the circumstances of this case, it was not a denial of actual justice
    or fairness for the Attorney General not to secure the appellants approval of
    the draft order.

[5]

The scope of the order is entirely in keeping with the s. 140 of the
Courts
    of Justice Ac
t and entirely justified by the appellants conduct. There is
    no merit in the appellants submission that the order infringes her
    constitutional rights and no merit to the suggestion that we should amend or
    alter the order in any way.

[6]

The motion judge did not err in awarding costs.

[7]

The appeal is dismissed.

[8]

We dispense with the need for the Attorney General to obtain the
    appellants approval as to the form in content of the order.

Robert J. Sharpe
    J.A.

R.A. Blair J.A.

Gloria Epstein
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Patel v. Borges, 2017 ONCA 761

DATE: 20171002

DOCKET: C61389

Hourigan, Brown and Roberts JJ.A

BETWEEN

Jayendra Patel

Plaintiff

(Appellant)

and

Anna Borges

Defendant

(Respondent)

Lana Menon and Darrell Paul, for the appellant

Rolf Piehler, for the respondent

Heard and released orally: September 28, 2017

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated October 28, 2015.

REASONS FOR DECISION

[1]

The appellant brought an action to enforce a mortgage registered against
    a residential property solely owned by the respondent.

[2]

The respondents spouse, who had been borrowing large sums of money from
    the appellant, signed a promissory note agreeing to register a mortgage against
    the property in the appellants favour as security for the loans. However, the
    respondent testified that she understood that the mortgage was to replace an
    existing second mortgage and not as a third mortgage to secure her husbands
    debts. She submitted that the mortgage was unenforceable as she received no
    consideration.

[3]

The trial judge dismissed the appellants action, finding that the
    respondent received no consideration for the mortgage and that the purpose of
    the mortgage was to pay off the existing second mortgage and not to secure the
    loans made to the respondents spouse.

[4]

The appellant submits that the trial judge erred in finding that the
    respondent received no consideration for the mortgage and that the purpose of
    the mortgage was to pay off the existing second mortgage.

[5]

We do not accept this submission. The trial judge conducted a thorough
    review of the evidence and his findings were open to him on the record. For
    example, the mortgage commitment stated that the security sought was a second
    mortgage. Further, the respondent signed an acknowledgment and a solemn
    declaration, both of which indicated that the mortgage was a second mortgage.

[6]

We also reject the appellants argument that the trial judge erred in
    accepting the respondents evidence that she believed that the purpose of the
    mortgage was to replace an existing second mortgage because the new mortgage
    was only in the amount of $165,000 and the existing second mortgage had a
    balance of $203,000. The trial judge specifically considered this issue in his
    reasons at para. 62. He accepted the respondents evidence that she believed
    that the amount advanced would be sufficient to discharge the existing second
    mortgage once certain unreasonable charges in the discharge statement were
    resolved and removed. This was a finding that was open to the trial judge.

[7]

The appellant also submits that the trial judge erred in finding that
    the respondent was not served with the notice of sale. We are not satisfied
    that the trial judge erred in so finding. In any event, nothing turns on the
    issue as the mortgage is invalid and any enforcement actions taken pursuant to
    it are of no force. Even if she received the notice of sale, the statement of claim
    was issued approximately one month later. The failure to take steps in that
    short period does not constitute acquiescence.

[8]

The appeal is dismissed. The appellant shall pay costs of the appeal to
    the respondent in the amount agreed upon of $5,000, inclusive of fees,
    disbursements, and taxes.

C.W.
    Hourigan J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baron, 2017 ONCA 772

DATE: 20171005

DOCKET: C61325

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Paul Baron

Appellant

John Paul Baron, acting in person

Daniel Stein, appearing as duty counsel

Craig Harper, for the respondent

Heard: May 3, 2017

On appeal from the ruling of Justice Bruce G. Thomas of
    the Superior Court of Justice, dated June 4, 2014, with reasons reported at
    2014 ONSC 3300, and from the conviction entered on December 1, 2014 by Justice
    Johanne N. Morissette of the Superior Court of Justice, sitting with a jury,
    and from the sentence imposed on November 13, 2015.

Trotter J.A.
:

A.

overview

[1]

John Paul Baron was convicted of 28 counts of fraud over $5,000,
    contrary to s. 380(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46.
    He was sentenced to six years imprisonment. Mr. Baron appeals his convictions
    and sentence.

[2]

The appellant and his two co-accused  Terrance McGill (McGill) and Leeanne
    Houle (Houle)  were charged in a Ponzi scheme. Investors in the scheme
    advanced $3,418,550 (Cdn.) and $250,000 (U.S). When the scheme inevitably
    collapsed, losses totalled over $2,000,000.

[3]

After the three accused were charged, 59 ½ months passed before the
    trial concluded. In advance of the trial, the accused unsuccessfully applied to
    have the proceedings stayed, based on infringements of s. 11(b) of the
Charter
.
    The appellant challenges this ruling on appeal. He also submits that the trial
    judge erred in the manner in which she instructed the jury.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

trial within a reasonable time

(1)

Introduction

[5]

The appellant was convicted almost three years ago. He relies on the
    new framework for s. 11(b), established in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631, and affirmed in
R. v. Cody
, 2017 SCC 31, 349
    C.C.C. (3d) 488.

[6]

This fraud prosecution was complex, especially in the early stages, when
    thousands of pages of disclosure started to flow, and as counsel started to
    come to grips with the case. Proceedings in the Ontario Court of Justice
    (OCJ) were plagued with delays attributable to the defence. One lawyer (not
    Mr. Stein) initially represented all three accused. Perhaps inevitably, counsel
    was eventually removed from the case. This was the first in a concatenation of
    delays for which the Crown could not be held responsible. The case laboured in
    the OCJ while the accused sought to retain new counsel. Dates for the lengthy
    preliminary inquiry had to be set three times, due to representation issues,
    and because of Houles illness.

[7]

When they arrived in the Superior Court of Justice (SCJ), the three
    accused delayed setting a trial date. A Case Management Judge was appointed to
    take charge and to bring the case to trial expeditiously. He was successful and
    prevented what might have been a longer delay.

(2)

The Application Judges Ruling

(a)

General

[8]

The s. 11(b) application

was argued on May 5 and 6, 2014, in
    anticipation of a jury trial set to commence on November 10, 2014.

[9]

On June 4, 2014, the application judge dismissed the application, applying
    the framework established in
R. v. Morin
, [1992] 1 S.C.R. 771. When
    the application was argued, there had been 45 court appearances in total  approximately
    37 were in the OCJ. The application judge found that no time had been waived by
    any of the accused, nor was any of the delay attributable to the conduct of the
    Crown. He found that the total amount of institutional delay was 18 ½ months  8
    months in the OCJ, and 10 ½ months in the SCJ. Measured against the total delay
    of 59 ½ months, the application judge found that the bulk of the delay was
    neutral time (as classified under
Morin
). He apportioned only about 6
    months to defence delay.

[10]

I
    will not examine each of the 45 appearances identified by the application judge.
    Instead, I focus on the areas that he considered problematic, the issues raised
    by the parties on appeal, and those relevant to the application of
Jordan
.

(b)

Proceedings in the OCJ

[11]

The
    case was in the OCJ for just over three years  December 15, 2009 (when charges
    were laid) until February 21, 2013 (committal for trial).

[12]

As
    noted, one lawyer initially represented all three accused. He remained on the
    record for 15 months, until he was removed on April 13, 2011. In the meantime,
    he dealt with what everyone described as voluminous disclosure. On several occasions,
    the case was adjourned to accommodate defence counsels request for more time
    to review disclosure. As these adjournment requests mounted, the Crown
    expressed concern about moving the case forward. It was not until October 8,
    2010, that defence counsel was prepared to set preliminary inquiry dates for August
    and September of 2011.

[13]

When
    defence counsel was removed on April 13, 2011, the Crown put on the record, and
    the court agreed, that the prosecution and the courts have bent over
    backwards to accommodate the case, and the schedule of defence counsel. Preliminary
    inquiry dates earlier than August and September 2011 were available, but were
    not selected by defence counsel. Unfortunately, the exact amount of time thrown
    away prior to April 13, 2011, was not specified. However, the Crown was
    emphatic that, despite counsel being removed, the preliminary inquiry dates be
    protected while the accused retained new lawyers.

[14]

Following
    numerous subsequent appearances, it became clear on June 21, 2011, that the
    August/September 2011 preliminary inquiry dates could not be protected. Because
    counsel had not been retained, new preliminary inquiry dates were set for
    February 13-17 and 21-24, 2012.

[15]

In
    the meantime, on August 30, 2011, all three accused persons made
Rowbotham

applications.
[1]
The Crown contested the jurisdiction of a judge of the OCJ to grant such
    relief. The presiding judge reserved his decision. On September 13, 2011, prior
    to the release of this decision, McGill and Houle reappeared before the OCJ to
    advise they had received legal aid, but wished to convert their
Rowbotham
applications into a request for
Fisher
orders.
[2]

[16]

On
    September 27, 2011, the presiding judge determined that he lacked jurisdiction
    to grant the relief sought. The case was adjourned to the new preliminary
    inquiry dates in February of 2012. Subsequently, the appellant was unsuccessful
    on his
Rowbotham

application in the SCJ; McGill and Houle were
    unsuccessful in obtaining
Fisher
orders.

[17]

Ultimately,
    the dates set for the second preliminary inquiry in February of 2012 were lost
    because McGill and Houle had still not fully retained counsel  their
    applications for legal aid were still being considered by the Big Case
    Management Team (BCMT) of LAO. When they requested an adjournment, the
    appellant told the court, Who am I to deny them their lawyer? and I don't
    think it makes any consequence to me Your Honour at this point.

[18]

The
    Crown opposed the adjournment. It proposed pushing ahead with the preliminary
    inquiry. The Crown was permitted to call two witnesses from out of town. However,
    only one witness was heard because proceedings were halted when Houle was taken
    ill and rushed to the hospital. The preliminary inquiry was delayed a couple of
    times in response to Houles situation. Ultimately, she could not continue, and
    the second preliminary inquiry dates were lost.

[19]

Various
    appearances occurred in the aftermath of the second aborted preliminary
    inquiry. With the permission of the court, the appellant was not present on a
    number of these dates. On April 24, 2012, even though counsel for McGill and
    Houle were not yet formally on the record, new preliminary inquiry dates were
    set for December 2012. At this time, Houle expressed a desire for earlier
    dates; the appellant raised the issue of delay for the first time.

[20]

The
    preliminary inquiry finally took place on December 7, 10, 12, 13, 17-19 of 2012
    and January 30, 2013. McGill and Houle had counsel; the appellant did not. The
    accused were committed to stand trial on February 21, 2013.

(3)

Proceedings in the SCJ

[21]

The three accused arrived in the SCJ on May 10, 2013. Counsel for
    McGill requested that the case be adjourned until September 13, 2013. It was
    then adjourned to Assignment Court on November 29, 2013. The appellant did not
    object to these delays. In the meantime, a Judicial Pre-Trial Conference
    (JPT) was adjourned because counsel had failed to file a Pre-Trial Conference
    Report (Form 17), as required by the
Criminal Proceedings Rules for the
    Superior Court of Justice (Ontario)

(SI/2012-7), at r. 28.04.

[22]

The new JPT date was scheduled for January of 2014. On the
    November 29 Assignment Court date, counsel for McGill attended on behalf of all
    accused to request that trial dates not be set until the delayed JPT was
    completed.

[23]

Around
    this time, the Chief Justice of the SCJ designated the application judge as a
    Case Management Judge, under s. 551.1 of the
Criminal Code
. On January
    24, 2014, the application judge set a date for the appellants fresh
Rowbotham
application, to be heard on March 13, 2014. He also set May 5 and 6, 2014 as
    dates for the s. 11(b) application. On February 14, 2014, a four-to-five-week
    jury trial was scheduled to commence on November 10, 2014.

[24]

On
    April 29, 2014, the
Rowbotham
application was denied:
R. v. Baron
(April 29, 2014), Sarnia, CR-13-1697 (S.C.). On May 6, 2014, a change of venue
    application brought by all accused was dismissed. On June 4, 2014, the s. 11(b)
    application was dismissed.

[25]

On
    November 4, 2014, shortly before the trial, counsel for Houle appeared before
    the application judge (in his capacity as the Case Management Judge) to seek an
    adjournment of the trial. Ms. Houle had become very ill (with a different ailment).
    Counsel for McGill was prepared to consent to an adjournment. The appellant was
    not present, but raised no objection. In the interests of moving the case
    against the appellant and McGill forward, the application judge severed the
    prosecution against Houle. In making this decision, the application judge said:

So, when I look at the issues in the interests of justice, I am
    content to note that,
prima

facie
, these three persons should be
    tried together because of the nature of the allegations. This is one allegation
    of a fraudulent scheme and it would in the normal course be best to try these
    persons together and it would be in the interests of justice to do so.

This is not the normal case because of the time that it has
    been before the court, because of the nature of the adjournment request now and
    the medical treatment necessary for Ms. Houle.

In my view, it is in the interests of justice for me to sever
    Ms. Houle from this indictment and I do so.

[26]

The
    case went to trial as scheduled. The appellant was found guilty on December 1,
    2014. He was sentenced on November 13, 2015.

(4)

Findings and Analysis of the Application Judge

[27]

The
    application judge found that the time leading up to setting the first
    preliminary inquiry dates (10 months) was neutral time, allowing for intake and
    disclosure. From the time that date was set (October 8, 2010) until defence
    counsel was removed from the record (April 13, 2011), the trial judge
    attributed two months as systemic delay.

[28]

A
    good deal of time prior to the second preliminary inquiry was associated with
    the attempts of the co-accused to obtain funding for representation. Counsel
    for McGill and Houle tried to blame LAO for the delay. The application judge
    examined this issue and disagreed. As he said, at para. 45:

There is nothing about the record here that
    leads me to believe there was any mistake by LAO. The system reacted as
    designed. There is nothing about this process that would require me to assess
    state or institutional delay. It may be that many counsel were reluctant to
    take on this case with a legal aid budget but the record reflects that LAO
    authorized travel and meal expenses which allowed Houle and McGill to expand
    their search area. They have now retained extremely competent counsel pursuant
    to that process.

[29]

The
    application judge noted that, on February 13, 2012, an OCJ judge said that the
    applicants had been diligent in attempting to secure counsel and that the
    delays were not their fault. The application judge disagreed, at para. 46:

Applicant's counsel seeks to view this as
    judicial recognition of institutional delay. While the comment  may or may not
    have been accurate, I find that accuseds' meanderings through the legal aid
    process cannot be seen as delay occasioned by the state. At no time in this 5-month
    period were Houle and McGill ready for the preliminary hearing. I view this
    period as neutral.

[30]

The
    next period of delay arose as a result of Houles illness at the second
    preliminary inquiry. The application judge apportioned the period from February
    13, 2012, to April 24, 2012, as neutral time,
per

the
Morin
framework.

[31]

The
    application judge addressed the period from April 24, 2012 (the date on which
    the appellant first raised delay) until the next preliminary inquiry dates. He relied
    on this courts holding in
R. v. Whylie
(2006), 208 O.A.C. 247 that,
    ordinarily delay caused by the actions of a co-accused is considered neutral
    in the s. 11(b) analysis. However, as the application judge observed, [T]he
    Crown must consider severing the counts where it appears that the delay due to
    a co-accused is prejudicing the others, at para. 56. Although this ground was
    not argued before him on the s. 11(b) application, he considered whether the
    appellants case should have been severed. Relying on
R. v. L.G.
, 2007
    ONCA 654, 229 O.A.C. 89, the application judge held that it is in the interests
    of justice that individuals charged jointly with an offence be tried together.
    The application judge stated, at para. 59:

I find that the concerns about inconsistent
    verdicts and multiple lengthy proceedings were very real here. In the
    circumstances of this prosecution, recognizing the right of the accused to a
    trial in a reasonable time, it would not have been in the interests of the
    administration of justice to sever the accused.

[32]

Despite
    the authorities under
Morin
in favour of apportioning the entire 7 ½
    month time as neutral, the application judge still apportioned 6 of the 7 ½
    months to institutional delay, at para. 48. Thus, it appears that the
    application judge was more than generous to the appellant in apportioning
    institutional delay. Even on this approach, only 8 of the 38 months in the OCJ,
    from December 15, 2009, to February 21, 2013, were attributable to
    institutional delay.

[33]

The
    application judge held that time between committal for trial (February 21,
    2013) to the Assignment Court date (January 24, 2014) was intake time, and thus
    neutral. Part of the problem was the aborted JPT, caused by the failure of
    defence counsel to file proper materials. The rest of this period was caused by
    defence adjournment requests.

[34]

As
    it turned out, trial dates were not actually set on January 24, 2014; they were
    scheduled on February 14, 2014. Nevertheless, the application judge classified
    the 10 ½ months between January 24, 2014 and the projected commencement of the
    trial, on November 10, 2014, as institutional delay.

[35]

Turning
    to the issue of prejudice, the application judge recognized that a five-year
    delay caused some inherent prejudice. He also considered the appellants
    evidence that he suffered from a degenerative eye condition. This made his
    drives from his home in Whitby to court appearances in Sarnia more onerous.
    However, the application judge noted that the appellant was accommodated
    numerous times by bench warrants with discretion.

[36]

The
    application judge dismissed the appellants complaints about his inability to
    travel outside of the province, and its impact on his investment business. The
    Crown had agreed to consider travel requests on a case-by-case basis. This
    offer was made in May of 2011. The appellant made no requests.

[37]

Finally,
    considering societys interest in a trial on the merits, the application judge
    found that the institutional delay of 18 ½ months was only slightly above the
    guidelines prescribed by
Morin
, and not sufficient to find a breach of
    s. 11(b).

(5)

Analysis

(a)

The
Jordan
Framework

[38]

The
    application judge made his ruling based on the governing authority at the time

Morin
.
His ruling was released two years before
Jordan
.
    Nevertheless, this appeal must be decided in accordance with
Jordan
.

[39]

Because
    this case was tried in the SCJ, there is a presumptive ceiling of 30 months, after
    deducting defence delay from the total delay. Defence delay is comprised of
    delay that is waived by the defence (
Jordan
, at para. 61;
Cody
,
    at para. 27), and delay that is solely or directly caused by the actions or
    inaction of the defence (
Jordan
, at paras. 66 and 113;
Cody
, at
    para. 28).

[40]

When
    delay exceeds the presumptive ceiling, it falls to the Crown to rebut the
    presumption of unreasonableness by demonstrating exceptional circumstances.
    In
Jordan
, the majority of the Supreme Court defined exceptional circumstances
    as follows, at para. 69:

Exceptional circumstances lie
outside the
    Crown's control
in the sense that (1) they are reasonably unforeseen
or
reasonably unavoidable,
and
(2) Crown counsel cannot reasonably remedy
    the delays emanating from those circumstances once they arise. [Emphasis in
    original.]

Exceptional circumstances fall into
    two general categories: discrete events and particularly complex cases (
Jordan
, at para. 71).

[41]

Both
    types of exceptional circumstances are in play in this case. The majority in
Jordan
(at para. 72) identifies medical emergencies as a prime example of a discrete
    event. This figures prominently in relation to Houles first illness. The
    concept of a particularly complex case is also relevant to this appeal. In
Cody
,
    the Court addressed the issue in the following way, at para. 64:

Unlike defence delay and discrete events,
    case complexity requires a qualitative, not quantitative, assessment.
Complexity is an exceptional circumstance only where the case as a
    whole is particularly complex. Complexity cannot be used to deduct specific
    periods of delay.
Instead, once any applicable quantitative deductions are
    made, and where the net delay still exceeds the presumptive ceiling, the case's
    complexity as a whole may be relied upon to justify the time that the case has
    taken and rebut the presumption that the delay was unreasonable
(
Jordan
,
    at para. 80). A particularly complex case is one that "because of the
    nature of the evidence or the nature of the issues, require[s] an inordinate
    amount of trial or preparation time" (
Jordan
, at para. 77).
When
    determining whether a case's complexity is sufficient to justify its length,
    trial judges should consider whether the net delay is reasonable in view of the
    case's overall complexity. This is a determination that falls well within the
    expertise of a trial judge
(
Jordan
, at para. 79). [Footnotes
    omitted; emphasis added.]

The Court clarified, at para. 65, that voluminous
    disclosure is not necessarily emblematic of a complex case, although it might
    qualify as a discrete exceptional event within the framework.

[42]

The
    final step in the
Jordan
analysis applies to cases already in the system
    when
Jordan
was decided  the transitional exceptional circumstance.
    This aspect of the
Jordan
analysis was addressed in this courts
    recent decision in
R. v. Gopie
, 2017 ONCA 728, in which Gillese J.A.
    said, at para. 119:

For cases in the justice system on the date of
Jordan
s release, a transitional exceptional circumstance applies if
    the Crown satisfies the court that the time the case took is justified based on
    the parties reasonable reliance on the previous state of the law. This is a
    contextual assessment, sensitive to the manner in which the
Morin
framework was applied and to the fact that the parties behaviour cannot be
    judged strictly against a standard of which they had no notice when the
    proceedings began.
Considerations of prejudice and the seriousness of the
    offence can inform whether the parties reliance on the previous state of the
    law was reasonable
. [Emphasis added.]

[43]

In addition to
Gopie
, this court has decided numerous
    cases involving the transitional exceptional circumstance: see, for example,
R.
    v. Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433;
R. v. Manasseri
,
2016 ONCA 703, 132 O.R. (3d) 401;
R. v. McManus
,
    2017 ONCA 188, 36 C.R. (7th) 261;

R. v. Gordon
, 2017 ONCA 436,
    348 C.C.C. (3d) 426;
R. v. D.C.
,
2017 ONCA 483;
R. v.
    Mallozzi
, 2017 ONCA 644;
R. v. Pyrek
, 2017 ONCA 476, 349 C.C.C.
    (3d) 554; and
R. v. Picard
, 2017 ONCA 692. In each of these cases
    (with the exception of
Picard
), the appellants trials had been completed
    before
Jordan
.
In these circumstances, the Court in
Jordan
said, at para. 102: Ultimately, for most cases that are already in the system,
    the release of this decision should not automatically transform what would
    previously have been considered a reasonable delay into an unreasonable one.

(b)

The Application of
Jordan

(i)

Introduction

[44]

I
    have concluded that the 59 ½ month delay in this case is justified under the
Jordan

framework. In addition to what I would call the primary
Jordan
factors (defence delay and exceptional circumstances),

I would apply the
    transitional exceptional circumstance, focusing on the reliance that the
    parties and the trial judge placed on
Morin
.

[45]

This
    case demonstrates the difficulties involved in reviewing a
Morin
-based
    decision under
Jordan
.
Morin
focused on institutional delay. The
    other categories of delay  defence delay, neutral time, intake time, and the
    inherent time requirements of the case  could not be visited upon the Crown.
    Thus, under
Morin
, it did not matter if a specific period of delay was
    considered defence delay or neutral because neither could be held against the
    Crown.

[46]

Jordan

discarded this classification scheme. Concepts such as neutral time, intake
    time, and the inherent time requirements of the case are no longer direct lines
    of inquiry  they are reflected in the presumptive ceilings: see
Jordan
,
    at para. 53. Now, it is critical to identify defence delay, as well as delays
    caused by discrete events.

(ii)

Defence Delay, Discrete Events, and Case Complexity Under
Jordan

[47]

The
    trial judge only allocated about 6 months as defence delay. With respect, I
    would allocate 14 ½ months to defence delay. This would include 2 months to
    accommodate defence counsels schedule in having a case management meeting in
    the OCJ (August 9, 2010 to October 8, 2010). I would allocate 2 months of
    defence delay to reflect that the first preliminary inquiry dates were set
    later than necessary to accommodate defence counsel.

[48]

I
    would allocate the entire time between the date set for the start of the first
    preliminary inquiry (August 2, 2011) and the date set for the commencement of
    the second preliminary inquiry (February 13, 2012), that is 6 ½ months, as
    defence delay. This delay was caused by the removal of counsel from the record
    and was the responsibility of all three accused. On appeal, counsel for the
    Crown submits that the entire period of time from counsels removal (April 13,
    2011) until the second preliminary inquiry (February 13, 2012), namely 10
    months, should be deducted. While this position is not unreasonable, I would
    apply only 6 ½ months because the possibility of proceeding on the original
    dates might also be said to have been frustrated by other factors.

[49]

Lastly,
    I would apportion 4 months of defence delay involved in finally setting a date
    for trial in the SCJ. The case was delayed by 9 months (May 10, 2013 to
    February 14, 2014). Some of this delay was caused by multiple defence adjournment
    requests, and the cancelled JPT.

[50]

As
    a discrete event, I would also deduct from the total delay the entire period of
    time between the second and third preliminary inquiry dates (February 13, 2012
    to December 7, 2012)  10 months. This was triggered by Houles illness, a
    matter completely beyond the Crowns control, which caused the time protected
    for the second preliminary inquiry to be lost. As discussed below, under my
    discussion of the transitional exceptional circumstance, I agree with the application
    judge that it was reasonable for the Crown to continue against all three
    accused; the Crown was not required to sever the appellant as a form of
    mitigation for this unforeseen event.

[51]

From
    the total delay of 59 ½ months, I would deduct 24 ½ months for defence delay,
    and the delay caused by Houles illness. Consequently, the net delay under
Jordan
is 35 months.

[52]

While
    this exceeds the presumptive ceiling, the extra time that it took to bring this
    fraud prosecution to trial may be explained by the complexity of the case,
    taking into account the number of charges, the number of accused, the
    sophistication of the fraud, and the voluminous disclosure. I discuss the
    complexity of the case further in the following section.

(iii)

The Transitional Exceptional Circumstance

[53]

I would also rely upon the transitional exceptional
    circumstance to justify the delay involved in completing this trial. While determining
    the delay for
Jordan
purposes is a
    quantitative exercise (except when considering the complexity of the case as
    part of the exceptional circumstances category), the application of the
    transitional exceptional circumstance
involves a qualitative analysis. At
    its core is the avoidance of unfairness to the parties caused by their
    reasonable reliance on
Morin
. Although the analysis at this juncture
    is qualitative, it is not without form. In
Gopie
, Gillese J.A.
    identified the criteria to be applied, at para. 178:

In
R. v. Williamson
, 2016 SCC 28,
    [2016] 1 S.C.R. 741, the majority decision discussed, as the relevant
    considerations informing the transitional exceptional circumstance analysis:
    (i) the complexity of the case; (ii) the period of delay in the excess of the
Morin
guidelines; (iii) the Crowns response, if any, to any institutional delay;
    (iv) the defence efforts, if any, to move the case along; and (v) prejudice to
    the accused.

Applying these factors, the overall
    delay is reasonable under s. 11(b)

The
Morin
Guidelines

[54]

The
    application judge properly applied the
Morin
framework.  He engaged in
    a detailed review of the record and provided clear reasons for the conclusions
    that he reached.

[55]

The
    application judge found that only 18 ½ months of the entire delay was
    institutional delay. The rest he attributed to defence delay and neutral time.
    Importantly, he found that the Crown did not cause any delay through its
    conduct.

[56]

As
    I have explained above, the application judge could have allocated more time to
    defence delay. However, it made no difference to his ultimate determination of
    institutional delay, which is the focus of the
Morin
inquiry: see
Jordan
,
    at para. 52, n. 4.

[57]

One period where more time should have been allocated as defence
    delay was the removal of defence counsel from the record. As I have already
    noted in para. 6, above, it was almost inevitable that a single lawyer could
    not represent all three accused persons in a large-scale fraud prosecution such
    as this one. A good deal of time was wasted in this 15-month period of joint
    representation.

[58]

When
    counsel was removed, it set off a chain of events that lingered the entire time
    that the case was in the OCJ. The case had a difficult time recovering from
    this event; it had to start all over again. All accused scrambled to find new
    counsel. After much time and effort, involving multiple applications in both
    the OCJ and the SCJ, McGill and Houle were successful; the appellant was not.

[59]

The
    Crown was not in any way responsible for this event. It had not sought the
    removal of defence counsel. When counsel was removed, the Crown and the court
    were placed in a holding pattern, while the accused struggled to retain
    counsel. The retention of counsel and the extensive involvement of LAO was
    properly characterized by the application judge as part of the inherent time
    requirements of the case under
Morin
: see
R. v. Boateng
, 2015
    ONCA 857, 128 O.R. (3d) 372; and
Picard
, at para. 90.

[60]

Further
    challenges were created by Houles illness as the preliminary inquiry was
    scheduled to proceed in February of 2012. Mr. Stein argues that the Crown ought
    to have severed Houle at this point. I disagree.

[61]

This
    event must be viewed in a broader context. Just before Houle became ill, the
    spectre of an adjournment had already arisen. The appellant was prepared to
    consent to this adjournment. However, the Crown was not  it wished to push
    ahead full-steam, or at least mitigate the fallout by calling some out-of-town
    witnesses. This constructive approach was ultimately undermined by Houles
    illness. None of the accused requested severance at this point. The appellant
    certainly did not. He was content that the case be adjourned. It was only a few
    months later (on April 24, 2012) that he raised the issue of delay for the
    first time.

[62]

Operating
    within the
Morin

framework, the application judge was correct
    to treat the delay caused by the co-accused as neutral time: see
Whylie
,
    at para. 24; and
L.G.
, at paras. 62-63. He also recognized the
    importance in trying co-accused together, a principle that was recently
    endorsed by this court in
R. v. Zvolensky
, 2017 ONCA 273, 135 O.R.
    (3d) 401, per Watt J.A., at paras. 245-255.

[63]

This
    case is not like
R. v. Vassell
, 2016 SCC 26, [2016] 1 S.C.R. 625, in
    which Mr. Vassells persistent and proactive efforts to have a trial as soon as
    possible were thwarted by the delay caused by his six co-accused.

[64]

Here,
    the appellant was content with the pace of the proceedings, never raising the
    issue of severance. Severance was not appropriate in any event, given the
    complexity of the case, the nature of the allegations, and the evidence common
    to all three accused.

[65]

Mr.
    Stein says it is ironic that, as the trial was about to get started, Houle was
    severed from the appellant and McGill. I see no irony here. Houle suffered with
    a serious illness (different from her previous illness). She had undergone
    surgery, and was receiving other treatment. Further surgery was anticipated.
    Her counsel moved to have the trial adjourned. The Crown resisted. Given the
    amount of time that had passed, and on the eve of trial, severance was the only
    option realistically available to the Case Management Judge. This unforeseen
    and most unfortunate development ought not to reflect negatively on the Crowns
    previous failure to seek severance when the case was in the OCJ.

[66]

Returning
    to the criteria set out in
Gopie
, at para. 53 of my reasons above, the
    institutional delay in this case of 18 ½ months exceeded the
Morin

guidelines,
    but only slightly. When the complexity of this case is considered, the delay
    was reasonable.

Case Complexity

[67]

The
    case was complex. From the first appearance onwards, this was how everyone
    characterized the case  judges, the Crown, defence counsel, and the appellant.
    On appeal, Mr. Stein (whose submissions were restricted to the 11(b) issue)
    backs away from this characterization. He points to the shortness of the trial
    and the relatively brief instructions to the jury. On the other hand, the
    appellant, who argued grounds of appeal related to the trial judges jury
    instructions, contended that the instructions were deficient because they
    failed to reflect the complexity of this large-scale fraud prosecution.

[68]

From
    the outset, it was apparent that the case was complex. It involved three
    accused persons, 22 victims, and millions of dollars in losses. In the early
    days of this prosecution, approximately 10,000 pages of materials were
    disclosed. Defence counsel required multiple adjournments to get a handle on
    the case. On one appearance, he told the judge that it was fortunate that he
    was able to rely upon his associates because, if he were a sole practitioner,
    he would not have been able to manage on his own.

[69]

The
    complexity of the case, and the accompanying voluminous disclosure, no doubt hampered
    the accused in retaining new counsel. It is also worth noting that LAO
    considered the case to be complex. The BCMT became involved in the ongoing
    funding decisions about the case in relation to McGill and Houle.

[70]

Mr.
    Stein argues that, because the trial took only eight days of court time, the
    case was straightforward. However, the Crown, defence counsel for McGill and
    Houle, and the very experienced Case Management Judge determined that a
    reasonable period of time for trial was four to five weeks. The case did not shed
    its complexity merely because the trial was shorter than anticipated.

[71]

In
    gauging the complexity of the case, it is an error to focus exclusively on the
    end product  the trial. Case complexity must be evaluated over the course of
    the entire proceedings. As Rouleau J.A. held in
Picard
, at para. 62:

A case can be complex in the earlier stages
    and require extensive disclosure, the compiling of expert evidence and numerous
    witness statements, only to be made simpler and more straightforward when it
    comes time for trial. These kinds of complexity in the early stages may result
    in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry
    and so on, although the case is simple by the time of trial.

These observations apply to this
    case.

[72]

Although
    the application judge used
Morin

principles to conclude that
    the case was complex, his finding is supportable under the
Jordan
framework: see
Gopie
, at para. 172.

The Seriousness of the Offences

[73]

In
    cases applying the transitional exceptional circumstance, the seriousness of
    the alleged offences remains a significant consideration: see
Cody
, at
    paras. 70-71;
Picard
, at para. 79; and
Gopie
, at para. 119.

[74]

The
    seriousness of this case is illustrated in this courts decision in relation to
    the Crowns appeal of McGills sentence. The trial judge sentenced McGill to a 23-month
    conditional sentence. This court allowed the appeal and imposed a four-year
    penitentiary term: see
R. v. McGill
, 2016 ONCA 139. As the court said,
    at paras. 7 and 16:

The offences have had a significant impact on
    the lives of the 22 victims. Several lost their homes. Some have declared
    bankruptcy and others have had their retirement years ruined.

. . .

Given the size of the fraud, the lengthy time
    period over which it took place, the motivation of greed, the breach of trust, the
    number of victims, and the devastating impact on those victims, a penitentiary
    sentence was required. Baron was sentenced to six years in prison for his role
    in these offences. It was Baron who instigated the scheme and took the majority
    of the benefits from it. Given the respondent's lesser degree of culpability,
    in our view, a fit sentence is four years' imprisonment.

[75]

These
    after-the-fact observations fortify the application judges conclusion. They validate
    the societal interest in having this case tried on its merits.

The Crowns Response and Defence Efforts

[76]

Mr.
    Stein argues that the prosecution of this case exemplifies the culture of
    complacency within the system towards delay:
Jordan
, at para. 4. I
    disagree.

[77]

A
    careful review of the record reveals that the Crown was always anxious to move
    things forward. The only shortcoming the appellant is able to identify is the
    Crowns failure to sever the accused after the second preliminary inquiry
    collapsed, a submission to which I would not give effect. The Crown took all
    reasonable steps to keep the case moving towards trial.

[78]

Similarly,
    judges in both the OCJ and the SCJ did not display a complacent attitude
    towards the progress of the case. This was not a case in which the three
    accused continually bounced from judge-to-judge as the case proceeded to trial.
    In the OCJ, a single judge stayed with the case and was present at almost all
    appearances. He was knowledgeable of the history of the case and responded to
    events as they happened. Similarly, in the SCJ, a Case Management Judge was
    appointed under s. 551.1 of the
Criminal Code
. He was proactive and
    efficient in bringing the case to trial as quickly as possible. He heard all of
    the applications associated with the case, including the one under appeal.

[79]

For the most part, the appellant seemed satisfied with the pace
    of the proceedings. When the second preliminary inquiry dates were about to be
    lost, the appellant said  Who am I to deny them their lawyer? and I don't
    think it makes any consequence to me Your Honour at this point. It is true
    that he raised s. 11(b) in the OCJ, and again in the SCJ. However, there are
    numerous examples in the record of the appellant allowing the process to unfold
    as it did, not voicing complaints about the pace of the proceedings.

Conclusion

[80]

I
    end this section by referring to a passage from
Pyrek
. Writing for the
    court, Laskin J.A. examined
Jordan
and said the following, at para.
    32:

Finally, in
Jordan
itself, at
    para. 98, the court categorized the kind of transitional case in which the
    delay would warrant a stay, and the present case is far removed from that
    categorization. The court said: "if the delay in a simple case vastly
    exceeds the ceiling because of repeated mistakes or missteps by the Crown, the
    delay might be unreasonable even though the parties were operating under the
    previous framework." The present case was not "simple". The
    delay did not "vastly" exceed the ceiling. And the delay was [not]
    caused by "repeated mistakes or missteps".

See, also,
Gordon
, at para. 24, in which
    Doherty J.A. referred to the same passages from
Jordan
and said, The
    language in the above-quoted passage describes a narrow category of cases.

[81]

This
    case is not one of those narrow category of cases for which a stay is
    warranted. The net delay in this case did not vastly exceed the presumptive
    ceiling.

Throughout the proceedings, all parties were completely faithful
    to
Morin
. They governed themselves in accordance with that regime,
    having no idea that the landscape was about to radically shift. It would be
    unfair to measure the Crowns conduct strictly by
Jordan

standards,
    with no allowance for its reasonable reliance on
Morin
.

[82]

I
    would dismiss this ground of appeal.

C.

the charge to the jury

[83]

The
    appellant advanced other grounds of appeal without the assistance of duty
    counsel. He provided written submissions in support of his arguments.

[84]

The
    appellant argues that the trial judges final instructions to the jury were
    unfair, brief, unbalanced, prejudicial and undermined his defence. He makes a
    litany of complaints, including: (a) the trial judge spent too much time
    focused on the Crowns case to the detriment of the appellants position; (b)
    the trial judge failed to mention a document, marked as Exhibit A, containing
    the appellants objection to the courts jurisdiction to conduct the trial; (c)
    the trial judge told the jury that they were not to treat the appellant any
    differently because he was self-represented; (d) the trial judge
    mischaracterized the evidence of an auditor called by the Crown as part of its
    case; (e) the trial judge failed to refer to portions of the cross-examination
    of an RCMP officer; (f) the trial judge erred in describing McGills
    cross-examination as it pertained to Exhibit A; and (g) the charge was brief,
    unbalanced, and encouraged the jury to find the appellant guilty.

[85]

I would not give effect to any of these complaints. In
R. v.
    Jacquard
,
[1997] 1 S.C.R. 314, the Supreme Court of
    Canada prescribes a functional approach to reviewing jury charges. This entails
    reviewing the charge as a whole, and not dissecting isolated passages. In
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, the Court
    held, at para. 31:

The standard that a trial judge's instructions
    are to be held to is not perfection. The accused is entitled to a properly
    instructed jury, not a perfectly instructed jury: see
Jacquard
, at
    para. 2. It is the overall effect of the charge that matters.

[86]

The
    trial judges instructions as a whole meet these requirements. Although the
    trial judge may not have instructed the jury in the manner in which the
    appellant had hoped, a review of the instructions as a whole reveal that she
    approached her task in a fair and even-handed manner. The charge was not biased
    in the way that the appellate claims. It was responsive to the fact that the
    bulk of the evidence was introduced in the Crowns case.

[87]

The
    appellants complaint about the manner in which the trial judge dealt with
    Exhibit A is baseless. Exhibit A is an affidavit sworn by the appellant,
    with many attachments. In it, the appellant advances a Freeman-on-the-Land claim,
    objecting to the jurisdiction of the court to try him.

[88]

The
    appellant introduced this document at the beginning of the trial. The trial
    judge dismissed the appellants jurisdictional claim. Because the document was
    made a lettered exhibit, the jury never saw it. As part of the Pre-Charge
    Conference, the trial judge expressed concern that, if the jury were to see
    this document, the appellant might be prejudiced. The following exchange took
    place:

The Court:   And I think my view is that it would be highly
    prejudicial to you if the jury saw this.

The Appellant: Okay. Fine, Your Honour.

[89]

Similarly,
    I would not give effect to the appellants arguments about the manner in which
    the trial judge dealt with other, individual pieces of evidence. I am not persuaded
    that she erred in the manner that the appellant claims.

[90]

I
    would reject this ground of appeal.

D.

The sentence appeal

[91]

The
    appellant initially appealed his convictions and his sentence. No materials
    were filed in relation to the sentence appeal. At the hearing of the appeal,
    the appellant made no submissions on the issue; Mr. Stein made no submissions
    on the appellants behalf. Although a Notice of Abandonment has not been filed
    in relation to the sentence appeal, in all of the circumstances, I would
    dismiss the sentence appeal as abandoned.

E.

Conclusion

[92]

I
    would dismiss the appeals from conviction and sentence. I would also like to
    express my appreciation to Mr. Stein for the able manner in which he assisted
    the appellant on the s. 11(b) portion of this appeal.

Released: GT October 5, 2017

Gary T. Trotter
    J.A.

I agree. E.E.
    Gillese J.A.

I agree. Grant
    Huscroft J.A.

[1]

This refers to an application, based on
R. v. Rowbotham
(1988), 25 O.A.C. 321 (C.A.), to have counsel appointed by the court and funded
    by the Attorney General.

[2]
This refers to an application, based on
R. v. Fisher
, [1997] S.J. No.
    530 (Q.B.), for an order requiring Legal Aid Ontario (LAO) to pay counsel
    above the standard legal aid rates.


COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Bennett, 2017 ONCA 780

DATE: 20171013

DOCKET: C58794

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Larkland Bennett

Appellant

Diana M. Lumba and Carlos F. Rippell, for the appellant

John Patton, for the respondent

Heard: March 23, 2017

On appeal from the conviction entered by Justice John R.
    Sproat of the Superior Court of Justice, sitting with a jury, on February 14,
    2014.

Huscroft J.A.:

OVERVIEW

[1]

The police executed a search of Larkland Bennetts apartment
    pursuant to a telewarrant issued on April 15, 2011, looking for drugs. No drugs
    were found, but a loaded firearm and ammunition were found in the pocket of a
    white fur coat in the closet. The handgun  its serial number defaced  had one
    bullet in the chamber and six in the clip.

[2]

Bennett brought a pre-trial application challenging the validity
    of the warrant, alleging a breach of s. 8 of the
Canadian Charter of Rights
    and Freedoms

and seeking to exclude the firearm under s. 24(2). He
    also alleged breaches of his s. 8 and s. 9
Charter
rights flowing out
    of a second search, this search incident to his arrest, and sought to have evidence
    found during that second search excluded.

[3]

The trial judge found that the information to obtain the warrant (the
    ITO) was, on its face, insufficient to support the warrant and that s. 8 had
    been breached. However, he refused to exclude the evidence under s. 24(2). The
    trial judge also found that the search incident to arrest violated Bennetts s.
    8 and s. 9
Charter
rights. Evidence obtained pursuant to that search
    including keys to his apartment, cell phone, and a CD case  was excluded from
    his trial.

[4]

Bennett testified at trial and denied knowledge of the firearm
    and ammunition. He maintained a recording studio in his apartment and other rap
    artists visited on a regular basis. There was evidence that Bennetts
    ex-girlfriend and sister had keys to the apartment, and that his sister
    sometimes used the apartment with her ex-boyfriend. There was also evidence that
    the white fur coat in which the firearm was found had been worn by the appellant
    as a prop and for promotional appearances.

[5]

Bennett was found guilty by a jury of possession of a loaded,
    restricted firearm and sentenced to 30 months imprisonment. He appeals from
    conviction, contending that the trial judge erred by (i) denying the bulk of
    his request for disclosure of information related to the issuance of the
    warrant; (ii) denying leave to cross-examine the affiant on the ITO; and (iii) refusing
    to exclude the firearm pursuant to s. 24(2) despite the breach of s. 8 of the
Charter
.

[6]

I would dismiss the appeal for the reasons that follow.

THE SECTION 8 APPLICATION

(1)

Background: the ITO

[7]

The search warrant was obtained on the basis of an ITO sworn by
    Constable Ian Hazell of the Peel Regional Police Major Drugs and Vice Bureau.
    The ITO alleged that the appellant was dealing crack cocaine from his residence
    at 265 North Service Road #504 in Mississauga. The affiants belief was based
    on information provided by a confidential informant (CI). Constable Hazell
    was the CIs handler as well as the affiant.

[8]

Paragraph 8 of the ITO set out the CIs past performance. It described
    the CI as a proven and reliable informant who had never provided false or faulty
    information, and stated that the CI had provided information to the affiant on
    several occasions resulting in numerous search warrants being executed and the
    seizure of [redacted] quantities of crack cocaine. The ITO stated that the CI knew
    that he or she would receive no consideration if the information provided was
    not proven to be true.

[9]

The appellant received a redacted version of the ITO prior to
    trial. Extensive redactions were made in order protect the identity of the CI.

(2)     The
Garofoli
step six application

[10]

The Crown conceded that the redacted version of the ITO did not
    disclose sufficient information to make out the reasonable and probable grounds
    required to justify the issuance of the warrant and invoked the step six
    procedure from

R. v. Garofoli
, [1990] 2 S.C.R. 1421. The step
    six procedure allows the trial judge to support the issuance of the warrant
    based on the unredacted ITO, despite the accuseds inability to access it, so
    long as a summary of the redacted portions of the ITO is provided and the
    accused is sufficiently aware of the nature of the redacted material to
    challenge it in argument or by evidence:
R. v. Crevier
,
2015
    ONCA 619, 339 O.A.C. 120, at paras. 2, 23-25.

[11]

The judicial summary worked out by the Crown and the trial judge provided
    extensive information, including that the CI had purchased crack cocaine from
    the accused, had been to his building, and had called his cell phone. The CI
    knew the details of the car the appellant drove as well as his license plate,
    which police investigation confirmed. The affiants investigation also
    confirmed, among other things, the appellants previous record for drug
    offences; that he lived at 265 North Service Road #504 in Mississauga; and that
    he had been identified by both the CI and the property manager of the
    appellants apartment by a mug shot.

[12]

The appellant was provided with a copy of the redacted ITO and
    judicial summary. No objection was taken to the sufficiency of the summary. The
    trial judge ruled that the summary was sufficient for the purpose of informing
    the defence of the nature of the redacted material and to allow a challenge to
    the ITO in argument or by evidence.

(3)     The disclosure application

[13]

Beyond the information provided, the appellant sought disclosure
    of the CI handlers notes concerning his meetings with the CI as well as the CI
    file  that is, the police file detailing the performance of the CI in prior
    cases. He argued that disclosure of this information was required in order to
    assess the truthfulness of the affiants assertions about the CIs past
    performance and to ensure that the CI was not a phantom. Defence counsel
    conceded that the vast majority of the file would likely be redacted to protect
    informer privilege, but insisted that it would at least be valuable for the
    court to look at the file and verify its existence.

i.

The initial disclosure order

[14]

The Crown argued that the defence was trying to make a sub-facial
    attack on the ITO without any basis for doing so, characterizing the disclosure
    request as a fishing expedition. Defence counsel was seeking an order that
    the Crown could not fulfill, given the imperative of protecting CI anonymity,
    in the hope that the Crown would choose not to proceed rather than risk
    disclosure. The Crown argued that disclosure of the CI notes and CI files ran
    counter to the purpose of
Garofoli
.

[15]

Defence counsel offered to abandon the disclosure application if
    the Crown undertook that the court could not consider any portions of the
    affidavit dealing with the CIs past performance and reliability. In
    particular, he stated:

If [the Crown] undertook or said that the court cannot consider
    any portions of the affidavit, the, the  that talk about the track record, I
    would abandon my application, because then it wouldnt be relevant.

[16]

Defence counsel acknowledged that he did not have anything
    particular to suggest that the CI handler was incredible or unreliable, but
    said that quality control was needed to ensure that this was not a case of a
    bad apple. He repeated that he was prepared to make arguments on the validity
    of the warrant immediately without disclosure if the Crown was willing to
    abandon reliance on the CIs past performance:

[I]f [the Crown] was prepared to say that she does not want to
    rely in any way shape or form on the [CIs] past performance, Im prepared to make
    arguments on the warrant immediately. But if my friend wants to rely on the
    past performance, then in my submission there has to be some disclosure.

[17]

The trial judge ordered the requested disclosure. This was a
    bottom line ruling, without reasons given at the time. The trial judge stated
    simply that the defence was entitled to disclosure of the CI handlers notes
    and CI file, redacted as necessary to protect informer privilege, in
    accordance with
Stinchcombe
principles.

ii.

The modified disclosure order

[18]

The trial judges disclosure order prompted the Crown to reconsider
    its position. The following day, Crown counsel advised the trial judge that the
    Crown would not be relying on the portion of the ITO that concerned the
    reliability of the CI, and invited the court to excise the relevant passage.
    She stated:

[A]fter careful review and consultation with Senior Crowns, at
    this time, it's the Crown's position that I will do what my friend suggested
    yesterday. Basically, the Crown is not going to be relying on the reliability
    portion of the unedited ITO. So, essentially, then excising paragraph eight and
    the Crown would be making submissions that the tip is compelling and
    corroborated enough that the warrant would still stand. And I understand that
    based on my friends submissions yesterday that certainly if the Crown was
    abandoning that portion then there would no longer be a basis in relevance for
    the disclosure that has been ordered.

[19]

Despite the Crowns concession, defence counsel maintained that
    the contents of the ITO were fabricated or exaggerated  that the CI was a
    phantom and/or the past performance of the CI did not exist  and that this was
    relevant to the application of s. 24(2) of the
Charter
. Defence counsel
    submitted that the Crowns concession was relevant to the request for
    disclosure of the complete CI file but not to the request for the file concerning
    this specific investigation:

[E]ven if its an anonymous tipster in my submission, I should
    still receive the notes from this particular investigation because you would
    get that even if it was a Crime Stoppers tip, you would get that edited even
    for an unknown person for the specific tip. So, in my submission, my friends
    concession goes to the full informant file, but not the one in relation to this
    specific investigation because that would be disclosed even with my friends
    concession. So as long as it's crystal clear that's my position with respect to
    a
Charter
breach. As I said, it would lose its relevancy but for the bad faith aspect.

[20]

The trial judge invited him to narrow his disclosure request.

[Y]esterday, I think, you indicated, you know, a lot of what
    you were requesting would not be an issue but for the Crown wanting to rely
    but for the Crown arguments on reliability. So, presumably, your request has
    narrowed so what specifically are you now asking for?

[21]

Defence counsel returned to the argument that he had made
    earlier: the CI did not exist and disclosure was required to allow him to support
    his argument.

[22]

The trial judge found that the Crowns concession rendered much
    of the requested disclosure irrelevant. However, he concluded that defence
    counsel was entitled to production of three pages of the CI handlers notes,
    fully redacted except for a date in April 2011  the timeframe in which the
    Crown said the CI provided the information  and reference to the appellants
    address, in order to address the defence concern that the CI was a phantom.

(4)     The application to cross-examine the affiant

[23]

Defence counsel also sought leave to cross-examine the affiant
    concerning several matters, including:

·

his use of the telewarrant procedure rather than attending at the
    courthouse to obtain the warrant;

·

his omission of information concerning whether the CI had a criminal
    record;

·

his omissions concerning the appellants criminal record;

·

his omission concerning the association of the appellants car
    with another address; and

·

his failure to conduct surveillance to corroborate the CIs tip.

[24]

The trial judge dismissed the application to cross-examine the
    affiant, reasoning that none of the areas in which cross-examination was
    proposed had a reasonable likelihood of undermining the validity of the
    warrant.

(5)     The trial judges ruling on the ITO

[25]

The trial judge considered whether, on the basis of the
    unredacted ITO, the warrant could have been granted. This involved an
    assessment of whether: (i) the information in the ITO was compelling, (ii) the
    CI was credible and reliable, and (iii) the information in the ITO was corroborated:
R. v. DeBot
,
[1989] 2 S.C.R. 1140, at p. 1168.

[26]

The trial judge found that, although the CIs tip was quite
    compelling, as a result of the Crowns concession that paragraph 8 of the ITO should
    be excised the ITO contained no information that the CI was credible or
    reliable. The Crown therefore failed to satisfy the second criterion from
DeBot
.
    Moreover, the corroboration of the ITO was limited to commonplace details that
    almost anyone could be aware of, such as the appellants residence, type of car,
    and license plate.

The trial judge concluded that the ITO was facially invalid
     insufficient, on its face, to support issuance of the warrant:
Crevier
,
    at para. 73. Consequently, the search was warrantless and the appellants right
    against unreasonable search and seizure under s. 8 of the
Charter
was violated.

Exclusion of evidence under s. 24(2)

[27]

The trial judge refused to exclude the evidence under s. 24(2) of
    the
Charter
, relying on this courts decision in
R. v. Blake
,
    2010 ONCA 1, 257 O.A.C. 346. He found that although the breach of s. 8 was
    serious because it involved the search of the appellants home, the police
    acted in good faith and the evidence obtained in breach of the right was
    reliable and crucial to the case.

DISCUSSION

(1)     Did the trial judge err in denying the disclosure request?

[28]

The appellant argues that the trial judge denied him meaningful
    disclosure by rescinding the original disclosure ruling requiring disclosure of
    both the CI handlers notes and CI file. The appellant asserts that the Crowns
    decision to excise the reliability portion of the ITO did not render the
    disclosure sought irrelevant; it remained relevant to the appellants
    sub-facial attack on the warrant and to the bad faith inquiry under s. 24(2).
    The disclosure ultimately provided  three pages of the CI handlers notes,
    fully redacted except for a date in April 2011 and a reference to the
    appellants address  was meaningless in the circumstances and undermined both the
    appellants motion for leave to cross-examine the affiant and his application
    to exclude the evidence under s. 24(2).

[29]

I would not give effect to this submission. As I will explain,
    although the trial judge erred in making his initial disclosure order, his
    error changed the nature of the challenge to the ITO in a manner that
    ultimately enured to the benefit of the appellant.

[30]

The principles governing disclosure are well established and
    there is no need to review them here: see
R. v. Stinchcombe
, [1991] 3
    S.C.R. 326, at pp. 332-336, 338-346,
R. v. McNeil
, 2009 SCC 3, [2009]
    1 S.C.R. 66, at paras. 17-25.

[31]

The
Stinchcombe
disclosure duty is broad, but it is not
    absolute. The Crown is not required to disclose information that is clearly
    irrelevant, such that it is not of any use to the defence:
R. v. Davey
,
2012 SCC 75, [2012] 3 S.C.R. 828, at para. 45. Nor is the Crown required to
    disclose information that is protected by informer privilege; indeed, it is
    prohibited from doing so: see
Stinchcombe
, at pp. 336, 339.

[32]

The starting point in determining relevance for purposes of a
Garofoli
review is that
Garofoli
is a pre-trial threshold evidentiary hearing
,
not a trial on the merits:
R. v. Reid
,
2016 ONCA 524, 132
    O.R. (3d) 26, at para. 94. It is concerned with the conduct of the police
    investigation rather than the guilt or innocence of the accused, and the right
    to full answer and defence that informs the
Stinchcombe
disclosure
    duty is limited accordingly.

[33]

The ultimate question for a reviewing judge on a
Garofoli
application is whether, based on the ITO and any other evidence adduced on the
    review, the authorizing justice
could
have issued the warrant:
Reid
at
    para. 73, citing
Garofoli
, at p. 1452; and
R. v. Araujo
, 2000
    SCC 65, [2000] 2 S.C.R. 992, at para. 51. What matters on a subfacial challenge
    is what the affiant knew, or ought to have known, in applying for the warrant
    the affiants reasonable belief when the affidavit was sworn:
Crevier
at paras 55, 64;
World Bank Group v. Wallace
,
2016 SCC 15,
    [2016] 1 S.C.R. 207, at paras. 119-121. Relevance is determined for this
    limited purpose.

[34]

Applying these principles, in my view the CI handlers notes were
    relevant to the adequacy of the grounds for the affiants belief that the CI
    was reliable. That is, they could reasonably be expected to assist the
    appellant in making his case against issuance of the warrant on the basis that
    the CI was not reliable. The affiant and the CI handler were one and the same,
    and it would be artificial to conclude that the information in the notes he
    made as handler did not inform the ITO that he drafted as affiant. The trial
    judge did not err in requiring the CI handlers notes to be disclosed, subject
    to the requirement to protect informer privilege.

[35]

The situation concerning the CI file is different.

[36]

The affiants belief in the CIs credibility came from his
    personal experience with the CI on prior cases. He stated as follows in paragraph
    8 of the ITO:

Confidential Informant #1 has never provided false or faulty
    information. Confidential Informant #1 has provided information to me in the
    past on several occasions resulting in numerous search warrants being executed
    and the seizures of [redacted] quantities of crack cocaine.

[37]

This made the CIs track record and prior relationship with the
    affiant relevant to the reliability of the CI in this case. Thus, the CI
    handlers notes and documents relating to communication between the affiant and
    the CI about other cases they had worked on should also have been disclosed,
    again, subject to the requirement to protect informer privilege.

[38]

But that was the extent of the disclosure from the CI file that
    was required. The burden was on the accused to establish that the CI file was
    relevant to something at issue in order to obtain additional disclosure from
    the CI file  third party information held by the police. As the Supreme Court
    explained in
World Bank
, at para. 124, requests for the production of
    third party documents are to be treated in the same manner as requests for
    cross-examination:

[W]here an accused
    asserts that third party documents are relevant to a
Garofoli
application, he or she must show a reasonable likelihood that the records
    sought will be of probative value to the issues on the application. The fact
    that the documents may show errors or omissions in the affidavit will not be
    sufficient to undermine the authorization. They must also support an inference
    that the affiant knew or ought to have known of the errors or omissions. If the
    documents sought for production are incapable of supporting such an inference,
    they will be irrelevant on a
Garofoli
application (
Pires
, at
    para. 41).

This approach reflects the nature and limited purpose
    of a
Garofoli
hearing. It also reflects the courts concern with
    ensuring that sweeping disclosure requests do not result in inordinate
    pre-trial delay:
World Bank
,

at para. 130.

[39]

Defence counsels argument that the entire CI file should be
    disclosed was speculative  it was simply a bald challenge to the existence of
    the CI and his or her track record. It was, in short, the very sort of fishing
    expedition that must be discouraged. The CI handlers notes and documents
    relating to communication between the affiant and the CI about other cases they
    had worked on should have been disclosed, subject to informer privilege, but
    there was no basis for ordering disclosure of the entire CI file.

[40]

In summary, the trial judge properly ordered disclosure of the CI
    handlers notes, but erred in ordering production of the entire CI file. What
    follows from this?

[41]

The Crowns decision to concede that paragraph 8 should be
    excised from the ITO appears to have been based on the entirety of the trial
    judges initial disclosure order, rather than simply the requirement that the
    CI file be disclosed. That being so, it is appropriate to treat the Crowns
    concession as unaffected by the trial judges error in requiring disclosure of
    the entire CI file. The Crown did not want any of the material subject to the
    trial judges order to be disclosed and would have conceded that paragraph 8
    should be excised from the ITO in any event.

[42]

Once paragraph 8 was excised from the ITO, the appellants
    concerns about the reliability of the CI were rendered moot. Disclosure was no
    longer relevant to anything at issue. Not only was the appellants disclosure
    request moot, but the excision of paragraph 8 from the ITO led the trial judge
    to conclude that s. 8 was violated. This was all that the appellant could have
    hoped to achieve in challenging the issuance of the warrant.

[43]

For these reasons, I would not give effect to this ground of
    appeal.

(2)

Did the trial judge err in
    refusing leave to cross-examine the affiant?

[44]

The appellant submits that cross-examination should have been
    permitted in the following areas:

(i)

the affiants use of the telewarrant procedure;

(ii)

the affiants omission of whether the CI had a
    criminal record;

(iii)

the affiants omissions concerning the
    appellants criminal record;

(iv)

the affiants omission of the different address
    on the appellants vehicle registration; and

(v)

the affiants failure to conduct surveillance to
    corroborate the CIs tip.

[45]

The appellant submits that there was a
    reasonable likelihood that cross-examination would have assisted in determining
    both the facial and sub-facial validity of the search warrant, as well as the admissibility
    of the evidence under s. 24(2).

[46]

I would reject this ground of appeal.

[47]

The narrow issue on a
Garofoli
application is whether
    there was a basis on which the authorizing judge could have issued the warrant.
    As the Supreme Court explained in
R. v. Pires; R. v. Lising
, 2005 SCC
    66, [2005] 3 S.C.R. 343, at para. 41:

[C]ross-examination that can do no more than show that some of
    the information relied upon by the affiant is false is not likely to be useful
    unless it can also support the inference that the affiant knew or ought to have
    known that it was false.

[48]

The Supreme Court emphasized the narrowness of the test for
    cross-examination in
World Bank
, at para. 132, in which the Court linked
    the test for cross-examination to third party disclosure applications.

[49]

It is well established that cross-examination is a matter for the
    exercise of the trial judges discretion, and the trial judges decision is
    entitled to deference:
R. v. Green
, 2015 ONCA 579, 337 O.A.C. 72, at
    para. 52. There is no right to cross-examine the affiant on an ITO, as the
    appellant asserts. As the Supreme Court explained in
R. v. Pires; R. v.
    Lising
at paras. 33-36, there are two countervailing interests that must be
    considered: the concern over the prolixity of proceedings and the need to
    protect informants. The need to protect the identity of the CI is a central
    concern in deciding whether to permit cross-examination, given the real risk of
    disclosure that attends cross-examination.

[50]

It was the appellants burden to satisfy the trial judge that
    cross-examination would assist in determining whether there was any basis on
    which the warrant could have been issued:
Green
,

at para. 34. He
    failed to do so, and there is no basis to interfere with the trial judges
    decision on appeal.

[51]

Even if the appellant had satisfied the narrow test for
    cross-examination, the trial judges conclusion that s. 8 was violated renders
    the appellants request for leave to cross-examine the affiant moot. All that the
    appellant could have hoped to achieve in cross-examining the affiant  the
    undermining of the ITO  was achieved.

[52]

The appellant argues that he should have been granted leave to
    cross-examine the affiant not only to challenge the warrant, but also in order
    to establish police misconduct, which was relevant to his argument that the evidence
    should have been excluded under s. 24(2).

[53]

However, as Doherty J.A. explained in
Green
, at para. 41, factors
    relevant to the s. 24(2) analysis cannot, on their own, justify cross-examining
    the affiant on a
Garofoli
application:

Expanding the ambit of cross-examination of the affiant to
    encompass issues relevant to s. 24(2) when there is no basis to permit
    cross-examination on the validity of the warrant itself, is in reality an
    attempt to justify cross-examination for one purpose  to establish grounds to
    exclude under s. 24(2)  in the hope that the cross-examination will uncover a
    basis upon which to attack the validity of the warrant, demonstrate a breach of
    s. 8, and thereby make s. 24(2) relevant. This approach seems to put the
    proverbial cart before the horse.

[54]

The trial judge considered the appellants concerns about the ITO
    to be relatively trivial or peripheral and found that the police acted in
    good faith. He found there was no evidence of police impropriety  no basis on
    which to impugn the conduct of the affiant in seeking the warrant, and as a
    result no basis to permit cross-examination. In these circumstances, there is
    nothing more than speculation that cross-examination would have mattered on a
    s. 24(2) argument. The trial judge did not err in refusing the appellant leave
    to cross-examine the affiant.

(3)

Did the trial judge err by failing to exclude the firearm under s. 24(2)
    of the
Charter
?

[55]

The appellant submits that the trial judge erred in admitting the
    evidence under s. 24(2) in three different ways. First, the trial judge
    misapprehended the appellants position, wrongly finding that he did not seek
    disclosure for purposes of establishing that the police acted in bad faith by
    fabricating and/or exaggerating the contents of the affidavit. Second, the
    trial judge erred in finding that the search was not intrusive and extensive.
    Third, the trial judge erred in considering the search incident to arrest
    separately from the search of the appellants residence, where he had a much
    higher expectation of privacy.

[56]

This submission must be rejected.

[57]

The exclusion of evidence is governed by s. 24(2) of the
Charter
,
    which directs that evidence obtained in a manner that infringes a right
    guaranteed by the

Charter
,
    shall be excluded if it is established that, having regard to all the
    circumstances, the admission of it in the proceedings would bring the administration
    of justice into disrepute.

[58]

The law governing the exclusion of evidence was set out by the
    Supreme Court in
R. v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353, at para.
    71. The court is required to consider:

(1)

the
    seriousness of the
Charter
-infringing state conduct;

(2)

the
    impact of the breach on the
Charter
-protected interests of the accused;
    and

(3)

societys
    interest in the adjudication of the case on its merits.

[59]

The
Grant
test was recently elaborated on by this court in
R. v. Ansari
, 2015 ONCA 575, 337 O.A.C. 207, at paras. 66-72 and
R.
    v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 60-64. The key
    point for present purposes is that the decision of the trial judge is entitled
    to deference on appeal. There is no basis for this court to intervene unless
    the trial judge made an error in principle, a palpable and overriding factual
    error, or an unreasonable determination.

[60]

The trial judge reviewed the requirements in
Grant
, as applied
    by this courts decision in
Blake
. In brief reasons, he found on the
    first branch of the test that there was no evidence of police impropriety and
    that the police acted in good faith in applying for the warrant. On the second
    branch, the trial judge found that the breach of the appellants rights was
    very serious, given that his home was searched. On the third branch, the trial
    judge found, as in
Blake
, that the exclusion of reliable evidence in
    these circumstances would have a negative impact on the administration of
    justice.

[61]

The trial judge does appear to have misstated the appellants
    position on the first branch of the test. He appears to have assumed that the
    defence did not attempt to establish police misconduct because it would have
    caused the Crown to change its position and argue its defence of reliability in
    the ITO, rather than abandoning it. But this error is of no consequence. The
    trial judge found no evidence of police impropriety, and found, specifically,
    that the police acted in good faith in obtaining the warrant. Accordingly, the
    first branch of the test pointed towards admission of the evidence.

[62]

On the second branch of the
Grant
test, there was no
    evidence as to the nature of the search conducted by the police  no evidence
    that it was in any way abusive. In any event, there can be no complaint that the
    trial judge did not take the s. 8 breach seriously. The trial judge properly characterized
    the breach of the s. 8 right as very serious, because it involved a search of
    the appellants residence. This branch of the test pointed towards exclusion.

[63]

On the third branch of
Grant
test, the trial judge considered
    that societys interests in an adjudication on the merits was undercut when
    relevant and important evidence is excluded, although he recognized that the
    seriousness of the charge cuts both ways. The third branch of the test pointed
    towards admission of the evidence.

[64]

The trial judges discretionary decision not to exclude the
    evidence is entitled to deference. I see no basis for this court to interfere
    with it. The police were found to have acted in good faith in obtaining the
    warrant. There was no evidence of impropriety. The evidence  a handgun in a
    coat worn by the appellant, found in the closet of his apartment  was both
    reliable and crucial, and I agree that its exclusion would have brought the
    administration of justice into disrepute.

CONCLUSION

[65]

I would dismiss the appeal.

Released: October 13, 2017 (D.D.)

Grant Huscroft J.A.

I agree. Doherty J.A.

I agree. B.W. Miller J.A.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (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. C.R.A., 2017 ONCA 826

DATE: 20171030

DOCKET: M48353 (C63952)

Feldman J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

C.R.A.

Appellant (Applicant)

Ms. Gerri Wiebe, for the appellant

Ms. Rebecca Schwartz, for the respondent

Heard: October 18, 2017

REASONS FOR DECISION

A.

INTRODUCTION

[1]

The

appellant

seeks

bail

pending

appeal following his fourth conviction for sexual
    assault. He received a sentence of four years. The Crown opposes on the basis
    that his detention is necessary in the public interest and the grounds of
    appeal are frivolous.

B.

Section 679(3) of the Criminal Code

[2]

Section 679(3) of the
Criminal Code
sets out the circumstances
    where an appellant may be released and provides that:

(3) In the case of an appeal referred to in paragraph (1)(a) or
    (c), the judge of the court of appeal may order that the appellant be released
    pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for
    leave to appeal is not frivolous;

(b) he will surrender himself into
    custody in accordance with the terms of the order; and

(c) his detention is not necessary
    in the public interest.

[3]

The applicant seeking bail pending appeal bears the
    burden of establishing that each criterion is met on a balance of probabilities:
    see
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

C.

The strength of the grounds of appeal

[4]

The Crowns
    case turned on the credibility and reliability of the complainant. She was at a
    friends place with a number of other friends following a wedding reception.
    She awoke to find the appellant having intercourse with her. She immediately
    screamed for him to stop. DNA testing of her clothes determined that his semen
    was on her underwear. The appellant did not testify.

[5]

The sole issue
    at trial was consent. The complainants story contained a number of
    inconsistencies. Other witnesses who were present testified regarding
    utterances of both the complainant and of the appellant, including when he said
    that he hadnt done anything.

[6]

At trial, the
    defence argued in detail that the inconsistencies in the complainants evidence
    did not allow the court to be satisfied of the truth of her story beyond a
    reasonable doubt, and that the defence evidence did raise a reasonable doubt,
    applying the principles of
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[7]

The trial judge
    rejected all of these arguments. He addressed each inconsistency in detail and explained
    why he believed and accepted the evidence of the complainant. He also applied
W.(D.)
and took into account all the evidence that
    favoured the appellant.

[8]

The reasons
    spanned almost 38 pages and are detailed and thorough. Great deference is owed
    by this court to the findings of a trial judge, particularly on issues of which
    witnesses are believed and the weight to be given to the evidence presented. In
    my view, therefore, the grounds of appeal appear to be very weak.

D.

the public interest

[9]

The Crown
    opposes bail on the basis of the public interest (
Criminal
    Code
, s. 679(3)(c)), arguing that
    the appeal is without merit and pointing to the appellants three prior
    convictions for sexual assault, the serious nature of the offence and the
    lengthy penitentiary term imposed.

[10]

The Crown
    acknowledges that the appellant has been on pre-trial bail for a lengthy
    period.
However, a
t 36 years old, this is his fourth conviction for a
    sexual assault of an adult female whom he knew. Further, on sentencing, a
    psychological report suggested that his risk to reoffend in a sexual way was
    above average without treatment. In the presentence report, the appellant indicated
    that he was not interested in community supervision and would rather serve
    additional time in custody, although he apparently provided some context for
    this comment to the trial judge, explaining that the reporting requirements
    were onerous.

[11]

In considering
    the
balancing
between enforceability and reviewability, there is
    no precise formula and the required assessment is qualitative and contextual
    (see
Oland
,
    at para. 49).

[12]

At para. 50 of
Oland
, the Supreme Court stated that, where the applicant
    has been convicted of murder or some other very serious crime, the public
    interest in enforceability will be high and will often outweigh the
    reviewability interest, particularly where there are lingering public safety or
    flight concerns and/or the grounds of appeal appear to be weak.

[13]

In my view, in
    light of the weakness of the
grounds
of
    appeal, the seriousness of the offence, the significant sentence, and the
    available evidence regarding risk to reoffend, the appellant has not met his
    onus to show that his detention is not necessary in the public interest (
see
Oland
, at para. 19
).

E.

result

[14]

The application
    for release pending appeal is dismissed.

K. Feldman J.A.