COURT OF APPEAL FOR ONTARIO

CITATION: Papp v. Papp, 2018 ONCA 1039

DATE: 20181213

DOCKET: C65762

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

John T. Papp

Respondent (Applicant)

and

Catherine Papp, named Trustee and Beneficiary of
    the Estate of Margaret Papp and Elizabeth Papp

Appellant (Respondents)

M. El Rashidy, for the appellant

Owen Thomas, for the respondent

Heard: December 13, 2018

On appeal from the order of Justice T. Carey of the Superior
    Court of Justice, dated July 24, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The respondent consents to the appeal. We agree. The order of Carey J.
    dated July 24, 2018 was made without jurisdiction. An order under rule 31.10
    cannot be made without a proceeding having been undertaken in Ontario. The
    respondent undertakes not to enforce the order of Bondy J. dated July 17, 2018.

[2]

The order of Carey J. is therefore set aside.

[3]

As to costs, the respondent agrees that the appellant is entitled to
    costs of the appeal and of the proceedings below. For those, costs to the
    appellant fixed in the amount of $5,000 inclusive of disbursements and
    applicable taxes. This is in addition to the costs awarded by Trotter J.A. in
    the amount of $4,000 that have not been paid.


COURT OF APPEAL FOR ONTARIO

CITATION: Paulus v. Fleury, 2018 ONCA 1072

DATE: 20181221

DOCKET: C65082

Feldman, Pardu and
    Roberts JJ.A.

BETWEEN

Bassman Paulus, Basma
    Paulus, and Rita Paulus and Ayad Paulus
both minors by their Litigation Guardian, Bassman Paulus

Plaintiffs (Appellants)

and

Michael W. Fleury

Defendant (Respondent)

Raymond Colautti, for the appellants

Vanda Santini and Alicia Tymec, for the respondent

Heard: October 15, 2018

On appeal from the
    order of Justice Thomas A. Heeney of the Superior Court of Justice, dated February
    20, 2018, with reasons reported at 2018 ONSC 1188.

Pardu
    J.A.:

A.

BACKGROUND

[1]

The plaintiffs appeal from the refusal of the
    motion judge to enforce a settlement reached at a pretrial conference in their
    action for damages resulting from a car accident. In the course of that
    conference, their counsel made submissions indicating that he had independent
    witnesses to the collision that had resulted in injury to his clients. He
    described the witnesses as good people  independent  solid  good witnesses.
    The defendants counsel agreed to settle the claim for $850,000. Immediately
    after the pretrial, the defendants counsel got a call from his own
    investigator indicating that tax, mortgage and insurance records revealed that
    it was likely that the witnesses son lived across the street from the plaintiffs.
    Defendants counsel wrote to the plaintiffs counsel the next day to repudiate
    the settlement.

B.

MOTION JUDGES FINDINGS

[2]

The plaintiffs argued before the motion judge
    that when their counsel described the witnesses as independent, he meant to
    indicate that they could give evidence extrinsic to that of the plaintiffs. The
    witnesses were in a separate car in a separate lane. Counsel said he did not
    mean to suggest that the witnesses did not know the plaintiffs. This
    interpretation of independent was arguably supported by appellate authority:
Pepe
    v. State Farm Mutual Automobile Insurance Co.
, 2011 ONCA 341, 105 O.R.
    (3d) 794. The motion judge rejected this interpretation, concluding that
    counsel had given the impression that the witnesses were neutral witnesses,
    who had no connection to anyone involved in the case, and therefore had no
    reason to favour either side with their evidence, and would be credible and
    reliable witnesses at trial.

[3]

He found that counsel for the plaintiffs
    statement that the witnesses were independent  solid  good was untrue. He
    found that this was untrue because the witnesses contacted one of the plaintiffs,
    Mr. Paulus, at his office to tell him they had witnessed the accident, because Mr.
    Paulus provided his own counsel with the witnesses contact information and
    because plaintiffs counsel knew his client was acquainted with the witnesses
    in some undefined way. The motion judge also relied on information not known to
    the plaintiffs counsel at the time of the pretrial to corroborate his finding
    that the statement was false.
[1]

[4]

The motion judge found that plaintiffs counsel
    knew the statement was untrue or was reckless as to its truth. He drew this
    conclusion because, at the time of the pretrial, plaintiffs counsel knew that
    it was Mr. Paulus who had provided him with the names, address and contact information
    for the witnesses, knew that his clients and the witnesses were somehow
    acquainted with one another, and knew the witnesses had difficulty
    communicating in English.

[5]

He also held that counsel had a duty to opposing
    counsel not to knowingly make misleading statements. He characterized counsels
    statement about the characteristics of the witnesses as a statement of fact,
    not opinion.

[6]

The motion judge concluded that the plaintiffs
    counsels statement amounted to civil fraud and that the defendant was induced
    to settle the case as a result of the false representation. He accordingly
    refused to enforce the settlement.

[7]

The plaintiffs appeal from this decision and ask
    that the settlement be enforced. For the reasons that follow, I would allow the
    appeal and enforce the settlement.

C.

ANALYSIS

(1)

The test for civil fraud

[8]

As the defendants allegation of civil fraud was
    central to the motion judges decision, I begin by noting that courts have used
    the same test for civil fraud as they have for the torts of deceit and
    fraudulent misrepresentation: see e.g.
Deposit Insurance Corp. of Ontario
    v. Malette
, 2014 ONSC 2845, at para. 19;
Amertek Inc. (Executor and
    Trustee) v. Canadian Commercial Corp.
(2005), 76 O.R. (3d) 241 (C.A.), at
    para. 63, leave to appeal refused, [2005] S.C.C.A. No. 439; and
Midland
    Resources Holding Limited v. Shtaif
, 2017 ONCA 320, 135 O.R. (3d) 481, at
    para. 162, leave to appeal refused, [2017] S.C.C.A. No. 246.

[9]

For the purposes of this appeal, I adopt Brown
    J.A.s articulation of this test in
Midland Resources Holding Ltd.
, at
    para. 162. The five elements of the test are as follows:

(i) a false representation of fact by the defendant to the
    plaintiff; (ii) knowledge the representation was false, absence of belief in
    its truth, or recklessness as to its truth; (iii) an intention the plaintiff
    act in reliance on the representation; (iv) the plaintiff acts on the
    representation; and (v) the plaintiff suffers a loss in doing so. [Citations omitted.]

[10]

Here the statement by counsel was an opinion,
    not a statement of fact, counsel did not have the mental state or intention
    required for civil fraud in the context of submissions made by counsel before a
    judge and the defendants lack of due diligence barred it from setting aside
    the settlement on the ground of fraud. I turn then to consider each of these
    issues.

(2)

The proper approach to civil fraud in the context of submissions by
    counsel

[11]

The motion judge did not have the benefit of
Groia
    v. Law Society of Upper Canada
, 2018 SCC 27, 34 Admin. L.R. (6th) 183, released
    after his decision.
Groia
is relevant here because of its discussion
    of a lawyers duty of resolute advocacy on behalf of a client. That duty is
    relevant to an assessment of whether submissions by counsel  amount to civil
    fraud.

[12]

Groia
dealt
    with the balancing that must occur in deciding whether a lawyers mistaken
    allegations of misconduct on the part of opposing counsel amount to
    professional misconduct and whether it is a matter for discipline by a law
    society. The fact that a lawyer is mistaken is not a basis in itself for a
    finding of misconduct. Where counsel challenges opposing counsels integrity,
    that challenge does not amount to professional misconduct if the allegations
    are reasonably based and made in good faith, even if counsel is mistaken:

[7] That said, the Appeal Panels finding of
    professional misconduct against Mr. Groia on the basis of incivility was, in my
    respectful view, unreasonable. Even though the Appeal Panel accepted that Mr.
    Groias allegations of prosecutorial misconduct were made in good faith, it
    used his honest but erroneous views as to the disclosure and admissibility of
    documents to conclude that his allegations lacked a reasonable basis. However,
    as I will explain, Mr. Groias allegations were made in good faith and they
    were reasonably based. As such, the allegations themselves could not reasonably
    support a finding of professional misconduct.

[13]

The assessment of whether uncivil behaviour amounts
    to professional misconduct is fundamentally contextual and fact specific:
Groia
,
    at

para. 79.

[14]

In
Groia
, Moldaver J. for the majority
    held that challenges to opposing counsels integrity must both be made in good
    faith
and
have a reasonable basis: at para. 84.

[15]

He shared the interveners concerns that this could
    result in sanctions for a lawyer expressing sincerely held but mistaken legal
    positions or adopting questionable legal strategies, but held that the impact
    of an accusation of professional misconduct could so severely affect the
    reputation of the recipient of the criticism that it was appropriate to require
    both good faith and a reasonable basis for the allegation. He stated the
    following at para. 86:

Maintaining a reputation for practicing with
    integrity is a lifelong challenge. Once sullied, a lawyers reputation may
    never be fully restored. As such, allegations of prosecutorial misconduct must
    have a reasonable foundation. I agree with the Appeal Panel that anything less
    gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable
    suspicions: para. 235. The consequences for the opposing lawyers reputation
    are simply too severe to require anything less than a reasonable basis for
    allegations impugning his or her integrity.

[16]

Here the context is different. This is not a case
    of professional discipline, however, a finding of civil fraud is a matter that could
    have devastating consequences for a lawyers reputation. The potential for such
    a finding could have a chilling effect on counsels willingness to advocate
    resolutely for his or her client. Statements or submissions made by counsel do
    not amount to civil fraud if either there is a reasonable basis for them,
or
if counsel is not knowingly misleading the court, i.e. is acting in good faith.
    This conclusion plays a necessary role in ensuring that counsel is able to
    fulfill the duty of resolute advocacy that he or she owes to his or her
    clients.

[17]

There can be no doubt that the plaintiffs trial
    counsel owed his clients this duty of resolute advocacy in advancing their best
    interests, whether at a trial or a pretrial conference. The importance of this
    duty was highlighted in
Groia
, at paras. 72 and 73:

The importance of resolute advocacy cannot be understated. It
    is a vital ingredient in our adversarial justice system  a system premised on
    the idea that forceful partisan advocacy facilitates truth-seeking: see e.g.
Phillips
    v. Ford Motor Co.
(1971), 18 D.L.R. (3d) 641, at p. 661. Moreover, resolute
    advocacy is a key component of the lawyers commitment to the clients cause, a
    principle of fundamental justice under
s. 7
of the
Canadian
    Charter of Rights and Freedoms
:
Canada
    (Attorney General) v. Federation of Law Societies of Canada
, 2015 SCC 7,
    [2015] 1 S.C.R. 401, at paras. 83-84.

Resolute advocacy requires lawyers
    to raise fearlessly every issue, advance every argument and ask every
    question, however distasteful, that the lawyer thinks will help the clients
    case: Federation of Law Societies of Canada,
Model Code of Professional
    Conduct
(online), r. 5.1-1 commentary 1. This is no small order. Lawyers
    are regularly called on to make submissions on behalf of their clients that are
    unpopular and at times uncomfortable. These submissions can be met with harsh
    criticism  from the public, the bar, and even the court. Lawyers must stand
    resolute in the face of this adversity by continuing to advocate on their
    clients behalf, despite popular opinion to the contrary.

[18]

The corollary of this duty is that counsel owes
    no such duty to the opposing party:
Biron v. Aviva Insurance Company
,
    2014 ONCA 558, at para. 6.

[19]

The duty of resolute advocacy has limits. As r.
    5.1-2(e) of the Law Society of Ontarios
Rules of Professional Conduct
indicates,
    when a lawyer is acting as an advocate, he or she shall not
knowingly
attempt to deceive a tribunal or influence the
    course of justice by offering false evidence, misstating facts or law,
    presenting or relying upon a false or deceptive affidavit, suppressing what
    ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal
    conduct (emphasis added). Advocates should not use tactics that are dishonest,
    including in their interactions with opposing counsel, or engage in any
    conduct calculated to induce the court to act under a misapprehension of the
    facts: Advocates Society,
Principles of Professionalism for Advocates
(2009),
    at p. 6; and Advocates Society,
Principles of Civility for Advocates
(2001), at

p. 11.

[20]

That being said, it is worth bearing in mind
    that in almost every trial, at least one counsels submissions will be rejected
    as unsustainable. By definition, a losing partys counsel will have made
    factual or legal arguments that are rejected by the judge. The notion that
    judicial disagreement with an opinion expressed by counsel in the course of judicial
    proceedings makes that counsel guilty of civil fraud is incompatible with the
    duty of counsel to advocate on behalf of his or her client.

[21]

In a personal injury trial one counsel may
    submit that the evidence shows the plaintiff has made a full recovery. The
    opposing counsel may submit that the evidence shows that the plaintiff will
    suffer lifetime impairments. Neither counsel is required to have a personal
    belief in the submission made.

[22]

Here plaintiffs counsels statement did not
    amount to civil fraud. There was a reasonable basis for his statement, and the
    statement was made in good faith.

(a)

Reasonable basis

[23]

The statements by counsel were expressions of
    opinion for which there was a reasonable basis, given counsels knowledge at
    the time of the pretrial. There was no familial relationship between the plaintiffs
    and the witnesses. Although the plaintiffs counsel knew that the witnesses
    were acquainted with the plaintiffs, the nature of their acquaintance was
    unknown. Neither was an employee of the other. The witnesses were in their own
    car adjacent to the accident scene. They had nothing to gain from the trial of
    the accident claim. That they had difficulty expressing themselves in English
    did not mean they were not good people nor that they would make poor witnesses
    if translation was provided. There is no indication of any criminal record that
    might undermine their credibility or any other history of dishonesty. That they
    refused to speak to the defendants counsel, as was their right, did not
    undermine their credibility. The fact that the plaintiffs gave the witnesses
    contact information to their counsel does not mean the witnesses were biased.

[24]

The plaintiffs counsels description of the
    witnesses was a legitimate exercise of advocacy. No complaint could have been
    made if counsel had provided a jury with the same observations concerning the
    quality of the witnesses in issue. Opinions as to whether someone is a good or
    independent witness are as open to debate and disagreement as opinions as to
    whether someone is a good lawyer. The degree of acquaintance may range from
    intimate to non-existent, with innumerable variations between those extremes.
    The point at which the degree of acquaintance renders a witness not
    independent or biased may be open to debate and may differ in different
    settings. In some communities where jurors are tested for impartiality, for example,
    the fact that a juror may have gone to the same high school as an accused may
    be a matter of indifference; in others it may result in disqualification of the
    juror.

[25]

Even if mistaken, the expression of this opinion
    did not amount to civil fraud. As noted at para. 91 of
Groia
,

[
I]nquiring into the
    legal merit of a lawyers position to conclude that his or her allegations lack
    a reasonable basis would discourage lawyers from raising well-founded
    allegations, impairing the lawyers duty of resolute advocacy.

[26]

The motion judge ultimately had a different view
    as to whether the witnesses could be described as independent. However, a
    contrary opinion expressed in submissions by counsel does not make that counsel
    guilty of civil fraud where there is a reasonable basis for that opinion.

[27]

Furthermore, the motion judge erred in relying on information that
    came to light after the pretrial conference and that was unknown to plaintiffs
    counsel at the time his statements were made to assess whether those statements
    were false, i.e. lacked any reasonable basis. The motion judge was also wrong
    to infer that the plaintiffs counsel knowingly made a false statement because
    he knew of the matters highlighted in paragraph 4 above. The fact that he knew
    about those matters does not mean that he was knowingly making a false
    statement and not acting in good faith.

(b)

Good faith

[28]

There is also no basis to conclude that plaintiffs
    counsel did not sincerely and in good faith describe the witnesses in the
    manner he did. For example, counsels portrayal of the witnesses as independent
    was consistent with a statement that he made in a letter months before the
    November 22, 2016 pretrial. In that letter, dated July 25, 2016, counsel
    described the witnesses as independent to his own clients:

Mr and Mrs Eftimovs evidence will be very
    important because they are independent witnesses with no stake in the outcome
    of your trial. That kind of testimony is important and helpful in a jury trial.
    I want to look them over and listen to their story so I can be sure of their
    reliability.

[29]

Mistakes by lawyers are not an infrequent
    occurrence. Counsel may lose credibility with the court and their colleagues if
    they are not scrupulously careful about factual assertions, or if they advance
    arguments with no reasonable foundation, but these should not amount to civil
    fraud in this context unless there is neither a reasonable basis for the
    statements nor a good faith belief in their accuracy. Arguments that might
    amount to an enormous stretch may later seem quite reasonable.

[30]

This is not to say that there may not be some
    circumstances where a factual misrepresentation by counsel in judicial
    proceedings amounts to deceit or civil fraud. For example, counsel who tendered
    as evidence a forged cheque evidencing payment of a debt in an action on that
    debt, and who knew the cheque was a false document, could be liable for deceit.
    In those circumstances there would be no reasonable basis for the factual
    assertion; nor could it be said that the statement was made in good faith.

(3)

Reliance

[31]

Further, it would be unreasonable to conclude
    that plaintiffs counsel intended opposing counsel to rely on his submission.

[32]

The intention that the opposing party rely on
    the representation is an essential element of civil fraud which is absent here.
    In
The Law of Torts
, 5th ed. (Toronto: Irwin Law, 2015), at p. 333, Philip
    Osborne explains the policy rationale behind the intent requirement when
    discussing the tort of deceit:

The defendant must intend that the plaintiff will rely on the
    fraudulent misrepresentation and the plaintiff must in fact rely on it. The
    requirement that the defendant intends that the plaintiff will rely on the
    misrepresentation addresses the problem of potentially indeterminate liability
    in deceit. [Footnotes omitted.]

[33]

Given the adversarial context and the nature of
    the impugned statements, it would be unreasonable to conclude in this case that
    plaintiffs counsel intended that opposing counsel rely on his submissions as
    to the qualities of the witnesses in deciding whether to settle the action.
    This is not to foreclose the possibility that there may be other circumstances
    where reliance by counsel upon a factual assertion by opposing counsel would be
    reasonable.

(4)

The defendants conduct

[34]

The accident occurred in 2008. The plaintiffs
    counsel had disclosed the witness statement in an affidavit of documents and
    had provided a copy of the statement to defendants counsel. Defendants
    counsel asked no questions about the witnesses at discovery. Defendants
    counsel knew the witnesses refused to speak to him. Four days before the
    pretrial in 2016, defendants counsel had concerns about the witnesses
    credibility and sent an investigator out to explore what connections the
    witnesses might have had with the plaintiffs. Despite these concerns, and
    without waiting for the report from the investigator just retained, the
    defendants counsel and the adjuster elected to settle the case.

[35]

This case is analogous to
International
    Corona Resources Ltd. v. LAC Minerals Ltd.
(1988), 66 O.R. (2d) 610 (H.C.).
    In that case, a losing party attempted to set aside a judgment on account of
    fraud. It alleged that a witness had intentionally perjured himself and
    intentionally misled the court. Osborne J. noted that the issues raised on the
    motion were left twisting in the wind as a result of decisions, perhaps
    strategic and tactical, by counsel as to how counsel would conduct
    cross-examination at trial. Osborne J. observed at pp. 622-23 that a losing
    party who seeks to set aside a judgment on account of fraud must establish due
    diligence on his or her own part, and that the questions to be asked are what
    did the moving party know, and what ought the moving party to have known.

[36]

This pretrial occurred some eight years after
    the accident. It cannot be said that the defendants counsel acted with due
    diligence in investigating or asking any questions about any link between the
    plaintiffs and the witnesses. In the absence of such due diligence, the need
    for finality in legal proceedings favours enforcing the settlement. The motion
    judge erred in concluding that any need for due diligence on the part of the
    defendants came to an end as a result of the submission made on behalf of the
    plaintiffs about the qualities of the witnesses.

D.

CONCLUSION

[37]

I would set aside the order of the motion judge dated
    February 20, 2018 and substitute judgment in favour of the plaintiffs in the
    sum of $850,000 plus post-judgment interest from November 22, 2016.

[38]

I would set aside the costs award in the sum of
    $100,000 granted in favour of the defendants on the motion below and award that
    amount to the plaintiffs for the motion below.

[39]

I would award costs of the appeal to the plaintiffs
    in the agreed upon amount of $30,000 inclusive of disbursements and HST.

G. Pardu J.A.

I agree K Feldman
    J.A.

I agree L.B. Roberts
    J.A.

Released: December 21, 2018

KF

[1]

For example, plaintiffs counsel only learned after the
    pretrial that one of the plaintiffs, who was in the business of preparing tax
    returns, had prepared tax returns for the witnesses at some time in the past.
    (motion judges reasons, para. 48) There was no finding that at the time of the
    pretrial, plaintiffs counsel knew that the witnesses son lived across the
    street from the plaintiffs.


COURT OF APPEAL FOR ONTARIO

CITATION: Persaud (Re), 2018 ONCA 1080

DATE: 20181227

DOCKET: C65420

Juriansz, Benotto and Trotter JJ.A.

IN THE MATTER OF:  Baseo V. Persaud

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Emma Haydon, for the respondent

Heard: December 21, 2018

On appeal against the disposition of the Ontario Review
    Board dated, April 16, 2018.

REASONS FOR DECISION

[1]

The appellant came under the jurisdiction of the Board in January, 2008
    when he was found not criminally responsible by reason of a mental disorder on
    charges of attempted murder, aggravated assault, assault, and to charges of
    assault with a weapon. He had attacked and injured his mother with a knife and
    assaulted his father. He was diagnosed with a delusional disorder (persecutory
    type) and alcohol use disorder. He was declared incapable of consenting to
    treatment and his brother became and has remained his Substitute Decision-Maker.

[2]

Though he has never acknowledged he has a mental illness and continues
    to question his need for psychotropic medication, he has been compliant with
    its administration and progressed to the point where he was successfully living
    in the community on a conditional detention order with the condition that he
    abstain from alcohol.

[3]

On his last annual review in April, 2018 he was placed on a detention
    order, the alcohol prohibition condition was removed, then the person in charge
    was authorized to permit him to enter the community, or to live in the
    community.

[4]

The Boards rationale for making him subject to a detention order was to
    allow the hospital to formulate a Community Treatment Plan for him to provide
    the appropriate structure to allow him to show he can drink responsibly with a
    view to allowing him to move into the civil mental health system on an absolute
    discharge in the future.

[5]

In seeking the detention order, the hospital did not bring the appellant
    into detention, but continued to allow him to reside in the community without
    the alcohol prohibition condition.

[6]

The appellant sees the current disposition as more restrictive than his
    previous conditional discharge disposition. He says the Board is not entitled
    to take a step backwards to facilitate the possibility that he would move two
    steps forward in the future. He submits the Boards objectives could have been
    achieved by maintaining him on a conditional discharge but removing the alcohol
    prohibition clause. He further submits that, even on a conditional discharge,
    he would be eligible for a Community Treatment Order as he met the definition
    of patient under the
Mental Health Act
.

[7]

There is no issue that the appellant remains a significant risk to the
    safety of the public. His index offences was serious and violent, his mental
    disorder persists, he cannot consent to treatment, he continues to believe his
    antipsychotic medication does not offer him any benefit, and the effect of
    alcohol on the risk of noncompliance with his medications is a serious concern.

[8]

We accept that the nature of a detention order is more restrictive than
    that of a conditional discharge. The impact of such a designation has the
    potential to negatively affect future dispositions. Here, while the Board
    recognized the appellant might regard the disposition including the detention
    order as more restrictive, it explained that the detention order was actually
    less restrictive when considered with the privileges and prohibitions included.
    The Board explained:

As submitted by Dr. Morgan, the current recommendation of the
    treatment team has the potential to put Mr. Persaud in a position where an
    absolute discharge may be feasible for the following year. Put simply, Mr.
    Persaud has made it clear that he wants to drink alcohol and that his abstinence
    is the result of the current prohibition. There is also evidence that Mr.
    Persaud is not likely to remain adherent with treatment absent a high degree of
    oversight and some authority requiring him to do so. If Mr. Persaud is able to
    drink in a controlled and measured way that will not significantly heighten his
    risk to the public, and if a CTO can be implemented to ensure his ongoing
    psychiatric follow-up and adherence to medication, it may be that the factors
    that contribute to making him a significant risk can be adequately and
    appropriately managed outside of a Review Board disposition.

[9]

The Board was entitled to conclude that the appellants current
    abstinence is a result of the alcohol prohibition condition. The Board could
    accept the treating doctors concern that without the alcohol prohibition
    condition the appellant was not likely to remain adherent with his treatment
    without a high degree of oversight and some authority requiring him to do so.
    The appellants ability to drink alcohol and the effect of his drinking alcohol
    had to be assessed in a controlled and measured way to ensure it did not
    significantly heighten his risk to the public. Making the appellant subject to
    a detention order achieved the dual purpose of allowing the implementation of a
    Community Treatment Order and ensuring  the appellant could be swiftly and
    certainly returned to the hospital should that prove necessary.

[10]

The
    Board must exercise extreme caution in considering a detention order as the
    least restrictive disposition. Cases where that is so will be extremely rare.
    However, on the particular facts of this case the Board was entitled to do so.
    Viewing the Boards disposition as a whole and in the context of its reasons,
    we are not persuaded the disposition is unreasonable or not supported by the
    evidence.

[11]

The
    appeal is dismissed.

R.G. Juriansz J.A.

M.L. Benotto J.A.

G.T. Trotter 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), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anderson, 2018 ONCA 1002

DATE: 20181207

DOCKET: C63297

Sharpe, Hourigan and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Norwayne Anderson

Appellant

Jennifer Penman and Renee Gregor, for the appellant

Amy Alyea, for the respondent

Heard: November 21, 2018

On appeal from the conviction entered on May 27, 2016 by
    Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

(1)

Introduction and background

[1]

The appellant was charged with five counts of sexual assault under s.
    271 of the
Criminal Code
, and one count of sexual exploitation under s.
    153. The jury was unable to reach a verdict on one sexual assault count. The
    appellant was found guilty on the remaining five counts.

[2]

The appellant worked in the modeling industry as an agent. The charges
    arose from his interactions with three male models  J.K., M.K. and J.O.

[3]

The appellant met J.K. (age 16) in 1998. He approached J.K. on the
    subway and asked him if he wanted to model. J.K. attended at the appellants
    home office for a photo shoot. The appellant pulled on the waistband of J.K.s
    underwear to see if he had shaved his pubic hair, as requested for the shoot.
    The incident lasted for five seconds. This was the basis for the conviction on count
    1 (sexual assault).

[4]

The appellant met M.K. (J.K.s younger brother; age 16) in 2000 at
    J.K.s fashion show. The appellant told him that he could be a model. At the
    first photoshoot, the appellant stroked M.K.s penis. This evidence resulted in
    convictions on counts 2 (sexual assault) and 3 (sexual exploitation).

[5]

The appellant met J.O. (age 24) in 2009. During a photo shoot, the
    appellant grabbed J.O.s penis over his underwear and adjusted it (count 4). On
    another occasion, the appellant rubbed J.O.s penis for about 5 minutes (count
    5). Lastly, J.O. stayed at the appellants apartment after a night out. J.O.
    was very intoxicated. He woke to find the appellant standing over him, trying
    to take his pants off. The jury could not reach a verdict on this count (count
    6).

[6]

These incidents were not reported to the police until 2013, even though
    J.K., M.K., and J.O. maintained professional and personal relationships with
    the appellant for many years after the events.

[7]

The appellant testified and denied all of the allegations.

(2)

Grounds of appeal

(a)

Failure to grant severance

[8]

The appellant applied to have the J.O. charges severed from the
    J.K./M.K. charges. There was no similar fact evidence application as it related
    to the evidence of J.K. and M.K. on one hand, and J.O. on the other. The
    appellant argued that the two groups of counts lacked a factual and legal nexus
    and risked cross-pollination and tainting of the evidence. The application
    was dismissed.

[9]

Section 591(3)(a) of the
Criminal Code
grants trial judges a
    broad discretion to sever counts in the interests of justice. The decision attracts
    considerable deference. Appellate interference is only warranted when the
    decision is unjudicial or resulted in an injustice:
R. v. Litchfield
,
    [1993] 4 S.C.R. 333, at pp. 353-354; and
R. v. Last
, 2009 SCC 45,
    [2009] 3 S.C.R. 146, at paras. 14-18.

[10]

As
    this court held in
R. v. A.C.
, 2018 ONCA 333, at para. 24: The
    interests of justice often call for a joint trial as severance has the
    potential to impair both trial efficiency and the truth-seeking function of the
    trial. See also
Last
, at para. 17; and
R. v. Sciascia
, 2017
    SCC 57, [2017] 2 S.C.R. 539, at para. 33. The trial judges ruling on severance
    addresses both concerns, as well as the factors identified by Deschamps J. in
Last
,
    at para. 18:

The factors identified by the courts are not exhaustive. They
    simply help capture how the interests of justice may be served in a particular
    case, avoiding an injustice. Factors courts rightly use include: the general
    prejudice to the accused; the legal and factual nexus between the counts; the
    complexity of the evidence; whether the accused intends to testify on one count
    but not another; the possibility of inconsistent verdicts; the desire to avoid
    a multiplicity of proceedings; the use of similar fact evidence at trial; the
    length of the trial having regard to the evidence to be called; the potential
    prejudice to the accused with respect to the right to be tried within a
    reasonable time; and the existence of antagonistic defences as between co
‑
accused persons.

[11]

The
    trial judge referred to this passage and applied the factors germane to this
    case. She found a factual and legal nexus because, [a]ll of the allegations
    involve allegedly unwanted sexual touching by the accused of the complaints
    [sic] in the context of his role as their modeling agent and in the situation
    of his performing photo shoots of the three complainants. The trial judge was
    not persuaded that the age differences between the K. brothers and J.O.
    undermined the factual nexus. She acknowledged that the timing of the various offences
    was a factor that favoured severance; however, she held, the way these
    offences make their way to police is explained by having the six counts tried
    together. The trial judge concluded that any danger of cross-pollination or
    propensity reasoning could be addressed with cautionary jury instructions.

[12]

The
    trial judges ruling reflects no error. This ground of appeal is dismissed.

(b)

Failure to declare a mistrial

[13]

The
    appellant argues that the trial judge erred in failing to grant a mistrial in
    response to a portion of M.K.s testimony. During cross-examination, M.K. said
    that he had heard from someone at the agency that the appellant had done the
    same thing (i.e., sexual assault) to someone else. This happened late on a
    Friday. Submissions on the issue were made on Monday morning. Defence counsel requested
    a mistrial due to the delay between the testimony and any curative instruction
    that might be given. The trial judge refused to declare a mistrial. After vetting
    her curative instruction with counsel, to which no objection was taken, she warned
    the jury that the evidence was double hearsay and irrelevant. This was at 11:11
    a.m. on Monday morning.

[14]

The
    appellant argues that he was prejudiced by this evidence and that the
    instruction was an insufficient response. He submits that M.K.s testimony was barred
    by a pre-trial ruling preventing the Crown from adducing this type of evidence.

[15]

The
    trial judge did not err in refusing to declare a mistrial. A mistrial is a
    discretionary remedy of last resort. Embedded in the throes of a trial, the
    trial judge is ideally situated to make this assessment. This is another
    instance in which a trial judges exercise of discretion is entitled to deference
    on appeal:
R. v. Khan
, [2001] 3 S.C.R. 823, at para. 36; and
R. v.
    Jeanvenne
, 2010 ONCA 706, at para. 58.

[16]

We
    acknowledge that in her earlier ruling, the trial judge spoke of this type of inadmissible
    evidence in more ominous terms, holding that any prejudice could not be cured by
    an instruction. Nevertheless, the prejudice created by this single piece of
    evidence did not warrant a mistrial. The trial judge acted swiftly when asked
    to do so by defence counsel. She cannot be faulted for failing to act earlier.

[17]

This
    ground of appeal is dismissed.

(c)

The directed verdict application

[18]

The
    appellant argues that the trial judge erred in dismissing his directed verdict application
    on count 1 (sexual assault  J.K.) and count 3 (sexual exploitation  M.K.).

[19]

A
    trial judges directed verdict decision is a question of law which does not
    command appellate deference:
R. v. Barros
, 2011 SCC 51, [2011] 3
    S.C.R. 368, at para. 48. Here, the trial judges conclusions were correct.

[20]

On
    count 1, there was evidence upon which the jury could find that, irrespective
    of whether the appellant was motivated by a sexual purpose, the touching was,
    objectively speaking, sexual in nature. It was conduct capable of violating J.K.s
    sexual integrity:
R. v. Chase
, [1987] 2 S.C.R. 293, at p. 302.

[21]

The
    appellants application for a directed verdict on count 3 was focused on a single
    element of the offence  whether the appellant stood in a position of trust or
    authority towards M.K. The appellants position at trial was that there was no
    professional relationship between the appellant and M.K. at that point in time.
    They had just met. The only factor that pointed to a position of trust or
    authority was the age difference between them (the appellant being 30, M.K. 16).

[22]

The
    trial judge ruled that this element of s. 153 may be satisfied even in the
    absence of a formal legal relationship between an adult and a young person. The
    touching occurred when M.K. was hoping that the appellant would represent him. The
    trial judge concluded that this context, in addition to the age difference,
    provided some evidence sufficient to permit the matter to be left with the
    jury.

[23]

We
    agree with the trial judges analysis. This ground of appeal is dismissed.

(d)

Prior consistent statements

[24]

During
    their testimony, all three complainants made reference to having previously
    told others about being abused by the appellant
before
they went to the
    police in 2013.

[25]

There
    was discussion among the complainants and with third parties. J.K. and M.K.
    discussed their experiences, although in not much detail. M.K. and J.O. had a
    similar discussion after M.K. and J.K. had already reported the matter to the
    police, but before J.O. made a report. J.K. told several of his friends. M.K.
    told a number of people, including his girlfriend, his psychiatrist, and S.S.,
    a partner at the appellants modelling agency. J.O. shared his experience with
    an agent. With the exception of S.S., none of these other people testified at
    trial.

[26]

For
    the most part, the evidence concerning the prior statements involved little
    more than
who
the complainants told and
when
. The Crown at trial
    argued that these statements were admissible as evidence of narrative (in terms
    of how the case came to the attention of the police), and to rebut allegations
    of recent fabrication.

[27]

Counsel
    for the appellant submits that the trial judge misconstrued the recent
    fabrication exception and argues that her instructions to the jury were confusing
    and warrant a new trial.

(i)

Admissibility

[28]

Although
    the statements were presumptively inadmissible, they were receivable under a
    number of exceptions to the rule. They were admissible as part of the narrative
    to explain how the allegations came before the court: see
R. v. Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788, at para. 37;
R. v. M.(C.)
, 2014 ONCA
    611, at paras. 64 and 91; and
R. v. Khan
, 2017 ONCA 114, 136 O.R. (3d)
    520, at paras. 25-40.

[29]

The
    statements were also admissible to explain the long delay in reporting, a
    significant theme at trial:
R. v. Bradford
(2002), 4 C.R. (6th) 150
    (Ont. C.A.), at para. 21.

[30]

Lastly,
    some of the statements were admissible to rebut allegations of recent
    fabrication: see
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at
    para. 5. As the Supreme Court held in
R. v. Ellard
, 2009 SCC 27,
    [2009] 2 S.C.R. 19, at para. 33, fabrication may include being influenced by
    outside sources. In this case, the defence alleged that the charges were the
    product of tainting and collusion between the three complainants.

[31]

There
    were other aspects to the recent fabrication allegations. With J.O., the
    purported motive was a financial dispute that had arisen with the appellant in
    2011 to 2012. In relation to J.K. and M.K., it was alleged that they fabricated
    their allegations to support each other. Defence counsel suggested to M.K. that
    he was angry with J.K. because he had taken things too far by going to the
    police by himself and discussing the appellants actions with both brothers. M.K.
    denied the suggestion that he had to go along with his brothers story to avoid
    being labeled a liar in the modeling community. As defence counsel said in her
    closing address:

Perhaps J.O. is making these allegations because Norwayne owed
    him money. Perhaps J.K. is supporting his brother. Maybe M.K. is bitter about
    the end of his career. Maybe its forother reasons altogether, it doesnt
    matter.

(ii)

The trial judges instructions

[32]

As
    the Crown acknowledges on appeal, the trial judges instructions could have
    been much clearer on the use of the prior consistent statements.

[33]

The
    trial judge instructed the jury three times on this issue. In her initial
    instructions, she reviewed the previous statements. She instructed the jury
    that prior consistent statements are generally inadmissible, but subject to
    exceptions, including recent fabrication. The trial judge provided the
    following cautions:

First, it is impermissible to assume that because a witness has
    made the same statement in the past, he is more likely to be telling the truth.
    Second you are not to use the prior consistent statementsfor the truth of
    their content.

You may only use the evidence of the prior consistent
    statements for two purposes. First, that it can be supportive of a particular
    allegation in the sense that it creates a logical framework for its
    presentation, or it explains how the allegation has come to court before you.
    Second, it can be used by you in assessing the truthfulness of the
    complainants, in this case [J.K., M.K., and J.O.]. It is used in this way to
    support their credibility but not for the truth of the statements content.

The trial judge did not explain how the statements
    might be used to rebut allegations of recent fabrication.

[34]

Defence
    counsel objected to this portion of the charge, arguing that the trial judge
    erroneously classified some of the complainants communications as prior
    consistent statements. She argued that a prior consistent statement must be
    proved independently, through the evidence of the recipient of the statement,
    not by the declarant himself. That is, an assertion by a complainant that he
    repeated the same story before is not a prior consistent statement. The Crown
    at trial (not Ms. Alyea) and the trial judge accepted this argument and the
    jury was re-charged accordingly. The trial judge told the jury that if the
    recipient of a prior statement did not testify, then that statement could not
    be used as a prior consistent statement. It was merely evidence of what a
    complainant told the recipient. The trial judge then repeated her warnings and
    instructions reproduced above.

[35]

The
    trial judges re-charge was incorrect on the issue of what qualifies as a prior
    consistent statement. Evidence that a complainant previously told someone about
    the event in issue may come from the declarant or from the recipient of the
    statement:
R. v. Campbell
(1977), 17 O.R. (2d) 673 (C.A.), at p. 685;
    and
R. v. Edgar
, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 28. The testimony
    of a complainant that he told others about the event is direct evidence of a
    prior statement. In David Watt,
Watts Manual of Criminal Evidence, 2018
(Toronto: Thomson Reuters Canada Limited, 2018), at §19.08, the author writes that
    the prohibition against the admission of prior consistent statements bars
    evidence of the statement from both the declarant and the recipient. Similarly,
    in Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst
,
The Law
    of Evidence in Canada
, 5th ed. (Toronto: LexisNexis Canada Inc., 2018),
    the authors state, at §7.1: A witness, whether a party or not, may not repeat
    his or her own previous statements concerning the matter before the court, and
    may not call other persons to testify to those statements.

[36]

Self-reported
    prior utterances of a witness trigger the same dangers typically associated
    with prior consistent statements  the risk of impermissible reasoning (e.g., he
    told the same story to different people, it must be true). The trial judge was
    led into error by taking numerous statements off the table as prior consistent
    statements. However, this error inured to the benefit of the appellant.

[37]

The
    trial judge was asked to correct her instructions on prior consistent
    statements again. Defence counsel complained that the trial judge had dictated
    to the jury what was a prior consistent statement and what was not. The trial
    judge told the jury that it was for them to decide. There were no further
    objections. Moreover, the jury asked no questions about this body of evidence.

[38]

Although
    the trial judges instructions on prior consistent statements were deficient, this
    does not automatically amount to reversible error. In
R. v. M.P.
, 2018
    ONCA 608, at para. 80, Watt J.A. wrote, The effect of a failure of a trial
    judge to properly apprise the jury about the limited use of prior consistent
    statements in reaching its verdict varies. Sometimes fatal. Other times, not.

[39]

Importantly,
    the jury was properly warned of the dangers associated with prior consistent
    statements. They were told twice that prior statements could not be used to
    enhance the likelihood that any of the complainants were telling the truth and
    they could not use any of the statements for the truth of their contents. The
    fact that none of the statements contained much in the way of incriminatory
    detail already minimized these dangers.

[40]

As
    noted above, the trial judge erroneously narrowed the potential reach of this
    evidence. Some of the evidence legitimately relied upon by the Crown was
    completely neutralized by the re-charge. Moreover, although the trial judge
    mentioned recent fabrication, she did not explain how the prior consistent
    statements might rebut these allegations. On the facts of this case, this omission
    benefitted the appellant.

[41]

In
    the end, the jury was adequately equipped to deal with this evidence. This
    ground of appeal is dismissed.

(e)

The Crowns closing address and the alternative motive

[42]

The
    appellant argues that the trial was unfair because, during her closing address,
    the Crown relied on the appellants sexual desire towards complainants as a
    motive to commit the offences. The appellant argues that the Crown had not
    previously alleged this motive. He claims that he was ambushed.

[43]

The
    appellants sexual desire was a live issue at trial. The appellant was not
    deprived of his opportunity to make full answer and defence. This ground must
    fail.

(3)

Disposition

[44]

The
    appeal is dismissed.

Robert Sharpe J.A.

C.W. Hourigan J.A.

Gary T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barna, 2018 ONCA 1034

DATE: 20181214

DOCKET: C59314

Hoy A.C.J.O., Feldman and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Barna

Appellant

Michael A. McKee, for the appellant

Tracy Kozlowski, for the respondent

Heard: December 4, 2018

On appeal from the conviction entered on June 20, 2014 by
    Justice L.A. Pattillo of the Superior Court of Justice, with reasons reported at
    2014 ONSC 1011, and from the sentence imposed on August 29, 2014.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for laundering proceeds of crime,
    contrary to section 462.31 of the
Criminal Code,
R.S.C. 1985, c. C-46,
    as am. The appellant also seeks leave to appeal the sentence imposed in
    connection with his conviction.

[2]

He makes four main arguments on his appeal from conviction.

[3]

First, the appellant argues that the trial judge erred in dismissing his
    s. 11(b)
Charter
application: see
R v. Barna
, 2014 ONSC 7558.
    In particular, the appellant argues that in considering whether the overall
    lapse of time from his arrest to the commencement of trial was unreasonable,
    the trial judge erred in characterizing the case as one of considerable
    complexity and, as a result, allocated an unreasonable amount of time to the
    inherent time requirements of the offence. He further argues that the trial
    judge erred in attributing the delay resulting from the co-accuseds medical
    issues to defence delay, contrary to this courts decision in
R v. Gopie
,
    2017 ONCA 728, 356 C.C.C. (3d) 36.

[4]

While the delay in this case (53 months from the appellants arrest to
    the end of trial) exceeds the presumptive 30-month ceiling established by the
    Supreme Court in
R v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631, we are
    not persuaded that there is any basis to interfere with the trial judges
    dismissal of the appellants s. 11(b)
Charter
application.

[5]

Importantly, the trial judges s. 11(b)
Charter
ruling was
    issued a full two years prior to the release of
Jordan
. At that time,
    the framework established by the Supreme Court in
R v. Morin
, [1992] 1
    S.C.R. 771 governed an accuseds s. 11(b)
Charter
right to be tried
    within a reasonable time. Applying the
Morin
framework, the trial judge
    found the delay was reasonable.

[6]

The trial judges characterization of the case as one of considerable
    complexity  and corresponding allocation of time to inherent time requirements
     is amply supported by the record. Further, while the appellant now takes
    issue with characterizing the delay resulting from the co-accuseds medical
    problems as defence delay, before the trial judge the appellant was content
    with the adjournments granted because of the co-accuseds poor health and accepted
    that the resulting delay should be attributable to the defence. As a result,
    the trial judge properly considered the resulting delay as being attributable
    to the actions of the defence. We see no error in the trial judges application
    of the
Morin
framework to the facts of this case.

[7]

In these circumstances, the transitional exceptional circumstance
    recognized in
Jordan
applies and is dispositive. The parties
    reasonably relied on the
Morin
framework throughout the progression of
    the prosecution. The relative complexity of the case, the fact the period of
    institutional delay as assessed by the trial judge fell within (albeit at the
    upper limits) of the
Morin
guidelines, and the seriousness of the
    charges, weighed against the prejudice to the accused, support the application
    of the transitional exceptional circumstance in this case: see
R v.
    J.C.P.
2018 ONCA 986 at paras. 20-21;
Gopie,
at para. 178.
    Moreover, the appellant has not identified any (let alone repeated) mistakes
    or missteps by the Crown that would render the delay unreasonable, such that
    the transitional exceptional circumstance should not apply to permit delay
    beyond the
Jordan
ceiling found to have been reasonable under
Morin
:
Jordan
, at paras. 96-102. The Supreme Court indicated that the release
    of
Jordan
should not automatically transform what would have been
    considered reasonable delay under
Morin
into unreasonable delay:
Jordan
,
    at para. 102. This direction is particularly apposite here, where the trial
    judges s. 11(b) ruling (which we accept was correct under the
Morin
framework)
    was issued a full two years prior to the release of
Jordan
.

[8]

Second, the appellant argues that the
actus reus
of the offence
    of laundering proceeds of crime was not made out because when the appellant attempted
    to cash the bank draft, he was told by Cash Money that the bank needed to speak
    with him before it would verify the bank draft. As a result, the appellant was
    unable to cash the bank draft and Cash Money eventually returned the bank draft
    to the bank, without cashing it. The appellant describes this as the bank
    revoking the bank draft. He submits that, upon revocation, the bank draft
    ceased to be a bank draft and, as a result, the
actus reus
of
    laundering proceeds of crime was not made out.

[9]

From the appellants submissions, we take him to argue that since the
    bank revoked the bank draft before he could cash it, there was no risk of
    loss or deprivation and the underlying fraud was not made out. As a result,
    the bank draft was not property obtained as the result of the commission in
    Canada of a designated offence (i.e. by fraud).

[10]

We
    reject this argument.

[11]

Section
    462.31(1) of the
Criminal Code
provides as follows:

462.31(1)
Every one commits an offence
    who uses, transfers the possession of, sends or delivers to any person or
    place, transports, transmits, alters, disposes of or otherwise deals with, in
    any manner and by any means, any property or any proceeds of any property with intent
    to conceal or convert that property or those proceeds, knowing or believing
    that all or a part of that property or of those proceeds was obtained or
    derived directly or indirectly as a result of

(a)

the
    commission in Canada of a designated offence; or

(b)
an act or omission anywhere
    that, if it had occurred in Canada, would have constituted a designated
    offence.

[12]

The
    essential elements of laundering proceeds of crime are: (1) that the accused
    dealt with property (in this case, the bank draft) or proceeds of property; (2)
    that the property was obtained by crime (in this case, fraud); (3) that the
    accused knew or believed that the property had been obtained by crime; and (4)
    that the accused intended to conceal or convert the property:
R v. Daoust
,
    2004 SCC 6, [2004] 1 S.C.R. 217;
R v. Tejani
(1999), 138 C.C.C. (3d)
    366 (Ont. C.A.).

[13]

The
    underlying fraud in this case was the depositing of counterfeit cheques,
    verification of those cheques, and immediate withdrawal of the funds in cash or
    cash equivalents (including the bank draft at issue in respect of the
    appellants conviction). While the bank acted quickly to revoke the bank
    draft obtained by the appellant, it was unable to recover all the funds
    withdrawn on the specific counterfeit cheque in issue. As the trial judge
    found, the bank suffered an actual pecuniary loss as a result.

[14]

The
    bank draft was property and it was obtained as the result of the commission
    of fraud. The
actus reus
was made out when the appellant picked up the
    bank draft, took it to Cash Money, and twice tried to convert it to cash. As
    the trial judge found, this conduct not only established the
actus reus
of
    the offence (i.e. the appellant had dealt with the bank draft obtained by
    fraud), but also a necessary element of the
mens rea
of the offence
    (i.e. that the appellant intended to convert bank draft).

[15]

Third,
    the appellant argues that while the trial judge correctly held that the
mens
    rea
of laundering proceeds of crime can be satisfied by a finding that the
    accused was willfully blind to the fact that the property had been obtained as
    a result of the commission of a designated offence, and correctly articulated
    the doctrine of willful blindness, he erred in finding that the appellant was
    willfully blind to the origins of the bank draft. As a result, the appellant
    argues the
mens rea
of the offence of laundering proceeds of crime was
    not satisfied.

[16]

We
    reject this argument. The trial judges finding that the appellant was
    willfully blind to the fact that the bank draft was obtained by fraud is amply
    supported by the record. The trial judge was entitled to reject the appellants
    evidence in reaching this conclusion.

[17]

Fourth,
    the appellant argues that the trial judge erred by dismissing the appellants
    motion to permit him to re-open his defence and call further medical evidence
    after he was found guilty of laundering proceeds of crime: see
R v. Barna
,
    2014 ONSC 3788. The appellant argues that because he represented himself at
    trial and did not address the issue of willful blindness in his closing
    submissions, once the trial judge knew he was going to find him willfully blind
    to the fact the bank draft was obtained by fraud, the trial judge should have
    alerted him and invited further evidence and submissions. The appellant argues
    that because the trial judge did not do so, the trial judge was required to
    permit him to re-open his defence.

[18]

We
    reject this argument. While the appellant represented himself, he had practiced
    criminal law for a number of years, although he was disbarred in 2004 for,
    among other things, trust fund violations. The trial judge outlined the
    elements of the offence of laundering proceeds of crime at the outset of trial,
    and, in the course of the appellants closing submissions, alerted the
    appellant that willful blindness was an issue and asked for submissions.
    Moreover, the trial judge found  in our view correctly  that the proposed
    further evidence could have been available at trial, but was not adduced for
    strategic reasons, and in any event would not have altered his conclusion that
    the appellant was willfully blind to the fact that the bank draft was obtained
    by fraud.

[19]

Accordingly,
    we dismiss the appellants appeal against his conviction.

[20]

The
    appellant also seeks leave to appeal the sentence imposed by the trial judge,
    arguing that a conditional sentence of 15 months followed by a period of two
    years probation was excessive in circumstances and this court should
    substitute a conditional discharge.

[21]

As
    a preliminary matter, we reject the Crowns argument that the appellants
    application for leave to appeal sentence is moot because the appellant has
    served his sentence and his period of probation has ended. While his
    application would likely be moot if he were seeking a reduction in the period,
    or a change to the terms, of his conditional sentence or probation order, the
    appellant seeks a conditional discharge because he believes it would improve
    his prospects of being re-admitted to practice law in Ontario. We are not
    convinced this would be the case, but the substitution of a conditional
    discharge might nonetheless be of some benefit to the appellant.

[22]

However,
    we see no basis to interfere with the sentence imposed by the trial judge. In
    his reasons for sentence, the trial judge specifically considered whether it
    was appropriate to grant the appellant a conditional discharge pursuant to s.
    730(1) of the
Criminal Code
. The trial judge adverted to the
    appellants comparatively minor role in the fraud, and the fact that imposing a
    discharge would be in the appellants best interests given his intention to
    apply to be re-admitted to practice law in Ontario. But the trial judge
    ultimately concluded that it would be contrary to the public interest to grant
    a discharge given the severity of the offence and need to further the
    sentencing objective of deterrence. We agree with the trial judge that a
    conditional discharge was not appropriate in this case.

[23]

Accordingly,
    we would dismiss the appeal. Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

Alexandra Hoy
    A.C.J.O.

K. Feldman J.A.

M.L. Benotto 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), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beaudoin, 2018 ONCA 1071

DATE: 20181220

DOCKET: C64779

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Normand John Beaudoin

Appellant

Peter Copeland, duty counsel

Andrea Baiasu, for the respondent

Heard and released orally: December 12, 2018

APPEAL BOOK ENDORSEMENT

[1]

The appellant received a sentence of five years for aggravated sexual
    assault. The circumstances were very serious, including forced sexual
    intercourse with a 19 year old pregnant woman who trusted the appellant and his
    spouse.

[2]

The appellant has a related criminal record including conviction for two
    prior sexual assaults on young women. However, his sentence was suspended with
    probation for those offences in 2006.

[3]

The appellant had been under the care of his physician for 25 years who
    reported to the court that he functions at the level of a 14-16 year old. The
    trial judge referred to the appellants intellectual limitations and mental health
    status as the most obvious mitigating factor. However, in our view it is not
    clear that the trial judge took them into account in arriving at the ultimate
    sentence.

[4]

The trial judge referred to the case law in the low range; i.e. under
    five years, as including three factors: a guilty plea, consensual sexual
    relations vitiated by non-disclosure of HIV status, and no related criminal
    record. As none of those three pertained, the trial judge imposed a sentence of
    five years. However, she did not explain why the significant mitigating factor
    of the appellants diminished intellectual capacity would not bring the
    sentence properly into the low, under five year range.

[5]

On this appeal duty counsel submitted that 3.5-4 years would have been
    the appropriate sentence. The appellant submitted a written letter to the court
    including how remorseful he is, his deeper understanding of the offence and its
    impact on and consequences for the victim, as well as the 16 programs he has
    completed in custody with the certificates.

[6]

In our view, in all the circumstances it is appropriate to reduce the
    sentence to 4 years.

[7]

The appeal is allowed to that extent.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bews, 2018 ONCA 1077

DATE: 20181221

DOCKET: C60945

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Scott Bews

Appellant

Michael Peterson, for the appellant

David Quayat, for the respondent

Heard: December 20, 2018

On appeal from the conviction entered on April 23, 2015
    and the sentence imposed on August 4, 2015 by Justice  Linda M. Walters of
    the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The Crown concedes the appeal should be allowed on the basis the trial
    judge erred by failing to provide reasonable assistance to the appellant in
    respect of
Charter
issues.

[2]

A new trial is ordered.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carson, 2018 ONCA 1001

DATE: 20181206

DOCKET: C63636

Doherty, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Carson

Appellant

Mark C. Halfyard, for the appellant

Jill Witkin, for the respondent

Heard and released orally: November 27, 2018

On appeal from the conviction entered on November 15,
    2016 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting
    with a jury.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction on a charge of sexual assault.

[2]

The complainant, the appellant and the appellants girlfriend went out
    for the evening. Everyone was drinking. They returned to the residence shared
    by the appellant and his girlfriend late that evening. The complainant and the
    appellant had both had a lot to drink. The complainant eventually went to bed
    by herself in the spare bedroom. She had her pants on when she fell asleep.

[3]

The complainant awoke early the next morning. She did not have her pants
    on and she felt wetness underneath her. The complainant spoke to her mother who
    recommended that she call the rape crisis centre. The complainant did so and,
    at the suggestion of the people at the crisis centre, she went to the hospital.
    The complainant underwent a complete sexual assault examination. The test
    results confirmed sexual activity.

[4]

Several months later, at the request of the police, the appellant voluntarily
    provided a DNA sample. A DNA comparison confirmed that the appellant had
    engaged in sexual activity with the complainant.

[5]

The complainant testified that she was asleep after she went to bed and
    had no recollection of having sex with the appellant. She was adamant that she
    would never have consented to having sex with her friends boyfriend.

[6]

The appellant accepted, in light of the forensic evidence, that he had
    sex with the complainant. He also had no recollection of the activity. He was
    equally adamant that he would not have had non-consensual intercourse with
    anybody.

[7]

There are three grounds of appeal.

1.       Did the Trial Judge Misdirect the Jury on the Requirement
    that the Appellant Had to Know that the Complainant was not Consenting to Sexual
    Intercourse?

[8]

The appellant submits that the trial judge failed to adequately define
    knowledge and failed to tell the jury that the Crown had to prove knowledge
    beyond a reasonable doubt. The trial judges instructions are found at pages
    555 and 556 of the transcript. He told the jury in plain, clear language that
    knowledge of the absence of consent was an essential element of the offence. He
    equated knowledge of the absence of consent with the awareness on the part of
    the appellant that the complainant was not consenting. He also specifically
    told the jury that the reasonable doubt obligation on the Crown applied to the
    question of knowledge of the absence of consent. In our view, the charge was accurate.

2.       Did the Trial Judge Err
    in his Instruction on Circumstantial Evidence?

[9]

The appellant submits that the evidence that the complainant did not
    consent to the sexual activity was circumstantial and that the instructions did
    not make it clear to the jury that the jury could convict only if satisfied
    that the inference that the complainant did not consent was the only available
    reasonable inference. Counsel also submits that the trial judge mischaracterized
    the evidence on the question of non-consent as mostly direct evidence.

[10]

We
    see no error in the instructions on circumstantial evidence. Nor in our view
    was the evidence that the complainant did not consent circumstantial. She
    testified that she was asleep when the sexual activity occurred. If the jury
    believed that evidence, the jury would, without drawing any further inference
    from that evidence, conclude that she had not consented to the sexual activity.
    A person who is asleep cannot consent to sexual activity:
R. v. J.A.
,
    2011 SCC 28. If the jury believed the complainant and concluded that she was
    asleep at the relevant time, it followed without the need to draw any inference
    that the complainant did not consent to the sexual activities.

[11]

Through
    cross-examination of the complainant, and in the appellants evidence, the
    defence put forward a different version of the events. The defence claimed that
    the complainant was awake and consented to the sexual activity, but could not
    recall the events in the morning because of alcohol induced memory loss. That
    position was open on the evidence, and was put to the jury by the trial judge. However,
    the defence contention that the complainant did consent but did not recall
    consenting, did not turn the complainants direct evidence that she was asleep into
    circumstantial evidence that she did not consent. The defence position simply
    presented its version of the relevant events for the jury to consider.

[12]

The
    Crowns case on the issue of the absence of consent rested largely on the
    complainants direct evidence that she was asleep and therefore incapable of
    consenting to the sexual activity. The jury instructions were adequate and in
    our view reveal no error in respect of the instruction on circumstantial
    evidence.

3.       Was the Verdict Unreasonable?

[13]

The
    evidence in this case was certainly unusual. Both the appellant and the
    complainant professed to have no recollection of the sexual encounter. The
    complainant denied that she would have agreed to sex with the appellant. The
    appellant denied he would have had non-consensual sex with anyone. The case
    turned very much on the credibility of these two witnesses and the application
    of the burden of proof to the credibility assessments made by the jury. If the
    jury believed the complainant that she was asleep when the sexual activity
    occurred, it could reasonably convict the appellant. In our view it was not unreasonable
    to believe the evidence of the complainant. The verdict is therefore not
    unreasonable.

[14]

The
    appeal is dismissed.

Doherty J.A.

B.W. Miller J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Couvieau, 2018 ONCA 1036

DATE: 20181213

DOCKET: C65663

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Couvieau

Appellant

Brian Snell, duty counsel

Andrew Hotke, for the respondent

Heard: December 11, 2018

APPEAL BOOK ENDORSEMENT

[1]

Mr. Couvieau advised the court that he wants to abandon his appeal
    against conviction and sentence. Appeal is dismissed as abandoned.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dewey, 2018 ONCA 1004

DATE: 20181207

DOCKET: C63159

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Dewey

Appellant

Peter Lindsay, for the appellant

Manasvin Goswami, for the respondent

Heard: December 5, 2018

On appeal from the judgment of Justice Ricchetti of the
    Superior Court of Justice, dated December 5, 2016 with reasons reported at 2016
    ONSC 7536, dismissing an appeal from the conviction entered on April 27, 2015
    by Justice K. Lenz of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The applicant seeks leave to appeal from an order entered by Justice
    Ricchetti of the Superior Court of Justice, which dismissed a summary
    conviction appeal from the conviction of refusal to provide a breath sample.

[2]

The facts may be briefly stated. The applicant was charged in the early
    evening with impaired driving. Witnesses had reported that he had been driving
    erratically, hitting the curb repeatedly, and eventually coming to stop on the
    roadway.  The wheels of his car had been damaged by his driving, the tires were
    flat and the rims were damaged.   He was passed out in the drivers seat and
    the police had difficulty waking him.  He was arrested and taken to the breath
    room at the police station.  While in the breath room he continued to show
    signs of impairment but was awake, responsive and showed a higher level of
    awareness than he had earlier.

[3]

After an 11 day trial, the applicant was acquitted of impaired driving
    and convicted of refusal to provide a breath sample.  The trial judge acquitted
    him on the impaired driving charge on the basis that the evidence as a whole,
    including the evidence that the combination of prescribed Ativan medication and
    1 1\2 glasses of wine, raised a reasonable doubt in relation to the
mens
    rea
element of the impaired driving charge.

[4]

The trial judge convicted on the refusal to provide charge on the basis
    of his finding, based on the evidence including the videotaped statements of
    the demands and refusals in the breath room, that a proper demand had been
    made, was understood, and that it was refused by the applicant of his own
    volition with a full understanding of what was being requested.

[5]

Before the summary conviction appeal judge (SCAJ), the applicant argued
    that the conviction was unreasonable on the basis that:

(i)      the
    trial judges acquittal of the applicant on the impaired driving charge was
    inconsistent with his conviction of the applicant on the refusal to provide a
    breath sample charge;

(ii)      the
    trial judge had misapprehended the evidence in relation to the applicants
    experts evidence on the effects of alcohol and drugs on the human body; and

(iii)     the
    trial judge had erred in conducting his own research with respect to one aspect
    of the experts evidence.

[6]

The SCAJ addressed each of these grounds of appeal and gave thorough,
    cogent reasons for dismissing the appeal.  The applicant seeks to raise
    essentially the same arguments before this court that he made before the SCAJ.

[7]

It is well settled, as the applicant recognizes in his factum, that
    leave to appeal pursuant so s. 839 of the
Criminal Code
should be
    granted sparingly and only when some exceptional circumstance justifies a
    further appeal:
R. v. Rowe
, 2013 ONCA 311 at para. 4.

[8]

As Doherty J.A., for the court, explained in
R. v. R.R.
, 2008
    ONCA 497, 90 O.R. (3d) 641s. 839, leave should only be granted in two distinct
    categories of cases:

(i)

Where the merits of the proposed question of law are arguable, even if
    not strong, and the proposed question of law has significance to the
    administration of justice that goes beyond the particular case;

(ii)

Where there appears to be a clear error even if it cannot be said that
    the error has significance to the administration of justice beyond the
    particular case, especially if the convictions in issue are serious and the
    applicant is facing a significant deprivation of his or her liberty.

[9]

We see no error on the part of the SCAJ and thus no merit to the
    proposed appeal.  While the SCAJ acknowledged the error on the part of the
    trial judge in conducting his own research, he found that such research was not
    material to his essential finding that the applicant had, beyond a reasonable
    doubt, refused a request to provide a breath sample.  This finding was open to
    the SCAJ on the record before him and does not constitute a clear error of law.

[10]

To
    the extent that there is any arguable merit to any of the questions of law
    raised by the appellant, the proposed appeal does not meet the test for leave
    as set out in
R.R
. because it fails to raise any legal issues of
    significance to the general administration of justice.

[11]

The
    application for leave is therefore dismissed.

C.W.
    Hourigan J.A.
G. Pardu J.A.
Harvison Young J.A


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dillon, 2018 ONCA 1085

DATE: 20181227

DOCKET: C63279

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Dillon

Appellant

Breana Vandebeek and Mark Halfyard, for the appellant

Caitlin Sharawy, for the respondent

Heard: December 21, 2018

On appeal from the conviction entered on October 26, 2016
    by Justice Drew S. Gunsolus of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted by Gunsolus J. of the Superior Court of
    Justice of pointing a firearm, possession of a firearm contrary to prohibition,
    possession of a firearm knowingly unauthorized, and operating a motor vehicle
    disqualified. He received a global sentence of nine months incarceration
    (after credit for pre-trial custody) and three years probation. He appeals the
    convictions.

[2]

There was a great deal of animosity between Ian Anthony and the
    appellant. Anthony and the appellant grew up as childhood friends in Bewdley.
    Anthony described his relationship with the appellant as initially like
    brothers. However, the relationship ruptured several years before the trial
    when the appellant had a one-night stand with Smith during a break-up between
    Smith and Anthony.

[3]

The appellant and Anthony never reconciled. Over the years, there were
    many verbal altercations and at least one physical incident that led to a
    conviction and jail time for the appellant.

[4]

On the evening of February 16, 2016 at approximately 7:40 p.m., the
    complainants, in their car, and the appellant, in his pick-up truck, met on the
    side of a road near Bewdley. Both complainants testified that after a heated
    verbal exchange between Anthony and the appellant, the appellant pointed a
    sawed-off shotgun at Anthony. Anthony testified that the appellant said that if
    Anthony followed him home, the appellant would shoot or kill him.

[5]

The appellant drove away. The complainants followed him to his home and
    then called 911. They met the police by a gas station on the outskirts of town.

[6]

The next day the police arrested the appellant and conducted a search of
    his home. They did not find a firearm.

[7]

The appellant did not testify at trial.

[8]

The trial judge accepted some aspects of the complainants evidence and
    rejected others. He found that Smith was an opinionated, sarcastic,
    argumentative witness, but was blunt, truthful and unequivocal in her
    evidence on the important and salient facts. He noted that her evidence at
    trial was not significantly at variance from her statements to the police or
    her testimony at the preliminary inquiry, nor was it significantly different
    from that of Ian Anthony. After considering all the evidence, the trial judge
    was satisfied that on the evening in question the appellant possessed a firearm
    and pointed it at Anthony.

[9]

The appellant appeals on four grounds.

[10]

First,
    the appellant contends that the trial judge failed to adequately consider, and
    give proper effect to, material problems and inconsistencies in the complainants
    evidence.

[11]

We
    do not accept this submission. The trial judge acknowledged inconsistencies
    between the complainants descriptions of relevant factors, including whether
    the shotgun was single or double-barrelled and the colour of the appellants
    clothing. However, he concluded:

While [Ms. Smiths] evidence differed on non-essential facts,
    it did not contradict that of Ian Anthony. They both described a sawed-off
    shotgun, they both saw it across Dillons lap, they both heard Dillon respond
    he was going to shoot Anthony, although as I said earlier, Ms. Smith said she
    did not really believe Dillon would actually do anything.

[12]

In
    our view, the trial judge was entitled to reach this conclusion.

[13]

A
    related component of this ground of appeal is the appellants claim that, in
    considering the credibility of the complainants, he failed to treat them as
Vetrovec
witnesses. The appellant says that the animosity between the appellant and
    the complainants was palpable and that this should have led the trial judge to
    self-instruct and apply
Vetrovec
to these two witnesses.

[14]

We
    disagree. The appellants submission is a bridge too far. The long and
    complicated history between the appellant and the complainants does not mean
    that the complainants were unsavoury or untrustworthy.

[15]

Second,
    the appellant asserts that the trial judge misapprehended the evidence relating
    to whether the meeting between the appellant was accidental or pre-arranged.

[16]

We
    do not accept this submission. The trial judge did not misapprehend the
    complainants evidence on this point; he rejected it. If anything, this inured
    to the benefit of the appellant.

[17]

Third,
    the appellant contends that the trial judge erred by relying on
R. v.
    Richards
, 2001 CanLII 21219 (Ont. C.A.) and
R. v. Charbonneau
, 2004
    CanLII 9527 (Ont. C.A.) in support of his conclusion that the appellant
    possessed a firearm. The fact that an item looks like a firearm and is used in
    a manner consistent with a firearm does not mean that it is a firearm. A
    crucial fact in this case is that the police did not find a firearm at the
    appellants home when they searched it the day after the incident.

[18]

We
    disagree. The trial judges analysis on this issue, concentrating on the
    complainants description of the item in question and the appellants conduct
    and words (he would shoot Anthony) while holding it, was entirely consistent
    with the test set out in
Richards
at para. 4 and
Charbonneau
at para. 3.

[19]

Fourth,
    the appellant submits that the trial judges verdict was unreasonable.

[20]

We
    disagree. The appellant candidly admits that this is not a stand-alone ground
    of appeal, it can succeed only if one of the other grounds of appeal is
    accepted. Accordingly, in light of our conclusions on the other grounds of
    appeal, this issue does not arise.

[21]

The
    appeal is dismissed.

J.C.
    MacPherson J.A.

G.
    Pardu J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dowser, 2018 ONCA 1079

DATE: 20181221

DOCKET: C61715

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Lawrence John Dowser

Appellant

Michael Dineen, for the appellant

Andrew Cappell, for the respondent

Heard: December 19, 2018

On appeal from the conviction entered on March 18, 2015
    and the sentence imposed on April 22, 2015, and amended May 22, 2015, by Justice
    Brian W. Abrams of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

We see no merit in this appeal. The appellant raises matters to which
    defence counsel at trial did not object, and which did not affect the fairness
    of the trial.

[2]

The appeal is dismissed.

[3]

Leave is granted to appeal sentence and the sentence appeal is allowed.
    The Crown concedes the trial judge made calculation errors. In the
    circumstances, we accept the appellants submissions the sentence imposed
    should have been time served.

[4]

We vary the sentence accordingly.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Eid, 2018 ONCA 1044

DATE: 20181217

DOCKET: M49125 / M49822 (C63333)

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roland Eid

Appellant

Roland Eid, in person

Ghazala Zaman, for the respondent

Heard: December 12, 2018

APPEAL BOOK ENDORSEMENT

[1]

In terms of the motion for bail pending appeal, there is no material
    change since the matter was before MacPherson J.A.  The concerns that
    MacPherson J.A. identified in denying bail are still present.

[2]

In terms of the motion to appoint counsel, I am prepared to accept that the
    appeal is not devoid of merit given the low threshold for that determination.
    I do note on that point, though, that a limited 684 application was made to explore
    the ineffective assistance of counsel issue and that counsel appears to have
    concluded that there is nothing to pursue in that regard.

[3]

In any event, Mr. Eid has failed to establish that he does not have
    sufficient means to retain counsel. The sparse material he provided, only this
    morning, manifestly fails to establish that fact.

[4]

Both motions are dismissed.