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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. T.J., 2021 ONCA 392

DATE: 20210608

DOCKET: C68889

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

T.J.

Respondent

Erica Whitford and Madeline Lisus, for the appellant,
    the Crown

Wayne A. Cunningham, for the respondent

Heard: May 7, 2021 by videoconference

On appeal from the sentence imposed on November 10, 2020
    by Justice Alexander D. Kurke of the Superior Court of Justice.

Zarnett
    J.A.:

I.

INTRODUCTION

[1]

As a result of a complaint to the police in 2017, the respondent was
    charged with sexual interference, invitation to sexual touching, and sexual
    assault against C.M., a child. The offences occurred on one occasion in 2010 or
    2011 when C.M. and her brother were at the respondents home for a sleepover
    with his sons. At the time, C.M. was six or seven years old.

[2]

The trial judge found that late at night, the respondent directed C.M.
    into the bathroom. He took her hands and placed them on his penis. He used
    C.M.s hands to rub his penis, which became aroused, telling her that this is
    how you do it. This went on for a few minutes; the respondent then told C.M.
    that she could put her mouth on his penis. At that point, C.M. pulled away and
    left the room.

[3]

The trial judge convicted the respondent of all three offences. He
    conditionally stayed the sexual interference and invitation to sexual touching
    convictions. On the sexual assault conviction, he imposed a sentence of 9
    months in custody, followed by two years probation. He also made certain
    ancillary orders.

[4]

The Crown seeks leave to appeal the sentence arguing that the 9-month
    sentence failed to recognize and reflect the inherent wrongfulness and
    harmfulness of the respondents conduct and is demonstrably unfit. The Crown
    asks that a two-year sentence be imposed.

[5]

For the reasons that follow, I would grant leave to appeal and allow the
    appeal. The trial judge erred in principle and imposed a sentence that was
    demonstrably unfit. I would increase the period of incarceration to 24 months.

[6]

Based on the fresh evidence, it would not be in the interests of justice
    to reincarcerate the respondent who has completed the custodial sentence the
    trial judge imposed; accordingly, I would stay the execution of the additional
    sentence.

II.

The sentencing DECISION

[7]

In deciding an appropriate sentence, the trial judge noted several
    matters about the respondent and his circumstances:

·

he had no prior criminal record;

·

he was a devoted father and a supportive ex-spouse;

·

he had previously been arrested for the domestic assault of
    another woman, but the matter was diverted upon his completion of the Partner
    Assault Response course;

·

he was in a new relationship and has helped to raise two children
    (in addition to his children from a prior relationship);

·

he has a history of substance use, for which he has attended
    counselling;

·

he had been on bail for three years without any concerns; and

·

he had worked for his father over a lengthy period.

[8]

The trial judge referred to the principles in s. 718 of the
Criminal
    Code of Canada
, R.S.C., 1985, c. C-46 and in
R. v. Friesen
, 2020
    SCC 9, 444 D.L.R. (4th) 1. He noted that C.M. was very youthful and very
    vulnerable vis-à-vis the respondent, who was clearly and undoubtedly in a
    position of trust over her. The trial judge also referred to the victim impact
    statement by C.M.s mother which discussed the stress of court proceedings and
    the difficulties that [C.M.] has faced in dealing with this incident and its
    sequelae. He also observed that the respondent had not expressed any remorse.

[9]

The trial judge explained that the principles of denunciation and
    deterrence required him to reject the defence request for a conditional
    sentence of 9-12 months:

there was sexual interaction with a young child by a person in
    a position of trust. The public, quite frankly, would be shocked if a jail
    sentence was not imposed, but they would understand that the pro-social conduct
    of [the respondent] and the risks of COVID-19 in jail cannot be entirely
    disregarded. Proportionality has to be considered. Those factors have to be
    taken into account in the individualized process of sentencing.

[10]

The
    trial judge concluded that if not for so many things that speak in [the
    respondents] favour and COVID-19, an appropriate sentence would have been 15-24
    months. However, he would not impose a sentence that would keep the respondent from
    resuming being a contributing member of society  that would be crushing. The
    trial judge settled on 9 months in custody, and in so doing, rejected the Crowns
    request for a period of incarceration between 18 months and 3 years.

III.

THE PARTIES POSITIONS

[11]

The
    appellant argues that the trial judge:

1)

failed to give meaningful effect to
Friesen
;

2)

improperly overemphasized mitigating factors;

3)

erred in reducing the sentence based on COVID-19; and

4)

imposed a demonstrably unfit sentence.

[12]

The
    appellant asks that a sentence of two years incarceration be substituted.

[13]

The
    respondent submits that the trial judge made no error of law or principle that
    affected the sentence and that the sentence imposed is not demonstrably unfit. He
    also seeks to introduce fresh evidence. The Crown does not oppose this request.
    The fresh evidence indicates that the respondent has completed his custodial
    sentence and has been granted full parole, effective February 9, 2021. The
    respondent submits that even if this Court increases the sentence, it should
    stay any additional period of incarceration, as it would not be in the interests
    of justice to reincarcerate him.

IV.

ANALYSIS

A.

When is Appellate Intervention in a Sentencing Decision Warranted?

[14]

The
    standard of review applied to a sentencing decision was reaffirmed in
Friesen
:
    [A]n appellate court can only intervene to vary a sentence if (1) the sentence
    is demonstrably unfit or (2) the sentencing judge made an error in principle
    that had an impact on the sentence: at para. 26.

[15]

A
    sentence is demonstrably unfit if it is clearly unreasonable, clearly excessive
    or inadequate, or if it represents a substantial and marked departure from the
    fundamental principle of proportionality:
R. v. Lis
, 2020 ONCA 551,
    152 O.R. (3d) 125, at paras. 43, 69. If a sentence is demonstrably unfit, or if
    the sentencing judge made an error in principle that had an impact on the
    sentence, we must perform our own sentencing analysis to determine a fit
    sentence using the applicable sentencing principles but deferring to the
    sentencing judges findings of fact and identification of aggravating and
    mitigating factors, except to the extent they are affected by an error in
    principle:
Lis
, at para. 44.

B.

Was the Sentence in this Case Demonstrably Unfit or Affected by Errors
    in Principle?

[16]

I
    agree with the Crown that the sentence imposed by the trial judge reflects
    errors in principle and was demonstrably unfit. That result follows directly
    from
Friesen
.

(1)

Friesens
Message

[17]

In
Friesen
, the Supreme Court of Canada sent a strong message that:

sexual offences against children are violent crimes that
    wrongfully exploit childrens vulnerability and cause profound harm to children,
    families, and communities.
Sentences for these crimes must increase.
Courts must impose sentences that are proportional to the gravity of sexual
    offences against children and the degree of responsibility of the offender, as
    informed by Parliaments sentencing initiatives and by societys deepened
    understanding of the wrongfulness and harmfulness of sexual violence against
    children.
Sentences must accurately reflect the wrongfulness of sexual violence
    against children and the far-reaching and ongoing harm that it causes to
    children, families, and society at large. [Emphasis added.]:
at para. 5.

[18]

Three
    parts of the message in
Friesen
are relevant here: (1) the importance
    of properly considering the wrongfulness and harmfulness of sexual offences
    against children in determining a proportionate sentence; (2) the priority
    given by Parliament to the sentencing objectives of denunciation and deterrence
    for these offences; and, (3) the guidance given on the length of sentences for
    these offences.

Wrongfulness, Harmfulness and
    Proportionality

[19]

A
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender  this is the fundamental principle of
    sentencing. As
Friesen
explains, the wrongfulness and harmfulness of
    sexual offences against children are pivotal to both aspects of the assessment
    of proportionality: at para. 75.

[20]

When
    considering the gravity of the offence, courts
must
recognize and give
    effect to (1) the inherent wrongfulness of these offences; (2) the potential
    harm to children that flows from these offences; and, (3) the actual harm that
    children suffer as a result of these offences (emphasis added): at para. 76.

[21]

The
    inherent wrongfulness of sexual offences against children flows from the violent
    and exploitative nature of the conduct:

any physical contact of a sexual nature with a child
always
constitutes a wrongful act of physical and psychological violenceCourts must
always
give effect to this inherent violence since it forms an integral component of
    the normative character of the offenders conduct [emphasis added.]: at para.
    77.

[22]

And,
    since it is always inherently exploitative for an adult to apply physical force
    of a sexual nature to a child, courts must
always
give effect to the
    wrongfulness of this exploitation in sentencing (emphasis added): at para. 78.

[23]

The
    harm caused by sexual offences against children must be weighed in a manner
    that reflects societys deepening and evolving understanding of their
    severity: at para. 74. This includes considering, in addition to actual harm
    that may have been experienced up to the time of sentencing, the reasonably
    foreseeable potential harm that may only materialize later in childhood or in
    adulthood. To do otherwise would falsely imply that children simply outgrow the
    effects of sexual offences against them: at paras. 84-86.

[24]

These
    elements of wrongfulness and harm pertain as well to the offenders degree of
    responsibility. Intentionally applying force of a sexual nature to a child is:

highly morally blameworthy because the offender is or ought to
    be aware that this action can profoundly harm the child.

The fact that the victim is a child increases the offenders
    degree of responsibilitythe intentional sexual exploitation and
    objectification of children is highly morally blameworthy because children are
    so vulnerable
[1]
:
    at paras. 88, 90.

Parliament Gives Primacy to Denunciation
    and Deterrence

[25]

Section
    718.01 of the
Code
gives priority to denunciation and deterrence over
    other sentencing objectives where the offence involves the abuse of children.

[26]

A
    sentence expresses denunciation by condemning the offender for encroaching on
    our societys basic code of values; it expresses deterrence by discouraging
    the offender and others from engaging in criminal conduct. Considerations of
    general deterrence lead to an offender being punished more severely than he or
    she might otherwise deserve in order to send a message to others:
Lis
,
    at para. 55.

[27]

The
    provisions of s. 718.01 not only mean that denunciation and deterrence must be
    the primary objectives of the sentence, but that it is no longer open to a
    sentencing judge to elevate other sentencing objectives, for example
    rehabilitation, to equivalent or greater priority than denunciation and
    deterrence in determining a proportionate sentence. These other objectives may
    be given significant weight, but not priority or equivalency:
Lis
, at
    paras. 47-48, 53;
Friesen
,
at paras. 101-4.

[28]

As
    the court in
Friesen
concluded, prioritizing the objectives of
    denunciation and deterrence confirms the need for courts to impose more severe
    sanctions for sexual offences against children: at para. 101. That need is
    directly related to the form of sanction required, as separation from society
    reinforces and gives practical effect to denunciation and deterrence: at para.
    103.

The Length of Sentences

[29]

To
    ensure that effect is given to the wrongfulness and harmfulness of sexual
    offences against children and Parliaments sentencing initiatives,
Friesen
provided guidance about the appropriate length of sentences. To follow that
    guidance, upward departure from prior precedents and sentencing ranges may be
    required: at paras. 108-14.

[30]

While
    noting that judges must retain the flexibility to do justice in individual
    cases,
Friesen
conveyed an overall message that:

mid-single digit penitentiary terms for sexual offences against
    children are normal and that upper-single digit and double-digit penitentiary
    terms should be neither unusual nor reserved for rare or exceptional
    circumstances. We would add that substantial sentences can be imposed where
    there was only a single instance of sexual violence and/or a single victim: at
    para. 114.

[31]

Friesen
also re-emphasized the importance of certain aggravating factors in sexual
    offences involving a child. It noted that abuse of a position of trust or
    authority should usually result in a higher sentence than one of an offender
    who is a stranger to the child, and that the age of the victim is a significant
    aggravating factor because of the length of time they must endure the
    consequential harm of sexual violence: at paras. 130-34.

(2)

The Trial Judge Made Errors in Principle That Impacted the Sentence

[32]

In
    my view, the reasons as a whole do not give the inherent wrongfulness of the
    conduct, its highly morally blameworthy nature, and the extent of harm caused to
    C.M., the centrality that
Friesen
demands in sentencing. Nor do the
    reasons give paramountcy to the principles of denunciation and deterrence. Those
    errors impacted the sentence and justify appellate intervention.

[33]

Where
    the overall focus of a sentencing decision is on the personal circumstances of
    the offender and the need for restraint, so as to underestimate the gravity of
    the offences and their harm, the sentencing decision is not consonant with
Friesens
message. As Spivak J.A. stated in
R. v. S.A.D.F
., 2021 MBCA 22:

The sentencing judge stated that the offending behaviour was
    serious, and referred generally to the harmful consequences of this type of
    abuse, and the need to send a message to protect children. However, as
    indicated in
Friesen
, it is not sufficient to simply state that
    sexual offences against children are serious; sentences imposed must reflect
    the normative character of the offenders actions and the consequential harm.
    The sentencing judge spoke, at some length, about the accuseds background and
    the principle of restraint. Yet, there was little comment on the specifics of
    these offences and the circumstances under which they were committed, beyond
    saying that the children were very young and the accused was in a position of
    trust. In my view, the sentencing judges focus on the personal circumstances
    of the accused, rather than the circumstances of the offences, led her to
    unreasonably underestimate the gravity of the offences and the paramount
    principles of denunciation and deterrence: at para. 34.

[34]

That
    is what occurred here.

[35]

Although
    the trial judge referred briefly to the circumstances of the offence, C.M.s
    young age, and the respondents position of trust, he paid particular attention
    to the personal circumstances of the respondent. He made a brief reference to
    the harm C.M. suffered, and no reference to the harm she may continue to suffer,
    from the inherently violent and exploitative conduct to which the respondent
    subjected her. Conversely, he emphasized the consequences the respondent would
    suffer from a significant custodial sentence.

[36]

The
    trial judge relied on the respondents circumstances including that he was a
    first offender who was supportive of and supported by his family. He also
    expressed a desire not to impose a sentence that would prevent the respondent
    from being a contributing member of society and considered the effect of the
    pandemic.

[37]

The
    trial judge was entitled to give significant weight to the sentencing
    principles those circumstances engage, but he was not entitled to give them
    priority, or even equal weight, to denunciation and deterrence:
Friesen
at paras. 101-4;
Lis
at paras. 47-48. He was also entitled to consider
    the pandemic as a collateral consequence, because it bears on the impact of the
    sentence on the offender. He was not, however, entitled to permit it to reduce
    a sentence to one that is disproportionate to the gravity of the offence or the
    moral blameworthiness of the offender:
R. v. Morgan
, 2020 ONCA 279, at
    paras. 10-11. As this court noted in
R. v. Woodward
, 2011 ONCA 610,
    107 O.R. (3d) 81, at para. 76, the focus of sentencing an adult who has
    exploited an innocent child should be on the harm caused to the child and the
    offenders conduct; the effects of the sentence on the offender and his
    prospects for rehabilitation, while warranting consideration, cannot take
    precedence.

[38]

Here,
    the trial judge allowed these considerations to take precedence and reduce the sentence
    below what was appropriate. The trial judge stated that a sentence between 15
    to 24 months in custody would have been appropriate, which I take to mean
    appropriate given the gravity of the offence and the moral blameworthiness of
    the offender. But he was not prepared to impose a sentence in that range.
    Instead, he relied on these considerations to reduce the sentence by 15 months
    from the top, and 10.5 months from the midpoint, of his range  in either case
    by an amount greater than the length of the sentence he did impose  resulting
    in a sentence significantly below the low point of what he deemed appropriate.

[39]

The
    result reached by the trial judge does not comport with the guidance in
Friesen
as to the length of sentences.
Friesen
does not simply contain a list
    of principles and factors to be mentioned in a sentencing decision; it insists
    that those factors be reflected in a sentence that is of sufficient length to
    recognize them. I repeat
Friesens
guidance: mid-single digit
    penitentiary terms for sexual offences against children are normalsubstantial
    sentences can be imposed where there was only a single instance of sexual
    violence and/or a single victim: at para. 114.

[40]

The
    trial judge did not explain why the sentence he imposed could be considered
    substantial. He began with a range which, at its high end, was the lowest
    possible penitentiary term. He then imposed a sentence substantially reduced even
    from that range.

[41]

For
    these reasons, I conclude that the trial judge erred in principle and that the
    errors had an impact on the sentence he imposed.

(3)

The Sentence Was Demonstrably Unfit

[42]

A
    sentence may be demonstrably unfit if it was required, but fails, to respect
    the primacy of the sentencing objectives of denunciation and deterrence. Such a
    sentence is a substantial and marked departure from the principle of
    proportionality:
Lis
, at paras. 98-99. This sentence suffers from that
    flaw.

[43]

The
    respondent relies on
R. v. R.L.S.
, 2020 ONCA 338, where this court
    dismissed an appeal against a nine-month sentence for a 51-year-old first-time
    offender convicted of sexual offences against his 4 to 6 year-old daughter.

[44]

R.L.S.
does not assist the respondent. In that case, the issue was whether the
    sentence was too harsh. In explaining why it was inappropriate to reduce the
    sentence, the court noted that the sentence was lenient in light of the
    principles explained in
R. v. Friesen.
: at para. 9. The court was not
    required to consider the question of whether the sentence was so lenient that
    it was unfit  the issue here.

[45]

In
    my view, the sentence imposed was demonstrably unfit.

C.

What is the Appropriate Sentence?

[46]

The
    respondents behaviour was inherently wrongful. He abused his position of trust
    over a young child. His conduct included not only sexual touching but an
    invitation that C.M perform fellatio. It was highly morally blameworthy. His
    conduct was violent, exploitative, and harmful to C.M. and her family.

[47]

Giving
    priority, as is required, to the objectives of deterrence and denunciation, a
    substantial sentence of incarceration is required. I would set that period at 24
    months. Doing so gives weight (but neither priority nor equality) to the other factors
    the trial judge took into account, and maintains the two-year probation order that
    the trial judge imposed.

D.

Should the Respondent be Reincarcerated?

[48]

As
    I would increase the respondents sentence, the controlling question becomes
    whether it is in the interests of justice for him to be reincarcerated
: R.
    v. Cheng
(1991), 50 O.A.C. 374 (C.A.), at para. 5.

[49]

I
    would admit the fresh evidence on this issue. The respondent has served the
    custodial portion of his sentence and has been released into the community by
    the Parole Board, in part on the basis that treatment available to him there,
    which will advance his reintegration, surpasses that available to him in
    custody, and in part based on his low risk of re-offending. These considerations,
    along with the likelihood of early parole if there were reincarceration and the
    recognition that reincarceration would impose considerable additional hardship,
    lead to the conclusion that the interests of justice do not require
    reincarceration in this case:
R. v. Davatqar-Jafarpour
, 2019 ONCA 353,
    146 O.R. (3d) 206, at paras. 50, 53-54.

V.

CONCLUSION

[50]

Accordingly,
    I would grant leave to appeal, allow the sentence appeal, and substitute a
    custodial sentence of 24 months. The other terms of the sentence imposed by the
    trial judge should remain in effect. I would stay the execution of the balance
    of the sentence of incarceration not yet served.

Released: June 8, 2021 A.H.

B. Zarnett J.A.

I agree. Alexandra Hoy
    J.A.

I agree. C.W. Hourigan
    J.A.

[1]

Moral
    culpability may be reduced in specific cases, such as for person who suffer
    from mental disabilities or where systemic and background factors played a role
    in bringing an Indigenous person before the court:
Friesen
, at
    paras. 91-92.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Valle-Quintero, 2021 ONCA 390

DATE: 20210608

DOCKET: C66811

Watt, Benotto and Harvison Young
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Guillermo Valle-Quintero

Appellant

Ernest J. Guiste, for the appellant

Andreea Baiasu, for the respondent

Heard: May 17, 2021 by video conference

On appeal from the conviction entered on August 30, 2012 by
    Justice Alfred J. OMarra of the Superior Court of Justice, and from the
    sentence imposed on October 8, 2015 by Justice Brian P. OMarra of the Superior
    Court of Justice, with reasons reported at 2015 ONSC 6164.

REASONS FOR DECISION

[1]

The appellant was convicted of three counts of assault on his girlfriend
    on a number of occasions in the course of episodes of anger and jealousy. He
    was also found guilty of wilfully damaging her vehicle, threatening to cause
    her death or bodily harm, failing to comply with a condition of a recognizance,
    attempting to obstruct justice, and breaching a court order prohibiting
    communication with the complainant. Because of his criminal history, the
    respondent Crown brought a dangerous offender application. The appellant was
    ultimately found to be a dangerous offender and sentenced to an indeterminate
    sentence.

[2]

The appellant raises many grounds of appeal. Central to these is the
    submission of reasonable apprehension of bias. He also argues that the trial
    judge erred in finding that the complainant was a credible witness, and that
    the trial judges findings on the breach of recognizance count were tainted by
    abuse of process and jurisdictional error. In addition, he alleges that the period
    from the guilty verdict to the imposition of the sentence, around 37 months,
    was unreasonable and violated his
Charter
s. 11(b) rights.

[3]

For the following reasons, the appeal is dismissed.

A.

Background

[4]

The appellant did not testify at his trial. The charges concerned events
    that had taken place in 2010-2011. The trial judge found that the appellant had
    choked the complainant to unconsciousness, had threatened to kill her when he
    told her [i]f I cant have you, nobody can, and that he said, having choked
    her, that if she had died, he could have hidden her body in the wall so that
    nobody could find her. The trial judge accepted that the complainant was
    fearful for her life. The appellant was convicted of additional counts of assault
    in relation to two other incidents. He also attempted to obstruct justice and violated
    a non-communication order when he attempted to persuade the complainant to
    recant her statement after his arrest.

[5]

Following the appellants conviction on the charges currently under appeal,
    the Crown commenced dangerous offender proceedings, and the court ordered a
    psychiatric assessment which was conducted by Dr. Scott Woodside. Dr. Woodside
    found that the appellant presented a high risk of reoffending with intimate
    partners due to his aggressive, controlling and jealous nature, lack of insight
    as to the nature of his problems, and his view of himself as a victim.

B.

Discussion

(1)

Reasonable Apprehension of Bias

[6]

The appellant argues that a number of factors give rise to a reasonable
    apprehension of bias. First, he complains that A. OMarra J. presided over a
    bail review only two months prior to being nominated as the trial judge. In
    addition, A. OMarra J. declined the appellants recusal motion after he refused
    to permit the appellant to sit at the counsel table after the appellant resiled
    from his earlier willingness to do so with ankle shackles on.

[7]

In oral submissions, the appellants counsel concentrated on the fact
    that A. OMarra J. stepped down after pronouncing the verdict in light of the
    Crowns intention to pursue a dangerous offender application, announcing that
    the sentencing proceedings would be taken over by B. OMarra J. The appellant
    submits that this raises a reasonable apprehension of bias because the two are
    in fact related to one another as first cousins. We disagree.

[8]

First, there is a strong presumption of judicial integrity and
    impartiality that the appellant has not displaced: see
Yukon Francophone
    School Board, Education Area #23 v. Yukon (Attorney General)
, 2015 SCC 25,
    [2015] 2 S.C.R. 282, at para. 25. Presiding over a bail review and seeing
    an accuseds criminal record does not disqualify a judge from presiding over a
    trial. Judges (as they regularly do in
voir dire
proceedings, for
    example) are expected and able to disabuse themselves of any prejudicial
    evidence that they might otherwise have encountered.

[9]

Nor does the trial judges refusal of the defence request that the
    appellant be permitted to sit at the counsel table disclose any reasonable
    basis for an apprehension of bias.

[10]

Further,
    there was no basis to suspect that there was anything improper about continuing
    the proceedings before a different judge: see
Criminal Code
, ss. 669.2(1)
    and (2). The trial judge explained that he was committed to conducting long
    civil trials but that the sentencing would be conducted by B. OMarra J. as he
    had availability. Nothing in these circumstances gives rise to any basis for
    the appellants request for disclosure from the Crown regarding the matter,
    quite apart from the fact that pursuant to the principle of judicial
    independence, judges are not affiliated with the prosecution and cannot be seen
    or treated as belonging to a Crown agency. There is no merit to this ground of
    appeal.

(2)

The Findings on Conviction

[11]

We
    do not agree with the appellants submissions that the trial judge erred in
    finding that the complainant was credible and that the police investigation was
    adequate. These issues were also raised at trial and rejected by the trial
    judge in thorough reasons. The trial judge was alive to all the reasons for
    which the appellant submitted that the complainants evidence should be
    rejected. He found her to be credible, and given the record before him, it was
    open to him to do so. We see no merit in the appellants submission that the
    investigation was inadequate.

[12]

The
    trial judge also rejected the submission that the appellant had not known about
    the non-communication order, referring to a transcript of the bail hearing at
    which the order was imposed which confirmed that duty counsel had explained it
    to him. The trial judge found that the appellant had fully understood the
    prohibition. During the abuse of process application brought by the appellant
    after the trial, he requested a stay on this count, arguing that there was a
    lack of knowledge of the non-communication order. We see no error in the trial
    judges findings or his refusal to enter a stay on this count.

(3)

The s. 810.2 ground

[13]

The
    submission that the condition ordered was made without jurisdiction and
    constituted an abuse of process is without merit.

[14]

The
    appellant had been subject to a condition in his recognizance, granted under s.
    810.2 of the
Criminal Code
, not to enter into any relationship or
    romantic relationship with a female until that person has been identified to
    the Toronto Police Service and there had been an opportunity provided to inform
    that person of the appellants criminal history. Count seven charged that the
    appellant had breached the recognizance by entering into a romantic
    relationship with the complainant without giving the police an opportunity to
    inform her of the appellants criminal history. This count was dealt with
    separately after the trial.

[15]

The
    appellant had a criminal record that included abduction and serious acts of
    violence against former romantic partners. One of these resulted in a charge
    and conviction for attempted murder in 1999. While incarcerated, the appellant
    underwent a number of psychological assessments which indicated that he
    presented a high risk for violent recidivism with a partner in an intimate
    relationship. A similar condition to report romantic relationships was initially
    imposed when he was granted a conditional release in October 2006.

[16]

The
    appellants warrant expiry date was August 13, 2010. Prior to that, he was
    observed getting out of a car driven by a woman. The appellant denied that he
    was in a relationship with the woman. He was reminded of the condition about
    reporting any new relationships, but he did not provide her identity or any
    further information that would allow officers to follow up and ensure that
    there was no relationship. His probation and parole supervisor contacted the Toronto
    Police Service to prepare for a s. 810.2 application to have the appellant
    bound by terms of a recognizance, including a condition that he advise the
    police of any new intimate relationships, because of the concerns related to
    his behaviour and high risk assessment for violence against female partners.

[17]

On
    appeal, the appellant argues, as he did at trial, that the condition was
    imposed without jurisdiction and constituted an abuse of process. The trial
    judge dismissed the appellants abuse of process application and entered a
    conviction on count seven. As the trial judge noted, the seeking of a s. 810.2
    order is governed by a process that is authorized by statute. Here, although
    the police could have arrested the appellant under the warrant, the Crown chose
    a less intrusive route by issuing a summons. Had they arrested him under the
    warrant that had been taken out, he would have had to be held in custody
    pending a bail hearing because the Crown had not been prepared for a s. 810.2 hearing
    but wanted similar conditions to be imposed in the meantime. Horkins J. deemed
    the warrant executed and granted the recognizance which included the condition.

[18]

We
    agree with the trial judge that there was no misconduct or abuse of process,
    and finding otherwise could have the effect of compelling the police in any s.
    810.1 or s. 810.2 application to arrest subjects under warrant in order to
    compel a bail hearing and a detention or release subject to conditions.

(4)

The Dangerous Offender Finding and the Imposition of the Indeterminate
    Sentence

[19]

The
    appellant argues that the sentencing judge erred in finding the appellant to be
    a dangerous offender. His first argument is that Dr. Woodsides assessment
    report was filed late, beyond the statutory deadlines under s. 752.1 of the
Criminal
    Code
, and as such the dangerous offender designation must be set aside. We
    disagree. It is clear from the discussions between the sentencing judge and the
    parties that the 60-day assessment period began on October 28, 2013, the report
    would have been due on January 27, 2014, the time to file was extended on
    January 27, 2014 until January 31, 2014 which is permitted under s. 752.1(3),
    and the report was received on January 31, 2014, within the statutory time limits.

[20]

Alternatively,
    he argues that the sentencing judge erred in failing to consider whether he
    should be designated as a long-term offender prior to being designated as a
    dangerous offender in accordance with
R. v. Johnson
, [2003] 2 S.C.R.
    357. This argument fails because the 2008 amendments removed the exercise of
    discretion at the designation stage. Section 753(1) now states that the court
shall
find the offender to be a dangerous offender if
    the statutory criteria are met. Here, the sentencing judge found that those
    criteria as set out in s. 753(1)(a)(i) and (ii) of the
Criminal Code
were met. There were ample grounds for the sentencing judges findings that the
    past and index offences of domestic violence constituted a pattern of
    repetitive and persistent aggressive behaviour under those sections, and he set
    out the common elements in detail.

[21]

We
    also disagree with the submission that the sentencing judge erred in failing to
    consider the intractability requirement as set out in
R. v. Boutilier
,
    2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 27, 29-32 and 46. Although the
    sentencing judge did not have the benefit of
Boutilier
and did not use
    the word intractable, he carefully considered s. 753(1)(a) and applied it to
    the record before him. He considered the appellants recidivism, his refusal to
    abide by supervision conditions and his resentment of those conditions, as well
    as Dr. Woodsides opinion that the appellant presented a high risk for violent
    re-offence involving intimate partners. The sentencing judge found no reason
    to believe that he would restrain his behaviour in the future. In short, the
    sentencing judges reasons satisfy the
Boutilier
requirement that the
    conduct of a person designated as a dangerous offender must be intractable.

[22]

We
    would not disturb the sentencing judges imposition of an indeterminate
    sentence. The sentencing judge found that based on the evidence before him, a
    measure less than an indeterminate sentence would not adequately protect the
    public, and more particularly, any future intimate partners of the appellant. This
    was an appropriate conclusion, especially in light of Dr. Woodsides evidence
    that he was pessimistic regarding the appellants future manageability within
    the community, even if strict conditions were put in place and the appellant
    agreed to follow through with conditions and treatment.

(5)

Post-Verdict Delay

[23]

Finally,
    we do not agree that the appellants
Charter
s. 11(b) rights were
    breached as a result of the delay of 37 months between the conviction and the
    imposition of sentence. The appellant relies on
R. v. Charley
, 2029
    ONCA 726, 147 O.R. (3d) 497, which set a five-month ceiling applicable to the
    period between conviction and sentence, as well as
R. v. Jordan
, 2016
    SCC 27, [2016] 1 S.C.R. 631.

[24]

We
    do not accept this submission. First, in
Charley
, this court observed
    that dangerous or long-term offender proceedings under Part XXIV of the
Criminal
    Code
are properly characterized as exceptional in the sense that they are
    reasonably unavoidable after the Crown has determined that a designation
    should be sought, but the Crown still has an obligation to mitigate any
    resulting delay: at para. 98. A dangerous offender application is an
    exceptional circumstance that may justify delays above the ceiling set out in
Charley
:
    see e.g.
R. v. McLean
, 2020 ONSC 1931, at paras. 12-18;
R. v. J.T
.,
    2021 ONSC 365, at para. 32. Second, the entire post-verdict proceedings took
    place before the release of
Charley
. For that reason, as this court
    noted in
Charley
, at para. 105, the transitional exceptional
    circumstances as set out in
Jordan
also apply to post-verdict delay.
    The appellant made no submissions on the application of transitional
    exceptional circumstances.

[25]

The
    appellant has not, therefore, established that in the circumstances of this
    case, his s. 11(b) rights have been breached.

C.

Disposition

[26]

For
    these reasons, the appeal is dismissed.

David Watt J.A.

M.L. Benotto J.A.

A. Harvison Young
    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. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under
    section 486.4, on application of the prosecutor in respect of a victim or a
    witness, or on application of a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the judge or justice is of the opinion that the order is in the
    interest of the proper administration of justice.

(2)     On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, a judge or justice may make an order
    directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application
    to the prosecutor, the accused and any other person affected by the order that
    the judge or justice specifies.

(5)     An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)     The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)     In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in encouraging
    the reporting of offences and the participation of victims, witnesses and
    justice system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)     An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information
    given or submissions made at a hearing under subsection (6); or

(c) any other information that could
    identify the person to whom the application relates as a victim, witness or
    justice system participant in the proceedings.
2005,
    c. 32, s. 15; 2015, c. 13, s. 19

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. Whalen, 2021 ONCA 397

DATE: 20210608

DOCKET: C64938

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roseanne Whalen

Appellant

Peter Copeland, for the appellant

Tracy Kozlowski, for the respondent

Heard: May 31, 2021 by video conference

On appeal from the conviction on a charge of second
    degree murder on April 8, 2014, after a trial by a jury presided over by
    Justice Robert B. Reid of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Two-year-old Marissa, the appellants daughter, was repeatedly assaulted
    over many days, and perhaps weeks, by Rainbow Hill, the appellants girlfriend.
    Eventually, Rainbow killed Marissa. She subsequently pled guilty to second
    degree murder.

[2]

Although there was no evidence the appellant physically assaulted
    Marissa, she was charged with second degree murder. The Crown alleged the
    appellant caused Marissas death by failing in her duty as a parent to protect Marissa
    from the physical abuse repeatedly perpetrated against her by Rainbow. The
    Crown alleged the appellant did so with the state of mind required for murder
    under s. 229(a)(ii) of the
Criminal Code
.

[3]

The jury convicted. The trial judge imposed a sentence of life
    imprisonment without eligibility for parole for 15 years. The appellant appeals
    conviction only.

[4]

After hearing oral argument, the court dismissed the appeal with reasons
    to follow. These are the reasons.

(1)

The Crowns Closing
    Argument

[5]

Counsel for the appellant submitted, that because of the evidence heard
    by the jury, there was a real risk the jury could allow their empathy for the very
    young victim, and their disgust with the conduct of the appellant and Rainbow,
    to  overwhelm their obligation to objectively and rationally assess the evidence
    in accordance with the legal principles provided by the trial judge. Counsel contends
    some of the arguments made by the Crown and the language used by the Crown in
    his closing jury address substantially increased the risk of a verdict based on
    an emotional response to the evidence. Counsel argues that the Crowns closing
    address resulted in an unfair trial and a miscarriage of justice.

[6]

At trial, the defence sought to depict the appellant as a person of
    limited intelligence who was manipulated, victimized and abused by Rainbow. In
    his closing address, Crown counsel made a vigorous and repeated attack on the
    viability of that defence.

[7]

In the main, Crown counsels submissions remained within the boundaries
    of proper advocacy. For example, the Crowns argument that the evidence showed
    the appellant to be a cunning and streetwise liar was in direct response to the
    portrayal of the appellant presented by the defence. The Crowns
    characterization found support in the evidence. Whether the Crowns argument
    would ultimately carry the day, was for the jury to decide.

[8]

Crown counsel did use strong language at times in his closing argument. In
    many circumstances, that language accurately reflected the state of the evidence.
    Some of Crown counsels comments, however, were arguably overly dramatic, and
    potentially inflammatory. The Crown also misstated the evidence of one witness,
    although the evidence was far from central to the case.

[9]

We are satisfied that any shortcomings in Crown counsels closing did
    not put the fairness of this trial at risk. There was no objection to Crown
    counsels closing and no request that the trial judge address in his
    instructions to the jury any of the remarks made by Crown counsel.

(2)

The Instruction on
    the
Mens Rea
Required for Murder

[10]

The
    Crown relied on s. 229(a)(ii). The
mens rea
of murder under that
    section has three components:

·

the appellant must have intended to cause bodily harm to Marissa;

·

the appellant must have known the bodily harm was likely to cause
    Marissas death; and

·

the appellant must have been reckless as to whether death ensued.

[11]

Counsel
    for the appellant argues that Crown counsel wrongly described the
mens rea
component of s. 229(a)(ii) in his closing argument, and that the trial judges
    instructions did not adequately correct the misapprehension created by Crown
    counsels closing.

[12]

In
    his closing argument, Crown counsel referred to the necessary intent required
    under s. 229(a)(ii) as recklessness. He then went on to argue that the
    appellant had the necessary intent for several reasons. Counsel submitted, the
    appellant knew Rainbow presented a clear and present danger to Marissa. Crown
    counsel further argued that the appellant was present virtually every time
    Rainbow assaulted Marissa. Next, the Crown contended the appellant made no
    attempt to intervene or protect Marissa in the face of those repeated beatings.
    Finally, the Crown submitted the appellants conduct showed she knew Rainbow
    would kill Marissa. All of the Crowns submissions were grounded in the
    evidence.

[13]

Crown
    counsels reference to the necessary intent as recklessness was, as a matter
    law, incorrect. Crown counsel was not, however, purporting to instruct the jury
    on the law. He made it clear to the jury they would take their legal
    instructions from the trial judge. Crown counsel was making submissions as to the
    factual findings, which he urged the jury to make to justify a finding the
    appellant had the necessary
mens rea
for murder. Considered in that
    context, Crown counsels submissions were neither inappropriate nor misleading.

[14]

The
    trial judge referred to the
mens rea
requirement in s. 229(a)(ii)
    several times in the course of his instructions. In his first reference, the
    trial judge wrongly told the jury that the requirement the appellant know the
    bodily harm was likely to cause death and the requirement of recklessness as to
    whether death ensued were alternative requirements. Both are required to
    establish the required
mens rea
under s. 229(a)(ii).

[15]

The trial judge, however, correctly outlined the
mens
    rea
required in several subsequent
    passages in his instructions to the jury. The first correct reference to the
    required
mens rea
appears
    in the sentence immediately following the sentence containing the error. The
    trial judge correctly put the
mens rea
requirement to the jury three times in the page and
    one-half of transcript following his initial misstatement of the
mens
    rea
.

[16]

In addition to the repeated correct oral instructions, the
    jury had the trial judges instructions in writing. The required
mens rea
was accurately set out in those instructions.

[17]

There
    was no objection to the trial judges instructions on s. 229(a)(ii).

[18]

In
    any event, the recklessness component of s. 229(a)(ii) was essentially
    surplusage on the facts of this case. If the jury was satisfied the appellant
    intended to cause Marissa bodily harm by failing to protect her from the
    repeated serious assaults inflicted by Rainbow, and if the jury was satisfied
    the appellant knew those assaults were likely to cause Marissas death and did
    not intervene, as she was obligated to do, the jury would inevitably have found
    the appellant to have been reckless as to whether Marissa died as a result of
    the assaults.

(3)

The Trial Judges
    Review of the Evidence Relating to the Appellants
Mens Rea

[19]

Trial
    judges are required to relate the relevant evidence to the issues raised in the
    case. Counsel for the appellant submits the trial judge was obligated to refer
    to certain text messages when outlining the evidence relevant to the
mens
    rea
issue. Those text messages passed
between
    the appellant and Rainbow in the few days immediately preceding Marissas death.

[20]

The
    content of the text messages cut both ways. Parts were potentially inculpatory
    and parts were potentially exculpatory. While the trial judge did not refer to
    the specific passages put forward on appeal, he did refer to the text messages
    in a more general way in his instructions.

[21]

Trial
    judges are not obligated to refer to all of the evidence that may have
    relevance to an issue at trial. Certainly, the trial judge could have referred
    to the passages from the text messages relied on by the appellant. He probably
    would have done so, had he been asked to do so at trial. His failure to do so does
    not constitute reversible error.

[22]

In holding that the failure to refer to the text messages
    did not constitute reversible error, we place significance on the position of the
    defence at trial. Counsel fully and forcefully argued the case for the
    appellant at trial. There is no suggestion the appellant was not properly
    represented. Trial counsel did not ask the trial judge to specifically refer to
    the parts of the text messages which are now put forward as crucial to an
    understanding of the appellants position with respect to
mens rea
.

[23]

When considering what
    evidence should be related to the various issues, trial judges are entitled to look
    to counsel for assistance in identifying the parts of the evidence which
    counsel regard as crucial to a proper understanding of their position on any
    issue. If, as the appellant now contends, one piece of evidence is crucial to
    an understanding of the defence case, one would expect trial counsel to say so.
    Trial counsel does not appear to have viewed the passages from the text
    messages as nearly as significant as does appellate counsel. We cannot say he
    was wrong in that assessment.

[24]

The trial judge adequately
    dealt with the evidence relevant to
mens rea
and did so in an even-handed manner.

(4)

The Instruction on
    the After-the-Fact Conduct

[25]

The
    trial judge instructed the jury that the appellants conduct after Marissas
    death could constitute circumstantial evidence of the appellants guilt. He
    identified three parts of the evidence as potentially after-the-fact conduct:

·

the appellants participation in the attempts to prevent the
    first responders from seeing Marissa when they attended at the apartment in
    response to the 9-1-1 call;

·

the appellants participation in the burying and then re-burying
    of her daughter; and

·

the appellants attempts to keep Marissas death secret.

[26]

The
    trial judge instructed the jury, at some length, on the proper approach to be
    taken to evidence of after-the-fact conduct. He stressed, that while an
    inference of guilt could be drawn, the jury must be careful to consider all other
    possible inferences first. He further instructed the jury that even if the
    appellant was motivated by feelings of guilt, those feelings could be
    attributable to something other than the offence with which she is now
    charged.

[27]

In
    the course of his instruction on the requisite
mens rea
, the trial
    judge instructed the jury that the evidence which he had earlier outlined as
    after-the-fact conduct was relevant to the issue of intent. The trial judge did
    not go into any more detail.

[28]

The
    trial judge vetted his jury instructions with counsel before giving the jury
    those instructions. Counsel were content with the after-the-fact instruction.
    On appeal, counsel argues the trial judge was required to go into considerably
    more detail with the jury as to the possible uses and the prohibited uses of
    that evidence.

[29]

The
    appellant was not prejudiced by the manner in which the trial judge approached
    the after-the-fact conduct evidence. That evidence, particularly as it related
    to the appellants involvement in the burial and re-burial of her daughter, was
    potentially powerful evidence of the appellants
mens rea
. A more
    detailed instruction as to how the jury might use that evidence to infer the
    requisite
mens rea
could only have hurt the defence position. That no
    doubt explains why the defence was satisfied with the proposed instructions and
    did not request any further instruction on the use of the evidence the trial
    judge had identified as evidence of after-the-fact conduct. The instructions
    were adequate and did not prejudice the appellant.

Conclusion

[30]

The appeal is dismissed.

Doherty
    J.A.

G.T.
    Trotter J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1062484 Ontario Inc. v. McEnery,
    2021 ONCA 129

DATE: 20210302

DOCKET: C68190 and C68191

Roberts, Zarnett and Sossin
    JJ.A.

DOCKET: C68190

BETWEEN

1062484 Ontario Inc.

Plaintiff (Appellant)

and

Williams McEnery, Williams
    Litigation Lawyers and Paul McEnery, by his litigation guardian, the Public
    Guardian and Trustee

Defendants (Respondents)

DOCKET: C68191

AND BETWEEN

1770650 Ontario Inc.

Plaintiff (Appellant)

and

Williams McEnery, Williams
    Litigation Lawyers and Paul McEnery, by his litigation guardian, the Public
    Guardian and Trustee

Defendants (Respondents)

Christine
    G. Carter, for the appellants

Stephen Cavanagh and Robin S. Brown,
    for the respondents Williams McEnery and Williams Litigation Lawyers

No one appearing for the respondent
    Paul McEnery

Heard: January 26, 2021, by video conference

On appeal from the judgments of Justice Robyn
    M. Ryan Bell of the Superior Court of Justice, dated February 7, 2020, with
    reasons reported at 2020 ONSC 825, 1 B.L.R. (6th) 120, and from the costs
    order, dated June 22, 2020, with reasons reported at 2020 ONSC 3861.

REASONS FOR DECISION

OVERVIEW

[1]

This is a consolidated appeal from two summary
    judgments, both dated February 7, 2020, with additional reasons on costs, dated
    June 22, 2020.

[2]

The motion judge heard summary judgment motions
    in two actions against the respondents, one brought by the appellant 1062484
    Ontario Inc. (106 Ontario) and one by the appellant 1770650 Ontario Inc.
    (177 Ontario). Both appellants were represented by the same counsel on the
    motions and the motion judges reasons dealt with both actions.

[3]

The respondent Williams McEnery, now known as
    Williams Litigation Lawyers (the Firm), is a law firm located in Ottawa
    focusing on civil litigation.

[4]

The respondent Paul McEnery (by his litigation
    guardian, the Public Guardian and Trustee) was a lawyer who shared space with
    the Firm. Mr. McEnerys practice included corporate law, commercial law, real
    estate, and estates law.

[5]

In the first action, the appellant 106 Ontario
    claimed that a related company dealt with Mr. McEnery and as a result loaned
    $420,000 in March 2015, of which $400,000 was repaid, and $360,000 in September
    2015, none of which was repaid. 106 Ontario claims that the loans were made not
    just to Mr. McEnery but to the Firm because Mr. McEnery was dealing as, or was
    held out to be, a partner of the Firm. It sues for recovery as the assignee of
    the outstanding debt.

[6]

In the second action, the appellant 177 Ontario alleged
    that, as a result of dealings with Mr. McEnery, in September 2015 it provided
    $241,000 to be used to pay off and discharge a mortgage. The mortgage remains registered
    on title. 177 Ontario seeks to recover the amount advanced as well as
    additional costs incurred to maintain the mortgage in good standing from both
    Mr. McEnery and the Firm because it alleges that he was dealing as, or was held
    out to be, a partner of the Firm.

[7]

The motion judge granted summary judgment in
    favour of the appellants as against Mr. McEnery.

[8]

However, the motion judge dismissed the
    appellants motion for summary judgment as against the Firm.

[9]

The motion judge also granted summary judgment
    in favour of the Firm, dismissing the appellants actions as against the Firm.

[10]

Each appellant appeals the motion judges disposition
    of its respective summary judgment motion on substantially the same grounds.

[11]

For the reasons that follow, we dismiss the
    appeal.

THE MOTION JUDGES DECISION

[12]

The motion judge found there was no genuine
    issue requiring a trial with respect to Mr. McEnerys liability, granting
    summary judgment against him in favour of the appellants for the outstanding debts.

[13]

The motion judge also found no genuine issue
    requiring a trial with respect to the Firms liability and granted summary
    judgment in favour of the Firm.

[14]

Specifically, the motion judge found that Mr. McEnery
    was not a partner of the Firm and that the respondents conducted two distinct
    businesses. As a result, the Firm was not liable for actions of Mr. McEnery
    under ss. 11 or 12 of the
Partnerships Act
, R.S.O. 1990, c. P.5.

[15]

The motion judge based this finding on a close
    reading of the record, including: the Firms partnership agreement, which
    expressly stated that Mr. McEnery was not a partner of the Firm; law society
    filings; bank account and accountants records; and other documentary evidence.
    She stated, at para. 67:

There is
    compelling evidence that the [respondents] were not carrying on a business in
    common. Mr. McEnery and the [Firm] shared office space for many years in an
    office building owned by Mr. McEnery and Mr. Williams personally. Mr. McEnery
    paid his share of the common overhead expenses. However, Mr. McEnery and the [Firm]
    had separate offices, separate trust accounts, separate employees, and separate
    filing and computer systems. Mr. McEnery had his own chartered accountant. He
    had his own financial statements, separate from those of the [Firm]. The [Firm]
    and Mr. McEnery maintained their respective trust accounts at different
    financial institutions.

[16]

Further, the motion judge found that, since no
    credit was given to Mr. McEnery in reliance of his being allegedly held out as
    a partner of the Firm, liability under s.15 of the
Partnerships
    Act
could not be established.

ANALYSIS

[17]

We begin with the standard of review. Absent an
    extricable error of law, which would be reviewable on a correctness standard,
    deference is owed to findings on a summary judgment motion. Decisions as to
    whether there are genuine issues for trial are questions of mixed fact and law
    which will not be disturbed absent a palpable and overriding error:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8;
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 81-84.

[18]

We see no such errors.

The liability issue

[19]

The motion judge considered two different
    pathways under the
Partnerships Act

for holding the Firm liable for the appellants
    losses.

[20]

First, she considered whether Mr. McEnery was a
    partner of the Firm. Under s. 11 of the
Partnerships Act
, a firm may
    be held liable for the wrongful act or omission of a partner. Under s. 12, a
    firm may be liable for a partners misapplication of money or property received
    for or in custody of the firm.

[21]

After a thorough assessment of the parties
    objective intentions, the motion judge found that Mr. McEnery was not a partner
    of the Firm, and that the Firm was not liable for the actions of Mr. McEnery.

[22]

The appellants principal argument regarding
    this pathway is that the motion judge misconstrued the test for a business in
    common when she stated, at para. 74:

The fact
    that parties hold themselves out as partners may be evidence of their intention
    to carry on business in common under a partnership, but this alone would not
    have the effect of validating the existence of a partnership (
Continental Bank
, at para. 36). A court may find the existence of a
    partnership, notwithstanding express statements between the partners to the
    contrary, on the basis of the partnerships dealings with third parties, but
    only if other partnership
indicia
are present (
Elbow River
, at para. 86, citing Alison R. Manzer,
A
Practical Guide to Canadian Partnership Law
, loose-leaf (Aurora, Ont.:
    Canada Law Book, 1994- (October 2011 release consulted) at para. 2.340).

[23]

The appellants submit that the motion judge
    erred in this statement of the principle. They argue that if individuals
    present to the world a common business enterprise with a view to profit, then
    this may be sufficient to constitute a partnership.

[24]

We do not find any error in the motion judges
    statement of the law from
Continental Bank Leasing
    Corp. v. Canada
, [1998] 2 S.C.R. 298
.

[25]

The appellants also contend that the requisite
    indicia set out in
Continental Bank

were in fact present. They focus on the
    definition of a partnership in s. 2 of the
Partnerships Act
, which has
    three elements: (a) a business; (b) carried on in common; (c) with a view to
    profit.

[26]

The indicia which the appellants say show that Mr.
    McEnery and the Firm carried on business in common with a view to profit
    largely involve how the Firm held out Mr. McEnery to third parties. Those
    alleged indicia include the following:

·

the Firm name was Williams McEnery;

·

the Firms Facebook page and website referred to
    Mr. McEnery as a founding partner;

·

the Firm had a single reception area with a
    single receptionist;

·

the Firms letterhead contained no indication
    that Mr. Williams and Mr. McEnery were not partners; and

·

the appellant 177 Ontario was directed to make
    cheques payable to Williams McEnery.

[27]

We would not give effect to this argument. We
    are satisfied that the motion judge committed no palpable and overriding error
    in her identification and application of the test as to whether Mr. McEnery was
    a partner of the Firm. Her finding that Mr. McEnery and the Firm were not
    carrying on a business in common is one of mixed fact and law and thus entitled
    to deference.

[28]

The second pathway to liability considered by
    the motion judge concerned the Firms alleged holding out of Mr. McEnery as a
    partner within the meaning of s. 15(1) of the
Partnerships
    Act
.

[29]

Section 15(1) of the
Partnerships
    Act
provides:

Every person, who by words spoken or written
    or by conduct represents himself or herself or who knowingly suffers himself or
    herself to be represented as a partner in a particular firm, is liable as a partner
    to any person who has on the faith of any such representation given credit to
    the firm, whether the representation has or has not been made or communicated
    to the persons so giving credit by or with the knowledge of the apparent
    partner making the representation or suffering it to be made.

[30]

In applying s. 15(1) to this case, the motion
    judge followed the approach taken by Corthorn J. in
Dawson v. Halpenny
    Insurance Brokers Ltd.
,
2017 ONSC 4487
. Under that approach, the appellants
    would first be required to establish that Mr. McEnery and the Firm held
    themselves out to the public as partners. Second, the onus would shift to the Firm
    to show that the Firm and Mr. McEnery clearly conveyed to the public that they
    were not partners. Third, even if the first two steps favoured the appellants, they
    would still need to show that they gave credit to Mr. McEnery based on his
    being held out as a partner of the Firm to the public.

[31]

The motion judge focused her analysis on the
    third step in this framework, namely whether the appellants had subjectively
    relied on their belief that Mr. McEnery was a partner with the Firm in their
    respective dealings with him. Following the approach in
Dawson
, the
    motion judge reasoned that the first two steps in the framework would only be
    relevant if the appellants could meet the subjective portion of the test for
    holding out.

[32]

As the motion judge acknowledged, there was
    evidence in the record that the decision-makers for the businesses involved in the
    impugned transactions relied on their belief that Mr. McEnery was a partner of
    the Firm. One of those decision-makers gave evidence that he and his wife took
    comfort in the fact Mr. McEnery was part of the Firm, while the other stated
    that he would not have given their business to Mr. McEnery had he realized Mr.
    McEnery was a sole practitioner.

[33]

However, the motion judge did not accept this
    evidence. She referred to the former statement, at para. 104, as little more
    than a bare allegation and to the latter, at para. 107, as bootstrapping
    evidence.

[34]

We see no basis on which to interfere with the
    motion judges findings of fact on this issue.

[35]

For this reason, the appellants appeal of the
    motion judges finding that the Firm was not liable fails.

The boomerang order issue

[36]

The appellants argue the motion judge erred by
    granting summary judgment in favour of the Firm when the Firm had not brought a
    cross-motion seeking such relief. This situation is commonly referred to as a
    boomerang order; the party that brought a motion for summary judgment ends up
    with a summary judgment order against itself.

[37]

The motion judge relied on several cases in
    which this court has held that a motion judge has authority to grant summary
    judgment in a partys favour where no cross-motion has been filed, including:
Meridian
    Credit Union Limited v. Baig
,
2016 ONCA 150
, 394
    D.L.R. (4th) 601, at para.
17
, leave to appeal to S.C.C. refused, (2017)
    46 C.B.R. (6th) 3,
King Lofts Toronto I Ltd. v. Emmons
,
2014
    ONCA 215
, 40 R.P.R. (5th) 26, at paras.
14-15
; and
Kassburg
    v. Sun Life Assurance Company of Canada
, 2014 ONCA 922,
124 O.R.
    (3d) 171
, at paras.
50-52
.

[38]

The motion judge properly also considered
Drummond
    v. Cadillac Fairview Corporation Limited
, 2019 ONCA 447, where a boomerang
    order was found inappropriate. She found that the factors which made a
    boomerang order inappropriate in
Drummond
were not present in this
    case.

[39]

Based on the record in this case, the motion
    judge held, at para. 31:

There is no unfairness to the plaintiffs in
    the other actions against Mr. McEnery and the [Firm]. None of those plaintiffs
    has moved for summary judgment. Some of their counsel have participated in case
    conferences dealing with the scheduling of these motions. Like the plaintiffs
    before me, the plaintiffs in the other actions were, effectively, on notice
    that the plaintiffs motions might be unsuccessful, and summary judgment could
    be ordered in the [Firms] favour. As the [Firm] put it in its written
    supplementary submissions on this issue, [a]ny risk of contrary findings
    regarding the plaintiffs primary allegation of actual partnership is present
    regardless of the [Firms] request for a boomerang order. There is no risk of
    contrary findings regarding the issue of whether the [Firm] is liable pursuant
    to s. 15(1) of the
Partnerships Act
, R.S.O. 1990, c. P.5 for holding
    Mr. McEnery out as a partner because that issue is factually specific to each
    plaintiff who has alleged detrimental reliance.

[40]

We find no error in the motion judges
    application of the case law on summary judgment. The motion judge found that summary
    judgment was a timely, affordable, and proportionate procedure in this case.
    We see no basis on which to disturb that finding.

The costs issue

[41]

The motion judge awarded the Firm its partial
    indemnity costs against the appellants in the respective amounts of $35,751.58
    and $20,646.64. She granted the appellants each their partial indemnity costs
    against Mr. McEnery in the amount of $1,250. However, she declined to make a
Sanderson costs award, which
    would have required Mr. McEnery to pay the Firms costs, concluding in her costs
    endorsement that such an award would not be just or fair in the circumstances
    of this case.

[42]

The appellants seek leave to appeal the amount
    of the costs award against Mr. McEnery and submit the motion judge erred in
    failing to issue a Sanderson order. They say the motion judge erred in
    depriving them of their costs of the motion and the action against Mr. McEnery
    and argue it was fair and reasonable to hold Mr. McEnery responsible for the
    Firms costs because those costs were incurred as a result of Mr. McEnerys
    misconduct and refusal to consent to judgment.

[43]

While we would grant leave, we would not give
    effect to these submissions.

[44]

There is no basis on which to interfere with the
    quantum of the motion judges costs order against Mr. McEnery. While low, we
    see no error in the motion judges exercise of her discretion in the
    circumstances of this case as detailed in her costs reasons.

[45]

With respect to the appellants second argument,
    this court set out the circumstances which warrant a Sanderson or Bullock
    costs order in
Moore v. Wienecke
, 2008 ONCA 162, 90 O.R. (3d) 463. Unless plainly wrong, costs
    awards are not to be set aside:
Moore
, at para. 40. In
Moore
, MacPherson J.A. reiterated, at
    para. 45, that a courts determination of whether to grant a Sanderson order is
    discretionary.

[46]

The motion judge identified and applied the test
    for a Sanderson costs order as set out in
Moore
. The appellants submissions
    on appeal largely mirror those the motion judge considered and rejected in her
    costs endorsement.

[47]

Accordingly, we find no basis on which to
    interfere with the motion judges exercise of discretion on the costs issue.

CONCLUSION

[48]

For the reasons set out above, the appeal is dismissed

[49]

The respondent Firm is entitled to its costs. By
    agreement of the parties, costs are fixed at $11,500.00, all inclusive.

L.B. Roberts J.A.

B. Zarnett J.A.

Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210

DATE: 20210401

DOCKET: M52312, M52313, and M52314 (C68695)

Paciocco J.A. (Motions
    Judge)

BETWEEN

9383859 Canada Ltd.

Plaintiff
(Appellant/Responding Party)

and

Kubeskaran Navaratnam,
Ronald Lachmansingh and Marilyn Reiter Nemetz

Defendants
(Respondents/Moving Parties)

and

Musab Saeed, Mian Imran
    Saeed,
Nirmalarajah Gunarajah, Viveka Ramesh, Mohinder Sansoye,
Ramesh Senthilnathan

Defendants

M. Scott Martin, for the moving party Marilyn Reiter
    Nemetz (M52312)

James R.G. Cook, for the moving party Kubeskaran
    Navaratnam (M52313)

Bronwyn M. Martin, for the moving party Ronald
    Lachmansingh (M52314)

Sandeep Singh, as representative of the responding party

Heard: March 29, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

The moving parties, Kubeskaran Navaratnam, Ronald Lachmansingh, and
    Marilyn Reiter Nemetz, each bring motions pursuant to r. 61.06(2) to dismiss an
    appeal brought by 9383859 Canada Ltd., (938) from the August 17, 2020
    decision of C.J. Brown J. (the Motion to Strike Order) on the basis that 938
    has failed to comply with the order for security for costs made by Pepall J.A.
    on December 11, 2020 (the Security for Costs Order). The Security for Costs
    Order required 938 to post security for costs of the appeal in the sum of
    $15,000 by January 22, 2021. It is not disputed that 938 has not paid this
    amount into court.

[2]

For reasons that follow, it is in the interests of justice to grant the
    moving parties motions and dismiss 938s appeal, bearing court file number
    C68695 (the Main Appeal).

MATERIAL FACTS

[3]

The actions underlying the instant motions arose from a failed real
    estate transaction and assignment of an agreement of purchase and sale (the
    APS). 938 was the original purchaser and assignor of the APS.

[4]

More than two years after the deal fell through, 938 sued the moving
    parties, who are all lawyers involved in the failed transaction or related
    litigation. None of the moving parties acted for 938 in connection with the
    APS: Ms. Reiter Nemetz acted for the vendor; Mr. Navaratnam acted for the
    assignee, Musab Saeed, on the transaction; and Mr. Lachmansingh acted for Mr.
    Saeed in related litigation

The Motion to Strike Order

[5]

On August 17, 2020, pursuant to rule 21.01(1)(b), C.J. Brown J. issued
    the Motion to Strike Order, which dismissed 938s actions, without leave to
    amend, as disclosing no reasonable cause of action. In her reasons, C.J. Brown
    J. found,
inter

alia
, that none of the moving parties
    owed a legal duty to 938 that could support legal action, that Mr. Lachmansingh
    had absolute immunity to the claims made against him, and that all the actions
    were statute-barred and an abuse of process.

[6]

As indicated, 938 has appealed the Motion to Strike Order to this court
    in the Main Appeal.

The Security for Costs Order

[7]

On December 11, 2020, Pepall J.A. granted leave to 938s sole director
    and shareholder, Sandeep Singh, to represent 938 on the Main Appeal. She also
    issued the Security for Costs Order, which required 938 to post security in the
    amount of $5,000 per lawyer before January 22, 2021

The panel review and extension motions

[8]

Rather than comply, 938 attempted to file materials for a panel review of
    the Security for Costs Order but failed to do so within the required four-day
    period. 938 then brought a motion for an order extending the time to file
    materials for the panel review.

[9]

On March 9, 2021, van Rensburg J.A. denied the motion for extension of
    time as contrary to the interests of justice (the Extension Denial Decision).
    On March 22, 2021, 938 filed a request for a panel review of the Extension
    Denial Decision, evidently in hopes of re-opening the door to persuade a panel
    to set aside or vary the Security for Costs Order.

[10]

While
    938 is seeking this domino of rulings, the date set for the Main Appeal is
    approaching; it is currently scheduled to be heard on May 19, 2021.

ANALYSIS

[11]

In
Virc v. Blair

(2016), 134 O.R. (3d) 795 (C.A.), at paras. 4-5, Juriansz
    J.A. agreed with the proposition that [o]nce a failure to comply with an order
    to pay security for costs is established, the onus then shifts to the
    appellant to provide compelling reasons why dismissal is not in the interests
    of justice.

[12]

It
    is not disputed that 938 has failed to comply with the Security for Costs
    Order. I find that 938 has not provided compelling reasons why dismissal is not
    in the interests of justice. Indeed, I am satisfied in the circumstances of
    this case that it is positively in the interests of justice to dismiss the Main
    Appeal.

[13]

As
    Juriansz J.A. recognized in
Virc
, at para. 5, discretion under r.
    61.06(2) should be exercised in light of the particular subsection of r.
    61.06(1) under which the initial order was made:

Different determinations justify an order for security for
    costs under each of rule 61.06(1)(a), (b) and (c). In paying careful attention
    and deference to the initial decision, a judge hearing a motion under subrule
    (2) should be mindful of the different considerations that applied in the
    particular case.

[14]

The
    Security for Costs Order at issue was made pursuant to rr. 61.06(1)(b) and
    56.01(1)(d). In her endorsement, Pepall J.A. found there was good reason to
    believe that if the moving parties were successful in the Main Appeal, they
    would be unable to recover their costs because 938 is a single-purpose
    corporation and has no assets.

[15]

In
    my view, Pepall J.A.s findings are sound. The Security for Costs Order was
    made based on the admitted fact that 938 was incorporated solely to acquire the
    property in issue and has no assets.

[16]

Further,
    while I recognize that Mr. Singh is not a lawyer and that this inhibits his
    ability to identify grounds for appeal, I have closely examined the Motion to
    Strike Order and see no realistic basis upon which it could have been
    challenged. Frankly, the actions 938 has commenced are legally without hope,
    yet they are vexing the moving parties, who are pointlessly incurring
    significant costs to defend them which they will never recover.

[17]

I
    appreciate the public interest in permitting litigants to have their day in
    court so that an appeal may be determined by a panel on its merits. However, in
    the circumstances of this case, particularly 938s lack of assets and the
    manifest weakness of the Main Appeal, that interest does not prevail. Moreover,
    the amount Pepall J.A required 938 to post by way of security is modest and
    does not unfairly impede 938s opportunity to access justice. If 938 wanted its
    day in court, this amount should have been paid.

[18]

I
    have also considered whether these motions for dismissal are premature, given
    that the panel review of the Extension Denial Decision remains outstanding. In
    my view, the interests of justice are not served by waiting for that review to
    play out.

[19]

In
Susin v. Susin
, 2008 ONCA 66, 37 E.T.R. (3d) 159, Laskin J.A.
    similarly dismissed an appeal for failure to post security for costs while an
    effort to obtain a panel review was outstanding because the appellant had not
    put forward any basis to resist the dismissal motion: at para. 5.

[20]

938s
    position in this case is even more dire than that of the appellant in
Susin
.
    938 has provided no meaningful basis to resist the Security for Costs Order, no
    meaningful basis to resist the Extension Denial Decision and seek a panel
    review of the Security for Costs Order, and no meaningful basis to doubt the
    Motion to Strike Order, which is the subject of the Main Appeal.

CONCLUSION

[21]

Accordingly,
    it is in the interests of justice to grant the orders sought by the moving parties.
    The Main Appeal, court file number C68695, is dismissed.

[22]

Costs
    are payable on these motions to each moving party in the amount of $1,500.00,
    inclusive of disbursements and HST.

David M. Paciocco
    J.A.