COURT OF APPEAL FOR ONTARIO

CITATION: Montour v. Beacon Publishing Inc., 2019 ONCA 246

DATE: 20190329

DOCKET: C64409

Doherty, Pardu and Nordheimer JJ.A.

BETWEEN

Jerry Bradwick Montour and Grand River
    Enterprises Six Nations Ltd.

Plaintiffs (Respondents)

and

Beacon Publishing Inc., o/a, Frontline Safety
    & Security, Frontline
Security Magazine, Edward R. Myers, Christina MacLean, Philip
Murray, Scott Newark, Martin Rudner, John Doe and Jane Doe

Defendants (Appellants)

Colin Baxter and Julie Mouris, for the appellants

Ryder Gilliland and Amanda McInnis, for the respondents

Heard: February 14, 2019

On appeal from the order of Justice Harrison S. Arrell of
    the Superior Court of Justice, dated November 20, 2017, with reasons reported
    at 2017 ONSC 4735.

Pardu J.A.:

[1]

The defendants appeal from the decision of the motion
    judge refusing to dismiss this defamation action pursuant to s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C. 43,
    the Anti-SLAPP provisions
. For the reasons that follow, I would
    dismiss the appeal.

A.

Factual overview: the publication

[2]

The appellant Beacon Publishing Inc. published
    an article written by the appellant Edward. R. Myers in a magazine entitled
    FrontLine Security. The appellant Christina MacLean is the owner, general
    manager and editor of the magazine. The other appellants appeared on the
    masthead of the publication as members of the editorial board, but appear to
    have had no knowledge of or involvement in the publication. The respondent, Grand
    River Enterprises Six Nations Ltd. (GRE) is a large manufacturer of
    cigarettes, and Jerry Montour is its CEO.

[3]

The publication is in a glossy magazine style
    format, and has the appearance of a professionally produced publication. There
    is a banner across the top of the front cover reading Public Safety, Security,
    Enforcement, Emergency Management. Below that is the title FrontLine Safety
    & Security, followed by a large print heading meant to indicate the
    contents of the publication, Illicit Tobacco Why is it a Big Deal? followed
    by The World Stage, Canadas Tobacco Roads and Courses of Action:
FrontLine
    Security
11: Special Edition (2016).

[4]

The overall thrust of the publication is that
    contraband tobacco is associated with organized crime, smuggling and terrorism.
    This is made clear in the opening page of the magazine, at p. 3:

Last year in Canada, organized crime
    syphoned off nearly $3 billion from the Canadian tax base, according to
    experts. Without this fraud, taxpayers would be able to use that money for
    their own benefit rather than bolstering the crime kingpins who support
    ancillary activities such as weapons trafficking and human sex slavery. Some of
    the proceeds of illicit tobacco have been tracked to international terrorists
    and mass murderers like Mokhtar Belmokhtar (aka
Mr. Marlboro
). January 2016 saw him take the lives of six humanitarian workers
    from Quebec during the Burkina Faso massacre of more than 20 innocent tourists.
    In 2008, he famously kidnapped and held Canadian diplomat, Robert Fowler, for 130
    days.

From a simple economic perspective, the threat
    of contraband tobacco may be counted in terms of a lost tax stream. However,
    even more dire economic consequences are at risk in our trading relationships
    around the world. Heads of State in several Latin American countries have seen
    their local economies jeopardized by illicit tobacco from Canada. These foreign
    jurisdictions deal with the drug cartels of infamy. Their partnership with
    Canadian smugglers allows the cartels to fuel their operations through cheap,
    tax-free cigarette revenue from Canada.

The law enforcement community acknowledges
    that more  not less  needs to be done to monitor the movement of all tobacco
    in Canada. The sources of raw tobacco used for contraband cigarette production
    are largely from either Southwest Ontario or the Eastern U.S. (North Carolina
    and Virginia).

While partisan
    politics saw the death of this initiative, the proposed study is important.
    Recent law enforcement activities have unearthed a dangerous network of
    organized criminal groups that handle different parts of an international
    smuggling ring that starts in the tobacco growing fields in Canada and the
    U.S., then moves to the manufacturing operations on aboriginal reserves, and
    finally makes its way into the international smuggling networks.

[5]

This theme is reinforced by multiple, prominent
    references connecting terrorism and tobacco smuggling.

[6]

Part 2 of the publication focuses on Canada, and
    links criminal activity to contraband tobacco, at p. 9:

In the past five
    years, some progress has been made but much of the
status quo
continues. Moreover, some disturbing new trends are emerging that
    suggest our internal challenges have leaked across our borders and are causing
    problems to governments and communities abroad. To make matters worse, last
    year some provinces increased the tax on tobacco products and the federal
    government recently announced plans to introduce plain packaging. While these
    and other measures go far in regulating lawful products, they are, in fact,
welcomed by the criminal element
as an opportunity to gain further competitive advantages in the
    marketplace. In this section, as we look at how the illicit trade of tobacco is
    currently positioned within our borders, our focus is almost exclusively on
    illicit cigarettes manufactured in Ontario and Quebec and the factors driving
    this criminal and lucrative trade.

[7]

Specific references to the respondent corporation
    follow. Immediately beside the above passage, linking crime to cigarettes
    manufactured in Ontario, is a photograph of Putters cigarettes, a brand
    manufactured by the respondent corporation with the caption Do you smoke
    contraband cigarettes? and showing the results of an online poll conducted by
    a newspaper.

[8]

The publication goes on to connect the
    respondent corporation to smuggled goods in Costa Rica and in Mexico, at pp. 18-19:

Costa Rica

A team of journalists from Costa Rican
    newspaper,
Diario Extra
, travelled to Canada
    to investigate the growing trend of cigarettes being smuggled into their
    country. Specifically, the team visited Grand River Enterprises, a tobacco
    manufacturer on Six Nations in Ohsweken, Ontario. The report by
Diario
    Extra
suggested that Grand River Enterprises is known by
    Costa Rican authorities in connection with smuggled products and organized
    crime. An official quoted by the newspaper says there have been an increasing
    number of investigations involving the Seneca brand of cigarettes, which is
    manufactured by Grand River Enterprises, and that it was becoming one of the
    biggest smuggled goods in our country.

Mexico

Another media outlet in Mexico,
El
    Financiero
, picked up on the same theme and published a
    7-minute exposé for television on the problem of contraband tobacco in Mexico.
    The report indicates that 17% of cigarettes sold in Mexico are contraband, and
    contends that the main supplier is Grand River Enterprises, a manufacturing
    plant in Six Nations.

The
El
    Financiero
report estimates that 1.87 million of Mexicos
    population is supplied by contraband cigarettes. This is a dedicated market and
    a lucrative base that is being exploited by criminal enterprise for illicit
    gain. For many in Canadas political system, it is important that they become
    informed and understand the direct links of this criminal activity to Canadas
    legislation, regulation and other government polices.

[9]

Finally, at p. 23, the publication went on to
    connect both respondents to black market cannabis cultivation:

Fanning the Flames

Diversifying the Black
    Market

In July last year,
Vice News
reported that federal law enforcement officers in the United States seized more
    than 12,000 cannabis plants from two farming operations on tribal land in
    California. The connection to Canada is that the operation was allegedly
    financed by Jerry Montour, CEO Grand River Enterprises, a cigarette
    manufacturer based in Six Nations, Ontario. The article suggests that Montours
    alleged connection is one of the first seemingly concrete examples of the
    tobacco industry diversifying its portfolio.

[10]

FrontLine Security normally publishes four times
    a year, and has a circulation of about 16,000. This was a special edition of
    the magazine that was produced in addition to its normal publication schedule. It
    is published both in hard copy and online. According to the appellants, it is
    distributed to members of Parliament and Cabinet, provincial legislatures, and
    industry executives in the fields of national and border security, policing,
    infrastructure security, IT security, emergency preparedness and tax and trade
    policy.

[11]

The respondents plead that the magazine included
    multiple defamatory meanings, including that GRE smuggles illegal tobacco
    products, is helping finance terrorists through the sale of contraband
    tobacco products, is a criminal organization, smuggles its brands into
    Costa Rica, supplies contraband cigarettes to nearly 1.87 million individuals
    in Mexico, does business with Latin American drug cartels and foments
    corruption.

B.

Decision of the motion judge

[12]

The motion by the appellants, to summarily
    dismiss the action pursuant to s. 137.1 of the
Courts of Justice Act
was
    dismissed. In coming to this decision, the motion judge concluded that the vast
    majority of the issues dealt with in the publication are matters of public
    interest, particularly the issues surrounding contraband tobacco:
Montour
    et al v. Beacon Publishing Inc. et al,
2017 ONSC 4735, at paras. 16-22. He
    also found that there was no doubt that the words complained of were published
    and named the respondents. He indicated that [t]he words state that the plaintiffs
    smuggle contraband tobacco and that they are involved with organized crime. Such
    words are clearly defamatory. I therefore conclude that the claim has
    substantial merit:
Montour
, at para. 24. Those findings are not in
    issue on this appeal.

[13]

The motion judge dealt with four defences raised
    by the appellants: (1) justification, (2) responsible communication, (3) qualified
    privilege and (4) fair comment. He concluded that none of the defences were
    made out on the evidence before him. I will now turn to those defences
    individually and briefly summarize the motion judges holding on each.

(1)

Justification

[14]

The motion judge rejected justification because
    the appellants pleaded only a broad generalization that these statements were
    true in substance and in fact as of the date of publication and because the appellants
    relied on other publications which had expressed what they say were similar
    views:
Montour
, at paras. 27-28. The motion judge cited the repetition
    rule from
Grant v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640,
    at para. 119, which holds that repeating a libel has the same legal
    consequences as originating it. This rule reflects the laws concern that one
    should not be able to freely publish a scurrilous libel simply by purporting to
    attribute the allegation to someone else.

(2)

Responsible communication

[15]

The motion judge rejected the responsible
    communication defence at paras. 31- 32 of his reasons:

[31] Alleging that
    someone is a smuggler of tobacco and associated with organized crime is clearly
    a serious allegation of criminal activity. On the record before me the due
    diligence to verify these allegations was non-existent other than relying on
    the comments of others. Contraband tobacco as an issue is of public importance
    but there was no urgency in producing the article that would justify failing to
    verify the facts as reported. The sources for the comments about the Plaintiffs
    were other articles that had been published. Those articles were not fact
    checked in any manner that has been shown in the record before me.

[32]
Grant
states at para. 116 in most cases, it is inherently unfair to publish
    defamatory allegations of fact without giving the target an opportunity to
    respond. I conclude, based on the record before me, that the Plaintiffs side
    of the story was not sought. I also conclude that it was not reported in the
    Defendants article, when referring to another publication
El
Dario,
that
    it had been reported in that article that the Plaintiffs had denied any
    involvement in contraband tobacco. Likewise the article of the Defendants did
    not report the fact that the cultivation of marijuana was legal on tribal lands
    in California as reported in the
Vice

News
which was used as a
    source.

(3)

Qualified privilege

[16]

The motion judge found that the defence of
    qualified privilege was not made out on two grounds. First, the motion judge
    held that the defence was not generally available to publications that are
    broadly distributed:
Montour
, at para. 35. Second, the motion judge
    found that the appellants were under no duty to communicate the information
    about the respondents in the publication, and certainly under no duty to report
    uncorroborated allegations of smuggling contraband tobacco by the respondents:
Montour
,
    at para. 37.

(4)

Fair comment

[17]

The motion judge cited
Grant
for the
    principle that the defence of fair comment applies to statements of opinion,
    but not fact. He found this defence was not made out because the allegations
    about the respondents were expressed as statements of fact, not opinion:
Montour
,
    at para. 38.

C.

Errors alleged

[18]

The appellants do not challenge the motion
    judges conclusions that the statements about the respondents were defamatory, nor
    do they challenge his conclusions about responsible communication, qualified
    privilege or fair comment. However, the appellants submit that the motion judge
    erred in three respects:

1.

He failed to balance the public interest in
    protecting the expression embodied in the appellants article about contraband
    tobacco, against what they submit is minimal harm, if any, suffered by the respondents.

2.

He erred in concluding that presumed damages
    could amount to harm suffered by the respondents, where there was no evidence
    of financial loss, nor any specific evidence that the reputation of the respondents
    was diminished on account of the actions of the appellants.

3.

He erred in concluding that the defence of
    justification asserted by the appellants was insufficient to bar continuation
    of the action.

D.

analysis

(1)

Standard
    of Review

[19]

The motion judge did not have the benefit of the
    six decisions released by this court in August 2018 and his decision does not
    precisely track the analytical framework established in those authorities:
1704604
    Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
    (3d) 161;
Able Translations Ltd. v. Express International Translations
    Inc.,
2018 ONCA 690, 428 D.L.R. (4th) 568;
Armstrong v. Corus
    Entertainment Inc
., 2018 ONCA 689, 143 O.R. (3d) 54;
Fortress Real
    Developments Inc. v. Rabidoux
, 2018 ONCA 686, 426 D.L.R. (4th) 1;
Platnick
    v. Bent
, 2018 ONCA 687, 426 D.L.R. (4th) 60,
Veneruzzo v. Storey
,
    2018 ONCA 688, 23 C.P.C. (8th) 352.

[20]

As explained in
Pointes Protection
at paras.
    96-97, a motion judges decision is owed deference, absent an identifiable
    legal error, or palpable and overriding factual error:

[96] The public interest
    evaluations required under s. 137.1(4)(b) cannot be reduced to an
    arithmetic-like calculation. It would be misleading to pretend they can be. The
    assessments are qualitative and, to some extent, subjective. Because the
    balancing of the competing public interests will often be determinative of the
    outcome of the s. 137.1 motion, and because the analysis contains an element of
    subjectivity, it is crucial that motion judges provide full reasons for their
    s. 137.1(4)(b) evaluations.

[97] If a motion judge provides
    full reasons, an appeal court must defer to the motion judges balancing of the
    competing interests under s. 137.1(4)(b), absent an identifiable legal error,
    or a palpable and overriding factual error. Deference is important, as there is
    no reason to think that a simple recalibration of the competing interests by an
    appeal court will provide a more accurate assessment.

(2)

The balancing of public interest in expression
    against the harm caused by publication

[21]

Section 137.1(4)(b) of the
Courts of Justice
    Act
provides that a judge shall not dismiss a proceeding under subsection
    (3) if the responding party satisfies the judge that:

(b) the
    harm likely to be or have been suffered by the responding party as a result of
    the moving partys expression is sufficiently serious that the public interest
    in permitting the proceeding to continue outweighs the public interest in
    protecting that expression.

[22]

As indicated earlier, the motion judges reasons
    do not precisely track the analytical framework that was later established in
Pointes
    Protection
. However, I rely on his findings in relation to the defences of
    responsible communication and qualified privilege to the extent they are
    relevant to this balancing exercise.

[23]

While the motion judge found that the subject of
    contraband tobacco was a matter of general importance, he observed that the
    statements about the respondents were highly defamatory, uncorroborated
    allegations published with non-existent due diligence, and that there was no
    public interest in receiving such allegations:
Montour
, at paras.
    31-33.

[24]

On the other hand, at paras. 42-43, he found
    that the allegations of criminality were so serious, that they would likely
    damage anyones reputation and standing in their community, and that the respondents
    had shown credible and compelling evidence of harm:

[42] The
    plaintiffs are a leading native Canadian company and its principal Mr. Montour,
    is a high profile indigenous entrepreneur within the native community. The
    Publication was targeted at the Plaintiffs suppliers and the content remains
    on the Internet. The defendants have not apologized or retracted the alleged
    defamatory statements nor removed the allegations from the internet. The
    allegations of criminal conduct, and the association with organized crime, are
    serious allegations which would likely damage anyones reputation and standing
    in their community.

[43] I conclude that the Plaintiffs
    have shown credible and compelling evidence of harm which appears reasonably
    likely to be proved at trial based on the record before me.

[25]

The motion judge repeatedly recognized that
    there is a public interest in the subject of contraband tobacco. The appellants
    submit that the article was a serious one, and that the magazine is a shoestring
    operation run out of Ms. MacLeans basement. This litigation will, they say,
    be ruinous for them in circumstances where they are up against well-funded,
    experienced litigators. They assert that the libel chill resulting from this
    action will deter them from publishing future articles of public interest, and
    that there is no public interest in a trial.

[26]

I would not interfere with the motion judges
    balancing of the competing interests. He essentially concluded that the
    defamatory remarks were very serious and that the harm suffered by the
    respondents outweighed the public interest in protecting the expression of the
    appellants.

(3)

The absence of evidence of financial loss by the
    respondents

[27]

The appellants also submit that the motion judge
    erred in assessing whether the harm suffered by the respondents was serious.
    The appellants point out that the individual respondent must be treated
    separately from the respondent corporation. The appellants argue that a
    corporation cannot suffer from hurt feelings, and rely on
Walker et al. v.
    CFTO Ltd. et al.
(1987), 59 O.R. (2d)
    104 (C.A.),
at p. 113:

A companys entitlement to damages in defamation
    has recently been summed up in Carter-Ruck, Libel and Slander [citation
    omitted] in the following terms:

As was made
    clear by Lord Reid in
Lewis v. Daily Telegraph Ltd
.,
A company cannot be injured in its feelings, it can only be
    injured in its pocket. Its reputation can be injured by a libel but that injury
    must sound in money.
 Whilst Lord Reid went on to say
    The injury need not necessarily be confined to loss of income; its goodwill
    may be injured,
a company, which is unable at
    trial, some two or three years after the original defamatory publication, to
    point to the slightest hiccup in its trading figures, may be hard pressed to
    persuade a court that even an unpleasant libel has seriously injured its
    reputation. Unlike a personal plaintiff, it cannot tug the jurys heart strings
    by describing its distress and humiliation on reading the defamatory words
. [Emphasis added.]

[28]

The appellants argue that since the respondent
    corporation admits that it has suffered no financial losses, the only possible
    assessment the motion judge could have made about the nature and quantum of the
    respondent corporations damages is that there are none. It submits that the
    respondent corporation has simply relied on bald assertions that the
    publication may damage its relationship with tobacco farmers, and that it will
    raise concerns within the Six Nations community. The publication was hand
    distributed to farmers in the area who supplied tobacco to the respondent
    corporation.

[29]

In
Hill v. Church of Scientology of Toronto
, [1995] 2 S.C.R. 1130,

the
    court indicated at p. 1196: general damages in defamation cases are presumed
    from the very publication of the false statement and are awarded at large. The
    appellants argue that these presumed damages are insufficient evidence of harm
    for the purposes of the balancing required by s. 137.1(4)(b).

[30]

This court dealt with the assessment of harm in
    this context in
Pointes Protection
, at paras. 88-91:

[88] The harm suffered or likely to
    be suffered by the plaintiff as a consequence of the defendants expression
    will be measured primarily by the monetary damages suffered or likely to be
    suffered by the plaintiff as a consequence of the impugned expression.
However,
    harm to the plaintiff can refer to non-monetary harm as well. The preservation
    of ones good reputation or ones personal privacy have inherent value beyond
    the monetary value of a claim. Both are tied to an individuals liberty and
    security interests and can, in the appropriate circumstances, be taken into
    account in assessing the harm caused to the plaintiff by the defendants
    expression:

Hill v. Church of Scientology of Toronto
, [1995] 2
    S.C.R. 1130, at paras. 117-21;
Blencoe v. British Columbia (Human Rights
    Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307, at paras. 79-80.

[90] On the s. 137.1 motion, the plaintiff must provide a basis
    upon which the motion judge can make some assessment of the harm done or likely
    to be done to it by the impugned expression. This will almost inevitably
    include material providing some quantification of the monetary damages. The
    plaintiff is not, however, expected to present a fully-developed damages brief.
    Assuming the plaintiff has cleared the merits hurdle in s. 137.1(4)(a), a
    common sense reading of the claim, supported by sufficient evidence to draw a
    causal connection between the challenged expression and damages that are more
    than nominal will often suffice.

[91] The plaintiff cannot,
    however, rely on bald assertions in the statement of claim relating to damages,
    or on unsourced, unexplained damage claims contained in the pleadings or
    affidavits filed on the s. 137.1 motion. The motion judge must be able to make
    an informed assessment, at least at a general or ballpark level, about the
    nature and quantum of the damages suffered or likely to be suffered by the
    plaintiff: see
Able Translations Ltd. v. Express International Translations
    Inc.
,
2016 ONSC 6785, 410 D.L.R. (4th) 380
, at
    paras. 85-95, affd 2018 ONCA 690;
Thompson v. Cohodes
, 2017 ONSC 2590,
    at paras. 33-38. [Emphasis added.]

[31]

A serious libel does not always manifest itself
    in financial losses. Recall that in
Hill v. Scientology
false
    allegations of criminal contempt against a lawyer resulted in general,
    aggravated and punitive damages totaling 1.6 million dollars, even without
    evidence linking any financial loss to the defamatory remarks. It is often
    difficult for a plaintiff to link reputational harm to financial loss, or to
    lead testimonial evidence of the actual impact of a particular defamation upon
    reputation.

[32]

In
Lachaux v. Independent Print Ltd.
, [2017] EWCA Civ 1334, [2018] 2 W.L.R. 387,
the
    England and Wales Court of Appeal dealt with a statutory provision intended to
    limit actions for defamation and create a higher threshold for making out a
    defamation claim. The statute provided that a statement is not defamatory
    unless its publication has caused or is likely to cause
serious
    harm
to the reputation of the claimant:
Defamation Act 2013
(UK), c. 26, s. 1 (emphasis added).

[33]

In
Lachaux
the court noted the difficulty
    of proving consequential damages flowing from harm to reputation, at para. 28:

In this context, however, and as is borne out
    by numerous statements in the authorities, there often may in practice be
    little in the way of available positive evidence to establish the harm to
    reputation occasioned: see, for example, the observations of Warby J in
    paragraph 55 of his judgment in
Ames v. Spamhaus

Project
    Limited
[2015] EWHC 127 (QB), [2015] 1 WLR 3409 where he
    said:

 but as
    practitioners in this field are well aware, it is generally impractical for a
    claimant to seek out witnesses to say that they read the words complained of
    and thought the worse of the claimant.

[34]

In
Pointes Protection
the court made it
    clear that s. 137.1 was not intended to fundamentally change the law of
    defamation, as it does not alter the substantive law as it relates to claims
    based on expressions on matters of public interest: at para. 46.

[35]

Sometimes a false statement may reasonably be
    supposed to have such a serious impact upon reputation that harm may be
    presumed, and weighed in the balance for the purposes of s. 137.1(4). Allegations
    meant to be taken seriously of significant criminal activity might fall within
    this category.

[36]

In
Lachaux
, the court referred to this
    possibility at para. 72:

[72] A
    presumption, whether rebuttable or irrebuttable, arises before and irrespective
    of consideration of the evidence. An inference arises after and in consequence
    of consideration of the evidence. Thus at law, in cases of libel (and some
    cases of slander) there is a presumption of damage: which presumption has in my
    view, as will be gathered, not of itself been displaced by the 2013 Act. But
    there is no presumption, at law, of
serious
damage in a libel case. Accordingly that, under s. 1(1), has to be proved. The
    point nevertheless remains that serious reputational harm is capable of being
    proved by a process of inference from the seriousness of the defamatory
    meaning. [Emphasis in original.]

[37]

The
Lachaux
court concluded at para. 79
    that [w]hether in any given case the [defamatory] imputation is of sufficient
    gravity as of itself to connote serious reputational harm (quite apart from the
    question of consequential or special damage) could be assessed at the
    screening hearing under the
Defamation Act 201
3 (UK).

[38]

Many of the recommendations of the 2010 Report
    of the Anti-SLAPP Advisory Panel to the Attorney General were adopted by the
    legislature:
Pointes Protection
,
at para. 28; Anti-SLAPP Advisory Panel,
Report to the Attorney General
(Ontario:
    Ministry of the Attorney General, 2010). That panel recognized at paras. 36-37
    of its report that other interests that could conflict with freedom of
    expression also deserved vindication through the legal process:

[36] The fact that a legal action
    may have an adverse effect on the ability of persons to participate in
    discussion on matters of public interest should not be sufficient to prevent
    the plaintiffs action from proceeding. The protection and promotion of such expression
    should not be a cover for expression that wrongfully harms reputational,
    business or personal interests of others.

[37] Conversely, the fact that a
    plaintiffs claim may have only technical validity should not be sufficient to
    allow the action to proceed. If an action against expression on a matter of
    public interest is based on a technically valid cause of action but seeks a
    remedy for only insignificant harm to reputation, business or personal
    interests, the actions negative impact on freedom of expression may be clearly
    disproportionate to any valid purpose the litigation might serve.

[39]

This observation is reinforced in
Pointes
    Protection
,
at para. 88,
    where this court indicated:

The preservation of ones good
    reputation or ones personal privacy have inherent value beyond the monetary
    value of a claim. Both are tied to an individuals liberty and security
    interests and can, in the appropriate circumstances, be taken into account in
    assessing the harm caused to the plaintiff by the defendants expression.

[40]

Here, the impugned publication connected the respondents
    to organized crime, terrorism and tobacco smuggling. The presumed harm
    resulting from such serious statements may be weighed in the balance for the
    purposes of s. 137.1(4) even where there is no evidence of pecuniary loss, or
    direct evidence about damage to reputation. A trier of fact might conclude that
    one or both of the plaintiffs suffered significant harm, as did the motion
    judge, even in the absence of direct evidence of pecuniary loss.

[41]

For the purposes of the Anti-SLAPP motion, I
    would not differentiate between the corporate and individual respondents in
    this case. The individual respondent is so closely identified with the
    respondent corporation he founded, that a trier could conclude that defamatory
    statements about the corporation tarnish him to the same degree. In these
    proceedings, it would serve no purpose at this stage to screen out the action
    by one plaintiff, but not the other.

[42]

The motion judge did not err in considering this
    presumed damage to reputation flowing from serious allegations of considerable
    criminality.

(4)

Justification

[43]

The appellants argue that they met their
    evidentiary burden by putting the defence of justification in play. They submit
    that the onus then fell on the respondents to satisfy the motion judge that
    there were reasonable grounds to believe that none of the defences advanced
    were valid. The appellants submit that a trier could conclude that their
    allegations were true, thereby validating the defence of justification. They
    point to the fact that the individual respondent admitted an association with
    marijuana farming operations in California. What the appellants publication
    did not mention was that American federal authorities permitted cultivation and
    sale of medical marijuana on tribal lands, as was reported by
Vice News
.
    The implication of the reference in the publication was that the respondents were
    involved in criminal activity.

[44]

The test for evaluating whether there is a valid
    defence within the meaning of s. 137.1 was outlined in paras. 83 - 84 of
Pointes
    Protection
:

[83] I would add two further observations with respect to the
    no valid defence requirement in s. 137.1(4)(a)(ii). That provision requires
    the plaintiff to satisfy the motion judge that there are reasonable grounds to
    believe that the defendant has no valid defence to the plaintiffs claim. The
    section would be unworkable if the plaintiff were required to address all
    potential defences and demonstrate that none had any validity. I think the
    section contemplates an evidentiary burden on the defendant to advance any
    proposed valid defence in the pleadings, and/or in the material filed on the
    s. 137.1 motion. That material should be sufficiently detailed to allow the
    motion judge to clearly identify the legal and factual components of the
    defences advanced. Once the defendant has put a defence in play, the persuasive
    burden moves to the plaintiff to satisfy the motion judge that there are
    reasonable grounds to believe that none of the defences put in play are valid.

[84] My second observation relates
    to the word valid. I would interpret valid as meaning successful. The onus
    rests on the plaintiff to convince the motion judge that, looking at the motion
    record through the reasonableness lens, a trier could conclude that none of the
    defences advanced would succeed. If that assessment is among those reasonably
    available on the record, the plaintiff has met its onus.

[45]

Here, the appellants statements linking the respondents
    to criminal activity are based on statements attributed to others, which are of
    unknown value, which do not obviously support the conclusions expressed by the appellants.
    For example, the translation of the Mexican newspaper article relied upon by
    the appellants, to connect the respondents to contraband tobacco, is of unknown
    quality, and the article could be read as suggesting that the respondent
    corporation was not associated with contraband at the time. The appellants also
    suggest that a study by a major accounting firm supports the allegation that the
    respondent corporation smuggled tobacco and was involved with organized crime. This
    study does not on its face support the allegation that the respondent
    corporation was smuggling contraband tobacco or was involved in organized
    crime.

[46]

Further, this study was commissioned by another
    tobacco company, a competitor to the respondent corporation. The study cautions
    that the accounting firm has not sought to establish the reliability of the
    information sources by references to other evidence, and that the report was
    only designed to benefit the company who commissioned the study.

[47]

There are many other problems with the other
    source material relied upon by the appellants which I need not explore in
    detail.

[48]

The respondents assert that they are careful to
    comply with the many regulations controlling the sale of tobacco products in
    Ontario and Canada. There is no evidence of any domestic prosecution of the respondents
    from violation of those regulations.

[49]

As was discussed earlier, the appellants
    statements that link the respondents to criminal activity rely on problematic
    source material, much of which is of an unknown value. As such, a reasonable trier
    could conclude that the appellants did not have a valid defence of
    justification.

E.

Conclusion and disposition

[50]

The respondents have satisfied their onus to
    show the following:

1.

A reasonable trier could conclude that the action has substantial
    merit;

2.

A reasonable trier could conclude that there are no viable defences;

3.

The harm suffered by the respondents as a result of the appellants expression
    is sufficiently serious that the public interest in permitting the action to
    proceed outweighs the public interest in protecting that expression.

[51]

Accordingly, I would dismiss the appeal with
    costs to the respondents in the agreed sum of $20,000, inclusive of HST and
    disbursements. In the event any issues remain regarding costs awarded by the
    motion judge, the parties may make brief written submissions in that respect,
    due from the appellants within 30 days after the date of release of these
    reasons, and from the respondents within 15 days thereafter.

G. Pardu J.A.

I agree Doherty
    J.A.

I agree I.V.B.
    Nordheimer J.A.

Released: March 29, 2019

DD


COURT OF APPEAL FOR ONTARIO

CITATION: Murray (Re), 2019 ONCA 179

DATE: 20190306

DOCKET: C64950

Doherty, Benotto and Huscroft JJ.A.

IN THE MATTER OF: JASON MURRAY

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jason Murray, acting in person

Kelley Bryan,
amicus curiae

Avene Derwa, for the Attorney General

Janice Blackburn, for the Person in Charge of St.
Josephs Healthcare Hamilton

Heard: March 1, 2019

On appeal against the disposition of the Ontario Review
Board dated, December 13, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from the December 13, 2017 disposition of the
Board ordering that he be detained at a general forensic unit of St. Josephs
Healthcare Hamilton.

[2]

The Boards disposition ordered the appellant to be detained at a
general forensic unit. While under that order, the appellant escaped. He was
ordered detained in a secure unit by a disposition of the Board dated September
18, 2018.

[3]

The Boards September 18, 2018 disposition replaces the December 13,
2017 disposition. As a result, the appeal from the 2017 disposition is moot.
This is not an appropriate case to exercise our discretion to hear the appeal.
The 2018 disposition is more restrictive than the 2017 disposition it replaces,
based on changed circumstances that arose subsequent to that disposition.

[4]

The appellant is now detained pursuant to the 2018 disposition, and that
is the operative disposition and has not been appealed. We note that the appellant
was offered the opportunity to appeal the 2018 disposition along with the 2017,
but chose not to do so.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Quenneville v. Robert Bosch GMBH, 2019 ONCA 235

DATE: 20190326

DOCKET: M50102 (C66240)

van Rensburg, Benotto and Harvison Young JJ.A.

BETWEEN

Matthew
    Robert Quenneville, Luciano Tauro, Michael Joseph Pare, Therese H. Gadoury, Amy
    Fitzgerald, Renee James, Al-Noor WissanJi, Jack Mastromattei, Jay MacDonald and
    Judith Anne Beckett

Appellants
(Plaintiffs)

and

Robert Bosch GMBH
    and Robert Bosch LLC

Respondents
(Defendants)

Ilan Ishai, for the moving parties (non-party
    respondents) Volkswagen entities

Kirk M. Baert and James Sayce, for the plaintiffs/appellants

Heard and released orally: March 15,
    2019

REASONS FOR DECISION

[1]

This is a motion to quash the appeal from an
    order dismissing a motion for production under r. 30.10(1), without prejudice
    to the plaintiffs bringing the motion back later. The moving party, Volkswagen,
    claims the order is interlocutory and the appeal lies to the Divisional Court with
    leave. The responding parties, the appellants, submit that the dismissal of a
    motion under r. 30.10(1) is final and the appeal lies to this court.

[2]

The appellants rely on jurisprudence from this
    court as authority for the proposition that any order from a r. 30.10(1) motion
    is final. They also submit that the addition of the words by the motion judge
    without prejudice do not change the character of the order because all such
    orders can be brought back to the court. Further, the appellants say that the
    appeal route is determined by the order not the reasons. They add that, even if
    the reasons are considered, they disclose a final determination of certain
    issues.

[3]

We do not agree.

[4]

First, the authorities relied on by the
    appellants are situations where the issue was in fact finally disposed of
    between the plaintiffs and the third parties. We need not determine whether
    these cases have been superseded by subsequent jurisprudence.

[5]

Second, the reasoning of the motion judge is
    relevant to whether the order is final or interlocutory: see
Ambrose
    v. Zuppardi
, 2013 ONCA 768, 368 D.L.R. (4
th
)
    749, at para. 19.

[6]

Finally, we disagree with the appellants that
    the reasons disclose a final determination, see paras. 52 and 53 of the motion
    judges reasons. The order appealed from here does not finally dispose of any
    issue between the plaintiffs and the non-parties. It is therefore
    interlocutory.

[7]

The motion is granted and the appeal is quashed.
    Costs are payable to the moving party in the amount of $9,000 inclusive of disbursements
    and applicable taxes.

K.
    van Rensburg J.A.

M.L.
    Benotto J.A.

A.
    Harvison J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Antic, 2019 ONCA 160

DATE: 20190301

DOCKET: C65094

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nickola Antic

Appellant

Paul Calarco, for the appellant

Megan Petrie, for the respondent

Heard: February 26, 2019

On appeal from the conviction
    entered on November 23, 2017 by Justice Pamela Borghesan of the Ontario Court
    of Justice and the sentence imposed on January 22, 2018.

REASONS FOR DECISION

[1]

Mr. Antic appeals his convictions, after a judge alone trial, on charges
    of robbery and breach of probation.  He also appeals the sentence imposed of 20
    months.

[2]

Only one issue is raised on the conviction appeal and that is whether
    the prosecution ought to have been stayed for unreasonable delay pursuant to s.
    11(b) of the
Canadian Charter of Rights and Freedoms
. The trial judge
    concluded that, after appropriate deductions from the total delay, the
    resulting delay did not exceed the presumptive ceiling of 18 months and thus
    did not warrant a stay being granted based on the principles set out in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.  For the following reasons,
    we agree with the decision of the trial judge.

[3]

It was admitted that the total delay in this case, before proper
    deductions, was 39 months and that that delay was presumptively unreasonable
    under s. 11(b) principles.  However, the appellant takes issue with three
    periods of delay that the trial judge deducted from the total delay in deciding
    whether the presumptive ceiling had been exceeded such that a breach of s.
    11(b) had occurred.

[4]

The first issue involves the time needed to set a date for a preliminary
    inquiry that ultimately never occurred.  This resulted from the fact that the
    accused changed counsel on the day that the preliminary inquiry was to
    commence.  The appellant, with his new counsel, eventually waived the
    preliminary inquiry in favour of proceeding with a trial in the Ontario Court
    of Justice.

[5]

The appellant accepts that the delay from the scheduled start of the
    preliminary inquiry to the time when the trial date was set is defence delay.
    However, the trial judge also attributed the time, from when the preliminary
    inquiry date was set to the planned commencement of the preliminary inquiry, to
    the defence.  The trial judge reasoned that, while the time to set the
    preliminary inquiry date would normally be considered institutional delay, in
    this case since the preliminary inquiry was eventually waived, it was not
    properly considered institutional delay.  In other words, had the appellant
    decided on a trial in the Ontario Court of Justice at the outset, there would
    have been institutional delay arising from setting the trial date, which there
    was in this case in any event, but there would not also have been the
    institutional delay from setting a preliminary inquiry date.

[6]

We do not see any error in the trial judges analysis on this point. There
    wound up being two institutional delays arising from the setting of dates  one
    was the preliminary inquiry date and the other was the trial date.  Had the
    appellant waived the right to a preliminary inquiry at the outset, the
    institutional delay in setting a date for the preliminary inquiry would have
    been avoided.  At the very least, had the appellant decided to waive the
    preliminary hearing well in advance of its scheduled commencement, the time
    could have been used for other matters. The Crown had subpoenaed witnesses and
    was prepared to conduct the preliminary inquiry on the scheduled date.  The
    appellant appeared on that date and without warning to any of the other
    participants indicated that he wanted an adjournment to retain new counsel.
Jordan
indicates at para. 138 that defence counsel are expected to use court time
    efficiently. The fact that that delay was not avoided lies at the feet of the
    appellant. The trial judge was correct to deduct that period of time as defence
    delay.

[7]

The second issue is with respect to the delays that occurred when the
    trial was not completed in the time frame originally contemplated.  Dates for
    the continuation of the trial had to be found.  One set of dates was made
    available in July and a further set of dates was made available in December.
    While the court was available on certain earlier dates, either Crown counsel or
    defence counsel was not.  The trial judge began by considering the delay in
    getting to the continuation of the trial as having to be attributed between the
    Crown and the defence and attributed one and one-half months to the defence.

[8]

However, later in her analysis, the trial judge deducted the entire five
    month period between July and December as an exceptional circumstance. She
    concluded that the additional time needed to complete the case was unpredicted
    by both counsel. It was the result of unforeseeable or unavoidable developments
    and thus constituted an exceptional circumstance:
Jordan
at para. 73.
    As noted in
R. v. Jurkus
2018 ONCA 489 at para. [55], where a trial
    goes longer than reasonably expected, even where the parties have in good
    faith attempted to establish realistic timelines it is likely that the delay
    was unavoidable. In our view, the trial judge correctly treated this period of
    delay as an exceptional circumstance given her findings as to how it arose.  We
    note, in passing, that this case does not engage the type of individual analysis
    arising from the unavailability of defence counsel when there are joint
    accused, that this court had to consider in
R. v. Gopie
,  2017 ONCA
    728, 140 O.R. (3d) 171. The appellants reliance on that case is misplaced.

[9]

Nevertheless, and as the respondent acknowledges, in the course of the
    trial judge moving from her initial analysis to the final analysis on this
    issue the trial judge unfortunately double-counted the one and a half months that
    trial judge had originally attributed to the defence because of the
    unavailability of defence counsel.

[10]

However,
    correcting for this double-counting does not alter the end result.  The trial
    judge found the total period of delay, after making the deductions that she
    did, to be 13 ½ months.  Adding back to the delay analysis, the double-counting
    of the one and one-half months, leaves the total delay at 15 months.  That
    delay is still below the presumptive ceiling of 18 months from
Jordan
.
    On that point, it is not necessary to deal with the respondents argument that
    we should revisit other periods of time that the respondent submits the trial
    judge also should have deducted from the total delay.

[11]

The
    third and final issue involves a further period of delay that resulted from the
    fact that the original trial judge, Zabel J., was suspended from presiding over
    any matters as a result of a complaint to the Ontario Judicial Council
    completely unrelated to this case.  Consequently, the trial could not continue
    in December as planned. The trial judge treated the delay that resulted from
    that event also as an exceptional circumstance.  We agree with her treatment of
    that issue.  While the appellant contends that he should not be tarred with the
    delay that resulted from that unusual event, the flip side is that neither
    should the Crown.  That is the whole point behind treating the time as an
    exceptional circumstance.  As
Jordan
pointed out, there are some
    events that no one can anticipate and those events should simply be removed
    from the delay analysis. The issue arising from the conduct of the original
    trial judge falls squarely within that category. That conduct was in no way
    connected to this trial. The Crown took prompt proactive measures to deal with
    the delay caused by this event. Once it became clear that the trial judge could
    not continue with the trial, new dates were obtained only two months away.

[12]

In
    the end result, the total delay that had to be considered, even after adjusting
    for the one instance of double-counting, is below the presumptive ceiling.  The
    trial judge was correct in not granting a stay.  We would note that the trial
    judge also considered this case under the transitional category and found no
    reason to reach a different conclusion under that analysis.  We agree with her
    conclusion in that respect as well.

[13]

Lastly,
    the appellant seeks leave to appeal his sentence of 20 months. The appellant
    committed two separate violent robberies where pepper spray was directed at the
    faces of employees in small commercial establishments who were working alone,
    at night.  The robberies were planned.  The appellant took the first victims
    cellphone from her and ripped out the landline from the wall.  The appellant
    had a record, and was on probation at the time of the offences.

[14]

The
    appellant has not shown any error of law or error in principle in the
    sentencing judges decision:
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089.  She considered the rehabilitative prospects for the appellant but
    she also considered that actual harm had been inflicted on the store clerks
    involved, and the fact that the appellant had a criminal record. She arrived at
    a sentence that trial counsel had acknowledged was within the range. In short,
    and contrary to the appellants submissions, the trial judge did consider the
    appellant and his circumstances, and not solely the offences. There is no basis
    for this court to interfere with the sentence that she imposed.

[15]

In
    the end result, the appeal is dismissed.  Leave to appeal sentence is granted but the sentence appeal is also dismissed. In light of the Supreme Court of Canada's decision in
R. v. Boudreault
, 2018 SCC 58, the victim surcharge is set aside.

G.
    Pardu J.A.
I.V.B. Nordheimer J.A.
A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Basha, 2019 ONCA 236

DATE: 20190325

DOCKET: C64594, C64966

Roberts, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent
(Appellant on Crown Sentence Appeal)

and

Valdrin Basha
and Anton Dokaj

Appellant

(
Respondent
on Crown Sentence Appeal)

Michael Crystal, for the appellant

Christa Reccord and James Sutton, for the respondent

Heard: March 20, 2019

On appeal from the ruling of, and convictions entered by,
    Justice Paul B. Kane of the Superior Court of Justice on October 2, 2017, with
    reasons reported at 2017 ONSC 5897 and 2017 ONSC 4910, and from the sentence
    imposed on January 19, 2018.

REASONS FOR DECISION

[1]

Mr. Valdrin Basha was convicted by a Superior Court of Justice after a judge
    alone trial of: one count of possession of cocaine for the purpose of
    trafficking, one count of possession of crack cocaine for the purpose of
    trafficking, one count of possessing proceeds of crime, and another of breach
    of probation. These charges arose out of the execution of search warrants on
    July 15, 2014, related to an ongoing drug investigation. Mr. Basha also pleaded
    guilty to a count of simple possession of cocaine found on his person when he
    was subsequently arrested.

[2]

Mr. Basha appeals his convictions. He argues that the trial judge erred
    in denying his application for a stay pursuant to s. 11(b) of the
Charter
,
    and he contends that the trial judge committed errors in applying the law of
    reasonable doubt  essentially arguing that the convictions were unreasonable.
    He also urges that his conviction of possession of the drugs found within a
    residence is inconsistent with his acquittal of possession of firearm charges
    relating to a firearm also found within that residence.

[3]

The Crown resists the conviction appeal, and is appealing the sentence
    of two years less a day, plus three years of probation, that Mr. Basha
    received.

[4]

We would dismiss both Mr. Bashas conviction appeals and the Crowns sentence
    appeal.

THE CONVICTION APPEALS

[5]

The trial judge rejected Mr. Bashas s. 11(b) application, concluding
    that the
Jordan
ceiling was not exceeded. The trial judge further held
    that in this transitional case the Crown reasonably relied upon the pre-
Jordan
law and then made reasonable efforts to adapt to the
Jordan
standards
    after the
Jordan
decision was released.

[6]

The trial judges finding that the
Jordan
ceiling was not
    exceeded depends on his conclusion that this ceiling does not include time for judicial
    deliberation. There is no need to address this issue to resolve this appeal.

In our view, even if the
Jordan
ceiling was exceeded, the trial
    judge was entitled to consider the delay to be reasonable in this transitional
    case.

[7]

Prior to the release of the
Jordan
decision, the trial in this
    matter had already been scheduled. The trial was set to conclude approximately
    29 months after the charges were laid, with the first 22 months of that period
    falling within the
Morin
period.

[8]

The Crown has satisfied us that during the pre-
Jordan
period, it
    reasonably relied on the law as it previously existed. The Crowns belief that
    the case was progressing as required by s. 11(b) was vindicated when, on the
    eve of the trial, Mr. Bashas first s. 11(b) application failed.  The application
    judge found that the delay in the case to that point related to both the
    inherent time requirements of the case and institutional delays, and that
    prejudice to Mr. Basha was minimal. Mr. Basha does not appeal those findings,
    and has made clear that the basis of his current appeal is the extended length
    of the trial and the period of deliberation after final submissions.

[9]

The question in this transitional case is therefore whether the Crown
    discharged its obligation post-
Jordan
to ensure that
Jordan
standards
    were respected. In our view, the Crown has done so.

[10]

When
Jordan
was decided, the trial dates had already been set and the trial
    was expected to conclude within the presumptive 30-month ceiling. There was no
    need for the Crown to attempt to take steps to move the case forward. Nor do we
    accept Mr. Bashas submission that the Crown alone bore responsibility for
    underestimating the trial time. The parties underestimated the trial time,
    which naturally and inevitably will cause additional delay.

[11]

When
    it became apparent during the trial that the trial estimate was inadequate, the
    Crown undertook reasonable steps to attempt to expedite the matter. These steps
    included alerting the court, obtaining extended sitting hours, and securing prompt
    continuation dates, even though these dates were not available for the lead
    Crown.

[12]

In
    these circumstances, in this transitional case, the trial judge was entitled to
    find the delay was reasonable.

[13]

We
    therefore reject the s. 11(b) ground of appeal.

[14]

We
    also reject Mr. Bashas challenge to the reasonableness of the trial judges
    findings of guilt. The evidence linked Mr. Basha solidly to the two locations
    where the narcotics were found  a residence that was clearly a stash house, as
    well as a motor vehicle belonging to Mr. Basha.

[15]

Surveillance
    evidence showed that Mr. Basha frequented and slept occasionally at the stash
    house, and engaged in acts near the stash house consistent with the sale of
    narcotics. Keys to the stash house, and to a safe in the stash house that
    contained narcotics, were found in his possession. His personal documentation
    was also found in one of the bedrooms. On this record, even though others were
    connected to the stash house and Mr. Basha was securing drugs at the residence
    for his own use, the trial judge was entitled to find that he was in joint
    possession for the purpose of trafficking of all of the narcotics found in the
    residence.

[16]

With
    respect to the motor vehicle, Mr. Basha was not only the owner of that vehicle,
    but also the driver and its sole occupant when it was last operated prior to
    the search. The cocaine found in the vehicle was in quantities and packaging
    more consistent with trafficking than personal use. In the context of all of
    the evidence, the trial judge was entitled to find that he possessed these
    narcotics for the purpose of trafficking.

[17]

Given
    Mr. Bashas role in selling drugs, his ongoing control over the vehicle, and
    the joint nature of the drug enterprise, evidence that on an earlier occasion
    another unknown person accessed the area of the vehicle where the drugs were
    ultimately found is not of such importance that the trial judge was beholden to
    address it.

[18]

Nor
    has Mr. Basha persuaded us that the finding of his possession relating to the
    narcotics in the stash house produced a verdict inconsistent with his acquittal
    of possession charges relating to a sawed-off shotgun recovered from one of the
    bedrooms in the stash house. In context, Mr. Bashas conduct easily demonstrated
    his knowledge and control over the narcotics in the stash house. The trial
    judge was entitled to find that, by contrast, there was insufficient evidence connecting
    him to the firearm in a bedroom in the stash house that he was not linked to directly.

THE CROWN SENTENCE APPEAL

[19]

The
    sentence imposed was very lenient given the quantity of drugs and Mr. Bashas
    prior related record.  The maximum reformatory sentence the trial judge imposed
    of two years less a day, followed by three years of probation, is outside the usual
    sentencing range for trafficking in cocaine and crack cocaine. However, as
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 SCR 1089, makes clear, imposing a
    sentence outside of the usual range is not a self-standing sentencing error.

[20]

The
    material questions are whether the sentence was demonstrably unfit, or the
    trial judge committed any errors of principle that affected that sentence.

[21]

In
    the unusual circumstances of this case, we do not find the sentence to be
    demonstrably unfit. The trial judge, having had the benefit of the full
    evidence in the case, including many hours of surveillance tapes, concluded
    that Mr. Basha was not a principal in the drug trafficking enterprise. He was
    an addict who, despite his work in carrying, distributing and selling drugs
    belonging to others, remained of modest financial means. A refugee traumatized
    by the horrors of a war-torn Kosovo, he began his life in Canada as a young
    teenager, isolated and troubled. He turned to drugs, and his addiction led him
    to become involved in drug trafficking.

[22]

As
    he was entitled to do, the trial judge accepted evidence that during the three
    years Mr. Basha awaited trial, he made significant rehabilitative gains,
    supported by family and health care professionals. At the time of sentencing,
    his addiction was under control, he was gainfully employed, he was leading a
    pro-social life, and his common-law partner was expecting a child.

[23]

In
    an effort to craft a deterrent and denunciatory sentence that could capitalize
    on Mr. Bashas rehabilitative efforts, the trial judge imposed the sentence he
    did. Given the trial judges findings relating to the secondary role Mr. Basha
    played in the drug trafficking operation and Mr. Bashas personal circumstances,
    and the admonition that we show deference to a trial judges sentencing
    decision, we cannot say that the exceptional sentence the trial judge imposed in
    this case was manifestly unfit.

[24]

Nor
    has the Crown persuaded us that the trial judge committed any errors of
    principle that affected the sentence. He understood the importance that
    denunciation and deterrence must play in Mr. Bashas sentencing, describing how
    he was bound to apply these principles. He was mindful of the aggravating
    factors and was entitled to accept mitigating evidence.

[25]

The
    sentence appeal is therefore dismissed.

CONCLUSION

[26]

We
    dismiss Mr. Bashas conviction appeals, and give leave to the Crown to appeal
    his sentence, but deny that sentence appeal.  We affirm Mr. Bashas convictions
    and the sentence imposed.

L.B. Roberts J.A.
G.T. Trotter J.A.
David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Biya,
    2019 ONCA 227

DATE: 20190321

DOCKET: M50238 (C66597)

Lauwers J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Abadula Biya

Applicant (Appellant)

Najma Jamaldin, for the applicant

Christine Bartlett-Hughes, for the respondent

Heard: March 15, 2019

REASONS FOR DECISION

[1]

The applicant, Abadula Biya, was convicted of two counts of careless
    storage of a firearm/ammunition, two counts of possession of a
    firearm/ammunition unauthorized, possession of a firearm knowing, possession as
    the occupant of a vehicle, possession of a loaded prohibited firearm, and possession
    of a Schedule 1 substance for the purpose of trafficking. He was sentenced to
    four years imprisonment less time served on December 14, 2018. He appeals
    conviction and sentence.

[2]

The applicant was arrested and charged on September 11, 2015. He was
    released on bail on October 14, 2015 and complied with his bail for over three
    years without incident before sentencing on December 14, 2018. I am satisfied
    that he would surrender himself into custody in accordance with the terms of
    any bail order. I do not consider him to be a flight risk or a safety risk.

[3]

The Crown argues that the applicants detention is necessary in the
    public interest. The Crown points to the seriousness of the offences on which
    the applicant was convicted and, particularly, his apparent willingness to use
    guns.

[4]

The Crown argues that the appeal has no merit. The applicant argues that
    the trial judge failed to give adequate consideration to the defences
    alternate suspect theory, which emerges on the following facts. At the time of his
    arrest, the applicant was seated in the drivers seat of a vehicle. Beside him in
    the passenger seat was Simeon George-McCool. In the rear seat immediately
    behind the drivers seat was the applicants gym bag. Sitting in the back seat
    beside the gym bag was Jevon Moore.

[5]

The applicant resisted arrest but was quickly subdued. The gym bag was
    retrieved from the car and searched. In it the officer found some personal
    items belonging to the applicant, a firearm, a magazine for the firearm
    containing several bullets and a pill bottle containing over 25 capsules of
    MDEA.

[6]

At the time of the arrest the applicant had a few grams of marijuana in
    his pocket and $1,725 in cash. Mr. George-McCool had some cocaine and another
    Schedule 1 drug on him, along with $1,050 in cash. Mr. Moore had $1,080 in cash
    on him but no drugs or drug packaging.

[7]

Mr. Moore was charged but charges were withdrawn, and he was not called
    as a witness at the trial of the applicant and Mr. George-McCool, both of whom
    were convicted.

[8]

The applicant challenges the verdict on two grounds. First, he argues
    that the trial judge erred on the issue of the legal test on circumstantial
    evidence and its application to the facts in the case. He asserts that she
    made a bald ruling that there could be no other inference available from the
    evidence other than Biya had exclusive knowledge and control of the firearm,
    ammunition, and MDEA. The applicant submits that the trial judge did not
    consider the facts of the case and did not apply
the legal test for
    circumstantial cases
recently outlined by the [Supreme Court of Canada] in
R
    v Villaroman
, 2016 SCC 33 (emphasis in original). The second ground is
    that the trial judge erred on the issue of the admissibility of the either by
    the Crown or defence.

[9]

The defence tendered Mr. Moores lengthy criminal record as a business
    record for its truth and for propensity evidence to support the defence theory
    that a reasonable inference on the facts was that Mr. Moore had exclusive
    knowledge  and control of the loaded firearm and MDEA ultimately located in [the]
    gym bag. The applicant asserts that the trial Crown objected to the
    admissibility of the criminal record on the grounds that the criminal record
    did not constitute a business record, and that amounted to unreliable hearsay.
    Alternatively, the trial Crown submitted that if the record were admitted into
    evidence, little weight should attach to it because it was somehow
    unreliable. The ruling on the
voir dire
was deferred to the end of the
    case, but the reasons for judgment do not disclose whether the trial judge
    ruled the criminal record as admissible or not, although she did refer to Mr.
    Moores record.

[10]

The
    applicant points to two excerpts from the trial judges decision. First, she
    said:

I do not accept the arguments of counsel for Mr. Biya,
    which suggests that Mr. Moore had the opportunity and propensity to have had
    the firearm, ammunition, and drugs on his person and put them surreptitiously
    into the gym bag when the police approached the vehicle. There is no real
    evidence for this, and I find the proposition to be speculative.

[11]

The
    difficulty with this statement is in the trial judges apparent ambivalence
    about the admission of the lengthy conviction record of Mr. Moore. It showed he
    had a propensity to carry firearms and traffic in Schedule 1 drugs. The
    alternate suspect theory was not, the applicant asserts, mere speculation.

[12]

Second,
    the trial judge said:

I am not satisfied that this raises a reasonable
    inference consistent with innocence. In fact, I am not satisfied that it would
    have been possible within the timeframe from the police approaching the vehicle
    to Mr. Moore and Mr. George-McCool exiting the vehicle, for Mr. Moore to have taken
    all of the items from his person and put them in the bag, and particularly
    taking the magazine out of the handgun and stowing the handgun, ammunition, and
    drugs at the bottom of the bag under all of the other contents. I do not find
    this to be feasible and reject this argument.

[13]

The
    applicant asserts that it is reasonably possible that the firearm, ammunition
    and pill bottle were slipped into the bag by Moore between the time Mr. Biya
    placed the gym bag on the rear seat and the time he is arrested. On this
    basis, the applicant asserts that the trial judge wrongly concluded that the
    only reasonable conclusion available on all the evidence, was that Biya had
    knowledge and control of the firearm/ammunition and pill bottle located in the
    gym bag
and
that it was not possible for Moore to have put those items
    (unbeknownst to Biya) in the bag during the time that he sat alone next to the
    bag while in the rear of the vehicle (emphasis in original).

[14]

Based
    on the record that I have currently available to me, it cannot be said that the
    grounds of appeal are frivolous, particularly with respect to the application
    of the argument relating to
R.
v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000,
and
    the role of Mr. Moore. While the predicate offences are obviously serious,
    based on the applicants history of bail compliance and the surety plan put
    forward, I am satisfied that he will comply with all terms of release. Standing
    on its own, the nature of the offence does not justify detention on public
    interest grounds:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at
    para. 20.

[15]

In
    the circumstances the application for bail pending appeal is allowed on the
    conditions set out in the draft order agreed to by the parties.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boghossian, 2019 ONCA 169

DATE: 20190304

DOCKET: C61891

Rouleau, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Remy Boghossian, Raffi
    Ebrekdjian and
Siva Suthakaran

Appellant

Ravin Pillay and Domenic
    Basile, for the appellant

David Friesen, for the
    respondent

Heard: February 20, 2019

On appeal from the ruling of
    Justice Alfred J. OMarra of the Superior Court of Justice, dated August 31,
    2015, with reasons reported at 2015 ONSC 5364, and from the conviction entered
    on September 8, 2015, with reasons reported at 2015 ONSC 4851, and from the
    sentence imposed on March 29, 2016.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for fraud in excess of $5,000 and
    his sentence of three years imposed after an 11-day judge alone trial.

[2]

At the conclusion of the appeal, the panel dismissed the conviction
    appeal and, with the exception of the reduction of the fine in lieu of
    forfeiture, dismissed the sentence appeal with reasons to follow. These are
    those reasons.

[3]

The appellant and two co-accused, Remy Boghossian and Raffi Ebrekdjian,
    were participants in the negotiations of a stolen and forged TD Canada Trust
    (TD) bank draft in the amount of $1,895,751. On February 10, 2011, the
    fraudulent bank draft was deposited by Mr. Boghossian, a lawyer, into his trust
    account at the Royal Bank of Canada (RBC). The proceeds from the fraudulent
    bank draft were used that same day to acquire 22 kilograms of gold bars, and 19
    kilograms of gold bars the following day.

[4]

The trial judge found that the appellants main role in the fraud was to
    coordinate with an unidentified person in the TD branch from which the bank
    draft was stolen. The trial judge found that this inside person had facilitated
    the commission of the fraud. This accomplice would intercept and respond to any
    request for confirmation of the validity of the bank draft that might be sought.
    The appellant and his co-accused were also involved in picking up and
    attempting to sell the gold bars acquired with the fraudulently obtained funds.

(1)

The conviction appeal

(a)

Unreasonable verdict

[5]

On his conviction appeal, the appellant argues that the verdict was unreasonable.
    The appellant submitted at trial that he had been introduced to Mr. Boghossian
    by Mr. Ebrekdjian purportedly to structure an investment by Mr. Ebrekdjian in a
    hotel the appellant owned in Belleville. As the case against him was purely
    circumstantial, the appellant argued that the trial judge had to reject the
    Crowns theory and the conclusion that the guilt of the appellant was the only
    inference available from the evidence led at trial. The appellant maintains
    that the trial judge erred in rejecting the appellants alternate theory as to
    why he was in contact with Mr. Boghossian and Mr. Ebrekdjian. In relying on
R.
    v. McIver
, [1965] 1 O.R. 306, at p. 309 (Ont. H.C.), affd [1965] 2 O.R.
    475 (Ont. C.A.), affd [1966] S.C.R. 254, which was subsequently overruled by
    the Supreme Court of Canada in
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, the trial judge only took into account the evidence led at trial,
    and not the absence of evidence, when considering the inferences he could draw.

[6]

In
Villaroman
, at para. 36, the court explained that, in
    circumstantial cases, the inferences consistent with the innocence of an
    accused do not have to arise from proven facts and can instead arise from a
    lack of evidence. In the appellants submission, the trial judges reliance on
McIver
means that he did not consider the significant gaps in the evidence, including
    the fact that despite extensive investigation by TD and the police, no TD
    inside person was ever identified.

[7]

In addition, in assessing the evidence that was led, the trial judge
    made a factual error that placed the appellant at or near the TD branch while Mr.
    Boghossian negotiated the stolen bank draft at the RBC. This finding would
    support the alleged link between the appellant and the inside person. In fact,
    the cellphone records disclosed that the appellant was in Belleville, miles
    from the TD branch.

[8]

The appellant further argues that, properly assessed, the evidence
    should have led the trial judge to conclude that the alleged TD accomplice did
    not in fact exist, or at a minimum, that he had a reasonable doubt as to his
    existence. This would undermine the Crowns theory as to the appellants
    alleged role in the fraud and, as a result, also undermine the basis upon which
    the trial judge rejected his theory as to why he had been in contact with Mr.
    Boghossian and Mr. Ebrekdjian.

[9]

We disagree with the appellant. Although the trial judge erred in
    placing the appellant in the vicinity of the TD branch at the time the
    fraudulent draft was deposited at RBC, in our view, this error was minor and
    played a very limited role in the trial judges reasoning.

[10]

As
    for the legal test applied by the trial judge, we agree with the Crowns
    submission that the trial judges reasons, read as a whole, demonstrate that he
    was well aware of the need to consider both the evidence led at trial as well as
    the gaps in the evidence when deciding whether any reasonable alternative to
    guilt could be inferred. The reasons clearly reveal that the trial judge was
    alive to the fact that the inside person at TD was never found or identified.

[11]

We
    also see no error in the trial judges rejection of the suggestion that no
    inside person was involved in the fraud. His finding in that regard is
    reasonable and well-founded in the evidence.

[12]

The
    circumstantial case against the appellant was solidly anchored in the evidence,
    including:

1.

over 100 calls and text messages exchanged by the appellant with the
    phone purchased and used by Mr. Ebrekdjian during the critical three-day period
    surrounding the deposit of the fraudulent draft at RBC;

2.

the context of the messages themselves, including references to the
    banker and ur guy;

3.

the participation of the appellant in the sale of the gold bars that
    were acquired in the fraud; and

4.

the appellants unexplained attendance at a meeting with Mr. Boghossian
    and Mr. Ebrekdjian shortly after the fraud was perpetrated.

[13]

The extensive involvement of the
    appellant with his co-accused over the critical period was not adequately
    explained by the appellant, who did not testify, nor was it consistent with the
    very limited evidence in the record that might support the appellants theory
    that his involvement with the co-accused was strictly related to an investment
    in his Belleville hotel.

[14]

We therefore dismiss this ground of
    appeal.

(b)

The 11(b) ground

[15]

The appellant further argues that the
    trial judge erred in dismissing his application for a stay under s. 11(b) of
    the
Charter
because of the delay incurred in reaching trial.

[16]

In our view, this ground of appeal does
    not succeed. The trial ended just over 48 months from the date of the charge. As
    this case predates the Supreme Court of Canada decision in
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, the
    trial judge applied the methodology from
R. v. Morin
, [1992] 1 S.C.R.
    771
,
to determine whether a stay should be imposed. The trial
    judge considered the various periods of delay, attributing much of it to the
    defence or finding it inherent or neutral. He assessed the overall
    institutional delay as 22 months, including 11 months in the provincial court
    and 11 months in the superior court, which is in excess of the
Morin
guidelines of 8 to 10 months in provincial court and 6 to
    8 months in superior court.

[17]

The trial judge then considered, and rejected,
    the appellants submission that he had suffered prejudice flowing from the
    delay, finding that the prejudice alleged by the appellant was principally the
    result of having been charged with the offence and the civil proceedings
    commenced by RBC.

[18]

The trial judge then concluded that the
    delay of four months in excess of the
Morin
guidelines was not unreasonable in light of the size and
    complexity of the case. He dismissed the s. 11(b) application.

[19]

The appellant argues that, viewed
    through the lens of
Jordan
, the delay
    in this case is well in excess of the presumptive

ceiling beyond
    which delays are deemed unreasonable. In his submission, the delay was not
    caused by him, but rather by his co-accused, and he was proactive in trying to
    move the matter forward. This is not, in his view, a case where transitional
    exceptional circumstances are capable of justifying the lengthy delay.

[20]

We disagree. In our view, this case
    falls squarely under the category of transitional exceptional circumstances
    recognized in
Jordan
: at
    para. 96
. This is not one of the narrow
    category of cases where the court will impose a stay under
Jordan
despite the delay having been found to be reasonable under a
Morin
analysis. As explained in
Jordan
,
    this narrow category of cases will include, for example, simple cases where the
    ceiling is vastly exceeded due to repeated mistakes or missteps by the Crown:
    at para. 98. These elements are not present in this case.

[21]

We agree with the Crown that the
    appellant did not, until shortly before the ultimate trial date was set, make
    any proactive efforts to have the trial held sooner.

[22]

Nor do we accept that the delay caused
    by the co-accused was excessive. The appellant never sought severance from his co-accused,
    nor do we consider that the limited delays in the case required the Crown to
    seek severance.

[23]

We also see no error in the trial judges
Morin
analysis, but for the error
    identified by the Crown that inured to the appellants benefit, as the trial
    judge overstated the institutional delay. Properly assessed, he ought to have assessed
    a portion of the time between the fixing of the date for the preliminary
    inquiry and the beginning of the preliminary inquiry as inherent because counsel
    required time to prepare. He ought to have made a similar assessment of the
    need for time to prepare for trial once the trial date was set. Had he done so,
    the 22 months of institutional delay would have been significantly reduced and
    would have been well within the
Morin
guidelines. This provides further support for this courts conclusion that the
    transitional exceptional circumstances applies in this case to justify the
    delay beyond the
Jordan
ceiling.

(2)

Sentence appeal

[24]

The appellant also seeks to appeal his
    sentence on the basis that, considering the limited role he played in the
    fraud, his three-year sentence is disproportionate with the three-year sentence
    imposed on Mr. Ebrekdjian and the three-and-a half-year sentence imposed on Mr.
    Baghossian.

[25]

We disagree. The trial judge determined
    that all three co-accused had cooperated in and were essential to the execution
    of the fraud, and he set the sentences accordingly. In respect of Mr.
    Baghossian, he determined that, as he was a lawyer and because of the role this
    status displayed in the fraud, an increase of his sentence by six months was
    appropriate. Therefore, on the trial judges findings, the sentences imposed were
    proportionate to the degree of responsibility of the appellant in the
    perpetration of the fraud. We would not interfere with this assessment.

[26]

The trial judge also imposed a $600,000
    fine lieu of forfeiture. The Crown acknowledges that this was made in error and
    that the appropriate amount is $27,678. In addition, the terms attached to the
    fine should be varied to provide the appellant with two years to pay after his
    release from incarceration and, in default of payment, provide for imprisonment
    for a term of one-year consecutive to his other term of imprisonment.

[27]

We agree that the fine in lieu of
    forfeiture must be varied as proposed.

Conclusion

[28]

In conclusion, the conviction appeal is
    dismissed and leave to appeal sentence is granted but, except for the reduction
    in the amount of the fine in lieu of forfeiture to $27,678, with two years to
    pay after the appellants release from incarceration and one-year imprisonment
    in the event of default, the sentence appeal is dismissed.

Paul Rouleau J.A.

G.T. Trotter J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Branford, 2019 ONCA 209

DATE: 20190315

DOCKET: C66140

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Malik Branford

Appellant

Malik Branford, acting in person

Andrew Hotke, for the Attorney General for Ontario

Nader Hasan, duty counsel

Heard: March 12, 2019

On appeal from the conviction entered on August 3, 2018
    and the sentence imposed on October 3, 2018 by Justice John R. Sproat of the Superior
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant attacks his conviction of unauthorized possession of a
    firearm found heavily wrapped under the bed in the bedroom occupied by the
    appellant. He says that the conviction is unreasonable in that the
    circumstantial evidence, considered cumulatively, did not satisfy the standard
    required by
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[2]

The trial judge stated and applied the relevant legal principles. He did
    not misapprehend the evidence. He considered and rejected, for cogent reasons,
    the claim that a third party, a former co-accused, was the person in possession
    of the gun. In our view, this conviction is well founded and is not susceptible
    to a claim of unreasonableness.

[3]

The appeal from conviction is dismissed.

[4]

As to sentence, leave to appeal sentence is granted and the victim
    surcharge set aside, but the sentence appeal is otherwise dismissed.


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.

WARNING

An order restricting publication in this proceeding was made
    under s. 517 of the
Criminal Code
and continues to be in effect.  This
    section of the
Criminal Code
provides:

517(1)         If the prosecutor or the accused
    intends to show cause under section 515, he or she shall so state to the
    justice and the justice may, and shall on application by the accused, before or
    at any time during the course of the proceedings under that section, make an
    order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry is held, the
    accused in respect of whom the proceedings are held is discharged; or

(b)     if the accused in respect
    of whom the proceedings are held is tried or ordered to stand trial, the trial
    is ended.

Failure to comply

(2)     Everyone who fails without lawful excuse, the
    proof of which lies on him, to comply with an order made under subsection (1)
    is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cordeiro-Calouro, 2019 ONCA 222

DATE: 20190320

DOCKET: M50215 (C64734)

Lauwers J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Applicant (Respondent)

and

Rui Cordeiro-Calouro

Respondent (Appellant)

Kathleen Farrell, for the
    applicant

Alan D. Gold and Alex
    Palamarek, for the respondent

Heard: March 13, 2019

A s. 517
Criminal Code
non-publication order was imposed in
    this matter at the bail hearing in the court below. That order precludes the
    publication, broadcast or transmission of any evidence taken, information
    given, representations made and reasons given.

The decision in
R. v. Cordeiro-Calouro
, 2019 ONCA 222 contains
    information covered by that order.

Accordingly, the decision will be available on the Court of
    Appeal for Ontarios website once the non-publication order ceases to be in
    effect.

In the interim, a copy of the full decision is available at the
    Registry of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.