COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rosen, 2018 ONCA 246

DATE: 20180314

DOCKET: C58320

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles Alan Rosen

Appellant

Michael Lacy, for the appellant

Alexander Alvaro, for the respondent

Heard: January 31, 2018

On appeal from the conviction entered on September 31,
    2011, and the sentence imposed on November 24, 2011, by Justice James C. Kent
    of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

After brief deliberations, a jury found the appellant guilty of second
    degree murder. The trial judge imposed the mandatory sentence of imprisonment
    for life and ordered that the appellant serve 17 years of that sentence without
    eligibility for parole.

[2]

The appellant appeals both conviction and sentence.

The background facts

[3]

After his release from jail in December 2008, the appellant moved in
    with the deceased in the deceaseds apartment. That year had been a difficult
    one for the appellant. His marriage had fallen apart. He lost his home. He
    became addicted to crack cocaine. He had no money. The deceased had served as
    the appellants surety the previous year. As the deceased told his friends, he
    was trying to help the appellant get through these myriad difficulties.

[4]

In late December 2008, the appellant disappeared. Around this time, the
    deceased learned that someone had been using his credit cards without his
    permission. The deceased told his friends and the police that he suspected the
    person who had done so was the appellant. His suspicions were accurate.

[5]

It was common ground at trial that in February 2009, after he had left
    the deceaseds apartment, the appellant cashed several cheques written on the
    deceaseds bank account. The deceaseds signature on the cheques had been
    forged. On several occasions prior to February 10, 2009 the appellant attempted
    to make purchases with the deceaseds credit cards. Many of these purchases were
    declined by the credit card issuers. Between 2:07 a.m. on February 10 and 12:59
    p.m. on February 11, 2009 the appellant did not attempt to use any of the
    deceaseds credit cards.

[6]

On February 10, 2009 the deceased met with the building manager of his
    apartment building who installed a fire alarm in the deceaseds apartment. The
    deceased agreed to provide the building manager with a set of keys for the new
    lock the deceased had installed on his apartment door.

[7]

The deceased did not provide the building manager with a new set of keys,
    nor did he keep an appointment scheduled for February 13, 2009 with a friend. No
    one saw the deceased alive after February 10, 2009.

[8]

On February 12, 2009 the appellant, posing as the deceased, called three
    financial institutions attempting to reactivate the deceaseds credit cards.
    One of the calls was made from the deceaseds apartment. By February 23, 2009
    all four of the deceaseds credit cards had been terminated. The appellant had
    made 83 successful purchases with a total value of more than $10,000, but
    several transactions had been declined.

[9]

Friends became concerned about the welfare of the deceased. On March 4,
    2009 two of them went to the deceaseds home in Dunnville. His car was in the
    driveway. The drivers seat was fully reclined and the interior, a mess  a
    state inconsistent with how the deceased typically maintained his vehicle. The
    appellant was slumped in the drivers seat. A hammer rested on the floor in
    front of the front passenger seat. A tube extended from the exhaust pipe
    through the trunk and into the passenger compartment of the car by means of a pass
    through in the rear seat.

[10]

Emergency
    assistance was called. The appellant, who appeared under the influence of
    drugs, identified himself as the deceased, provided a correct date of birth,
    and claimed to be the owner of the deceaseds home. The ruse failed. The
    appellant was arrested and searched. Among the items seized was one of the
    deceaseds credit cards and a key to the front door of the deceaseds
    apartment. In the deceaseds vehicle, police found the deceaseds wallet
    containing his identification and credit cards but no money.

[11]

Later
    that evening, police found the body of the deceased in a sleeping bag under a
    pile of items over three feet deep under a window overlooking the balcony of
    his apartment. The deceaseds head was covered with a hospital bag, a torn
    garbage bag, and a blood-soaked t-shirt. The appellants fingerprint impression
    was found on the garbage bag and on a letter on the kitchen counter in the deceaseds
    apartment. The hammer found with the appellant in the deceaseds vehicle could
    not be excluded as having caused damage to the t-shirt and the garbage bag
    covering the deceaseds head. The appellant could not be excluded as the source
    of DNA on the handle of the hammer. The deceased could also not be eliminated
    as the source of blood found on the hammer, which the Crown alleged was the
    murder weapon. In support of this theory, the Crown tendered evidence from a
    pathologist indicating that the deceased had suffered nine to ten lacerations
    to this head and multiple skull fractures. These injuries appeared to have been
    caused by a blunt object.

[12]

The
    appellant testified at trial. He denied killing the deceased, although he
    admitted having found his body when he went to the apartment on February 12,
    2009.

[13]

The
    appellant acknowledged having used the deceaseds credit cards, but claimed he
    did so as part of a scheme he and the deceased had put together to defraud the
    card issuers. Purchases would be made on each of the cards. The items purchased
    would be sold for cash and the cards reported stolen. The plan also involved
    forged cheques, which would be immediately cashed, and sale of the deceaseds
    car and television set which would then be reported stolen to collect insurance
    money. The plan did not work well.

[14]

On
    February 12, 2009 the appellant went to meet the deceased to discuss their
    fraudulent scheme. The entry door was unlocked, the apartment
    uncharacteristically messy. A 400 pound safe was missing. The appellant found
    the deceaseds body. After he found the body, the appellant knew the scam was
    over. He decided to commit suicide.  After his initial attempt failed, he
    returned to the deceaseds apartment and removed the hammer and a knife to
    ensure a tight attachment of the hose and effective transmission of the gas
    fumes to the passenger compartment of his vehicle.

the appeal from conviction

[15]

On
    the appeal from conviction, the appellant advanced three submissions
[1]
in oral argument. He argued that the trial judge erred:

i.

in failing to properly instruct the jury on the mental or fault element
    in murder, as well as that required for the included offence of manslaughter;

ii.

in failing to adequately caution the jury about reliance on various
ante-mortem
statements of the deceased admitted at trial; and

iii.

in failing to properly instruct the jury about evidence of
    post-offence conduct and, more generally, in connection with the evidence of
    discreditable conduct properly admitted at trial.

[16]

As
    I will briefly explain, I would not give effect to any of these grounds and, as
    a consequence, dismiss the appeal from conviction.

Ground #1: The Fault Element in Murder and Manslaughter

[17]

The
    appellant says that the trial judge failed to properly instruct the jury on the
    fault element in the offence charged, second degree murder, and the included
    offence of manslaughter. The error, according to the appellant, resulted from a
    combination of missteps.

[18]

To
    begin, the appellant contends, the structure of the charge was confusing and
    fraught with error.

[19]

The
    threshold issue for the jury to determine in this case was whether the Crown
    had proven beyond a reasonable doubt that the appellant was the person who
    killed the deceased. In the event, but only in the event that the jury was
    satisfied that the appellant had killed the deceased, would it become necessary
    for the jury to decide whether the killing, admittedly unlawful, was murder or
    manslaughter.

[20]

According
    to the appellant, the structure or order of the charge adopted by the trial
    judge, that is to say:

i.

unlawful killing;

ii.

state of mind; and

iii.

identity of the killer

required the jury to determine the state of mind of the
    deceaseds killer before they were satisfied that the killer was the appellant.
    This predisposed a verdict of guilty of second degree murder, before
    determination of the threshold issue of identity, especially when the trial
    judge:

i.

failed to review the essential features of the evidence and relate them
    to the fault element for second degree murder as defined in s. 229(a) of the
Criminal
    Code
; and

ii.

highlighted the appellants affirmative response to an improper
    question by the trial Crown, agreeing with the suggestion that the unlawful
    killing of the deceased was a murder plain and simple.

[21]

As
    I will explain, I would not give effect to this ground of appeal.

[22]

First,
    the parties are entitled to a properly instructed jury, not a perfectly
    instructed jury:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at pp. 320-321;
R. v. Daley,
2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31. Substance
    controls, not form.

[23]

Second,
    the order in which the essential elements of an offence are left to the jury
    for their consideration is not mandatory. What counts is that the essential
    elements are conveyed to the jury in understandable language that coincides
    with the governing legal principles. In this way, the charge informs the
    decision-maker of what must be proven in connection with each essential element,
    and the consequences of the available findings on further deliberations and the
    jurys verdict.

[24]

On
    the other hand, where an accused denies participation in the conduct
    requirements of an offence, it makes good sense and accords with the prevailing
    practice in this province to instruct the jury to consider and determine the
    participation or identity issue first. If the case for the Crown fails on this
    issue in a prosecution for second degree murder, the jury need not consider
    whether the killing was unlawful or, if unlawful, whether its legal character
    is murder or manslaughter. If this structure is followed, the risk of confusion
    is minimized and the artificiality of which the appellant complains is avoided.

[25]

That
    said, I am not persuaded that in the circumstances of this case the order in
    which the trial judge presented the essential elements of second degree murder
    caused the appellant any prejudice. Counsel on both sides of the case expressly
    approved of the trial judges approach. Neither the unlawful character of the
    killing nor the state of mind of the killer were matters of great controversy
    at trial. The pathologists evidence regarding the cause of the deceaseds
    death was largely unchallenged, and the appellants defence rested on his claim
    that someone else had killed the deceased.

[26]

Third,
    trial counsel objected to neither the trial judges ordering of the elements of
    second-degree murder, nor his references to the evidence relating to the issue
    of the legal character of the unlawful killing as murder or manslaughter. While
    lack of objection to the jury instructions is not dispositive of their
    adequacy, it affords some evidence that counsel did not consider the references
    inadequate to ensure the jurys appreciation of the value and effect of the
    evidence:
R. v. B. (P.)
, 2015 ONCA 738, 127 O.R. (3d) 721, at para.
    186.

[27]

Finally,
    although I agree that the trial Crowns question soliciting the appellants
    agreement that multiple hammer blows to the head bespoke a murder plain and
    simple and the repetition of this response in the Crowns closing and in the
    charge to the jury should not have occurred, I am not satisfied that it caused
    the appellant any prejudice, for the reasons I have already outlined.

Ground #2: Jury Instruction on
ante-mortem
Statements

[28]

The
    second ground of appeal also focuses on an alleged deficit in the final jury
    instructions: the absence of guidance on how jurors should assess evidence of
    various
ante-mortem
statements of the deceased admitted under the
    principled exception to the hearsay rule.

[29]

Evidence
    of the
ante-mortem
statements of the deceased was admitted with the
    express consent of defence counsel (not Mr. Lacy). Both parties relied upon
    this evidence in support of their case, albeit for different purposes.

[30]

The
    evidence tended to show the nature of the relationship between the appellant
    and deceased. Among other things, it revealed:

i.

that the deceased tried to help the appellant get through a difficult
    time in his life after his release from jail in December, 2008;

ii.

that the deceased allowed the appellant to stay at his apartment and to
    take care of his home; and

iii.

that the deceased tried to keep the appellant away from crack cocaine.

[31]

The
ante-mortem
statements also disclosed:

i.

that the appellant had stolen and used the deceaseds credit cards,
    racking up several hundred dollars for jewellery purchases;

ii.

that the appellant had taken a bunch of stuff without the deceaseds
    permission;

iii.

that the deceased had evicted the appellant from his apartment, was
    finished or done with the appellant, and was advised to change or had
    considered changing the locks on the apartment to prevent the appellants
    re-entry; and

iv.

that the deceased had called the police and reported a credit card
    stolen.

[32]

In
    giving evidence in his own defence, the appellant recounted a lengthy series of
    conversations he had with the deceased, at least some of which were relied upon
    as evidence of their truth. As we have noted above, the defence position at
    trial was that the appellant and the deceased devised a plan which involved the
    appellant running up charges on the deceaseds credit cards by purchasing items
    that could later be resold for cash. The appellant relied upon
ante-mortem
statements
    by the deceased in support of this theory.

[33]

The
    appellant says that the trial judge erred by failing to caution the jury about
    the dangers associated with reliance on the deceaseds
ante-mortem
statements.
    They were hearsay, thus subject to the usual hearsay dangers. The deceased had
    a motive to implicate the appellant in the credit card, bank and insurance
    scam. In addition, much of the evidence was very general in nature and
    sometimes tended to reflect the recipients interpretation of what was said,
    rather than to faithfully recount the contents of the statement.

[34]

As
    some of the evidence of
ante-mortem
statements was being given at
    trial, the trial judge gave brief mid-trial instructions to the jury. He told
    the jury that the evidence was hearsay and added:

It may or may not be true, but we of course dont know that
    from this witnesss testimony.

[35]

Shortly
    thereafter the trial judge expanded somewhat on his earlier brief remarks:

Further to what I said earlier, the evidence of those witnesses
    may be taken as if Gary Donato [the deceased] himself was here saying those
    things. Its evidence you may consider in determining whether, if its
    necessary for you to determine it, whether Charles Rosen was a friend of Gary
    Donato and that Gary was helping out, and Gary told a particular witness, for
    example, that someone had taken his credit card and that he thought the person
    who had taken it was his friend, Charles. So again, thats evidence that you
    may take as if Gary Donato was here saying it, and you may consider the
    evidence in determining whether these matters have been established on the
    evidence.  I will have much more to say about how you assess evidence and weigh
    evidence in my Charge and direction to you at the conclusion of the trial, but
    just to assist you a bit, I hope to assist you a bit, at this point given that
    there are several witnesses of this type, I felt that a further explanation was
    in order.

[36]

In
    his charge, the trial judge instructed the jury in these terms:

Out-of-court statements that are admitted for the truth of the
    matter asserted are called hearsay, and they are not usually admitted as
    evidence. However, there are exceptions to this rule, and I have allowed some
    of those statements to be presented to you. For example, you heard some
    witnesses testify that Gary Donato told them that Charles Rosen had stolen his
    credit card. Normally, evidence like that would be inadmissible hearsay. But in
    this case, I have permitted that evidence to be admitted, and you may rely on
    it in making your decision. As I directed you at the time when this came up in
    the trial, its as if Gary Donato was here to give that evidence himself.
    Clearly that cant happen, so we rely on people that he spoke to and what he
    said to them.

[37]

Neither
    counsel objected to the charge. Neither sought a repetition of the mid-trial
    instructions or further instructions to explain to jurors how to assess the
    evidence of the deceaseds
ante-mortem
statements.

[38]

It
    is commonplace that there are at least four potential sources of error when a
    witness describes an event she claims to have observed:

i.

perception;

ii.

memory;

iii.

communication; and

iv.

sincerity.
[2]

In most cases, the trier of fact is able to consider
    these testimonial factors in deciding what weight, if any, to assign to the
    witness evidence because the witness is generally required to testify under
    three conditions:

i.

personal presence before the trier of fact;

ii.

under oath or its equivalent; and

iii.

subject to cross-examination.

[39]

The
    principal reason we exclude hearsay is the absence of a contemporaneous
    opportunity for cross-examination. For it is cross-examination that may best
    expose defects in perception and memory, as well as ambiguity in communication
    and want of sincerity:
Youvarajah
, at paras. 18-19. But in the classic
    hearsay paradigm, of which this case affords an example, the maker of the
    statement does not appear as a witness before the trier of fact, and thus is
    neither under oath or its equivalent, nor subject to cross-examination.

[40]

Where
    the maker of the statement offered in evidence  the declarant  is not a
    witness, it would be obvious to the jury that this evidence is different than
    the rest of the evidence admitted at trial. The maker of this statement did not
    appear at trial, was not under oath and was not cross-examined.

[41]

Despite
    the self-evident nature of these differences, a salutary practice prevails in
    this province to instruct jurors about how to approach their assessment of hearsay
    evidence, including alerting them to its shortcomings and the advisability of
    confirmatory evidence in assessing its reliability: see, for example,
R. v.
    A(S)
(1992), 76 C.C.C. (3d) 522 (Ont. C.A.), at pp. 527-529;
R. v.
    Chretien
, 2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 69-71.

[42]

In
    the circumstances of this case, I am not persuaded that the trial judges
    failure to include an express caution regarding the
ante-mortem
statements of the deceased amounted to prejudicial error. I have reached this
    conclusion for several reasons.

[43]

First,
    this is not a case, as are many, in which it was only the Crown who relied on
    these statements to prove the charges against the appellant. In such a case,
    omission of a limiting instruction, especially where the
ante-mortem
statements reflect extrinsic misconduct of a kind apt to foster propensity
    reasoning, may cause an accused significant prejudice. But that is not this
    case. Here, the appellant relied on the hearsay evidence, much of which he confirmed
    in his own testimony, to advance his defence in which he admitted participation
    in a fraudulent scheme, but denied responsibility for the death of the
    deceased.

[44]

Second,
    both parties were content that the evidence was properly admissible under the
    principled exception to the hearsay rule. There was no real controversy about
    the making of the statements, although the parties differed about the
    inferences the jury should draw from them. Defence counsel did not request an
    instruction of the kind now said to have been fatally neglected, nor object to
    its omission.

[45]

Third,
    to some extent at least, a caution of the nature now said to have prejudiced
    the appellant by its absence, would not necessarily have been beneficial to the
    position of the defence. After all, as i have already said, the defence relied
    on this evidence to support the position it advanced before the jury. A caution
    would have applied with equal vigour to the defence reliance on this evidence.

Ground #3: The Unbalanced Charge

[46]

The
    appellant contends that the trial judge erred by failing to provide a fair and
    balanced charge to the jury on four discrete aspects of the evidence adduced at
    trial:

i.

post-offence conduct and prior inconsistent statements;

ii.

motive;

iii.

other discreditable conduct; and

iv.

circumstantial evidence.

In addition, the appellant says that the trial judge
    failed to adequately and meaningfully relate the evidence to the elements of
    the offence and to the position of the defence.

[47]

As
    I will briefly explain, I am not convinced that any shortcomings in the charge
    were sufficiently serious to warrant our intervention.

[48]

First,
    evidence of post-offence conduct.

[49]

The
    principal complaint on this issue is that, apart from summarizing the evidence
    in this category, the trial judge failed to properly explain to the jury how it
    could be used to determine whether the Crown had proven its case beyond a
    reasonable doubt. What was lacking, according to the appellant, were
    explanations of the permitted use the jury could make of evidence of
    post-offence conduct, as well as its prohibited use, as for example, to
    determine the level of the appellants culpability.

[50]

Evidence
    of post-offence conduct is circumstantial evidence which is not subject to any
    special rule of admissibility. It simply cannot be suggested that evidence of
    anything done or said by an accused after an offence has been committed gives
    rise to special rules of admissibility or mandates special warnings to border
    its use by the trier of fact. It is for the jury to say, on the basis of the
    evidence as a whole, whether the post-offence conduct is related to the crime
    charged rather than to something else and, if so, how much weight, if any,
    should be assigned to it in the final determination of the adequacy of the case
    for the Crown:
R. v. White,
2011 SCC 13, [2011] 1 S.C.R. 433, at
    paras. 105 and 137.

[51]

In
    this case, the Crown did not argue that what the appellant said and did after
    the last sightings of the deceased were motivated by consciousness of guilt.
    Instead, the Crown submitted that the relevant conduct  use of the deceaseds
    identity, vehicle and financial instruments over a number of days  indicated
    that he had specific and unique knowledge that the deceased was dead. On the
    basis of this knowledge, the Crown asked the jury to infer that the appellant
    killed the deceased to gain access to his money. This was an appropriate
    inference to ask the jury to draw.

[52]

In
    my view, the trial judges instructions were responsive to the use the parties
    made of this evidence at trial. Instructively, counsel did not request a more
    fulsome or nuanced instruction and made no complaint of its omission.

[53]

Turning
    to the issue of motive. The trial judge briefly explained the relevance of
    evidence of motive to the demonstration of guilt. He pointed out the motive
    relied upon by the Crown and incorporated the denial of any motive on the
    appellants part in his discussion of the position of the defence. The trial
    judge was not required to put to the jury the appellants speculative opinion
    about why the deceased may have been killed by somebody else.

[54]

In
    connection with evidence of discreditable conduct and the need for an
    instruction enjoining propensity reasoning, neither party at trial, despite
    ample opportunity to do so, sought a prophylactic direction or complained of
    its absence. The trial Crown did not advance an argument that invoked or
    invited propensity reasoning on the basis of the evidence of which the
    appellant now complains. Nothing said or left unsaid by the trial judge invited
    the jury to pursue this route to verdict.

[55]

Nor
    should we lose sight of the obvious: much, if not most of the evidence of
    disreputable conduct came from the appellants own testimony and was an
    essential feature of the defence case. The appellant testified to using the
    deceaseds credit cards and cashing cheques bearing the forged signature of the
    deceased as part of a joint venture between the two men to remedy their
    financially-straitened circumstances. Each shared in the profits. Neither this
    evidence nor any other evidence about unrelated discreditable conduct was
    likely to invite propensity reasoning by jurors even in the absence of an
    instruction not to do so.

[56]

The
    appellant also faults the trial judge for having failed to adequately review
    the evidence supportive of the defence position and to relate it to that
    position so that the jury would appreciate its value and effect.

[57]

The
    appellant advanced his defence principally through his own testimony, admitting
    his participation in the fraudulent scheme with the deceased, but denying
    complicity in his death. The trial judge reviewed this evidence in detail and
    coupled it with a
W.(D.)
instruction. That he failed to make reference
    to other items of evidence said now to demonstrate the deceaseds deceitful
    nature  and thus render more likely that the fraudulent scheme was a joint
    venture rather than, as the Crown contended, the exclusive work of the
    appellant  does not reflect prejudicial error. Non-direction with respect to
    items of evidence is not, without more, misdirection. Non-direction on a matter
    of evidence only becomes misdirection where the non-direction relates to an
    item of evidence that is the foundation of the case:
R. v. Demeter
(1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at pp. 436-437, affd on other grounds,
    [1978] 1 S.C.R. 538;
R. v. Stubbs
, 2013 ONCA 514, 300 C.C.C. (3d) 181,
    at para. 136. The items of evidence about which nothing was said fall well
    short of this standard.

[58]

Moreover,
    on this issue as well, the absence of any objection and of any request for
    further instruction tells heavily against the assertion made here that the
    charge was unbalanced and failed to ensure the jurys appreciation of the
    defence advanced.

[59]

For
    these reasons, I would dismiss the appeal from conviction.

the appeal from sentence

[60]

The
    appellant also appeals the period of parole ineligibility of 17 years fixed by
    the trial judge.

[61]

At
    trial, seven jurors made recommendations about parole ineligibility. Six jurors
    recommended 25 years. One juror recommended 15 years. The remaining five jurors
    made no recommendation.

[62]

The
    positions of the parties at trial differed significantly. The Crown sought a
    parole ineligibility period of 17 years. Defence counsel advocated for 12
    years.

[63]

In
    brief reasons, the trial judge identified the applicable range of parole ineligibility
    as between 12 and 18 years. It was his view that the predominance of
    aggravating factors over mitigating factors warranted a period of 17 years of
    parole ineligibility.

[64]

In
    this court, the parties relied on their written submissions on this issue.

[65]

The
    appellant says that the period of parole ineligibility is harsh and excessive.
    He points to three discrete errors which he submits warrant our intervention. He
    contends that the trial judge erred:

i.

by failing to provide adequate reasons to explain his conclusion about
    parole ineligibility;

ii.

by failing to give adequate weight to the sentencing objective of
    rehabilitation; and

iii.

by fixing a period of parole ineligibility that was outside the
    acceptable range of periods of parole ineligibility for similar offenders,
    offences and circumstances.

[66]

Despite
    the brevity of the trial judges reasons, we are satisfied that they are sufficient
    to permit meaningful appellate review.

[67]

I
    accept that the objectives and principles of sentencing set out in ss.
    718-718.2 of the
Criminal Code
may be applicable to decisions regarding
    parole ineligibility. Among those sentencing objectives is assisting in the rehabilitation
    of an offender under s. 718(d). But as is well known, not every sentencing
    objective in s. 718, or for that matter every sentencing principle in s. 718.2,
    is at play in every case. Nor if in play, must these principles ascend to a place
    of prominence in the sentencing decision.

[68]

The
    objective of rehabilitation has much to say in the determination of the nature
    and length of sentences to be imposed upon youthful and first offenders to
    ensure that a sentence of imprisonment is not so lengthy as to extinguish or
    substantially diminish any realistic rehabilitative prospects. But here we are
    not concerned with the nature or quantum of sentence to be imposed. The
Criminal
    Code
requires imposition of a sentence of imprisonment for life on
    conviction of second degree murder. Nor are we concerned with when the
    appellant will be conditionally released from custody. That decision is
    assigned to the parole board. Although in assessing the fitness of the period
    of parole ineligibility fixed by the trial judge, we must be mindful of the
    sentencing objective of assisting the appellants rehabilitation, we must also
    take into account that the mandatory sentence of imprisonment for life and the
    mandatory ten-year minimum period of parole ineligibility circumscribe the
    weight that can be accorded to the appellants prospects of rehabilitation:
R.
    v. McKnight
(1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 39.

[69]

i
    agree with the trial judge that the circumstances of this case warranted a
    substantial increase in the period of parole ineligibility. The murder involved
    a significant breach of trust. The deceased had provided the appellant with a
    place to live after the appellants release from jail in December, 2008. The
    deceased was trying to assist the appellant in getting his life back on track
    after the death of his father, the loss of his home and the dissolution of his
    marriage. Despite the succour he received from the deceased, the appellant
    bludgeoned his benefactor to death with a hammer in the deceaseds apartment.
    He continued his fraudulent use of the deceaseds credit cards after his
    demise, made repeated efforts to have the cards reinstated and used the deceaseds
    property and vehicle as his own.

[70]

In
    these circumstances I am satisfied that the period of parole ineligibility
    fixed by the trial judge is proportionate to the gravity of the appellants
    offence and his degree of responsibility for having committed it. We do not
    consider it as harsh or excessive or beyond the range of periods of parole
    ineligibility appropriate for offences of this nature.

conclusion

[71]

For
    these reasons, I would dismiss the appeal from conviction, grant leave to
    appeal sentence, but dismiss the appeal from sentence.

Released: RGJ Mar 14 2018

David
    Watt J.A.
I agree. R.G. Juriansz J.A.
I agree. B.W. Miller J.A.

[1]

In oral argument, the appellant abandoned two other grounds of
    appeal included in his factum.

[2]

R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2;
R. v.
    Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at paras. 18-19.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadykov, 2018 ONCA 296

DATE: 20180326

DOCKET: C62550

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sadyk Sadykov

Appellant

Jennifer K. Penman and Karen Heath, for the appellant

Brett Cohen, for the respondent

Heard: January 29, 2018

On appeal from the conviction entered on December 4, 2015
    and the sentence imposed on March 4, 2016 by Justice Michael G. Quigley of the Superior
    Court of Justice, sitting without a jury.

Juriansz J.A:

[1]

The appellant appeals his conviction and sentence on charges of
    aggravated assault, assault with a weapon and possession of a weapon for a
    purpose dangerous to the public peace. The appellant, his three co-accused and
    the victim were all inmates at the Toronto East Detention Centre. The victim
    was severely beaten in his cell. Surveillance video shows the appellant and the
    co-accused enter into the victims cell and emerge a short time later. There
    was no video surveillance of what occurred inside the victims cell.

[2]

The appellant submits the trial judge erred by drawing inferences to
    fill in the evidentiary gaps and by accepting the Crown theory that the four
    accused had executed a preplanned attack on the victim, in which each of them
    had played a specific and delineated role. The appellant argues that without video
    surveillance of what happened inside the cell, it cannot be known what role the
    appellant played. The appellant submits, given this lack of knowledge, the
    trial judge misapprehended significant evidence, failed to consider reasonable
    alternatives to guilt, and improperly took judicial notice of matters in order
    to fill in the blanks and find the appellant guilty. For example, the
    appellant submits that as the victim refused medical attention there was no
    evidence that he had to have been held down given the absence of defensive
    wounds and that he came within an inch or two of being fatally slashed and
    losing his life.

[3]

I would not give effect to these arguments. The trial judge had access
    to video surveillance from several perspectives showing the groups behaviour
    before they entered the cell, how and in what order they entered the cell, when
    each exited and how they behaved upon doing so, the signs and looks they
    exchanged, their appearance and the state of their clothing, and where they
    went and what they did immediately after the attack. The photographic evidence
    of the victims injuries and the itemization of their nature provided an ample
    basis for the trial judges inferences the victim had no defensive injuries and
    suffered a cut to the neck, where the carotid artery is located. The trial
    judge did not take improper judicial notice in making these findings.

[4]

The appellant would have the court consider speculative scenarios that
    were not put forward at trial. The alternatives put forward on appeal rest on individual
    pieces of evidence and do not have an air of reality when considered on the
    totality of the evidence. I note that the trial judge himself remarked that
    particular actions might be characterized in more than one way but then
    stated that the inferences he drew were those that could realistically and
    reasonably be drawn from the entirety of the evidence.  I am satisfied that
    his characterization of what can be seen on video surveillance is completely
    accurate, and that he applied nothing more than common sense and life
    experience in drawing inferences from the evidence.

[5]

I agree, and the Crown concedes, that the proceedings of assault with a
    weapon and possession of a weapon for a purpose dangerous to the public peace
    should have been stayed on the basis of the
Kienapple
principle:
R.
    v. Kienapple,

[1975] 1 S.C.R. 729. His convictions
    on these two charges should be set aside, but the appellants appeal from conviction
    for aggravated assault is dismissed.

[6]

The appellant seeks leave to appeal his sentence on the ground that it
    is harsh and excessive in all the circumstances.

[7]

For the reasons given in dismissing the conviction appeal, I am satisfied
    that the trial judge did not err by sentencing the appellant as one of the two
    principals in the assault. Nor did the trial judge err in concluding that a fit
    sentence for this attack in a correctional facility was five years
    imprisonment. However, in the next step of his analysis, the trial judge noted
    the appellant still had 10 years remaining on his existing sentences and
    concluded that the five-year sentence, if served consecutively to the existing
    sentences, would result in a cumulative sentence that would be unjust,
    inappropriate and crushing. Therefore, the trial judge bifurcated the sentence
    he imposed, ordering that two and one-half years would be served consecutively
    to the appellants existing sentences, and two and one-half years would be
    served concurrently.

[8]

During the hearing, the court raised the question whether the trial
    judge had jurisdiction to bifurcate the sentence he imposed in this way. The
    parties were given the opportunity and have made written submissions on that
    question. The parties are agreed that the trial judge did not have jurisdiction
    to bifurcate the sentence as he did. I agree.

[9]

Section 719(1) of the
Criminal Code,
R.S.C., 1985, c. C-46
    provides that a sentence commences when it is imposed, except where a relevant
    enactment otherwise provides. Generally, a sentence commences when it is
    imposed and will be served concurrently with sentences the offender is already
    serving at the time of sentencing.

[10]

Section
    718.3(4) permits a court on sentencing an accused to direct that a term of
    imprisonment it imposes be served consecutively to other sentences the accused
    is already serving. In effect, a direction under this provision defers the
    start of the sentence imposed until the sentence already being served has
    expired. Section 718.3(4)(a) provides as follows:

(4) The court that sentences an accused shall consider
    directing

(a) that the term of imprisonment that it imposes be served
    consecutively to a sentence of imprisonment to which the accused is subject at
    the time of sentencing;

[11]

As
    can be seen, there is nothing in the wording of s. 718.3(4)(a) that allows only
    part of a term of imprisonment to be served consecutively. This has been noted
    in the text
Sentencing
,
8th ed. (Markham: LexisNexis, 2008), at
    p. 543, in which the authors writes:

The wording of the statute, which speaks of the term of
    imprisonment as being the res that may be served one after another, leads to
    the inference that it is not permissible to make part of her term of
    imprisonment consecutive another term.

[12]

The
    British Columbia Court of Appeal addressed the question in
R. v. Tam
,
    (1994) 47 B. C. A. C. 238. The trial judge in
Tam
sentenced the
    accused to three years imprisonment and ordered that one year of the three-year
    sentence be served consecutively to an existing six and one-half year sentence
    the offender was already serving. On appeal, the British Columbia Court of
    Appeal varied the sentence from a three-year sentence to a one-year sentence to
    be served consecutively noting, at para. 3, that [c]ounsel for the accused
    agrees with the Crown that the

Criminal Code

does not permit a
    trial judge to make only part of a given sentence consecutive to another term.

[13]

The
    British Columbia Court of Appeal reiterated this conclusion in
R. v. W.
    (G.P.)
, (1998) 106 B.C.A.C. 239, at para. 36.

[14]

The
    Criminal Division of the Court of Appeal of England dealt with the issue in
R.
    v. Gregory (Colin)
, (1969) 53 Cr. App. R. 294 (C.A.). In that case, the
    trial judge had sentenced each of the offenders to 18 months imprisonment on
    one indictment and directed that three months of that sentence be served
    consecutively to the sentence imposed on another indictment. The court said, at
    p. 295, to impose a sentence in this form is undesirable and wrong and that
    such a practice should not be followed. The court pointed to administrative
    difficulties that would arise with such sentences and to the fact that there
    was no authority for this kind of sentence.

[15]

The
    trial judge erred in law when he ordered that part of the five-year sentence he
    imposed on the appellant was to be served concurrently with the sentences
    already being served and the remaining part of the sentence was to be served
    consecutively to the sentences already being served. His disposition has
    resulted in an illegal sentence upon which this court must intervene.

[16]

I
    accept that the sentencing judge properly determined that five years was an
    appropriate sentence, and then, after taking into account the principle of
    totality, considered that the appropriate global sentence should be twelve and one-half
    years.  I agree with the Crown that effect can be given to the trial judges
    ultimate intention by varying the bifurcated five-year sentence imposed to a
    sentence of two and one-half years to be served consecutively.

[17]

In
    conclusion, I would dismiss the conviction appeal, except to the extent of
setting aside
the convictions on the
    counts of assault with a weapon and possession of a weapon for a purpose
    dangerous to the public peace and stays entered, grant leave to appeal sentence,
    allow the sentence appeal and vary the sentence to a term of two and one-half
    years imprisonment to be served consecutively to the appellants existing
    sentences.

Released: RGJ MAR 26 2018

R.G. Juriansz J.A.

I agree. David Watt J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tapp, 2018 ONCA 228

DATE: 20180308

DOCKET: C64353

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gordon Tapp

Appellant

David Anber, for the appellant

Andrew Hotke, for the respondent

Heard: March 05, 2018

On appeal from the judgment of
    Justice P. Hurley of the Superior Court of Justice, dated September 25, 2017, dismissing
    the application for
certiorari
to quash the committal to trial issued
    by Justice R. Knott of the Ontario Court of Justice, dated June 26, 2017.

APPEAL BOOK ENDORSEMENT

[1]

In our view the appeal must be dismissed. The reviewing judge held that
    it was open to the preliminary inquiry judge to conclude that there was
    sufficient evidence upon which a trier of fact could infer that the appellant
    was the robber. He did not err in so doing.

[2]

The video of the robbery together with the DNA evidence tying the
    appellant to the two t shirts worn during the robbery are, in the circumstances
    of this case sufficient.

[3]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Truong, 2018 ONCA 217

DATE: 20180305

DOCKET: C61804

Strathy C.J.O., Simmons and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tan Dung Truong

Applicant/Appellant

Daniel Stein, for the appellant

Sandy Thomas, for the respondent

Heard and released orally: March 1, 2018

On appeal from the conviction entered on May 21, 2015 by
    Justice L. Roberts of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of being unlawfully in possession of heroin,
    cocaine, methamphetamine and ketamine for the purpose of trafficking, and of
    being in possession of proceeds of crime.  He appeals the convictions and
    asserts the verdicts were unreasonable.

[2]

We do not accept this submission.

[3]

At paragraph 55 of her reasons, the trial judge identified a
    constellation of evidence that, taken together, strongly supported the
    inference that the appellant had knowledge and control of the money and drugs.
    In particular, the evidence disclosed that the appellant had a key to the
    locked bedroom where the contraband was found and that he was attempting to
    enter the bedroom with the key immediately after the police made a dynamic
    entry into the apartment.  Further, the appellants social insurance card was
    found in a drawer with some of the buy money for the drugs  and that drawer
    was adjacent to the drawer where the drugs were found.  This, together with the
    other evidence the trial judge identified, created a powerful inference of
    knowledge and control.

[4]

The appellant did not testify.  Based on the totality of the record, in
    our view the trial judge was justified in drawing the inference, beyond a
    reasonable doubt, that the appellant was in possession of the drugs and money.
    The fact that the evidence supported the possibility that others may also have
    been in possession of the drugs and money does not detract from this
    conclusion.

[5]

The appeal is dismissed.

G.R.
    Strathy C.J.O.

Janet
    Simmons J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yang, 2018 ONCA 230

DATE: 20180309

DOCKET: C64436

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Yili Yang

Respondent

Kathleen Farrell, for the appellant

Mark Ertel, for the respondent

Heard and released orally: March 6, 2018

On appeal from the conviction entered on March 23, 2017
    and the sentence imposed on September 20, 2017 by Justice Matthew C. Webber of
    the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The respondent was found guilty of careless use of a firearm under s.
    86(3) of the
Criminal Code
. He received a conditional discharge. The
    Crown appeals against the conditional discharge and asks that a suspended
    sentence with probation be substituted in its place.

[2]

In our view, a conditional discharge was a demonstrably unfit
    disposition in the circumstances of this case.

[3]

The respondent was a licenced gun owner. While intoxicated late one
    evening, he fired a semi-automatic restricted 45 caliber Sig Sauer firearm
    inside of his apartment. He discharged three bullets. One of the bullets
    penetrated his neighbours apartment. The bullet came to rest in the living
    room area, next to where the neighbours childs toys were stored. As the trial
    judge said, these actions were about as careless as one can imagine and could
    easily have caused immeasurable tragedy.

[4]

The sentencing judge erred in placing insufficient weight on the primary
    sentencing principles of general deterrence and denunciation. The trial judge
    also erred in using the fact of the appellants intoxication as a mitigating
    factor, when in fact it was a significant aggravating factor in this case.

[5]

There were numerous aggravating factors involved, including the multiple
    shots fired and the inherent dangerousness of the respondents conduct, which
    could have had catastrophic results.

[6]

In these circumstances, a conditional discharge was not available.
    Although we are aware of the immigration implications arising from a conviction
    in this matter, these consequences cannot operate to allow the imposition of an
    unfit sentence:
R. v. Pham,
2013 SCC 15, at paras. 14, 18.

[7]

In light of these reasons, it is unnecessary to address the other
    grounds of appeal.

[8]

The appeal is allowed.

[9]

Having regard to the trial judges finding that 5.5 months was served in
    pre-sentence custody, a suspended sentence is appropriate. We substitute the conditional
    discharge with a conviction and impose a suspended sentence. The terms of
    probation and other orders imposed by the trial judge remain unchanged.

Paul Rouleau J.A.
Grant Huscroft J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Reeves v. Brand, 2018 ONCA 263

DATE: 20180319

DOCKET: C63763

Laskin, Huscroft and Paciocco JJ.A.

BETWEEN

Terri Jo Reeves

Applicant (Respondent)

and

Irene Michelle Brand

Respondent (Appellant)

Ryan Kniznik, for the appellant

Stephen Codas and Sarah Strathopolous, for the
    respondent

Heard: December 18, 2017

On appeal from the order of Justice James Diamond of the Superior
    Court of Justice, dated April 24, 2017, with reasons reported at 2017 ONSC 2306,
    and from the costs order, dated June 12, 2017.

Laskin J.A.:

A.

introduction

[1]

The appellant, Irene Brand, and the respondent, Terri Jo Reeves
    separated in 2015 after being married for nearly nine years. Both are in their
    early 40s. Ms. Brand is a police officer; Ms. Reeves has worked in the
    financial industry. During their marriage they lived mainly in Toronto.

[2]

Ms. Brand and Ms. Reeves are the parents of a young boy, Ray
[1]
,
    who just turned six years of age. After Ms. Brand and Ms. Reeves separated,
    they litigated over custody of Ray and where he should live. Ms. Brand sought
    joint custody and asked that Ray remain in Toronto. Ms. Reeves sought sole
    custody and permission to relocate with Ray to New Ross, Nova Scotia, where her
    parents live and where Ray has spent considerable time.

[3]

After a seven-day trial during which 17 witnesses testified, the trial
    judge granted the relief Ms. Reeves asked for. He then set out a detailed
    access schedule, intended to give Ms. Brand reasonable, frequent contact with
    Ray. He also awarded Ms. Reeves costs of the action, which he fixed in the
    amount of $92,500.

[4]

In June 2017, Ms. Brand brought a motion to stay the trial judges order
    pending appeal. Justice Miller dismissed the motion.

[5]

Ms. Brand appeals all aspects of the trial judges judgment. She makes
    the following four submissions:

1.

The trial judge
    erred by failing to award joint custody because he made legal and factual
    errors concerning the level and quality of communication between the parties;

2.

The trial judge
    erred by permitting Ray and Ms. Reeves to relocate to New Ross, Nova Scotia
    because he:

·

failed to give sufficient weight to the principle of maximum
    contact;

·

failed to consider the disruption to Rays relationship with Ms.
    Brand and her family, and to his life in Toronto; and

·

improperly focused exclusively on Ms. Reeves reasons for wishing
    to relocate.

3.

The trial
    judges access schedule is unreasonable because it turns Ms. Brand into a
    holiday parent, and his order that Ray cannot stay anywhere without Ms. Brand
    for more than four hours undermines rather than promotes frequent contact; and

4.

The trial judge
    erred in principle in his costs award; he ought to have awarded no costs, or at
    most $70,000 in costs.

[6]

I would not give effect to Ms. Brands first two submissions. Trial
    judges decisions on custody and relocation are entitled to significant
    deference on appeal:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2
    S.C.R. 1014, at paras. 11-13. Invariably, trial judges are in a better position
    than court of appeal judges to determine a childs best interests. Ms. Brands
    challenge to the trial judges decisions on custody and relocation are largely
    an attack on his findings of fact. Those findings are reasonably supported by
    the record, and thus appellate intervention is not justified.

[7]

I would give effect to one aspect of Ms. Brands submission on the trial
    judges access schedule. In my view, the four-hour restriction imposed by the
    trial judge is unnecessary, contrary to his own finding on the bond between Ray
    and Ms. Brand and her family, and not in Rays best interests. I would delete
    this restriction from the trial judges access schedule.

[8]

Finally, I would not grant Ms. Brand leave to appeal the trial judges
    cost award. Although the award is sizable, it falls within the trial judges
    broad discretion over costs, and reflects no error in principle.

B.

The issues

(1)

Did the trial judge err by failing to award joint custody because he
    made legal and factual errors concerning the level and quality of communication
    between the parties?

[9]

The trial judge concluded that awarding Ms. Reeves sole custody of Ray
    was in Rays best interests. At para. 48, he found that Ms. Reeves ha[d] been Rays
    primary care giver for the majority of his life and in particular for the last
    three years. In his view, Ms. Reeves is the parent to whom Ray is most
    closely bonded, and is not only his primary care giver, but his psychological
    parent.

[10]

The
    trial judges findings and his views are firmly grounded in the evidence. Once
    Ray turned two and a half years old, by agreement, Ms. Brand became the sole
    income earner for the family as a member of the police force, while Ms. Reeves
    became a stay at home mother. Ms. Reeves made all the major decisions for Ray
    medical, social, choice of school  and Ms. Brand trusted her to do so.

[11]

Nonetheless,
    one aspect of the trial judges decision to award sole custody of Ray to Ms.
    Reeves and to reject an order for joint custody was his concern about the quality
    of communication between Rays parents. He found at para. 46 that Ms. Reeves and
    Ms. Brand have been unable to communicate in a constructive way on any
    sustained basis, and in particular with respect to substantive issues
    concerning Rays life.

[12]

Ms.
    Brand challenges this finding. She submits that the trial judge erred in law
    because communication between parents does not have to meet a standard of
    perfection for joint custody to be awarded. And she submits that the trial
    judges finding is tainted by factual errors because her ability to communicate
    with Ms. Reeves about Ray is and was much better than the trial judge made it
    out to be.

[13]

I
    do not accept these submissions. At para. 11 of
Kaplanis v. Kaplanis
(2005)
, 249 D.L.R. (4th) 620 (Ont. C.A.),
    in a passage quoted by the trial judge, Weiler J.A. commented on the level and
    quality of communication required for a joint custody order:

The fact that one parent professes an inability to communicate
    with the other parent does not, in and of itself, mean that a joint custody
    order cannot be considered. On the other hand, hoping that communication
    between the parties will improve once the litigation is over does not provide a
    sufficient basis for the making of an order of joint custody. There must be
    some evidence before the court that, despite their differences, the parents are
    able to communicate effectively with one another. No matter how detailed the
    custody order that is made, gaps will inevitably occur, unexpected situations
    arise, and the changing developmental needs of a child must be addressed on an
    ongoing basis.

[14]

The
    trial judge applied Weiler J.A.s comments from
Kaplanis
. He made the
    following specific findings at paras. 43, 44, and 46 of his reasons:

·

[I]n my view the parties have encountered and experienced poor
    parenting communication, especially since they separated. They have effectively
    ceased communicating, as [Ms. Brand] feels very upset with what she considers
    to be [Ms. Reeves] efforts to marginalize her as a parent, and [Ms. Reeves]
    feels trapped in an unworkable predicament.

·

[Ms. Brand] points to various text messages exchanged between
    herself and [Ms. Reeves] as evidence that the parties have made reasonable and
    consistent efforts to ensure reciprocal communication. In my view, these text
    messages are, for the most part, concerned with financial matters[.]

·

Hope that communication between parents may improve once
    litigation is over is not a sufficient basis to support an order for joint
    custody. I find that [Ms. Reeves] and [Ms. Brand] have been unable to
    communicate in a constructive way on any sustained basis, and in particular
    with respect to substantive issues concerning Rays life.

[15]

The
    record supports these findings, which are consistent with
Kaplanis
,
    and which ground the trial judges ultimate finding that the parties inability
    to communicate constructively about Ray was an important reason not to award
    joint custody. I therefore decline to interfere with the trial judges decision
    to grant Ms. Reeves sole custody of Ray.

(2)

Did the trial judge err by permitting Ray and Ms. Reeves to relocate to
    New Ross, Nova Scotia?

[16]

Having
    decided that Ms. Reeves was entitled to sole custody of Ray, the trial judge
    then decided that she and Ray be allowed to relocate from Toronto to New Ross,
    Nova Scotia, where Ms. Reevess parents live. Ms. Brand submits that the trial
    judge erred by permitting Ray to relocate. In support of her submission she
    contends that the trial judge made three errors:

·

He failed to give sufficient weight to the principle of maximum
    contact enshrined in s. 16(10) of the
Divorce Act
, R.S.C. 1995, c. 3
;

·

He failed to consider the disruption to Rays relationship with
    Ms. Brand and her family, and to his life in Toronto; and,

·

He improperly focused exclusively on Ms. Reeves reasons for
    wishing to relocate.

[17]

Relocation
    or mobility cases, where one parent wants to take a child and move some
    distance away from the other parent, are among the most difficult cases in
    family law. If the custodial parent is permitted to move with the child,
    inevitably the relationship between the non-custodial parent and the child will
    be affected and may suffer. Typically the court must balance the custodial
    parents legitimate interest in relocating with the non-custodial parents
    legitimate interest in maintaining a relationship with the child. But in every
    case, the ultimate question is what is in the best interests of the child.

[18]

I
    am satisfied that the trial judge sensitively balanced the competing interests
    of Ms. Brand and Ms. Reeves, and in permitting relocation, made an order in
    Rays best interests. And I am not persuaded that he erred in any of the three
    ways Ms. Brand alleges.

[19]

This
    case differs from many of the relocation cases that come before the court in
    two important ways. These two differences provide context for the three errors
    Ms. Brand alleges. First, this is not a case where relocation will sever a long
    standing bond between Ray, and Ms. Brand and her family. For most of Rays life,
    he has had no bond, indeed no relationship at all with Ms. Brands family.  Indeed,
    the trial judge found at para. 59 that Rays bond with Ms. Brand and her family
    was created post-separation, and is not something that has been maintained
    from the time of [Ms. Reeves and Ms. Brands] marriage.

[20]

Second,
    this is not a case where the move to Nova Scotia will take Ray from a known
    home to a new and speculative environment. As the trial judge fairly observed, since
    he was born, Ray has been connected to Ms. Reeves family in New Ross and
    benefitted from their support. He has spent at least one-quarter of his life
    there. The support of the community and the Reeves family in New Ross has been
    part of Rays status quo. As the trial judge found, from Rays perspective, a
    relocation to New Ross is a return to what is known to him.

(a)

The trial judge gave sufficient weight to the maximum contact principle

[21]

Subsection
    16(10) of the
Divorce Act
enshrines the principle of maximum contact
    with both parents:

[T]he court shall give effect to the principle that a child of
    the marriage should have as much contact with each spouse as is consistent with
    the best interest of the child and, for that purpose, shall take into
    consideration the willingness of the person for whom custody is sought to
    facilitate such contact.

The principle is important in custody disputes because
    maximum contact with both parents is usually in the childs best interests.

[22]

Ms.
    Brand submits that the trial judge did not give sufficient weight to this important
    principle. I do not agree with her submission. I make three points. First, the
    maximum contact principle is not an absolute principle; if it were very few
    relocation requests would ever be allowed. Instead, as this court said in
Bjornson
    v. Creighton
(2002)
, 62 O.R.
    (3d) 236 (C.A.), at para. 34, though the maximum contact principle is obviously
    important, it remains one factor in the whole of the analysis. It ought not to
    be treated as the governing factor. And in
Gordon v. Goertz
, [1996] 2
    S.C.R. 27, still the leading case on mobility, McLachlin J. said at para. 24:

The "maximum
    contact" principle, as it has been called, is mandatory, but not absolute.
    The [
Divorce Act
]
    only obliges the judge to respect it to the extent that such contact is consistent
    with the childs best interests; if other factors show that it would not be in
    the childs best interests, the court can and should restrict contact:
Young
    v. Young
,
1993 CanLII 34 (SCC)
,
[1993] 4 S.C.R. 3
, at pp. 117-18.

[23]

Second,
    the submission that the trial judge did not give sufficient weight to the
    maximum contact principle is not a basis for appellate intervention. Mobility
    or relocation decisions are discretionary decisions:
Porter v. Bryan
,
    2017 ONCA 677, at para. 11; and
Elliott v. Elliott
, 2009 ONCA 240, 247
    O.A.C. 174, at para. 19. The exercise of discretion involves the weighing of
    relevant considerations  here the maximum contact principle. To accede to the
    submission that an appeal court should intervene because it would have given more
    weight to a relevant consideration is to abandon discretion altogether. To be
    justified in interfering, an appellate court would have to be satisfied that
    the trial judges exercise of discretion was unreasonable. See:
R. v.
    McKnight
(1999)
,
135 C.C.C. (3d) 41

(Ont. C.A.),
at para. 35; and
Ursic
    v. Ursic
(2006), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 18-19.

[24]

Third,
    in my view the trial judge took account of the maximum contact principle and
    reasonably applied it; even to use Ms. Brands phrase, he gave it sufficient
    weight. Appellate intervention is therefore not justified. Specifically at
    para. 61 of his reasons, the trial judge found that:

[Ms. Reeves] is well aware and promotes the maximum contact
    principle, and despite the obvious adverse consequences which her relocation
    with Ray to New Ross would have upon [Ms. Brand], [Ms. Reeves] has and
    continues to recognize the importance of  [Ms. Brands] relationship with Ray.
    Post-separation, she has continued to attempt to involve [Ms. Brand] in Rays life,
    including having [Ms. Brand] join the Reeves family in New Ross twice in late
    2015, and inviting [Ms. Brand] to [Ms. Reeves] sisters home in Huntington,
    New York.

[25]

Consistent
    with this finding, Ms. Reeves proposed an access schedule intended to facilitate
    Ms. Brands access to Ray. Thus the trial judge justifiably found at para. 62
    of his reasons:

[Ms. Reeves] draft Order proposed an extensive access schedule
    for [Ms. Brand] with substantial parenting time mindful of [Ms. Brands]
    vacation allotment and work schedule. On the record before me, I do not find
    that [Ms. Reeves] request to relocate with Ray to New Ross is being made with
    any intention to impede [Ms. Brands] access or minimize her involvement in
    Rays life.

[26]

The
    trial judges application of the maximum contact principle differs from the
    trial judges application of it in
Berry v. Berry
,
2011 ONCA 705, 343 D.L.R. (4th) 501, on
    which Ms. Brand relies. There, this court intervened because the trial judges
    reasons reflected an inadequate weighing of the principle (see para. 14). In
    other words, the trial judge in
Berry
applied the principle
    unreasonably. By contrast, the trial judge in this case applied the principle
    reasonably. He made no error.

(b)

The trial judge took into account the potential disruption to Rays
    relationship with Ms. Brand and her family and to his life in Toronto

[27]

At
    para. 49 of
Gordon v. Goertz
,
McLachlin J. said that, in a relocation case, the court must always consider
    the disruption to the child consequent on removal from family, schools and the
    community he has come to know. Ms. Brand argues that the trial judge did not
    take into account how a move to New Ross would disrupt Rays relationship with
    her and her family, as well as Rays life in the Toronto community. I disagree
    with this argument.

[28]

The
    trial judge was aware that Ms. Reeves move to New Ross would disrupt Ms.
    Brands relationship with Ray. At para. 61, he specifically commented on the
    obvious adverse consequences which her relocation with Ray to New Ross would
    have upon [Ms. Brand]. But, as I read his reasons, the trial judge concluded
    that the potential disruption was offset by Ms. Reeves genuine attempt to
    involve [Ms. Brand] in Rays life and by the absence of a long standing bond
    between Ms. Brands family and Ray.

[29]

The
    trial judge also considered whether Rays move to New Ross would disrupt the
    life he had in Toronto. He found at para. 58 that it would not because,
    regardless of the outcome of this proceeding, [there] is no real status quo
    for Ray. If Ray moved to Nova Scotia, he would obviously have to go to a new
    school. But he would have to do so as well if he stayed in Ontario, because Ms.
    Reeves had no job prospects in Toronto, could not afford to live there, and
    would have to relocate to another part of the province. In short, the trial
    judge reasonably concluded that any disruption caused by the relocation to New
    Ross did not justify refusing to permit the move, particularly as Ray would
    have to relocate even if he stayed in Ontario.

[30]

Childrens
    adaptability to change, especially at Rays age, bolsters the trial judges
    conclusion. As Furey J. sensibly noted in his recent decision in
Sexton v.
    Tipping
, 2017 CanLII 56984 (N.L. S.C.T.D.), at paras. 81-82:

It is a reality of the times in which we live that many couples
    with children come together through partnership or marriage, separate or
    divorce after a period of time and then move on with their lives.  The crux of
    these scenarios is change  for the parents and for the children.

Change is a constant in all our lives. As a general principle,
    children are adaptable in their lives. They change communities. They change
    schools. They change friends. Many change families, not because of their
    actions but because of the actions of their parents. That has happened in this
    matter.

[31]

Ray
    is young. The disruption to the life of a six year old is likely to be less significant
    than the disruption to the life of, say, a fifteen year old.

(c)

The trial judge did not focus exclusively on Ms. Reeves reasons for
    wishing to relocate

[32]

Again
    in
Gordon v. Goertz
,
McLachlin J. wrote at para. 49 that the court should consider the custodial
    parents reasons for moving, only in the exceptional case where it is relevant
    to that parents ability to meet the needs of the child. Ms. Brand submits
    that this case was not exceptional and that the trial judge improperly focused
    solely on Ms. Reeves reasons for moving. I take a different view of the trial
    judges reasons.

[33]

The
    trial judge did take into account Ms. Reeves reasons for moving. But they were
    not his sole focus. Instead he found that Ms. Reeves reasons for wanting to
    relocate were relevant to her ability to parent Ray and thus were tied to Rays
    best interests. He held at para. 64 of his reasons:

After the breakdown of her marriage to [Ms. Brand], [Ms.
    Reeves] wants to surround herself with the social (and possible financial)
    support of her family and friends with a view to regaining control and
    independence of her life. She has already taken steps to obtain employment. [Ms.
    Reeves] motives are based upon and further Rays best interests. [Ms. Reeves]
    relocation plan is not speculative. It includes concrete terms in a place
    familiar to not just [Ms. Reeves], but more importantly to Ray. Ray is no
    stranger to New Ross, and has enjoyed an established connection to New Ross
    since his birth.

[34]

This
    holding is unassailable. In the language of
Gordon v. Goertz
,
this case is an exceptional case in
    which the trial judge was justified in taking into account Ms. Reeves reasons
    for moving.

[35]

I
    would uphold the trial judges decision to permit Ms. Reeves and Ray to
    relocate to New Ross.

(3)

Did the trial judge impose an unreasonable access schedule?

[36]

The
    trial judge set out a detailed access schedule, intended to provide Ms. Brand
    with reasonable, frequent contact/access with Ray. One particular term of the
    schedule states:

During [Ms. Brands] access with Ray, Ray shall not stay
    overnight without [Ms. Brand] and for no longer than four hours during the
    daytime.

[37]

Ms.
    Brand submits that the access schedule is unreasonable: it turns her into a
    holiday parent. She also submits that the four-hour restriction is especially
    onerous. She asks this court to revise the access schedule, including the terms
    for summer holidays and March break, and to remove the four-hour restriction.

[38]

I
    do not think it appropriate for this court to micromanage the trial judges
    detailed and seemingly well thought-out terms of access. If Ms. Brand objects
    to any of these terms or wants any of them revised then she can always bring a
    variation application to the trial court.

[39]

But
    I am of the view that we ought to interfere with the specific term Ms. Brand
    complains about: that Ray cannot stay overnight without her  thus precluding
    Ray from having a sleepover alone with his grandparents  or for longer than
    four hours during the daytime. The trial judge gave no reasons for this
    restriction. I suspect, however, that he imposed it because of his concerns
    about the attitude of Ms. Brands parents to their daughters lesbian
    relationship, the pregnancy, and ultimately to Ray. Ms. Brands parents did not
    attend the wedding. They did not speak to their daughter during the pregnancy.
    And before September 16, Ms. Brand never brought Ray to her parents home. Had
    this attitude continued, the four-hour restriction may have been reasonable.

[40]

But
    Ms. Brands mother, to her credit, admitted that she had made mistakes earlier
    in her daughters and Rays lives. Recently, she began to forge a good
    relationship with Ray. Indeed the trial judge found at para. 56 that though
    late blooming, Ray has developed a strong relationship with [Ms. Brands]
    parents, and since separation has been sleeping over at their place. In the
    light of these findings, it is in Rays best interests to remove the four hour
    restriction.

[41]

The
    concerns with keeping the restriction in place are twofold. First, Ray is
    deprived of the opportunity most youngsters typically look forward to, sleeping
    over at their grandparents house when their parents are not there. And second,
    Ms. Brand will inevitably have blocks of time longer than four hours when she
    cannot be with Ray because her job entails evening and night shifts. Thus, the
    four hour restriction undermines rather than promotes the strong relationship
    between Ray and Ms. Brand and her family. It is not consistent with the trial
    judges finding and it is not in Rays best interests; I would delete this term
    from the trial judges access schedule.

(4)

Did the trial judge err in his costs award?

[42]

At
    trial, Ms. Brand acknowledged that Ms. Reeves was entitled to costs but
    contended that an appropriate award was $70,000. Now on appeal, Ms. Brand
    contends that the trial judge should have awarded no costs. Alternatively, as
    she argued at trial, Ms. Reevess costs should be limited to $70,000.

[43]

I
    would not interfere with the trial judges costs award. Courts have on occasion
    awarded no costs in relocation cases, but in many other cases trial judges have
    concluded that a costs award was appropriate. The trial judges decision in
    this case falls within his broad discretion to award costs and reflects no
    error in principle. The amount he awarded, $92,500, though sizable, is less
    than full indemnity costs and is not unreasonable. Again, the award is within
    the trial judges broad discretion. As he recognized in his costs endorsement,
    because the parties positions on relocation were not amenable to settlement, a
    full indemnity costs award would have been inappropriate. I would deny leave to
    appeal costs.

C.

conclusion

[44]

Except
    for the deletion of the four hour restriction in the trial judges access
    schedule, I would dismiss Ms. Brands appeal. As Ms. Reeves has been successful
    on the two major issues on the appeal, custody and relocation, she is entitled
    to her costs of the appeal. In my opinion the cost award should be modest. I
    would award Ms. Reeves costs in the amount of $10,000, inclusive of
    disbursements and applicable taxes.

Released: D.P. March 19, 2018

John Laskin J.A.

I agree. Grant Huscroft J.A.

I agree. David M. Paciocco
    J.A.

[1]

Ray was conceived by intrauterine insemination. The sperm
    donor was anonymous. Ms. Reeves was the birth mother.


COURT OF APPEAL
    FOR ONTARIO

CITATION: S.N.S
    Industrial Products Limited v. Omron Canada Inc., 2018 ONCA 278

DATE: 20180320

DOCKET: C64310

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

S.N.S. Industrial Products Limited

Plaintiff/Defendant by counterclaim (Appellant)

and

Omron Canada Inc.

Defendant/Plaintiff by counterclaim (Respondent)

John W. McDonald, for the appellant

Robert E. Kwinter & Nicole Henderson, for the
    respondent

Heard and released orally:  March 19, 2018

On appeal from the order of Justice David Broad of the Superior
    Court of Justice, dated September 14, 2017 with reasons reported at 2017 ONSC
    4746.

REASONS FOR DECISION

[1]

The plaintiff appeals from the summary judgement granted by the motion
    judge that
dismissed the plaintiffs action, gave
    judgment on the counterclaim, and awarded costs.

[2]

The background facts can be stated briefly.  The appellant was a
    distributor of the respondents products.  The respondent terminated the
    distribution agreement.  At the time of termination, the appellant owed the
    respondent approximately $430,000 for product it had purchased.

[3]

First, the appellant seeks to adduce fresh evidence that relates
    principally to the amount it owed to the respondent, which is the subject of
    the counterclaim.  We would not admit the fresh evidence.  It does not meet the
    test set out in
R. v. Palmer
, [1980] 1 S.C.R. 759.  In particular,
    there is no explanation as to why this information could not have been put
    before the motion judge.

[4]

In terms of the appeal itself, the motion judge concluded that the
    respondent had properly terminated the distribution agreement.  There is no
    basis to interfere with that finding.  It accords with the express terms of the
    agreement especially the termination for cause provision.  After being told by
    the respondent that the distribution agreement would be terminated 60 days
    later, the appellant not only failed to honour customers orders but it also
    circulated a letter to customers in which it disparaged the respondent.  The
    respondent then immediately terminated the distribution agreement.  The
    respondents action in that regard was entirely justified.  The fact that the
    motion judge, in reaching that conclusion, referred to an anticipatory breach
    of the agreement was an error in expression.  It does not warrant this court
    interfering with his conclusion that the distribution agreement was properly
    terminated when that conclusion is founded on the evidence.

[5]

The motion judge also properly concluded that there was no evidence to
    support the appellants allegations of misuse of confidential information or of
    interference with contractual relations.  The appellants submission that other
    evidence might have been obtained if discoveries had been held completely misunderstands
    the principles surrounding summary judgment motions.  All parties are required
    to put their best case forward and cannot avoid an adverse result by suggesting
    that if more opportunity is given, other information would be forthcoming.

[6]

Finally, the motion judge correctly observed that the appellant had not
    challenged the counterclaim in any way.

[7]

There was no genuine issue for trial in this case.  The motion judge was
    correct in awarding the summary judgment that he did.

Conclusion

[8]

The appeal is dismissed. Costs are awarded to the respondent fixed in
    the amount of $16,304.34 inclusive of disbursements and HST.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sajid (Re), 2018 ONCA 292

DATE: 20180326

DOCKET: C64037

Epstein, van Rensburg and Brown JJ.A.

IN THE MATTER OF: Salik Sajid

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL CODE

Erin Dann and Cate Martell, for the appellant

Gavin S. MacKenzie, for the Centre for Addiction and
    Mental Health

Christopher Webb, for the Attorney General of Ontario

Heard: March 8, 2018

On appeal against the disposition of the Ontario Review
    Board, dated June 30, 2017.

REASONS FOR DECISION

[1]

The issue on this appeal is a very narrow one. The appellant does not contest
    the Boards finding that he remained a significant threat to the safety of the
    public. Nor does he challenge the Boards disposition that he remain detained
    at the General Forensic Unit at CAMH (the Hospital). However, he contends the
    Board acted unreasonably by not including in the current disposition the
    delegation of authority to the Hospital found in the previous 2016 disposition
    to permit him, when the Hospital deemed it appropriate, to live in the
    community in supervised accommodation approved by the Hospital.

[2]

The appellant submits the Boards failure to include a community living
    term in the current disposition was based on its misapprehension of the
    evidence and was unreasonable because it was not the least onerous and least
    restrictive disposition in the circumstances.

[3]

We are not persuaded by the appellants submission.

[4]

The appellant concedes the Board did not misapprehend the evidence of
    the treating psychiatrist that he was not ready to live in the community at the
    time of the hearing. In our view, that was the key evidence on the issue as to
    whether the least onerous and least restrictive disposition required the Board
    to impose the community living term the appellant was seeking. The three areas
    of evidence that the appellant contends the Board misapprehended were on
    peripheral matters and did not undermine the uncontroverted evidence that the
    appellant was not ready to live in the community.

[5]

In declining to include a term permitting community living when CAMH
    deemed it appropriate, the Board stated:

[T]he evidence is clear that Mr. Sajid is not ready for
    community living yet. On the contrary, his recovery has stalled. Mr. Sajid has
    to demonstrate structure in his daily life and commitment to attending
    rehabilitative programs over a sustained period of time. In the event Mr. Sajid
    demonstrates progress to the point where community living is achievable, the
    Hospital has an option to call for an early hearing to review the Disposition.

[6]

We see nothing unreasonable in the Boards analysis or conclusion.
    Although reasonable people could disagree about whether the community living term
    should or should not have been continued during the current review period,
    under the reasonableness standard the Boards decision is entitled to
    deference. The evidence before the Board clearly disclosed that the appellant
    was not ready for community living, and there was no indication in the evidence
    before this Board (unlike in the previous year) that the appellant would be
    ready to live in the community within the coming year. It therefore was not
    unreasonable for the Board to omit from its disposition a term that would have
    no practical effect on where the appellant lived during the review year. The
    Board also indicated it was prepared to hold an early review in the event the
    appellant demonstrated progress to the point where community living would be
    achievable.

[7]

In those circumstances, we are not persuaded the Boards disposition was
    not the least onerous and least restrictive in the circumstances.

[8]

The appeal is dismissed.

Gloria Epstein J.A.
K. van Rensburg J.A.
David Brown J.A.