COURT OF APPEAL FOR ONTARIO

CITATION: Locking v. McCowan, 2016 ONCA 88

DATE: 20160129

DOCKET: C61038

Gillese, MacFarland and van Rensburg JJ.A.

BETWEEN

Daniel Locking

Plaintiff (Appellant)

and

Ronald McCowan, Allen W. Weinberg, Joseph
    Feldman, Marc Charlebois,
Laura Philp (a.k.a. Laura
    Phelp, a.k.a. Laura Philps, a.k.a. Laura Philip, a.k.a. Laura Philips), Holyrood
    Holdings Limited
, Samuel H. Nash, Goldman Sloan Nash & Haber LLP,
    Graham Rawlinson, and Torys LLP

Defendants (
Respondents
)

Proceeding under
    the
Class Proceedings Act, 1992

John Archibald and Paul Bates, for the appellant

J. Thomas Curry and Julia G. Brown, for the respondents

Heard: January 20, 2016

On appeal from the order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated August 19, 2015, with reasons reported at
    2015 ONSC 4435.

Gillese
    J.A
.:

FACTS IN BRIEF

[1]

The appellant is the representative plaintiff in a proposed class action
    by unit holders of Partners REIT, an unincorporated real estate investment
    trust whose units trade on the Toronto Stock Exchange. The appellant claims
    that the class sustained losses when the REITs unit price dropped because an
    improper property transaction had to be set aside.

[2]

Partners REIT is governed by a board of trustees.

[3]

Ronald McCowan and Allen W. Weinberg are two of the named defendants
    and, as will be seen, are central to this appeal. McCowan was the REITs interim
    CEO at the relevant time and Weinberg was one of the trustees. The other named
    defendants in the proposed class action include two other trustees and those
    who sold the properties to the REIT.

The Transaction

[4]

On April 2, 2014, the respondent Laura Philp and her company Holyrood
    Holdings Limited (Holyrood) (together, the Respondents) sold three
    properties to the REIT (the Transaction) at McCowans behest. McCowan failed
    to disclose that he had a longstanding, close personal and business
    relationship with Philp and, according to the appellant, a
de facto
ownership interest in the properties and
de facto
control of Holyrood.

[5]

When McCowans conflict of interest was exposed, the Transaction was set
    aside and all monies paid were returned to the REIT. However, it is alleged
    that the fall-out caused the REITs unit price to drop by more than 30 per
    cent.

The Proposed Class Action

[6]

For the purposes of this appeal, the relevant claims in the Amended
    Statement of Claim are as follows:

·

against Weinberg, Feldman and Charlebois, the defendant trustees
    at the relevant time: breach of trust;

·

against McCowan: breach of fiduciary duty and knowing assistance
    in Weinbergs breach of trust; and

·

against the Respondents: knowing assistance in Weinbergs breach
    of trust and McCowans breach of fiduciary duty.

The Underlying Motion

[7]

A certification motion was brought.

[8]

The motion was bifurcated, with the motions judge first determining
    whether the claims constituted viable causes of action under s. 5(1)(a) of the
Class
    Proceedings Act
, S.O. 1992, c. 6 (
CPA
). As the motions judge
    correctly noted, for the purposes of the motion, the facts as set out in the pleadings
    are assumed to be true.

THE DECISION UNDER APPEAL

[9]

By order dated August 19, 2015 (the Order), among other things, the
    motions judge permitted the breach of trust claim against Weinberg
[1]
(and the other defendant trustees) and the knowing assistance claim against
    McCowan to proceed. However, he struck the knowing assistance claim against the
    Respondents.

[10]

In
    respect of Weinberg, the motions judge noted that the breach of trust claim is supported
    by the following facts as pleaded: Weinberg knew of McCowans material interest
    in the properties and control over Holyrood; he knowingly breached his duties
    by permitting the REIT to enter into the Transaction without the required
    disclosure and unit holder approval; he did so in order to preserve the
    relationship between his law firm and McCowan, its long-time client, and to
    garner future legal work; and, in so doing, he failed to act honestly and in
    good faith, with a view to the best interests of both the REIT and the class.

[11]

In
    respect of McCowan, the motions judge noted the following factual allegations:
    Weinberg and McCowan had a solicitor-client relationship on property deals that
    pre-dated the Transaction; Weinberg was appointed to the board of trustees on
    McCowans direction; McCowan orchestrated the Transaction for his own benefit;
    McCowan knew that Weinberg would be in breach of trust if McCowans material
    interest in the Transaction was not disclosed; and, Weinberg was under
    McCowans influence and control. The motions judge concluded that there was a
    reasonable prospect that a court could find that McCowan persuaded, signaled or
    otherwise influenced Weinberg in Weinbergs decision to allow the Transaction
    to proceed without the required disclosure and unit holder approval. Accordingly,
    the claim that McCowan knowingly assisted Weinberg in Weinbergs breach of
    trust could proceed.

[12]

The
    motions judge struck the knowing assistance claim against the Respondents on
    the basis that the pleaded facts did not amount to active assistance or
    participation by the Respondents in Weinbergs decision to allow the
    Transaction to proceed. He said, the suppression of information, without more,
    by a third party that otherwise has no obligations to the REIT or its trustees
    does not satisfy the requirement of active assistance or participation in a
    breach of trust.

THE ISSUE

[13]

While
    the appellant raises a number of grounds of appeal, in essence, they are all
    targeted at a single issue: did the motions judge err in striking the knowing assistance
    claim against the Respondents?

ANALYSIS

[14]

I
    agree with the appellant that the claim against the Respondents is legally
    plausible. In my view, the motions judge erred in two ways in reaching the
    conclusion that the pleadings failed to disclose a reasonable cause of action
    as against the Respondents. To explain, I begin by summarizing the motions
    judges reasoning on this matter.

[15]

Relying
    on the Supreme Courts decisions in
Citadel General Assurance Co. v. Lloyds
    Bank Canada
, [1997] 3 S.C.R. 805, 1997 CanLII 334,
Air Canada v.
    M&L Travel Ltd.
, [1993] 3 S.C.R. 787, 1993 CanLII 33, and
Gold v.
    Rosenberg
, [1997] 3 S.C.R. 767, 1997 CanLII 333, the motions judge correctly
    stated that for a knowing assistance claim to succeed, the plaintiff must
    establish:

(i)

an act of fraud or dishonesty on the part of the trustee;

(ii)

that the defendant had knowledge of the trustees dishonest conduct; and

(iii)

that the defendant assisted the trustee in perpetrating the dishonest
    conduct.

[16]

The
    motions judge found that the appellant had sufficiently pleaded the first two
    elements: an act of dishonesty on the part of trustee Weinberg and the
    Respondents actual knowledge of, or wilful blindness to, that conduct.

[17]

In
    respect of the third element, the motions judge stated that for the words
    knowing assistance to have meaning, they must mean more than simply standing
    by or acquiescing. Consequently, the motions judge said, assistance or
    participation in a breach of trust requires, at the very least, that the
    defendant take a positive step to help or take part in the trustees breach of
    trust. Based on that view, the motions judge concluded that the Respondents mere
    suppression of information did not amount to active assistance or participation
    in a breach of trust.

[18]

The
    motions judges first error was in failing to accurately and generously construe
    the claim made against the Respondents. He read the Amended Statement of Claim
    as alleging that the Respondents only assistance or participation in the
    breach of trust was their suppression of information which they had no duty to
    disclose. On the pleadings, however, the Respondents did not simply stand by
    and remain silent as the trustee Weinberg, a lawyer acting at the behest of his
    client McCowan, authorized a self-interested transaction for McCowans benefit.
    Rather, it is pleaded that the Respondents were active participants  playing
    the roles of genuinely disinterested arms length parties who were the sole
    owners of the properties  who concealed the improprieties underlying the
    Transaction and sold those properties to the REIT. Without the Respondents, the
    Transaction could not have taken place. They actively participated in the
    Transaction, selling the properties (which McCowan actually owned) to the REIT
    while intentionally concealing information and falsely portraying themselves as
    an arms length vendor. This role enabled Weinberg to commit the breaches of
    trust alleged against him.

[19]

The
    motions judges second error relates to his approach to the third element of
    the knowing assistance claim against the Respondents. The motions judge viewed
    this element as requiring that the defendant take a positive step
to help
or
to take part in
the trustees
    breach of trust. [Emphasis in original.] Consequently, the motions judge concluded
    that suppression of information was not sufficient to amount to assistance or
    participation.

[20]

As
    the motions judge recognized, the test under s. 5(1)(a) of the
CPA
is
    the same as the test under rule 21.01(1)(b) of the
Rules of Civil Procedure
:
    see
Kang v. Sun Life Assurance Co. of Canada
, 2013 ONCA 118, at paras.
    26-27. Accordingly, the Respondents had to demonstrate that it was plain and
    obvious that the claim against them could not possibly succeed.

[21]

What
    amounts to assistance  or, in the words of the motions judge, helping or
    taking part  has not yet been fully explored in the jurisprudence. It may be
    that silence is, in certain circumstances, sufficient to constitute assistance.
    Thus, it is not plain and obvious that the claim against the Respondents could
    not possibly succeed.

[22]

However
    and in any event, as I have explained, on the pleadings, the Respondents role
    was more than a mere suppression of information. They worked in concert with
    McCowan and intentionally concealed information in order to cloak the true
    nature of the Transaction and assist Weinberg, who entered into the Transaction
    in breach of his trust obligations.

DISPOSITION

[23]

Having
    determined that the Amended Statement of Claim pleads facts which assert a
    legally plausible claim against each of the Respondents under s. 5(1)(a) of the
CPA
, I would allow the appeal, and order that the Order be amended
    accordingly. I would order costs of the appeal and motion below in favour of
    the appellant, fixed at $20,000, all inclusive.

Released: January 29, 2016 (E.E.G.)

E.E. Gillese
    J.A.

I agree. J. MacFarland J.A.

I agree. K. van Rensburg
    J.A.

[1]
Weinberg did not oppose the s. 5(1)(a) motion.


COURT OF APPEAL FOR ONTARIO

CITATION: Longaphie v. Canerector Inc., 2016 ONCA 26

DATE: 20160112

DOCKET: C61074

Weiler, LaForme and Huscroft

BETWEEN

Philip Longaphie

Plaintiff (Respondent)

and

Canerector
Properties
Inc.

Defendant (Appellant)

Matthew R. Vella, for the appellant

Lia Moody, for the respondent

Heard and released orally: January 11, 2015

On appeal from the order of Justice Andra Pollak of the Superior
    Court of Justice, dated July 16, 2015.

ENDORSEMENT

[1]

The parties agreed that this case was appropriate for summary judgment.
    The issue before the motion judge was the length of reasonable notice to which
    the respondent employee was entitled. The motion judge determined that the
    appropriate period of reasonable notice in this case was six months. The
    appellant appeals and raises two issues.

1.

Did the motion judge err in awarding the respondent six months
    reasonable notice and, if so, what period of reasonable notice should be
    substituted by this court?

2.

Did the motion judge err in failing to deduct mitigation income from the
    amount awarded to the respondent for reasonable notice?

[2]

The motion judge appears to have placed undue emphasis on the fourth
    factor of
Bardal v. Globe & Mail Ltd.
, (1960), 24 D.L.R. (2d) 140
    (Ont. H.C.) namely, availability of comparable employment having regard to the
    experience, training and qualification of the employee. That said, considering
    the
Bardal
factors as a whole, the motion judges decision to award
    six months notice is not so clearly outside the range as to warrant appellate
    intervention.

[3]

The respondent worked for five days, earning $1,634.62 gross, during the
    six month notice period. The respondent agrees that the six month notice period
    should be reduced by that amount.

[4]

The appeal is otherwise dismissed.

[5]

By agreement, costs of the appeal are fixed in the amount of $4000,
    inclusive of disbursements and all applicable taxes and are payable to the
    respondent.

K.M. Weiler J.A.

H.S. LaForme J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McLean v. Boettcher, 2016 ONCA 14

DATE: 20160108

DOCKET: C60657

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Theresa McLean and Thomas McLean

Plaintiffs (Appellants)

and

Tracy Boettcher, Elizabeth Boettcher, John
    Boettcher, William Taggart, Taggart & Carroll LLP and the Corporation of
    the Township of Cramahe

Defendants (Respondents)

William G. Scott, for the appellants

Suzanne E. Hunt, for the respondent The Corporation of
    the Township of Cramahe

Tanisha G. Tulloch, for the respondents William Taggart
    and Taggart & Carroll LLP

No one appearing for the respondents Tracy Boettcher,
    Elizabeth Boettcher and John Boettcher

Heard and released orally: January 5, 2016

On appeal from the order of Justice Bradley W. Miller of
    the Superior Court of Justice, dated June 4, 2015.

ENDORSEMENT

[1]

The appellants appeal the order of the motion judge dismissing their
    motion to set aside the registrars dismissal of their action for delay.

[2]

The action relates to an agreement dated February 24, 2006 to purchase residential
    property. The appellants, who were the purchasers, commenced an action on June
    2, 2008 against the defendants. In January 2010, the parties mutually agreed to
    postpone the progress of the litigation to allow the appellants to investigate
    an alternative solution to the dispute.

[3]

On October 4, 2010, the registrar gave notice the action would be
    dismissed for delay within 90 days unless the action was set down for trial. At
    the status hearing on December 17, 2010, Rady J. ordered a timetable which
    required the trial record to be filed by October 31, 2011. The trial record was
    not filed by that date. The registrar dismissed the action on November 15,
    2011.

[4]

The motion to set aside the registrars dismissal was served March 22,
    2012. However, there were a series of adjournments with the consent of the
    defendants, many to allow the appellants to obtain an engineering report that
    might have resolved the dispute in an alternative forum.  On May 21, 2013, the
    court adjourned the motion to July 29, 2013, making the matter peremptory
    absent evidence of extraordinary circumstances. On July 29, 2013, the matter
    came on before Leitch J. The appellants were not prepared to proceed and sought
    another adjournment. Leitch J., upon being advised that the reason for the
    continued adjournments was to allow the appellants to pursue the alternative
    resolution, dismissed the motion in order to respect the court ordered
    timetable, but gave leave to the appellants to bring a new motion.

[5]

After Leitch J.s order, as the motion judge observed, astonishingly,
    the [appellants] did not take any further steps in the litigation for 14
    months.

[6]

In his analysis, the motion judge applied the correct test, carefully
    considering the four factors set out in
Reid v. Dow Corning Corp.

[7]

He weighed the fact that the source of part of the delay was the entirely
    laudable effort to pursue a cost-effective solution outside of the courts, but
    found this did not excuse the failure to move the action forward. He considered
    that the 14 months of delay after the order of Leitch J., due to a mixture of
    tactical choice and neglect, was fatal to the motion. He also found there was
    presumed prejudice and actual prejudice to the defendants that had not been
    rebutted. He dismissed the motion

[8]

On appeal, the appellants submit the motion judge erred in finding the
    death of a witness resulted in actual prejudice, arguing that even if the court
    ordered timetable had been met, the trial could not have been held before the
    witness' death. Be that as it may, we are satisfied there was ample other
    evidence upon which the trial judge could find the actual prejudice that had
    not been rebutted.

[9]

The appellants also submitted that the unexplained 14 month delay in
    bringing the second motion to set aside was much briefer than the 5 year delay
    in
Marché d'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd.
(2007),
    2007 ONCA 695, which the motion judge relied upon. They argued the motion judge
    erred by finding the 14 month delay was fatal to the motion.

[10]

We
    reject the argument. The motion judge recognized the
Reid
factors do not
    prescribe a formula, but provide a structured approach to reconciling the
    principle that civil actions should be decided on their merits, with the
    principles that civil actions should be resolved within a reasonable timeframe
    and that the public interest is served by promoting the timely resolution of
    disputes. It was for the motion judge to balance these competing principles and
    weigh the 14 month delay in the context of the entire delay and all the
    circumstances. We agree with the result the motion judge reached.

[11]

In
    conclusion, we have not been persuaded that the motion judge made any error
    that would affect the result. We agree with his observation that having been
    granted every possible indulgence from the court, [the appellants] did not
    fulfill their obligation to move the litigation along.

[12]

The
    appeal is dismissed.

[13]

The
    Taggart respondents costs are fixed in the amount of $10,000 all inclusive,
    and the Township of Cramahe respondents costs are fixed in the amount of
    $2,500 all inclusive.

R.G.
    Juriansz J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Obermuller v. Kenfinch Co-operative Housing Inc.,
    2016 ONCA 21

DATE: 20160111

DOCKET: M45601 (M45261)

Weiler, LaForme and Huscroft JJ.A.

BETWEEN

Cheryl Obermuller

Applicant (Moving Party)

and

Kenfinch Co-operative Housing Inc.

Respondent (Respondent)

Cheryl Obermuller, acting in person

Celia Chandler, for the respondent

Heard: January 11, 2016

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the decision of Sharpe J.A. to refuse to grant an
    extension of time to file notice to review the order of Epstein J.A. Justice Epstein
    had refused to stay the appellants eviction pending her application for leave
    to appeal. Justice Sharpe noted the appellants delay in bringing the motion
    before him and the fact the eviction had long, since occurred, made the matter
    moot. Even accepting the appellants submission that she understood she had 30
    days within which to appeal the order and not four days, there was unexplained
    delay in her bringing the motion. Her eviction has now taken place so an order
    granting an extension of time and allowing a review of the order of Epstein
    J.A. could not restore her tenancy.

[2]

Although it is clear that there is a considerable amount of arrears of
    rent owing, before us, the respondent acknowledged that the appellant has never
    had a hearing as to her entitlement to a full subsidy and that, depending on
    the outcome of any such hearing, the amount that has been determined she owes
    might be reduced. That aspect of the case is beyond our jurisdiction on this
    review. It would, however, appear to be a relevant consideration if the
    appellant proceeds with her motion with leave to appeal.

[3]

Given the circumstances, we are not inclined to award costs.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. $104,877 in U.S.
    Currency (In rem), 2016 ONCA 71

DATE: 20160125

DOCKET: C59589

Doherty, Pardu and Benotto JJ.A.

BETWEEN

Attorney General of Ontario

Applicant

(Respondent in Appeal)

and

$104,877 in U.S. Currency (In rem)

Respondent

(Appellant)

Glenroy Bastien, for the appellant

Miriam Young and Anastasia Mandziuk, for the respondent

Heard: January 20, 2016

On appeal from the order of Justice Sandra Chapnik of the
    Superior Court of Justice, dated September 30, 2014.

ENDORSEMENT

[1]

This is an appeal from the order of the application judge which granted
    the Attorney General of Ontario forfeiture of $104,877 in US currency under
    sections 3 and 8 of the
Civil Remedies Act
.

[2]

Alexander Bourgeois was on his way to Panama City when an airport
    security employee operating an x-ray machine detected something suspicious in
    his backpack. A search of his bag revealed $100,000 USD in tightly-wound
    bundles stuffed into twenty-two socks. Upon arrest, police officers found two
    more bundles totaling $4,877 USD in Mr. Bourgeois pockets, and a small amount
    of cocaine in his wallet.

[3]

On the application, the appellant said that the money was a combination
    of earnings from tips when he worked in a casino, gambling winnings and an
    insurance settlement arising from the death of his mother in a motor vehicle
    accident.

[4]

The appellant submits that the application judge erred in determining
    that the funds were proceeds of an unlawful activity or an instrument of
    unlawful activity and that he was not a legitimate owner.  He submits that
    there must be a factual context  in addition to the discovery of the cash  in
    order for the application judge to find that the monies were the proceeds of an
    unlawful activity. He relies on
Attorney General of Ontario v. $25,709.63
,
    CV-06-0172 at para 33.  He submits that this error on the part of the
    application judge amounted to an error of law reviewable on the correctness
    standard. He further submits that, in any event, the application judge should
    have granted relief from forfeiture in accordance with the interests of
    justice exception.

[5]

We conclude that, in rejecting the appellants submissions, the application
    judge made no error.  She correctly applied the two-step process mandated by
    the
Civil Remedies Act
: first, the Attorney General of Ontario must
    satisfy the court that the property is either the proceeds of unlawful activity
    or the instrument of unlawful activity and then, second, the respondent may
    seek protection from forfeiture under s. 3(3) or s. 8(3) as either a
    legitimate owner or a responsible owner.

[6]

At the first step, the application judge found that, on a balance of
    probabilities, Mr. Bourgeois was acting as a cash couriereither for drug
    trafficking or other profit-motivated unlawful activity. She specified that her
    conclusion was based on compelling evidence. In this regard, we conclude that
    she did consider the totality of the evidence and based her decision on factors
    in addition to the discovery of the money. She relied on and accepted a
    veritable laundry-list of evidence and those findings are entitled to
    deference. In addition she found that Mr. Bourgeois did not provide any cogent
    explanation for his behaviour or the amount of money in his possession. These
    findings by the application judge were reasonable on the evidence before her
    and no error has been shown.

[7]

At the second step, the application judge noted that at most Mr. Bourgeois
    evidence showed that it was possible for him to earn the money without unlawful
    activity. That was not sufficient for the appellant to discharge his onus.

[8]

We do not agree that the application judge erred by not providing relief
    under the interests of justice exception. She considered the three factors
    provided in this courts decision in
Ontario v. McDougall
, 2011 ONCA
    363 and concluded that the appellant was not an innocent owner; as the
    appellant was likely a participant in unlawful activity, his actions were not
    reasonable, it was not possible to distinguish the proceeds of crime from any
    other property, and the objectives of the legislation favoured forfeiture.

[9]

Lastly, we see no error in her decision to order partial indemnity costs
    of $15, 367.15 payable to the Attorney General.

[10]

The
    appeal is therefore dismissed with costs payable to the respondent in the
    amount of $6,000.00, inclusive of disbursements and HST.

Doherty J.A.

G. Pardu J.A.

M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Packall Packaging Inc. v. Ciszewski, 2016 ONCA 6

DATE: 20160106

DOCKET: C60652

Doherty, Brown and Miller JJ.A.

BETWEEN

Packall Packaging Inc., Packall Consultants
    (1981) Limited, 967915 Ontario Limited and Henry Ciszewski, personally and in
    his capacity as Trustee of the Ciszewski Family Trust

Plaintiffs (Respondents)

and

Anita Ciszewski, personally and in her capacity
    as Trustee of the Ciszewski Family Trust and 2300078 Ontario Limited

Defendants (Appellants)

AND BETWEEN

Anita Ciszewski, personally and in her capacity
    as Trustee of the Ciszewski Family Trust and 2300078 Ontario Limited

Plaintiffs by Counterclaim

(Appellants)

and

Packall Packaging Inc., Packall Consultants
    (1981) Limited, 967915 Ontario Limited, Henry Ciszewski, personally and in his
    capacity as Trustee of the Ciszewski Family Trust, 835474 Ontario Limited,
    James F. Billett, in his personal capacity and in his capacity as Trustee of the
    Ciszewski Family Trust, Stephan Ciszewski and Frank Del Duca

Defendants to Counterclaim

(Respondents)

Peter W.G. Carey, for the appellants

Geoffrey D.E. Adair, Q.C., for the respondents

Heard: December 17, 2015

On appeal from the judgment of Justice Laurence A.
    Pattillo of the Superior Court of Justice, dated June 9, 2015, with reasons
    reported at 2015 ONSC 2837.

Brown J.A.:

OVERVIEW

[1]

The appellants, Anita Ciszewski and her personal holding company,
    2300078 Ontario Limited (Anita Co.), appeal from the judgment of Pattillo J.
    dated June 9, 2015. The appellants submit that the motion judge erred in
    granting a permanent injunction restraining Anita from selling or marketing her
    shares in Anita Co. without the consent of her husband, Henry Ciszewski, and in
    dismissing their motion for certain corporate governance relief in respect of
    the respondents, Packall Consultants (1981) Limited, 967915 Ontario Limited and
    835474 Ontario Limited (which, together with Packall Packaging Inc. (PPI),
    are referred to as the Packall Group of Companies).

[2]

Henry founded and operates PPI, a manufacturer of flexible food
    packaging. Ownership of PPI is split between Henry and Anita through a complex
    structure of holding companies and a family trust. In Anitas case, she holds
    her interests in PPI through two chains of ownership. Under one ownership
    chain, Anita Co. holds shares in 967915 which, through Packall Consultants,
    holds shares in PPI. Under the other ownership chain, The Ciszewski Family Trust
    (the Family Trust)  of which Anita is one of three trustees and the
    residuary beneficiary  owns shares in PPI directly and indirectly through
    835474 and Packall Consultants. Henry has effective voting control of PPI.

[3]

Henry and Anita were divorced in June 2010, and entered into a written
    separation agreement on September 22, 2011 (the Separation Agreement). Both
    parties were represented by counsel during the negotiation of the Separation
    Agreement.

[4]

The Separation Agreement provides for the financial support of Anita in
    several ways. First, shortly after the execution of the Separation Agreement,
    Anita received two lump-sum payments, one paid by Henry in cash and one funded
    by a dividend declared by PPI. Thereafter, during the joint lives of Henry and
    Anita, Anita is to receive a dividend of $575,000 in each fiscal year of PPI
    upon that company declaring a dividend on its common shares (s. 4.3). The
    Separation Agreement specifies how the dividend income is to flow from PPI to
    Anita through the intermediary holding companies and trust. If PPI does not
    declare a dividend or does not declare a divided sufficient to make the annual
    payment, Henry must make the payment to Anita or top-up the dividend to reach
    the required amount of annual support (ss. 4.6 and 4.7).

[5]

In the event Henry predeceases Anita, s. 4.12 of the Separation
    Agreement provides that financial provision for Anita shall be made for her by
    PPI in lieu of any such provision being made by Henrys estate in accordance
    with an agreement entered into concurrently by PPI and Anita. The latter
    agreement was attached as Schedule C to the Separation Agreement.

[6]

Shortly before the execution of the Separation Agreement, Anitas
    counsel requested the inclusion of what became s. 4.14 for tax and estates
    reasons. The motion judge summarized the substance of that article at para. 15
    of his reasons:

Article 4.14 of the Separation Agreement provides that either
    Henry or Anita may reorganize the way in which they hold the shares by
    transferring all or part of them to a holding company controlled by each of
    them respectively, provided (a) completion of the transaction does not cause
    adverse tax consequences to the opposite party and (b) the holding company and
    not the individual will be the recipient of the dividend payments and will be
    deemed to be party to the Schedule C Agreement.

[7]

Almost a year after the parties signed the Separation Agreement, Anita
    sought to open discussions with Henry about creating a succession plan covering
    potential tax liabilities in the event of the sale or deemed disposition of
    their shares in 967915. No agreement was reached. Anita then threatened to sell
    her shares in 967915 and, in early 2014, began to solicit interest from third
    parties  including competitors of PPI  to acquire the shares of her personal
    holding company, Anita Co., which held her interest in 967915.

[8]

Henry thereupon moved to restrain Anita from selling or offering for
    sale her shares of 967915 or her holding company, Anita Co., without his consent.
    Anita brought a cross-motion seeking summary judgment dismissing Henrys claim
    and partial summary judgment seeking a variety of relief regarding the
    corporate governance of the Packall Group of Companies, an accounting by Henry
    of all monies received by him from the Packall Group of Companies since June 1,
    2005, and a declaration that she was free to sell her shares in Anita Co.

[9]

The motion judge granted the order sought by Henry restraining Anita
    from selling her shares in Anita Co. in the absence of Henrys consent, and he
    granted some of the corporate governance relief sought by Anita. However, the
    motion judge did not grant the orders sought by Anita that the Packall Group of
    Companies deliver audited financial statements (except for PPI, which already
    produced audited financial statements) or that Henry provide a complete
    accounting of all monies received by him from the Packall Group of Companies
    since June 1, 2005. Anita appeals the grant of the restraining order and the
    dismissal of her claim for audited financial statements and an accounting.

Motion for fresh evidence

[10]

The
    appellants moved for leave to file fresh evidence consisting of the financial
    statements of the Packall Group of Companies delivered by the respondents
    pursuant to the judgment several weeks before the hearing of the appeal. The
    appellants submit that the fresh evidence satisfies the test for admission set
    out in
Palmer v. The Queen
, [1980] 1 S.C.R. 759 and
Sengmueller v.
    Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.), because it is relevant to
    whether the motion judge erred in failing to order the production of audited
    financial statements under s. 148 of the
Business Corporations Act
,
    R.S.O. 1990, c. B.16 (the
OBCA
). In my view, the recently-produced
    financial statements do not assist in determining the issue on this appeal
    which is whether, as a matter of law, the motion judge possessed any discretion
    to exempt the Packall Group of Companies from their financial statement
    obligations under the
OBCA
. Accordingly, I would dismiss the motion
    for leave to file fresh evidence.

First Ground of Appeal: Did the motion judge err in implying a
    term in the Separation Agreement?

[11]

Anita
    Co. holds Anitas shares in 967915, which holds an indirect interest in the
    operating company, PPI. There is no dispute that the articles of incorporation
    of 967915 restrain a shareholder from transferring his or her shares in that
    company without the approval of the Board of Directors or the consent of the
    shareholders holding 75% of the voting shares. There is also no dispute that
    the motion judge correctly held that s. 4.14 of the Separation Agreement
    which permitted Anita to place her shares in 967915 into her personal holding
    company  does not restrict the ability of Anita to dispose of her shares in
    Anita Co.

[12]

The
    appellants submit, however, that the motion judge erred in concluding that
    there was an implied term in the Separation Agreement which prevented either
    Henry or Anita from disposing of their shares in their respective holding
    companies without the consent of the other.

[13]

The
    appellants acknowledge that the motion judge, at para. 36 of his reasons,
    accurately stated the law concerning the circumstances in which a court may
    imply a term in a contract. One such circumstance is based on the presumed intention
    of the parties where the implied term must be necessary to give business
    efficacy to a contract or as otherwise meeting the officious bystander test
    as a term which the parties would say, if questioned, that they had obviously
    assumed:
Rankin Construction Inc. v. Ontario
, 2014 ONCA 636, 376
    D.L.R. (4th) 697, at para. 29. The appellants submit that the motion judge
    erred in applying that principle of law in two ways. First, he erred in finding
    that the implication of a term was necessary to give business efficacy to the
    Separation Agreement. Second, he erred in failing to find that the express
    terms of the Separation Agreement prevented the finding of an implied term.

[14]

I
    am not persuaded by either submission.

Business efficacy

[15]

The
    key findings made by the motion judge about the presumed intentions of the
    parties regarding the Separation Agreement are found in paras. 39, 40, 43 and
    45 of his reasons where he stated:

[
39
]    The Separation Agreement by its terms
    settles all issues between Henry and Anita arising from their marriage and
    divorce (Article 1.5). In particular, it provides for Anitas annual financial
    support through the payment of dividends from the Packall Group of Companies,
    primarily through 967915. As a result, it is clear in my view that in agreeing
    to such a provision, Anitas intention at the time she entered into the
    Separation Agreement was that she would not sell her shares in 967915 whether
    she owned those shares directly or through a holding company without Henrys
    consent as a director and shareholder of 967915 given that Henry would be
    personally liable to her in the event she did not receive the dividends.

[
40
]    Similarly, in order to ensure that
    Henry and the Packall Group of Companies met their obligations under the
    Separation Agreement, Henry would have to retain control of the Packall Group
    of Companies. Accordingly, it is clear that Henry too intended that he would
    not sell his shares in 967915 except to a holding company as agreed without
    Anitas consent.

[43]    In the absence of such an implied term, Anita would be
    free to sell her shares in Anita Co., which would result in her no longer being
    able to receive dividends from 967915, which are the primary means of her
    ongoing support. Such action clearly defeats the main purpose of the Separation
    Agreement which is to provide for the ongoing annual financial support for
    Anita. Further, if Anita Co.s shares in 967915 were sold, Anita would cease
    receiving the dividends. Anita could then argue that Henry was liable for such
    payments pursuant to the Separation Agreement. That is not what the Separation
    Agreement intended.

[
45
]    I am also satisfied that the
    officious bystander test is satisfied in respect of the implied term being
    sought. I am satisfied, given the circumstances and the provisions of the
    Separation Agreement, that if asked at the time the Separation Agreement was
    entered into, both Anita and Henry would have said at that any disposal of
    their shares in 967915, either directly or through a holding company, can only
    be done with the consent of the other party.

[16]

Not
    only were those conclusions open to the motion judge to make on the record
    before him, but I agree with them. The Separation Agreement clearly expressed
    the parties intentions that Henrys support obligations to Anita would be
    funded by dividends originating with the operating company, PPI. Only in the
    event that PPI was unable to declare such dividends would Henry bear personal
    responsibility for the support obligations. To give effect to that intention of
    the parties, Anita needs to remain a shareholder of her holding company to
    which PPI dividends flow through 967915.

[17]

The
    motion judge also found that an implied term preventing Henry or Anita from
    disposing of the shares of any holding company having their shares in 967915 in
    the absence of the others consent was necessary to give business efficacy to
    the Schedule C Agreement to the Separation Agreement. The Schedule C
    Agreement concerns the 14 common shares of PPI held by the Family Trust (the
    Trust PPI Shares) which, upon Henrys death, are to be conveyed to Anita. The
    Schedule C Agreement requires PPI to purchase a percentage of the Trust PPI
    Shares conveyed to Anita for cancellation each year based on a stipulated
    formula. At para. 44 of his reasons, the motion judge stated:

As noted, the Schedule C Agreement provides for financial
    provision for Anita in the event that Henry predeceases her through the
    mechanism of Packall Packaging repurchasing Anitas shares. The purpose of the
    Schedule C Agreement, as noted in Article 4.12 of the Separation Agreement,
    is to both provide financial provision for Anita and remove any obligation in
    that regard from Henrys estate.
By selling her shares in Anita Co., who is
    deemed by Article 4.14(b) of the Separation Agreement to be a party to the
    Schedule C Agreement, Anita defeats the purpose of the Schedule C Agreement
    as she will no longer be entitled to any financial provision from Packall
    Packaging
. [Emphasis added.]

[18]

The
    appellants submit the motion judge fundamentally misunderstood the meaning of
    the Schedule C Agreement in reaching that conclusion because it could be
    implemented whether or not Anita Co. sold its shares in 967915.

[19]

I
    accept that the motion judge was mistaken in concluding that a sale by Anita of
    her shares in Anita Co. would defeat the purpose of the Schedule C Agreement.
    Anita Co. has an indirect interest in 84 common shares of PPI through 967915. It
    is difficult to see how Anitas sale of her shares in Anita Co. could affect
    the operation of the Schedule C Agreement because Anita Co. has no interest
    in the Trust PPI Shares which pass to Anita on Henrys death. However, in my
    view that mistake by the motion judge has no effect on his conclusion that an
    implied term preventing Anita from selling her shares in Anita Co. without
    Henrys consent was necessary to give business efficacy to the Separation
    Agreement. Anitas continued ownership of Anita Co., while Henry lives, gives
    effect to the parties bargain that support payments to Anita will be funded by
    dividends declared by PPI. That bargain necessitates implying the term that
    prevents Anita from selling her shares in Anita Co. without Henrys consent, as
    the motion judge found.

Whether the terms of the Separation Agreement preclude an
    implied term

[20]

The
    appellants submit that three terms of the Separation Agreement prevented the
    motion judge from implying a term restricting Anita from selling her shares in
    Anita Co. without Henrys consent. Section 1.6 states: This Agreement replaces
    all oral or written agreements made between the parties. Section 5.2 states:

Anita and Henry do not want any court to order a change which
    deviates from or overrides the terms of this agreement, and more particularly
    this release. Anita and Henry want the court to uphold this agreement in its
    entirety inasmuch as they are basing their future lives upon this release.

Finally, s. 9.1 states: There are no representations,
    collateral agreements, warranties or conditions affecting this Agreement.

[21]

The
    motion judge referred only to s. 9.1, holding that it does not deal with
    implied terms: at para. 46.

[22]

I
    do not accept the appellants submission on this issue. I agree with the motion
    judge that the language of s. 9.1 does not preclude the implication of a term. Nor
    does the language of ss. 1.6 and 5.2. In any event, as this court stated in
CivicLife.com
    Inc. v. Canada (Attorney General)
(2006), 215 O.A.C. 43, at para. 52, the
    presence of an entire agreement clause will not preclude the implication of a
    term of the contract because the term is already part of the existing
    agreement: finding an implied term does not add a term to the agreement that
    was not part of the parties bargain, but enforces the parties reasonable
    expectations.

[23]

Accordingly,
    I would give no effect to this ground of appeal.

Second Ground of Appeal: Did the motion judge err in refusing
    to require the delivery of audited financial statements?

[24]

Of
    all the companies in the Packall Group of Companies, only PPI, the operating
    company, prepares annual audited financial statements. The appellants sought an
    order requiring all of the companies in the Packall Group of Companies to
    deliver, on an on-going basis, audited annual financial statements. The motion
    judge dismissed their request, holding, at para. 58:

The evidence of Mr. Billet, a chartered accountant who has done
    work for the Packall Group of Companies since their inception is that audited
    financial statements for the Packall Group of Companies other than Packall
    Packaging would not provide any additional useful information to the unaudited
    statements and would cost more money to prepare. Anita has provided no basis
    for her request for audited financial statements for all of the Packall Group
    of Companies. I consider the request to be a nuisance request rather than
    required. In the circumstances, therefore, it makes no sense in my view to
    require the financial statements of Packall Consultants, 967915 and 835474
    Ontario Limited to be audited.

[25]

The
    appellants submit that the motion judge erred in so holding because
OBCA
s. 148 makes it mandatory to provide audited financial statements unless all
    shareholders consent to an exemption from that requirement.

[26]

I
    agree, but only in respect of 967915, of which Anita Co. is a shareholder.

[27]

Each
    of the corporations in the Packall Group of Companies was incorporated under
    the
OBCA
. Part XII of the
OBCA
imposes certain audit and
    financial statement requirements on corporations, including the appointment of
    an auditor (s. 149), the placement by the directors before an annual meeting of
    shareholders of annual financial statements (s. 154(1)(a)), and the examination
    by an auditor of the financial statements placed before the shareholders (s.
    153(1)).

[28]

It
    is a core obligation of a corporation to its shareholders to provide them with
    an annual report card of the corporation's financial position in the form of
    audited financial statements:
Pandora Select Partners, LP v. Strategy Real
    Estate Investments Ltd.
(2007), 27 B.L.R. (4th) 299 (Ont. S.C.), at para.
    12. A shareholder's right to information or material, including audited
    financial statements, as granted to her under the
OBCA
is a clear,
    mandatory right, and it is not necessary for a shareholder to give any reason
    in exercising her directly held rights under the
OBCA
:
Labatt
    Brewing Co. v. Trilon Holdings Inc.
(1998), 41 O.R. (3d) 384 (Gen. Div.),
    at p. 387.

[29]

Section
    148 of the
OBCA
provides a limited exemption from these obligations in
    the following terms:

148.
In
    respect of a financial year of a corporation, the corporation is exempt from
    the requirements of this Part regarding the appointment and duties of an
    auditor if,

(a) the corporation is not an
    offering corporation; and

(b) all of the shareholders consent
    in writing to the exemption in respect of that year.

[30]

As
    can be seen from s. 148, the decision whether to exempt a non-offering
    corporation from the requirements of Part XII regarding the appointment and
    duties of an auditor in respect of a particular financial year rests solely
    with the corporation's shareholders:
Pandora Select Partners
, para.
    12. Section 148 of the
OBCA
does not authorize a court to exempt a
    corporation from complying with the mandatory requirement to provide shareholders
    with annual audited statements. Conceivably, a court could grant an exemption
    by way of relief in an oppression application pursuant to
OBCA
s.
    248(3). However, the motion judge, at para. 52, specifically rejected the
    respondents request to exempt the corporations from such financial disclosure on
    that basis because they had not pleaded oppression in their statement of claim.
    As a result, it was not open to the motion judge to exempt the Packall Group of
    Companies from the requirements of
OBCA
s. 148.

[31]

Since
    Anita Co. is a shareholder of 967915, it is entitled to current and on-going
    audited financial statements of that company.

[32]

Neither
    Anita nor Anita Co. is a shareholder of Packall Consultants; 967915 and 835474
    own the shares of that company.  Accordingly, the appellants are not entitled
    to audited financial statements of Packall Consultants under
OBCA
s. 148.

[33]

Finally,
    as to 835474, its shares are owned by the Family Trust.  In her factum, Anita
    submits that as one of the three co-trustees of the Family Trust, she is a
    direct shareholder of 835474 and therefore entitled to its audited financial
    statements.  I disagree.  The record before us did not disclose whether the
    share register of 835474 recorded its shareholder as the Family Trust or the
    three individual co-trustees.  Regardless, section 4.1 of the Trust Agreement
    provides that all questions requiring action by the trustees shall be
    determined by the approval or consent of a majority of the Trustees for the
    time being in office.  Neither of the other two trustees  Henry and James
    Billet  support Anitas position that 835474 should provide audited financial
    statements to the Family Trust. Consequently, Anita, in her capacity as a
    trustee of the Family Trust, is not entitled to audited financial statements of
    835474 under
OBCA
s. 148.

[34]

Accordingly,
    I would grant the appeal to the extent of varying paragraph 7 of the judgment
    to require 967915 to provide Anita Co. with current and on-going audited
    financial statements within 30 days following their completion.

Third Ground of Appeal: Did the motion judge err in not
    requiring Henry to disclose all monies taken from the Packall Group of
    Companies since 2010?

[35]

In
    their factum the appellants raised a third issue, although they did not press
    it at the hearing. The appellants sought an order compelling Henry to provide a
    complete accounting of all monies received by him, directly or indirectly,
    legally or beneficially, from any of the Packall Group of Companies since June
    1, 2005. The motion judge required 967915 to disclose the monies Henry had
    received from it after 2010, but dismissed the balance of Anitas request,
    holding, at para. 62:

Anita is a director of 967915. In that capacity, she is
    entitled to information from that company as to the monies Henry has taken from
    967915. Otherwise she is at best a shareholder or shareholder of a shareholder
    and, in the absence of some evidence of wrongdoing or suspicion of wrongdoing
    on Henrys part, is not entitled as a shareholder to the information requested.
    In that regard, she has had the financial statements up to 2012 and has raised
    no concern in respect of remuneration as indicated on those statements.

[36]

The
    appellants submit that this result is profoundly unfair and constitutes
    oppressive conduct on the part of Henry. However, the appellants have not
    demonstrated that in reaching his decision on this issue the motion judge erred
    in principle or law, failed to consider a relevant factor, took into account an
    irrelevant factor, or made a palpable and overriding error in respect of any
    finding of fact. As a result, I see no basis for appellate interference with
    his conclusion.

DISPOSITION

[37]

For
    the reasons set out above, I would allow the appeal to the extent of varying
    paragraph 7 of judgment to require 967915 Ontario Limited to provide Anita Co.
    with current and on-going audited financial statements within 30 days following
    their completion. I would otherwise dismiss the appeal.

[38]

If
    the parties are unable to agree on the costs of the appeal, they shall exchange
    and file written cost submissions no later than Friday, January 15, 2016. Those
    submissions, excluding any bill of costs, shall not exceed three pages in
    length.

Released: January 6, 2016 (DD)

David
    Brown J.A.

I
    agree Doherty J.A.

I
    agree B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Packall Packaging Inc. v. Ciszewski, 2016 ONCA 78

DATE: 20160126

DOCKET: C60652

Doherty, Brown and Miller JJ.A.

BETWEEN

Packall Packaging Inc., Packall Consultants
    (1981) Limited, 967915 Ontario Limited and Henry Ciszewski, personally and in
    his capacity as Trustee of the Ciszewski Family Trust

Plaintiffs (Respondents)

and

Anita Ciszewski, personally and in her capacity
    as Trustee of the Ciszewski Family Trust and 2300078 Ontario Limited

Defendants (Appellants)

AND BETWEEN

Anita Ciszewski, personally and in her capacity
    as Trustee of the Ciszewski Family Trust and 2300078 Ontario Limited

Plaintiffs by Counterclaim

(Appellants)

and

Packall Packaging Inc., Packall Consultants
    (1981) Limited, 967915 Ontario Limited, Henry Ciszewski, personally and in his
    capacity as Trustee of the Ciszewski Family Trust, 835474 Ontario Limited,
    James F. Billett, in his personal capacity and in his capacity as Trustee of
    the Ciszewski Family Trust, Stephan Ciszewski and Frank Del Duca

Defendants to Counterclaim

(Respondents)

Peter W.G. Carey, for the appellants

Geoffrey D.E. Adair, Q.C., for the respondents

Heard: December 17, 2015

On appeal from the judgment of Justice Laurence A.
    Pattillo of the Superior Court of Justice, dated June 9, 2015, with reasons
    reported at 2015 ONSC 2837.

COSTS ENDORSEMENT

[1]

The parties have filed their costs submissions.  The respondents seek
    partial indemnity costs of the appeal in the amount of $7,500; the appellants
    submit that no costs should be awarded given the parties divided success on
    the two issues.

[2]

While success was divided, in our view, the first issue concerning the
    restriction on the appellants ability to sell their shares to a third party
    had the more significant impact on the parties interests and, on that issue,
    the respondents succeeded.

[3]

Consequently, we award the respondents costs of the appeal in the amount
    of $7,500, inclusive of H.S.T. and disbursements.

Doherty J.A.

David Brown J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Amante, 2016 ONCA 18

DATE: 20160111

DOCKET: C60309

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Amante

Appellant

Christopher D. Hicks, for the appellant

Andrew Nisker, for the respondent

Heard and released orally: January 7, 2016

On appeal from the sentence imposed on January 14, 2015 by
    Justice L. Dean of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his global sentence of 7 years imprisonment, less
    one year and three and one-half months credit for pre-sentence custody,
    imposed after his pleas of guilty to a series of drug and property-related
    offences.  The most serious offences to which the appellant pleaded, possession
    of cocaine for the purpose of trafficking and conspiracy to traffic in cocaine,
    involved obtaining one kilogram of cocaine in Toronto to transport and
    distribute in Windsor.  This occurred within one year of the appellant having
    served six months in jail for drug dealing.  The appellant also pleaded guilty
    to conspiracy to traffic in marijuana.

[2]

The appellant acknowledges that the sentence imposed is within the
    appropriate range for someone who is a high level trafficker.  However, he says
    that the sentencing judge erred in this case by finding that the appellant was
    at a high level of the drug business.

[3]

We disagree.  There was evidence before the sentencing judge, in
    particular, the agreed facts read in at the appellants guilty plea proceeding,
    that amply supported this inference.  This included the agreed facts regarding
    the appellants conduct and intention on the day in question and his activities
    immediately prior to his arrest.

[4]

We note, further, that the admitted facts belie the appellants
    contention that he was merely a non-professional drug courier within the
    meaning of the applicable jurisprudence.

[5]

The sentencing judges impugned finding, therefore, was available on the
    evidence.  It follows that there is no error in the global sentence the
    appellant received, which fell within the appropriate range for this type of
    offender and these offences.

[6]

For these reasons, the sentence appeal is dismissed.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg
    J.A.


WARNING

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

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
    (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

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

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

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

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

(b) a terrorism offence;

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

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

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

(4)     An applicant for an order shall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the contents of an application;

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barrett, 2016 ONCA 12

DATE: 20160108

DOCKET: C57599

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Barrett

Appellant

Richard Litkowski, for the appellant

Karen Papadopoulos, for the respondent

Heard: October 21, 2015

On appeal from the conviction entered on October 11, 2012
    and the sentence imposed on December 18, 2012 by Justice Nola E. Garton of the Superior
    Court of Justice, sitting with a jury.

Hourigan J.A.:

A.

Overview

[1]

On May 31, 2010, Lucita Charles was beaten to death by her common law husband,
    the appellant. Following the homicide, the appellant covered Ms. Charles
    with a blanket, tore two pages from his Bible, and pinned them to her chest
    with a knife.

[2]

The appellant then proceeded to withdraw funds from Ms. Charless bank
    account, which he used to fund a road trip with a co-worker with whom he was
    having an affair. The two stopped to visit the co-workers parents, and after
    they left, the co-workers father called the police when his wife saw a report
    on the homicide along with the appellants picture. The police eventually
    tracked down the appellant in Oshawa, where he was arrested.

[3]

While in custody, the appellant made two statements to the police
    wherein he admitted to beating Ms. Charles to death with a hammer as she slept
    in their bedroom. He told the police that he lost it when Ms. Charles
    insisted that if she was pregnant she would have an abortion. He told the
    police that he did not mean to kill her.

[4]

At the outset of trial, the appellant pleaded guilty to manslaughter,
    but the Crown rejected his plea. The appellant advanced the defence of
    provocation, arguing that Ms. Charless firm resolve to have an abortion caused
    him, a devoutly religious man, to lose control. The trial judge held that there
    was no air of reality to the defence and refused to put it to the jury.

[5]

The appellant was convicted of second degree murder. The trial judge
    ruled that he will not be eligible for parole for 15 years.

[6]

On appeal, the appellant submits that the trial judge erred in failing
    to give the jury an instruction in accordance with
R. v. W. (D.)
,
    [1994] 3 S.C.R. 521, with respect to the exculpatory portions of his statements
    to police. He also submits that the trial judge erred in declining to instruct
    the jury on provocation. In addition, the appellant seeks leave to appeal
    sentence, arguing that his period of parole ineligibility should be reduced to
    12 years. During the course of oral submissions the appellant abandoned his
    argument relating to the admissibility of his medical records.

[7]

For the reasons that follow, I would dismiss the conviction appeal. I
    would grant leave to appeal sentence, but I would dismiss the sentence appeal.

B.

Analysis

(i)

W. (D.)
Instruction

[8]

The only issue for the jury was whether the Crown had proved beyond a
    reasonable doubt that the appellant possessed the necessary intent to be
    convicted of second-degree murder, rather than manslaughter.

[9]

The appellant did not testify at trial. He relied however, as did the
    Crown, upon two statements he had given to police. In the second, he described
    in step-by-step detail the interaction between Ms. Charles and himself the
    night of the killing and how he killed her. He claimed that he did not mean to
    do it, but lost it out of a combination of rage, depression and religious
    fervour, when faced with her intention to have an abortion if she were indeed
    pregnant. His lack of intention, as expressed in his statements to police, was
    a major focus of his defence at trial, supported by his medical records of
    previous depressive episodes when experiencing relationship difficulties. In
    addition, the appellant relied upon testimony from his father, his pastor and
    other witnesses called by the Crown as to his normally gentle and caring disposition,
    his ardent belief that his care of Ms. Charless disabled son would be rewarded
    by God providing him with a daughter, and his religious preoccupation.

[10]

It
    is the appellants position, relying primarily on this courts decision in
R. v.
    Bucik
, 2011 ONCA 546, 274 C.C.C. (3d) 421, that the trial judges failure
    to provide the jury with a
W. (D.)
instruction, on how to consider the
    exculpatory portions of his statements to police as a source of reasonable
    doubt even if not affirmatively believed, constitutes reversible error.

[11]

The
    Crown concedes that an explicit
W. (D.)
warning would have been
    preferable, but submits that the omission of such an instruction does not
    constitute reversible error in the factual context of this case, where the only
    issue was whether the accused had the requisite intent for second-degree
    murder, particularly since the charge properly conveyed the burden and standard
    of proof and their application to the jury.

[12]

During
    the pre-charge conference, there was some discussion between defence counsel
    and the trial judge as to whether a
W. (D.)
instruction might apply,
    and defence counsel agreed with the trial judge that the standard
W. (D.)
instruction did not really fit in the circumstances of this case. Defence
    counsel submitted that it would be appropriate to link the appellants various
    statements to the presumption of innocence and burden of proof and to make
    clear that, if there was any doubt about his intent at the time, the jury
    should acquit. The Crowns position was that a
W. (D.)
instruction was
    not required since the appellant did not testify.

[13]

In
    considering the appellants argument about the
W. (D.)
instruction, it
    is important to have regard to the case law regarding the principles of
    appellate review of jury instructions. The focus of appellate review of jury
    charges is whether, after a functional and contextual review of the charge and
    of the trial as a whole, the jury instructions adequately prepared the jury for
    deliberations:
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para.
    39. Perfection is not the test. Nor is there any requirement to exactly track
    the
W. (D.)
language:
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C.
    (3d) 197, at para. 103. The key question is whether the jury was equipped with
    an understanding of the appropriate burden and standard of proof: see
R. v.
    King
, 2013 ONCA 417, 309 O.A.C. 39, at para. 16; see also
R. v. J.H.S.
,
    2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13;
R. v. Cyr
, 2012 ONCA
    919, 294 C.C.C. (3d) 421, at para. 49.

[14]

As
    noted, the appellant relies on
Bucik
in support of its position that a
W. (D.)
instruction was required. However, in
Bucik
this
    court did not hold that a
W. (D.)
instruction was mandatory in
    relation to all exculpatory statements or that its absence necessarily
    constitutes reversible error. As subsequent decisions of this court have made
    clear, an explicit
W. (D.)
instruction is not necessarily required
    where there is potentially exculpatory evidence, as long as the charge as a
    whole makes the burden of proof in relation to reasonable doubt and issues of
    credibility clear to the jury, such that it is not, as described in
Bucik
,
    simply an either/or contest: see e.g.
King
, at paras. 16-19;
R.
    v. Tuck
, 2014 ONCA 918, 123 O.R. (3d) 321, at paras. 51-56;
R. v.
    Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 98-102;
R. v.
    Moffit
, 2015 ONCA 412, 326 C.C.C. (3d) 66, at paras. 63-68.

[15]

In
    addition, in
Bucik
the court was dealing with a very specific factual
    circumstance in which there were two aspects of exculpatory evidence: (i) an
    accuseds statement to the police that he was present but did not participate
    in a fatal attack, and (ii) various eyewitness inconsistencies in his
    identification which, in combination with the lack of clear evidence of the
    number of people in the vicinity at the time of the fatal attack, could give
    rise to reasonable doubt. It was particularly in the context of the
    inconsistent identification evidence that reversible error was found in a jury
    instruction that simply told the jury to consider anything the accused said,
    along with all of the other evidence, in deciding whether they had a reasonable
    doubt.

[16]

In
    this case, the trial judge provided the jury with a comprehensive and correct
    instruction on the definition of proof beyond a reasonable doubt, which
    included a specific reference to intent:

The requirement of proof beyond a reasonable doubt applies to
    each and every element of the offence with which Mr. Barrett is charged. As I
    indicated to you in my opening remarks at the outset of this trial, and as
    counsel have also indicated to you in their addresses, identity and cause of
    death are not at issue in this case. The essential element that is in issue is
    the intent or state of mind: Has the Crown established beyond a reasonable
    doubt that Mr. Barrett had the requisite intent or state of mind for second-degree
    murder?

[17]

In
    the section of the charge addressing the appellants statements to police, the
    trial judge stated:

You may accept all, part or none of what Mr. Barrett told the
    police. You may give anything Mr. Barrett said as much or as little importance
    as you think it deserves in deciding this case. It is for you to say.
Anything that Mr. Barrett said, however, is only part of
    the evidence in this case. You should consider it along with and in the same
    way as all the other evidence.

Some or all of the statements made by Mr.
    Barrett during the interviews may help in Mr. Barretts defence. You must
    consider those remarks that may help Mr. Barrett, along with all the other
    evidence. You must consider all the remarks that might help Mr. Barrett.

If you decide that Mr. Barrett made a
    remark or remarks that may help him in his defence, you will consider that
    statement, along with the rest of his evidence, including the evidence called
    by the defence, in deciding whether you have a reasonable doubt that
    Mr. Barrett had the requisite intent or state of mind for murder.

I would remind you again that the burden of proving that Mr.
    Barrett had the requisite intent for murder beyond a reasonable doubt rests on
    the Crown. That onus of proof never shifts to Mr. Barrett. There is no burden
    on Mr. Barrett to prove anything. [Emphasis added.]

[18]

When
    addressing the indictment, and the state of mind necessary for second degree
    murder, the trial judge stated:

You must consider all of the evidence, the sum total of it,
    along with any other evidence that seems or tends to show Mr. Barretts state
    of mind when you are deciding whether Crown counsel has proven beyond a
    reasonable doubt that Mr. Barretts unlawful killing of Lucita was murder.

In determining this issue, you should
    consider all of the evidence. That would, of course, include what
    Mr. Barrett told the police during his two interviews.
[Emphasis
    added.]

[19]

The
    trial judges section of the charge setting out the position of the defence
    commenced by stating:

In his address to you, Mr. Bawden pointed out that Patrick
    Barrett made a statement to police against the advice of his counsel. In that
    statement, Mr. Barrett honestly confessed to having killed Lucita Charles. He
    also told the investigators, You have to believe me, I didnt mean it. Mr.
    Bawden pointed out that Mr. Barretts statement is admissible both for the
    Crown and the defence. Mr. Bawden submits that when Mr. Barrett said, I didnt
    mean it, he was truthfully trying to convey the fact that he never intended to
    kill Lucita. That is his defence at this trial.

[20]

In
    contrast to
Bucik
, in this case, the instruction to the jury put the
    entirety of the exculpatory defence evidencethe appellants denial of intentto
    the jury as something that they
had
to consider, and specifically tied
    it to the key issue. This was stronger language than used in
Bucik
.
    The jury in the present case was told they must consider all of the remarks
    that might help the appellant, along with all of the other evidence, in
    deciding whether they had a reasonable doubt that he had the requisite intent
    or state of mind for murder. Since the appellants intent was the sole issue at
    trial, it is inconceivable that the jury would not have appreciated that his
    statements that he did not mean to do it, even if not accepted in their
    entirety as true, were to be considered in determining whether they had a
    reasonable doubt on the whole of the evidence.

[21]

Additionally,
    as in
King
, the charge to the jury was replete with passages
    instructing the jury that the Crown bore the burden of proof beyond a
    reasonable doubt, that the burden never changed, and that the jury had to
    consider all of the evidence in deciding whether the Crown met the burden of
    proof beyond a reasonable doubt.

[22]

In
    my view, a consideration of the jury charge as a whole demonstrates that the
    jury was properly instructed on the interplay between the exculpatory aspects
    of the appellants statements and the reasonable doubt analysis. I would, therefore,
    reject this ground of appeal.

(ii)

Provocation

[23]

The trial judge reviewed the elements of
    the partial defence of provocation as enumerated in
R. v. Tran
, 2010 SCC
    58, [2010] 3 S.C.R. 350. She concluded that there was evidence on which the
    jury could find that Ms. Charless statement constituted an insult from the
    perspective of the appellant.

In considering the objective element, the trial judge held that there
    was no air of reality because there was no evidence on which a jury might
    conclude or have a reasonable doubt that an ordinary person would be deprived
    of self-control by the words. With respect to the subjective element, the trial
    judge concluded, without reasons, that this element of the test had been met. Finally,
    considering the element of suddenness, she concluded neither the insult nor the
    reaction were sudden, as both are required to be. Based on this analysis she
    held that there was no air of reality to the defence and declined to put it to
    the jury.

[24]

On appeal, the appellant submits that the trial
    judge erred in her analysis of the suddenness element. He argues that this case
    is not the classic situation of a grievous insult that provokes an
    instantaneous homicidal rage, but that few cases in the domestic context fall
    in this paradigm. According to the appellant, the trial judge erred in finding
    that there was no evidence that the appellant was taken by surprise by Ms.
    Charless final, unequivocal declaration of her intent to have an abortion. The
    appellant argues that the trial judge erred by focusing on the length of the
    discussion and argument, rather than on the forcefulness of Ms. Charless
    final statement.

[25]

I would not accede to this argument.

I agree with the
    finding of the trial judge that nothing had changed in what Ms. Charles had
    communicated to the appellant in the days and hours leading up to her death.
    She consistently told him that she would not have a child. Moreover, nothing in
    the appellants actions leading up to the attack is consistent with a sudden
    reaction. On the appellants own evidence, just before the attack, he left the
    bedroom and sat thinking while he felt the rage starting to build, then went
    out to the balcony and had a cigarette, then returned to the living room and
    flipped through his Bible, then returned to the bedroom and lay down with Ms.
    Charles, all before he attacked her. In these circumstances, it cannot
    reasonably be inferred that any insult or the appellants reaction to such
    insult was sudden. Therefore, I see no error in the trial judges analysis of
    this issue.

[26]

The appellant also submits that the trial
    judge did not properly take into account contextual factors in assessing the
    ordinary person test.

At trial the Crown submitted that the factors to be considered
    should be limited to the appellants age, gender, the fact that he was in a
    common law relationship with a woman for two years, and that he developed
    affection for her son. The defence submitted that the factors should be
    expanded to include that he was a devout Christian, that his common-law spouse
    had two previous abortions, that he entreated her not to have a third abortion,
    the history of their relationship, and that the appellant was heavily
    invested in his common law spouses son.

[27]

In my view, the contextual factors proposed by
    the appellant are so specific to the appellant that they turn this element of
    the test into a purely subjective one. In any event, the trial judge stated in
    her reasons that she took the factors proposed by the defence into account when
    assessing the ordinary person test and, that even with these factors included, there
    was no suggestion that an ordinary person would have been deprived of
    self-control. I see no basis to interfere with that conclusion.

[28]

In my view, the trial judges only error was in
    finding that Ms. Charless assertion that If I am pregnant, I am having an
    abortion could constitute an insult for the purposes of the defence of provocation.

The trial judge
    erred in stating that the issue was whether the appellant perceived Ms.
    Charless assertion as an insult, when the test is whether an ordinary person
    would perceive it as an insult:
Tran
, at para.
    25.

[29]

In addition, nothing that Ms. Charles did met
    the legal definition of an insult. In
Tran
, at
    para. 44, the Supreme Court quoted the dictionary definition of insult:

The general meaning of the noun insult as
    defined in the
Shorter Oxford English Dictionary on Historical
    Principles
(6th ed. 2007), vol. 1, at p. 1400, is [a]n
    act or the action of attacking; (an) attack, (an) assault. Likewise, the
    action of insulting means to [s]how arrogance or scorn; boast, exult, esp.
    insolently or contemptuously. . . . Treat with scornful abuse; subject to
    indignity; . . . offend the modesty or self-respect of.

[30]

I agree with the Crowns position that Ms.
    Charless words simply cannot be perceived as an insultthey are an assertion
    of her intentions with respect to the pregnancyand in the context of the
    series of events, it cannot be perceived that they were used in an insulting or
    offensive way. To the contrary, the manner in which she expressed herself to
    the appellant during the course of the argument that culminated in her death was
    the antithesis of insulting or provoking; indeed, she was trying to calm him
    down so that he would leave her alone.

[31]

While the trial judge erred in this regard,
    nothing turns on it as the error enured to the benefit of the appellant.

(iii)

Parole Ineligibility

[32]

The
    appellant submits that the appropriate period of parole ineligibility ought to
    have been fixed at 12 years. In my view, there is no merit to this submission.

[33]

The
    appellant alleges no error in principle.

[34]

He
    concedes that the appropriate range of parole ineligibility for this type of
    case is 12 to 15 years. As this court stated in
R. v. Dooley
, 2009
    ONCA 910, 249 C.C.C. (3d) 449, at para. 179, it is hard, absent some error in
    principle or misapprehension of material evidence, to justify appellate
    intervention to adjust a mandatory period of parole ineligibility downward by
    two or three years.

[35]

In
    my view, appellate intervention is not justified in this case. This was a
    vicious killing of a defenceless victim, which was followed by the desecration
    of her body. The victims severely disabled son lost his mother, who was his
    primary caregiver. The parole ineligibility period imposed was entirely
    reasonable given these and the other aggravating factors identified by the
    trial judge.

C.

Disposition

[36]

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

Released: January 8, 2016 DW

C.W.
    Hourigan J.A.

I
    agree David Watt J.A.

I
    agree Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Corby, 2016 ONCA 40

DATE: 20160115

DOCKET: C56852

Feldman, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Corby

Appellant

Wayne Corby, in person

Yoni S. Rahamim, duty counsel

Roger A. Pinnock, for the respondent

Heard and released orally: January 11, 2016

On appeal from the sentence imposed on March 5, 2013 by
    Justice D.T. Vyse of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

We see no error in the sentencing judges order. The sentencing judge
    properly exercised his discretion to order as optional conditions of the
    appellants probation under s. 732.1(3)(b) of the Criminal Code that the
    appellant remain in Ontario unless written permission to go outside Ontario is
    obtained from the court or his probation officer, and that he report weekly
    unless his probation officer directs him to report less frequently.

[2]

This was not to banish the appellant from the province of British
    Columbia as he alleges, but to monitor the appellant and ensure that he
    complies with the terms of his probation. This was particularly necessary
    because it was due to the appellant being outside of Ontario that he committed
    the breach of the probation order that formed the basis for his conviction.

[3]

Moreover, the appellants mobility rights are not unduly restricted
    because he can ask for permission of the court or his probation officer to
    leave the jurisdiction.

[4]

Further, if within the six weeks left on the order, the appellant wishes
    to do so, he can seek a variation of the weekly reporting condition from the
    court or from his probation officer.

[5]

For these reasons, the appeal is dismissed.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Desmanche, 2016 ONCA 17

DATE: 20160111

DOCKET: C59164

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rourke Thomas Desmanche

Appellant

Pamela Munn, for the appellant

Joanne Stuart, for the respondent

Heard and released orally: January 5, 2016

On appeal from the convictions entered on February 6,
    2013 and the sentences imposed on January 9, 2014 by Justice Helen A. Rady of
    the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of manslaughter in respect of the death of
    his infant son, as well as one count of assault for an earlier incident
    involving the child.  He was sentenced to 10 years in jail on the manslaughter
    conviction, plus one year in jail, concurrent, on the assault conviction, after
    credit on a 1:1 basis for his pre-sentence custody.  He appeals from his
    convictions and sentences.

A.      Conviction Appeal

[2]

The appellant appeals from his convictions on one main ground.  He
    submits that the trial judge misapprehended the trial testimony of several of
    the Crowns civilian witnesses and that of one of the medical experts called by
    the Crown at trial.

[3]

We disagree.

[4]

We see no material error in the trial judges appreciation of the
    evidence of the relevant civilian witnesses.  It was open to the trial judge to
    conclude, as she did, that these witnesses, who were friends and neighbours of
    the appellant, testified reluctantly and that they were hesitant to say
    anything at trial that was adverse to the appellants interests.  The trial
    judges observations in this regard formed a proper part of her assessment of
    the witness credibility, a matter squarely within the trial judges domain.
    Although, as the Crown concedes, the trial judge misquoted the evidence of one
    of these witnesses in one respect, this error was not material to the trial
    judges reasoning process.  That the relevant witness was a friend of and
    supportive of the appellant was borne out by either version of the statement at
    issue.  In these circumstances, the error in question did not occasion any miscarriage
    of justice.

[5]

We reach a similar conclusion concerning the trial judges treatment of
    the experts evidence.  As the Crown acknowledges, the experts report
    misstated the date on which the fatal injury to the appellants child
    occurred.  This misstatement, which the appellant concedes may have been merely
    a typographical error, was not addressed by the trial judge.  However, the
    misstatement did not bear on the core of the experts testimony, which
    concerned the timing of the fatal injury within a 30-minute period, established
    by the timing of the babys crying as overheard by the appellants neighbours
    and the timing of the arrival on the scene of medical personnel.  The experts evidence
    in this regard was supported by the testimony of another properly qualified
    medical expert at trial.  The misstatement in question, therefore, was
    inconsequential and could not have affected the outcome at trial.  We note, in
    this regard, that the evidence implicating the appellant in the assault and
    death of his son, taken as a whole, was overwhelming.

[6]

For these reasons, the conviction appeal is dismissed.

B.      Sentence Appeal

[7]

The appellant also seeks leave to appeal sentence.  As advanced during
    oral argument, the only issue is whether the trial judge erred by failing to
    accord the appellant enhanced credit for pre-sentence custody.  In light of the
    fresh evidence filed on appeal, the Crown acknowledges that enhanced credit was
    available in the circumstances.

[8]

The trial judge did not have the benefit of the Supreme Courts decision
    in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575 or this courts
    decision in
R. v. Slack
, 2015 ONCA 94.  In light of those decisions,
    it is our view that credit should have been afforded to the appellant for his
    pre-sentence custody at the rate of 1.5:1.  We see nothing in the Supreme
    Courts recent decision in
R. v. Lacasse
, 2015 SCC 64 that dictates a
    different conclusion.

[9]

Accordingly, leave to appeal sentence is granted, the sentence appeal is
    allowed and the appellant is granted credit for his 1,156 days of pre-sentence
    custody at the rate of 1.5:1.  This results in a total credit for pre-sentence
    custody of 1,734 days or 4.75 years, yielding a residual sentence of 5.25
    years imprisonment.  In all other respects, the sentences imposed remain
    unchanged.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhami, 2016 ONCA 51

DATE: 20160118

DOCKET: M45880 (C58707)

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Opneet Dhami

Applicant

V. Rondinelli, for the applicant

John Neander, for the respondent

Heard: January 13, 2016

ENDORSEMENT

[1]

The applicant Opneet Dhami applies for an order pursuant to s. 683(1)(b)
    of the
Criminal Code
requiring that a witness (the complainant and the
    applicants ex-wife) be made available for cross-examination in the context of
    his appeal of his convictions for assault, sexual assault and uttering a death
    threat.

[2]

The principal ground of appeal is that the trial judge erred in his
    assessment of the complainants credibility by concluding that she was not
    motivated to complain to the police by her desire to see her ex-husband
    deported to India. After the trial, the applicant obtained two documents from
    Citizenship and Immigration Canada (CIC)  a letter from the complainant with
    an affidavit and attachments and a summary on file with CIC based on the
    letter. The applicant wants to cross-examine the complainant about these
    documents to assist in his canvass of a potential fresh evidence application on
    the appeal.

[3]

We would not grant the application. In
R. v. Sihota
, 2009 ONCA
    770, 249 C.C.C. (3d) 22, at para. 14, Sharpe J.A. said that [i]t will only be
    in exceptional cases that an appellant who has been convicted of sexual assault
    should be afforded the opportunity to cross-examine the complainant in aid of a
    fresh evidence application on appeal. In
R. v. Ibrahim
, 2014 ONCA 229,
    at para. 4, this court said:

[T]he interests of justice require a consideration of the
    obvious interests of the appellant, but also the interests of the witness who
    is sought to be cross-examined. The interests of the witness are particularly
    significant when the witness is the complainant who has already testified at
    some length at a trial that occurred many years ago.

[4]

Applying these authorities, in our view this is not an exceptional case
    that justifies subjecting the sexual assault complainant to renewed
    questioning, and it is not in the interests of justice to do so.

[5]

The fact that the complainant complained about the applicant to CIC was
    acknowledged in crystal clear language in her cross-examination at the trial:

Q.      Right. Did you call immigration as well, to let them  know?

A.      Yes.

Q.      Right. Because you want to do everything you        could
    to get him deported, isnt that true?

A.      Yeah. He used me

[6]

In light of this testimony, further questioning of the complainant about
    the details of what she said to CIC would not advance the applicants argument
    that the trial judge misapprehended the complainants evidence about her
    complaint to CIC. This argument can be fully made on the basis of the
    complainants trial testimony and the CIC documents obtained after the trial,
    the latter on the basis of a fresh evidence application made to the panel
    hearing the appeal.

[7]

The application is dismissed.

J.C.
    MacPherson J.A.

David
    Watt J.A.

B.W.
    Miller J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Downey, 2016 ONCA 19

DATE: 20160111

DOCKET: C58230

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Juteah Downey

Appellant

Tyler R. Botten, for the appellant

Gillian Roberts, for the respondent

Heard and released orally: January 5, 2016

On appeal from the convictions entered on October 16,
    2013 and the sentence imposed on January 6, 2014 by Justice A. Donald MacKenzie
    of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

After trial by judge and jury, the appellant and his co-accused, R.B., were
    convicted of procuring K.S., who had just turned 14, to become a prostitute
    contrary to s. 212(1)(d) of the
Criminal Code
, R.S.C., 1985, c. C-46.
    The appellant was also convicted of aiding K.S. in engaging in prostitution for
    the purpose of gain under s. 212(1)(h). The appellant was sentenced to a global
    prison term of 30 months less 24 days. He appeals his convictions and seeks
    leave to appeal his sentence. The co-accuseds appeal is proceeding separately.

[2]

The appellant raises one argument on his conviction appeal. He contends
    that the closing address by counsel for R.B. relied on matters not in evidence
    and prejudiced his right to a fair trial, and that the trial judge erred in
    failing to provide a sufficient corrective instruction or in refusing to declare
    a mistrial.

[3]

We do not give effect to this ground of appeal.

[4]

At trial, the central defence of both accused, neither of whom
    testified, was that the complainant was not worthy of belief and that she had
    not been procured into prostitution, but had decided to come to Ontario from
    Nova Scotia with the intention of working as a prostitute.

[5]

The appellants counsel also suggested that if someone was acting as
    K.S.s pimp, it was the person she identified in her evidence as Stela. For
    her part, in her closing argument, R.B.s counsel invited the jury to conclude
    that R.B. was merely an escort working for the appellant, not an accomplice in
    the procurement of K.S. It is this aspect of the closing address that the
    appellant now challenges.

[6]

In our view, this challenge must fail. While there was no direct
    evidence of the relationship between R.B. and the appellant, there was
    circumstantial evidence at trial from which the jury might have drawn the inference
    put forward by R.B.s counsel.

[7]

Moreover, even if R.B.s counsel crossed the line in her closing
    argument by inviting the jury to accept a relationship between the appellant
    and R.B. not directly established by the evidence, we are not persuaded that
    this occasioned any miscarriage of justice. The trial judge gave a corrective
    instruction in his jury charge that, in all the circumstances, was adequate.
    Further, there was significant direct and circumstantial evidence that the
    appellant was running an escort agency and overwhelming evidence that he was
    acting as a pimp for the complainant. And the conviction of R.B. for the
    offence of procurement clearly indicates that the jury did not accept her
    counsels characterization of the nature of her role and the extent of her
    involvement with K.S.

[8]

The conviction appeal is therefore dismissed. We do not grant leave to
    appeal sentence as the decision in
R. v. Ijam
, 2007 ONCA 597 is
    dispositive of the grounds raised by the appellant. The appellants counsel did
    not suggest otherwise at the appeal hearing.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.