CITATION:
Clark v. Werden, 2011 ONCA 619

DATE: 20110930

DOCKET: C51975

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Patrick Peter Clark

Plaintiff
          (Respondent)

and

Leonard James Werden

Defendant (Appellant)

AND BETWEEN

Patrick
          Peter Clark

Plaintiff (Respondent)

and

Leonard James Werden

and Maximum Swine Marketing Ltd.

Defendants (Appellants)

and

John
          Muller and J & C Muller Farms Inc.

Third Parties (Respondents)

Andrew C. Murray, for the appellant
          Leonard James Werden

J. Douglas Skinner, for the respondent Patrick Peter Clark

Heard:  March 9, 2011

On appeal from the judgment of Justice Lynne Leitch of the
          Superior Court of Justice, dated March 19, 2010, with reasons reported at 2010
          ONSC 1674.

Feldman J.A.:

Overview

[1]

Peter
    Clark, James Werden and John Muller were once friends and business associates,
    before Peter Clark and James Werden had a falling out. John Muller had loaned
    James Werden $120,000 in 2001. The loan was in default when John Muller
    assigned it to Peter Clark in 2004 for him to collect. Peter Clark sued James
    Werden for the balance of the loan and obtained judgment.

[2]

On this appeal, the
    only issue raised by Werden is his claim that the loan agreement was not
    enforceable by Peter Clark because of the law against champerty and
    maintenance. For the reasons that follow, I would dismiss the appeal.

Facts

[3]

The three protagonists
    in the story of the events leading up to this action are the appellant, Werden,
    the respondent, Clark, and the third party, Muller, who is no longer a party on
    the appeal. All three were involved in the pork business, Clark and Werden as
    brokers, and Muller as a producer. Werden and Clark began as co-workers, became
    friends, and after Werden founded his own company, Maximum Swine Marketing Ltd.,
    which Clark joined, Werden became Clarks employer. At the time, Muller and his
    company were clients of Maximum.

[4]

When Clark left
    Maximum to establish his own pork brokerage in 2003, he brought over a number
    of Maximums clients including Muller. This led to a successful action by
    Werden wherein he obtained a temporary injunction against Clark, preventing him
    from dealing with Muller for 90 days, as well as an order for $16,000 costs. It
    also led to the breakdown of their friendship. Although they re-established
    their relationship for a period in 2005-06, after that they were no longer
    friends.

[5]

When Werden needed
    $120,000 to purchase a property with his wife, he borrowed the funds from
    Muller, and on March 1, 2001 they entered into a loan agreement calling for
    quarterly payments and an eight per cent interest rate. At trial, Werden
    claimed there was no loan and this was instead a refund of trust monies that
    Muller was holding as part of a fictitious tax-saving scheme. The trial judge
    rejected his evidence and found that the loan agreement evidenced a legitimate
    loan transaction.

[6]

Clark and Muller had remained
    business associates. When Werden defaulted on two loan payments, Muller and
    Clark agreed that Muller would assign the Werden loan to Clark and that Clark would
    collect it from Werden. The loan was assigned by an agreement dated June 11,
    2004, and notice was given to Werden on June 12, 2004. Although Clark paid
    nothing to Muller at the time of the assignment, they agreed that when Clark
    recovered the money, he and Muller would sit down and discuss how they would
    share the proceeds.

[7]

The trial judge found
    that the assignment was valid and properly documented. She further found that
    the fact that no consideration was paid for the assignment did not detract from
    its validity. The trial judge referred to s. 6 of the
Conveyancing and Law
    of Property Act
,

R.S.O. 1990, c. C.34, which deals with the issue of
    consideration as between the assignor and the assignee, then observed that
    regardless of any issue of consideration between Clark and Muller, s. 53 of the
    Act made the assignment effective as against Werden. Finally, she concluded:

As a result, Patrick Clark is not a stranger to
    this litigation. He obtained a
bonafide
assignment of the loan and
    issues of champerty and maintenance do not arise.

Issue

[8]

The sole issue raised
    on the appeal is whether the assignment of the loan and its enforcement by Clark
    were prohibited because they amounted to champerty and maintenance.

Analysis

[9]

The history of the
    common law prohibitions against champerty and maintenance was discussed and
    explained in detail by OConnor A.C.J.O. in
McIntyre Estate v. Ontario (AG)
(2003), 61 O.R. (3d) 257 (C.A.), a case concerning the propriety of lawyers
    contingency fees. At paragraph 26, he described the prohibited conduct:

Although the type of conduct that might constitute
    champerty and maintenance has evolved over time, the essential thrust of the
    two concepts has remained the same for at least two centuries. Maintenance is
    directed against those who, for an improper motive, often described as wanton
    or officious intermeddling, become involved with disputed (litigation) of
    others in which the maintainer has no interest whatsoever and where the
    assistance he or she renders to one or the other parties is without
    justification or excuse. Champerty is an egregious form of maintenance in which
    there is the added element that the maintainer shares in the profits of the
    litigation.

[10]

In Ontario, champerty is also prohibited by the Champerty Act (
An
    Act Respecting Champerty
, R.S.O. 1897, c. 327), an unrepealed statute of
    Ontario. Despite the fact that the Act makes no reference to motive, this court
    has held, both in
McIntyre
and earlier in
Buday v. Locator of Missing
    Heirs Inc.
(1994), 16 O.R. (3d) 257 (C.A.), at p. 267, that the Act was
    intended to reflect the common law concept of champerty and therefore must be
    read to include improper motive as a component.

[11]

However, where the assignee of a cause of action, either in tort or
    contract, possesses a

sufficient pre-existing financial interest in the
    cause of action that has been assigned, that negates the suggestion of
    maintenance and such assignment
s
are viewed as valid. Similarly, it is
    recognized that a cause of action in debt can be validly assigned and that such
    an assignment does not violate the rule against champerty and maintenance: See

Fredrickson

v.

I.C.B.C
, [1986] 3 B.C.L.R. (2d) 145
    (C.A.), at p. 160,

affirmed with reasons adopted by the Supreme
    Court of Canada,

[1988] 1 S.C.R 1089. See recently
Plant Software
    Inc. v. 9123

Investments Ltd.
(1999), 14 P.P.S.A.C. (2d) 281
    (B.C.S.C.).

[12]

In
Fitzroy v. Cave
, [1905]

2 K.B. 364 (C.A.), one of the

cases relied upon by McLachlin J.A. in
Fredrickson
, Cozens-Hardy L.J.
    held at p. 373-74, that [h]enceforth in all Courts a debt must be regarded as
    a piece of property capable of legal assignment in the same sense as a bale of
    goods. It is not easy to see how the doctrine of maintenance can be applied to
    a case like the present [concerning the assignment of a debt].

[13]

The ability to assign a debt or legal chose in action is codified in s.

53 of the
Conveyancing and Law of Property Act
, which provides that
    a debt is assignable subject to the equities between the original debtor and
    creditor and reads as follows:

53.  (1)  Any
    absolute assignment made on or after the 31st day of December, 1897, by writing
    under the hand of the assignor, not purporting to be by way of charge only, of
    any debt or other legal chose in action of which express notice in writing has
    been given to the debtor, trustee or other person from whom the assignor would
    have been entitled to receive or claim such debt or chose in action is
    effectual in law, subject to all equities that would have been entitled to
    priority over the right of the assignee if this section had not been enacted,
    to pass and transfer the legal right to such debt or chose in action from the
    date of such notice, and all legal and other remedies for the same, and the
    power to give a good discharge for the same without the concurrence of the
    assignor.  R.S.O. 1990, c. C.34, s. 53 (1).

[14]

In this case, the debt was assigned in accordance with s. 53.

[15]

The appellant submits that this is a case where the court should apply
    the five-part test for the indicia of champerty and maintenance set out in the
    British Columbia Supreme Court case of
NRS Block Brothers Realty Ltd. v.
    Minerva Technology Inc.
(1997),

145 D.L.R. (4th) 448,
as follows: element
    of officious intermeddling; no previous commercial connection; the assignee is
    speculating on a personal gain from the lawsuit; there is a stirring up of
    strife; the assignee initiates or promotes the commencement of the lawsuit. He
    asserts that there is evidence that Muller would not have pursued Werden on the
    debt, and that it was Clark who sought the assignment and the commencement of
    the lawsuit with no previous interest other than bad feeling toward him.

[16]

The trial judge did not address these concerns directly, because she
    found that this was a valid assignment of a debt in accordance and in
    compliance with s. 53 of the
Conveyancing and Law of Property Act
. In my
    view, she made no error in her legal conclusion. The case law is clear that an
    assignment of a debt is not a champertous transaction and the otherwise
    applicable criteria do not apply to such an assignment. In
Fitzroy
similar
    arguments were made. In concluding that the assignments of debts were valid and
    not champertous, Cozens-Hardy L.J. commented:

It is said that the plaintiff does not really
    desire to be paid and can take nothing for his own benefit under the judgment.
    For the reasons above stated, I think this is of no moment. It is further urged
    that his only object is to obtain a judgment which may serve as the foundation
    of bankruptcy proceedings, the ultimate result of which will be the removal of
    the defendant from his position as director of a company in which the plaintiff
    is largely interested.
But I fail to see that we have anything to do with
    the motives which actuate the plaintiff, who is simply asserting a legal right
    consequential upon the possession of property which has been validly assigned
    to him.
[Emphasis added.]

[17]

The appellant also submits that the trial judge erred in finding that
    the assignment constituted an absolute assignment because Clark and Muller intended
    to agree after the fact on the division of the proceeds. I do not agree. I
    infer from the decision of the trial judge and her thorough reasons that she
    was satisfied that the assignment was a valid absolute assignment in accordance
    with the documents.

Disposition

[18]

I would dismiss the appeal with costs to the respondent fixed at $3,000
    as agreed at the conclusion of oral argument.

Signed:           K. Feldman J.A.

I agree Doherty J.A.

I agree G. Epstein J.A.

RELEASED:  DH September 30, 2011


CITATION: Dundee Precious Metals Inc. v. Marsland, 2011
          ONCA 594

DATE: 20110915

DOCKET: C53071

COURT OF APPEAL FOR ONTARIO

Sharpe, Armstrong and Karakatsanis JJ.A.

BETWEEN

Dundee
          Precious Metals Inc. and Resources Management Services
          Krumovgrad Eood

Plaintiffs (Appellants)

and

Laurence Marsland and Base Resources D.O.O.

Defendants (Respondents)

H. James Marin and John Wires, for the appellants

Kimberly Boara Alexander, for the respondents

Heard: August 23, 2011

On appeal from the order of Justice Katherine Corrick of the
          Superior Court of Justice dated November 25, 2010.

By the Court:

[1]

The appellant, the Dundee Precious Metals Inc. (Dundee), a public
    mining company with its head office in Toronto, sued its former Chief Operating
    Officer and Executive Vice President, the respondent Laurence Marsland, for
    breach of contractual and fiduciary duties. Dundee alleges that Marsland
    misappropriated a confidential corporate opportunity. The contract between
    Dundee and Marsland expressly states that it shall be governed by Ontario law
    and Dundee alleges damages that were sustained in Ontario. Marsland, an
    Australian national, has never lived in Canada. Pursuant to his employment
    agreement with Dundee, Marsland moved to Bulgaria to work on a mining project
    in Serbia. Marsland frequently visited Ontario and was in daily contact with
    Dundee while employed as the Chief Operating Officer. The conduct giving rise
    to Dundees claim took place in Bulgaria and Serbia.

[2]

Marsland moved to have the action dismissed for want of jurisdiction and
    on grounds of
forum

non conveniens
. The motion judge found that
    the connection between Dundees claim and Ontario is weak and that there was
    virtually no contact between Marsland and Ontario. Without finding either
    Serbia or Bulgaria to be a clearly more appropriate forum, the motion judge nevertheless
    found that the action should be stayed on grounds of
forum

non
    conveniens.

[3]

For the following reasons, we allow the appeal and hold that the motion
    judge erred in both her assessment of the connection between the claim and
    Ontario and in her application of the
forum

non conveniens
test. In
    our view, there is a real and substantial connection sufficient to sustain
    Ontario jurisdiction and Ontario is the appropriate forum for this litigation.

JURISDICTION

[4]

It is common ground that, pursuant to
Van Breda v. Village Resorts
    Ltd.
(2010), 98 O.R. (3d) 721 (C.A.), jurisdiction
simpliciter
is
    presumed as the claim falls within Rule 17(f)(2) (the contract provides that
    it is to be governed by or interpreted in accordance with the law of Ontario).
    To be successful, Marsland therefore bears the onus of demonstrating the lack
    of a real and substantial connection with Ontario.

[5]

Van Breda
holds, at para. 84 that [t]he core of the real and substantial
    connection test is the connection that the plaintiffs claim has to the forum
    and the connection of the defendant to the forum, respectively.

(a) Connection of the claim to Ontario

[6]

We agree with the appellant that the motion judges conclusion that the
    connection between Dundees claim and Ontario was weak cannot withstand
    analysis. Dundee is a Canadian public corporation, headquartered in Ontario.
    Marsland, employed as Dundees Chief Operating Officer and Executive Vice
    President, was subject to the laws of Ontario and he took on fiduciary duties
    and duties of confidentiality under the law of Ontario, which continued even
    after the termination of his employment. Following the termination of his
    employment with Dundee, he signed a Management Contract and Release. Both agreements
    explicitly state that they are governed by Ontario law and both explicitly
    continue Marslands duty of confidentiality owed to Dundee. Dundee alleges that
    Marslands breach of fiduciary duty and breach of contract caused it damage in
    Ontario.

[7]

In our view, when all of these factors are considered, there is a strong
    connection between Dundees claim and Ontario and the motion judge erred by
    characterizing the connection as weak.

(b) Connection between Marsland and Ontario

[8]

The motion judge also found that there was virtually no connection
    between Marsland and Ontario. We respectfully disagree with this
    characterization as well. In our view, there was a significant connection
    between Marsland and Ontario.

[9]

Van Breda
states, at para. 92:

As stated in
Beals
, at para. 32, a
    defendant can reasonably be brought within the embrace of a foreign
    jurisdiction's law where he or she has participated in something of
    significance or was actively involved in that foreign jurisdiction.

[10]

Marsland was a senior executive of Dundee, fully engaged in its business
    for a period of several years. He attended Dundee board meetings in Toronto
    four to five times per year and attended senior management meetings in Toronto at
    least once per year. He also participated in weekly video conference calls,
    usually originating in Toronto, and was in daily telephone contact with Dundees
    president, who was based in Toronto. We cannot agree that there was virtually
    no connection between Marsland and Ontario given his position with Dundee, the
    duties he owed Dundee and the regular and on-going participation in Ontario-based
    activities in the performance of his duties.

[11]

The motion judges assessment and application of real and substantial
    connection test in this case would lead to the surprising proposition that a
    Canadian corporation headquartered in Ontario cannot use Ontario courts to
    enforce legal obligations owed to it under Ontario law by current and former
    senior officers who routinely traveled to Ontario on company business and who
    were in daily contact with the company in Ontario.

[12]

We conclude that the courts of Ontario have jurisdiction to entertain
    Dundees claim.

FORUM NON CONVENIENS

[13]

As this court stated in
Incorporated Broadcasters Limited v. Canwest
    Global Communications Corp
. (2003), 63 O.R. (3d) 431 at para. 58:

The starting place for
    considering convenient forum is whether there clearly is a more appropriate
    jurisdiction than the domestic forum chosen by the plaintiff in which the case
    should be tried (
Frymer
at p. 79 O.R.). Also see
Spar Aerospace
    Ltd. v. American Mobile Satellite Corp.
,
2002 SCC 78, 220 D.L.R.
at
    para. 69 and 70 and
Amchem Products Inc. v. British Columbia (Workers
    Compensation Board)
, [1993] 1 S.C.R. 897, 102 D.L.R. (4
th
) 96 at
    p. 921 S.C.R.

[14]

While we recognize that
forum non conveniens
is a discretionary
    decision attracting appellate deference, we respectfully conclude that the
    motion judge erred by failing to assess whether Marsland satisfied the onus of
    identifying another jurisdiction clearly more appropriate than Ontario in which
    to try this action. The motion judge mentioned Serbia and Bulgaria as possible
    alternate jurisdictions but did not identify either as being clearly more
    appropriate than Ontario. Her finding, at para. 42, that there are no
    geographic factors, apart from the location of Dundees head office, pointing
    to Ontario as the most convenient forum and that [m]ost geographic factors
    point to a forum other than Ontario is difficult to understand given the fact
    that the case involves duties owed under Ontario law to a Canadian company.

[15]

In our view, Marsland failed to demonstrate that there was another
    jurisdiction clearly more appropriate than Ontario to try this action and it
    follows that this was not a case for a stay on grounds of
forum non
    conveniens
.

CONCLUSION

[16]

For these reasons, the appeal is allowed and the motion to dismiss the
    action for want of jurisdiction or to stay the action on grounds of
forum

non conveniens
is dismissed. In accordance with the agreement of
    counsel, Dundee is entitled to its costs of the motion, fixed at $25,000 and of
    the appeal, fixed at $17,000, both amounts inclusive of disbursements and applicable
    taxes.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

Karakatsanis J.A.

RELEASED:  September 15, 2011


CITATION: Gold Scissors Hair Studios
      Ltd. v. Saikaley, 2011 ONCA 615

DATE:  20110926

DOCKET: C53149

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and Laskin JJ.A.

BETWEEN

Gold Scissors Hair Studios Ltd.

Applicant (Respondent in Appeal)

and

Jeannette Saikaley and John Saikaley

Respondents (Appellants)

Andrew McKenna, for respondents (appellants)

No one appearing for the applicant (respondent)

Heard:  September 23, 2011

On appeal from the order of Justice McLean of the Superior
          Court of Justice dated December 9, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The matter has settled.  Order to go per draft order filed.


CITATION: Indalex Limited (Re), 2011 ONCA 578

DATE: 20110907

DOCKET: C52187 & C52346

COURT OF APPEAL FOR ONTARIO

MacPherson, Gillese and Juriansz JJ.A.

BETWEEN

In the Matter of the
Companies Creditors
          Arrangement Act
, R.S.C. 1985, c. C-36, as amended

And in the Matter of a Plan of Compromise or
          Arrangement of Indalex Limited,           Indalex Holdings (B.C.) Ltd.,
          6326765 Canada Inc. and Novar Inc.

Applicants/Respondents

Andrew J. Hatnay and Demetrios Yiokaris for the Former Executives,
          appellants

Darrell L. Brown for the United Steelworkers, appellants

Mark Bailey for the Superintendent of Financial Services

Hugh OReilly and Adam Beatty for Morneau Sobeco Limited
          Partnership, Intervenor

Fred Myers and Brian Empey for Sun Indalex Finance, LLC

Ashley Taylor and Lesley Mercer for the Monitor,
      FTI Consulting Canada ULC

Harvey Chaiton and George Benchetrit for George L. Miller, the
          Chapter 7 Trustee of the Bankruptcy Estates of the US Indalex Debtors

On appeal from the orders of Justice Colin Campbell of the
          Superior Court of Justice, dated February 18, 2010.

COSTS ENDORSEMENT

[1]

The court released its reasons for decision in this matter on April 7,
    2011 (the Decision).  In the Decision, the court indicated that if the parties
    were unable to agree on costs, they could make brief written submissions on the
    same.  Despite extensive efforts to settle costs, no settlement was reached and
    the parties duly made written submissions.  This endorsement follows due consideration
    of those submissions.

[2]

Morneau Shepell Ltd., the Ontario Superintendent of Financial Services
    and the Retirees reached an agreement in respect of the payment of the
    Retirees legal fees and disbursements.  The court approves the agreement.
    Therefore, it orders that:

i.

the Retirees full indemnity legal fees and disbursements in the amount
      of $269,913.78 shall be paid from the fund of the Executive Plan attributable
      to each of the 14 Retirees accrued pension benefits.  Specifically, such costs
      shall be allocated among the 14 Retirees in relation to their pension
      entitlement from the Executive Plan and will not be borne by the other three
      members of the Executive Plan, who are not appellants;

ii.

the $269,913.78 amount shall be paid to Koskie Minsky LLP in trust on
      the first day of October, 2011;

iii.

the costs of these proceedings ordered in favour of the Retirees shall
      be paid to the fund of the Executive Plan and once received, the amount shall be
      allocated among the 14 Retirees in relation to their pension entitlement from
      the Executive Plan.

[3]

The USW sought an order to the same effect in respect of the Salaried
    Plan.  We decline to make that order because the USW is in a materially
    different position than the Retirees.  The Retirees are beneficiaries of the
    pension fund.  The individual represented  Retirees, who comprise 14 of 17
    members of the Executive Plan, have consented to the payment of costs from
    their individual benefit entitlements.  Those who have not consented will not
    be affected by the payment.  By contrast, the USW is the bargaining agent (not
    a beneficiary) for only 7 of the 169 beneficiaries of the Salaried Plan, none
    of whom have been given notice of, or consented to, the payment of legal costs
    from the Salaried Plan.  It is also significant that we are not dealing with
    surplus pension funds as the Salaried Plan is underfunded.

[4]

We make no order as to costs of the underlying motions.  We understand
    that the conventional approach in
CCAA
proceedings is to rarely make costs
    orders, with the result that each party bears its own costs.  There are sound
    policy reasons that underlie this approach, which include the reality that as a
    result of the situation of the insolvent company, the amount of funds available
    for distribution is limited and parties ought not to expect to recover their
    litigation costs: see
Canadian Asbestos Services Ltd. v. Bank of Montreal
,
    [1993] O.J. No 1487, at para. 31 (Gen. Div.) and
Re Calpine Canada Energy
    Limited
, [2008] A. J. No. 965, at para. 1.  We see no reason to depart from
    the usual practice.

[5]

As for costs of the appeal, we make no order for or against the Monitor
    due to its prior agreement with the Retirees and the USW in which the parties
    agreed not to claim against one another for the costs of the leave to appeal
    motion or the appeal.

[6]

The Retirees argue that the court should award costs of the motion for
    leave to appeal, the motion for intervenor status and the appeal on a
    substantial or full indemnity basis.  We see no reason to depart from the
    courts normal practice of awarding costs on a partial indemnity basis.

[7]

Thus, the Retirees and the USW, as the successful parties, are each
    entitled to their costs on a partial indemnity basis from Sun Indalex and the
    U.S. Trustee, payable jointly and severally.  We fix those costs at $40,000,
    inclusive of applicable taxes and disbursements.  The payment of costs in
    favour of the Retirees shall be done in accordance with para. 2(iii) above.

[8]

In making this order, we are mindful of the submissions of Sun Indalex
    and the U.S. Trustee that any costs award should be payable by the Canadian
    Debtors [Indalex].  However, we are not persuaded that we should depart from
    the usual practice in which the unsuccessful parties pay the costs of the
    successful parties.

[9]

Orders to go in accordance with these reasons.

J.C. MacPherson J.A.

E.E. Gillese J.A.

R.G. Juriansz J.A.


CITATION:
Lechcier-Kimel
          (Re), 2011 ONCA 590

DATE: 20110913

DOCKET: M40253 (C53831)

COURT OF APPEAL FOR ONTARIO

Weiler J.A. (In Chambers)

In the Matter of the Bankruptcy of Jack
Lechcier-Kimel
, of the City of Toronto, in
          the                                                           Province of Ontario

Jonathan H.
Wigley
, for the moving
          party/responding party by way of cross-motion, HSBC Bank Canada

Cameron Wetmore, for the responding party/moving party by way
          of cross-motion, Jack
Lechcier-Kimel

Heard: August 24, 2011

On appeal from the order of Justice
          David M. Brown of the Superior Court of Justice dated March 24, 2011, and on
          a motion and cross-motion for directions.

Weiler J.A. (in chambers):

[1]

HSBC Canada Bank (HSBC) brought a motion to be added as
    a creditor in the bankruptcy application of Jack
Lechcier-Kimel
(JLK).  HSBCs motion was granted.  JLK filed a notice of appeal from that
    decision.  HSBC brought a motion for an
    order that JLK requires leave of this court to pursue an appeal pursuant to s.
    193(e) of the
Bankruptcy and Insolvency
    Act,
R.S.C. 1985, c. B-3, as amended (
BIA
).  In the event that leave is required, HSBC
    submits that I should refuse to grant leave on the basis that JLKs appeal has
    no merit.  Finally, and in the
    alternative, if leave is granted, HSBC seeks an order expediting the appeal and
    security for costs.

[2]

JLK argues that leave is not required but, if leave is
    required, JLK has now brought a cross-motion requesting leave.  JLK also submits that, if leave is required,
    a panel of three judges should decide the leave application as opposed to a
    single judge sitting in chambers.  JLK further
    submits that it has a good, arguable appeal and would agree to an order
    expediting the hearing of the appeal.

[3]

I must first deal with the question of whether leave is
    required and whether a single judge can grant leave.

[4]

The relevant portions of s. 193 of the
BIA
provide as follows:

Unless otherwise expressly provided, an appeal lies
    to the Court of Appeal from any order or decision of a judge of the court in
    the following cases:

(a) if the point at issue involves future
    rights;

...

(e) in any other case by leave of a judge of
    the Court of Appeal.

[5]

The original
    bankruptcy application was brought with respect to both JLK and his spouse,
Mahavash

Lechcier-Kimel
(MLK).  By consent order, there are now two separate
    proceedings.  In the proceeding involving
    MLK, on the question of whether an appeal from an order adding an applicant
    creditor requires leave, Gillese J.A. held that leave is necessary and that
    adding a party does not raise a point involving future rights.  I agree with her.  In
Elias v. Hutchison
(1981), 121 D.L.R. (3d) 95 (Alta. C.A.), the court dealt
    with whether leave was required to appeal an order dismissing an application to
    sue the trustee.  The court held that
    there was no appeal as of right.  The
    appeal did not involve future rights since future rights are those rights that are
    not asserted at the present time but that will come into existence at a future
    time.  The issue was whether a present
    right to sue the trustee existed.  The
    definition of future rights in
Elias
was
    approved by this court in
Ravelston
Corp. (Re)
,
    2005
CanLII
63802 (ON CA), at para. 19.  As in
Elias,
the case before me does not involve future rights since the issue is HSBCs
    present right to be added as a creditor.

[6]

Since the decision of Gillese J.A., counsel for MLK has
    brought a further motion before Armstrong J.A. to set aside her order on the
    basis that the notice of motion did not clearly indicate that a motion for leave
    to appeal was to be heard and for that reason responding counsel did not
    appear. Armstrong J.A. has dismissed that motion.

[7]

The issue of leave and whether leave should be granted
    was fully argued before me.

[8]

On the question of whether a single judge can grant
    leave or whether the decision ought to be made by a panel, I note that s. 193
    specifically states that leave can be granted by a judge of the Court of
    Appeal.  Thus, leave is required and a
    single judge of this court can grant leave.

[9]

I now turn to the question of whether leave should be
    granted.  On an application for leave to
    appeal under s. 193(e) of the
BIA
,
    one factor that is considered in all cases is whether the appeal is
prima facie
meritorious.  In this regard, while not assessing or
    deciding on the ultimate merits of the proposed appeal, the applicant must
    convince the court that the appeal raises arguable points that create a
    realistic possibility of success on the appeal: see
Ravelston
Corporation Limited (Re)
,

2007 ONCA 268, at paras. 11-12.

[10]

Before me,
    JLK advances two primary grounds of appeal.  The first is that the motions judge erred in finding that the applicant
    creditor, Community Trust Company (CTC), was not prosecuting the proceedings
    with due diligence and effect as required by s. 43(13) of the
BIA
.  At para. 21 of his reasons, the motions judge
    observed that, during the cross-examination of Tara
Rolston
on her affidavit, counsel for CTC stated that CTC was not seeking to pursue
either
of the applications for
    bankruptcy at that point (which was over a year from the bankruptcy
    application). The motions judge held, at para. 22, Mr.
Reininger
,
    as counsel for a party, made a clear statement binding on the applicant, CTC,
    which is admissible as evidence of CTCs intentions regarding these
    applications.  JLK submits that
    counsels statement cannot be relied upon and treated as evidence as the
    statement is unsworn and was not specifically adopted by the affiant being
    cross-examined.

[11]

This first ground of appeal does not meet the test. The
    statement by CTCs counsel was an admission by counsel on behalf of his client.
    Counsel for JLK has provided no authority to suggest that the motions judge
    made a palpable and overriding error in relying on this admission.

[12]

Moreover, this ground of appeal advanced by JLK is the
    same ground advanced in the MLK proceedings.  In MLK, Gillese J.A. held that she would
    refuse to grant leave as the purported appeal from the decision adding a party
    is without merit and the issue it raised is not of significance to the
    practice or the MLK bankruptcy application, as paragraph 2 of the order of 24
    March 2011 specifically preserves all of Ms.
Lechcier-Kimels
rights and defences on the MLK bankruptcy application. Those comments are
    equally applicable here.

[13]

The second
    ground of appeal is that the motions judge erred in not exercising his discretion
    to decide a question of law and in leaving that question to the hearing of the
    bankruptcy application. The question of law is whether the entire bankruptcy
    proceedings are a nullity.  Inasmuch as
    the original application for bankruptcy was brought with respect to both JLK
    and MLK, as opposed to a separate application against each of them, JLK submits
    that the entire proceedings are a nullity and not a defect that can be cured
    under the
BIA.
JLK submits that the motion judges deferral
    of the question of law offends the principle that proceedings should be
    conducted in the least expensive manner and that the motions judge erred in
    principle in adjourning the question to the trial of the bankruptcy, which was
    scheduled for a month later.

[14]

This ground of appeal also does not meet the test. No
    authority has been provided to me to support the submission that it is an error
    in principle for a judge to adjourn a question of law to the trial of the
    bankruptcy.  Indeed, important issues of
    law are often decided based on a full factual record.  While the parties would often like to know the
    outcome of an important legal issue to assist them in preparing for trial - thus
    potentially saving time and money - that goal alone does not trump the judges
    exercise of discretion and force him or her to decide the question of law
    before the trial of the bankruptcy application.

[15]

Accordingly, I would refuse leave to appeal. In view of
    my decision, it is unnecessary for me to deal with the alternative relief
    requested.

[16]

Costs of this motion are to HSBC and, on consent, are
    fixed in the amount of $5,000, inclusive of disbursements and all applicable taxes.

RELEASED:  September
    13, 2011


CITATION:
Nadery
(Re), 2011 ONCA 573

DATE: 20110902

DOCKET: C52895

COURT OF APPEAL FOR ONTARIO

Sharpe, Armstrong and Karakatsanis JJ.A.

BETWEEN

Her
          Majesty the Queen and Ontario Shores Centre for Mental Health Sciences

Respondents

and

Farzad

Nadery

Appellant

Farzad

Nadery
,
          in person

Anita Szigeti,
Amicus Curiae

Greg
Skerkowski
,
          for the Crown

Barbara Walker-
Renshaw
,
          for the Ontario Shores Centre for Mental Health Sciences

Heard & released
          orally:
August 23, 2011

On appeal from the disposition of the Ontario Review Board dated
          August 26, 2010.

ENDORSEMENT

[1]

The Ontario Review Boards November 27, 2009
    disposition ordered that the appellant be detained with a condition allowing
    him to live in the community in accommodation approved by the hospital. On July
    20, 2010 this court allowed an appeal from that disposition substituting an
    order directing that the appellant be conditionally released and remitting the
    matter to the Board to determine the appropriate conditions. When the Board
    reconvened on August 16, 2010, all parties, including the Crown, took the
    position that the only issue for the Board was to determine the conditions of
    the conditional discharge ordered by this court. The Board disagreed and stated
    that its mandate was not so limited and that it was entitled to engage in a
    broader inquiry and to consider whether there were any circumstances that
    required a change to the conditional discharge that this court had just
    ordered. The Board further held that as it was prepared to consider that wider
    issue, the appellant was not entitled to a further annual review until July
    2011.

[2]

We agree with the submission of all counsel, including
    the Crown, that the Board erred in its interpretation of this courts July 20,
    2010 order. Section 672.78(1) of the
Criminal
    Code
gives this court the power to refer a matter back to the review board
    for a rehearing in whole or in part, in accordance with any directions that
    the Court of Appeal considers appropriate. The July 20, 2010 order was made
    pursuant to that power. The Board erred by, in effect, reviewing that order by
    purporting to engage in a full scale review of the appellant's situation. The
    Boards action was not only contrary to the order made by this court; it also
    denied procedural fairness to the appellant who was not on notice that such a
    hearing would be held. Moreover the Boards insistence that the appellants
    annual review be postponed to July 2011 denied the appellant the right to a
    mandatory annual review pursuant to s. 672. 81 of the
Criminal Code
.

[3]

The appellant asks us to grant him an absolute
    discharge. We are not satisfied that the record before us is sufficient to
    grant that order. There is no updated hospital report and no current evidence
    from the appellant's treatment team as to his present situation. In the
    circumstances it is not practicable for this court to conduct the necessary
    inquiry. Moreover, as this is an appeal from the Boards August 16, 2010
    disposition which should have been limited to the appropriate conditions, this
    appeal does not provide an appropriate vehicle to determine the issue of
    discharge. The appropriate order is to remit the matter to the Ontario Review
    Board for an immediate consideration of the appellants disposition.

[4]

Accordingly the appeal is allowed and the matter is
    referred back to a differently constituted panel of the Ontario Review Board to
    conduct a full hearing reviewing the appellants disposition forthwith.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

Karakatsanis 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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01,
    279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION:
R. v. Ahmad, 2011
          ONCA 617

DATE:  20110928

DOCKET:  C51771

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Watt and Karakatsanis JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Sirshar Ahmad

Applicant (Appellant)

Howard Cohen, for the applicant (appellant)

Dena Bonnet, for the respondent

Heard and released orally:
September 26,
          2011

On appeal from the conviction(s) entered by Justice Kastner of
          the Ontario Court of Justice dated September 14, 2009.

ENDORSEMENT

[1]

The trial judges decision turned on her assessments of credibility.
    She accepted the complainants evidence and gave substantial reasons for doing
    so.

[2]

The appellants complaints focus on peripheral issues and, to the extent
    that the trial judge misapprehended a small part of the evidence, we are
    satisfied that the misapprehension had no effect on her overall assessment of
    credibility.

[3]

We see no basis to admit the fresh evidence.  Indeed, the fresh evidence
    would not be helpful to the appellant in the overall assessment of his
    credibility.

[4]

In the result, the appeal is dismissed.

D. OConnor A.C.J.O.

David Watt J.A.

Karakatsanis 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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION:
R. v. B.A., 2011 ONCA
603

DATE: 20110921

DOCKET: C53516

COURT OF APPEAL FOR ONTARIO

Laskin, Goudge and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.A.

Appellant

Carlos Rippell, for the appellant

Joan Barrett, for the respondent

Heard and released orally:
September 16,
          2011

On appeal from the conviction
          entered on February 15, 2011 and the sentence imposed on March 8, 2011 by
          Justice Joseph A. De Filippis of the Ontario Court of Justice.

ENDORSEMENT

[1]

The trial judge gave four reasons for finding that the appellants
    evidence was not credible.  His first, and arguably main reason, was that the
    appellant was not forthright about the extent of his criminal record.  Indeed,
    the trial judge found that the appellant deliberately failed to disclose his
    complete record.  In our view, this was not a fair or tenable basis for rejecting
    the appellants evidence because of the way the criminal record was put into
    evidence.

[2]

As is often the case, defence counsel led the record at the beginning of
    his clients evidence.  Defence counsel obtained the record from the Crown.
    The record he obtained, however, was not complete because it did not contain
    the appellants three most recent convictions: one for impaired driving and two
    for breach of recognizance.  Defence counsel said that he was going to have his
    client admit the record.  He asked the appellant whether the record accurately
    reflects your criminal record.  The appellant said yes it does.  Of course
    it did not.  That it did not emerged in cross-examination.

[3]

When the appellant volunteered that he had not yet moved out of the house
    because he was waiting for his licence suspension to end, the Crown asked
    whether the suspension was as a result of a criminal conviction.  The appellant
    readily admitted that he had recently been convicted for impaired driving.
    Later, in response to questions from the Crown, the appellant admitted that he
    had been guilty of two breaches of recognizance.  As we read the record, in
    neither of these instances was the appellant being evasive or deliberately
    trying to hide his record.  That the record handed to him in his
    examination-in-chief was incomplete, appears to have been due to an inadvertent
    error by both Crown and defence counsel.

[4]

In the light of this context in which the appellants criminal record
    was introduced, the trial judge was not justified in using it to make an
    adverse credibility finding.  The trial judge did give other reasons for
    rejecting the appellants evidence.  However, his error in finding that the
    appellants initial mistake and acknowledgement of his record was not innocent
    irretrievably tainted his credibility finding.

[5]

For that reason alone, the convictions cannot stand.  Accordingly, the
    appeal is allowed, the convictions are set aside and a new trial is ordered.

John Laskin J.A.

S.T. Goudge J.A.

H.S. LaForme
    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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION:
R. v. B.C., 2011 ONCA
604

DATE: 20110921

DOCKET: C51804

COURT OF APPEAL FOR ONTARIO

Laskin, Goudge and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.C.

Appellant

J. Scott Cowan, for the appellant

John McInnes, for the respondent

Heard and released orally:
September 16,
          2011

On appeal from the conviction
          entered on June 13, 2009 by Justice Guy P. DiTomaso of the Superior Court of
          Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant makes two submissions on his conviction appeal.  His first
    submission is that the Crowns cross-examination and closing argument on why
    the complainant would make false allegations was improper.  Even if the
    questioning and argument were improper, both were brief and were not objected
    to by defence counsel.  Most important, the trial judge gave a proper curative
    instruction.

[2]

Accordingly, we do not give effect to this ground of appeal.

[3]

The appellants second submission is that the guilty verdicts on counts
    1 to 3 are unreasonable because they are inconsistent with the verdict of
    acquittal on count 4, the incest charge.  We do not consider the verdicts
    inconsistent.

[4]

Standing alone, the verdicts on counts 1 to 3 are not unreasonable.
    Although the complainants evidence on these counts was at times vague, it was
    evidence on which a properly instructed jury could reasonably convict.  Thus,
    the appellants contention comes down to the proposition that the jury could
    not have acted reasonably because it acquitted on the count that the
    complainant remembered clearly and convicted on the counts that the complainant
    only vaguely testified about.  We do not read the record this way.

[5]

As the Crown points out, the complainants evidence on all the counts
    was at times vague and at times clear.  It was open to the jury to reject none,
    some or all of the complainants evidence.  Accordingly, the verdicts are not
    inconsistent and this ground of appeal must fail.

[6]

The appeal is dismissed.

John Laskin
    J.A.

S.T. Goudge
    J.A.

H.S. LaForme
    J.A.


CITATION:
R. v.
Chevers
, 2011 ONCA 569

DATE: 20110901

DOCKET: C52421

COURT OF APPEAL FOR ONTARIO

Rosenberg, Gillese and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Chevers

Appellant

Kristin Bailey, for the appellant

Susan Ficek, for the respondent

Heard:
August 16, 2011

On appeal from the judgment of Justice R. Scott, of the
          Superior Court of Justice, dated February 6, 2009.

ENDORSEMENT

Introduction

[1]

On February 6, 2009 Mr. Chevers was convicted of
    attempted murder and two other firearms offences.  The trial judge sentenced him to a global
    period of 15 years imprisonment less pre-sentence credit of 4 years, leaving a
    net sentence of 11 years to be served in prison.

[2]

Mr. Chevers was 24 years old when he committed the
    offences.   It is accepted that he has a
    troubled background and a criminal record with the most significant prior
    offence being the possession of a firearm in a vehicle.

[3]

Mr. Chevers argues that the trial judge committed three
    errors: (i) overemphasizing the infrequency of related crime in the community;
    (ii) taking judicial notice of a fact not shown in evidence; and (iii) the
    sentence was harsh and excessive.

Discussion

[4]

The trial judge emphasized the impact of the offence on
    the community and noted the prominence of deterrence and denunciation as the
    key sentencing principles in the circumstances.  In his reasons for sentence, the trial judge described the offences this
    way:

The facts here are alarming.  It calls for, because of the nature of the event
    and specifically the use of a handgun, greater sanctions for the benefit and
    welfare of our community and for the public interest.

Here we have a situation where Mr. Chevers, in an
    unprovoked, premeditated, cold-blooded manner, attempted to murder [the victim],
    and by mere chance, he missed: probably because he was using a 22 calibre
    weapon.

[5]

The trial judges reasons do not disclose any error and
    there is no reason for this court to intervene.  For several reasons, each of Mr. Chevers grounds of appeal must fail.

[6]

First, the trial judge was entitled to consider the
    harm to the community occasioned by the offence.  In doing so, he did not take improper
    judicial notice of questionable facts, but merely noted that crimes of this nature
    are not restricted to large urban centres.

[7]

Second, the trial judge acknowledged the relative youth
    of Mr. Chevers and the fact that a crushing sentence would void any hope of
    rehabilitation.  Ultimately, however, he
    was concerned with the nature of the offence and the use of the handgun,
    particularly given the weapons prohibition Mr. Chevers was under.

[8]

Finally, double digit prison sentences for attempt
    murder have been imposed in cases of planned executions involving the use of
    loaded firearms: see for example
R. v.
    Tan
, 2008 ONCA 574.

[9]

The 15 year sentence was appropriate in this case
    given:

·

the premeditation,

·

the use of a prohibited handgun,

·

the firing of two shots  one directly at the
    victims head,

·

Mr. Chevers prior criminal record  including
    possession of a prohibited/restricted firearm with ammunition, and,

·

the impact on the victim and on the
    community.

[10]

The limited mitigating factor of age was properly
    considered by the trial judge.

[11]

In the result, leave to appeal sentence is granted,
    although the appeal is dismissed.

M. Rosenberg J.A.

E.E. Gillese J.A.

H.S. LaForme 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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION:
R. v. C.T.W., 2011 ONCA 598

DATE: 20110916

DOCKET: C53196

COURT OF APPEAL FOR ONTARIO

Laskin, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.T.W.

Appellant

Dale E. Ives, for the appellant

Emile Carrington, for the respondent

Heard and released orally:
September 14,
          2011

On appeal from the sentence entered
          on November 16, 2010 by Justice T. David Little of the Superior Court of
          Justice, sitting with a jury.

ENDORSEMENT

[1]

We are not persuaded that a global sentence of 22 months for these
    offences was unfit.  We agree with the Crown that these offences reflect a level
    of domination, humiliation and intimidation that justified the overall
    sentence.  However, we interfere with the sentence because the trial judge
    erred in one of the reasons he gave for giving only 1:1 credit for pre-trial
    custody.

[2]

Sentencing in this case took place before the amendments to s. 719 of
    the
Criminal Code
limiting the amount of credit for pre-trial custody.
    Moreover, when he sentenced the appellant, the trial judge did not have the
    benefit of this courts decision in
R. v.

Monje
, 2011 ONCA 1,
    [2011] O.J. No. 1.  In that case, LaForme J.A. for this panel, wrote that
    parole ineligibility is a relevant consideration in assessing credit for
    pre-trial custody.  Thus, in refusing to consider the unavailability of parole
    when he assessed the credit to be given to the appellant for his pre-trial
    custody, the trial judge erred.  In
Monje
we increased the credit to 2:1
    and we do so here.  Giving 2:1 credit the appellant has now effectively served
    his sentence.

[3]

Accordingly, leave to appeal sentence is granted, the sentence appeal is
    allowed and the appellants sentence is varied to time served.

John Laskin J.A.

Robert P. Armstrong J.A.

H.S. LaForme
    J.A.


CITATION: R. v. Ethier, 2011
      ONCA 588

DATE: 20110912

DOCKET: C51995 and C52447

COURT OF APPEAL FOR ONTARIO

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Reverend Brother Michel D. Ethier

Appellant

Reverend Brother Michel D. Ethier, in person

Kevin Wilson and Vanita Goela, for the respondent

Heard and endorsed: September 9, 2011

On appeal from the decision of Justice David Nadeau of the
          Superior Court of Justice, dated April 8, 2010 and from the decision of
          Justice Alfred Stong, of the Superior Court of Justice, dated June 16, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant, Reverend Brother Michael Ethier, was charged with
    possession of marijuana, possession of marijuana for the purpose of
    trafficking, and production of marijuana in the Municipality at West Nipissing.
    He brought an application seeking an order prohibiting prosecution of these
    charges against him as being offences unknown to law. On April 8, 2010, Justice
    Nadeau of the Superior Court of Justice dismissed the application and ordered
    the trial to proceed.

[2]

The appellant was also charged with possession of marijuana in the Town
    of Bracebridge. He brought an application seeking an order prohibiting
    prosecution of these charges against him as being offences unknown to law. On
    June 16, 2010, Justice Stong of the Superior Court of Justice dismissed the
    application.

[3]

The appellant appeals both decisions. His essential argument is that
    several decisions by different courts across Canada have invalidated the
    various provisions of the
Controlled Drugs and Substances Act
under
    which he has been charged.

[4]

We disagree. This court has expressly said that the provisions of the
CDSA
are in full force and effect in several cases:
R. v. Hitzig
(2003),
    177 C.C.C. (3d) 449;
R. v. Turmel
(2003), 177 C.C.C. (3d) 533; and
R.
    v. Turmel
(2007), 72 W.C.B. (2d) 501.

[5]

The appeals are dismissed.


CITATION:
R. v. Farrell, 2011
          ONCA 572

DATE: 20110902

DOCKET: C52073

COURT OF APPEAL FOR ONTARIO

Rosenberg, Gillese and
LaForme
JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Cory Farrell

Appellant

Cory Farrell, in person

Emily Morton,
amicus
          curiae

Deborah
Krick
, for the respondent

Heard: August 15, 2011

On appeal from conviction entered by Justice Joseph
Fragomeni
of the Superior Court of Justice, sitting with
          a jury, dated January 26, 2010.

E
    N D O R S E M E N T

[1]

The appellant, with the assistance of duty counsel,
    appeals from his conviction for aggravated assault by a court composed of
Fragomeni
J. and a jury.  For the following reasons, the appeal is allowed and a new trial
    ordered.

[2]

The appellants defence at trial was self-defence and
    defence of others.  Prior to testifying
    he brought a
Corbett
application (
R. v. Corbett,
[1988] 1 S.C.R. 670) to
    have some of the convictions on his criminal record excised.  The particular convictions were a 1993
    conviction for assault and a 1996 conviction of assault with a weapon.  The defence conceded that a conviction in
    1999 for assault should be before the jury.  There was also no dispute that the appellant could be cross-examined on
    other parts of his criminal record, which included crimes of dishonesty such as
    theft and possession of stolen goods.

[3]

One of the pivotal issues in the case was whether the
    victim, Mr. Philips, was the aggressor as claimed by the appellant.  The trial judge concluded that the entire
    record should be before the jury and, in addition, he allowed Crown counsel to
    cross-examine the appellant on the facts underlying the three assault
    convictions.  He did so on the basis that
    otherwise there was a risk that the jury will be presented with a misleading
    picture and a skewed view of the facts.  Consistent with this ruling, the trial judge then instructed the jury
    that they could use the assault convictions to determine who, as between the
    appellant and the victim, was the aggressor:

It is very important that you understand that you
    must not use the fact, number or nature of the prior convictions to decide or
    help you decide that Cory Farrell is the sort of person who would commit the
    offences charged. The evidence relating to Cory Farrells criminal record is relevant
    to your assessment of the credibility of Cory Farrell.
It is also relevant in your assessment of who was the aggressor in this
    matter and how that determination relates to the defence being put forward in
    this matter, namely self defence
. [Emphasis added.]

[4]

In our view, the trial judge erred with respect to his
    ruling on the
Corbett
application and
    in his charge to the jury.  As to the
Corbett
application, while there was
    some attack on Mr. Philips credibility, because of his bad character, that aspect
    of the cross-examination was relatively insignificant.  The overwhelming amount of cross-examination
    was directed to the particular incident and the victims relationship with the
    women involved in the incident.  There
    was no cross-examination of the victim on any criminal record.  This case falls within this courts decision
    in
R. v. B. (W.),
145 C.C.C. (3d) 498
    at
paras
. 45  49.  The attack on the victims evidence may incidentally have impacted on
    his character but the cross-examination was primarily directed to the
    truthfulness of his account of the incident.

[5]

The error in allowing cross-examination on the entire
    criminal record was compounded by the trial judge leaving it to the jury to use
    the appellants criminal record not only for credibility but to decide whether
    it was the appellant or the victim who was the aggressor.  Where the Crown is permitted to cross-examine
    an accused under s. 12 of the
Canada
    Evidence Act
, the record goes only to the
accuseds
credibility.  The jury is to be cautioned
    as to the limited use of the evidence.  As Dickson C.J. said in
Corbett
at
    p. 691.

In my view, the best way to balance and
    alleviate these risks is to give the jury all the information, but at the same
    time give a clear direction as to the limited use they are to make of such
    information. Rules which put blinders over the eyes of the
trier
of fact should be avoided except as a last resort. It is preferable to trust
    the good sense of the jury and to give the jury all relevant information,
so long as it is accompanied by a clear
    instruction in law from the trial judge regarding the extent of its probative
    value
.  [Emphasis added.]

[6]

The appellants prior convictions and the facts
    underlying those convictions could only be admitted for a purpose other than to
    test his credibility if the trial judge found that the evidence met the test
    for similar fact evidence as enunciated by the Supreme Court of Canada in
R. v. Handy
, [2002] 2 S.C.R. 908.  Before the evidence could be admitted the
    trial judge would have had to determine whether the probative value of the
    evidence outweighed the serious prejudicial effect and in particular would have
    to consider the factors summarized at
para
. 82 of
Handy.
That was not done in this case, and given the remoteness of the convictions
    and the different context in which they arose we have grave doubts that the
    evidence could have been admitted as similar fact evidence.

[7]

As we have said, whether the appellant or the victim
    was the aggressor was an important issue in the case.  The evidence of the prior convictions and the
    facts underlying those convictions was highly prejudicial.  We cannot be satisfied that if the evidence
    had been excluded and the jury properly directed as to the limited use of the
    appellants record that the verdict would necessarily have been the same.

[8]

Accordingly, the appeal is allowed, the conviction
    quashed and a new trial ordered.  We wish
    to thank both counsel for their submissions in this case and especially Ms.
    Morton who acted as duty counsel and made submissions on the appellants
    behalf.

Signed:           M.  Rosenberg J.A.

E.E. Gillese J.A.

 H. S.
LaForme
J.A.