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(1), (1.1), (2), or (3) of the
Criminal Code
shall continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an
    accused shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or on his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made,
    during the proceedings, to the presiding judge or justice or, before the
    proceedings begin, to the judge or the justice who will preside at the
    proceedings or, if that judge or justice has not yet been determined, to any
    judge or justice having jurisdiction in the judicial district where the
    proceedings will take place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging
    the reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests
    of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give
    a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to
    the making of the proposed order are available in the circumstances;

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

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

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985,
    c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16,
    s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133;
    2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1,
    s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tweneboah-Koduah, 2018 ONCA 570

DATE: 20180621

DOCKET: C62859

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francis Yaw Tweneboah-Koduah

Applicant / Appellant

Catriona Verner, for the appellant

Candice Suter, for the respondent

Heard: June 14, 2018

On appeal from the conviction entered on September 30,
    2016 and the sentence imposed January 31, 2017 by Justice Paul Howard of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

I.

Overview

[1]

The appellant and complainant were first year
    university students staying in the same residence. After consuming a large
    amount of alcohol, the complainant went with the appellant to his room. The
    complainant testified that: (a) the appellant pulled up her shirt and bra,
    aggressively kissed her and fondled her breasts; (b) she awoke to find the
    appellants penis in her mouth; and (c) the appellant vaginally penetrated her
    from behind.

[2]

The appellant was tried on a single count of
    sexual assault. He was convicted and sentenced to 26 months imprisonment. He
    appeals from both conviction and sentence. On the conviction appeal he claims
    that the trial judge erred by:

a)

failing to understand that a person can consent
    while blacked out;

b)

failing to consider
    what happened while the complainant was blacked out;

c)

inappropriately
    equating pain with lack of consent;

d)

arriving upon an
    unreasonable verdict;

e)

misunderstanding the
    complainants evidence about bruising; and

f)

taking judicial notice of the fact that
    the complainant would have smelled of alcohol.

[3]

The appellant also contends that he was the
    subject of an unfair and prejudicial cross-examination.

[4]

Following the hearing, we dismissed the
    conviction and sentence appeals with reasons to follow. These are the reasons.

II.

Conviction Appeal

(a) Alleged failure to understand
    that a person can consent while blacked out

[5]

Among other things, the complainant was able to
    recall that at one point she realized that the appellants penis was in her
    mouth and she was choking on it. She could not recall how the
fellatio
began.

[6]

The trial judge correctly stated the law, that
    consent to sexual activity must be contemporaneous with that activity and that,
    in order to consent, a person must be conscious, with an operating mind,
    capable of granting, revoking or withholding consent to each and every sexual
    act:
R. v. J.A.,
2011 SCC 28, [2011] 2 S.C.R. 440 at para. 44. The
    trial judge concluded that, as it related to the act of
fellatio
, the
    complainant could not have consented because she had blacked out.

[7]

The appellant claims that the trial judge erred
    by failing to appreciate the difference between blacking out and a state of
    unconsciousness. He defines the term black out as a period of time for which
    a person  who was conscious  has no memory. The appellant emphasizes that the
    Crown also seemed to approach the term in this way. The appellant says that the
    distinction between a state of unconsciousness and a black out are important
    because a person who has simply lost their memory may have consented to sexual
    activity:
R. v. Esau
(1997), 116 C.C.C. (3d) 289 (S.C.C.).
    Accordingly, he contends that the trial judge erred by concluding that because
    the complainant blacked out she did not consent. We disagree.

[8]

The appellants entire submission is predicated
    on the singular definition he offers to the term blacked out. We do not agree
    that this is a legal term of art that admits of only one definition. What is
    important is how the term is used.

[9]

The trial judge in this case demonstrated his
    keen understanding of the difference between being unconscious and simply
    losing ones memory. He specifically adverted to this difference: I accept
    that because of her level of intoxication, there were periods where she
    blacked out and there were periods where she could not remember what was said
    or done.

[10]

Although the trial judge used the term blacked
    out to describe the complainants condition when the appellants penis was
    originally placed in her mouth, he was clearly conveying his conclusion that
    the complainant was unconscious when the
fellatio
began, rendering her
    incapable of consent. The following passages from the reasons for judgment make
    this clear:

The accused also alleges that the complainant
    performed oral sex on him. For the reasons already expressed, I have rejected
    the accuseds evidence on point and have accepted the complainants evidence
    that, after having blacked out,
she woke
    up with the accuseds penis in her mouth
.

The complainant simply cannot be held to have
    consented to the act. It follows from my acceptance of the complainants
    evidence that she
woke up with the accuseds
    penis in her mouth, that the sex act began when she was blacked out.
As such, it cannot be said that at the time the accused initiated the activity,
    the complainant possessed the requisite conscious, operating mind, capable of
    granting, revoking or withholding consent, as required by the Supreme Courts
    decision in
R. v. J.A.

[Emphasis added.]

[11]

These passages reveal the trial judges factual
    conclusion that the complainant was in a state of unconsciousness when the
fellatio
started and only came to a state of consciousness part way through.

(b) Alleged failure to consider
    what happened while the complainant was blacked out

[12]

The appellant acknowledges that if he fails on
    the previous ground of appeal, then he cannot succeed in showing that the trial
    judge erred by failing to consider whether the complainant might have consented
    to the
fellatio
. Given our finding that the trial judge concluded that
    the complainant was unconscious when the appellants penis originally went into
    her mouth, she could not have consented and this ground of appeal also fails.

(c) Alleged misunderstanding of
    what constitutes a lack of consent

[13]

The complainant testified about the pain she
    experienced during the vaginal penetration from behind. As a result of this
    act, she suffered a one-centimetre tear to her vagina and bled extensively from
    the wound.

[14]

The trial judge is said to have erred by
    assuming that the complainant would not have consented to vaginal intercourse
    because of the pain it caused. According to the appellant, it was pure
    speculation to find that the complainant, who acknowledged that she had done
    things she would not usually do that night, would not have consented to
    intercourse from behind. We disagree.

[15]

Although the trial judge made specific reference
    to the complainants level of pain, he based his finding that there was no
    consent on the totality of the evidence, including the evidence of pain and
    injury. There was ample evidence to support this finding and those findings are
    entitled to deference.

[16]

The complainants evidence demonstrates that she
    did not want to engage in the sexual acts. When it was suggested to her in
    cross-examination that she consented to sexual intercourse from behind, she
    responded [t]hats not true. She also described being:

·

pushed onto the appellants bed;

·

feeling like a lead
    weight;

·

being unable to get up
    and leave;

·

having her bra pulled
    up and attempting to pull it down;

·

being in a state of
    shock;

·

feeling like she was in
    a nightmare;

·

feeling like she could
    not do anything because she was so drunk; and

·

being scared.

[17]

The trial judge carefully and extensively
    reviewed all of the evidence surrounding what occurred in the appellants room.
    The totality of that evidence easily supported his finding that the complainant
    did not consent.

(d) Alleged Unreasonable Verdict

[18]

The appellant maintains that the verdict was
    unreasonable. We disagree. There was ample evidence upon which a properly
    instructed jury acting judicially could reasonably find the appellant guilty:
R.
    v. Biniaris
, [2000] 1 S.C.R. 381 at
    para. 36
.

(e) Alleged Misunderstanding of
    the Bruising Evidence

[19]

The complainant testified that she had visible
    bruises the day following the sexual assault. She sent a text message to her
    friend, reflecting the fact that she was covered in bruises. She also told
    others that she had bruising. However, the nurse practitioner who examined the
    complainant after the sexual assault did not make any note of bruising.

[20]

The trial judge reviewed the evidence in detail
    and found that the complainant was simply wrong about when the visible bruises
    emerged. He further held that in the absence of medical evidence about when the
    bruising would have become visible, he was unable to make an adverse finding of
    credibility.

[21]

The appellant argues that the trial judge erred
    in his approach to this evidence. He maintains that the lack of bruising was a
    pivotal issue at trial because it showed that the complainant was not being
    truthful. Combined with the fact that the complainant sent a text message to
    her friend shortly after the events in the appellants room, referencing her
    belief that she had made a mistake, the appellant argues that the
    complainants suggestion of bruising is a fabrication to attempt to justify her
    actions. We disagree that the trial judge erred.

[22]

The trial judge was alive to the importance of
    the complainants evidence regarding the timing of her bruising. As he said in
    his reasons: [t]he critical issue surrounding the complainants credibility
    and reliability is, of course, the issue of the bruising.

[23]

The complainant was tender following the
    assault. This was confirmed in the medical examination. Although visible
    bruises were not seen during the nurses examination, the complainants mother
    saw bruising three days after the assault. The trial judge found that, although
    the complainants evidence about the timing of the bruising undermined her
    reliability, it did not undermine her credibility. It was open to the trial
    judge to come to this conclusion, particularly in light of the fact that the
    complainant testified about how sore she was after the assault and the medical
    practitioners confirmation of this evidence.

[24]

It was within the trial judges domain to deal
    with the evidence as he did and we defer to his conclusions.

(f) Alleged error in taking judicial
    notice of the fact that the complainant would have smelled of alcohol

[25]

The appellant argues that the trial judge erred
    by treating his evidence that the complainant did not smell of alcohol as fundamentally
    and significantly undermining his credibility. The appellant maintains that it
    was unreasonable to infer that the complainant would have smelled of alcohol simply
    because of the amount of alcohol she consumed. Accordingly, it was unfair to use
    his evidence on this point to impugn his credibility. We disagree.

[26]

It was entirely reasonable to infer that the
    complainant would have smelled of alcohol. She was not challenged on her
    evidence about having consumed, in addition to other alcohol, six shots of
    vodka and a quarter bottle of Sour Puss. Other witnesses at trial testified about
    her inebriation. Her text messaging immediately following the sexual assault
    further demonstrates a high level of intoxication.

[27]

It was open to the trial judge to conclude that
    the appellants credibility was shaken by denying the obvious: the complainant
    was highly intoxicated and would have smelled of alcohol. Indeed, in light of
    all of the evidence, it was open to the trial judge to, reject the accuseds
    evidence that he could not see, smell, or sense any indication that the
    complainant had been drinking. We do not consider this a matter of judicial
    notice. It reflects nothing more than a common sense inference that was open
    to the trial judge to draw from all of the evidence.

(g) Alleged impropriety of the trial
    Crowns cross-examination

[28]

The appellant maintains that the trial Crowns
    cross-examination of him exceeded the permissible bounds of advocacy, being
    calculated to demean and humiliate him:
R. v. R.(A.J.)
(1994), 94
    C.C.C,. (3d) 168 (Ont. C.A.), at p. 177. Although we agree that on two
    occasions the cross-examination went too far, we would not give effect to this
    ground of appeal.

[29]

First, the Crown asked the appellant if he had a
    sister. This was a question designed to elicit wholly irrelevant evidence. Even
    so, it was answered and the matter was not further pursued.

[30]

Second, the Crown commented that the appellant
    did not feel badly about what had happened, and left the complainant like a
    discarded tissue. This comment should not have been made. Even so, the
    comment was properly objected to and ruled argumentative. The trial Crown moved
    on.

[31]

This was a judge alone trial and the questions
    asked and comments made did not result in prejudice to the appellant, deprive
    him of a fair trial or harm the administration of justice.

III.

Sentence Appeal

[32]

The appellant seeks leave to appeal his sentence
    of 26 months custody. He emphasizes that the trial judge found that the
mens
    rea
for sexual assault had been made out on the basis of recklessness.
    Accordingly, he argues that he had a lesser form of
mens rea
than full
    knowledge and the sentencing judge failed to discount his sentence accordingly.
    In addition, he says that the fact that the appellant asked during the assault
    whether the complainant was enjoying herself (to which he received no answer),
    should have factored into the sentence imposed.

[33]

We see no basis upon which to interfere with the
    sentence imposed. Whether he had knowledge of the lack of consent or was reckless
    about whether there was consent, he is equally morally blameworthy.

[34]

Even bearing in mind the appellants young age,
    the sentence was entirely within the range of sentences imposed in similar
    circumstances. The aggravating factors were many, including:

·

it was the complainants first week of
    university and it was meant to be her fresh start;

·

she was 17 years of age;

·

she suffered a vaginal
    injury;

·

the sexual assault consisted
    of multiple acts;

·

part of the assault
    occurred while she was completely unconscious and caused her to choke;

·

the victim impact,
    including on the complainants parents, was grave.

[35]

We would not interfere with the sentence
    imposed.

IV.

Conclusion

[36]

The conviction appeal is dismissed.

[37]

Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

David
    Watt J.A.

K.
    van Rensburg J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zekarias, 2018 ONCA 585

DATE: 20180627

DOCKET: C62321

Sharpe, Roberts and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adonay Zekarias

Appellant

Michael Dineen, for the appellant

Karen Papadopoulos, for the respondent

Heard: June 21, 2018

On appeal from the conviction entered on June 9, 2015, by
    Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of the first degree murder of Nighisti
    Semret. On October 23, 2012, Ms. Semret was attacked from behind with a knife as
    she walked through a laneway in downtown Toronto. One of her many stab wounds
    was fatal.

A.

factual background

[2]

Ms. Semret was a refugee from Eritrea, as was the appellant. Their
    families knew each other in Eritrea. Both arrived in Canada within a week of
    each other. They initially stayed at a refugee shelter called Sojourn House.
    The two sometimes attended the same ESL classes.

[3]

In 2010, the appellant moved to the west end of the city, 12 kilometers
    away from where Ms. Semret was murdered. The exact nature of the relationship
    between Ms. Semret and the appellant is unknown. However, after the appellant
    moved away, they periodically remained in touch by phone.

[4]

Ms. Semret lived downtown and worked at the Delta Chelsea Hotel,
    supervising a staff of cleaners. When she was murdered, at 6:30 a.m., Ms.
    Semret was walking home from work. It was dark and rainy. A bystander, David
    Hughes, heard Ms. Semrets screams and came to her assistance, using his
    umbrella to strike the assailants hand, which was holding a large kitchen
    knife. The attacker fled the scene. However, much blood was left behind  blood
    that matched the appellants, and which could only be ruled out by an
    astronomical probability of coincidence. The blood was found on Ms. Semrets
    canvas bag (which was shredded during the attack) and on the umbrella wielded
    by Mr. Hughes. Crucially, the appellants DNA was found under Ms. Semrets
    fingernails.

[5]

Although the appellant lived 12 kilometers away from the murder scene,
    his cellphone signal was detected at a tower within one kilometer of where Ms.
    Semret was killed. The appellant had made a call to his sister 35 minutes after
    the attack.

[6]

At 8:45 a.m., the appellant and his girlfriend called an ambulance to
    his west-end residence. He had very serious cuts to one of his hands and one of
    his wrists, requiring surgery. Both hands were then casted. The appellant gave
    differing accounts of how he received his injuries to medical personnel, but
    all of his explanations suggested some blunt force trauma (
i.e
.
,
    getting caught in a closing door). The jury heard expert evidence that the
    appellants wounds were more likely caused by sharp force trauma, involving
    glass or a knife.

[7]

Initially, the police were looking for a white man. Mr. Hughes, the man
    who tried to stop the attack, described a white male, 59 to 510, with no
    facial hair. The police believed that the attacker walked with a limp. They
    issued a press release describing the suspect as white, 510 to 62. The appellant
    has brown skin, he is 57, often had facial hair, and did not walk with a
    limp.

[8]

An examination of the appellants computer revealed that, in the weeks following
    Ms. Semrets murder, he searched the internet about the case.

[9]

The appellants casts were removed on November 26, 2012. The appellants
    surgeon told him that post-operative therapy was critical to his recovery and
    that, if he failed to do so, he risked permanent damage to his hands.
    Nevertheless, on December 1, 2012, the appellant booked a trip to Germany. He
    left on December 9, missing a follow-up appointment with his surgeon on
    December 10. He continued to monitor the case online. The appellant returned to
    Toronto on February 20, 2013, after postponing his return twice.

[10]

When
    the appellant was arrested on September 30, 2013, he gave a video statement,
    during which he made some demonstrably false statements about his knowledge of
    Ms. Semrets murder, and his association with her.

B.

analysis

[11]

At
    the appellants trial, the critical issue was the identification of Ms.
    Semrets killer. It seemed to be accepted that, whoever killed Ms. Semret, was
    guilty of first degree murder, especially since the evidence showed that her
    killer followed her down a laneway before the deadly knife attack.

[12]

Mr.
    Dineen advances three main arguments on behalf of the appellant. First, the
    trial judge erred in failing to caution the jury that the appellants after-the-fact
    conduct (treatment for his hands, his trip to Germany, and his monitoring of
    the investigation through media) was of no probative value in determining the
    appellants degree of culpability. Second, the trial judge erred in failing to
    warn the jury that it could not use the appellants statements to the police
    and medical personnel as circumstantial evidence of guilt unless they were also
    satisfied that it was concocted. Third, the trial judge erred in leaving
    evidence of the appellants trip to Germany as after-the-fact conduct evidence.

[13]

We
    would not give effect to any of these grounds.

(1)

No Probative Value Instruction

[14]

The
    appellant argued that the trial judge erred in failing to instruct the jury
    that the appellants after-the-fact conduct had no probative value in
    distinguishing between levels of culpability (
i.e
.
,
    manslaughter, second degree murder, and first degree murder): see
R. v.
    Arcangioli
, [1994] 1 S.C.R. 129.

[15]

While
    the trial judge could have given this instruction, we see no error in its
    omission. The instruction was not requested in advance of the charge, nor was
    its absence complained of after. Realistically, the only contentious issue in
    the case was the identity of Ms. Semrets killer. Moreover, the trial judge did
    not link the after-the-fact conduct evidence to levels of culpability: see
R.
    v. White
, [1998] 2 S.C.R. 72, at para. 29.

[16]

Once
    the jury was satisfied beyond a reasonable doubt that the appellant killed Ms.
    Semret, the evidence in support of first degree murder was overwhelming. It was
    open to the jury to find that the appellant travelled across the city, on a
    cold rainy morning, and waited for Ms. Semret to make her way home from work.
    The video evidence demonstrates that her killer stalked her, following her down
    a laneway before launching his attack.

[17]

We
    would dismiss this ground of appeal.

(2)

Failure to Provide an
OConnor
Instruction

[18]

As
    noted above, the appellant provided a statement to the police, and made
    statements to medical personnel, which contained a number of false assertions.

[19]

Prior
    to the closing addresses, the Crown at trial (not Ms. Papadopoulos) sought the
    trial judges direction on the use to which the appellants purported
    falsehoods could be used. In her closing address, she urged the jury to use the
    appellants purported lies as indicative of his guilt.

[20]

The
    trial judge did not give an instruction that the jury could use the appellants
    false statements (if so found) as positive evidence of guilt only if there was
    independent evidence of concoction: see
R. v. OConnor
(2002), 62 O.R.
    (3d) 263 (C.A.). However, when the issue was raised by the Crown during the
    pre-charge conference, defence counsel (not Mr. Dineen) did not join in the
    request for an
OConnor
instruction. No complaint was made after the
    trial judge delivered his charge.

[21]

While
    the safer course would have been to include such an instruction, we cannot say
    that the manner in which this issue was left with the jury undermined the
    appellants right to a fair trial: see
R. v. Polimac
, 2010 ONCA 346, 262
    O.A.C. 91, leave to appeal refused, [2010] S.C.C.A. No. 263, at para. 106. As
    the appellant concedes in his factum, there was independent evidence that
    arguably showed some of the appellants falsehoods to be concocted.

[22]

In
    the alternative, if the charge was lacking in this respect, we would apply the
    curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
. As noted above,
    the case against the appellant was overwhelming, even without his statements.
    We place particular emphasis on: the fact that the appellant and Ms. Semret
    knew each other; the DNA evidence connecting the appellant to Ms. Semret; the
    appellants serious hand and wrist injuries that were likely caused by sharp
    force trauma; the appellants monitoring of the investigation, both in Canada
    and in Germany; and that the appellant used his cellphone close in time and
    place to the early morning murder, even though he lived 12 kilometers away.

[23]

We
    are satisfied that, had an
OConnor

instruction been given, the
    result would inevitably have been the same:
R. v. Laliberte
, 2016 SCC
    17, [2016] 1 S.C.R. 270, at paras. 3-5.

[24]

We
    would dismiss this ground of appeal.

(3)

The Trip to Germany

[25]

The
    appellant argues that the evidence of the Germany trip should not have been
    admitted because, on its face, there was no suggestion that it had anything to
    do with the investigation into Ms. Semrets murder. We disagree.

[26]

The
    Germany trip must be viewed in the context of all of the evidence. The timing
    of the trip was crucial. Although the appellant left for Germany about seven
    weeks after the murder, which on its face might serve to disconnect it from the
    murder, the appellant had casts on his hands for many weeks. During this time,
    he was unable to dress, eat, or attend to his personal care without assistance.
    When his casts came off, the appellant booked his flight within a week, paying
    in cash. He travelled at a time when he should have been receiving
    post-surgical therapy.

[27]

In
    the context of all of the evidence, it was appropriate to allow the jury to
    consider the Germany trip on the issue of identification. The appellant
    monitored the investigation before he left and while he was in Germany. When he
    returned, the police were still looking for someone who did not look like him.
    It was open to the jury to find that, as a matter of everyday experience and
    common sense, this activity was driven by the appellants concern about his own
    liability.

[28]

The
    jury was not required to accept this interpretation of the evidence. However,
    it was reasonably available in the context of the evidence as a whole. The
    trial judge left the issue with the jury, fairly pointing out its limitations.
    As he said:

In terms of the trip to Germany, you will consider that the
    murder occurred on October 23, 2012 and that Mr. Zekarias did not travel to
    Germany until December 9, 2012. While almost all of us travel at some point in
    our lives, some much more than others. In travelling to another country, Mr.
    Zekarias was doing something that a lot of people do, especially around
    Christmas time.

[29]

We
    would dismiss this ground of appeal.

C.

Conclusion and disposition

[30]

The
    appeal is dismissed.

R.J. Sharpe J.A.

L.B. Roberts J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rescon Financial Corporation v. New Era Development
    (2011) Inc., 2018 ONCA 530

DATE: 20180608

DOCKET: C64834

MacPherson, LaForme and Roberts JJ.A.

BETWEEN

Rescon Financial Corporation

Plaintiff (Respondent)

and

New Era Development (2011) Inc.

Defendant (Appellant)

AND BETWEEN

New Era Development (2011) Inc.

Plaintiff by Counterclaim (Appellant)

and

Rescon Financial Corporation and Ebrahim Bulbulia

Defendants to the Counterclaim (Respondents)

David Keith Alderson and Andrew Ottaway, for the
    appellant

Scott Crocco and Peter H. Smiley, for the respondents

Heard: June 6, 2018

On appeal from the judgment of Justice Mario Faieta of
    the Superior Court of Justice, dated January 10, 2018.

By the Court:

[1]

The appellant, New Era Development (2011) Inc. (New Era), appeals from
    the judgment of Faieta J. of the Superior Court of Justice granting summary
    judgment to the respondent Rescon Financial Corporation (Rescon) and
    dismissing New Eras counterclaim against Rescon and its founding principal,
    Ebrahim Bulbulia (Brime).

[2]

Rescon is a mortgage broker. Rescon claimed $400,000 in fees from New
    Era for arranging construction financing for a condominium project. New Era
    denied that it owed fees and submitted on the motion that Rescon failed to
    perform the terms of the contract between the parties resulting in $4 million
    in damages.

[3]

In February 2010, Razagh Vaseghi (Razagh) incorporated New Era which purchased
    a parcel of land (the Bristol Lands) for $2.8 million. In September or October,
    2012, Razagh approached Rescon to obtain replacement mortgage financing for the
    Bristol Lands. On October 20, 2012, Razagh signed a one-page retainer prepared
    by Rescon in relation to the Bristol Lands.  Razagh declined to pursue the
    options presented by Rescon.  He refinanced without going through Rescon and
    started working with another mortgage broker to obtain additional financing.  In
    June 2014, Razagh again approached Rescon to arrange about $40 million in
    financing for the construction and development of the Bristol Lands. On July 8,
    2014, Razagh delivered a signed copy of the retainer agreement between the
    parties.

[4]

The crucial provision of the contract provided for payment to Rescon in
    these circumstances:

RESCONs fee for arranging mortgage financing will be 1.0% of
    any proposed Development Construction and Letter of Credit loan facilities
    earned by RESCON upon producing an acceptable Commitment Letter and payable
upon
    the earlier of 90 days from the execution of the Commitment Letter
.
    [Emphasis added.]

[5]

The parties approached Alterna Savings and Credit Union Limited
    (Alterna) for financing to develop the Bristol Lands. Alterna delivered a
    Letter of Intent dated September 30, 2014, for Construction Financing of the
    Bristol Project which was returned with handwritten changes and a cheque for
    $50,000 payable to Alterna. Rescon obtained a Commitment Letter from Alterna
    (the Second Commitment Letter) proposing a Construction and Development loan
    of $39 million, as well as a Letter of Credit facility of $1 million on terms
    that largely reflected the terms found in the Alterna LOI.

[6]

After concerns were expressed the Project Monitor, required by Alterna
    in the Commitment Letters, regarding the conditions precedent for funding,
    budget overruns, and mezzanine financing, the relationship between New Era and
    Rescon began to sour. On June 19, 2015, New Era sent an email to Alterna
    terminating the Second Commitment Letter. Later that day Alterna forwarded New
    Eras email to Rescon. On July 2, 2015, Rescon sent an email to New Era
    containing an invoice for $400,000. After further discussions between Rescon
    and New Era regarding the continuation of their relationship, New Era informed
    Rescon, via text, that its services were no longer required.

[7]

New Era refused to pay the $400,000 sought in Rescons invoice. Rescon
    commenced an action. New Era responded with a defence and counterclaim.

[8]

The motion judge dealt with eight issues:

1.
Was commission payable
    to Rescon only after funding was received by New Era?
The motion judge
    concluded that it was clear that Rescon was entitled to be paid a commission
    after 90 days from the execution of a commitment letter.

2.
Was the second Alterna
    Commitment letter an acceptable commitment letter?
The motion judge
    found that it was.

3.
Did the Second
    Exclusive Agency Agreement expire on or about January 7, 2015?
The
    motion judge found that it had not.

4.
Is the Second Alterna
    Commitment Letter Unenforceable for breach of statute?
The motion
    judge found that it is not. First, non-compliance with the disclosure
    requirements in the relevant Regulation does not render a contract
    unenforceable. Second, in the circumstances, a breach of the Regulation did not
    occur.

5.
Is Rescon barred from bringing the action because it has not proven it
    was licensed under the
Mortgage
    Brokerages, Lenders and Administrators Act, 2006
?
The
    motion judge explained that the court should proceed on the assumption that
    there was no such breach, and New Era has not led any evidence to show that
    Rescon was not regulated under the Act for the relevant period.

6.
Is Rescon disentitled
    from collecting a fee on the ground that it breached its fiduciary duty to New
    Era?
The motion judge found that there was little trust, confidence
    and reliance demonstrated by New Era in its relationship with Rescon. Thus,
    there was no fiduciary relationship. The relationship of a mortgage broker with
    his or her client is not
per se
a fiduciary relationship.

7.
Is
    Rescon disentitled from collecting a fee on the ground that it negligently
    performed its duties under the second exclusive agency agreement?
The
    motion judge was not satisfied that the evidence demonstrated the facts relied
    on by New Era in claiming that Rescon acted negligently. Further, he was not
    satisfied that New Era suffered a loss as a result of the alleged negligence.

8.
Should
    the counterclaim be dismissed?
The motion judge concluded that, given his
    conclusion that the allegations and defences raised in the Statement of Defence
    do not raise a genuine issue requiring a trial, the Counterclaim should be
    dismissed for the same reason.

[9]

The appellant appeals on seven grounds.

[10]

First,
    the appellant contends that the motion judge erred by finding that Alternas
    Second Commitment Letter was acceptable. It says that this letter included a
    Presale Test requirement of 124 sold units with deposits of at least 20 per
    cent and that it was objectively impossible for the appellant to meet this
    requirement.

[11]

We
    do not accept this submission. In our view, it is a red herring. The
    appellants sparse financial information does not support its position.
    Moreover, there was nothing preventing the appellant from negotiating this
    point with Alterna. In addition, no one  the appellant, the respondent,
    Alterna  raised this issue as they tried to negotiate an agreement. Finally,
    as the motion judge stated:

[T]here is no genuine issue requiring trial regarding whether
    the Second Alterna Commitment Letter was an acceptable commitment letter  as
    New Era had accepted it not only once, but twice.

[12]

Second,
    the appellant submits that the motion judge erred by failing to make
    credibility findings on key issues, especially disputed oral discussions
    between Razagh and Brime. The appellant asserts that there was a contest of
    credibility between Razagh and Brime over the term of their contract making the
    respondents commission payable upon the earlier of 90 days from the execution
    of the Commitment Letter or upon the initial funding of the loan. The
    appellant submits that Brime orally assured Razagh, prior to signing the
    agreement, that his commission would be payable only on the actual funding of a
    loan obtained through Brimes efforts.

[13]

We
    are not persuaded by this submission. The record before the motion judge
    discredited Razaghs evidence on this point and supports the motion judges
    conclusion:

[T]he emails exchanged between Brime and Razagh at the time
    that the Second Exclusive Agency Agreement was signed provide a contemporaneous
    record of the parties interactions. From these emails, I find that it is clear
    that: (1) Razagh carefully read the two page agreement, as reflected by the
    numerous proposed changes that he had made in the form of digital sticky notes,
    before he signed it; (2) Brime had rejected all of Razaghs proposed changes;
    (3) Brime insisted that Razagh return the agreement in the form provided
    without changes and Razagh did so.  Brimes insistence that the draft Second
    Exclusive Agency Agreement be returned signed by Razagh undermines Razaghs
    assertion that Brime agreed to terms of payment other than as described in that
    document.

As a result, I find that Brime and Rescon did not represent to
    Razagh that the payment of their brokerage fee was conditional upon Razagh
    being advanced funds by a lender.

[14]

Third,
    the appellant contends that the motion judge erred in rejecting its defence of
    the agents breach of duty. The factual foundation for this argument is the
    appellants assertion that it was not able to meet the Presale Test condition
    in Alternas Second Commitment Letter.

[15]

We
    reject this argument. It essentially covers the same factual terrain as the
    first issue and must be rejected for the reasons set out above in relation to
    that issue.

[16]

Fourth,
    the appellant submits that the motion judge erred by concluding that there was
    not a fiduciary relationship between the parties and that the respondent
    beached its duty.

[17]

We
    disagree. The motion judges decision on this point is entitled to significant
    deference: see
Hodgkinson v. Simms
, [1994] 3 SCR 377, at para. 96. In
    our view, the motion judges review of the evidence on this issue establishes
    clearly that Razagh was far from being a neophyte shrinking violet in his
    relationship with Brime. Razaghs language and conduct throughout the term of
    the contract justified the motion judges conclusion that there was little
    trust, confidence and reliance demonstrated by New Era in its relationship with
    Rescon.

[18]

Fifth,
    the appellant asserts that the motion judge erred in law by determining
    causation before making findings on standard of care on the agents breach of
    duty issue and in the absence of any expert evidence filed by the respondents
    establishing the standard of care.

[19]

We
    do not accept this argument. There is no conceivable standard of care analysis
    that could have made a difference, given that the motion judge correctly found
    that the respondent did not breach its duty.

[20]

Sixth,
    the appellant submits that the motion judge erred in effectively reversing the
    onus that the respondents carried in requiring that the appellant demonstrate
    that there was no genuine issue for trial.

[21]

In
    our view, the motion judge did not so err. The respondents having discharged
    their evidentiary burden of proving that there was no genuine issue requiring a
    trial for its resolution, the onus shifted to the appellant to show that the claim
    had a real chance of success and that there were genuine issues requiring a
    trial:
Sanzone v. Schechter
, 2016 ONCA 566, at para. 30

[22]

Finally,
    the appellant argued that the motion judge erred by dismissing the counterclaim
    on a summary judgment basis.

[23]

We
    disagree. There is a pronounced overlap between the defence and the
    counterclaim. The motion judge was not wrong to conclude:

Given my conclusion that the allegations and defences raised in
    the statement of Defence do not raise a genuine issue requiring a trial, I find
    that the Counterclaim should be dismissed for the same reason.

[24]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal
    fixed at, $29,000, inclusive of disbursements and HST.

Released: JM JUN 8 2018

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rogers (Re), 2018 ONCA 602

DATE: 20180629

DOCKET: C64277

Sharpe, Brown and Paciocco JJ.A.

IN THE MATTER OF: Leornard A. Rogers

AN APPEAL UNDER PART XX.1 OF THE
CODE

R. Browne, for the appellant, Leonard A. Rogers

C. Elmasry, for the respondent, the Attorney General of
    Ontario

J. Blackburn, for the respondent, the Person in Charge
    of the Centre for Addiction and Mental Health

Heard: June 25, 2018

On appeal from the disposition of Ontario Review Board,
    dated August 9, 2017, with reasons dated August 28, 2017.

REASONS FOR DECISION

[1]

The appellant was found not criminally responsible on account of mental
    disorder in 2000 on two counts of assault and two counts of uttering threats to
    cause death and has been under the jurisdiction of the Ontario Review Board
    since that date. He appeals his current disposition of detention in a general
    forensic unit with community living privileges at the discretion of the
    hospital, arguing that it was unreasonable for the Board to find that he
    continues to pose a significant threat to public safety. In the alternative, he
    seeks a conditional discharge.

[2]

The index offences involved punching a pregnant woman in the face,
    punching the appellants former domestic partner in the face and chest, and
    then uttering death threats when arrested. These were serious assaults, and the
    appellant stated at the time that he wanted to kill his victims.

[3]

The appellant is in his mid-50s and has a lengthy psychiatric history.
    His condition worsened when suffered a serious head injury in a motor vehicle
    accident in 1983. His current diagnosis is neurocognitive disorder due to
    traumatic brain injury with behavioural disturbance, cannabis use disorder, and
    antisocial personality disorder. The appellant also suffers from a number of
    other serious illnesses including diabetes and coronary artery disease.

[4]

The appellants treating physician testified that he represents a significant
    threat to the safety of the public due to his impulsivity, his brain injury,
    deficits in his cognitive function, and his inability to control anger.

[5]

There have been no incidents of physical assault since 2000. However,
    during the reporting period, there were a large number of incidents involving
    verbal intimidation and threats of physical violence made by the appellant on
    co-patients and staff members. These incidents are conveniently set out at
    paragraph 28 of the Crowns factum.

a.

In October 2016, there were two incidents where the appellant was
    verbally intimidating, yelling and using profanities e.g. on October 4, the
    appellant was approached to see if he would do blood work and yelled, No, fuck
    off, I dont want to do it again today. There were also five instances where
    he was intimidating and/or he violated staffs personal space e.g. on October
    4, a nurse asked if he could obtain a CBG and he yelled, fuck off fuck off Im
    sick of this shit and put up his middle finger in the nurses face;

b.

In November 2016, there were two incidents where body language and words
    were used in a threatening manner e.g. on November 9, the appellant became
    frustrated with a co-patient who was speaking with a nurse when he approached
    the nurse requesting his medication. The co-patient would not disengage and the
    appellant stated, Excuse me. Once in the treatment room, the appellant
    expressed frustration with the co-patient, stating, Im fucking pissed the
    fuck offI want to fucking snap him, while punching his fist into his hand
    several times. He was able to stay calm;

c.

In December 2016, there were seven incidents where the appellant was
    verbally intimidating, yelling and using profanities and there were two
    incidents where using body language and words were threatening in nature and/or
    invading personal space e.g. on December 6, the appellant went to retrieve the
    TV remote, a co-patient questioned why he wanted it and he became upset, raised
    arms in a threatening manner, motioning to break something and said, I would
    love to snap him in half and the co-patient said lets go then. Staff
    intervened and escorted the appellant away. He settled down and apologized and
    went to bed;

d.

In January 2017, there were ten incidents where he was verbally
    intimidating, yelling and/or using profanities e.g. on January 20, when he was
    told his privileges were not reinstated for cannabis use, he said, Im fucking
    pissed the fuck off in a loud, irritated voice. There were three incidents
    where he used his body language and/or words in a threatening nature e.g. on
    January 9, the appellant accidently brushed up against a co-patient. When the
    appellant said sorry, the co-patient got upset and the appellant said, fuck
    you, you fucking bitch while aggressively holding up his middle finger;

e.

In February 2017, there were nine incidents where he was verbally
    intimidating, swearing and yelling e.g. on February 24, he was informed that
    his privileges were to be put on hold related to positive drug testing,
    initially he was calm but it quickly escalated to where he was punching his
    mattress, becoming agitated and verbally abusive and he eventually slammed his
    door in the staffs face to end the interaction. There were eight incidents
    where body language and words were threatening in nature. There were two
    incidents where no direct threat was uttered but physical contact was
    inappropriate. Three incidents where aggression was directed at property either
    personal or hospital e.g. on February 17, he became agitated when informed his
    privileges were suspended as he was late. He became agitated, yelling and
    swearing at nursing staff, I wanna fucking snap you and he grabbed his mug
    from the kitchen and charged towards nursing staff. He was redirected to settle
    in his room and he continued to swear, was intrusive and threatening so a code
    white was called and he was moved to seclusion for a few hours;

f.

In March 2017, there were three incidents where he was verbally
    intimidating, swearing and yelling. There were two incidents where his body
    language and words were threatening in nature and one incident where aggression
    was directed at property e.g. on March 17, when the appellant was watching TV
    and a co-patient entered the room and sat to watch TV, the appellant became
    upset with no provocation and yelled and swore loudly before walking into his
    bedroom;

g.

In
    April 2017, there were three incidents where body language and words were
    threatening e.g. on April 9, the appellant was looking at a nurses chest and
    he began raising/wagging his eyebrows at the nurse. He was redirected and
    stated, I know, but I didnt. On April 11, the appellant was denied being off
    unit, although someone told him he could, he got verbally aggressive, yelling
    fuck you and invading staffs personal space. He was difficult to redirect
    and punched a wall and left a dent;

h.

In May 2017, there were eight incidents where he was verbally
    intimidating, yelling and swearing. There were six incidents where body
    language was intimidating and words were threatening. There were two incidents
    were his aggression was directed at property;

i.

In June 2017, there were nine incidents where the appellant was
    intimidating, yelling and swearing e.g. on June 12, during a code red with
    patients in the dining room for 30 minutes, he started to get irritable and
    swore at staff and gave staff the middle finger. He was asked to stay calm and
    try to relax. He tipped the chair over to the ground. And he moved to a
    co-patient and gestured at a nurse, Ill snap you. He was eventually moved to
    seclusion; and,

j.

In July
    2017, there were two incidents where he was verbally intimidating and used
    profanity. There was one incident where he was intimidating, threatening and
    personal space was violated e.g. on July 9, the Appellant was eating dinner in
    his room and a co-patient was staring at him. He walked briskly to the
    co-patient, invaded the co-patients personal space and said, wants to fucking
    snap him; next time I dont care, I am going to fucking snap him  one more
    time. He was told his behavior was inappropriate and he was re-directed.

[6]

A majority of three members of the Board concluded on the basis of the
    treating physicians evidence and the numerous incidents of intimidating and
    threatening behaviour disclosed in the Hospital Record that the appellant continues
    to pose a significant threat to the safety of the public. The Board found, at
    para. 20, that the only reason his behaviour did not escalate to physical
    aggression was due to the quick response by staff to manage the situation and
    the structured environment of the general forensic unit.

[7]

Two board members dissented on the basis that the appellant had not been
    physically assaultive since the index offense and that while he had threatened
    violence, he had never acted upon those threats. The minority concluded that
    the appellant was more a danger of compromising his own personal health than of
    harming others.

[8]

We are not persuaded that the majoritys conclusion that the appellant
    continues to pose a significant threat to the safety of the public was unreasonable
    or that the Board made any error of law in coming to that conclusion. In our
    view the number and nature of actual threats of violence uttered by the
    appellant distinguishes his case from that of
Wall
(Re) 2017 ONCA 713.
    In our view it was open to the majority to conclude that given his
    long-standing illness, his impulsivity and lack of ability to control his
    anger, and his persistent pattern of threatening behaviour and the strong
    likelihood that he will deteriorate if not in a controlled setting, the safety
    of the public justifies a finding that he poses a significant threat to public
    safety.

[9]

The evidence before the Board indicated that the treating physician and
    the institution were making efforts to move the appellant from the forensic
    unit to a less restrictive setting in the community where he would continue to
    receive 24 hour supervision and monitoring and that he is currently on a
    waiting list for such an institution. At the oral hearing of this appeal we
    were informed by counsel for the hospital that a placement of that nature has
    now been made.

[10]

Given
    the nature of threat posed by the appellant, the nature of his illness, and the
    difficulty he has in complying with conditions when not supervised, the
    majoritys order of a detention order with hospital approved community living
    privileges rather than a conditional discharge was not unreasonable. In our
    view, the majoritys reasons, at para. 22, demonstrate that this issue was
    fully and fairly considered and we do not agree that the Board failed in its
    duty to explore this issue:

We have considered whether a Conditional Discharge is the least
    onerous and least restrictive Disposition and we have concluded that it is not.
    Mr. Rogers requires a high level of supervision in order to manage his risk to
    public safety. He requires staff supervision that can address his medical needs
    and his activities of daily living. He also requires staff that can utilize
    strategies to de-escalade his behaviour. It would be very helpful if Mr. Rogers
    had his own room in his community housing so that he could retreat there if he
    is experiencing irritability or anger. In our view, the Hospital must be in a
    position to approve housing and have him readmitted to the hospital should his
    mental state deteriorate further.

[11]

Accordingly,
    the appeal is dismissed.

Robert J. Sharpe
    J.A.

David Brown J.A.

David M. Paciocco
    J.A.