COURT OF APPEAL FOR ONTARIO

CITATION: Ludmer v. Ludmer, 2014 ONCA 827

DATE: 20141121

DOCKET: C56795

Blair, Juriansz and Epstein JJ.A.

BETWEEN

Lisa Ludmer

Applicant (Respondent)

and

Brian Ludmer

Respondent (Appellant)

and

Gary Spira

Third Party (Respondent)

Gary S. Joseph and Rebecca Winninger, for the appellant

Lisa Ludmer, acting in person

Rebecca Grosz, for the third party respondent

Heard: October 21, 2014

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated February 11, 2013, with reasons reported
    at 2013 ONSC 784, and a related costs order dated August 20, 2013.

R. A. Blair J.A.:

Background

[1]

After nearly 20 years of marriage, Lisa and Brian Ludmer separated. There
    are two children of the marriage, both adults and at the time of trial, both
    attending university.

[2]

Commendably, they agreed upon issues relating to custody and access, by
    way of a joint parenting plan. However, in all respects relating to the
    financial and property issues arising out of their separation they have engaged
    in scorched-earth litigation warfare. Each accuses the other of having litigated
    with impunity.

[3]

By all accounts the Ludmers are able individuals. During their marriage,
    they enjoyed a relatively upper middle-class lifestyle in North Toronto. Mr.
    Ludmer worked hard as a corporate and securities lawyer, rising through the
    ranks to partner in three Toronto law firms. His practice declined, however,
    and at the end of 2004 he was let go. In 2005 he re-commenced practice as a
    sole practitioner, and since then has re-invented himself as a successful
    family law lawyer. Ms. Ludmer worked as a placement consultant and recruiter at
    various personnel placement firms and on her own with some interruption for her
    child-rearing responsibilities when the children were young. After the
    separation, she began, once again, to work outside the home.

The
Family Law Act
and Support Claims (The Ludmer action)

[4]

The claims as between Mr. Ludmer and Ms. Ludmer revolved around the
    financial and property issues arising out of their marriage, including child
    and spousal support and the equalization of family property. There were many
    interlocutory and other proceedings prior to trial. One involved a dispute in
    the province of Québec over disclosure of information relating to a family
    trust established by Mr. Ludmers father of which Mr. Ludmer is a beneficiary. That
    dispute made its way through the Superior Court of Québec, the Court of Appeal
    of Québec, and an application for leave to appeal to the Supreme Court of
    Canada.

[5]

The trial of the Ludmer action finally took place over 13 days in
    October and November 2012, before Penny J. On February 11, 2013, he released a
    thorough and carefully reasoned 51-page decision. Mr. Ludmer was successful in
    some respects, Ms. Ludmer in others. On August 20, 2013, after hearing
    submissions, the trial judge ordered that each party should bear their own
    costs.

The Spira Action

[6]

Penny J. also dealt with a separate proceeding commenced by Mr. Ludmer
    against a former neighbour, Gary Spira. This proceeding (the Spira action)
    was initially a civil claim for invasion of privacy, intentional infliction of
    mental distress, and for injunctive relief under s. 35 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12, (the CLRA) essentially on the
    basis that Mr. Spira was an officious intermeddler in the dispute between the
    Ludmers. The claim for injunctive relief was not actively pursued after Mr. Spira
    ceased his interventions. These three claims were ultimately dismissed in the
    civil context. In 2008, the appellant added these claims to his family law
    proceedings and they were heard at the same time.

[7]

The substantive complaints in the Spira action were two-fold: (i) that
    Mr. Spira had interfered in Mr. Ludmers relationship with his children and was
    blindly aligned with Ms. Ludmer in a campaign to do so; and (ii) that Mr. Spira
    had invaded Mr. Ludmers privacy by intercepting and reading his private, and
    in some cases privileged, electronic communications and forwarding them to Ms.
    Ludmers lawyers. The trial judge dismissed these claims and awarded costs of $125,000
    plus HST and disbursements of $5,223.01.

Analysis

The Ludmer Action

[8]

For purposes of the appeal the main financial and property issues
    resolved at trial were:

(a) the validity and enforceability of a marriage contract
    entered into by the Ludmers following their marriage;

(b) ownership of the matrimonial home;

(c) equalization of family property and excluded property in
    that context; and

(d) four issues relating to support:

(i) determination of the parties income;

(ii) child support;

(iii) spousal support; and

(iv) s. 7 expenses.

[9]

Mr. Ludmer was successful in establishing that the marriage contract was
    valid and enforceable and, accordingly, that his interest in the family trust
    was not to be included in the equalization payment calculation. This was a
    significant outcome for him: we are advised that his contingent interest in the
    trust is approximately $6 to $8 million. An additional benefit of this finding
    was that Mr. Ludmer had a positive balance of approximately $270,000 by way of
    equalization.

[10]

At
    the same time, however, Mr. Ludmer was unsuccessful in his claim to an 80 per
    cent ownership interest in the matrimonial home  the trial judge found the
    couple owned it equally  and was required to pay Ms. Ludmer the sum of
    $244,500 with respect to the post-separation increase in its market value. He
    was successful in excluding certain loans made by his father from his income
    for support purposes, but was unsuccessful in sustaining his net income as
    claimed as a result of the trial judges decision not to accept his business
    deductions entirely for that purpose. He was required to pay arrears of child
    support and a lump sum payment to Ms. Ludmer in the amount of $432,000, on
    account of spousal support.

[11]

When
    all of the various claims were set off against each other, Mr. Ludmer was
    required to pay Ms. Ludmer a net amount of $194,434.

[12]

This
    appeal concerns the issues on which Mr. Ludmer was unsuccessful and the
    findings made against him. On his behalf, Mr. Joseph raises many grounds of
    appeal. He argues that the trial judge erred:

a)

in calculating the parties income (by failing to accept Mr. Ludmers
    business expenses for the purposes of spousal support, and by failing to
    include the proceeds of both parties RRSPs in income for child support
    purposes);

b)

in determining spousal support on both a compensatory and needs basis;

c)

in failing to adjust his lump sum spousal support award for tax
    consequences, present value discounting, and future contingencies;

d)

in failing to deduct spousal support from his income for the purpose of
    allocating s. 7 expenses;

e)

in allocating all of the 2005 s. 7 expenses to Mr. Ludmer;

f)

in ordering the parties to bear their own costs; and

g)

in failing to determine previous motion costs that had been deferred to
    the trial judge.

[13]

Ms.
    Ludmer concedes ground (d) above. Section 3.1 of Schedule III of the
Federal
    Child Support Guidelines
, SOR/97-175 (the
Guidelines
), provides
    that spousal support payable is to be deducted from the payors income for the
    purposes of the s. 7 calculation. The parties agree that this correction
    increases the amount that Ms. Ludmer owes to Mr. Ludmer for her contribution to
    s. 7 expenses by $38,096.36. This reduces the net amount owing by Mr. Ludmer to
    Ms. Ludmer from $194,434 to $156,337.64. The judgment below will be varied
    accordingly.

[14]

I
    otherwise reject the appellants grounds for appeal. For the most part they
    involve an attack on the trial judges findings of fact, all of which were
    amply supported on the record. It is well established that the standard of
    review in family law litigation promotes finality and recognizes the importance
    of the appreciation of the facts by the trial judge. An appeal court may
    intervene only when there is a material error, a serious misapprehension of the
    evidence, or an error in law.

Business Expenses Deductions

[15]

Mr.
    Ludmer led evidence from his accountant to establish that the business
    deductions claimed for his one-person law practice were proper for income tax purposes.
    No one contests that. The trial judge concluded  correctly  however, that [t]he
    fact that a business expense is legitimate for tax purposes does not mean
    that the same deduction is reasonable for support purposes.

[16]

Mr.
    Joseph accepts this general legal proposition, but argues that the trial judge
    erred in arbitrarily arriving at a 50 per cent threshold for business expenses
    in relation to gross income. I do not agree.

[17]

Mr.
    Ludmer argued at trial that his expenses were high because he was required to
    spend larger amounts on publications, technology, secretarial staff and
    paralegal staff, in order to promote himself and to build his new practice. The
    trial judge accepted this argument for the early years. He concluded, however,
    that once [Mr. Ludmers] practice was up and running and generating
    substantial revenues starting in 2009, closer scrutiny [was] warranted.

[18]

In
    the years 2009, 2010, and 2011, Mr. Ludmer claimed that his business expenses,
    as a percentage of gross professional income, were 66.18 per cent, 56.99 per
    cent, and 78.42 per cent, respectively. The trial judge determined that to
    allow the full amount of Mr. Ludmers claim for home office, legal, vehicle,
    meals, entertainment, and, particularly, a 10 per cent of gross revenue
    deduction for expenditures on publications to sustain a one-person operation,
    was unreasonable for support purposes. It was not a fair barometer  on a
    common sense basis  of [the] income level that fairly and reasonably reflect[ed]
    the compensation available to [Mr. Ludmer] to pay support (at para. 157).

[19]

Determining
    child and spousal support is not an exact science. The trial judge lived with
    this case through 13 days of trial. Indeed, he had had prior exposure to the
    litigation through various interlocutory proceedings. He was well aware of the
    dynamics of the litigation, the relationship between the Ludmers, and the
    particulars of their lifestyle. In the end, he concluded that the fairest and
    simplest expedient in these circumstances [was] simply to find that [Mr.
    Ludmers] business expenses, for support purposes, cannot reasonably [exceed]
    50 per cent of gross revenue (at para. 159).

[20]

In
    my view, this approach was open to the trial judge in the circumstances, and I see
    no basis for interfering with it.

RRSPs

[21]

In
    2007 and 2008 each party cashed in RRSPs  Ms. Ludmer in the total amount of
    $347,057, and Mr. Ludmer in the total amount of $181,964. Clearly, the
    inclusion of these amounts in income would have favoured Mr. Ludmer in the
    calculation of child support. The trial judge did not do so.

[22]

This Court has held that RRSP income is presumptively part
    of a spouses income for child support purposes. That is because section s. 16
    of the
Guidelines
provides that a persons annual income for child
    support purposes is determined using the sources of income set out under the
    heading Total income on the T1 tax form. RRSP income is included as part of Total
    income on the T1 tax form: see
Fraser v. Fraser
, 2013 ONCA 715, 40
    R.F.L. (7th) 311, at para. 97.

[23]

The
    inclusion of RRSP proceeds is not mandatory, however, and the court has the
    discretion in appropriate circumstances to do otherwise. Section 17(1) of the
Guidelines
provides this flexibility:

If the court is of the opinion that the determination of a
    spouses annual income under section 16
would not be the fairest
    determination
of that income, the court may have regard to the spouses
    income over the last three years and determine an amount that is
fair and
    reasonable in light of any pattern of income, fluctuation in income or receipt
    of a non-recurring amount
during those years. [Emphasis added.]

[24]

Here,
    the trial judge excluded both parties RRSP proceeds from the calculation of
    their income for support purposes on the basis that they were non-repeating
    encroachments on capital. Ms. Ludmers financial statement indicated that she
    used her proceeds primarily to finance this costly litigation, not to enhance
    her lifestyle.

[25]

The
    trial judge did not state specifically that he was applying the analysis under ss.
    16 and 17 of the
Guidelines
when arriving at this decision. However,
    his reasons show that he was alive to the need to arrive at income levels that
    fairly reflected the financial capacities of the spouses for the purpose of
    support. In short, his reasons show that, in his view, including the RRSP
    proceeds in the parties incomes would not be the fairest determination of
    [the spouses incomes] for support purposes, and that in excluding them, he
    was arriving at an amount that was fair and reasonable in light of any pattern
    of income, fluctuation in income or receipt of a non-recurring amount.

[26]

I
    see no error in his decision to exclude the RRSP proceeds from income.

Spousal Support

[27]

Similarly,
    I see no error in the trial judges decision to award spousal support on both
    compensatory and needs-based grounds. He considered and applied the relevant
    law in this respect, and made findings of fact that were supported on the
    record.

[28]

Mr.
    Ludmer argues that Ms. Ludmer was not entitled to any spousal support. I do not
    agree.

[29]

It
    was open to the trial judge to find, as he did, that Ms. Ludmer was
    financially disadvantaged, at a personal level, by the allocation of roles
    during the marriage, that this affected her consulting business, and that she
    was unlikely to be able to replicate on her own the standard of living that
    the complete merger of [their] economic lifestyles had enabled the Ludmers to
    enjoy. This was sufficient, in my opinion, to justify a compensatory claim
    component in the spousal support award.

[30]

More
    generally  as he was required to do  the trial judge addressed the various
    factors relating to the condition, means, needs and other circumstances of
    each spouse in determining whether Ms. Ludmer was entitled to spousal support
    and, if so, the quantum to be awarded:
Divorce Act,
R.S.C. 1985, c. 3
    (2nd Supp.), s. 15.2(4). He summarized his conclusions, at para. 249 of his
    reasons, as follows:

With respect to the specific monthly amount of support, I have
    considered the condition, means, needs and other circumstances of each spouse,
    the Guideline amount, the result of the equalization calculation and the
    distribution of property between the spouses, the age and stage of the
    applicant, the ages and stages of the children, the work histories of the
    parties, the length of the marriage, the functions performed by each spouse
    during the marriage, the economic disadvantages to the applicant resulting from
    the marriage breakdown and the promotion of the applicants self-sufficiency.

[31]

The
    record supports that he did just that.

Lump Sum Adjustment

[32]

At
    the request of Mr. Ludmers counsel, the trial judge made a lump sum award for
    spousal support. His lump sum award of $432,000 represented the total of the
    monthly and annual support amounts that he had found to be payable for the
    years 2008 through 2015  the 8-year time-limited period for support that he
    had concluded was reasonable.

[33]

Mr.
    Ludmer objects because the trial judge did not adjust the $432,000 amount for
    tax consequences, present value considerations, and future contingencies. The
    trial judge recognized that there was support in the authorities for adjusting
    a lump sum representing future support payments for such factors. However, he
    concluded that in the circumstances of this case, such an adjustment was not
    needed. At para. 257 of his reasons he stated:

In this case, I do not think any adjustment is necessary. The
    period in question is relatively short. The lump sum I have awarded was
    determined based on my discretion taking into account a wide range of factors,
    not least of which [were] the consequences for the applicant of equalization
    and property division in this case. Five of the eight years have already gone
    by. Had there been discounting on account of taxes, the amount of support
    awarded would have been proportionately higher.

[34]

This
    conclusion was reasonable in the circumstances, in my view.

Section 7 Expenses

[35]

In
    varying annual amounts from 2005 to 2012, Mr. Ludmer paid a total of
    $606,577.12 for childrens expenses such as their Hebrew day school, a nanny,
    Kyles hockey, post-secondary school, and summer camp. It is not contested that
    these were appropriate special or extraordinary expenses under s. 7 of the
Guidelines
in accordance with the parties lifestyle prior to separation or that Ms.
    Ludmer paid nothing towards them and, indeed, acquiesced in them for the most
    part.

[36]

Recognizing
    that s. 7 expenses are generally to be shared by parents in proportion to their
    incomes, but that he had the discretion to decide otherwise, the trial judge
    arrived at a calculation that required Ms. Ludmer to pay Mr. Ludmer a total of
    $181,790. As noted above, Ms. Ludmer concedes that the trial judge erred in
    failing to take into account support payments ordered in calculating these
    payments and that the appropriate amount owing by her is $219,886.36.

[37]

The
    trial judge did not allocate any of the s. 7 expenses for the year 2005
    $84,751.97  to Ms. Ludmer, however. Mr. Ludmer argues he erred in that
    respect.

[38]

Mr.
    Ludmer had no income in 2005. He funded the s. 7 expenses through loans made to
    him by his father. For reasons that are not germane to the appeal, the trial
    judge concluded that the loans received would not form part of Mr. Ludmers
    income for support purposes. He took a different view of them for s. 7
    purposes, however, rejecting the argument that the principle gifts are not
    income was dispositive of the s. 7 issue as well.

[39]

In
    the trial judges view, s. 7 expenses of almost $85,000 in a year when Mr.
    Ludmer had zero income (and Ms. Ludmer only $66,809) were simply not reasonable
    when this couple could not possibly have afforded [them] on the basis of their
    own incomes. The fact that the expenses were funded entirely through family
    assistance opened up the issue of apportionment and enabled the trial judge to
    look beyond the parties respective incomes. Requiring Ms. Ludmer to reimburse
    Mr. Ludmer for those payments, in the circumstances, was not appropriate.

[40]

In
    my view, it was open to the trial judge to come to this conclusion. In any
    event, the amount in issue would not be Ms. Ludmers share of $84,751.97. Because
    the expenses were funded through a loan, the amount in question would only be
    her share of the interest on the amount of the loan for that year. In the
    overall balancing of the financial issues between the parties, this would be a
    relatively insignificant amount.

The Spira Action

[41]

There
    is no merit in the appeal respecting the Spira action.

The Claim under Section 35 of the CLRA

[42]

Since
Frame v. Smith
, [1987] 2 S.C.R. 99, it has been clear

that no
    tort action exists for wrongful interference with access rights. The remedy
    against such interference is now governed by s. 35 of the CLRA
,
which
    provides for relief by way of a restraining order and a permanent injunction.

[43]

Mr.
    Ludmer commenced a claim for relief under s. 35. Understandably, he did not
    pursue that relief at trial because Mr. Spira stopped his conduct and the
    children were, by that time, adults. I do not think this Court should entertain
    and determine a claim that was not pursued at trial: see
York Region
    Condominium Corporation No. 890 v. RPS Resource Property Services Ltd.
,
    2012 ONCA 670, 6 B.L.R. (5th) 171.

[44]

Mr.
    Spira had brought a motion to quash the appeal in relation to the s. 35 claim
    on the foregoing basis. The motion was referred to the panel hearing the
    appeal. We advised counsel that the motion to quash and the appeal would be
    heard together, and that they should adapt their oral arguments accordingly. In
    view of the dismissal of the appeal on this ground, it is not necessary to deal
    with the motion to quash. It is therefore dismissed without costs.

Intentional Infliction of Mental Distress

[45]

As noted above, no separate tort action exists for the
    intentional infliction of mental distress based upon interference with a
    parents access rights. Relief in relation to such conduct is now incorporated
    in s. 35 of the CLRA.

[46]

Mr.
    Ludmer did not pursue his s. 35 claim at trial and cannot do so now on appeal.

Invasion of Privacy

[47]

This
    Court has recognized the tort of invasion of privacy  sometimes referred to as
    intrusion upon seclusion  in
Jones v. Tsige
, 2012 ONCA 32, 346
    D.L.R. (4th) 34. Sharpe J.A. identified the elements of the cause of action at
    para. 71 of his reasons:

The key features of this cause of action are, first, that the
    defendants conduct must be intentional, within which I would include reckless;
    second that the defendant must have invaded, without lawful justification, the
    plaintiffs private affairs or concerns; and third, that a reasonable person
    would regard the invasion as highly offensive causing distress, humiliation or
    anguish.

[48]

In
    this respect, he adopted, at para. 70 of his reasons, the essential elements of
    the action for intrusion upon seclusion from the
Restatement (Second) of
    Torts
§ 652B (2010), which states:

One who intentionally intrudes, physically or otherwise, upon
    the seclusion of another or his private affairs or concerns, is subject to
    liability to the other for invasion of his privacy, if the invasion would be
    highly offensive to the other person.

[49]

The
    trial judge correctly identified the elements of the cause of action and he
    found as a fact (a) that Mr. Spira had neither hacked into nor had access to
    Mr. Ludmers email account; (b) that Mr. Spira had never, himself, intercepted
    any of Mr. Ludmers emails; and (c) that Mr. Spira had never read any of the
    emails. The trial judge concluded that the simple fact that Mr. Spira had
    forwarded certain of these emails to Ms. Ludmers lawyer at her request was not
    sufficient to ground a claim for invasion of privacy. He found that it was Ms.
    Ludmer, not Mr. Spira, who had intentionally intruded upon Mr. Ludmers private
    affairs, and that whatever assistance Mr. Spira provided was not for purpose of
    assisting in her intrusion upon those private affairs.

[50]

There
    was ample support in the record for these findings of fact, and there is no
    basis for interfering with them on appeal. They are dispositive of the appeal
    on the invasion of privacy ground.

Costs of the Proceedings

As Between the Ludmers

[51]

The
    trial judge ruled that the Ludmers would each bear their own costs. A great
    deal of attention on the appeal was devoted to this disposition.

[52]

With
    respect to the equalization of family property and support claims, Mr. Ludmer
    argues that, even though the trial judge concluded that the dispute turned out
    to be truly a case of more or less equally divided success, he, the
    respondent at trial, was in reality the successful party.

[53]

For
    purposes of his costs analysis, the trial judge considered the major issues in
    the case to fall into two general categories: (i) claims involving the validity
    of the marriage contract and the family trust; and (ii) the income and support
    issues. He found Mr. Ludmer successful on the first of these and Ms. Ludmer, on
    balance, successful on the second.

[54]

Mr.
    Ludmer argues, however, that he was successful on the key issues. By that he
    means the issues relating to the marriage contract, the family trust, and the
    exclusion of his beneficial interest in the trust from equalization of property
    and support calculations.

[55]

There
    is no doubt that the findings on these issues were favourable to Mr. Ludmer. But
    the issues on which Ms. Ludmer was successful were favourable to Ms. Ludmer as
    well.

[56]

A
    trial judge has a broad discretion in awarding costs, both as to quantum and as
    to payor and recipient. Here, success was divided and, as the trial judge
    noted, both parties appear to have [waged] their litigation war without heed
    to the costs and in an all-out, ruinous fashion. I see no error in law or in
    principle in his decision that [e]ach party shall take responsibility for
    their own choices in the conduct of this litigation and bear their own costs.

[57]

It
    is true that the trial judge did not deal specifically with the costs of a
    number of motions reserved to him. I am satisfied, nonetheless, that his
    decision was designed to deal with the costs of the entire litigation war and
    took into account those earlier skirmishes.

[58]

I
    see no basis for interfering with the trial judges costs award as between the
    Ludmers.

As Between Mr. Ludmer and Mr. Spira

[59]

The
    trial judge awarded costs in the amount of $125,000 plus HST and disbursements
    in the amount of $5,223.01 in favour of Mr. Spira.

[60]

Mr.
    Ludmer argues that the trial judge erred in failing to find that Mr. Spiras
    inappropriate conduct disentitled him to costs, whereas he, Mr. Ludmer, had
    acted in good faith and made offers to settle. In the alternative, he argues
    that the quantum awarded was disproportionate and unreasonable in relation to
    the issues and the amount of the claim ($50,000).

[61]

The
    trial judge came to a different conclusion, however. He found that Mr. Spira
    was entirely successful in the third party action. While Mr. Ludmer had made offers
    to settle, Mr. Spira had done so as well, and Mr. Spiras offer  which was not
    accepted  was more favourable than the result obtained by Mr. Ludmer in the
    third party action. Rather than finding Mr. Spiras conduct inappropriate, as
    he had declined to do at trial as well, the trial judge found that the claim
    against Mr. Spira was a form of intimidation and punishment for siding with
    [Ms. Ludmer] in the dispute, that the claims had no hope of success, and
    that they were instituted for emotional and purely strategic purposes and to
    inflict emotional and financial harm (at para. 44).

[62]

He
    concluded that Mr. Spira was entitled to costs on a full indemnity basis. That
    said, the trial judge awarded considerably less than the amount of the draft bill
    submitted by Mr. Spiras counsel. Mr. Spiras counsel sought $300,000. The
    trial judge awarded $125,000 (plus HST and disbursements).

[63]

Mr.
    Ludmer contends, nonetheless, that the amount awarded was unreasonable. I do
    not agree.

[64]

On
    the trial judges findings, Mr. Spira was drawn into the Ludmers dispute for
    extraneous reasons. He had to defend, and this no doubt required him to attend
    at some of the proceedings involving the Ludmers. The trial judge reduced
    counsels bill considerably, finding that the time spent was excessive, and
    that the amount claimed was disproportionate in relation to the amount at stake
    and the amount of trial time consumed.

[65]

As
    noted, a trial judge has broad discretion in fixing costs. I see no error in
    his award here.

Preliminary Motions

[66]

In
    addition to the motion to quash, referred to above, Mr. Spiras counsel brought
    two other interlocutory motions relating to Mr. Ludmers attempt to appeal the
    costs order against him in the Spira action. These included a motion for
    directions, and a motion to dismiss the motion for leave to appeal costs for
    delay. In response, Mr. Ludmer brought a motion for directions and a motion to
    extend the time to file a notice of leave to appeal costs.

[67]

These
    motions, originally brought before a judge in Chambers, were also referred to
    the panel hearing the appeal. Again, we directed that we would deal with them,
    if necessary, as part of the appeal argument on the merits.

[68]

In
    view of my disposition of the costs appeal, it is not necessary to deal with
    the preliminary motions further. They, too, are dismissed.

Disposition

[69]

In
    the result, the appeal is allowed only to the extent that the judgment below is
    varied to reflect the trial judges failure to attribute the sum of $38,096.36
    to Ms. Ludmer in his calculation of s. 7 expenses owing. As a result, Ms.
    Ludmer owes Mr. Ludmer a total of $219,886.36 for her contribution to s. 7
    expenses incurred by him. This leads to a variation in the net amount owing to
    Ms. Ludmer from $194,434 as ordered by the trial judge to $156,337.64, as
    agreed by the parties.

[70]

The
    appeal in the Ludmer action is otherwise dismissed. While leave to appeal costs
    is granted, the appeal as to costs is dismissed.

[71]

The
    appeal in the Spira action is also dismissed. Again, leave to appeal costs is
    granted, but the appeal as to costs is dismissed.

[72]

Ms.
    Ludmer is entitled to her costs of the appeal in the Ludmer action, and Mr.
    Spira to the costs of the appeal in the Spira action.

[73]

The
    parties have each filed draft bills of costs. After reviewing those draft bills
    and considering the submissions of counsel and of Ms. Ludmer, I fix those costs
    as follows: $20,000 to Ms. Ludmer; and $12,500 to Mr. Spira. Both amounts are
    inclusive of applicable taxes and disbursements.

Released: (RAB) NOV 21, 2014
    R.A. Blair J.A.

I agree R.G. Juriansz J.A.

I agree Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Mangal v.
    William Osler Health Centre, 2014 ONCA 820

DATE: 20141119

DOCKET: C57056

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Sudesh Mangal, Vincent Ravi Mangal, by his
    Litigation Guardian, Sudesh Mangal and Sarina Mangal, by her Litigation
    Guardian, Sudesh Mangal

Plaintiffs (Appellants)

and

William Osler Health Centre
, Brampton
    Memorial Hospital Campus,
Dr. Indira Chandran
,
Dr. Sheldon
    Girvitz
,
Dr. Jordan Bohay
, Dr. Keith Louis, Dr. Azhar Malik,
    Dr. A. Singh. Dr. I. Gold, Dr. D. Price, Dr. A. Macdonald, Dr. D. Dubois,
    Dr. J. Doe #1, Dr. J. Doe #2, Nurse Caron Hall, Nurse Amy Romyn, Nurse
    Tara Benford, Nurse Connie Brain, Nurse Mary Bell, Nurse K. Gravac, Nurse T.
    Ellis, Nurse Ann Botting, Nurse Iris Perry, Nurse V. Gutwein, Nurse J. Doe #1
    and Nurse J. Doe #2

Defendants (Respondents)

Paul J. Pape and Tanya A. Pagliaroli, for the appellants

Nina Bombier and Katie Pentney, for the respondents, Dr. Indira
    Chandran, Dr. Sheldon Girvitz and Dr. Jordan Bohay

William D.T. Carter, Ewa Krajewska and Logan Crowell, for the
    respondent, William Osler Health Centre

Heard: April 1, 2014

On appeal from the order Justice Frank N. Marrocco of the
    Superior Court of Justice, dated April 22, 2013, with reasons reported at 2013
    ONSC 2313.

COSTS ENDORSEMENT

[1]

Further to the dismissal of this appeal and cross-appeal on September
    17, 2014, we have considered the costs submissions made by the parties. Given
    the tragic circumstances of this case and the reasonableness of the appeal,
    which raised
bone fide
legal issues, no costs shall be awarded.

K. Feldman J.A.

J. C. MacPherson J.A.

C. William Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Martenfeld v. Collins Barrow Toronto LLP, 2014 ONCA
    774

DATE: 20141105

DOCKET: C57525

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Marvin Martenfeld and Jekel Enterprises Inc.

Plaintiffs (Respondents)

and

Collins
    Barrow Toronto LLP and

Collins
    Barrow Toronto Inc.

Defendants (Appellants)

Lou Brzezinski and Catherine MacInnis, for the
    appellants

Michael Tamblyn and Ryan Hauk, for the respondents

Heard: April 22, 2014

On appeal from the judgment of Justice Joan L. Lax of
    the Superior Court of Justice, dated July 24, 2013, with reasons reported at
    2013 ONSC 4792.

COSTS ENDORSEMENT

[1]

By judgment of this court dated September 10, 2014, the respondents (the
    Martenfeld Group) were awarded their costs of this appeal, on the partial
    indemnity scale.  The parties were invited to submit brief written submissions
    to the court regarding the quantum of those costs.

[2]

We have now received and reviewed the parties costs submissions.  In
    light of those submissions and the nature and disposition of the issues on
    appeal, the respondents are awarded costs of the appeal fixed in the amount of
    $45,000, inclusive of disbursements and all applicable taxes.

Doherty J.A.

E.A. Cronk J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mehedi v. 2057161 Ontario Inc.
(Job
    Success), 2014 ONCA 847

DATE: 20141126

DOCKET: M44010 (C54018)

Juriansz J.A. (In Chambers)

BETWEEN

Golam Mehedi

Plaintiff (Moving Party)

and

2057161 Ontario Inc., c.o.b. as Job Success,
Dale Smith
, M.A. Hameed, and Wendell Lacombe

Defendants (
Responding Party
)

Golam Mehedi, acting in person

Christopher Stanek, duty counsel for the moving party

No one appearing for the responding party

Heard: July 30, 2014

Addendum to the decision in
Mehedi v. 2057161 Ontario
    Inc. (Job Success)
, 2014 ONCA 604, released on August 21, 2014

ADDENDUM

[1]

On November 19, 2014, the court received a further communication from
    Mr. Smith. He sent a letter dated November 12, 2014 addressed to both this
    court and to the Superior Court in Toronto. The letter seeks clarification and
    direction. In the letter Mr. Smith claims he knew nothing of Mr. Mehedis July
    30, 2014 motion. In the letter Mr. Smith explains the delay in writing to the
    court stating that he became ill after his first inquiry to the court in early
    August. He states he has not received service of any documents by Mr. Mehedi
    and asks for advice so that I may receive proper notice.

[2]

The contents of Mr. Smiths letter do not affect the substance of my
    decision, which related to a motion for directions and concluded that Mr.
    Mehedis motion to introduce new evidence should be brought in the Superior
    Court. However, Mr. Smith has provided a new mailing address and email address.
    In accordance with the last paragraph of my decision on the motion, I further
    direct that future service upon Mr. Smith may be made by ordinary mail at both
    the address of service indicated in the endorsement and at the following
    address:

#8 1022, 89 Queens Quay W.

Toronto, ON  M5J 2V3

Email:
dale@to-job-success.net

R.G. Juriansz
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Myers-Gordon v. Martin, 2014 ONCA 767

DATE: 20141104

DOCKET:  C57734

MacFarland, LaForme and Lauwers JJ.A.

BETWEEN

Kelly Myers-Gordon, a mentally incapable person
    by her Litigation Guardian, Cynthia Gordon, Cynthia Gordon, personally, Amy
    Gordon, Christy Gordon, Stephen Myers-Gordon and Stephen Gregory Myers

Plaintiffs

(Respondents)

and

Randy
    Martin, Karen Martin, Christina Beauregard, Cody Van Every and State Farm
    Mutual Automobile Insurance Company

Defendants

(Appellant, State Farm)

Chris G. Paliare and Andrew K. Lokan, for the appellant,
    State Farm

C. Kirk Boggs, for the respondent, Karen Martin

Heard:  October 9, 2014

On appeal from the order of Justice James C. Kent of the
    Superior Court of Justice, dated August 29, 2013.

ENDORSEMENT

[1]

This is an appeal from the order of Kent J. dismissing this action as against
    the respondent Karen Martin.

[2]

In the early hours of September 26, 2009, Randy Martin, while impaired
    by alcohol and driving a 2005 Dodge Durango motor vehicle owned by his mother,
    Karen Martin, struck and killed two young persons and seriously injured two
    others.

[3]

Randy Martin entered a plea of guilty to the following charges:

two counts
    of impaired driving causing death

two counts
    of impaired driving causing bodily harm

one count of
    leaving the scene of an accident causing bodily harm.

[4]

As part of the plea process, Randy Martin agreed to and admitted certain
    facts. The principal admission relevant to this appeal is that he did not have
    his mothers consent to operate the vehicle at the time of the accident. Karen
    Martins evidence was to the same effect and there was no evidence before the
    motion judge to contradict their evidence in this respect.

[5]

The respondent Karen Martin moved for summary judgment dismissing the
    action against her and the motion judge granted her motion.

[6]

The appellant, State Farm, argues two grounds of appeal.  First, it says
    the motion judge applied the wrong test and second, the motion judge ought to
    have ordered the trial of an issue.

[7]

After carefully reviewing all of the evidence including the evidence
    which the appellant argues is indicative of implied consent, the motion judge
    said at paragraph 33 of his reasons:

Nevertheless it is Randys credibility that is more the issue.
    Counsel for the responding parties argue that Randys credibility should be
    assessed by the jury in the context of a trial. They point out that discovery
    transcripts are not a full record.  Randy was, however, examined (and
    cross-examined) at discovery by five experienced counsel and his evidence
    appears consistent.  The test is subjective.  It is what Randy believed at the
    time that is determinative.

[8]

The appellant submits that in describing the test as a purely subjective
    one, the motion judge erred.  The test, it argues, is not a purely subjective
    one but there is an objective element to it as well.

[9]

The appellant refers to the seminal case in this area
Palsky (Next
    friend of) v. Humphrey
, [1964] S.C.R. 580 a decision of the Supreme Court
    of Canada. The driver had been killed in the accident giving rise to the
    action. The trial judge found that the driver had the implied consent of the
    owner to have the vehicle.  The Alberta Court of Appeal allowed the appeal and
    criticized the test the trial judge used in coming to that finding.  The
    Supreme Court of Canada allowed the appeal and restored the decision of the
    trial judge.  At page 3 of the Quicklaw version of the case the court quoted
    the trial judges reasons:

It is my conception of the meaning of that statute that in
    dealing with the implied consent it means that one must approach the problem in
    a somewhat subjective fashion from the point of view of the person who was
    driving.  That is to say whether in all of the circumstances the person, who
    was driving, would have been justified in deeming that he had implied consent
    to drive.

and said in relation to those reasons:

What the learned trial judge was doing was putting to himself
    the question whether all the circumstances were such as would show that the
    person who was driving had the implied consent of the owner and therefore, of
    course, whether he would have been justified in deeming that he had that
    consent.

[10]

And
    as the court noted, the trial judges finding should not be reversed unless the
    inferences which he drew were clearly wrong or he acted on some incorrect
    principle of law.  The court concluded the trial judge had done neither.

[11]

The
    appellant emphasizes the words somewhat subjective fashion and under all the
    circumstances and submits that those words import an objective component into
    the test; accordingly the motion judge erred in law when he described the test
    as subjective.

[12]

We
    do not accept this submission. A review of the motion judges reasons
    demonstrate that he gave careful consideration to all of the evidence before
    him. At paragraph 26 of his reasons he considered what he described as the strongest
    facts supporting a finding of implied consent.  He concluded, however, that in
    the particular circumstances of this case, where both Randy, the driver and his
    mother, the owner, state that Randy did not have her consent to have the
    vehicle on the night of the accident, that Randys credibility was more the
    issue.  There was no evidence before the motion judge that challenged the
    credibility of either Randy or his mother on this point.

[13]

In
    our view, it was open to the motion judge to accept their evidence and find
    that the respondent, Karen Martin had met the onus and satisfied the court that,
    on the evening of the accident, Randy Martin did not have her consent to have
    her automobile.  We would not give effect to this ground of appeal.

[14]

The
    appellant submits, as its second ground of appeal, that the trial judge ought
    to have directed a trial of the issue.  When this motion was heard the Supreme
    Court of Canada had not yet released its judgment in
Hryniak v. Mauldin et
    al
., [2014] S.C.C. 7.  The motion judge relied on this courts judgment in
Combined Air Mechanical Services Inc. v. Flesch
, [2011] ONCA 764  a
    more restrictive test.

[15]

As
    the Supreme Court noted in
Hryniak
at para. 50:

It bears reiterating that the standard for fairness is not
    whether the procedure is as exhaustive as a trial, but whether it gives the judge
    confidence that she can find the necessary facts and apply the relevant legal
    principles so as to resolve the dispute.

[16]

The
    motion judge noted that the case did not involve significant contentious
    facts, and that the moving party relied on the evidence of three parties, all
    of whom had been examined for discovery.  He noted that none of the responding
    parties, of which only State Farm appeals to this court, had added any
    evidence.  In the circumstances, he was satisfied that he could decide the
    issue of implied consent on the motion for summary judgment.

[17]

We
    are not persuaded he made any error in doing so and we would not give effect to
    this ground of appeal.

[18]

As
    a result, the appeal is dismissed.  Costs to the respondent, Karen Martin fixed
    in the sum of $15,000.00 inclusive of disbursements and H.S.T., the figure to
    which counsel have agreed.

J.
    MacFarland J.A.

H.S.
    LaForme J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Predie v. Sprenger, 2014 ONCA 783

DATE: 20141105

DOCKET: C58741

Doherty, Epstein and Tulloch JJ.A.

BETWEEN

Daniel Gary Predie

Applicant (Appellant)

and

Deborah Winifred Sprenger

Respondent (Respondent)

Daniel Predie, acting in person

Deborah Sprenger, acting in person

Heard: October 31, 2014

On appeal from the order of Justice John R. McCarthy of
    the Superior Court of Justice, dated March 27, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We see no reason to interfere with the dismissal of the motion.  The
    motion judge correctly identified the controlling authority.  He found as a
    fact that while compliance was imperfect there was no deliberate or wilful
    violation of the order.  We defer to that finding.  The appeal is dismissed.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (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, 171.1, 172, 172.1,
    172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03,
    280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.M.,
    2014 ONCA 769

DATE: 20141104

DOCKET: C56081

Hoy A.C.J.O., MacFarland and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. M.

Appellant

Carlos Rippell, for the appellant

Philippe G. Cowle, for the respondent

Heard: September 3, 2014

On appeal from the conviction entered on May 24, 2012 and
    the sentence imposed on September 13, 2012 by Justice Kenneth A. Langdon of the
    Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

A.M. appeals his conviction of sexual interference.
[1]
He says the trial judge made several errors in assessing the evidence adduced
    at trial, and as a result, erroneously concluded the Crown had proven its case
    beyond a reasonable doubt. He also submits his trial counsel did not provide
    effective legal assistance and seeks leave to appeal his sentence.

[2]

We conclude the trial judge made reversible errors in his reasons for
    judgment. It is therefore unnecessary to consider either the claim of
    ineffective assistance of counsel or the sentence appeal.

The Background Facts

[3]

The complainant, one of A.M.'s
    siblings, alleged years of sexual abuse in the family home. The abuse began
    when A.M. had the complainant masturbate him until he ejaculated. Thereafter,
    the abuse consisted of acts of oral sex occurring at least once and,
    eventually, two or three times a week. The incidents occurred, for the most
    part, in an upstairs hallway in the family home. From there, A.M. could see
    whether anyone was heading upstairs.

[4]

The complainant told her mother about
    the abuse, but the conduct continued. To protect herself, the complainant had a
    friend, A.B., move into her room in the family home. Nevertheless, according to
    the complainant, the abuse continued, albeit with a reduced frequency.

[5]

The complainant and her mother argued
    about A.B.'s constant presence in the family home. Her mother insisted A.B. had
    to leave. Concerned the abuse would become more frequent if A.B. left, the
    complainant disclosed to her mother, for the second time, what A.M. had been
    doing to her. A.M. was kicked out of the house, but returned the next day. The
    complainant left the family home and moved into A.B.'s home.

[6]

The appellant did not testify or call
    any witnesses at trial.

The Grounds of Appeal

[7]

A.M. alleges the trial judge's reasons reflect
    error in:

i.

the manner of assessing the
    complainant's testimony;

ii.

failing to address the numerous inconsistencies and improbabilities in
    the complainant's evidence; and

iii.

using a prior consistent statement made by the complainant to buttress
    her credibility as a witness and the reliability of her account.

The Governing
    Principles

[8]

Several basic principles inform our decision regarding the trial judge's
    reasons for judgment.

[9]

First, every witness, irrespective of age, is an individual whose
    credibility and evidence should be assessed according to criteria appropriate
    to his or her mental development, understanding, and ability to communicate:
R.
    v. W. (R.)
,

[1992] 2 S.C.R. 122, at p. 134.

[10]

Second,
    no inflexible rules mandate when a witness' evidence should be evaluated
    according to "adult" or "child" standards. Indeed, in its provisions regarding
    testimonial capacity, the
Canada Evidence Act
, R.S.C., 1985, c. C-5,
    eschews any reference to "adult" or "child", preferring the terms "14 years or
    older" and "under 14 years of age'. An inflexible, category-based system would
    resurrect stereotypes as rigid and unyielding as those rejected by the recent
    developments in our approach to children's evidence:
W. (R.)
, at p.
    134.

[11]

Third,
    despite this flexibility, there are some guiding principles. Generally, where
    an adult testifies about events that occurred when she was a child, her
    credibility should be assessed according to the criteria applicable to adult
    witnesses. However, the presence of inconsistencies, especially on peripheral
    matters such as time and location, should be considered in the context of her
    age at the time the events about which she is testifying occurred:
W. (R.)
,
    at p. 134. See also,
R. v. Kendall
, [1962] S.C.R. 469.

[12]

Fourth,
    one of the most valuable means of assessing witness credibility is to examine
    the consistency between what the witness said in the witness box and what she
    has said on other occasions, whether or not under oath:
R. v. G. (M.)
(1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C.
    refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness'
    testimony at trial, or between their trial testimony and statements previously given.
    Inconsistencies may also emerge from things said differently at different
    times, or from omitting to refer to certain events at one time while referring
    to them on other occasions.

[13]

Inconsistencies
    vary in their nature and importance. Some are minor, others are not. Some
    concern material issues, others peripheral subjects. Where an inconsistency
    involves something material about which an honest witness is unlikely to be
    mistaken, the inconsistency may demonstrate a carelessness with the truth about
    which the trier of fact should be concerned:
G. (M.)
, at p. 354.

[14]

Fifth,
    A trial judge giving reasons for judgment is neither under the obligation to
    review and resolve every inconsistency in a witness' evidence, nor respond to
    every argument advanced by counsel:
R. v
.
M. (R.E.)
, 2008 SCC
    51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and
    explain how she or he has resolved major inconsistencies in the evidence of
    material witnesses:
G. (M.)
, at p. 356;
R. v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788, at para. 31.

[15]

Sixth,
    prior consistent statements of a witness are not admissible for their truth:
R.
    v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 7. Mere repetition
    of a story on a prior occasion does not make the in-court description of the
    events any more credible or reliable:
R. v. Curto
, 2008 ONCA 161, 230
    C.C.C. (3d) 145, at paras. 32, 35;
R. v. Ay
(1994), 93 C.C.C. (3d) 456
    (B.C.C.A.), at p. 471.

[16]

Seventh,
    in reviewing reasons for sufficiency, we must ask ourselves whether the
    reasons, taken as a whole and considered with,

•

the evidentiary record;

•

the submissions of counsel; and

•

the live issues at trial

reveal the basis for the verdict reached:
M.
    (R.E.)
, at para. 55;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R.
    639, at paras. 12, 15.

[17]

Eighth,
    where a case turns largely on determinations of credibility, the sufficiency of
    reasons must be considered in light of the deference generally afforded to
    trial judges on credibility findings. It is rare for deficiencies in a trial
    judge's credibility analysis, as expressed in the reasons for judgment, to
    warrant appellate intervention:
Vuradin
, at para. 11;
Dinardo
,
    at para. 26.

[18]

Nevertheless,
    the failure of a trial judge to sufficiently articulate how credibility and
    reliability concerns are resolved may constitute reversible error:
Vuradin
,
    at para. 11;
Dinardo
, at para. 26;
R. v. Braich
, 2002 SCC 27,
    [2002] 1 S.C.R. 903, at para. 23. After all, an accused is entitled to know why
    the trial judge had no reasonable doubt about his or her guilt:
R. v.
    Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21.

[19]

Similarly,
    we take it as self-evident that a legal error made in the assessment of
    credibility may displace the deference usually afforded to a trial judge's
    credibility assessment and may require appellate intervention.

[20]

Finally,
    when evaluating a trial judge's credibility analysis, there is no principled
    reason to distinguish between cases involving oath against oath from those in
    which no competing oath has been offered.

The Principles Applied

[21]

In
    our view, the reasons of the trial judge, read as a whole and in the context of
    the issues raised and evidence given at trial, reveal legal error in his
    assessment of the evidence. Although we acknowledge that deficiencies in a
    trial judge's credibility analysis rarely merit appellate intervention (
Vuradin
,
    at para. 11;
Dinardo
, at para. 26), in this case, the trial judge's
    reasons are fatally flawed. As a result, the conviction cannot stand.

[22]

In
    this case, as in many, the ultimate result turned largely on the trial judge's
    assessment of the credibility of the witnesses and the reliability of their
    evidence. The Crown's case against A.M. stood or fell on the basis of the
    complainant's evidence. However, her credibility was impeached and the reliability
    of her evidence challenged.

[23]

Accordingly,
    it was essential to a fair trial that the trial judge apply the proper legal
    principles to evaluate her testimony, articulate how the credibility concerns
    were resolved, and explain why her testimony left him with no reasonable doubt
    of A.M.'s guilt:
Gagnon
, at para. 21;
Vuradin
, at para. 11;
Dinardo
,
    at para. 26;
Braich
, at para. 23.

[24]

In
    our view, the trial judge's credibility analysis is marred by two principal
    legal errors.

[25]

First,
    the trial judge assessed the complainant's evidence as if she were a "child"
    witness. She was not. The complainant was 19 years old when she testified at
    trial about abuse that extended over a decade, until about her 17
th
birthday. Her testimony was that of an adult regarding events that first
    occurred when she was a child and continued well into her teenage years. The
    trial judge was obliged to assess her credibility according to the criteria
    applicable to adult witnesses, not the somewhat lessened standard of scrutiny
    associated with child witnesses:
W. (R.)
, at p. 134;
R. v. Gostick
(1999), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 12-13;
R. v. S. (D.D.)
,
    2006 NSCA 34, 207 C.C.C. (3d) 319, at para. 54. While the trial judge was
    entitled to apply a less exacting standard to peripheral matters that occurred
    during the complainant's childhood, he erred in assessing the complainant's
    credibility as if she were testifying as a "child":
W. (R.)
, at p.
    134-135.

[26]

Second,
    the trial judge characterized an admitted "exaggeration" by the complainant
    under oath at the preliminary inquiry as "hyperbole, a common form of literary
    emphasis" and thus "a badge of credibility". The admitted exaggeration was a
    prior inconsistent statement about a material issue given under oath. It is
    difficult to see how a prior statement under oath inconsistent with sworn
    testimony at trial, especially regarding a material issue, could serve as a
    credibility enhancer. At best, the exaggeration reflects a carelessness for the
    truth when testifying under oath. Left unexplained, this would tend to impeach
    the witness' credibility rather than enhance it:
R. v. G. (M.)
, at p.
    354.

Conclusion

[27]

For
    these reasons, the conviction cannot stand. In a case that turned on findings
    of credibility and an assessment of reliability, the trial judge's credibility
    analysis reflected fundamental legal errors and ultimately failed to
    sufficiently explain how the credibility and reliability concerns were
    resolved. The appeal is allowed, the conviction and conditional stay set aside,
    and a new trial directed on the counts of sexual assault and sexual
    interference.

"Alexandra Hoy
    A.C.J.O."

"J. MacFarland J.A."

"David Watt J.A."

[1]

A conviction for sexual assault was stayed on the basis of
Kienapple
    v. R.
, [1978] 1 S.C.R. 729.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ayati-Ghaffari, 2014 ONCA 812

DATE: 20141119

DOCKET: C57575

Feldman, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fardin Ayati-Ghaffari

Appellant

Fardin Ayati-Ghaffari, acting in person

Ian Smith, appearing as duty counsel

Thomas C. Lemon, for the respondent

Heard: October 7, 2014

On appeal from the conviction entered on April 11, 2013
    by Justice
Julie A. Thorburn
of the Superior Court of
    Justice, sitting with a jury.

ENDORSEMENT

[1]

On October 7, 2014, the appeal from conviction was dismissed for oral
    reasons.

[2]

During submissions, the appellant raised for the first time, an appeal
    from sentence.  The Crown did not consent to the hearing of the sentence appeal
    but agreed to respond if called on.  He was called on and responded.  Our
    decision with respect to the appeal from sentence was reserved.  These are our
    reasons.

[3]

The sentence appeal relates to the credit the appellant received for
    pre-trial custody.  The sentencing judge found that he was entitled to a 1.5:1
    credit for some of the time served.  She referred to the poor conditions in the
    facility, the fact that programmes were unavailable and that the time spent will
    not be credited toward parole eligibility.

[4]

The appellant, relying on
R. v. Summers
,
2014 SCC 26, [2014] 1 S.C.R. 575, submits
    that the appellant should have a credit of 1.5 days for each day in pre-trial custody.
    This would provide him with a credit of an additional 231 days.

[5]

The sentencing judges reasons make it clear that, if she had the
    benefit of
Summers
,
she would have awarded a credit of 1.5 days
    for every day served.  As stated in
Summers
,
the loss of access
    to parole and early release, in itself is generally sufficient to justify
    enhanced credit.  The sentencing judge referred to this and to the harsh
    conditions.

[6]

Under these circumstances, we agree with the appellant that the
    principles of
Summers

apply.  Enhanced credit is the norm not the
    exception.

[7]

Leave to appeal the sentence is granted and the sentence is varied to
    allow 1:5 days credit for all the time spent in pre-trial custody.

K.
    Feldman J.A.

G.J.
    Epstein J.A.

M.L.
    Benotto 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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beaver, 2014 ONCA 789

DATE: 20141106

DOCKET: C56749

Gillese, MacFarland and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roland Beaver

Appellant

Apple Newton-Smith, for the appellant

Melissa Adams, for the respondent

Heard: November 5, 2014

On appeal from the conviction entered on November 21,
    2012 and the sentence imposed on January 8, 2013 by Justice Peter T. Bishop of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant abandoned his sentence appeal at the outset of proceedings
    today.

[2]

The essence of the conviction appeal is that the trial judge
    misapprehended evidence in relation to the complainants testimony about the
    timing of events and whether she might have blacked out during the events in
    question.  This misapprehension, it was argued, affected the trial judges
    determination of credibility.

[3]

We do not agree.

[4]

The trial judge was fully alive to the timing issues and the
    complainants testimony on whether she might have blacked out during the events
    in question.  He gave thorough and considered reasons for finding the
    complainant credible.  There is no basis for appellate intervention.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barham, 2014 ONCA 797

DATE: 20141113

DOCKET: C59273

Weiler, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Barham

Appellant

Richard A. Fedorowicz, for the appellant

Chris de Sa, for the respondent

Heard: November 7, 2014

On appeal from the sentence imposed on May 6, 2014, by
    Justice George Beatty of the Ontario Court of Justice.

ENDORSEMENT

[1]

Wayne Barham (the appellant) was arrested and charged on January 17,
    2014, with the offence of possession of hydromorphone for the purpose of
    trafficking.  He was also charged with causing a disturbance and breach of
    probation. At the time of arrest, he also had outstanding charges for
    possession of cocaine (from November 27, 2013) and possession of stolen
    property (from December 5, 2013), as well as an outstanding charge for breach
    of probation.

[2]

The appellant pleaded guilty to the six discrete offences and received a
    global custodial sentence of 14 months and 28 days, less 165 days of pretrial
    custody (110 days credited at 1.5 to 1).

[3]

The sentence breakdown for the various convictions was:

·

Possession of hydromorphone for the purpose of trafficking: 12
    months less 5.5 months of pretrial custody

·

Failure to comply with probation: 14 days concurrent

·

Cause disturbance: 14 days concurrent

·

Possession of cocaine: 2 months consecutive

·

Possession of property under $5000: 14 days consecutive

·

Failure to comply with probation: 14 days consecutive

[4]

The appellant submits that the sentencing judge erred by:

1.

failing to give
    weight to mitigating factors and overemphasizing other factors; and

2.

imposing a harsh
    and excessive sentence for the offence of possession of hydromorphone for the
    purpose of trafficking.

[5]

We do not agree that the sentencing judge made either of the alleged
    errors.

[6]

On the first ground of appeal, the appellant points to mitigating
    factors such as the ten-year gap in his criminal record, his mental health problems
    and his cocaine addiction.

[7]

The appellant is a habitual offender, with a criminal record that begins
    in 1989 and includes convictions for violent offences and drug offences.
    Although there is a ten-year gap in the appellants criminal record between
    1995 and 2006, his record since 2006 has been consistent with numerous
    convictions in each and every year from then until the time of sentencing.
    Consequently, the sentencing judge made no error in giving effect to the
    appellants significant record.

[8]

While the appellant points to his schizophrenia and cocaine addiction as
    mitigating factors, nothing in the record indicates a link between those
    conditions and the commission of the offences in question.  In order for mental
    health issues and addiction to be considered as mitigating factors, there must
    be some connection between those matters and the criminal conduct at issue.

[9]

As for the second ground of appeal, contrary to the appellants
    contention, the 12-month sentence for the hydromorphone offence is not harsh
    and excessive.  Hydromorphone is a synthetic heroin substitute and is as
    serious a drug as heroin.  Trafficking in heroin, even small amounts, will
    attract penitentiary time:
R. v. Turner
, [2003] O.J. No. 685 (C.A.),
    at paras. 2-3.

[10]

Accordingly,
    the appeal is dismissed.

K.M. Weiler J.A.

E.E. Gillese J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Clarke, 2014 ONCA 777

DATE: 20141106

DOCKET: C56074

Cronk, LaForme and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Clarke

Appellant

Lindsay Daviau, for the appellant

Amy Alyea, for the respondent

Heard:  October 22, 2014

On appeal from the convictions entered on October 25,
    2010 and the sentence imposed on June 15, 2012 by Justice Michael R. Dambrot of
    the Superior Court of Justice, sitting with a jury, with reasons for sentence
    reported at, 2012 ONSC 2776.

BY THE COURT:

[1]

The appellant was convicted of manslaughter, unlawful
    confinement, robbery, and use of an imitation firearm. He and his co-accused,
    Nevin Joseph, tied up the owner of a flower shop they were in the process of
    robbing and covered her face in duct tape, which resulted in her death by
    suffocation. The appellant appeals against conviction on the basis that the
    trial judge erred in refusing to grant his
Corbett
application:
R. v. Corbett,

[1988] 1
    S.C.R. 670
. He also seeks leave to
    appeal his sentence and, if leave is granted, appeals from sentence, as
    discussed below.

The Conviction Appeal

[2]

The conviction appeal focuses on the trial judges
Corbett
ruling.

[3]

Mr. Joseph was called as a Crown witness. He testified that he
    and the appellant committed a series of armed robberies in February 2008. The
    fourth robbery resulted in the victims death. Mr. Joseph placed direct
    responsibility for taping the victims mouth and nose on the appellant. The
    appellant denied any involvement in the events that led to the charges.

[4]

The appellant has a lengthy criminal record, which the trial judge
    laid out in his ruling. The appellant argues that the trial judge erred by
    refusing to grant his
Corbett
application concerning his prior robbery
    convictions. He says: at a minimum, the trial judge should have removed the
    convictions that are similar to the charges for which [the appellant was] being
    tried, particularly his prior convictions for robbery.

[5]

A
Corbett
ruling is discretionary, and an appellate
    court ought not to intervene absent error in principle, a misapprehension of
    material facts, or an exercise of the discretion which, in the totality of the
    circumstances, must be regarded as unreasonable:
R. v. Mayers
, 2014
    ONCA 474, at para.3. There is no basis for appellate intervention in this case.

[6]

The trial judge recognized his obligation to balance the
    probative value of the record against the prejudicial effect of its admission
    in order to ensure a fair trial. He noted, correctly, that the record contained
    a number of offences involving dishonesty that would be highly probative on
    the issue of the likely truthfulness of the accused.

[7]

In the credibility contest between Mr. Joseph and the appellant,
    the trial judge noted that Mr. Josephs credibility had been vigorously
    challenged on the basis of his involvement in the string of robberies leading
    up to the charges in the indictment.

[8]

The trial judge was troubled about admitting evidence of the
    appellants past robbery convictions, echoing the Supreme Court in
Corbett
by observing that: I am naturally most chary of admitting evidence of similar
    crimes. He considered editing the robbery convictions out of the record, but
    concluded that doing so would significantly minimize both the seriousness and
    the persistence of the record, important considerations when assessing
    credibility. He added: to omit the robberies in this case would
    overwhelmingly reduce the seriousness of the record, and create an artificial
    gap in it, from 1992 to 1999, followed by a few minor convictions. The
    remaining record, after omitting the robberies, would have had the effect of
    deleting any indication of crimes of violence apart from the appellants
    youthful assault conviction in 1991.

[9]

The trial judges overriding consideration was that, without the
    inclusion of evidence of the appellants prior robberies and associated
    convictions, the jury would have a false basis to consider the competing versions
    of the events [in] issue if they are left to believe that the accused, unlike
    Mr. Joseph, had an unblemished past. He pointed out that: without involvement
    in the robbery, there is no basis to conclude that the accused was involved in
    the murder. This favoured the introduction of the appellants whole record.

[10]

The appellant takes particular aim at two lines in the ruling in
    which the trial judge states: I acknowledge that counsel for the accused did
    not broaden the attack on Mr. Josephs credibility to an attack on his
    character in general. In this case, I see little significance to this
    distinction. We read this not as an erroneous basis for admitting the robbery
    record, but simply as an acknowledgement that vigorous cross-examination on
    robbery by its very nature implicates the character of the witness, not only
    his credibility. In our view the trial judge was fully alive to the distinction
    between credibility and character.

[11]

The trial judge concluded that the balance between prejudice and
    probative value obliged him to admit the robbery convictions, but he took steps
    to tailor the ruling and to blunt its impact from the viewpoint of similar act
    evidence, by excluding the appellants firearm, weapons and disguise
    convictions associated with his 1994 robbery convictions. In his view, this
    would minimize the extent of the similarities between those offences and the
    one in the indictment, which might otherwise take on the trappings of near
    signature. He also excluded the weapons offences from the appellants 1991
    conviction. We see no reversible error in this approach or in the trial judges
    reasoning in this regard. Indeed, we agree with it.

[12]

The trial judge was alive to the need to caution the jury about
    propensity reasoning. He gave a
Vetrovec
warning in relation to Mr.
    Josephs evidence and a strong mid-trial warning to the jury about the use of
    the appellants criminal record, which he repeated in his charge. See
R. v.
    Vetrovec
, [1982] S.C.J No. 40. The appellant does not complain about the
    content of these warnings.

[13]

We view the trial judges discretionary ruling as an
    unobjectionable and careful application of the
Corbett
principles. The
    conviction appeal, therefore, is dismissed.

The Sentence Appeal

[14]

The trial judge concluded that the appellant met both the
    dangerous offender and the long-term offender criteria.  He found the appellant
    to be a long-term offender and imposed a ten year period of supervision in the
    community.  He also sentenced him to a global sentence of 18 years
    imprisonment, less eight years to reflect approximately four years of
    pre-sentence custody.

[15]

The appellant seeks leave to appeal his sentence arguing that the
    trial judge erred by attributing a state of mind to him  recklessness as to
    the likelihood of death  that was at odds with the jurys verdict of
    manslaughter.  He also submits that the sentence of 18 years imprisonment was
    outside the typical range for manslaughter.  He seeks a reduction of the global
    sentence to 12 years imprisonment, less eight years credit for pre-sentence
    custody.  He does not appeal the long-term offender finding.

(i)

The
mens rea
finding

[16]

The appellant was charged with first degree murder but was found
    guilty of manslaughter by the jury. The principal submission of the appellant
    is that, by acquitting the appellant of the murder charge, the jury must have
    accepted one of two facts: (i) the appellant did not bind the victim; or (ii) that
    he bound her but left a breath hole.  He argues that, in fashioning sentence,
    the trial judge erred in principle by relying on factual findings that the jury
    must have rejected.

[17]

We reject this submission.

[18]

The specific language complained of is found in para. 59 of the
    trial judges reasons:

The offender would have it that the verdict precludes the
    attribution of any alternative state of mind to him that aggravates the
    commission of the offence. I do not agree. The circumstances of this case lead
    me
inexorably to the view that while the offender did not
    know that what he was doing was likely to cause death, he did know that what he
    was doing to [the victim] put her at risk of death
, but he did not care.
    He was utterly indifferent to the consequences of his acts. No one of sound
    mind who taped the face of a victim as [the appellant] did, and immobilized her
    in the way that he did, making her utterly incapable of freeing herself, could
    have known less. [Emphasis added]

[19]

In our view, the trial judge was entitled to make this finding
    and did not err in citing as an aggravating factor the appellants knowledge of
    the risk of death.

[20]

There are two provisions of the
Criminal Code
that are
    important: s. 724(2)(a) makes it clear that the trial judge must accept as
    proven all facts that are essential to the jurys verdict of guilty; and  s.
    724(3)(e) stipulates that while a trial judge is entitled to find relevant
    facts for the purposes of sentencing, the Crown has the burden of proving aggravating
    facts beyond a reasonable doubt.

[21]

Here, the jurys acquittal of first degree murder implicitly
    demonstrated that it was not satisfied beyond a reasonable doubt that the
    appellant either intended to kill the victim, or that he knew that what he was
    doing was
likely
to cause death.  It was, therefore, not open to the
    trial judge, as he noted, to find that the appellant intended to cause the
    victims death, or knew that what he was doing was
likely
to cause
    death.

[22]

However, this is not what the trial judge concluded.  Instead, he
    found that the appellant knew that what he was doing to the victim
put her
    at risk of death
.  This finding is not inconsistent with the jurys
    acquittal on the first degree murder charge but it is consistent with its
    manslaughter verdict.

[23]

The leading case on the
mens rea
for manslaughter is
R.
    v. Creighton
(1993), 83 C.C.C. (3d) 346 (S.C.C.), where, at para. 12, the
    Supreme Court wrote:

[T]he test for the mens rea for unlawful act manslaughter in
    Canada, as in the United Kingdom, is (in addition to the mens rea of the underlying
    offence) objective foreseeability of the risk of bodily harm which is neither
    trivial nor transitory, in the context of a dangerous act.
Foreseeability of the risk of death is not required
[emphasis added].

[24]

Although foreseeability of the risk of death is not required for
    manslaughter, the Supreme Courts reasoning in
Creighton
does not preclude
    such a mental state for a manslaughter conviction.  In fact, there have been
    cases in which a sentencing judge considered the foreseeability of the risk of death
    in imposing a harsher sentence for manslaughter: see
R. v. Druken
,
    2005 NLTD 209, 252 Nfld. & P.E.I.R. 314, at paras. 113-119. Thus, while
    foreseeability of the risk of death is not required for manslaughter, that
    mental state is not precluded by a manslaughter conviction.

[25]

Accordingly, the trial judge in this case was entitled to make the
    factual finding  that the appellant knew that what he was doing to the victim
    put her at risk of death  to assist in the determination of an appropriate
    sentence.  Nor did he err in treating this factor as an aggravating
    circumstance. And, although he did not employ the language of beyond a
    reasonable doubt, his use of the term inexorably satisfies us that he was convinced
    to that standard of proof.

[26]

This ground of appeal is dismissed.

(ii)

The
    fitness of sentence

[27]

The appellant submits that the sentence imposed by the trial
    judge was outside the typical range for manslaughter, which he says is seven to
    twelve years.  Given this, he asks this court to reduce the global sentence to
    four years  12 years imprisonment, less eight years credit for pre-sentence
    custody.  We do not agree. In the circumstances of this case, the sentence is
    fit.

[28]

The Crown relies on this courts decision in
R. v. Devaney
,
    2006 CanLII 33666 as authority for the proposition that, although a range for
aggravated manslaughter
can be identified as 8-12 years
    ... a sentence above that range is not manifestly unfit (emphasis added).  We
    are reminded that even life sentences may be imposed in particularly serious
    cases.  In this context, we think it important to make two preliminary comments.

[29]

First, whether the trial judge described the appellants offence
    as aggravated manslaughter is of little assistance.  As this court stated at
    para. 33 in
Devaney
, labeling a subcategory of manslaughter as
    aggravated manslaughter for the purpose of sentencing is inappropriate.  As
    Feldman J.A. viewed it:

... it is not useful to attach a label to a subcategory of the
    offence, then to try to pigeonhole the facts of any case into the label.  Adding
    a descriptive label to a set of facts within the defined offence adds a level
    of complexity to the sentencing exercise that is both unnecessary and
    potentially diverting for the court and could lead to errors.

[30]

Second, the correct approach in each case is to impose a sentence
    that fits the facts and circumstances of the particular case and the particular
    offender.  Similar sentences for similar offences and offenders should be the
    objective, not naming subcategories of manslaughter for the purpose of
    comparing cases and imposing similar sentences:
Devaney
, at para. 34.

[31]

Here the trial judge referenced
Devaney
and its stern objection
    to naming subcategories of manslaughter and was alive to this issue.  He recognized
    that there appeared to be a sentencing range in more serious manslaughter cases
    of eight to twelve years imprisonment.  And, he was aware that for any case,
    there is no one correct, fit sentence.  In the end, the approach the trial
    judge ultimately took in sentencing the appellant was consistent with that
    mandated by
Devaney
.

[32]

A trial judge is entitled to deviate from the range where there
    are facts or circumstances that distinguish the situation significantly from those
    cases where sentences were imposed within the range.  This may arise from the
    nature of the victim, the nature of the crime itself, or the history or current
    circumstances of the offender.  The trial judge is entitled to impose a
    sentence that adequately reflects the significance of those facts. This may, in
    the right case, result in a sentence outside the normal range.

[33]

The experienced trial judge in this case provided thoughtful and
    thorough reasons for sentencing this offender for these offences.  He had
    absolutely no doubt that the appellant did the acts that caused the victims death.
    He carefully reviewed the evidence and concluded that the appellant taped and
    tied the victim, and placed her in a position and place that resulted in her
    death by suffocation.

[34]

Further, the trial judge had the benefit of and relied on the
    evidence of risk provided by the psychiatric experts on the dangerous
    offender/long term offender application. He carefully considered the details of
    the appellants background and extensive criminal record.  He properly took
    into account the many callous, aggravating features of the offences, including
    the appellants state of mind and the horrifying and intimidating treatment of
    the victim throughout the masked armed robbery. And, he took into account the
    ongoing planned crime spree, which included three previous similar act
    robberies, the recruitment of the younger co-accused and the impact of the
    crimes on all the direct and indirect victims.

[35]

The trial judge described the offence as one of extreme gravity,
    and the offender as one who presents a high level of moral culpability.  Although
    he viewed this as a case that did not warrant a life sentence, he found that it
    was deserving of a sentence well in excess of 12 years in order to satisfy
    the principles of denunciation and deterrence and to promote a sense of
    responsibility in [the appellant] for the harm done to victims and an
    acknowledgment of it (para. 163).

[36]

This courts role, which is to decide if the sentence appealed
    from is demonstrably unfit, was succinctly captured by Feldman J.A. at para. 15
    in
Devaney
.  Her helpful comments guide this court in performing that
    role in this case:

One factor for the reviewing court to consider is whether the
    sentence imposed was outside the normal range, and therefore was demonstrably
    unfit because of its inconsistency with sentences imposed in similar
    circumstances.  But where the trial judge has given reasons that point to
    specifics of the victim, the crime, or the offender that warrant a sentence
    outside the normal range, it is unlikely that such a sentence will be found to
    be demonstrably unfit for that reason.

[37]

In this case, the trial judge, in deciding the fit and proper
    sentence to be imposed on the appellant, gave extensive and compelling reasons
    in which he examines the blameworthiness of the appellant, his extensive
    criminal record, the brutality of his crimes and the impact of those crimes on
    others. Although the sentence he imposed is outside the normal range for other
    particularly serious cases of manslaughter, it is not demonstrably unfit.
    There is no reason for this court to interfere with the significant deference
    accorded to the trial judge in imposing the sentence he did in this case.

[38]

Accordingly, while the appellant is granted leave to appeal his
    sentence, the sentence appeal is also dismissed.

Released: HSL November 6, 2014

E. A.
    Cronk J.A.

H.S.
    LaForme J.A.

"P.
    Lauwers J.A."


W A R N I N G

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. 539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

539(1)
Prior to the commencement of the taking of evidence at a
    preliminary inquiry, the justice holding the inquiry

(a)

may, if
    application therefor is made by the prosecutor, and

(b)

shall, if application
    therefor is made by any of the accused, make an order directing that the
    evidence taken at the inquiry shall not be published in any document or
    broadcast or transmitted in any way before such time as, in respect of each of
    the accused,

(c)

he or she
    is discharged; or

(d)

if he or
    she is ordered to stand trial, the trial is ended.

(2)

Where
    an accused is not represented by counsel at a preliminary inquiry, the justice
    holding the inquiry shall, prior to the commencement of the taking of evidence
    at the inquiry, inform the accused of his right to make application under
    subsection (1).

(3)

Everyone
    who fails to comply with an order made pursuant to subsection (1) is guilty of
    an offence punishable on summary conviction.

[
Repealed
,
    2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.),
    s. 97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dastani, 2014 ONCA 761

DATE: 20141103

DOCKET: C56755

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

BETWEEN

Her Majesty the Queen

Respondent

and

Afshin Dastani

Appellant

Alan D. Gold and Melanie Webb, for the appellant

Jeanette Gevikoglu, for the respondent

Heard:  October 24, 2014

On appeal from the sentence imposed on March 13, 2013 by
    Justice Peter Bourque of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant operated a large-scale, ephedrine exportation business,
    wherein he repackaged, relabelled and shipped ephedrine products. He pled
    guilty to eight separate offences related to this operation, including:
    possession for the purpose of exporting ephedrine; exporting ephedrine; two
    counts of possession of proceeds of crime; laundering proceeds of crime; and
    fraud against the Canadian government over $5,000, in relation to his evasion
    of at least $500,000 in income taxes.

[2]

The appellant was sentenced to two years less a day imprisonment,
    followed by 2 years probation.

[3]

The appellant appeals his sentence, submitting that the sentencing judge
    erred in ordering a custodial rather than a conditional sentence. He argues
    that the sentencing judge ignored or misapprehended the evidence before him, overemphasized
    general deterrence, and erred in his analysis of the availability of a
    conditional sentence.

[4]

We disagree. Considerable deference is owed to a sentencing decision. An
    appellate court will only intervene if the sentence reflects an error in
    principle, demonstrates a failure to consider or give appropriate weight to a
    relevant factor, or is demonstrably unfit.

[5]

The appellant submits that the sentencing judge misapprehended the
    evidence when he concluded that the appellant was a principal driving mind for
    all offences. He argues that, although he may have been a principal behind the
    ephedrine exportation business, the laundering of the proceeds of crime was
    undertaken by his lawyer. The appellant asserts, therefore, that he was not a
    principal in relation to that offence.

[6]

We see no error in the sentencing judges finding in this regard. The
    agreed statement of facts establishes that the appellant specifically sought
    out the lawyer for assistance in laundering the proceeds of crime and that he
    provided funds to the lawyer for that purpose.

[7]

The appellant further submits that because ephedrine is not an illegal
    drug but a controlled substance, this case is different from typical cases
    involving a large-scale drug operation. Given these unique circumstances, according
    to the appellant, the need for general deterrence is eliminated or
    substantially reduced.

[8]

We would not give effect to this submission. This was a large scale,
    complicated fraud involving the illegal sale and distribution of a controlled
    substance, which included a significant tax fraud. These are not particularly
    unique circumstances and we see no error in the sentencing judges conclusion
    that general deterrence was a significant factor on sentence.

[9]

Although the sentencing judge might have erred in the sequencing of his
    analysis of the availability of a conditional sentence (i.e., in considering
    the availability of a conditional sentence before determining and imposing the
    appropriate sentence), the sentence imposed was supported by the evidence. It
    is clear from the reasons for sentence, that the sentencing judge reviewed and
    considered the mitigating factors raised by counsel for the appellant.  He
    balanced those factors against the aggravating factors and concluded that this
    was not an appropriate case for a conditional sentence. We see no basis for
    appellate interference with that conclusion.

[10]

We
    are also of the view that the sentence was fit in the circumstances. As this
    court recently reiterated in
R. v. Gour
, 2014 ONCA 51, custodial
    sentences are the norm in cases of large-scale fraud. This was a sophisticated
    enterprise, generating large sums, and was carried out over an extended period.
    It is also significant that after an initial police search, the appellant
    re-arranged his affairs to continue his operations. The sentence was well
    within the range of sentences for large-scale government frauds. Indeed, the
    sentence imposed might be considered lenient, notwithstanding the significant
    mitigating factors at play in this case.  The fresh evidence filed on appeal
    does not alter this conclusion.

[11]

Accordingly,
    while leave to appeal sentence is granted, the sentence appeal is dismissed. Given
    the appellants current employment, we are recommending him for the temporary
    absence program.

G.R.
    Strathy C.J.O.

E.A.
    Cronk J.A.

C.
    William Hourigan J.A.