COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Mathurin, 2015 ONCA 581

DATE: 20150826

DOCKET: C57793

Weiler, Feldman and Benotto JJ.A.

BETWEEN

The Attorney General of Canada (on behalf of the
    United States of America)

Respondent

and

Yvette Mathurin

Appellant

Boris Bytensky, for the appellant

Richard Kramer, for the respondent

Heard: December 12, 2014

On appeal from the orders of Justice Michael G. Quigley
    of the Superior Court of Justice, dated April 30, 2013 and September 23, 2013,
    with reasons reported at 2013 ONSC 2575 and 2013 ONSC 5810

Benotto J.A.:

A.

Overview

[1]

The United States of America requested the extradition of the appellant
    in connection with fraud-related charges. The investigation leading to her
    arrest involved law enforcement officials from Canada and the United States.
    Following a request for assistance by U.S. investigators, Canadian authorities
    obtained a production order for the subscriber information associated with an
    impugned IP address, pursuant to s. 487.012 of the
Criminal Code
,
    R.S.C. 1985, c. C-46. This information corroborated the appellants involvement
    in the fraud scheme. Investigators subsequently obtained and executed a warrant
    to search the appellants residence pursuant to s. 487 of the
Criminal Code
.

[2]

Following the execution of the warrant, there was no report to a justice
    as required by s. 489.1 of the
Criminal Code.
The information
    obtained through these orders was shared with American law enforcement
    officials. The information was then relied upon by the U.S. in the Record of
    Case (ROC) in support of the extradition request.

[3]

The appellant alleged that the actions of the Canadian authorities
    breached her rights under ss. 7, 8 and 10(b) of the
Canadian Charter of
    Rights and Freedoms
. She sought disclosure of the evidence gathered in
    Canada in order to pursue the
Charter
claims. The extradition judge
    dismissed her disclosure application on the basis that there was no air of
    reality to the allegations. He went on to find that there was sufficient
    evidence to order the appellants committal for extradition.

[4]

The appellant argues that the extradition judge erred by refusing to
    order disclosure and by issuing the order for committal. The respondent submits
    that the judge correctly exercised his discretion to refuse to grant disclosure
    and that there was sufficient evidence to order the committal.

[5]

After this appeal was argued, the case of
R. v. Garcia-Machado
was heard by this court. One of the issues before the court was whether the
    failure to file a timely report pursuant to section 489.1(1) constituted a
    breach of s. 8 of the
Charter.
The courts decision was released on
    August 7, 2015 and reported at 2015 ONCA 569. The court held that the failure
    to file a timely report breached s. 8 of the
Charter
, however, following a section 24(2) analysis, the
    court held that the evidence obtained should not be excluded
.
For the reasons that follow, I would not interfere with the extradition judges
    discretionary decision not to order disclosure, save in one respect:  the
    effect of the failure to report mandated by s. 489.1. As will be discussed, I
    would refer this issue back to the extradition judge.

B.

The Investigation

[6]

In 2008, the United States Postal Inspection Service (USPIS) began
    investigating a $32-million fraudulent debt-collection scheme involving
    counterfeit cheques, many of which originated from the Toronto area.
    Individuals would pose as potential clients seeking a law firms assistance
    with the collection of a debt. Once retained, the alleged debtor would contact
    the law firm and mail a counterfeit cheque in purported satisfaction of the
    debt. The law firm would then telephone a person posing as a bank employee, who
    would verify the validity of the cheque. The law firm would deposit the cheque
    into its trust account and wire the funds to the initial client. The cheque
    would be returned as counterfeit, resulting in a loss to the law firm and the
    bank.

[7]

It is alleged that the appellant posed as the bank employee who
    authenticated the fraudulent cheques over the phone. Investigators linked the
    appellant to the scam through the email account yvette.mathurin@gmail.com,
    through which someone had engaged in correspondence with the main email account
    used to perpetrate the fraud, dmsecurities2000@yahoo.com. American
    investigators determined that both email accounts were accessed from Canada
    through IP addresses that belonged to Rogers Communications Inc.

[8]

In April 2010, USPIS asked Toronto Police Services (TPS) for
    investigative assistance through the Toronto Strategic Partnership (TSP). The
    TSP is a voluntary, informal partnership of various police forces and
    government agencies, including the USPIS and TPS. It is tasked with
    investigating cross-border fraud originating out of Toronto. TPS commenced a
    parallel investigation into the fraud.

[9]

At the request of American investigators, Canadian police obtained a
    production order pursuant to s. 487.012 of the
Criminal Code
to
    identify the account holder of the IP addresses that were used to access the
    specified email accounts. Rogers Communications Inc. confirmed that the IP
    address associated with use of the email account yvette.mathurin@gmail.com was
    assigned to the appellant.

[10]

Canadian
    police shared this information with the USPIS. Further investigation by
    American authorities confirmed that the correspondence involving the
    appellants email account was linked to the fraud. Canadian investigators
    conducted surveillance of the appellant on April 21 and 26, 2010, which
    confirmed that she lived at the specified address provided by Rogers
    Communication Inc.

[11]

In
    September 2010, Canadian police used this information to obtain a warrant for
    the search of the appellants residence under s. 487 of the
Criminal Code
,
    resulting in the seizure of the appellants computers, cellphones and
    documents. Certain elements of the information obtained through this search
    formed part of the ROC in the form of anticipated testimony by Canadian police.

[12]

Section
    489.1 of the
Criminal Code
requires that a peace officer who seeks to
    detain any item seized under a warrant report to the issuing justice, and s.
    487.012 provides that the same reporting requirement applies in connection with
    a production order. No such reports were ever filed in relation to the
    materials seized pursuant to the production order or the search warrant.

[13]

Canadian
    investigators interviewed the appellant in October 2010. She attended the
    interview on her own free will. She was advised of her
Charter
rights
    to obtain and instruct counsel, as well as the availability of Legal Aid, but
    she declined to contact counsel.

[14]

On
    May 16, 2012, the appellant was arrested under the
Extradition Act
,
    S.C. 1999, c. 18. Information from the interview was initially included in the
    ROC, but was later disavowed. Further, the Attorney General assured the
    extradition judge that none of the real or documentary evidence produced or
    seized as a result of the production order and search warrant would be adduced
    in the U.S. prosecution. The Canadian-gathered information would, however, be
    adduced through the witness testimony of the Canadian detective involved in the
    investigation of the case and the execution of the orders.

[15]

Throughout
    the course of the investigation, Canadian authorities acted pursuant to the
Criminal
    Code
, rather than the
Mutual Legal Assistance in Criminal Matters Act
,
    R.S.C. 1985, c. 30 (4th Supp.) (MLACMA). The MLACMA provides for the
    implementation of treaties for mutual legal assistance between Canada and
    foreign governments, one of which is the
Treaty Between the Government of
    Canada and the Government of the United States on Mutual Legal Assistance in
    Criminal Matters
, C.T.S. 1990/19 (the Canada-US Treaty). Under ss. 12
    and
14 of the MLACMA, a peace officer executing a search and
    seizure warrant under that act is required to file a report concerning the
    execution of the warrant with the issuing court. Section 15 requires judicial
    approval before information can be sent to the requesting state.

C.

The appellants challenge to her commital

[16]

The
    appellant challenged her committal and sought disclosure of all evidence
    pertaining to her file in relation to the Canadian investigation,
beyond that contained in the ROC and the three Supplemental Records
    of Case (SROCs)
.
Her extradition hearing was
    scheduled for October 11, 2012, but was adjourned as a result of the disclosure
    application. At the hearing of the disclosure application,
she argued
    that disclosure was warranted to allow her to pursue her
Charter
claims.
    She raised the following alleged violations of ss. 7, 8 and 10(b) of the
Charter
:

[17]

The
    production order and search warrant should have been obtained under the MLACMA

rather than the
Criminal Code
because there was no
bona fide
Canadian investigation. Additionally, Canadian police improperly shared with
    American investigators the information they obtained, without first complying
    with the MLACMA;

[18]

The
    police authorities failed to make full and frank disclosure to the issuing
    justice in the course of obtaining the production order and the search warrant;

[19]

The
    police authorities failed to report to the issuing justice after the execution
    of the orders, contrary to s. 489.1 of the
Criminal Code
, which taints
    the legality of the original orders;

[20]

The
    appellants waiver of her s. 10(b) right to obtain and instruct counsel without
    delay was not informed and therefore invalid.

D.

Decision of the Extradition Judge

[21]

The
    extradition judge dismissed the appellants application for disclosure. He
    observed that it is settled law that a person sought for extradition is only
    entitled to disclosure of the ROC (and SROCs, if applicable) tendered in
    support of the request:
United States v. Dynar
, [1997] 2 S.C.R. 462.
    The only exception to this rule, as held by the Supreme Court of Canada in
United
    States v. Kwok
, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 102, is when an
    applicant can establish an air of reality to a
Charter
claim or
    where there are justiciable
Charter
issues at play.

[22]

The
    extradition judge set out the three-part test for obtaining additional
    disclosure in extradition proceedings, as articulated by this court in
R.
    v. Larosa
(2002), 166 C.C.C. (3d) 449 (Ont. C.A.), at para. 76. The
    allegations of
Charter-
infringing state misconduct must be capable of
    supporting the remedy sought, there must be an air of reality to the
    allegations and it must be likely that the disclosure would be relevant to the
    allegations. The onus to satisfy this test rests on the applicant.

[23]

The
    extradition judge noted that even when there is an air of reality to a
Charter
claim, an extradition judge still has discretion not to order additional
    disclosure:
United States v. McAmmond
(2005), 192 C.C.C. (3d) 149
    (Ont. C.A.), at para. 31. He reviewed the appellants various allegations and
    held that there was no air of reality to the
Charter
claims.
    Therefore, no additional disclosure beyond the ROC and SROCs was warranted.

(1)

Alleged
    violations of the appellants ss. 7 and 8
Charter
rights

[24]

The
    appellant asserted that her ss. 7 and 8
Charter
rights were violated
    on the grounds that the Canadian authorities (i) should have acted under and in
    compliance with the MLACMA, (ii) did not make full and frank disclosure in the
    Information to Obtain (ITO) both the production order and the search warrant
    and (iii) failed to file a report to a justice after executing the production
    order and search warrant in compliance with s. 489.1 of the
Criminal Code
.

[25]

First,
    the extradition judge held that the Canadian authorities were not required to
    proceed under the MLACMA in order to obtain the Canadian production order and
    search warrant. He also held that they did not have to supply the resulting
    information to American authorities in accordance with the procedures set out
    in the MLACMA.

[26]

The
    extradition judge observed that the MLACMA is not the exclusive means for
    gathering and sending evidence from Canada to a foreign state. It is meant to
    supplement, not replace, existing arrangements and practices between Canadian
    and foreign authorities, as demonstrated by s. 3(2) of the Act:

3. (2) Nothing in this Act or an agreement shall be
    construed so as to abrogate or derogate from an arrangement or practice
    respecting cooperation between a Canadian competent authority and a foreign or
    international authority or organization.

[27]

Additionally,
    Article III, s. 1 of the corresponding Canada-U.S. Treaty states that it does
    not detract from other agreements, arrangements or practices under which
    parties may provide assistance to each other.

[28]

The
    extradition judge was satisfied that Canadian investigation was not a sham,
    but was a valid investigation parallel to the ongoing American investigation.
    He was not persuaded that American authorities controlled or directed the
    investigation. Thus, Canadian police could proceed under the
Criminal Code
and
    did not have to obtain the production order and search warrant under the
    MLACMA, or report to a court before considering whether to transmit the
    evidence obtained to a requesting state:
United States v. Fong
, 2000
    BCSC 612, affd, 2001 BCCA 684, 162 B.C.A.C. 32, leave to appeal refused,
    [2002] S.C.C.A. No. 30.

[29]

The
    extradition judge distinguished the seemingly contrary case of
R. v. Budd
,
    [2004] O.J. No. 3519 (S.C.), because in that case there was no allegation of
    any Canadian offence, and foreign authorities had made a formal request under
    the MLACMA and then shared evidence informally.

[30]

In
    this case, Canadian police were permitted to share the information they
    gathered in accordance with their established practices, particularly under TSP
    cooperation arrangements. There is no legal requirement for police to obtain
    judicial authorization to send evidence to a foreign country in such
    circumstances.  The importance of sharing of information between jurisdictions
    was recently affirmed in
United States v. Wakeling
, 2014 SCC 72.  As
    Moldaver J. said:

Multi-jurisdictional cooperation between law enforcement
    authorities furthers the administration of justice in all of the jurisdictions
    involved. It must not be forgotten that Canada is often on the receiving end of
    valuable information. (para 57)

Inter-agency cooperation is critical to the prevention,
    detection, and punishment of cross-border crime information from foreign law
    enforcement authorities. (para 82)

[31]

Second,
    the extradition judge rejected the appellants contention that the ITOs for the
    production order and the search warrant did not contain full and frank
    disclosure. The appellant alleged that the ITOs failed to indicate that the
    information was sought at the request of American investigators and that the
    information would be shared with those investigators. The extradition judge
    rejected this argument, observing that the ITOs disclosed the existence of a
    joint investigation into alleged fraud. The ITOs specifically mentioned that
    both Canadian and American authorities were investigating, and indicated that
    the American Federal Bureau of Investigation (FBI) and UPSIS had provided
    Canadian authorities with information. Although not specifically stated, the
    clear inference was that sharing both ways would take place.

[32]

Third,
    with respect to the failure to report to the issuing justice, the extradition
    judge recognized that  at that time - there were two lines of authority on the
    question of whether a failure to comply with a procedural step following a
    search retroactively invalidates the legality of the search itself. He adopted
    the line of cases supporting the proposition that the failure to file a report
    does not automatically and retroactively undermine the validity of an initially
    valid search: See
R. v. Backhouse
, (2005), 194 C.C.C. (3d) 1 (Ont.
    C.A.);
R. v. Church of Scientology (No. 6)
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.);
R. v. Tripp
, 2006 NBPC 35; and
R. v.

Karim
,
    2012 ABQB 470, 546 A.R. 57. He recognized that there may be situations where
    the other line of authority would prevail, but noted that the items seized in
    this case would not be relied upon in the prosecution of the appellant. In the
    circumstances, and based on the law at the time,  he found that there was no
    air of reality to the claim that the appellants
Charter
rights had
    been breached by this procedural deficiency.

(2)

Alleged violations of the appellants 10(b) rights

[33]

The
    appellant alleged that police authorities violated her right to obtain and
    instruct counsel under s. 10(b) of the
Charter
during the October 2010
    interview.

[34]

The
    extradition judge held that there was no air of reality this claim. The
    appellant attended the interview with the police on her own accord. She was
    advised of the international nature of the case, and she was informed that
    anything she said could be used against her. She was also advised of her s.
    10(b)
Charter
right to obtain and instruct counsel without delay, as
    well as the availability of Legal Aid. She acknowledged her understanding of
    the above matters and declined to contact counsel. There was no air of reality
    to the s. 10(b) claim.

[35]

Even
    if there were an air of reality to the s. 10(b) claim, the extradition judge
    would not have exercised his discretion to order further disclosure because
    American authorities had disavowed any reliance upon the evidence from the
    interview.

(3)

Committal for extradition

[36]

The
    extradition judge was satisfied that there was sufficient reliable evidence of
    conduct that would justify committal for trial in Canada on charges of fraud
    contrary to s. 380 of the
Criminal Code
, the offence set out in the
    Authority to Proceed, and that the appellant was the person sought for
    extradition. He issued a warrant of committal for her extradition.

E.

Issues Raised by the Appellant ON APPEAL

[37]

Although
    multiple issues were raised by the appellant, counsel focused on one main issue
    during oral submissions  whether disclosure of the Canadian investigation
    should have been ordered because there was an air of reality to the appellants
Charter
claims.

F.

Analysis

[38]

The
    decision of whether to order disclosure beyond the ROC is discretionary, even
    when the applicant has demonstrated an air of reality to a
Charter
claim:
McAmmond
, at para. 31.  An appellate court may only intervene
    in a discretionary decision if the court below misdirected itself or came to a
    decision that is so clearly wrong that it amounts to an injustice:
Penner
    v. Niagara Regional Police Services Board
, 2013 SCC 19, [2013] 2 S.C.R.
    125, at para. 27; see also
United States

v. Talashkova
, 2014
    ONCA 74, 118 O.R. (3d) 622, at para 7.

[39]

The
    appellant submits that there was an air of reality to the claims that the her
Charter
rights were violated by (i) the decision by investigators not to proceed
    by way of the MLACMA, (ii) the failure to provide full and frank disclosure in
    the ITOs of the intention to share information with U.S. authorities and (iii)
    the failure to report back to the issuing justice after executing the orders
    and detaining the seized items.

[40]

For
    the reasons that follow, I would reject the first two of these arguments. There
    was no requirement to proceed under the MLACMA in the circumstances, the
    evidence was lawfully gathered and shared. I would remit that matter back to
    the extradition judge on the question of whether the failure to return to the
    issuing justice affects the outcome of his decision.

(1)

The
Mutual Legal Assistance in Criminal Matters Act

[41]

The
    appellant submits that the MLACMA and the corresponding Canada-US Treaty offer
    procedural safeguards that are otherwise unavailable under the
Criminal
    Code
or the common law. As discussed, pursuant to the MLACMA, when the
    U.S. requests a search and seizure, it must send a formal request for
    assistance to the Minister of Justice. If the request is approved and a warrant
    is sought, the Canadian peace officer executing the warrant is required to file
    a subsequent report to the issuing court.  Further, sharing a record or item
    obtained under this process with a foreign state requires court approval. The
    appellant submits that the failure to follow this process under the MLACMA
    violated her
Charter
rights.

[42]

The
    extradition judge was correct to reject this submission and I adopt his analysis.
    Subsection 3(2) of the MLACMA makes clear that the MLACMA is meant to
    supplement, rather than abrogate or derogate from, any existing arrangement or
    practice between Canadian and foreign police forces or prosecutorial
    authorities. Similarly, Article III, s. 1 of the Canada-US Treaty recognizes
    that the agreement does not detract from other agreements, arrangements or
    practices. Thus, the Canadian investigators were not required to follow the
    procedures in the MLACMA and there is no air of reality to the claim that the
    appellants
Charter
rights were breached when they did not do so.

[43]

The
    appellant also raised the issue of the failure of the investigators to obtain
    judicial authorization before sharing the information obtained under the
    production order and search warrant. The Supreme Court of Canada has recently
    endorsed the importance of facilitating international cooperation through the
    sharing of information relating to criminal matters. In
Wakeling
, the
    court was unanimous in acknowledging that co-operation between Canadian and
    foreign law enforcement is essential. The majority recognized that law
    enforcement authorities are entitled to share information obtained through a
    reasonably executed search with foreign authorities for the purposes of law enforcement,
    without prior judicial authorization. When considering an alleged breach under
    section 8 of the
Charter
, the Chief Justice said at paragraphs 93 and
    94:

The warrant allows the police to obtain the information and to
    use it for purposes of law enforcement. The individual whose communications are
    lawfully intercepted under a valid warrant cannot complain that this
    unreasonably breaches his privacy. To put it metaphorically, a valid warrant
    sanitizes the state intrusion on privacy, as long as the execution of the
    warrant is reasonable and the information is used for purposes of law
    enforcement.

It has never been suggested that this principle is confined to
    the use of information in Canada. The reality is that crime does not stop at
    national borders, and police routinely share information that they have
    lawfully obtained under warrant with their counterparts in other countries.
    Provided information is shared for purposes of law enforcement, the individual
    cannot complain that the sharing violates his s. 8 right to privacy.

(2)

The failure to make full and frank disclosure in the ITOs

[44]

The
    appellant submits that the ITOs for the production order and search warrant did
    not clearly disclose that the information obtained would be transferred to
    American authorities. However, as the extradition judge noted, the ITOs did
    disclose the existence of a joint investigation, so it was open to the
    extradition judge to hold that the issuing justice could infer that sharing
    would take place. I see no reviewable error in his conclusion that the search
    warrant and the production order were properly obtained.

(3)

The failure to file reports

[45]

The
    appellant also submits that the failure to file reports to the issuing justice
    or obtain a corresponding order for ongoing detention of the items seized
    violated the appellants
Charter
rights in light of the fact that
    authorities detained the seized items.

[46]

When
    the application was heard by the extradition judge and when this appeal was
    argued, the cases were divided on whether a failure to make a report to the
    issuing justice renders the initial execution of a search or production order
    unlawful. One line of authority, including the decisions in
R. v. Correia
,
    2005 ONCJ 435, 133 C.R.R. (2d) 365, and
R. v.

Guiller
(1985)
,
25 C.R.R. 273 (Ont. Dist. Ct.), supported the proposition that a failure to
    follow mandatory procedures when detaining seized materials renders the initial
    search unlawful.

[47]

Conversely,
    in
R. v. Church of Scientology (No. 6)
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.), this court held, at pp. 546-547, that if a search warrant is
    valid, it cannot be invalidated by any conduct subsequent to its issue. Citing
Scientology
,
    this court in
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1 (Ont. C.A.),
    held, at para. 115,  that a breach of
Charter
rights does not
    automatically follow from non-compliance with s. 489.1 of the
Criminal Code
:

It does not necessarily follow, however, that the continued
    unlawful detention violated the appellants
Charter
rights. The
    initial search and seizure was lawful and complied with the
Charter
. I
    need not decide whether the subsequent failure to comply with s. 489.1 could
    render the initial lawful seizure unreasonable. However, see
R. v. Church
    of Scientology
(No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at 543-547.
    Even if the detention of the clothing did violate the appellants rights under
    s. 8, I would not exclude the evidence obtained by the analysis of the
    appellants jacket. I will more fully develop my reasons for that conclusion
    when I consider s. 24(2) of the
Charter
below.

[48]

The
    extradition judge followed the line of authority which held that there is no
    automatic breach of an individuals
Charter
rights where an unlawful
    detention of seized items occurs after an initially valid search.

[49]

In
    light of the decision in
R. v. Garcia-Machado
, the law has now been
    clarified.  I would refer the matter back to the extradition judge to
    reconsider, on the facts of this case, the effect of the failure to report on
    the request for disclosure, applying the law as now clarified.

G.

Conclusion

[50]

The
    information and evidence acquired by the Canadian investigators was legally
    obtained under the
Criminal Code
. There was no obligation for Canadian
    authorities to proceed under, and comply with, the MLAMCA. The extradition
    judge will determine the effect of the failure to report to an issuing justice
    in compliance with s. 489.1.

[51]

I
    would allow the appeal in part and refer the issue of section 489.1 back to the
    extradition judge.

Released: K.F. August 26, 2015

M.L. Benotto J.A.

I agree K.M. Weiler J.A.

I agree K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2249740 Ontario Inc. v. Morguard Elgin Ltd., 2015
    ONCA 605

DATE: 20150910

DOCKET: C59998

Feldman, Simmons and Miller JJ.A.

BETWEEN

2249740 Ontario Inc.

Plaintiff (Respondent)

and

Morguard Elgin Ltd. and Morguard Corporation

Defendants (Appellants)

J. Scott Maidment and Stephen Brown-Okruhlik, for the
    appellants

Ronald F. Caza and Anne M. Tardif, for the respondent

Heard: August 24, 2015

On appeal from the order  of Justice Marc R. Labrosse of
    the Superior Court of Justice, dated January 14, 2015, with reasons reported at
    2015 ONSC 299 (CanLII).

ENDORSEMENT

Factual Background

[1]

The motion judge granted summary judgment to the respondent tenant for
    breach of a commercial lease.

[2]

In September 2010, the parties entered into a lease of an historic
    building in Ottawa known as Grant House to renovate and operate a restaurant.
    The Commencement Date for the lease and payment of rent for the ten-year term
    was April 1, 2011. Article 3.03 of the lease provided, in part, that

[I]f the landlord is of the opinion that it will be unable to
    deliver possession of all of the Leased Premises before the expiration of 6
    months after the Commencement Date, (in the condition required hereby), the
    Landlord shall have the right to terminate this Lease upon written notice to
    the Tenant, whereupon neither party shall have any liability to the other

[3]

The context for the lease agreement was that Morguard intended to construct
    a commercial high-rise building on its property adjacent to Grant House and was
    seeking an anchor tenant for that project. Construction would only proceed if
    an anchor tenant were found. However, there was a risk that construction of the
    project would cause significant disruptions to the premises or business
    operations at Grant House, and this was reflected in various lease provisions.

[4]

By February 2011, Morguard had identified a potential anchor tenant for
    its proposed project, while the tenant had run into a number of difficulties, both
    regulatory and financial. Both parties wished to postpone the Commencement Date
    of the lease from April 2011. They made an oral agreement to postpone for at
    least a year.

[5]

They then entered into negotiations for a Lease Amendment Agreement.
    Morguard secured its anchor tenant in October 2011. The lease amendment
    negotiations continued until December 2011, when Morguard advised in writing
    that it was terminating those negotiations. It later took the position that it
    was terminating the lease pursuant to article 3.03.

[6]

The motion judge granted summary judgment in favour of the tenant. He
    found that the parties had made an oral agreement in February 2011 to extend
    the Commencement Date either for one year if no anchor tenant was secured, or
    for three years, if one was secured by Morguard. In the motion judges view,
    this meant that once Morguard had secured an anchor tenant, the Commencement
    Date would be extended to 2014. He further found that there were acts of part
    performance which took the oral agreement outside the operation of the
Statute
    of Frauds
, R.S.O. 1990, c. S.19. He finally found that having agreed to
    extend the Commencement Date until 2014, Morguards termination under article
    3.03 was in bad faith as Morguard could not know in 2011 that it would not be
    able to deliver possession within six months of the new 2014 Commencement Date.

Discussion

[7]

With respect to the motion judge, in our view, his factual finding of
    the terms of the February 2011 oral agreement is not based on the evidence and
    must be set aside. There is evidence that the parties agreed to extend the
    Commencement Date for at least a year, but not that the extension would be
    one year if Morguard did not secure an anchor tenant for its high-rise project
    and three years if it did.

[8]

The impugned finding formed the basis for the motion judges legal
    conclusions. In particular, it formed the basis of the finding of bad faith as
    described above. On appeal, the respondent argued that the finding of bad faith
    could be upheld on the basis that the motion judge found that Morguards motive
    to terminate was because it no longer wished to negotiate an amended lease
    agreement, which was a bad faith motive. We do not agree that the motion judge
    made that finding as a stand-alone basis for his conclusion that Morguard
    terminated the lease in bad faith.

[9]

We also accept the submission of the appellants that the motion judge
    erred by basing his legal decision on the doctrine of part performance when
    that doctrine was not pleaded nor argued before him.

[10]

Finally,
    we were advised in oral argument that the reason the motion judge did not refer
    to the recently-decided leading case from the Supreme Court of Canada on good
    faith contractual performance,
Bhasin v. Hrynew
, 2014 SCC 71, [2014] 3
    S.C.R. 495, was that counsel decided that that case did not change the law as
    applicable on the facts of this case. Therefore, they did not bring the case to
    the motion judges attention. The result was that the motion judge was not able
    to analyze the legal issue based on the most recent articulation of the
    doctrine from the Supreme Court.

[11]

Having
    found that the decision of the motion judge granting summary judgment must be
    set aside, the next issue on appeal is whether this court should determine the
    issues of fact and law or send the matter back for a new summary judgment
    motion.

[12]

We
    are normally reluctant to send a matter back, given the time and expense
    involved. However, we are not able to decide the motion based on the record and
    argument to date. Neither side was able to articulate a clear and cogent
    analysis of the legal effect on the lease of the acts and agreements of the
    parties  in particular, whether the oral agreement of February, 2011 to extend
    the Commencement Date for at least a year had the effect of repudiating the
    lease, or whether the lease remained in effect with the April 1, 2011
    Commencement Date, under article 3.03 (the portion not quoted in these
    reasons), and, if so, whether Morguard was entitled to use article 3.03 to
    terminate in December 2011. There may also be other provisions of the lease
    that should be referred to. Without full argument and clear positions by the
    parties, it would be inappropriate for the court to make findings based on its
    own analysis.

[13]

In
    order to try to avoid the necessity of a fresh motion, we are prepared to
    entertain written submissions (maximum 5 pages) as to the proper legal result
    based on the finding that the parties made an oral agreement in February 2011
    to extend the Commencement Date for at least a year.

[14]

We
    will defer the decision regarding costs until we have had the opportunity to
    consider the written submissions. The appellants submission shall be made within
    10 days of these reasons, and the respondents within one week thereafter.

K. Feldman
    J.A.

Janet Simmons
    J.A.

B.W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Assaf v. Bosada, 2015 ONCA 601

DATE: 20150904

DOCKET: C60055

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Vivian Assaf

Appellant

and

Edward Bosada, Richard Bosada, Naomi Tsuji
    (Estate Trustee

without a Will of the Estate of Robert
    Bosada, Deceased),

All as Estate Trustees of the Estate of
    Taffy Bosado, Deceased,

and the Estate of Lottie Bosada, deceased
    and in their personal capacities;

and Gloria Haddad and Joan Kouri

Respondents

Richard Park and Daniel Barna, as agents for the
    appellant

Leonard Max, Q.C., for the respondents

Heard: September 3, 2015

On appeal from the order of Justice Charles T. Hackland of
    the Superior Court of Justice, dated January 23, 2015.

APPEAL BOOK ENDORSEMENT

[1]

At the outset of this appeal, the respondents brought a motion seeking
    to dismiss or stay the appeal on the basis that William Assaf, allegedly the
    real appellant/litigant, is a declared vexatious litigant pursuant to the order
    of E. Morgan J. of the Superior Court of Justice, dated March 6, 2013.

[2]

Regardless of the identity of the true appellant/litigant, Mr. Barna,
    agent for the appellant, was unable to advance any justification for the
    continued retention in court of the funds at issue.  Indeed, he acknowledged
    during oral argument that the female beneficiaries  Gloria Haddad and Joan
    Kouri  should receive their respective shares of the funds in question.

[3]

No action has been taken to advance the underlying application for more
    than 10 years.  The beneficiaries are now elderly and no viable ground of
    appeal has been advanced by the named appellant warranting appellate
    interference with the order of Hackland J. dated January 23, 2015.

[4]

In these circumstances, any irregularity regarding the status of the
    appellant aside, the appeal is devoid of any merit and it is dismissed.  The
    respondents are entitled to their costs of the appeal, fixed in the amount of
    $8,000, inclusive of disbursements and applicable taxes, payable by the named
    appellant.


COURT OF APPEAL FOR ONTARIO

CITATION:
Azar v. Tecumseh (Town), 2015 ONCA 595

DATE: 20150901

DOCKET: C60063

Feldman, Simmons and Miller JJ.A.

BETWEEN

Tony J. Azar, Raymax Construction Ltd.

Respondents (Plaintiffs)

and

The Corporation of the Town of Tecumseh

Appellants (Defendant)

Matthew R. Todd, for the appellant

Steven Pickard and Anita Landry, for the respondent

Heard: August 27, 2015

On appeal from the order of Justice Renee Pomerance of
    the Superior Court of Justice, dated January 23, 2015.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the approach to the interpretation of the development
    agreement or to the interpretation of that agreement by the application judge.
    We would not interfere with her conclusion that the costs of the operation of
    the pumping station, as distinct from the costs of care, perpetual maintenance,
    repair, replacement and decommissioning, are to be borne by the town and not
    the developer.

[2]

Counsel for the respondent has clarified that the costs of operation
    referred to are only the proportion of the costs of operation referable to
    water drained from town sewers and not referable to the developers private
    lands also serviced by the pumping station.

[3]

The appeal is therefore dismissed with costs fixed at $9,500, inclusive
    of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:
    Banque de Commerce et de Placements, S.A.

v. Bissma Pacific Inc.,
    2015 ONCA 618

DATE: 20150915

DOCKET: C60115

Weiler, van Rensburg
    and Roberts JJ.A.

BETWEEN

Banque
    de Commerce et de Placemens, S.A.

Applicant

and

Bissma Pacific Inc.

Respondent (Appellant)

Kevin McElcheran, for the applicant Grant Thornton
    Limited, receiver of the Bissma Pacific Inc.

John Nicholl and Katarina Germani, for the respondent
    Export Development Canada

Heard: September 9, 2015

On appeal from the judgment of
    Justice Barbara Ann Conway of the Superior Court of Justice, dated February 20,
    2015.

ENDORSEMENT

[1]

The motion judges interpretation of the accounts receivable (shipments)
    insurance policy between Bissma Pacific Inc. and Export Development Canada
    (EDC) in the context of the factual matrix provided by the evidence on the
    motion was not only reasonable but correct.

[2]

The parties agree that the buyers claims for set-off against the
    amounts owing under their contracts with Bissma are not frivolous.  There is no
    ambiguity in clause 7 of the policy as to the nature of the dispute that would
    forestall EDCs liability to pay Bissmas claims for loss arising out of the
    buyers refusal to pay their invoices:  it is any matter which brings into question
    the amount owing (or whether there is any amount owing) by the buyer to the insured.
    A dispute is not restricted to claims arising out of the unpaid shipment of
    goods that gives rise to the covered risks and losses under the insurance
    policy.

[3]

In consequence, the buyers refusal to pay the subject invoices, as a
    result of a claim for set off of their damages caused by Bissmas failure to
    supply goods because of its receivership (which occurred before the subject
    invoices were payable), constitutes any matter which brings into question the
    amount owing (or whether there is any amount owing) by the buyer[s] to
    Bissma.

[4]

Clause 7 of the policy is not an exclusionary clause such that it should
    be interpreted
contra proferentem
EDC.  Apart from not being included
    under the other Exclusions in the insurance policy, clause 7s effect is not
    to exclude but only to defer EDCs liability for payment of Bissmas claims
    once the amount of Bissmas loss is determined in accordance with the terms of
    the policy.

[5]

The motion judges interpretation of the insurance policy, in
    particular, of clause 7 of the policy, is consistent with the trial judges
    construction of the same sections of EDCs insurance policy in
2964-32377
    Québec Inc. v. EDC-Export Development Canada
, 2011 QCCS 1372, at para. 56,
    affirmed, 2012 QCCA 2154 (CanLII), at para. 12.  In the latter case, it was
    determined that the set-off claimed by the insureds customer for unrelated
    claims against insured shipments constituted a dispute under clause 7 of the
    policy and served to suspend EDCs contractual obligations to pay the insured
    claims, for the following reasons set out by the trial judge:

[Clause 7] ne restreint pas le différend à une
    question portant sur la qualité du produit vendu, sa livraison ou la nature des
    services rendus par lassuré, contrairement à la prétension de CAD.  Le
    différend porte, peu importe la cause, sur le montant et lexistence de la
    créance de lassuré, fonction de lexistence et de la valeur de la perte que
    EDC pourrait indemniser.  Cette mésentente crée une incertitude qui empêche
    lindemnisation recherchée, que na pas à trancher lassureur qui y est
    étranger et nen est pas larbitre.  Cette incertitude empêche de déterminer de
    façon définitive la valeur de la perte admissible aux fins de cette
    indemnisation.  (para. 56)

[6]

As a result, the appeal is dismissed.

[7]

In accordance with the parties agreement, costs of the appeal payable
    to EDC are fixed in the amount of $15,000.00 plus HST.

K.M. Weiler J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Baumann (Re) 2015 ONCA 603

DATE: 20150909

DOCKET:
C58375

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

IN THE MATTER OF:  Tim Baumann

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Alexander Alvaro, for the respondent, Her Majesty the
    Queen

Julie A. Zamprogna Balles, for the respondent, St.
    Joseph's Health Care London

Heard: December 5, 2014

On appeal against the disposition of the Ontario Review
    Board dated January 28, 2014.

Tulloch J.A.:

A.

OVERVIEW

[1]

The appellant appeals the disposition of the Ontario Review Board dated
    January 28, 2014 ordering his continued detention at the General Forensic Unit
    of the Southwest Centre for Forensic Mental Health Care, St. Josephs Health
    Care London.

[2]

The alleged index offence occurred on October 6, 2007, at approximately
    8:40 p.m. The appellant was accused of exposing himself to an 11-year-old boy
    in the change room of a public swimming pool in London, Ontario.

[3]

At the time, the appellant was 44 years old.  He was charged with
    willfully committing an indecent act.  On October 15, 2008, the appellant was
    found unfit to stand trial due to an intellectual disability.  As a result, he
    came under the jurisdiction of the Ontario Review Board.

[4]

Since 2009, the appellant has been considered a significant risk and has
    been subject to various detention orders made by the Board. These detention
    orders have allowed him the privilege of residing in the community with his
    mother.

[5]

At his most recent Review Board hearing on January 20, 2014, the Board
    found that the appellant remained a significant risk to the community and continued
    his detention, subject to the privileges of residing with his mother and maintaining
    his job in the community.

[6]

The appellant raises two main grounds of appeal.

[7]

First, he submits that the Review Board erred by finding that he remains
    a significant threat to the public and by refusing to recommend that the court
    hold an inquiry to determine if a stay of proceedings should be granted.  The
    appellant argues that the Board provided no reason for rejecting the
    uncontradicted evidence of the expert, and that its finding of significant risk
    is unsupported by the evidence and unreasonable in the context of this case.

[8]

Second, the appellant submits that the Board erred by failing to impose
    the least onerous and least restrictive disposition, which in this case should
    have been a conditional discharge.

[9]

The hospital supports the appellants submissions.  The Crown opposed on
    the basis that the appellant still poses a significant risk to the public.

[10]

For
    the reasons that follow, I find that the Board considered the totality of the
    evidence before it in deciding that the appellant continued to pose a
    significant threat to public safety. This decision was reasonable in the
    circumstances.

[11]

I
    agree with the appellant with respect to the second issue. The Board erred in
    failing to consider the least onerous and least restrictive disposition. I
    would therefore order that this matter be sent back to the Review Board to
    consider whether the imposition of a conditional discharge could ensure public
    safety.

B.

FACTS:

[12]

The
    appellants history of sexual incidents involving children dates back to 1972,
    when he was only nine years old.  In total, there are four separate reported
    incidents involving inappropriate sexual conduct prior to the commission of the
    index offence.  Two of these incidents resulted in criminal charges.  In 1994,
    the appellant exposed himself to his then five-year-old nephew.  This incident
    did not come to light until 1996, when the appellant again exposed himself to
    the same nephew.  The child told his parents and the Childrens Aid Society,
    and eventually the police became involved.  In statements given to the police,
    both the child and the appellant indicated that mutual kissing of the genitalia
    had also occurred.  As a result, the appellant was convicted of two counts of
    sexual assault.  He received a suspended sentence and two years probation.
    According to the hospital reports, the appellant participated in counselling
    during those years, which appeared to provide him with the ability to exercise
    some degree of self-control over the sexual impulses that he reported were always
    there.

[13]

Since
    being found unfit, a number of psychological assessments have been conducted on
    the appellant.  All have concluded that while he seemed to understand that his
    actions are inappropriate and that it was wrong for adults to make sexual
    advances toward children, he did not appear to appreciate the potential
    negative impact on the child victims involved.  He suffers from mild
    retardation and scores below the 1
st
percentile relative to the
    general population on a standard vocabulary test.  In addition, the assessments
    concluded that the appellant would require significant support and supervision
    to ensure that he was able to meet his basic needs and function in the
    community.

[14]

The
    particulars of the main assessments are outlined below.

[15]

Dr.
    Milton Blake conducted a psychological assessment following the appellants
    conviction on the two counts of sexual assault.  Dr. Blake concluded that while
    the appellant seemed to understand that his actions were illegal, and that it
    was wrong for adults to make sexual advances towards children, he did not
    appear to appreciate the potential negative impact on the child involved. The
    doctor diagnosed the appellant as mildly mentally retarded.  He concluded that
    the appellant's history of sexual offences did not show a clear-cut escalating
    pattern that would qualify him as a dangerous or even potentially dangerous
    sexual offender.

[16]

The
    doctor further concluded that due to the appellant's inability to understand
    the negative impact of his actions, together with his physiologically normal
    sexual drive, he could reoffend in the future if the opportunity presented
    itself.

[17]

Following
    the 1996 charges and conviction, the appellant's family increased their
    supervision of him to minimize the risk of him reoffending.  However, in
    October 2007, due to a small change in his routine, the appellant was in a
    public changing room at the same time as children when he allegedly committed the
    index offence. In discussing his actions with respect to the index offence, the
    appellant could offer no explanation for what occurred, and said that he did it
    because he had the chance.

[18]

During
    the legal proceedings related to the index offence, another psychological
    assessment was conducted in August 2008. The findings were consistent with the
    1996 assessment.  This assessment concluded that the appellant's cognitive
    abilities were well below average. He would require significant support and
    supervision to ensure he was able to meet his basic needs and in order to
    function in the community.

[19]

In
    October 2008, another doctor assessed the appellant and determined that he was
    not fit to stand trial due to a developmental disability with a mild to
    moderate retardation resulting from hypoxia at birth.  The doctor concluded
    that the appellants intellectual deficit would profoundly impair his ability
    to manipulate information and participate meaningfully in his defence.

[20]

In
    February 2009, the appellants treating physician, Dr. Ellis, concurred with
    earlier assessors that the appellant requires a structured, simple, and routine
    program. Dr. Ellis also noted that without appropriate supervision, the
    appellant would be at risk of reoffending again and acting on his sexual
    drives.

[21]

The
    appellant subsequently appeared before the Review Board and was ordered detained
    in the minimum security unit with conditions that allowed him to live in the
    community in approved accommodation.  That order has remained in place until
    now, with some changes in the accompanying conditions.  Since then, the
    appellant has consistently lived in the community with his mother, and has
    never been brought back into the hospital.  He is visited each month by
    hospital outreach members at his home and he has weekly visits with a case
    worker for socialization.

[22]

The
    appellant's mother is now elderly and as a result, his family has made contact
    with various social services agencies to facilitate the appellant's care,
    should his mother become unable to care for him.  While he has been placed on a
    waiting list for housing, any move is unlikely unless his mother is no longer
    able to care for him at her home.

[23]

The
    appellant and his family recognize that he presents a constant risk to the
    safety of children if left unsupervised.  As such, the family has indicated that
    they are taking all precautions to ensure that no further incidents occur.

[24]

According
    to the hospital report, it appears that the appellant will be permanently
    unfit, given the absence of a co-morbid psychiatric illness and the permanent
    nature of his intellectual disability.  The appellant's treatment team believes
    that his behaviours are shaped by his cognitive deficits and developmental
    delays and as such, are unlikely to change.  Accordingly, proper supervision is
    critical to manage the risk.  In this regard, the treatment team, in cooperation
    with the appellant's family, have put together the current safety protocol and have
    been effective in preventing the appellant from reoffending.

[25]

As
    a result of the implementation of the safety protocol, as of the end of 2013,
    the treatment team concluded that the appellant was not a significant threat to
    the safety of the public and, consequently, no longer met the criteria for
    continued involvement with the Review Board.

C.

The January 20, 2014 Review Board Hearing

[26]

The
    most recent Review Board hearing was held on January 20, 2014.  At the hearing,
    Dr. Ellis testified on behalf of the hospital and stated that while the
    appellant remained unfit and would be unfit permanently due to his intellectual
    disability, he no longer met the threshold of significant risk. He recommended
    that consideration be given to referring the appellant's case to a court to
    determine if a stay should be granted.

[27]

Dr.
    Ellis' evidence and opinion was based largely on the existence of the safety
    protocol and the commitment of the appellant's family, including the
    appellant's brother, to continue to provide the same level of supervision outside
    the authority of the Board as when he is under the Board's jurisdiction.  In
    addition, the appellant's brother has agreed that he will take over the
    supervision of the appellant should his mother become unable to do it. Dr.
    Ellis expressed confidence in the family's insight into the appellant's need
    for a high level of supervision. He also noted that in the event that the
    family's supervision was to break down, the appellant would be placed in
    supervised housing by social services.

[28]

Dr.
    Ellis also acknowledged during his testimony that in previous years he and the
    treatment team concluded that the appellant did present a significant risk, and
    that there had been no significant change or progress in the appellant's mental
    status or intellectual ability since the previous disposition was made
    detaining the appellant.  Dr. Ellis further acknowledged that without the
    safety protocol in place, the appellant would continue to present a significant
    risk. Furthermore, while the appellant's family has indicated a willingness and
    commitment to supervise the appellant, Dr. Ellis did not believe any member of
    his family had applied for guardianship of the appellant.

[29]

The
    Board accepted Dr. Ellis' evidence on the issue of the appellant's fitness, and
    found that the appellant continues to be unfit, and is likely to remain unfit
    permanently.

[30]

On
    the issue of risk, the Board found that the appellant continued to pose a
    significant threat to public safety, despite the evidence of Dr. Ellis.  The
    Board relied on Dr. Ellis' evidence at both the appellant's 2012 hearing as
    well as at the 2014 hearing when he testified that there was no significant
    change in the appellants mental status or intellectual ability and that if he
    was to be left unsupervised with a child, he would still pose a significant
    threat and likely reoffend.

[31]

While
    the Board acknowledged that the structured safety protocol and family support
    appeared to be working, they concluded that these did not "reach the level
    of diminishing the significant threat" posed by the appellant.

[32]

The
    Board also suggested that if a family member were to obtain legal guardianship
    of the appellant, entitling them to make decisions on his behalf, such a
    safeguard might mean the significant threat threshold would not be met.

D.

ANALYSIS:

(1)

Standard of Review

[33]

This
    court can only interfere with the Boards decision, per s. 672.78(1) of the
Criminal
    Code
, R.S.C., 1985, c. C-46, if we are of the opinion that:

1.

the
    decision is unreasonable or cannot be supported by the evidence;

2.

the
    decision is based on an error of law; or

3.

there was a
    miscarriage of justice.

[34]

The
    appellants argument is based on the reasonableness of the Review Boards
    decision.  The appellant submits that the Boards finding that he continues to
    pose a significant risk, in light of the evidence of Dr. Ellis, is unreasonable
    in the circumstances.  Furthermore, he submits the Boards findings are
    unsupported by the evidence.  I disagree.

(2)

Was the Boards decision that the appellant remains a significant threat
    to the public unreasonable or unsupported by the evidence?

[35]

There
    is no issue that the appellant remains unfit to stand trial, and that he is
    likely permanently unfit as found by the Board. At issue is whether or not he
    still poses a danger to the safety of the public.

[36]

With
    respect to the issue of significant risk, the Review Board made the following
    findings:

[A]lthough there was evidence from Dr. Ellis that there were
    various protocols and structures put in place by family members, in the opinion
    of the Board, Mr. Baumann remains a significant threat to public safety.  We
    make this finding based on the evidence of Dr. Ellis from the previous hearing,
    at which time he advised the Board that in his opinion, Mr. Baumann remained a
    significant threat.  There has been no change with respect to Mr. Baumans
    mental state since that time, and while the Board acknowledges that the
    protocols and family support seem to be working in a positive manner, they do
    not reach the level of diminishing the significant threat posed by Mr.
    Baumann.  Dr. Ellis acknowledged his previous statement as quoted above to
    still be true (as qualified by him with respect to protective measures in
    place).

[37]

It
    is clear from the reasons that the Review Board considered the evidence of Dr.
    Ellis in its totality, and disagreed with his opinion as to the issue of
    significant threat.

[38]

The finding of whether or not the appellant posed a significant
    threat is within the purview of the Board to make.  The Board, as an expert tribunal,
    was entitled to reject the evidence of Dr. Ellis and arrive at its own
    conclusion based on all the evidence which was before it: see
R. v. Starson,
2009 ONCA 826, at para. 6.

[39]

The
    Board considered the totality of the evidence which was before it. Dr. Ellis
    evidence was that, in light of the safety protocol now in place, the appellant
    no longer met the threshold of being a significant risk. The Board was also entitled
    to consider and rely on Dr. Ellis evidence that there was no significant
    change in the appellants mental status or his intellectual ability from 2012
    to the date of the Review hearing.  At the time, Dr. Ellis was of the view that
    the appellant posed a significant risk of physical or psychological harm to the
    safety of the public and, in particular, to children.  He agreed that the
    appellants sexually inappropriate behaviour is generally impulsive and
    opportunistic and that there is a risk of a higher level of harm should the
    appellant be unsupervised in the presence of children.

[40]

Considering
    the fact that the root cause of the appellants criminal conduct was attributed
    to his intellectual deficit or disability, coupled with sexually impulsive and
    opportunistic behaviour when left alone in the presence of children, the
    Boards reliance on this aspect of Dr. Ellis evidence was reasonable in the
    circumstances.

[41]

The
    Board was evidently also concerned with the familys legal status to provide
    the requisite structured supervision of the appellant on a 24 hour basis, in
    light of the fact that no family members had applied for legal guardianship of
    the appellant.  This was a reasonable concern in light of the appellants past
    history in which he has been involved in at least five sexually inappropriate
    incidents involving children.  The Board did recognize the potential safeguards
    provided by the safety protocol that has been in place, but felt that it was
    not foolproof should the appellant be outside the control of the hospital
    without a family member having legal guardianship over the appellant, with
    authority to intervene if necessary.

[42]

The
    determination of the risk presented by the appellant is reviewable on a
    reasonableness standard. Having found that the Boards decision on the issue of
    significant threat is reasonable in the circumstances, a stay of proceedings is
    not available.

(3)

Did the Review Board err in not considering the least onerous and least
    restrictive disposition?

[43]

The
    second issue raised by the appellant is that the Review Board erred in not
    imposing the least onerous and least restrictive disposition, which in this
    case should have been a conditional discharge. Having found that the appellant
    still posed a significant risk to the safety of the public, the Board was then
    obliged to make a determination on the appropriate disposition, considering the
    criteria set out in s. 672.54 of the
Criminal Code
.

672.54
When a court or Review Board makes a
    disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or
    section 672.83 or 672.84, it shall, taking into account the safety of the
    public, which is the paramount consideration, the mental condition of the accused,
    the reintegration of the accused into society and the other needs of the
    accused, make one of the following dispositions that is necessary and
    appropriate in the circumstances:

(a) where a verdict of not criminally responsible
    on account of mental disorder has been rendered in respect of the accused and,
    in the opinion of the court or Review Board, the accused is not a significant
    threat to the safety of the public, by order, direct that the accused be
    discharged absolutely;

(b) by order, direct that the accused be
    discharged subject to such conditions as the court or Review Board considers
    appropriate; or

(c) by order, direct that the accused be detained
    in custody in a hospital, subject to such conditions as the court or Review
    Board considers appropriate.

[44]

In
    determining the proper disposition in cases of unfit accused, the Board must
    choose between imposing a detention order and a conditional discharge. The
    criteria for an order of absolute discharge under s. 672.54(a) are: (i) a
    verdict of not criminally responsible (NCR) on account of mental disorder has
    been rendered in respect of the accused; and (ii) in the opinion of the court
    or Review Board, the accused is not a significant threat to the safety of the
    public. The appellant has not been found to be NCR on account of mental
    disorder. The Review Board held that he continues to be unfit to stand trial
    and remains a significant threat to public safety. He does not meet either of
    the requirements for an order of absolute discharge under s. 672.54(a). The
    only two dispositions available are discharge subject to conditions and
    detention in custody in a hospital, as per ss. 672.54(b) and (c).

[45]

Section
    672.54 also provides that the following factors should be considered by the
    Board in making their disposition:

·

the need to protect the public from dangerous persons;

·

the mental condition of the accused;

·

the reintegration of the accused into society; and

·

the other needs of the accused.

The Board must arrive at a disposition which is the
    least onerous and least restrictive to the accused.  It is the entire
    package of conditions that is to be the least onerous and least restrictive: see
Penetanguishene Mental Health Centre v. Ontario (Attorney General)
, 2004
    SCC 20, [2004] 1 S.C.R. 498, at para. 71.

[46]

In
    this case, nowhere in the reasons is there any indication that the Board
    considered the appropriateness of a conditional discharge, which would have
    been the least onerous and least restrictive disposition in the circumstances.

[47]

I
    agree with the submissions by counsel on behalf of the appellant that the Board
    erred by failing to even consider the imposition of a conditional discharge.  Given
    that the primary risk factor here was unsupervised interactions with children,
    it was incumbent on the Board to consider whether there were conditions that
    could attach to a discharge that would address that issue to ensure public
    safety.

[48]

Furthermore,
    having heard and considered the evidence of Dr. Ellis on the effectiveness of
    the safety protocol in managing the behaviour of the appellant through
    structured supervision, the Board should have considered whether it was
    appropriate to impose the safety protocol as a condition of a conditional
    discharge.

[49]

The
    Board also posed its own question to Dr. Ellis as to whether or not any family
    member had applied for legal guardianship of the appellant, and indicated that
    should that occur, it was possible that the significant risk posed by the
    appellant could be diminished.  Again, they could easily have considered the
    implications, if any, of requiring the imposition of a guardianship as a
    condition to a disposition of a conditional discharge.

[50]

In
    all the circumstances, I agree with the appellant that the Board erred in not
    considering the imposition of a conditional discharge.

E.

Disposition

[51]

For
    the reasons above, I would order that this matter go back to the Review Board to
    consider whether a conditional discharge should be imposed in the
    circumstances.

Released: GS Sep 9, 2015

M. Tulloch J.A.

I agree. G.R.
    Strathy C.J.O.

I agree. C.W.
    Hourigan J.A.


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence
    of the media representative or representatives or the publication of the
    report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)
No person shall publish or
    make public information that has the effect of identifying a child who is a
    witness at or a participant in a hearing or the subject of a proceeding, or the
    childs parent or foster parent or a member of the childs family.

45(9)
The court may make an order
    prohibiting the publication of information that has the effect of identifying a
    person charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: C.M. v. Children's Aid Society of the Regional
    Municipality of Waterloo, 2015 ONCA 612

DATE: 20150914

DOCKET: C60343

Feldman, Simmons and Miller JJ.A.

BETWEEN

C.M. and B.J.V.

Appellants (Appellants)

and

The Childrens Aid Society of the Regional
    Municipality of Waterloo

Respondent (Respondent)

Gloria E. Ichim, for the appellants

Jeffrey W. Boich, for the respondent

Heard: August 24, 2015

On appeal from the order of Justice J.W. Sloan of the Ontario
    Superior Court of Justice, dated March 25, 2015, with reasons reported at 2015
    ONSC 1942, [2015] W.D.F.L. 3233, dismissing an appeal from the order of Justice
    P. Hardman of the Ontario Court of Justice dated November 28, 2013.

By the
    Court:

A.

Introduction

[1]

On November 28, 2013, following a trial that began in August 2012  and
    based on a protection application filed in early September 2010  the appellants
    two children were found in need of protection. In all the circumstances, the trial
    judge ordered that the children be designated Crown wards without access.

[2]

On March 25, 2015, a Superior Court appeal judge dismissed the
    appellants appeal from that order.

[3]

On appeal to this court, the appellants ask that the Crown wardship order
    be varied to provide them with access to their children.

B.

iSSUES AND dISCUSSION

[4]

The appellants raise three issues on appeal.

ISSUE 1: Did
    the trial judge err in determining the Indian or native status of the children?

[5]

First, the appellants argue that the trial judge erred in law in failing
    to identify the appellant mother as Indian or native. They submit that identifying
    her as such would have triggered certain special provisions of the
Child
    and Family Services Act
, R.S.O. 1990, c. C.11 (the CFSA) relating to
    Indian and native children.

[6]

In the alternative, the appellants argue that the trial judge erred in
    failing to apply the principles from
R. v. Gladue
, [1999] 1 S.C.R. 688,

to
    the circumstances of this case.

[7]

We do not accept these arguments. As a starting point, the appellants
    did not raise these issues at trial. In any event, neither the mother nor the
    children fall within the definition of Indian or native person under the CFSA. Further,
    in the face of the statutory definitions,
Gladue
principles do not
    assist in determining whether the children are Indian or native persons. Finally,
    we are not persuaded that
Gladue
principles affect the determination
    of whether an access order would be appropriate in this case.

[8]

Under s. 47(2)(c) of the CFSA, the court hearing a protection
    application is required to determine [a]s soon as practicable, and in any
    event before determining whether a child is in need of protection  whether the
    child is an Indian or a native person and, if so, the childs band or native
    community.

[9]

Indian and native person are defined terms in the CFSA. Section 3
    provides that Indian has the same meaning as in the
Indian Act
(Canada) and that native person means a person who is a member of a native
    community but is not a member of a band, and native child has a corresponding
    meaning. Section 209 of the CFSA permits the Minister to designate a
    community, with the consent of its representatives, as a native community for
    the purposes of this Act.

[10]

Although
    represented by counsel, at trial the appellants did not advance any argument
    that either the mother or the children fell within the definition of Indian or
    native person under the CFSA. Instead, in response to the required inquiry from
    the trial judge, the appellants counsel confirmed that the information in the
    Societys application concerning status was correct. In relation to both
    children, the Societys application stated no Indian status.
[1]

[11]

Further,
    while the mother testified at trial that she is part native, she provided no
    additional evidence about her aboriginal heritage or about any connection with
    a native community.
[2]

[12]

In
    these circumstances, the trial judge made no error in failing to identify the
    mother or children as Indian or as native persons.

[13]

On
    appeal to the Superior Court, the appellant mother filed an affidavit indicating
    that her father is Ojibway. She does not claim to be a status Indian within the
    meaning of the
Indian Act
, R.S.C. 1985, c. I-5. Rather, she argues
    that the definition of Indian under the
Indian Act
has been extended
    by case law and that
Gladue
extends the meaning of native to include
    persons self-identifying as native.

[14]

However,
    contrary to the appellants submissions,
Daniels v. Canada (Minister of Indian
    Affairs and Northern Development)
, 2014 FCA 101, 371 D.L.R. (4th) 725,
    does not stand for the proposition that non-status Indians are included as
    Indians within the meaning of s. 91(24) of the
Constitution Act, 1867
.
    Moreover,
Gladue
was decided under the
Criminal Code
and does
    not alter the statutory definitions set out in the CFSA. In any event, we note
    that the relevant inquiry under the CFSA is the childrens status, not the
    mothers status. The fact that the mother may self-identify as native does not
    determine her childrens status.

[15]

Finally,
    s. 59 (2.1) of the CFSA provides that [a] court shall not make  an access
    order  with respect to a Crown ward unless the court is satisfied that, (a)
    the relationship between the person and the child is beneficial and meaningful
    to the child; and (b) the ordered access will not impair the childs future
    opportunities for adoption.

[16]

At
    the time the trial judges decision was delivered, the children had been in
    care for about three years and three months. When apprehended, the youngest
    child was less than two years old. The trial judge declined to make an order
    for access for two reasons. First, she was not satisfied that a relationship
    existed between the appellants and their children that was beneficial or
    meaningful to the children. Second, because no adoption plan had by then been
    put forward, she was unable to determine whether access would impair the
    childrens future opportunities for adoption.

[17]

As
    of the date of the appeal to the Superior Court, the children had not had
    access with the appellants for more than a year and there was evidence that
    neither child had asked for contact with the appellants since the last visit.
    Moreover, following an inquiry directed by the court, the proposed adoptive
    parents (the childrens foster parents since being taken into care) wrote a
    letter to the Societys counsel indicating they were unwilling to meet with
    counsel or the appellants and that any court ordered openness or access would
    jeopardize the stability of the placement.

[18]

Under
    these circumstances, an access order was not available under the CFSA  and
Gladue
principles did not in any way assist in making that determination.

ISSUE 2:  Did
    the trial judge err by drawing negative inferences based on the appellant
    mothers flat affect?

[19]

The
    second issue raised by the appellants on appeal is that the trial judge erred
    in failing to recognize the mothers flat affect as an immutable feature of
    the mothers cultural identity as an Ojibway. The appellants argue that the
    trial judge erred in drawing negative inferences about the mother and her
    ability to connect with her children based on an undiagnosed flat affect and
    monotone voice, both of which the appellants claim are immutable features of
    the mothers cultural identity that do not affect her parenting abilities.

[20]

We
    do not accept this argument. This issue was fully canvassed before the Superior
    Court appeal judge. The Superior Court appeal judge placed little weight on
    fresh evidence the appellants sought to introduce on appeal from a
    self-described expert on many, if not all aboriginal issues concerning flat
    affect as it pertains to aboriginal peoples. He did so in part because no
    effort had been made to adduce such evidence at trial, or to demonstrate on
    appeal the witnesss credentials.

[21]

The
    Superior Court appeal judge noted that the issue of the mothers flat affect
    and her ability to connect with her children had been raised in a Parental
    Capacity Assessment prior to trial. Despite that, the only evidence the
    appellants led at trial in response was a brief statement by the mother that
    she is part native and that natives tend to speak in a monotone voice. As noted
    by the Superior Court appeal judge, this evidence was insufficient to allay the
    trial judges concerns arising from the assessors evidence that the mother was
    unable to connect emotionally with her children and gain their attention.

[22]

Further,
    while the issue of the mothers flat affect was mentioned in the Parental
    Capacity Assessment, many other concerns were also raised. In his reasons
    dismissing the parents appeal, the Superior Court appeal judge fully addressed
    the issue of whether the trial judge failed to consider the best interests of
    the children in making an order for Crown wardship.

[23]

We
    see no basis on which to interfere with the Superior Court appeal judges
    conclusions.

Issue 3:  Did
    the trial judge err in failing to consider the best interests of the children
    in relation to access?

[24]

The
    final issue raised by the appellants is that the trial judge erred in failing
    to consider the best interests of the children in relation to access. The
    appellants argue that the trial judge erred in failing to consider the best
    interests of the children in the context of their aboriginal heritage and in
    failing to consider that ongoing contact with their birth parents would assist
    in preserving their sense of historical and cultural uniqueness.

[25]

We
    do not agree. The trial judge was aware of the childrens cultural heritage.
    She noted in her reasons that [w]hile the children are not Indian or native
    as defined by the CFSA, they do have a link to that heritage through their
    mother. Family connections are an important consideration in assessing the best
    interests of the children.

[26]

Despite
    that observation, the trial judge concluded that, considering all the
    circumstances of the case, an order for Crown wardship was necessary and in the
    best interests of the children. That finding is supported by the evidence and
    the appellants have not sought to set aside the order for Crown wardship on
    appeal.

[27]

As
    we have said, once the trial judge determined that an order for Crown wardship
    was necessary, in the face of s. 59 (2.1) of the CFSA and in the light of her
    other findings, an access order was not available. On appeal to the Superior
    Court, the trial judges findings and conclusions were upheld  and
    supplemented. As we have said, the Superior Court appeal judge directed that an
    inquiry be made concerning whether the proposed adoptive parents (the
    childrens foster parents since apprehension) would proceed with the adoption
    if an order were made for Crown wardship with access. The proposed adoptive
    parents responded in a letter to the Societys counsel that any court ordered
    openness or access would jeopardize the stability of the placement. Further,
    the Superior Court appeal judge stated that the court had been advised that the
    proposed adoptive parents were not prepared to proceed with the adoption on
    that basis. He concluded that making an order for Crown wardship would impair
    the childrens prospects for adoption. We see no basis on which to interfere
    with his determination or that of the trial judge.

C.

Delay

[28]

Before
    disposing of this appeal, like the Superior Court appeal judge, we must comment
    on the issue of delay.

[29]

In
    his reasons, the Superior Court appeal judge set out a brief chronology of the
    salient events in this case. We have included that chronology in Appendix A. In
    short, the children went into care with their current foster parents more than five
    years ago on September 2, 2010. They were then 1.8 and 3.8 years old.  They are
    now six and eight and are still in legal limbo. Such delay is unacceptable in
    the lives of these children.

[30]

After
    setting out his chronology, the Superior Court appeal judge noted that none of
    the legislated time limits under the CFSA were even remotely adhered to in
    this case. He expressed concern about the failure to follow the statutory
    requirements as well as the overall delay. He also expressed the hope that
    counsel would bring his concerns to the attention of those who can affect
    meaningful change.

[31]

We
    echo the Superior Court appeal judges concerns. We go further and state that
    it is imperative that judges, court administrators, counsel (particularly
    counsel for Childrens Aid Societies) and assessors take responsibility for
    ensuring adherence to statutorily required timelines.

[32]

We
    summarize below the most significant delays that occurred in this case:

·

More than a year passed from the date of apprehension on
    September 2, 2010 until the date when the Parental Capacity Assessment was
    completed on October 27, 2011.

·

The Society amended its protection application to instead request
    Crown Wardship on February 3, 2012. This was almost a year-and-a-half after the
    date of apprehension and already past the 12-month statutory limit for Society
    custody and care. More than six months passed between this date and the first hearing
    date at the Ontario Court of Justice on August 23, 2012.

·

Almost six months passed between the first and last days of the
    Crown wardship hearing at the Ontario Court of Justice (from August 23, 2012 until
    February 4, 2013) with no more than a few days of hearings each month.

·

More than nine months passed from the conclusion of the hearing
    to the release of the Ontario Court of Justice Reasons.

·

More than a year passed from the filing of the Notice of Appeal
    with the Superior Court of Justice on December 16, 2013 to the first Superior
    Court of Justice hearing date on February 12, 2015.

[33]

Where
    a statute requires that events occur within a specified time frame, it is
    simply unacceptable that justice system participants fail to adhere to those
    time frames. As Justice LHeureux-Dubé commented on behalf of the majority of
    the Supreme Court in
Winnipeg Child and Family Services v. K.L.W.
,
    2000 SCC 48, [2000] 2 S.C.R. 519, at para. 136, [t]he six-month delay prior to
    the hearing to determine whether John was in need of protection appears, on its
    face, to be highly unreasonable, particularly in the case of a newborn child.
    This court spoke about  the importance of timeliness in child welfare cases in
Childrens
    Aid Society of Oxford County v. W.T.C.
, 2013 ONCA 491, [2013] O.J. No.
    3438.

[34]

That
    requires, among other things, that assessment reports be prepared with
    dispatch; that Childrens Aid Societies make decisions in accordance with statutory
    timelines about how to proceed in a particular case; that meaningful case
    management occur in which timetables are set and witness lists are fully
    canvassed; that trials be scheduled so that trial days are not stretched over
    months; and that trial judges receive adequate time to prepare reasons in a
    timely fashion.

[35]

We
    acknowledge that additional factors may contribute to delay in particular cases.
    It is our hope, however, that all those involved in the child welfare system
    will do their part to minimize delay and promote finality for children. The
    children involved in this system deserve better.

D.

disposition

[36]

Based
    on the foregoing reasons, this appeal is dismissed. We make no order as to
    costs.

Released:

KF                                                   K.
    Feldman J.A.

SEP 14 2015                                    Janet
    Simmons J.A.

B.W. Miller J.A.

Appendix A

The
    following are some of the salient chronological/time facts involved in this
    case:

A.

When the children went into care
    with their current foster parents on September 2, 2010, CMV was 1.8 years old
    and LMV was 3.8 years old.

B.

The trial to determine the
    children's future, which heard evidence over 12 days commenced August 23, 2012
    and was completed on February 4, 2013. This is approximately 165 days from the
    first day of evidence to the last day of evidence.

C.

The trial judgment was delivered
    on November 28, 2013, which is approximately 300 days after the completion of
    the trial. On November 28, 2013, it was also three years two months and 26 days
    from the date the children began living with and bonding with their foster
    parents. CMV was then five years old and LMV was 7.1 years old.

D.

The last access between the
    Appellants and the children was on November 27, 2013, which is about 480 days
    before this appeal Judgment was rendered.

E.

The trial in this matter commenced
    almost 2 years after the children were taken into care and the judgment was
    released more than 3 years after the children were taken into care.

F.

The hearing of this appeal
    commenced on February 13, 2015; in summary, approximately 4 1/2 years after the
    children were taken into care.

G.

Rule 33(1) of the
Family Law
    Rules
indicates that a hearing in a child protection case should take
    place no more than 120 days after the child is taken into care. In this case
    approximately 720 days elapsed. This is five times what the legislation says is
    allowable.

H.

Section 70 of the
Child
    and Family Services Act
indicates that the court shall not make an order
    for Society Wardship that results in a child under the age of six being a
    society ward for the period exceeding 12 months or a child being over six being
    a society ward for a period exceeding 24 months.

[1]
In response to the Societys application and amended application, the
    appellants filed an Answer and Plan of Care and an Amended Answer and Plan of
    Care. In both documents, the appellants stated n/a in the box entitled
    Childs Native Status in relation to both children.

[2]

The only evidence given at trial concerning the
    appellant mothers aboriginal heritage occurred during the following exchange:

Q. You heard a number of
    witnesses describe what they observed during your visits, how do you feel about
    their description of your behaviour during the visits?

A. Like when they said I had a
    flat effect .

A. Well, theres a reason behind
    the flat effect. I am part native and if you listen to other natives, they have
    that same flatness in their voice  monotone.