COURT OF APPEAL FOR ONTARIO

CITATION: Paulpillai Estate v. Yusuf, 2020
    ONCA 655

DATE: 20201019

DOCKET: M51439 & M51521 (C68024)

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Theresa Yogaranie Paulpillai in her capacity as the Estate Trustee
    for the Estate

of
    Richmond Gabriel Paulpillai, Theresa Yogaranie Paulpillai

and Maneharran Paulpillai

Applicants/Moving Parties

(Respondents/Moving
    Parties on M51439/

Responding Parties on M51521)

and

Joshua Akanni Yusuf, Meerc Inc., All Saints University Limited,

All
    Saints University School of Medicine Limited, Avonelle Pinard, David Bruney,

Frankie Bellot and Medical Education Examination Resource Center

Respondents/Responding Parties

(Appellants/Responding
    Parties on M51439/

Responding Parties on M51521)

Edwin G. Upenieks and Angela H. Kwok,
    for the respondents

Osborne G. Barnwell, for the appellants

Heard: September
    17, 2020 by video conference

Jamal J.A.:

[1]

There are two motions before the court: the
    respondents motion to quash an appeal from an order of Fowler Byrne J. (the motion
    judge), dated February 6, 2020, on the basis that the order under appeal is
    interlocutory, not final, and thus any appeal lies to the Divisional Court with
    leave; and the appellants motion to stay the order under appeal.

[2]

For the reasons that follow, I conclude the
    order under appeal is interlocutory, and thus any appeal lies to the Divisional
    Court with leave. Because this court lacks jurisdiction over the appeal, I
    would quash the appeal and dismiss the motion to stay the order under appeal.

Background

[3]

The late Richmond Gabriel Paulpillai
    (Richmond) and Joshua Akanni Yusuf (Joshua) were partners in a successful business
    venture operating two medical schools in the Caribbean: All Saints University
    of Medicine Limited, incorporated and based in Dominica (ASU Dominica), and
    All Saints University Limited, incorporated and based in St. Vincent and the Grenadines
    (ASU SVG). Richmond and Joshua, who both lived in Ontario, each owned 40% of
    the shares in each of ASU Dominica and ASU AVG.

[4]

ASU Dominica and ASU SVG are managed by MEERC
    Inc., a corporation in which Richmond and Yusuf each owned 50% of the shares.

[5]

The tuition payments, dividends, and profits of
    ASU Dominica and ASU SVG are held by a partnership known as the Medical
    Education Examination Resource Center (the Center), in which Richmond and Joshua
    were equal partners. The Center holds
current
earnings
    and substantial undistributed earnings that accumulated before Richmonds
    death. The Center operates under a partnership agreement (the Partnership
    Agreement) governed by Ontario law that provides for arbitration of disputes between
    the partners.

[6]

Before Richmond died, ASU Dominica and ASU SVG
    shared recruiting efforts and expenses and allocated students to their
    respective campuses according to capacity, essentially operating as related businesses.
    When Richmond died, Joshua proposed to Theresa Paulpillai (Theresa)  Richmonds
    spouse and sole executor, trustee, and beneficiary  that they divide up the
    businesses, with Joshua and Richmonds family each assuming ownership and
    management of one university.

[7]

Theresa elected to take ASU SVG, but claims Joshua
    refused to provide her with financial information about the businesses. She
    alleges Joshua continued to manage both universities and their funds without
    regard to the interests of the Paulpillai family, recruited ASU SVGs staff and
    students, and competed with ASU SVG through another medical school, the
    American University of St. Vincent. She also claims Joshua failed to account for
    partnership funds after Richmonds death.

[8]

Because of these concerns, Theresa, acting on
    her own behalf and on behalf of Richmonds estate, and her son, Maneharran
    Paulpillai (Mane), commenced an application before the Ontario Superior Court
    of Justice against Joshua and the other entities and individuals involved in
    the businesses. They claimed, among other relief, a declaration and damages for
    corporate oppression, a declaration and damages for breach of the Partnership
    Agreement, an accounting and tracing of money received since Richmonds death,
    and other injunctive relief.

[9]

At the first attendance on the application on
    February 1, 2019, the parties agreed to a consent order separating the businesses
    and granting the injunctive relief sought on the application. The application
    was adjourned
sine die
, to be brought back if necessary.

[10]

Because Theresa felt that Joshua was breaching the
    consent order, the parties brought back the application and moved for a range
    of interim relief.

The Order Under Appeal

[11]

On February 6, 2020, the motion judge issued the
    order under appeal, with reasons reported as
Paulpillai v. Yusuf
, 2020
    ONSC 851.

[12]

The order: (1) appointed BDO Canada Limited
    (BDO) as an investigative monitor of ASU Dominica and ASU SVG; (2) released funds
    on an interim basis to Theresa and Mane to operate ASU SVG, as an advance of
    any sum that might be found to be payable to them; (3) enjoined Joshua on an interim
    basis from competing unfairly with ASU SVG or recruiting its students or
    personnel; (4) converted the application to an action; (5) added parties to the
    action; and (6) declined to seal the entire court file.

[13]

The respondents filed a notice of appeal from
    this order with this court, and later also filed a notice of motion for leave
    to appeal to the Divisional Court.

[14]

In response, Theresa and Mane (the moving
    parties) moved to quash this appeal on the basis that the order is
    interlocutory, not final, and thus any appeal lies to the Divisional Court with
    leave. For their part, Joshua and the other respondents (the responding
    parties) moved to stay the order under appeal.

Discussion

[15]

Section 6(1)(b) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from
    a final order of a judge of the Superior Court of Justice, while s. 19(1)(b)
    provides that an appeal lies to the Divisional Court from an interlocutory
    order of a judge of the Superior Court of Justice, with leave as provided in
    the rules of court.

[16]

The main principles that determine whether an
    order is interlocutory or final are well known:

1.

An appeal lies from the courts order, not from
    the reasons given for making the order: see
Grand River Enterprises v.
    Burnham
(2005), 197 O.A.C. 168 (C.A.), at para. 10;
Amphenol Canada
    Corp. v. Sundaram
, 2019 ONCA 932, at para. 21; and
Fram Elgin Mills 90
    Inc. v. Romandale Farms Limited
, 2016 ONCA 404, 131 O.R. (3d) 455, at
    para. 33.

2.

An interlocutory order does not determine the real matter in dispute
    between the parties  the very subject matter of the litigation  or any
    substantive right[.] Even though the order determines the question raised by
    the motion, it is interlocutory if these substantive matters remain undecided:
Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin
    Group Inc.
, 2020 ONCA 375, at para. 16, citing
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.), at p. 678;
Ball v. Donais

(1993), 13
    O.R. (3d) 322 (C.A.). See also
Amphenol
, at para. 18.

3.

In determining whether an order is final or
    interlocutory, one must examine the terms of the order, the motion judges
    reasons for the order, the nature of the proceedings giving rise to the order,
    and other contextual factors that may inform the nature of the order:
Prescott
    & Russell (United Counties) v. David S. Laflamme Construction Inc.
,
    2018 ONCA 495, 142 O.R. (3d) 317, at para. 7.

4.

The question of access to appellate review must
    be decided on the basis of the legal nature of the order and not on a case by
    case basis depending on the application of the order to the facts of a
    particular case:
Laurentian Plaza Corp. v. Martin
(1992), 7 O.R. (3d)
    111 (C.A.), at p. 116; see also
Amphenol
, at para. 19. In other
    words, the characterization of the order depends upon its legal nature, not its
    practical effect: see
Ontario Medical Assn. v. Miller
(1976), 14 O.R.
    (2d) 468 (C.A.), at p. 470;
Deltro Group Ltd. v. Potentia Renewables Inc.
, 2017 ONCA 784, 139 O.R. (3d) 239, at
    para. 3.

[17]

As elaborated below, in my view, applying these principles
    to the order under appeal confirms that it is interlocutory.

(1)

Appointment of BDO as investigative monitor

[18]

Paragraphs 2-15 of the order appoint BDO Canada
    Limited as investigative monitor to monitor the business operations and
    financial affairs of MEERC Inc., the Centre, ASU Dominica, ASU SVG, and the
    American University of St. Vincent; requires these entities to cooperate with
    BDO; orders BDO to determine and make equalization payments between the parties;
    and requires the parties to authorize the release of $500,000 to the monitor as
    a retainer for its services.

[19]

Although the order does not refer to the
    specific statutory basis to appoint the monitor, the motion judges reasons noted
    the court had authority to appoint a receiver and manager by an interlocutory
    order where it appears to be just or convenient to do so:
Courts of Justice
    Act
, s. 101: at para. 59. Section 101(1) of the
Courts of Justice Act
provides:

101
(1) In the
    Superior Court of Justice, an interlocutory injunction or mandatory order may
    be granted or a receiver or receiver and manager may be appointed by an
    interlocutory order, where it appears to a judge of the court to be just and
    convenient to do so.

[20]

Section 101(1) authorizes the court to appoint a
    receiver with investigative powers to protect the parties interests pending
    the resolution of the claims and to mitigate risk posed to the plaintiffs
    right to recovery. A receiver with investigative powers is often appointed to
    gather information and determine the true state of affairs about the parties:
    see
Akagi v. Synergy Group (2000) Inc.
, 2015 ONCA 368, 125 O.R. (3d)
    401, at paras. 65-66, 90.

[21]

The motion judge invoked similar considerations
    in appointing BDO as monitor in this case. She noted that a monitor may be
    appointed where the plaintiffs ability to recover could be seriously
    jeopardized: at para. 61. The appointment was made not to adjudicate on an
    issue, but rather to provide the accounting that is required by both parties in
    order to resolve or try this issue: at para. 63. BDO would perform an audit
    function and determine the proper equalization payment to be made to one
    party: at para. 63.

[22]

This court has accepted that the appointment of a
    receiver on an interlocutory motion under s. 101(1) of the
Courts of
    Justice Act
(rather than on application) is interlocutory: see e.g.,
Illidge
    (Trustee of) v. St. James Securities Inc.
(2002), 60 O.R. (3d) 155 (C.A.),
    at para. 4;
Ontario v. Shehrazad Non Profit Housing Inc.
, 2007 ONCA
    267, 85 O.R. (3d) 81, at paras. 15-17.

[23]

In my view, the same is true of the order
    appointing BDO as investigative monitor here. The order does not adjudicate the
    parties rights and obligations. Rather, it authorizes BDO to undertake an audit,
    to protect the parties interests pending the resolution of the dispute, and to
    furnish the court with information to help resolve the dispute. The order
    appointing the monitor is interlocutory.

(2)

Interim release of funds to operate ASU SVG

[24]

Paragraphs 16-17 of the order require the parties
    to authorize the release of USD$1 million from the partnership funds to Theresa
    and Mane to operate ASU SVG, as an advance on any sum found to payable to [them],
    with any further release of interim funds at BDOs sole discretion.

[25]

In her reasons, the motion judge noted Joshua
    has admitted that $1 million could be released for each of the universities to
    allow them operating funds for a period of two months: at para. 44. She also highlighted
    that Joshua conceded that USD$4.6 million is currently in a Pay[P]al account
    that is related to both medical schools: at para. 44. She ordered an interim
    release of funds for ASU SVG alone because she was not convinced on the
    evidence that ASU Dominica requires funds on an urgent basis in order to
    continue its operations. There does appear to be an urgent need for ASU SVG:
    at para. 88.

[26]

An interim release of funds to one party, on
    motion, that settles no elements of the
lis
between the parties is an
    interlocutory order: see
Grand River Enterprises
, at paras. 4, 6, 9,
    and 13;
Watkin v. Open Window Bakery Ltd.
(1996), 28 O.R. (3d) 441 (Div.
    Ct.), at p. 444.

[27]

The responding parties assert in their factum
that
this aspect of the order is final in nature as
    it was granted against [their] wishes and the failure to make an equal
    payment to [them] leaves them without the working capital they need and thus,
    this is highly prejudicial and finally brings their request for money to an
    end.

[28]

This submission is without merit. The order refers
    to an advance of monies that may be found to be owing to Theresa and Mane. It
    is not a final determination of anyones entitlement. If the court ultimately
    decides that no money was owing to Theresa, Mane, or ASU SVG, it may have to be
    repaid.

[29]

Thus, I conclude that the order for an interim
    payment to Theresa and Mane to operate ASU SVG is interlocutory.

(3)

Interim injunction

[30]

Paragraphs 18-19 of the order restrain Joshua on
    an interim basis from directly or indirectly providing medical education in St.
    Vincent and the Grenadines, except through the American University of St.
    Vincent, and regarding the American University of St. Vincent, restrains Joshua
    from enrolling or educating students enrolled with ASU SVG, or employing
    individuals employed by ASU SVG, in the previous 12 months.

[31]

An interim or interlocutory injunction is
    interlocutory for purposes of the appeal route, because its legal nature does
    not finally determine the essence of the litigation before the court, even if
    its practical effect may be to do so: see
Amphenol
, at para. 23;
Ontario
    Medical Assn.
, at p. 470; and
Deltro Group
, at para. 3.

[32]

As a result, I conclude that this aspect of the
    order is interlocutory.

(4)

Conversion of the application to an action

[33]

Paragraphs 20-22 of the order convert the
    application to an action and provide a deadline for delivery of the statement
    of claim.

[34]

An order converting an application into an
    action is interlocutory. Such an order simply converts the application into a
    trial. The matter was started in the Superior Court of Justice and remains
    there: see
Susan J. Model & Talent Management Inc. v. IMG Models Inc.
,
    2006 CanLII 2882 (Ont. C.A.), at para. 3.

(5)

Addition of parties

[35]

Paragraph 23 of the order grants leave to add
    the American University of St. Vincent and related individuals as
    defendants.

[36]

An order adding parties as defendants is
    interlocutory. The litigation continues, and the order does not affect the added
    parties substantive rights: see
Fram Elgin Mills 90 Inc.
, at para. 28;
Hunter v. Richardson
, 2013 ONCA 731, at para. 2;
Shoukralla v.
    Shoukralla
, 2016 ONCA 128, 41 C.B.R. (6th) 6, at para. 17; and
Robinson
    v. Thornlea Farms Ltd.
, [1991] O.J. No. 2219 (C.A.).

(6)

Refusal to seal the court file

[37]

Paragraphs 24-25 of the order deny the request
    to seal the entire court file, except for certain affidavits that are to remain
    sealed. However, at para. 92 of her reasons, the motion judge stated [t]his
    issue can be revisited in the action if either party can present evidence in
    support of it.

[38]

This aspect of the order does not finally
    determine the real matter in dispute between the parties  the claim of
    corporate oppression, whether the responding parties have appropriately
    accounted to the moving parties for monies that may be owing to them, and the
    appropriate way to separate the two medical school businesses. Instead, it
    relates to the collateral matter of whether the court file is to be sealed, and
    in any event, is open to being revisited on
appropriate
evidence. In my view, this aspect of the order is therefore
    interlocutory.

(7)

Refusal to refer the dispute to arbitration

[39]

Finally, the responding parties assert that the
    motion judge refused to refer the dispute to arbitration under the arbitration
    clause in the Partnership Agreement
, and that this
    was a final order
because it finally determined the forum for adjudicating
    the parties dispute and deprived the responding parties of their substantive contractual
    right to resolve the dispute by arbitration.

[40]

I do not agree with this submission in this case.

[41]

It is telling that the motion judges order is
    silent on the issue of arbitration. As the motion judges reasons explain, this
    is because there was no motion before the court to refer the dispute to
    arbitration.

[42]

At para. 51 of her reasons, the motion judge
    accepted that the Partnership Agreement clearly states that any disputes
    should be resolved through an arbitration, adding that under the arbitration
    clause injunctive relief may be sought outside the arbitration process. Accordingly,
    nothing prohibited the moving parties from seeking injunctive relief before the
    court: at para. 52.

[43]

At para. 55, the motion judge observed that, despite
    the responding parties maintaining in their affidavit material on the motion
    that the matter should have proceeded to arbitration, at no time did they
    bring a motion seeking to stay these proceedings or to compel the [moving
    parties] to proceed by way of arbitration. She highlighted s. 7(1) of the
Arbitration
    Act, 1991
, S.O. 1991, c. 17 (
Arbitration Act
), which makes it clear
    that the action can only be stayed by way of motion, and even then, the court
    has the discretion to refuse to grant the stay if the motion is not made in a
    timely manner: at para. 55. That discretion arises under s. 7(2)4 of the
Arbitration
    Act
:

7
(2) However,
    the court may refuse to stay the proceeding in
any of
the following cases:

4. The motion was brought with undue delay.

[44]

At para. 57, the motion judge suggested that
    even if the responding parties had a right to have the issues determined by an
    arbitrator, they waived this right when they took steps within the proceeding.

[45]

At para. 58, the motion judge said that the lack
    of a motion to stay the proceeding and the responding parties taking steps
    within the proceeding meant that they had waived any right to arbitration:

[G]iven that
there is no motion before the Court to stay the action, and given
    that the [responding parties] have taken significant steps to respond to this
    application, including filing numerous affidavits, producing
viva voce
evidence in the application, conducting cross-examinations and even bringing an
    oral motion without formal notice seeking to remove the [moving parties]
    counsel as solicitors of record for the [moving parties], I find that the
    [responding parties] have waived their right to seek to have these issues
    determined by way of arbitration.

[46]

In my view, the motion judge did not make a
    final determination on whether the dispute should be referred to arbitration.
    She explained that the responding parties had failed to bring a motion as
    required by s. 7, and thus it was not open to her to grant a stay. For good
    measure, in
obiter
, she raised the issues of delay and waiver.

[47]

Even if the motion judge is viewed as having
    exercised discretion because of undue delay under s. 7(2)4 of the
Arbitration
    Act
to refuse to stay the court proceeding and refer the dispute to
    arbitration  despite the silence of the order on this point  this court would
    still lack appellate jurisdiction over this aspect of the order. Section 7(6)
    of the
Arbitration Act
provides: There is no appeal from the courts
    decision. The appeal bar in s. 7(6) applies to any decision under s. 7,
    including a decision to refuse a stay under s. 7(2): see
TELUS
    Communications Inc. v. Wellman
, 2019 SCC 19, [2019] 2 S.C.R. 144, at para.
    91;
Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard
    Condominium Corporation No. 1636
, 2020 ONCA 612, at paras. 62, 66-68, and 95.

[48]

Thus, on either reading of the motion judges
    reasons, I conclude this court lacks jurisdiction over this aspect of the order
    under appeal.

Disposition

[49]

I would grant the motion to quash the appeal and
    dismiss the motion to stay the order under appeal, without prejudice to the right
    to seek leave to appeal to the Divisional Court and to renew the stay motion
    before that court.

[50]

I would order costs payable to the moving
    parties
in the agreed amount of $15,000
all
    inclusive.

Released: October 19, 2020 (D.D)

M.
    Jamal J.A.

I
    agree. Doherty J.A.

I
    agree. Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Pearl Hospitality Inc. v.
    Ceballos, 2020 ONCA 672

DATE: 20201022

DOCKET: C67897

Huscroft, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Pearl
    Hospitality Inc.

Plaintiff (Respondent)

and

Danilo Ceballos and Emelin
    Ceballos

Defendants (Appellants)

Danilo Ceballos, acting in person

Inderbir S. Arora and Joga Chahal, for
    the respondent

Heard by video conference and released orally:
    October 20, 2020

On
    appeal from the judgment of Justice Grant R. Dow of the Superior Court of
    Justice, dated December 9
th
, 2019.

REASONS FOR DECISION

[1]

The defendants appeal from the summary judgment
    granted by the motion judge on a mortgage debt. The appellants admit that the
    debt is outstanding but submit that there were fraudulent representations made
    by the appellants mortgage agent that led to the mortgage in the first place.

[2]

The motion judge was aware of this issue but
    noted that those alleged fraudulent representations were the subject of a
    separate proceeding that the appellants had commenced and which was not before
    him.

[3]

We agree with the motion judge that there was no
    reason to withhold dealing with the amount due under the mortgage because of
    that separate proceeding. The appellants have failed to show any error in the
    motion judges decision to grant summary judgment.

[4]

The appeal is dismissed. The respondent is
    entitled to its costs of the appeal fixed in the amount of $7,500 inclusive of
    disbursements and HST.

Grant
    Huscroft J.A.

I.V.B.
    Nordheimer J.A.

Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beseiso, 2020 ONCA 686

DATE: 20201029

DOCKET: C68268

Watt, Roberts and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alex Beseiso

Appellant

Alex Beseiso, acting in person

Randy Schwartz, for the respondent

Heard: in writing

On appeal
    from the order of Justice Clayton Conlan of the Superior Court of Justice,
    dated March 9, 2020.

REASONS
    FOR DECISION

[1]

The appellant appeals from the order dismissing
    his application for
certiorari
to quash the committal order of Justice
    G. Paul Renwick of the Ontario Court of Justice, dated October 11, 2019. Following
    a three-day preliminary inquiry at which the appellant was represented by
    counsel and testified, the appellant was committed to stand trial in the
    Superior Court of Justice on two counts of intimidating a justice system
    participant and three counts of criminal harassment. The Crown withdrew two
    counts of breaching two distinct probation orders, and the preliminary inquiry
    judge discharged the appellant on one additional count of intimidating a
    justice system participant.

[2]

Pursuant to the Crowns request, the registrar
    referred the appellants appeal to this panel for summary determination in
    writing under s. 685(1) of the
Criminal Code
, R.S.C. 1985, c. C-46.
    The appellant requests an oral hearing.

[3]

For the reasons that follow, given the record
    before us, including the voluminous materials submitted by the appellant, which
    we have reviewed, and the nature of the issues raised, we are satisfied that
    the appeal can be determined without being adjourned for a full oral hearing
    before a panel of this court.

[4]

The charges against the appellant arose as a
    result of his abusive and threatening communications with a now former Crown
    prosecutor, who had successfully prosecuted the appellant for threatening and
    harassing a court transcriptionist, and with two courthouse administrative
    staff members regarding the assignment of judges to his cases. These individuals
    are the three complainants in this matter.

[5]

The appellant submits that the application judge
    erred in dismissing his application for
certiorari
. From our review of
    the documents that the appellant has submitted, including his recent response
    to the Crowns request under s. 685(1) of the
Criminal Code
, we
    determine that the appellants main grounds of appeal are as follows:

i.

While the appellant concedes that the other
    essential elements of the offences have been satisfied to the requisite
    standard at a preliminary inquiry, he argues there is no evidence to support
    the essential element of the offences that his actions were without lawful
    authority:
Criminal Code
, ss. 264(1), 423.1(1). According to the
    appellant, the preliminary inquiry judge failed to make such a finding.

ii.

The appellant argues that the application judge
    was biased because he sits in the same region in which the two courthouse
    administrative staff members work. Therefore, the application judge must have
    regular and frequent dealings with these complainants, which gives rise to
    bias.

[6]

Section 685(1) of the
Criminal Code
allows
    this court to dismiss an appeal summarily, without calling on any person to
    attend the hearing or appear for the respondent on the hearing, if it
    considers that the appeal is frivolous or vexatious and can be determined
    without being adjourned for a full hearing. This appeal satisfies those
    criteria.

[7]

In our view, the appellants appeal is frivolous,
    as that term is used in s. 685(1) of the
Criminal Code
, because
    it is completely devoid of merit: see
Lochner v. Ontario (Attorney General)
,
    2019 ONCA 730, at para. 21;
R. v. Mehedi
, 2019 ONCA 387, at para. 6,
    leave to appeal refused,
[2019] S.C.C.A. No. 280
.

[8]

The appellants first ground of appeal was
    thoroughly considered by the application judge. We see no basis to interfere
    with his dismissal of the appellants application for
certiorari
. As the
    application judge correctly pointed out, and as demonstrated by the preliminary
    inquiry judges reasons, the preliminary inquiry judge reviewed the essential
    elements of the offences in issue. The preliminary inquiry judge determined
    that there was evidence to support the essential element that the appellants
    abusive and harassing behaviour was without lawful authority. We agree with the
    application judges conclusion that there was no error in this determination.

[9]

The appellants second ground of appeal
    similarly has no merit. Given the strong presumption of judicial impartiality,
    the test for demonstrating judicial bias is a stringent one:
Cojocaru v.
    British Columbia Womens Hospital and Health Centre
, 2013 SCC 30,
    [2013] 2 S.C.R. 357, at para. 20;

Wewaykum
    Indian Band v. Canada
, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59
. The test asks whether an informed person, viewing the matter
    realistically and practically ‒ and having thought the matter through
[
would
]
conclude, whether consciously or unconsciously, that the matter
    was not decided fairly:
Committee for Justice and Liberty et al. v.
    National Energy Board et al.
, [1978] 1 S.C.R. 369, at p. 394,
per
de
    Grandpré J. (dissenting). The grounds for this apprehension of bias must be substantial:
Committee for Justice and Liberty
, at p. 395. The appellant has not
    met this high standard.

[10]

The record before us shows no evidence of bias. There
    is nothing in the record showing that the application judge had any communications
    with the courthouse administrative staff members in question concerning the charges
    against the appellant. That the application judge might know and have
    professional dealings with these complainants does not on its own give rise to
    the appearance of bias, let alone actual bias. Moreover, the application
    judges reasons demonstrate that he treated the appellant respectfully and
    considered his application fairly and, as we noted, came to the correct
    conclusion.

[11]

The remaining allegations in the appellants
    materials do not raise any arguable ground of appeal. They consist of the
    appellants expression of his ongoing general grievances against the
    administration of justice, including judges, court administrators, and Crown
    counsel, as well as his personal beliefs and philosophies about life and other
    matters. These issues are not before us on this appeal, and we do not have
    jurisdiction to deal with them.

Disposition

[12]

The appellant has not raised any arguable ground
    of appeal that has any merit. The appeal is therefore frivolous. As a result,
    the appeal is dismissed.

David
    Watt J.A.

L.B.
    Roberts J.A.

M. Jamal
    J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Boodram, 2020 ONCA 618

DATE: 20201002

DOCKET:
    C65205

Simmons, Watt and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Burton
    Boodram

Appellant

R. Craig
    Bottomley and Andrea VanderHeyden, for the appellant

Sean
    Horgan, for the respondent

Heard: September
    28, 2020 by video conference

On appeal
    from the convictions entered on January 11, 2018 by Justice G. Paul Renwick of
    the Ontario Court of Justice.

REASONS FOR
    DECISION

[1]

After hearing this appeal, we endorsed the
    Appeal Book: For reasons to follow, the appeal is dismissed. These are our
    reasons.

[2]

Following a judge alone trial, the appellant was
    found guilty of accessing, possessing and attempting to distribute child
    pornography and obstructing police. The accessing charge was stayed pursuant to
Kienapple
.
[1]
Convictions were entered for the other charges. The appellant appeals from his
    convictions and raises two issues on appeal.

[3]

First, the appellant argues that the trial judge
    engaged in prohibited reasoning by relying on evidence of other discreditable
    conduct to find the appellant guilty. The appellant points out that the Crown
    failed to bring a similar fact application and that the trial judge gave
    himself only a single-sentence boiler plate instruction against propensity
    reasoning. Moreover, the appellant submits that in his reasons, the trial judge
    expressly relied on the other discreditable conduct evidence as circumstantial
    evidence that assisted him in finding that the appellant downloaded the child
    pornography onto the two cell phones found in the appellants possession.

[4]

We do not accept this submission. No issues were
    raised concerning the admissibility or use of the impugned evidence at trial. In
    his reasons, the trial judge identified the issue to which the evidence was
    relevant and concluded that it was sufficiently probative of that issue to
    warrant his reliance on it.

[5]

The appellant testified it was someone else (his
    friend, Chris  surname and location unknown) who downloaded child pornography
    onto the cell phones found in the appellants possession. In that context, the
    trial judge concluded the evidence of the appellant's fantasizing about having
    sexual relations with a child and role playing with a friend about having a
    threesome with a child was relevant and probative on the issue of identity. The
    trial judge concluded that that evidence and the evidence of use of child
    pornography in on-line discussions with his friend were such unique events
    that they assist me to find that [the appellant] used the two cell phones found
    near his bed to search for and obtain child pornography in order to stimulate
    and satisfy his professed sexual interest in children.

[6]

We see no error in this conclusion. The trial
    judge cautioned himself appropriately against impermissible propensity or bad
    character reasoning. The evidence in question satisfied the
Handy
[2]
criteria for admissibility. It
    was relevant to a specific issue at trial (identity) and its probative value in
    relation to that issue outweighed any potential prejudice.

[7]

Second, the appellant argues that the trial
    judge erred in relying on his observations of the appellant's hand movements
    while testifying in determining that the appellant was capable of operating a
    cell phone. The appellant submits that in doing so, the trial judge effectively
    disregarded the expert evidence adduced by the appellant at trial and rendered
    the trial unfair by failing to give the defence an opportunity to make
    submissions regarding the observations.

[8]

We do not accept this argument. The question of
    the appellant's ability to operate a cell phone because of a physical
    disability was a live issue at the trial. The expert on whom the appellant
    relied had not tested the appellant's practical physical functioning or ability
    to adapt over time so that he could perform routine tasks. Crown witnesses
    testified that the appellant could operate a cell phone. While testifying, the
    appellant expressly invited the trial judge to observe his hands and his
    ability to move his hands. Having done so, it is not now open to the appellant
    to complain about the trial judge's observations made while he (the appellant)
    was in the witness box.

[9]

The appeal is dismissed.

Janet
    Simmons J.A.

David
    Watt J.A.

L.B.
    Roberts J.A.

[1]

Kienapple v. R.
, [1975] 1 S.C.R. 729.

[2]

R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2020 ONCA 657

DATE: 20201020

DOCKET: C63744

Brown, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryle Wade Brown

Appellant

Nathan Gorham and Breana Vandebeek, for
    the appellant

Samuel Greene, for the respondent

Heard: September 18, 2020 in writing

On appeal from the sentence imposed on November 10, 2016 by Justice Alan C.R. Whitten of the Superior Court of Justice with reasons at 2016 ONSC 5854.

Trotter J.A.:

[1]

The appellant, Daryle Brown, attacked and raped
    a woman at random in August 2012. He entered a plea of guilty to aggravated
    sexual assault, contrary to s. 272(2)(b) of the
Criminal Code
, R.S.C.
    1985, c. C-46, and was sentenced to imprisonment for 12 years, less credit for
    pre-sentence custody (PSC). He appeals his sentence.

[2]

The appellant submits that the sentencing judge
    failed to properly consider his Inuit heritage in accordance with
R. v.
    Gladue
,
[1999] 1 S.C.R. 688, and did not give effect to the
    principles of proportionality and restraint, resulting in a sentence that was
    unduly harsh. The respondent argues that the sentencing judge did not err in
    his consideration of
Gladue

factors or in his application of
    sentencing principles.

[3]

In the following reasons, I explain why I would
    grant leave to appeal but dismiss the appeal. While I agree that the sentencing
    judge erred in his application of
Gladue

principles, I am
    satisfied that the sentence he ultimately imposed is fit in the circumstances
    of this case.

A.

THE FACTS OF THE
    OFFENCE

[4]

The appellants attack on the victim took place in
    the early morning hours of August 9
th
, 2012 in Brantford, Ontario.
    The appellant had been drinking excessively the previous evening. He got into a
    fight with a group of men he encountered and sustained considerable injuries. The
    appellant said that he went home and lost consciousness after walking into a
    wall. Paramedics took him to the hospital where his blood alcohol level was
    measured at 198 milligrams of alcohol in 100 milliliters of blood. The
    appellants former foster mother drove him home from the hospital. He has no
    memory of what happened from this point forward.

[5]

At some point after being driven home, the
    appellant ventured out into the night. While out, the appellant found and
    followed two women as they walked to their respective homes.

[6]

He began following the first woman after she
    left a coffee shop in downtown Brantford. Nervous about being followed, this
    woman walked towards a couple who were going the same way. The appellant
    continued to follow. The woman walked past the couple and went to a convenience
    store, but it was closed. She knew that the people who ran the convenience
    store lived in an adjoining house. She walked towards the house. The couple she
    had passed on the street walked in the same direction. Suddenly, the appellant
    appeared out of nowhere and moved towards her. However, he backed off when he
    noticed other people around. The couple realized the seriousness of the
    situation and took the woman to their home to retrieve their dog and a baseball
    bat. From their porch, they saw the appellant from a distance in the bushes.

[7]

Shortly after this disturbing encounter, the
    appellant turned his attention to the victim. She had just left her job at a
    restaurant to walk home. Suddenly, the appellant jumped up on her. He grabbed
    her by the neck and twisted her head from side to side. He bashed the victims
    head against some rocks and then choked her until she was unconscious. When the
    victim regained consciousness, she noticed that the assailant had removed her
    pants and underwear. She had been raped. The victim described feeling intense
    pain; as she said in her Victim Impact Statement: It felt as though my head
    had been struck by a wrecking ball. The appellant had also stolen the victims
    identification and credit cards, which were never recovered. She was able to
    get herself to safety at a nearby gas station, leaving a trail of blood behind.

[8]

The victim suffered horrible injuries. She
    required 100 stitches to her head. She had cuts and bruises on her face that
    caused her eyes to swell shut. She could not see for days, nor could she speak
    because her tongue was so swollen. The victim also suffered neck injuries,
    vertigo, and a torn rotator cuff. She remained in the hospital for a week. Even
    a year later, she was required to return to the doctor to have a rock fragment removed
    from her head.

[9]

The psychological impact on the victim was
    profound. She suffered from post-traumatic stress disorder and has trouble
    sleeping. She is always on hyper-alert and afraid of social situations. In her
    Victim Impact Statement, the victim detailed the many ways that this attack impacted
    her day-to-day life.

B.

THE SENTENCING
    PROCEEDINGS

[10]

This case took a long time to resolve. It would
    not be until November 30
th
, 2015 that the appellant entered his
    guilty plea, more than three years after the offence. Another year passed while
    the Crown considered commencing dangerous offender proceedings under Part XXIV
    of the
Criminal Code
. Ultimately, the Crown decided not to pursue this
    course. Nonetheless, a great deal of information was gathered about the
    appellant. The sentencing judge received a Pre-Sentence Report (PSR), a
Gladue

Report, and a psychological assessment. The appellant also testified during
    the sentencing hearing.

[11]

From the information gathered, a picture emerged
    of a person who had endured a very difficult upbringing. The PSR summarized the
    appellants history as follows:

The subject was raised in an unstable home and
    negative environment. His mother was an alcoholic, he had no relationship with
    his biological father and lacked a positive father figure. He was a victim and
    a witness to violence in the home. He was neglected by his mother and was
    placed into care as a youth. The subject has no support from his family members
    but does have positive support from his ex-partner and past foster mother.

[12]

While in care, the appellant had his first
    encounter with the criminal justice system. He was convicted of sexual assault
    and mischief in relation to a foster sister. He testified at the sentencing
    hearing that the touching was accidental and that he entered a plea of guilty on
    the advice of his lawyer.

[13]

The appellant was 25 years old when he was
    sentenced for the offence before the court. By that point, he had children of
    his own. He is currently 29.

[14]

At the sentencing hearing, there was evidence
    that the appellant accepted responsibility for his actions, even though he had
    no memory of them. He also expressed remorse.

[15]

It is clear that alcohol played some role in the
    offence. The degree to which the appellant struggles with alcohol in general is
    less clear, owing to his inconsistent reporting on his relationship with
    alcohol. However, the preponderance of information suggested that the appellant
    has an alcohol problem. He attended a number of treatment programs for alcohol
    dependency while in PSC, including Alcoholics Anonymous.

[16]

There were serious concerns about recidivism in this
    case. There is still no explanation for the events of that night. The trigger
    of the appellants behaviour remains unknown. Accordingly, it is unsurprising
    that the psychological assessment of the appellant revealed that he had a
    moderate to moderate-high risk to re-offend in a sexual manner. Likewise, a
    psychiatrist concluded that he was a high-moderate risk to re-offend.

[17]

An issue that eluded clarity at the proceedings related
    to the appellants lineage. After receiving the
Gladue

Report,
    the Crown disputed the appellants assertion that he is indeed Inuit. He
    submitted that establishing ones Indigenous heritage is a pre-condition to the
    application of principles established in
Gladue
and subsequent cases.

[18]

Understandably, a good deal of the appellants
    knowledge about his heritage came from his mother and the person the appellant
    believes is his father: Lyle Thompson. Mr. Thompson is Inuit. The appellants
    mother and other family members have insisted to the appellant that Mr.
    Thompson is his biological father. Confusion arose because the father of the
    appellants step-sister, Darren Lamb, who apparently is not Indigenous, signed
    the appellants birth certificate as his father. The appellant testified that,
    by the time he was born, Mr. Thompson was no longer in the picture and his
    mother was with Mr. Lamb. According to the appellant, Mr. Lamb signed his birth
    certificate without his mothers knowledge. The appellant said in his
    testimony: My mom was with Darren Lamb when I was born and thats about it.
    Thats all I know. Mr. Lamb has never told the appellant that he is his
    father.

[19]

The appellant met Mr. Thompson when he was 18.
    He testified that they share the same facial characteristics, hair colour, and
    skin tone. He learned that he has two half-sisters and one half-brother from
    his father.

[20]

The appellant relayed to the author of the
Gladue

Report an argument he had with Mr. Thompson long ago, which ended with Mr.
    Thompson telling him: Youre not my son so fuck off. The Crown relied heavily
    upon this utterance in maintaining that
Gladue
principles did not
    apply. The appellant testified that this comment was said in the throes of
    anger.

[21]

The author of the Gladue Report interviewed the
    appellants aunt; an aunt whom he had never met, and who was Mr. Thompsons
    sister. She relayed that she and Mr. Thompson are Inuit from the Western Arctic.
    Their family has a deep history of trauma stemming from colonial state policies.
    The appellants aunt reported that both of her parents spent the majority of
    their childhoods and adolescences in residential school. Likewise, Mr. Thompson
    and the appellants aunt were forcibly separated from their family and
    community while they were children. She had attended residential school and Mr.
    Thompson was scooped in the 1970s; that is, he was adopted into a
    non-Indigenous family. According to the appellants aunt, Mr. Thompson
    struggled with identity issues and had trouble connecting with his family when
    he eventually returned for visits.

[22]

The appellants testimony created further
    confusion when he said that his mother has Métis heritage. The appellant did
    not relay this information to the author of the
Gladue
Report.  In his
    testimony, the appellant explained that, at the time that he was interviewed by
    the
Gladue

Report writer, he did not know about his mothers
    lineage.

[23]

Unfortunately, neither the appellants mother
    nor Mr. Thompson were able to testify at the sentencing hearing. Both were in
    British Columbia at the time and unable to get to Ontario.

[24]

Another issue to be resolved was the question of
    credit for time spent in PSC. The appellant testified about the conditions he
    experienced while in PSC. He was triple-bunked on occasion, in cells with no
    toilets. This resulted in inmates having to call a guard to be escorted to the
    washroom. If an inmate could not wait, he would urinate into a used potato chip
    bag, a towel, or on the floor.

[25]

The appellant also filed a letter from a retired
    chaplain who had more than 21 sessions with him while in PSC. The chaplain
    reported that the appellant had participated in Alcoholics Anonymous, another
    substance abuse program, as well as various Christian-based programs. He
    described the appellant as a model inmate.

[26]

At the sentencing hearing, the Crown sought a penitentiary
    sentence of 12-15 years, less credit for 50 months of PSC on a 1:1 basis. The
    appellant sought a sentence of 6 to 8 years imprisonment, less credit on a
    1.5:1 basis.

C.

THE REASONS OF THE
    SENTENCING JUDGE

[27]

The sentencing judge provided detailed reasons
    for the sentence imposed. He reviewed the facts of the offence as well as the
    materials referred to above. He considered in some detail the conflicting materials
    bearing on the appellants background; an issue I return to below.

[28]

In terms of PSC, the sentencing judge acceded to
    the defence position and credited the appellant with 50 months on a 1.5:1 basis
    to produce a total credit of 75 months (or six years and three months).

[29]

The sentencing judge considered a number of
    decisions from this court: namely,

R. v. Last
, 2008 ONCA 593,
    91 O.R. (3d) 561, revd on other grounds 2009 SCC 45, [2009] 3 S.C.R. 146;
R.
    v. Kavanaugh
, 2009 ONCA 759, 255 O.A.C. 285; and
R. v. Anderson
,
    2012 ONCA 373, 292 O.A.C. 365. From these cases he charted the following
    approach:

When crafting a sentence for a sexual assault,
    a jurist may consider this non-exhaustive list of factors that emerge from
    precedent:

a)

The degree of brutality or violence employed in the assault;

b)

Steps taken by the perpetrator to overcome the resistance of the
    victim;

c)

The resulting emotional and physical injuries to the victim, both in
    the short run and in the long run;

d)

The degree of degradation of the victim;

e)

The vulnerability of the victim;

f)

The risk of the victim contracting a sexually transmitted disease or
    becoming pregnant;

g)

The risk of reoffending or possibility of future dangerousness; and

h)

Any explanation for the accuseds conduct.

[30]

The trial judge characterized the appellants
    conduct as a horrific crime perpetrated on a vulnerable young woman, a
    complete stranger, while she was walking home after having completed her shift
    at a fast food outlet. He noted that the photos of the victim in her hospital
    bed are horrific. The sentencing judge observed that: There was absolutely no
    explanation for the attack, aside from the fact that the accused appeared to be
    on the prowl. As he said, at paras. 102-103:

The random nature of this attack would
    inevitably cause one to think, in the absence of an explanation, why would this
not
happen again? There were no predictors of this behaviour. The
    accused was convicted of sexual assault as a youth: he minimized his
    culpability and he pled because he had acted in accordance with his lawyers
    advice. But that latter conviction was so far removed from the magnitude of
    what transpired in this case.

What is the explanation, for this massive
    acceleration of dangerousness? No wonder Dr. Chaimovitz concludes that Mr.
    Brown is of moderate to high risk to reoffend.

[31]

As described above, the sentencing judge imposed
    a sentence of 12 years imprisonment less 75 months credit for time served in
    PSC.

D.

ISSUES ON APPEAL

(1)

The Principles in
Gladue

(a)

The Positions of the Parties

[32]

The appellant submits that the sentencing judge
    misapplied the principles in
Gladue
by concluding that the seriousness
    of his offending precluded the consideration of his Inuit background. The
    appellant relies on the following passage from the sentencing judges reasons,
    at paras. 72-73, which was the last thing he said about this issue:

Having observed that there is minimal
    connection between Mr. Brown and his alleged aboriginal roots and that there is
    some issue as to his being identified as an aboriginal,
it must be said that
    these issues are somewhat moot because of the seriousness of the offence that
    he committed
.

In
R. v. Gladue
, at paras. 78-80, the
    Court recognized that there are some offences of such seriousness and violence
    that, as a practical reality, the seriousness of the offence demands a sentence
    of imprisonment, irrespective of the persons aboriginal heritage.
In other
    words, any effort to distinguish the circumstances of the aboriginal becomes
    eclipsed by the circumstances of the offence.
This is such a case.
    [Emphasis added.]

[33]

The appellant submits that the error lies in
    reading
Gladue
in isolation. The sentencing judge referred to a passage
    from that decision in which Cory and Iacobucci JJ. said the following, at para.
    79:

Yet, even where an offence is considered
    serious, the length of the term of imprisonment must be considered. In some
    circumstances the length of the sentence of an aboriginal offender may be less
    and in others the same as that of any other offender.
Generally, the
    more violent and serious the offence the more likely it is as a practical
    reality that the terms of imprisonment for aboriginals and non‑aboriginals
    will be close to each other or the same, even taking into account their
    different concepts of sentencing.
[Emphasis added.]

[34]

Subsequently, in
R. v. Ipeelee
, 2012 SCC
    13, [2012] 1 S.C.R. 433, the Supreme Court clarified whether
Gladue
applies
    to sentencing decisions for violent or serious offences. Writing for the
    majority, LeBel J. observed that courts have misunderstood the above quoted
    passage from
Gladue
.  As he wrote, at paras. 84-85:

Numerous courts have erroneously
    interpreted this generalization as an indication that the
Gladue
principles
    do not apply to serious offences
(see, e.g.,
R.
    v. Carrière
(2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).

Whatever criticisms may be directed at the
    decision of this Court for any ambiguity in this respect, the judgment
    ultimately makes it clear that sentencing judges have a
duty
to
    apply s. 718.2(
e
): There is no discretion as to whether to consider the
    unique situation of the aboriginal offender; the only discretion concerns the
    determination of a just and appropriate sentence (
Gladue
, at para. 82).
    [Emphasis added.]

See also
R. v. Wells
, 2000 SCC
    10, [2000] 1 S.C.R. 207, at para. 50.

[35]

The respondent submits that the sentencing judge
    made no error in his approach to this issue. According to the respondent, the
    appellant relies on a single phrase of the sentencing judges reasons  these
    issues are somewhat moot because of the seriousness of the offence  out of
    context. The respondent presents a different interpretation of this statement:
    what the sentencing judge was really saying was, whether the appellant was in
    fact an Indigenous offender was moot, because he was prepared to assume that
    he was Indigenous for the purposes of sentencing.

[36]

The respondent also relies upon this courts
    decision in
R. v. Altiman
, 2019 ONCA 511, 56 C.R. (7th) 83, in which the
    sentencing judge was alleged to have made the same error in this case. The
    court rejected this submission. As Brown J.A. said, at para. 84:

While the sentencing judges reasons would
    have benefitted from a reference to
Ipeelees
clarification
    of
Gladu
e on this point, his are not the only reasons to have
    lacked that completeness. For example, this court in
R. v. Fraser
,
    2016 ONCA 745, referred to the passage in
Gladue
about the
    seriousness of the offence without also mentioning
Ipeelee
: at
    para. 26.

[37]

Lastly, it is the respondents position that,
    irrespective of any error, the sentence was otherwise fit.

(b)

Analysis

[38]

The sentencing judge's reasons reveal an
    in-depth appreciation of the remedial purposes of
Gladue
. He recognized
    that s. 718.2(e) of the
Criminal Code
is designed to address the
    overrepresentation of aboriginals in the prison system. He also commented on how
    colonial policies, such as residential schools and the phenomenon of
    scooping, resulted in the destruction of aboriginal culture and the social
    handicapping of aboriginal peoples.

[39]

The sentencing judge also understood that these
    circumstances must be taken into consideration in the sentencing of an
    Indigenous offender, noting that: Jurists must recognize the negative aspects
    of this colonization on the lives of aboriginal offenders appearing before
    them. He specifically referred to
Ipeelee
for the proposition that
    courts must consider background factors that may have played a role in the
    offence coming before the court, without requiring the offender to establish a
    direct causal link between his circumstances. It was from this vantage point
    that the sentencing judge evaluated the appellants asserted Inuit heritage.

[40]

However, the sentencing judges application of
    this important framework became distorted by his reference to the mootness of
    the appellants lineage as it related to the severity of the offence. The
    impugned passage suggests that it did not really matter whether the appellant
    was Inuit because it could have no effect  on the sentence. As discussed below,
    although the appellants Inuit heritage may not have had any tangible impact on
    the sentence imposed, it was still important to the mode of analysis required
    by the
Gladue
line of cases.

[41]

It would have been preferable had the trial
    judge: (1) made an explicit finding about the appellants parentage; and (2) if
    satisfied that
Gladue
was in play, applied the principles in accordance
    with
Gladue
and
Ipeelee
.

[42]

As for parentage, the respondent is correct that
    the sentencing judge seemed prepared to assume, for the purpose of the
Gladue
analysis, that Mr. Thompson was the appellants father and that the
    appellant had Inuit heritage. The sentencing judge addressed the conflicting evidence
    around the appellants identity as follows, at para. 69:

The jurist has to take a practical approach to
    ensure that the
Gladue
principles are honoured. The inconsistent
    evidence as to the parentage of Mr. Brown, and his lack of aboriginal documentation,
    may very well be a function of his obviously chaotic childhood flowing from
    having an alcoholic mother with several partners. It also may be due to
    inconsistent recording of lineage, since a big component of aboriginal history
    is oral. To compel Mr. Brown to provide direct documentary evidence, even to
    establish on a balance of probabilities his parentage, simply may not be
    realistic or doable.

[43]

I see no error in this approach. The appellant
    has been told his whole life that Mr. Thompson was his father. There is no
    other reason that the appellant would have tracked down Mr. Thompson when he
    was 18. Moreover, to require the appellant to prove his heritage in these
    circumstances would create an undue evidentiary burden that is inconsistent
    with the overarching remedial purposes of s. 718.2(e). Again, it would have
    been preferable had the sentencing judge made an explicit factual finding on
    this issue. Nonetheless, I would likewise proceed on the same basis that the
    appellant is of Inuit heritage.

[44]

In terms of the application of
Gladue
principles, I am satisfied that the sentencing judge made the
Ipeelee
error
    that the appellant identifies. With respect, I cannot accept the respondents
    interpretation of the passage from the sentencing judges reasons, reproduced
    in para. 32, above. The appellants submission is not predicated on a single
    phrase, as the respondent submits. The somewhat moot passage was followed by
    a paragraph that cited the very part of
Gladue
that was clarified in
Ipeelee.
The sentencing judge concluded that paragraph by saying that the
    circumstances related to the appellants Indigeneity were eclipsed by the
    circumstances of the offence in this case.

[45]

The gravity of the offence did not, and could
    not, render the circumstances relating to the appellants Indigenous heritage moot.
    Rather,
Gladue
and its progeny prescribe a different method of analysis
    in determining a fit sentence for Indigenous offenders, which must be followed
    regardless of the severity of the offence at hand:
Ipeelee,
para. 59. Put
    another way, the
impact
of
Gladue
factors may vary in any given
    case but the method of analysis does not. The application of
Gladue
factors
    is always necessary to achieve a proportionate sentence for Indigenous
    offenders, and a failure to do so warrants appellate intervention:
R. v.
    Swampy,
2017 ABCA 134, 347 C.C.C. (3d) 105,

at paras. 26 and 36;
Ipeelee
,
    at para. 44. Considering the sentencing judges words at face value, and in the
    context of his reasons as a whole, I am left to conclude that he failed to adhere
    to this aspect of the
Gladue
principles.

[46]

That said, this type of error is not necessarily
    fatal. Granted, the sentencing judges reasons are not entitled to the customary
    appellate deference that they would normally attract; this court is required to
    consider the fitness of sentence afresh: see
R. v. F.H.L.
, 2018 ONCA 83,
    360 C.C.C. (3d) 189, at para. 36;
R. v. Collins
, 2011 ONCA 182, 104 O.R.
    (3d) 241, at para. 38;
R. v. Fraser
, 2016 ONCA 745, 33 C.R. (7th) 205,
    at para. 20. However, a re-assessment on appeal need not lead to a different
    outcome: see
F.H.L.
, at paras. 36-37;
R. v. Kakekagamick
(2006),
    81 O.R. (3d) 664, at para. 58, leave to appeal refused, [2007] S.C.C.A. No. 34;
    and
Swampy,
at paras. 37-38.

[47]

Looking at this aspect of the case afresh, I am satisfied
    that 12 years imprisonment is a fit sentence. The impact of the appellants
    Inuit ancestry on his moral blameworthiness does not outweigh the egregious
    nature of the appellants attack on a vulnerable, unsuspecting stranger.

[48]

An accused person is not required to draw a
    straight line between Aboriginal status and the offences for which he or she is
    being sentenced: see
Ipeelee
, at paras. 82-83;
R. v. Kreko
, 2016
    ONCA 367, 131 O.R. (3d) 685, at paras. 21-22. Such a requirement
imposes an
    evidentiary burden on offenders that was not intended by
Gladue
:
Ipeelee
,
    at para. 82.
However, more is required than the
    bare assertion of Aboriginal status:
R. v. Monckton
, 2017 ONCA 450, 349
    C.C.C. (3d) 90, at para. 115;
F.H.L.
, at para. 38;
R. v. E.C.
,
    2019 ONCA 688, at para. 16.

[49]

This courts decision in
R. v. Radcliffe
,
    2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No.
    274 outlines what more is required. Drawing on the framework in
Ipeelee
,
    Watt J.A. said the following, at paras. 54-55:

Courts are required to take judicial notice of
    the systemic and background factors affecting Aboriginal people in Canadian
    society.
But, on their own, these matters about which judicial notice must
    be taken do not necessarily justify a different sentence for Aboriginal
    offenders.
They provide the necessary
context
for understanding
    and evaluating the case-specific information which counsel have a duty to
    present, absent express informed waiver of the right to have it
    presented:
Ipeelee
, at para. 60.

Although systemic and background factors
    provide the necessary context to enable a judge to determine an appropriate
    sentence, rather than to excuse or justify the underlying conduct, it is only
    where the unique circumstances of an offender bear on culpability, or indicate
    which sentencing objective can and should be actualized, that they will
    influence the ultimate sentence:
Ipeelee
, at para. 83. [Emphasis
    added.]

See also
F.H.L.
, at paras.
    40-41.

[50]

In determining the extent to which
Gladue
factors bear on an offenders culpability, the court must consider whether the
    offender has lift[ed] his life circumstances and Aboriginal status from the
    general to the specific:
F.H.L.,
at

para. 45. Put another way,
    the sentencing judge must determine the degree to which unique circumstances related
    to the offenders background played a part in bringing that offender before the
    court. This is necessarily a case-specific inquiry.

[51]

The extent to which an Indigenous offenders
    unique circumstances mitigate moral culpability is a matter of degree. Here, the
    appellants potential loss of a father figure comes to bear on his blameworthiness
    in that it may have affected his positive development in childhood and
    adolescence. In that sense, I agree with the sentencing judges finding that
    the appellant can be seen as a recipient of the trickle down effects of the
    colonization referred to [in]
R. v Gladue
.

[52]

However, beyond that, the sentencing judge found
    that the appellants connection to his Inuit heritage was remote at best. While
    his fathers absence played a role in the appellants traumatic upbringing, the
    tumultuous nature of his childhood is more likely attributed elsewhere. His
    mother struggled with alcoholism and had a series of abusive partners, one of
    whom apparently strangled him to the point of unconsciousness on multiple
    occasions. He had his first drink at age seven, at the behest of one of his
    mothers partners. He recalls lacking proper food and clothing. The Childrens
    Aid Society apprehended the appellant at the vulnerable age of 10. He had
    limited contact with his biological mother for the remainder of his
    adolescence.

[53]

The appellants traumatic upbringing is more
    likely attributed to an unstable and abusive home that went well beyond any
    impact of the appellants father. It did not rise from the general to the
    specific in a way that diminished his moral culpability to a degree that it
    ought to have any impact on the sentence imposed: see
Altiman
, at para
    114. This was a case that required a sentence driven by the principles of
    denunciation and deterrence: see
F.H.L.
, at paras. 50-51.

[54]

In assessing this aspect of the case afresh, I
    agree with the sentencing judges ultimate conclusion that 12 years is a fit
    sentence, notwithstanding his error in principle. I would not interfere with
    the sentence on this basis.

(2)

The Principle of Proportionality

[55]

The appellant submits that the trial judge
    failed to apply the principle of proportionality. To a large extent, this ground
    of appeal overlaps with the appellants previous ground of appeal. This ground
    of appeal also relies on the same factors that relate to the appellants moral
    blameworthiness, such as a difficult upbringing and his struggle with alcohol.

[56]

Proportionality is the fundamental principle of
    sentencing in Canada, reflected in s. 718.1 of the
Criminal Code
, which
    provides:

718.1
A
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender.

[57]

In
R. v. Nasogaluak
,
    2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42, LeBel J. described
    proportionality as serving a limiting or restraining function. He also observed
    that proportionality aligns with a just deserts approach to sentencing, which
    requires that an offender be held accountable and that
the sentence properly reflects and condemns their role in the
    offence and the harm they caused: para. 42. Synthesizing these conceptual
    strands, LeBel J. explained, at para. 42:

Whatever the rationale for proportionality,
    however, the degree of censure required to express society's condemnation of
    the offence is always limited by the principle that an offender's sentence must
    be equivalent to his or her moral culpability, and not greater than it.
The
    two perspectives on proportionality thus converge in a sentence that both
    speaks out against the offence and punishes the offender no more than is
    necessary
. [Emphasis added.]

See also
Ipeelee
, at para. 37.

[58]

In
R. v. Nur
, 2015 SCC 15, [2015] 1
    S.C.R. 733, McLachlin C.J. said that imposing a proportionate sentence is a
    highly individualized exercise, tailored to the gravity of the offence, the
    blameworthiness of the offender, and the harm caused by the crime: para. 43.

[59]

Sexual offences raise particular considerations in the
    proportionality analysis. In
R. v. Friesen
, 2020 SCC 9, 444 DLR (4th) 1,
    the Supreme Court said, at para. 75: In particular, courts need to take into
    account the wrongfulness and harmfulness of sexual offences against children
    when applying the proportionality principle. Accurately understanding both
    factors is key to imposing a proportionate sentence. There is no reason to
    think that it does not also apply to sexual offences at large.
As the Supreme Court observed, taking the harmfulness of these
    offences into account ensures that the sentence fully reflects the life-altering
    consequences that can and often do flow from the sexual violence:
Friesen,
at para. 74.

[60]

In this case, the sentencing judge did not make
    specific reference to the principle of proportionality. However, reading his
    reasons as a whole, it is evident that he properly balanced the elements that
    drive proportionality. He was aware of the appellants unfortunate background,
    as well as his difficult relationship with alcohol, which appeared to have been
    a factor on the night that he attacked the victim.

[61]

However, these circumstances were clearly
    overtaken by the gravity of the offence and the harm that it caused. The
    appellant stalked two randomly-chosen women that night. One got away; the other
    did not. As the sentencing judge said, the attack was horrific, with
    devastating physical and psychological repercussions for the victim.

[62]

Moreover, the harm caused by this type of
    offending  when women are attacked at random  is far-reaching. A random
    attack on an innocent stranger shakes the community. It breeds fear that anyone
    is a potential target. This is rightly considered an aggravating factor in
    sentencing: see
R. v. Henderson,
2018 ONSC 3550 at p. 15;
R. v.
    Trumpa,
2017 ONSC 5966, at para. 27;
R. v. K.T.,
[2002] OJ No. 4649
    (OCJ), at paras. 18, 24. This feature of the appellants offending adds to his
    moral blameworthiness through the harm that it caused. It naturally calls for a
    sentence that emphasizes denunciation and deterrence.

[63]

Relatedly, the sentencing judge observed that
    the appellants behaviour that night was completely unexplained. This was a
    factor that contributed to his unfavourable risk assessments; it is relevant to
    the principle of proportionality.

[64]

I am satisfied that the trial judge took all of
    these factors into account in arriving at the sentence that he did. It was not
    disproportionate.

(3)

The Principle of Restraint

[65]

The appellant submits that, given the
    appellants minimal criminal record and sentencing history, the sentence
    imposed did not reflect the appropriate degree of restraint. The appellant
    points to the fact that he accepted responsibility for committing the offence,
    a prison chaplain described him as a model inmate, and the appellant was
    committed to rehabilitating himself by engaging in prison programs, including
    Alcoholics Anonymous.

[66]

The sentencing judge noted these factors in his
    reasons. However, he was dubious of the appellants sincerity, especially in
    light of the psychological report that suggested the appellants self-reporting
    may not be accurate because of a trait like tendency towards positive
    impression management. In other words, the appellant has a reluctance to acknowledge
    personal shortcomings that most would admit to.

[67]

In the end, given the unexplained and random
    nature of the attack, the sentencing judge was right to place great emphasis on
    the principles of general deterrence and denunciation, over that of restraint. As
    this court said in
R. v. Reesor
, 2019 ONCA 901, at para. 8:

The principle of restraint, like all
    principles of sentencing, operates in conjunction with other principles that
    often pull in a different direction. For offences like this, particularly
    committed in the context of domestic violence, the restraint principle must, as
    the trial judge noted, yield, to a large degree, to concerns associated with
    deterrence, denunciation and protection of the victim. A significant
    penitentiary sentence was necessary in this case.

The same approach was warranted in the
    context of this case of random sexual violence against a stranger.

[68]

Thus, I am satisfied that the principles of
    deterrence and denunciation must take precedence over the principle of
    restraint in this case.

(4)

The Appropriate Sentence in this Case

[69]

Before the sentencing judge, the appellants counsel
    submitted that a sentence of six to eight years was appropriate; on appeal, the
    appellant submits that his sentence should be reduced to eight years.

[70]

There is no doubt that the appellant received a
    significant custodial sentence. However, the circumstances in this case
    undeniably called for it. The cases from this court that the sentencing judge
    cited (
i.e.
,
Last
,
Kavanaugh
, and
Anderson
) justify
    the approach of the sentencing judge.

[71]

The appellant attempts to distinguish these
    cases in various ways. But as Lang J.A. said in
Last
, at para. 72, it
    is difficult to compare sentences in the disparate circumstances of offences
    and offenders. There are some differences between this case and the cases
    cited by the sentencing judge. However, they share an important similarity with
    this case: they all call out for exemplary sentences that properly reflect the
    wrongfulness inherent in sexual violence, and the harm that it causes to the
    victims and to our society at large.

[72]

Lastly, the appellant submits that the
    sentencing judge erred in not awarding greater credit for PSC due to
    overcrowding. The respondent received exactly what he asked for  credit on a
    1.5: 1 basis. The appellant has identified no error in the sentencing judges
    approach to this issue. There is no basis to intervene on appeal.

E.

DISPOSITION

[73]

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

Released: DB October 20, 2020

Gary
    Trotter J.A.

I
    agree. David Brown J.A.

I
    agree. David M. Paciocco J.A.


WARNING

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

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

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

(a)     any of the following
    offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.G., 2020 ONCA 671

DATE:  20201028

DOCKET: C66278

Rouleau, Benotto and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.G.

Appellant

Jefferey Couse, for the appellant

Tanya Kranjc, for the respondent

Heard: October 19, 2020 by
    video conference

On appeal from the convictions entered
    on June 11, 2018 by Justice Louise L. Gauthier of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of sexual interference and two
    counts of assault against his stepson. The appellant was also found guilty on two
    counts of sexual assault for which stays were entered. The appellant was
    sentenced to 6 years imprisonment.

[2]

The complainant was a child aged six to nine years at the time of
    the alleged offences. When he was he was a young teenager, he disclosed that
    the appellant had sexually and physically abused him. He was 16 years old at
    the time of trial. He testified to two instances of sexual abuse. The first
    instance occurred in his bedroom when the appellant stroked his penis and
    sodomized him. The second occurred in a car inside the garage when he was again
    sodomized.

[3]

In 2015, the same year that the allegations were made and four years
    after the relationship between the appellant and the complainants mother
    ended, the appellant sent an apology to the complainant over Facebook for what
    had happened in the past. The Facebook messages were not available at trial,
    but the appellant and the complainant referred to them.

[4]

The appellant alleges that, in convicting him, the trial judge erred by:

1.

misapprehending
    the appellants explanation for the Facebook apology;

2.

reversing
    the onus of proof; and

3.

failing to
    resolve inconsistencies in the complainants evidence.

The apology

[5]

The appellant testified that he saw his photo on the Facebook page of
    the complainants mother. He wanted it deleted and began arguing with her. She
    blocked him. The appellant then turned to the complainant on Facebook and
    requested that he tell his mother to delete the photo. In the same series of
    messages, the appellant apologized to the complainant. He testified that the
    apology was for the offensive things he said to the complainants mother about
    her deceased children and for having spoken to the complainant in a higher
    tone of voice.

[6]

The trial judge did not believe the appellants explanation for the
    apology. She found it incomprehensible that he was apologizing for the tone
    of his voice some four or five years earlier. The appellant submits that this
    was a misapprehension because he was also apologizing for the offensive things
    he said about the deceased children. The appellant argues that this
    misapprehension was integral to the trial judges reasoning since it
    effectively turned the apology into an admission of guilt.

[7]

We do not agree. It was open to the trial judge to disbelieve the
    appellant. Her rejection of his explanation was in the context of her
    credibility assessment and she did not link it to an admission of guilt.

Onus of proof

[8]

The appellant submits that the trial judge did not apply
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742

and consequently reversed the burden
    of proof. He relies on the highlighted portion of the following paragraph from
    the trial judges reasons:

For the above reasons, I reject the accuseds evidence.  It
    does not raise a reasonable doubt.
Likewise,
    the balance of the evidence, including the frailties of [the complainants]
    evidence, do not leave me with a reasonable doubt that the accused committed
    the offences as charged
.
[Emphasis added.]

[9]

The appellant submits that the trial judge was placing an onus on him to
    disprove his guilt by deciding first that the appellants guilt had been proved
    beyond a reasonable doubt and
then
assessing the inconsistencies. Again,
    we disagree. While the trial judge did not refer to
W.D.
directly, she did refer to its three component
    parts. In addition, while we acknowledge that
the above paragraph
    could have been better worded, the reasons read as a whole make it clear that the
    trial judge was aware of the burden of proof and did not place an onus on the
    appellant. Also, in convicting the appellant, she added:

In conclusion, after having considered all the evidence, I am
    satisfied the Crown has proven its case beyond a reasonable doubt.

Failure to resolve inconsistencies

[10]

The
    appellant submits that the trial judge failed to resolve the inconsistencies in
    the complainants evidence. He points to two aspects: whether the bedroom door
    was locked in connection with the first assault; and whether the back seat of
    the car was folded down in connection with the second.

[11]

The
    trial judge is not required to resolve all inconsistencies in the evidence. She
    described these matters as peripheral details. She accepted the complainants
    evidence as to what the appellant did and concluded that this satisfied her
    beyond a reasonable doubt. That conclusion was available to her on the
    evidence.

Conclusion

[12]

For
    these reasons, the appeal on conviction is dismissed. The appellant withdrew
    the sentence appeal.

Paul
    Rouleau J.A.

M.L.
    Benotto J.A.

I.V.B.
    Nordheimer J.A.