COURT OF APPEAL FOR ONTARIO

CITATION: Poplar Point First Nation Development Corporation
    v. Thunder Bay (City), 2016 ONCA 934

DATE: 20161214

DOCKET: C61761

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Poplar Point First Nation Development Corporation

Applicant (Respondent by Counter-Application)
(Appellant)

and

The Corporation of the City of Thunder Bay

Respondent (Applicant by Counter-Application)
(Respondent)

Rene Larson and Thomas Demetzer, for the appellant

Allan D. McKitrick, for the respondent

Heard: June 22, 2016

On appeal from the order of Justice W. Danial Newton of
    the Superior Court of Justice, dated January 19, 2016, with reasons reported at
    2016 ONSC 457.

van Rensburg J.A.:

A.

Overview

[1]

The central question in this appeal is whether the court has
    jurisdiction to grant relief from a deemed forfeiture occurring under s. 380(6)
    of the
Municipal Act, 2001
, S.O. 2001, c. 25 (the Act).

[2]

The appellant, a not-for-profit corporation supporting Poplar Point
    First Nation Band and its members, was the registered owner of a property that
    was sold by the City of Thunder Bay (the Municipality) in a municipal tax
    sale. After recovering $5,843.11 in tax arrears and additional associated
    costs, the Municipality paid into court the surplus (an amount exceeding
    $76,000).

[3]

Pursuant to s. 380(4) of the Act, the appellant had one year from the
    date of payment of the surplus into court to bring an application for payment
    out of court. Pursuant to s. 380(6), one year after payment in, the monies were
    deemed to be forfeited to the Municipality. The appellant applied to the court
    three weeks after the one year deadline. In response to the appellants
    application, the Municipality brought a counter-application, seeking payment
    out of court of the monies pursuant to s. 380(7) of the Act.

[4]

The application judge, after setting out the chronology of what had
    occurred, and the steps the Municipality had taken, all in accordance with the
    Act, considered whether to grant the appellant relief from forfeiture under s.
    98 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 or under s. 5(1)
    of the
Fines and Forfeitures Act
, R.S.O. 1990, c. F.13.
[1]
After considering the contradictory case authority, the application judge
    dismissed the appellants application on the basis that he was not empowered to
    grant relief from forfeiture under either statute. He said he would have
    granted relief from forfeiture, if he had the jurisdiction to do so. He granted
    the Municipalitys application for payment out of court. Neither party sought
    costs, and none were awarded.

[5]

The appellant appeals, arguing that the application judge erred in
    concluding that he did not have jurisdiction to grant relief from forfeiture.
    The respondent says that the application judge was correct on this point, and
    in any event that relief from forfeiture is not warranted on the evidence in
    this case.

[6]

For the reasons that follow, I would allow the appeal.

[7]

Briefly, I conclude that there is jurisdiction in the Superior Court
    under s. 98 of the
Courts of Justice Act
in proceedings under s. 380
    of the Act to grant relief from the deemed forfeiture arising under s. 380(6).
    Since the Act does not expressly, or by necessary implication, exclude the
    courts general power to grant relief from forfeiture in civil proceedings, and
    the forfeiture is not imposed as a penalty for breach of any requirement of the
    statute, such relief may be available. In this case, to grant relief would not
    undermine the purpose of the Act, or interfere with the finality and certainty
    of the municipal tax sale scheme. Resort to s. 5(1) of the
Fines and
    Forfeitures Act
is unnecessary and it is doubtful that this statute would
    apply. Finally, consistent with the application judges assessment of the facts
    and the equities, I conclude that relief from forfeiture is warranted in this
    case.

B.

Relevant Facts and Statutory Provisions

[8]

The appellant was the registered owner of a property located on County Blvd.
    in Thunder Bay. This was one of three properties in respect of which the
    appellant had failed to pay municipal taxes. As of December 31, 2011, $5,843.11
    was owing on the County Blvd. property.

[9]

The Municipality took the necessary steps under Part XI of the Act. This
    part provides for the rights of a municipality to sell a taxpayers land for
    the recovery of property tax arrears and specifies the procedures to be
    followed.

[10]

On
    November 28, 2012, the Municipality registered a tax arrears certificate
    against title to the property. The certificate stated that the land would be
    sold if the cancellation price (tax arrears, interest, reasonable costs, etc.)
    was not paid within one year following registration of the certificate. Notice
    of registration of the tax arrears certificate was sent to the appellant on
    January 23, 2013. The notice was sent to the appellant at two addresses  the
    County Blvd. address and an address on Simpson St. (a property that was also
    the subject of a municipal tax sale).

[11]

On
    September 19, 2013, a final notice was sent to the appellant, warning that the
    land would be advertised for public sale failing payment of the cancellation
    price within the prescribed time, in accordance with s. 379 of the Act.

[12]

The
    appellant did not challenge or respond in any way to the tax sale proceedings.
    The property was offered by the Municipality for sale by public tender and sold
    on June 26, 2014. The sale proceeds exceeded the cancellation price by $76,264.60.

[13]

Pursuant
    to s. 380(1) of the Act, after payment of the cancellation price, the remaining
    proceeds belonged to the appellant, as there was no other person or party
    having an interest in the land.

[14]

The
    treasurer of the Municipality was required to pay into court the proceeds of
    sale minus the cancellation price, together with a statement in the prescribed
    form outlining the facts under which the payment into court [was] made: s.
    380(2). This occurred on September 18, 2014. Within 60 days after making a
    payment into court, the treasurer was required to send a copy of the statement
    to the Public Guardian and Trustee and to the appellant.
[2]
The Municipalitys representative deposed that this had occurred.

[15]

Pursuant
    to s. 380(4), the appellant (and any other person with an interest in the land
    claiming entitlement to the proceeds) had one year from the date of payment
    into court to apply for payment out. In this case there was no one other than
    the appellant with an interest in the land.

[16]

The
    balance of s. 380 provides for the court to determine the entitlements to
    receive payment out of the proceeds of sale, including deemed forfeiture to the
    municipality where no one applies for payment out (s. 380(6)), where there is a
    surplus after the determination of the entitlements of any applicants (s.
    380(6.1)) or where the surplus is $250 or less (s. 380.0.1).

[17]

For
    ease of reference I set out here section 380 in its entirety:

(1) The proceeds of a sale under section 379 shall,

(a) firstly, be applied to pay the cancellation
    price;

(b) secondly, be paid to all persons, other than
    the owner, having an interest in the land according to their priority at law;
    and

(c) thirdly, be paid to the person who immediately
    before the registration of the tax deed was the owner of the land.
[3]

(2) The treasurer shall pay the proceeds of sale,
    minus the cancellation price, into the Superior Court of Justice together with
    a statement in the prescribed form outlining the facts under which the payment
    into court is made.

(3) Within 60 days after making a payment into court
    under subsection (2), the treasurer shall send a copy of the statement to the
    Public Guardian and Trustee and to the persons to whom the treasurer sent
    notice under subsection 379(1).

(4) Any person claiming entitlement under clause (1)
    (b) or (c) may apply to the Superior Court of Justice within one year of the
    payment into court under subsection (2) for payment out of court of the amount
    to which the person is entitled.

(5) The court shall, after one year has passed from
    the day the payment was made into court, determine all of the entitlements to
    receive payments out of the proceeds of sale.

(6) If no person makes an application under
    subsection (4) within the one-year period referred to in that subsection, the
    amount paid into court under subsection (2) shall be deemed to be forfeited,

(a) to the Public Guardian and Trustee if, at the
    time of the registration of the tax arrears certificate, the land was vested in
    the Crown because of an escheat or forfeiture under the
Business
    Corporations Act
or the
Corporations Act
; or

(b) in any other case, to the municipality.

(6.1) If, after the entitlements of all applicants
    under subsection (4) to receive payment out of court have been determined,
    there remains any amount paid into court from the proceeds of sale, the
    remaining amount is deemed to be forfeited,

(a) to the Public Guardian and Trustee in the
    circumstances described in clause (6) (a);

(b) to the municipality in any other case.

(7) The Public Guardian and Trustee or the
    municipality, as the case may be, may apply to the Superior Court of Justice
    for payment out of court of the amount that was paid in.

(8) In the absence of evidence to the contrary, the
    Superior Court of Justice may rely on the statement of the Treasurer under
    subsection (2) in determining whether the amount paid into court under that
    subsection is forfeited to the Public Guardian and Trustee or the municipality
    under subsection (6).

(9) Money received by a municipality under subsection
    (6) shall be paid into the general funds of the municipality.

[18]

After
    the Municipality paid the surplus monies into court, the appellant did not
    respond or take any steps in relation to the arrears during the prescribed one
    year period to apply to obtain the funds in court.

[19]

The
    appellants explanation for its delay was that, while it was aware that there
    was a one year deadline, it did not receive the notice of payment into court which
    had been sent to the assessed (and sold) property, and that, because there were
    other properties subject to municipal tax sale proceedings, it misjudged the
    point at which the clock began running for the one year period. The appellant
    thought the Municipality would be making decisions about the three properties
    at the same time, and it believed the deadline to apply to the court was in
    October 2015. After a board member questioned when the deadline was, and began
    to look into the issue, the appellant discovered the one year deadline had
    passed. The appellant retained counsel and brought an application promptly on
    notice to the Municipality.
[4]

[20]

The
    appellants application was dated October 7, 2015, at a time when the
    Municipality had not yet applied for payment out of court of the surplus funds.
    The application claimed payment out of court. The Municipalitys
    counter-application for payment out was made on November 12, 2015.

[21]

In
    its application the appellant asserted that it was entitled to relief from
    forfeiture under s. 98 of the
Courts of Justice Act
or under s. 5(1)
    of the
Fines and Forfeitures Act.
Section 98 of the
Courts of
    Justice Act
provides:

A court may grant relief against penalties and
    forfeitures, on such terms as to compensation or otherwise as are considered
    just.

[22]

Section
    5(1) of the
Fines and Forfeitures Act
provides:

Where a fine is imposed by or under the authority of
    an Act of the Legislature, the court or judge having cognizance of the
    proceedings for the recovery thereof may at any time after the commencement
    thereof remit in whole or in part such fine, whether the money is in whole or
    in part payable to the Crown or to some person other than the Crown and whether
    it is recoverable by indictment, information, summary process, action or
    otherwise.

[23]

Section
    5(2) provides that a provincial judge or justice of the peace does not have the
    authority mentioned in subsection (1). Fine, for the purpose of the statute,
    is defined in s. 1 to include all pecuniary fines, penalties and forfeitures.

C.

Decision of the Application Judge

[24]

The
    application judge set out the relevant statutory scheme and facts. The central
    issue he had to decide was whether he had jurisdiction to grant relief from
    forfeiture.

[25]

The
    application judge identified a number of cases in which relief from forfeiture
    under municipal statutes was granted or was considered available under the
Courts
    of Justice Act: Niagara Falls (City) v. Diodati
, 2011 ONSC 2180, 106 O.R.
    (3d) 154 (Ont. S.C.J.);
Halton Hills (Town) v. Row Estate
, [1993] O.J.
    No. 1222 (Gen. Div.); and
Northern Bruce Peninsula (Municipality) v. Kerry
,
    2015 ONSC 7361, 45 M.P.L.R. (5th) 316 (Sup. Ct.).

[26]

The
    application judge also noted decisions to the contrary that refused to
    recognize the courts authority to relieve from a forfeiture arising in the
    municipal context:
St. Louis v. Thunder Bay (City)
(2005), 16 M.P.L.R.
    (4th) 233 (Ont. Sup. Ct.); and
Household Realty Corp. v. Chatham (City)
(1988), 42 M.P.L.R. 215 (Ont. Dist. Ct.).

[27]

The
    application judge accepted the authority of a line of cases (that will be
    discussed later in these reasons) that the equitable relief provided for under
    s. 98 of the
Courts of Justice Act
could not apply to relieve against
    statutory penalties and forfeitures. With respect to the
Fines and
    Forfeitures Act
, the application judge stated that he did not read that statute
    as applying to municipal tax sales.

[28]

Referring
    to authorities dealing with challenges to tax sale proceedings (
Zeitel v.
    Ellscheid
, [1994] 2 S.C.R. 142 and
Elliott v. Toronto (City)
(1999),
    43 O.R. (3d) 392 (C.A.)), the application judge concluded that the tax sale
    regime is a carefully crafted legislative scheme, and that, while denying a
    remedy deprives the former owner of the surplus proceeds and results in a
    windfall for the municipality, it creates certainty and places the obligation
    to act diligently on the delinquent owner.

[29]

The
    application judge held that, if he had authority to grant relief from
    forfeiture, he would have done so in this case. He noted that the appellants
    conduct was inadvertent, although negligent, that a three-week delay would not
    unduly prejudice the Municipality and the disparity between the lateness of the
    application and the value of the property forfeited.

D.

Positions of the Parties

[30]

The
    appellant says that the application judge erred in law in concluding that he
    did not have jurisdiction to grant relief from forfeiture. The appellant argues
    that relief from the forfeiture occasioned by s. 380 of the Act is available
    under either or both of the
Courts of Justice Act
and the
Fines
    and Forfeitures Act
. Further, since the application judge would have
    granted relief from forfeiture in the circumstances, the appellant submits that
    the appeal should be allowed and an order substituted granting relief from
    forfeiture and payment out of court to the appellant.

[31]

The
    respondent says that there was no error in the decision of the application
    judge in finding that there was no jurisdiction to grant relief from a forfeiture
    arising under a statute. Further, the respondent contends that to permit relief
    from forfeiture would be inconsistent with the municipal tax scheme which is a
    complete code, and would undermine its policies and purpose. Finally, the
    respondent contends that, if the court has the power to grant relief from the
    forfeiture provided by s. 380 of the Act, relief should not be ordered in this
    case, considering the conduct of the appellant in relation to the sale and its
    weak explanation for failing to meet the one year deadline to claim payment out
    of court.

E.

Analysis

[32]

As
    I have indicated, I would allow the appeal. In my view, there is nothing in the
    scheme outlined in s. 380 of the Act that would preclude this court from
    granting relief from forfeiture under s. 98 of the
Courts of Justice Act
where
    the circumstances warrant.

[33]

I
    will begin by considering the broad and general language of s. 98 and its
    placement in the
Courts of Justice Act.
I will then address in turn
    the two impediments to the exercise of this jurisdiction identified by the
    application judge. The first is what he accepted as a general proposition that
    the court does not have the authority under s. 98 to grant relief against
    statutory penalties and forfeitures. I will explain why I conclude that the
    prohibition against such relief is properly limited to circumstances where the
    forfeiture is in the nature of a penalty for breach of the statute; or where the
    statute expressly or by necessary implication precludes equitable relief from
    forfeiture. This will take me to the second impediment identified by the
    application judge: that relief from forfeiture would be contrary to the
    statutory scheme. As I will explain, although s. 380 is part of a
    statutory scheme for municipal tax sales, recognizing the courts ability to
    relieve from forfeiture in an application for payment out of the surplus funds
    would not undermine the certainty or finality of that scheme.

[34]

I
    will briefly discuss the
Fines and Forfeitures Act
and why in my view
    relief under that statute from the forfeiture that occurred here is both not
    contemplated thereunder and unnecessary.

[35]

Finally,
    I will consider the merits respecting relief from forfeiture in this case and explain
    why I would accept the application judges assessment that relief from
    forfeiture, on the facts of this case, is warranted.

(1)

Relief from Forfeiture under the
Courts of Justice Act

[36]

The
Courts of Justice Act
provides for what appears to be broad and
    unlimited authority to the court to grant relief from forfeiture. Section 98 is
    a general provision that states:

A court may grant relief against penalties and
    forfeitures, on such terms as to compensation or otherwise as are considered
    just.

[37]

Section
    98 is found in Part VII of the
Courts of Justice Act
. Section 95(1)
    provides that Part VII applies to civil proceedings in courts in Ontario.
[5]
Civil proceedings are not only proceedings commenced by statement of claim,
    but include proceedings commenced by application. In this case, s. 380 of the
    Act requires an application to the court before money paid into court will be
    released, whether by the party entitled to the surplus under s. 380(4), or
    by the municipality after a deemed forfeiture under s. 380(7). The context of
    the appellants claim for relief from forfeiture is within a civil proceeding
    commenced by way of application under s. 380 of the Act.

[38]

The
    origin of the courts ability to grant relief from forfeitures and penalties was
    in the equitable jurisdiction of the Chancery Courts. Its scope was limited,
    available only for penalty clauses.  It was also restricted to contracts
    concerning the transfer of proprietary or possessory rights: J. McGee,
Snells
    Equity
3rd ed. (London: Sweet & Maxwell 2010), at para. 13-015.

[39]

With
    the fusion of the courts of equity and common law (commencing in 1873 with the
Administration
    of Justice Act
, S.O. 1873, c. 8 and completed in 1881 with the
Ontario
    Judicature Act, 1881
, S.O. 1881, c. 5) the ability to grant relief from
    forfeiture was no longer restricted to the Chancery Courts. Section 16 of the
Ontario
    Judicature Act, 1881
provided that in every civil cause or matter
    commenced in the High Court of Justice where equitable relief was claimed, the
    court was empowered to grant such and the same relief as ought to have been
    given by the Court of Chancery before the passing of this Act."

[40]

Specific
    statutory authority for granting relief from penalties and forfeitures appeared
    first in the
Ontario Judicature Act,
following an amendment to that
    Act in 1886: S.O. 1886, c. 16, s. 38(b).  Relief from penalties and forfeitures
    was included as a rule of law for every civil cause or matter commenced in
    the High Court of Justice. This new statutory power was quickly interpreted as
    having expanded the circumstances in which relief from forfeiture could be
    granted. See, for example,
Townsend v. Toronto, Hamilton and Buffalo Railway
    Company
(1898), 28 O.R. 195, where Meredith C.J. noted that it was
    unnecessary to consider what, if any, limit was to be placed upon the wide
    general language of [the] provision (at p. 199).

[41]

The
    statutory provision was re-enacted in the various
Judicature Acts
,
    until the last was repealed and replaced by the
Courts of Justice Act, 1984
,
    S.O. 1984, c. 11, where it was placed under Part VII (originally as s. 111, and
    now s. 98).

[42]

The
    broad wording of s. 98 and its application to civil proceedings, suggest,
    without more, that it should be available in this case, in the context of an
    application to obtain payment out of court of monies deemed to be forfeited to
    the Municipality.

[43]

I
    turn to consider the two impediments that the application judge considered
    insurmountable in applying s. 98 in this case: first that, as a general
    principle, s. 98 would not be available to relieve from a statutory penalty or
    forfeiture, and second that relief from forfeiture is precluded in the absence
    of a specific discretion provided by the legislature as part of the carefully
    crafted legislative scheme for municipal tax sales.

(a)

Penalty or Forfeiture Imposed by Statute

[44]

The
    application judge referred to two lines of cases as authority that relief from
    forfeiture is not available to relieve from a penalty or forfeiture imposed by
    statute. The first is what I refer to as the
McBride
line of cases, which
    would preclude such relief as improperly interfering with the legislative
    function. However, this line of cases has been overtaken by a modern approach
    that rejects a categorical exclusion of s. 98 in the case of any forfeiture arising
    under a statutory scheme, and instead considers whether as a matter of
    statutory interpretation, s. 98 may apply.

[45]

The
    second line of cases involves true penalties for breach of a statute, where it
    is clear that civil relief from forfeiture should not in any event be
    available.

(i)

The
McBride
line of cases

[46]

At
    issue in
McBride v. Comfort Living Housing Co-operative Inc.
(1992), 7
    O.R. (3d) 394 (C.A.) was the termination of rights of occupancy in a
    co-operative housing building. The Court of Appeal, resolving a dispute that
    had waged in the lower courts, decided that the residential tenancy provisions
    of the
Landlord and Tenant Act
, R.S.O. 1990, c. L.7 did not apply.
    These included specific authority to grant relief against forfeiture. Finlayson
    J.A. referred to s. 98 of the
Courts of Justice Act
as a general
    provision giving the courts power to relieve against all penalties and
    forfeitures. He commented that he [did] not rule out the equitable
    jurisdiction of the court to grant relief against forfeiture apart from the
    provisions of the [residential tenancy legislation] (at p. 402), but noted
    that equitable relief from forfeiture had not been relied on. He went on to
    comment that s. 98 apparently does not empower a court to relieve against
    penalties and forfeitures imposed by statute (at p. 402), citing
Webb v.
    Box
(1909), 14 O.W.R. 802 (Div. Ct.), leave to appeal refd (1910), 15
    O.W.R. 205 (C.A.).

[47]

Both
    comments by the court are
obiter.
Relief from forfeiture under the
Courts
    of Justice Act
was not requested by the moving party, and the forfeiture
    in question arose under an occupancy agreement, not as the result of the
    failure to comply with a statutory requirement. Perhaps Finlayson J.A. was
    attempting to define the outer limits for such relief  that it would not
    apparently apply to a penalty or forfeiture imposed by statute. What he
    meant by a forfeiture imposed by statute was however not entirely clear.

[48]

In
    fact, the case referred to by Finlayson J.A.,
Webb v. Box
, involved a
    true breach of a statutory provision (illegal distress by a landlord), and its prescribed
    consequence (payment to the tenant of double the value of goods). The landlord
    claimed relief from forfeiture under the
Judicature Act
to reduce the
    payment to the tenant to the actual value of the goods seized. In refusing such
    relief at first instance, Chancellor Boyd commented that to do so would be to
    repeal by adjudication what the legislature has distinctly provided for, not so
    much in the way of penalty as to afford protection to tenants against
    unwarrantable seizure and sales of property to the great detriment of the
    tenants rights (at p. 804). Leave to appeal to this court was refused, with Meredith
    J.A. observing that to take away the double value damages would repeal the
    statute (at p. 208). Citing
Keating v. Sparrow
(1810), 1 Ball & B.
    367, he went on to query, apart from these considerations, what power has the
    Court to relieve from even a penalty imposed by statute, except under R.S.O.
    1897, ch. 108 [a predecessor of s. 5(1) of the
Fines and Forfeitures Act
]?

[49]

The
    main reason for the courts refusal of relief in
Webb v. Box
was that
    the statutory scheme specifically provided for the payment of double value of the
    goods as the consequence of unlawful distress. Even if the requirement to pay
    double value of the goods seized were characterized as a penalty then the only
    power to relieve from such a penalty would be under the equivalent to the
Fines
    and Forfeitures Act.
Again, the comment about the limitations on equitable
    relief from forfeiture was
obiter
to the courts decision.

[50]

The
    origin of the statement that the court has no power to relieve against
    statutory penalties and forfeitures is the 1810 decision of the Irish High
    Court of Chancery in
Keating v. Sparrow.

[51]

Keating
    v. Sparrow
however was decided when civil relief from forfeiture was
    limited to circumstances where the forfeiture was designed to secure the
    payment of money. More importantly, at the time of the decision there was no
    statutory provision for relief from forfeiture. The court was unwilling to
    apply equitable jurisdiction to override the legislative will expressed in a
    statute. The equitable jurisdiction to relieve against penalties and
    forfeitures has since been both expanded and legislated.

[52]

Many
    cases took the approach referred to in
obiter
in
McBride
. An
    example is
Johnson v. Dominion of Canada Guarantee and Accident Insurance
    Co.
(1908), 12 O.W.R. 980 (C.A.), where this court held that relief from
    forfeiture under the
Judicature Act
was not available to relieve from
    the requirement of providing timely proof of loss under an insurance contract.
    The court was confronted with the sympathetic case of a claim made out of time
    for a survivors benefit through no real fault of the claimant. In overturning
    the decision of Chancellor Boyd advocating a liberal interpretation of the
    courts power under the
Judicature Act
and granting relief from
    forfeiture, this court noted that the legislature had gone to great pains to
    regulate contracts of insurance (at p. 982).  Meredith J.A. stated that it
    would be legislation, not adjudication to grant relief from forfeiture other
    than as provided under the insurance statute itself. By 1994 however, the
    Supreme Court of Canada rejected an argument based on
Johnson
and
    stated that the case  was  no longer good law, as the court wrongly treated the
    insurance legislation at issue as a statutory code:
Saskatchewan River
    Bungalows Ltd. v. Maritime Life Assurance Co.
, [1994] 2 S.C.R. 490, at 505-506.

[53]

The
    evolution in the courts approach is reflected in
State Farm Mutual
    Automobile Insurance Co. v. Ontario (Minister of Finance)
(2001), 53 O.R.
    (3d) 436. In that case an insured failed to provide a proof of loss within the 90
    days prescribed by a regulation under the
Insurance Act
, R.S.O. 1990,
    c. I.8. The application judge denied relief from forfeiture under s. 98 of the
Courts
    of Justice Act
,

stating that it was questionable whether the
    court has any jurisdiction to relieve against a penalty or forfeiture that is
    decreed by statute (at para. 38), referring to authorities including
McBride
.
    He concluded that even assuming there is some residual jurisdiction in the
    court to relieve against penalties and forfeitures imposed by statute (at
    para. 40), he could not see how the jurisdiction could arise in a situation
    where the legislature has occupied the field and stipulated for relief to be
    given in certain defined conditions; conditions the party seeking relief had
    failed to meet (at paras. 37 and 32)

[54]

On
    appeal to this court (reported as
Kingsway General Insurance Co. v. West
    Wawanosh Insurance Co.
(2002), 58 O.R. (3d) 251 (C.A.)), Sharpe J.A.
    concluded that the court should not exercise any general discretion it might
    have under s. 98 to grant relief from forfeiture, because the regulation in
    question provides a scheme that contemplates extensions of the 90-day notice
    period in certain circumstances, and that, by implication, any general
    discretion a court might have to grant extensions in other circumstances is
    excluded (at para. 13). Sharpe J.A. approached the issue not through a blanket
    prohibition against the use of s. 98 relief from forfeiture in instances of statutory
    forfeitures, but by considering the statutory scheme itself. The focus of the
    analysis was on whether by implication any general discretion a court might
    haveis excluded. In that case, the provision for relief from forfeiture
    contained in the regulation was considered to be exhaustive, and therefore no
    further relief was available under s. 98.

[55]

The
    question is not whether there is a statutory scheme, but whether the language
    and scheme of the statute would exclude relief from forfeiture under s. 98.
    This is now firmly the approach taken in the case of forfeitures arising under
    insurance contracts governed by the
Insurance Act.
Relief from
    forfeiture under s. 98 is available where the insureds breach constitutes
    imperfect compliance with a policy term and the specific relief from forfeiture
    provisions under the
Insurance Act
do not apply:
Kozel v. Personal
    Insurance Co.
, 2014 ONCA 130, 119 O.R. (3d) 55. As LaForme J.A. noted in
Kozel
at para. 58:

in the absence of clear legislative intent indicating that s.
    129 of the
Insurance Act
applies to the exclusion of s. 98 of the
CJA
,
    I would hold that the latter provision is available as an avenue of relief for
    contracts governed by the
Insurance Act
.

[56]

See
    also
Lavoie v. T.A. McGill Mortgage Services Inc
., 2014 ONCA 257, 119
    O.R. (3d) 651, where this court upheld the ruling in
Kozel
that relief
    against forfeiture under s. 98 may be available, however the facts in
Lavoie
were not amenable to such relief.

[57]

In
    my view, this is the approach that should govern in the present case. Section
    98 is a statutory provision expressed in broad and general terms to be
    available in civil proceedings. Where a forfeiture occurs under a statutory
    scheme, the scheme should be examined in order to determine whether by
    necessary implication relief from forfeiture under s. 98 would be precluded.

(ii)

Cases involving Penalties for Breach of a Statute

[58]

The
    application judge also referred to a second line of cases in concluding that the
    court does not have the power to grant relief against statutory penalties and
    forfeitures. These cases involved, what I would refer to as true statutory
    penalties imposed for breach of a statutory provision. While, this is an
    appropriate limit on s. 98 relief from forfeiture, in my view, none of these
    cases would preclude reliance on s. 98 in the present case.

[59]

In
R. v. Canadian Northern Railway Co.
(1922), 64 S.C.R. 264; on appeal
    to the Privy Council, [1923] 3 W.W.R. 547, the court held relief from
    forfeiture under the Alberta
Judicature Act
was not available to
    relieve from penalties for failure to pay taxes under federal taxation statutes
    (although the court concluded that the railway was not subject to taxation). In
Canada (Attorney General) v. Wheeler
, [1944] O.R. 138 (H.C.J.), the
    court concluded that relief from forfeiture under the
Judicature Act
would
    not be available to relieve against a forfeiture of share warrants imported
    into Canada in contravention of orders and regulations under the
War
    Measures Act.

[60]

The
    application judge also referred to
Mullen v. Flin Flon (City)
, 2000
    MBCA 104, 193 D.L.R. (4th) 300, leave to appeal refd, 269 W.A.C. 160 (note). In
    that case, a taxpayer claimed relief from forfeiture of its property after a
    completed municipal tax sale, where the taxpayer had not received actual notice
    of the sale and the property was sold to municipal councillors at what was
    described as a bargain basement price. The court purported to follow the
    authority of the
Canadian Northern
and
Wheeler
cases to
    refuse relief.
[6]

[61]

None
    of these cases are determinative of whether relief from forfeiture should be
    available in the present case. First, both the
Canadian Northern
and
Wheeler
cases involved a forfeiture imposed as a consequence of the breach of a
    statute. As a matter of statutory interpretation, granting relief from
    forfeiture would amount to rewriting or repealing the statute, revoking the very
    consequence for breach of the statute that the legislature prescribed. Further,
    relief from forfeiture under the
Judicature Act
(and now the
Courts
    of Justice Act
) would not be available because the ability to grant such
    relief from forfeitures and penalties is in the context of civil proceedings,
    and not criminal or statutory offences.

[62]

As
    for
Flin Flon
, it is only by regarding the sale of a taxpayers property
    in a tax sale as a forfeiture occurring as a penalty for failure to pay taxes
    that the analysis under the
Canadian Northern
and
Wheeler
cases
    would apply. Respectfully, the relief from forfeiture issue in that case could
    have been decided, not by referring to cases involving true statutory
    penalties, but by finding that relief from forfeiture would be contrary to the
    carefully crafted legislative scheme for tax sales, as the Supreme Court did
    in
Zeitel v. Ellscheid,
(discussed below at para. 66). The result
    would have been the same  it would be inconsistent with the finality and
    certainty of the scheme to permit an attack on a tax deed after a tax sale had
    taken place.

[63]

I
    do not see this line of cases therefore as an impediment to the relief sought
    in the present case. The forfeiture of the surplus to the municipality under s.
    380 is not a penalty for the taxpayers failure to pay taxes or breach of any
    other obligation, nor does it occur as the release of security for an
    obligation owed to the municipality. The municipality has already been made
    whole, having received the cancellation price consisting of the tax arrears,
    interest and its costs. The forfeiture does not occur in order to punish the
    property owner, but to ensure that the money, which belongs to the owner or
    other claimants at the time it is paid into court, does not sit in court
    unclaimed, in perpetuity. The forfeiture brings finality to the process where
    funds might otherwise remain in court and unclaimed. The forfeiture arises from
    the failure to meet a time limit, and not as the consequence of any breach of a
    statutory obligation.

[64]

As
    such, I would find that there is no absolute bar to granting relief from
    forfeiture in relation to the forfeiture in this case simply because it occurs
    in the context of a statutory scheme. The issue is one of statutory interpretation.
    The question is whether relief from forfeiture is expressly or implicitly
    precluded. I turn to this question now.

(b)

Would s. 380, in the Context of the
Municipal Act, 2001
, Preclude
    Relief from Forfeiture under s. 98 of the
Courts of Justice Act
?

[65]

The
    application judge accepted the argument that relief from forfeiture would not
    be available under s. 98 because the municipal tax sale statutory scheme is a carefully
    crafted legislative scheme. He referred to certain cases where the courts
    rejected challenges to the tax sale process and efforts to redeem the subject
    property by owners and mortgagees.

[66]

In
Zeitel v. Ellscheid
, the Supreme Court of Canada held that a tax sale
    under the
Municipal Tax Sales Act, 1984
(the predecessor to Part XI of
    the
Municipal Act, 2001
) was immune from attack by a party claiming an
    interest in the property. The court held, at p. 152, that the statute exists
    to allow property which is the subject of tax arrears to be sold by a
    municipality and that purchasers must be assured of the integrity of title so
    with some exceptions when a tax deed is issued it is final. The court held
    that as a matter of statutory interpretation any attack on the tax deed after
    the tax sale had taken place was not permitted, as the statute provided for a carefully
    crafted legislative scheme (at p. 152). This characterization of the statutory
    provisions respecting municipal tax sales has been adopted in numerous
    subsequent cases, including
Elliott v. Toronto (City)
.

[67]

In
Elliott,
the owners and mortgagee of a property subject to a municipal
    tax sale challenged a sale before the registration of a tax deed, in part on
    the basis of lack of actual notice. This court held that there was no right to
    redeem the property by paying the outstanding taxes after the prescribed one
    year period had expired unless the tax sale proceedings were voidable under the
    Act. The court refused to read in additional notice requirements as interfering
    with the carefully crafted legislative scheme and expressed concern about
    impairing the integrity of the tax sale process (at p. 407-408).

[68]

The
    policy reasons for restricting the circumstances in which municipal tax sales might
    be challenged (certainty, finality and the integrity of the sale process,
    including interests of third parties) are not engaged when dealing with the
    surplus under s. 380.
[7]
The taxpayer is not challenging the sale process, but asserting a claim to the surplus.
    Section 380 operates after the municipality has recovered its tax arrears and
    its costs, at a time when its claim against the property is spent, and without
    affecting the rights or interests of third party purchasers. At issue under s.
    380 is entitlement to the surplus, not the property itself. As such, there is
    no prospect of interfering with or undermining the municipal tax sale process.

[69]

I
    read the Acts provisions as consistent with, and not precluding, the ability
    of the court to relieve from forfeiture in an appropriate case. First, the
    statute states specifically to whom the sale proceeds shall be paid. After
    payment of the cancellation price, payment is to persons with a prior interest
    in the land, and then to the owner: s. 380(1).  Second, the statute requires
    the municipality to pay the surplus into court: s. 380(2). Arguably, if the
    intent were to provide for an absolute forfeiture to a municipality on default
    of a claim to the funds, there would be no reason to require the involvement of
    the court, until there is a dispute about priorities.

[70]

Third,
    the statute does not provide that the unclaimed surplus belongs to the municipality,
    but deems a forfeiture in three circumstances: (1) if the surplus is $250 or
    less; (2) if those entitled to the money have not applied for payment out
    within a year; or (3) if there is any surplus left after the payment out to a
    claimant (presumably because the owner has not made a claim). At the time the
    surplus was paid into court in this case, it belonged to the appellant, since
    there was no other party with an interest in the land, and it was only at the
    one year period without an application by the claimant, that it was deemed
    forfeited to the municipality. The municipality has no right to the funds
    absent a forfeiture, and in every case where the surplus is forfeited to the
    municipality, the municipality receives a windfall.

[71]

Fourth,
    and most importantly, the statute requires an application to the court for payment
    out, whether it is by the taxpayer or by the municipality. In this way, the
    court retains jurisdiction over the process, and the parties of necessity are
    engaged in a civil proceeding. The requirements for payment into the Superior
    Court of Justice, and for an application in all cases for payment out
    anticipate that the court will have at its disposal all authority available to
    it under the
Courts of Justice Act
, including under s. 98.

[72]

For
    these reasons, I conclude that the courts general authority to relieve against
    forfeitures under s. 98 would be available in the context of a deemed
    forfeiture under s. 380, in circumstances such as are present in this case.
    There is no clear legislative intent to exclude relief from forfeiture, nor is
    the recognition of such authority inconsistent with the statutory scheme.

(2)

Relief under the
Fines and Forfeitures Act

[73]

As
    a result of my conclusion that a court considering an application in respect of
    a surplus under s. 380 would have jurisdiction to grant relief from forfeiture
    under s. 98 of the
Courts of Justice Act,
it is unnecessary to
    consider in any detail the alternative claim that relief should be granted
    under s. 5 of the
Fines and Forfeitures Ac
t, which provides the
    Superior Court the authority to remit in whole or in part a fine (defined
    to include a forfeiture).

[74]

In
    my view, however, a fair reading of that statute suggests that it applies in
    the context of fines, penalties and forfeitures that are imposed for violations
    of Ontario statutes. And as such, it has no application to the facts of this
    case.

[75]

Recall
    that s. 5(1) deals with the remission of fines (defined to include all
    pecuniary fines, penalties and forfeitures):

5. (1) Where a fine is imposed by or under the
    authority of an Act of the Legislature, the court or judge having cognizance of
    the proceedings for the recovery thereof may at any time after the commencement
    thereof remit in whole or in part such fine, whether the money is in whole or
    in part payable to the Crown or to some person other than the Crown and whether
    it is recoverable by indictment, information, summary process, action or
    otherwise.

[76]

Section
    2 of the
Fines and Forfeitures Act
provides that where a fine has
    been imposed
for a contravention
of an Act of the Legislature or a
    regulation made thereunder and no other provision is made for its recovery, it
    is recoverable with costs by a civil action at the suit of the Crown (emphasis
    added). Section 3 provides that, where no other mode of recovery is prescribed,
    a fine may be recovered upon indictment in the Superior Court of Justice. Section
    4 also refers to fines imposed for a
contravention
of any statute
    and directs their payment, except so far as other provision is made in respect
    thereto, to the Treasurer of Ontario (emphasis added).

[77]

Reading
    these provisions together suggests that the ability of the court to remit a
    fine, penalty or forfeiture is in the context of proceedings for their recovery
    where they have been imposed for contraventions of a statute (and where no
    other provision is made in respect thereof). In this case, the deemed
    forfeiture arises from the expiry of a time limit under s. 380 of the Act, and
    is not a penalty imposed for a contravention of the Act. In any event, as I
    have found that relief from forfeiture here would be available under s. 98 of
    the
Courts of Justice Act,
it is unnecessary to offer any definitive
    views about the scope and availability of relief under s. 5 of the
Fines
    and Forfeitures Act.

(3)

Should Relief from Forfeiture be Granted in this Case?

[78]

Before
    exercising discretion to grant relief from forfeiture in a particular case, a
    court must first consider: (1) the conduct of the applicant; (2) the gravity of
    the breach; and (3) the disparity between the value of the property forfeited
    and the damage caused by the breach:
Dube v. RBC Life Insurance Co.
,
    2015 ONCA 641, 127 O.R. (3d) 161, at para. 6;
Kozel
, at paras. 31 and
    59;
Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co.
,
    at p. 504.

[79]

Had
    the trial judge concluded that s. 98 was available, he would have exercised his
    discretion to grant relief from forfeiture and to allow the appellants late
    application for payment out of court of the surplus funds. He found that the
    appellants conduct was inadvertent, although negligent, and that the Municipality
    did not suffer undue prejudice from the three-week delay. He noted the
    disparity between the short delay in applying and the value of the property
    forfeited (at para. 64).

[80]

I
    see no reason to depart from the application judges assessment of the relevant
    factors in this case. The appellant would have been entitled to the monies in
    court, without any claim by the Municipality, had its application been
    initiated three weeks earlier. The appellants delay was explained by its
    erroneous belief about timing because of its two other properties also subject
    to tax sales. When it realized its error, the appellant moved promptly. The
    Municipality had not received the funds, and had not even commenced an
    application for payment out. And the windfall to the Municipality would have
    been enormous, amounting to the receipt of $76,264.60 in surplus funds when the
    initial tax arrears, which had been fully satisfied, were $5,843.11.

[81]

Therefore,
    I would grant the appellant relief against forfeiture under s. 98 of the
Courts
    of Justice Act
.

F.

Disposition

[82]

For
    these reasons I would allow the appeal and set aside the order of the
    application judge. I would grant relief from forfeiture and order payment out
    of court of the sum of $76,264.60 paid to the credit of Court File No.
    CV-14-0344-00 at the Superior Court of Justice in Thunder Bay, plus accrued
    interest. Such payment shall be made to Rene Larson Law Office Professional
    Corporation on behalf of the appellant.  As agreed between the parties, I
    would make no order as to costs.

Released: P.R. December 14, 2016

K. van Rensburg
    J.A.

I agree Paul Rouleau
    J.A.

I agree M.L. Benotto
    J.A.

[1]
The application judge also considered and rejected, an argument by the
    appellant that the doctrine of special circumstances was available to extend
    the time for its application for the surplus funds. That argument is not
    renewed on appeal.

[2]
All of the references to the Public Guardian and Trustee in this subsection as
    well as others in s. 380 will be replaced by the minister responsible for the
    administration of the
Forfeited Corporate
    Property Act, 2015
 when that statute (S.O. 2015, c. 38, Sched. 7)
    comes into force December 10, 2016, and alters the scheme for dealing with the
    property of a dissolved corporation.

[3]

On
    December 10, 2016, S.O. 2015, c. 38, Sched. 7 comes into force, and the
    following subsection will be added:

(1.1)

If
    the land was vested in the Crown in right of Ontario because of an escheat or
    forfeiture as a result of the dissolution of a corporation is sold under
    section 379, the Crown shall not be excluded under clause (1)(b) in respect of
    interests that the Crown has in the land other than its ownership.

[4]

The application, and the Municipalitys counter-application
    were both brought within Court File No. CV-14-0344-00 in the Superior Court of
    Justice in Thunder Bay, in the proceeding in which the Municipality had paid
    the surplus funds into court under s. 380(2).

[5]
Pursuant to s. 95(2) certain sections under Part VII also apply to
proceedings under the
Criminal Code
and pursuant to s. 95(3)
    certain sections also apply to proceedings under the
Provincial Offences
    Act.

[6]

The motion court judge determined that notice had not been
    given to the taxpayer where it was sent in accordance with the statutory
    requirements at the time but not received. (As the Court of Appeal noted, the
    statute was later amended to require personal service of the notice.) Relief
    from forfeiture was raised only on appeal. A dissenting opinion in the Court of
    Appeal would have dismissed the appeal on the notice issue, and did not address
    relief from forfeiture.

[7]
While the Municipality in its factum raises concerns about certainty, in
    particular as to how the treasurer should proceed in the face of a late
    application and whether and to whom additional notice would be required, these
    concerns are misplaced. Section 380 requires payment into court of the surplus
    and from that point on, any determinations of entitlement, forfeiture and
    relief from forfeiture, are for the court.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anglin, 2016 ONCA 939

DATE: 20161214

DOCKET: C56908

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anton Kerwin Anglin

Appellant

Monte MacGregor, for the appellant

Michelle Campbell, for the respondent

Heard: December 7, 2016

On appeal from the convictions entered on June 28, 2011
    and the sentence imposed on May 15, 2012 by Justice Michael R. Dambrot of the Superior
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge provided detailed and complete reasons for his two key
    factual conclusions: 1) that the stolen vehicle that was apprehended in the
    church parking lot was also the vehicle involved in the two prior incidents,
    including the drive-by shooting; and 2) that the appellant was in the car for
    all three incidents, i.e., the initial street confrontation, the drive
    by-shooting and the stop in the church parking lot. On appeal, the appellant
    claims these findings were unreasonable because there was differing evidence concerning
    the number of occupants in the vehicle during the first two events. He also
    argues that there is an insufficient link between the stolen car and the
    shooting. Finally, he argues that the saliva and fingerprint evidence is
    insufficient to place him in the car at the time of the shooting.

[2]

We reject these arguments. The trial judge identified a constellation of
    direct and circumstantial evidence that supported the findings he made and,
    based on that constellation of evidence, he considered and eliminated
    alternative inferences. We see no reason to interfere.

[3]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boothe, 2016 ONCA 987

DATE: 20161229

DOCKET: C58922 and C59025

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garfield Boothe and Nichelle Rowe-Boothe

Appellants

Garfield Boothe, appearing in person, via
    videoconference

Delmar Doucette and Janelle Belton, duty counsel for the
    appellant, Garfield Boothe

Nichelle Rowe-Boothe, appearing in person

Mark Halfyard and Breana Vandebeek, duty counsel for the
    appellant, Nichelle Rowe-Boothe

Michael Bernstein, for the respondent

Heard: November 21, 2016

On appeal from the convictions entered on April 5, 2014
    and the sentences imposed on June 5, 2014 by Justice Fletcher Dawson of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

INTRODUCTION

[1]

This case concerns the prosecution of Garfield Boothe and Nichelle
    Rowe-Boothe for the killing of Shakeil Boothe, a ten year-old boy who was Mr. Boothes
    son and Ms. Rowe-Boothes stepson. Overwhelming medical and photographic
    evidence showed that Shakeil, who died in the familys home, (a) was
    malnourished and suffered from pneumonia and skin infections; (b) had clearly
    been physically abused for many months; and (c) in the final twelve hours of
    his life was brutally beaten. At trial both appellants admitted to abusing Shakeil,
    but each blamed the other for causing his death.

[2]

At trial the main issue was to determine who committed the final assault
    on Shakeil. Both appellants testified, and both admitted that they contributed
    to Shakeils death through various acts of abuse and neglect that rendered them
    guilty of manslaughter. However, each blamed the other in respect of the final
    assault in an attempt to avoid a finding of intent sufficient to transform conceded
    manslaughter into murder.

[3]

Both appellants were found guilty of second degree murder by a jury and
    convictions were entered by the trial judge. The trial judge sentenced both to
    life in prison, with Garfield Boothe eligible for parole after 18 years and Nichelle
    Rowe-Boothe eligible after 13 years. The judge set the sentence for each
    appellant on June 5, 2014, but both of them had been in custody since May 2011,
    so Mr. Boothe would become eligible for parole in May 2029, and Ms. Rowe-Boothe
    in May 2024. Both appeal from their convictions.

[4]

These appeals were inmate appeals and were heard together. Each
    appellant was ably assisted by duty counsel and each relied on the memorandums
    of law filed by duty counsel and the oral submissions counsel made at the
    hearing. Through duty counsel, each appellant focused his or her appeal on
    rulings made by the trial judge.

[5]

The appellants accept that in respect of each challenged ruling, the
    trial judge was aware of, and correctly described, the applicable law. Where he
    went wrong, they say, is in his application of the law.

[6]

We disagree with each of the appellants submissions. For reasons set out
    below, both appeals are dismissed. We discuss each of the appeals in order.

(1)

GARFIELD BOOTHES APPEAL

[7]

Mr. Boothe raises one ground of appeal. He claims that the trial judge
    improperly denied his mid-trial application for severance of the joint trial.
    It will be helpful to set out a brief description of the circumstances that
    gave rise to the severance application.

(a)

Background to the severance application

[8]

Just before the close of the Crowns case, counsel for Ms. Rowe-Boothe advised
    the court that he had come into possession of photographs that had relevance to
    the trial. The trial judge ordered the photographs to be disclosed to all
    counsel, with the result being that the Crown wished to tender the photographs
    in evidence. The Crown proposed to recall two witnesses: the mother of Ms.
    Rowe-Boothe and Dr. Pollanen. Dr. Pollanen was the chief forensic pathologist
    for Ontario, and he had provided expert testimony at trial on Shakeils
    injuries and the causation of Shakeils death. In response to the Crowns proposal,
    counsel for Mr. Boothe brought an application for severance, which the trial
    judge dismissed.

[9]

On appeal, Mr. Boothe asserts that, in dismissing his application for
    severance, the trial judge misapprehended the nature of the prejudice that
    accrued against Mr. Boothe through late disclosure of the photographs. In
    essence,
Mr. Boothe repeats
trial
    counsels argument that the late disclosure fundamentally undermined his
    strategy for cross-examination of Ms. Rowe-Boothes mother and bolstered the
    credibility of the Crowns only witness to give direct evidence against Mr.
    Boothe.

[10]

To use duty counsels description in oral argument, the trial judge
    misunderstood how deep the unfairness of not granting severance was to Mr.
    Boothe. Mr. Boothe asserts that trial counsels entire strategy of
    cross-examining Ms. Rowe-Boothes mother would have changed had he known of the
    photographs.

(b)

Discussion

[11]

To repeat, none of the legal principles that governs an application for
    severance of the trial of co-accused is contested on this appeal, and Mr.
    Boothe does not assert that the trial judge did not understand those principles.
    Mr. Boothes only argument is that the trial judge did not appreciate the degree
    of prejudice that late disclosure of the photographs caused to his ability to
    make full answer and defence. We disagree.

[12]

The trial judge was acutely aware of the prejudice (or unfairness)
    argument, which again is the same one now being advanced on appeal, except that
    the argument now impugns the trial judges conclusion. With respect, it is
    abundantly clear from the trial judges nuanced reasons that he completely
    understood Mr. Boothes unfairness assertion. He referenced virtually all of
    the same arguments and authorities that are being relied upon on appeal and
    gave thorough reasons for why he disagreed with Mr. Boothe. After his thorough
    analysis, he concluded:

The bottom line is I do not see what has occurred here as
    creating fundamental unfairness which impacts so adversely on Garfield Boothes
    ability to make full answer and defence that it overtakes societys interest in
    a joint trial.

[Mr. Boothes] counsel chose a path that is not rooted in the
    evidence.

Whatever the source of the tactical decision, it has led by
    unknown means, to the production of photographs that tend to support one aspect
    of [Ms. Rowe-Boothes mothers] evidence about which she was attacked. No
    disclosure obligation has been violated.

Based on my assessment of the overall situation, I do not see
    the fundamental fairness of the trial being upset at this point.

[13]

An essential question to answer on an appeal from denial of severance is
    whether there was a reasonable possibility that severance could have affected
    the verdict by creating a reasonable doubt as to the accuseds guilt. That is
    to say, was there a reasonable possibility that, at a severed trial with a
    fresh jury, the new jury would have had a reasonable doubt as to whether Mr.
    Boothe was guilty of murder. Such a reasonable doubt in the minds of the
    hypothetical new jurors must be one that the jury that has delivered Mr.
    Boothes verdict was not reasonably likely to have perceived:
R. v. Chow
,
    2005 SCC 24, [2005] 1 S.C.R. 384, at para.
49;
R. v.
    Savoury
(2005), 200 C.C.C. (3d) 94 (Ont. C.A.), at para.
29. Although
    the trial judge did not expressly reference the question of whether there was a
    reasonable possibility that severance would create a reasonable doubt in this
    sense, it is clear from the entirety of his reasons that he was alive to it and
    answered it.

DISPOSITION

[14]

The trial judges decision on the issue of severance is an exercise of
    discretion and is entitled to deference provided he has acted judicially and
    the ruling does not result in an injustice:
R. v. Last
, 2009 SCC 45,
    [2009] 3 S.C.R. 146, at para. 14;
Savoury
, at para. 26. The argument
    in this appeal was rightly focused on whether the trial judges ruling resulted
    in an injustice to Mr. Boothe. Mr. Boothe has failed to establish that it did,
    and he has not demonstrated any reason for this court to interfere with the
    trial judges decision. His appeal is dismissed.

(2)

NICHELLE ROWE-BOOTHES APPEAL

[15]

Ms. Rowe-Boothe raises two grounds of appeal. Specifically, she claims
    that the trial judge erred in concluding that her statements in both her
    pre-arrest telephone interview and her post-arrest interview at the police
    station were voluntary.

Pre-Arrest Telephone
    Interview

(a)

Background

[16]

Ms. Rowe-Boothe, in focused submissions, argues that the trial
    judge erred in finding that she was not a suspect at the time when she made
    the relevant statements to a police officer over the telephone. She claims,
    just as she did at trial, that, at the time of the pre-arrest telephone statements,
    she had ceased being a
person of interest
and had become a
suspect
.
    She submits that, as a consequence, the police were required to warn her that
    she may be charged, that she was not required to make a statement, and that
    what she did say
could be used as evidence
    against her.

[17]

Although she concedes that the trial judge was aware of the applicable
    law on whether an individual was a suspect when speaking with the police, Ms.
    Rowe-Boothe asserts that the trial judge failed to apply the legal standard
    properly. That standard involves an objective view of all relevant
    circumstances.

(b)

Discussion

[18]

A statement made by an accused person to a person in authority is
    admissible if the Crown has proven beyond a reasonable doubt that the statement
    was voluntary. The investigation into voluntariness is broad and contextual:
R.
    v. Oickle
, 2000 SCC 38,
[2000]
    2 S.C.R. 3, at paras. 68-71.

[19]

At para. 32 of his reasons for decision, the trial judge recited the
    correct law and concluded
, G
iven the
    totality of the circumstances  until the cause of death was known uncertainty
    remained as to whether Shakeils death was a homicide and a warning [to Ms.
    Rowe-Boothe] was not called for:
R. v. Boothe-Rowe
, 2014 ONSC 571. Later,
    at para. 35, he identified the time during the telephone interview at which a
    caution from the police officer would have been appropriate: once Ms.
    Rowe-Boothe had told the police officer that she had left her home in Brampton
    without having sought medical attention for Shakeil, after having told the
    officer that Ms. Rowe-Boothe had known that Shakeil was sick and that she had
    sensed that he might not survive. The trial judge commented that this part of
    Ms. Rowe-Boothes story amounted to an admission that, viewed objectively,
    would support a conclusion that she had failed to provide the necessaries of
    life.

[20]

T
he trial judge, at para. 45, properly
    noted that the absence of a caution was a factor to be taken into account and
    he did so.
He found that Ms. Rowe-Boothe knew beyond doubt that she
    could incriminate herself by choosing to speak to the officer. And, at para.
    46, he found that she was also in a position to control the situation. She was
    not in custody but at a location unknown to the police outside the
    jurisdiction. She was on a cell phone and could have terminated the call at any
    time.

[21]

The trial judge did not make any reviewable error in this ruling. His
    reasons reveal a thorough and correct application of the governing law,
    including the objective component of the voluntariness analysis, to the
    material circumstances. We find no basis to interfere with what was largely a
    fact-based assessment.

Post-Arrest Interview
    at the Police Station

(a)

Background

[22]

Ms. Rowe-Boothe argued at trial that the post-arrest interview was
    involuntary because it was the product of oppression. She claimed that the
    atmosphere of oppression arose from three factors: (1) the police officer continued
    to question her after she indicated that she wanted to wait to speak with her
    lawyer in person; (2) the interview was not stopped to give her lawyer the
    opportunity to speak with her upon his arrival at the station; and (3) the
    police officer told her that her lawyer was not coming to the station.  The
    trial judge held that none of these factors was sufficient to justify excluding
    the statement.

[23]

On appeal, Ms. Rowe-Boothe, in purposeful arguments, submits that
    the trial judge erred in his analysis of the third factor. That is, the trial
    judge focused on the police officers intention and the fact that Ms.
    Rowe-Boothe had already spoken one time to counsel, but failed to consider the
    impact of the police officers statements on her.

(b)

Discussion

[24]

The question on appeal, just as it was posed at trial, is whether the
    police officers statement to Ms. Rowe-Boothe that her lawyer would not be
    available for the remainder of the interview, in the full context of that
    interview, negated her capacity to make a meaningful choice between speaking to
    the officer and refusing to speak:
R. v. Hebert
, [1990] 2 S.C.R. 151,
    at p. 181. Once more, it is solely the trial judges application of the law of voluntariness
    that is challenged.

[25]

Ms. Rowe-Boothes submission amounts to this: (i) she made specific
    references to the fact that she expected counsel to attend the interview in
    person and the police officer was aware of this expectation; (ii) when she was
    told that her lawyer was not coming, this information undermined her confidence
    in her lawyer; and (iii) this statement by her interrogator clearly had a
    significant impact on her because, after she heard it, she did not ask for an
    opportunity to speak to her lawyer during the remainder of the interview.

[26]

We agree with the Crown that Ms. Rowe-Boothes argument is merely
    speculative. Beyond this speculation, there is no substantial evidence of what
    she thought about her lawyer or the advice that he might ultimately have given
    her. The appellant did not testify on the
voir dire.

[27]

Ms. Rowe-Boothes reliance on
R. v. Burlingham,
[1995] 2 S.C.R.
    206 is of no assistance. Unlike the police in
Burlingham
, the police
    did not deliberately belittle her lawyer with the express goal of undermining
    her relationship with him, nor did they pressure her into accepting a deal
    without first giving her a chance to consult with her lawyer.

[28]

Importantly, and as the trial judge noted, Ms. Rowe-Boothe had consulted
    with duty counsel and her own lawyer, the latter once before the interview and
    once at its commencement. The trial judge concluded that, at all material
    times, the police acted in good faith and that they never intended to mislead
    the appellant. At para. 83 of his reasons, he reasonably concluded that being told
    that her lawyer was not coming
did not
enhance the submission that
    the interview became oppressive and resulted in the accuseds will being
    overborne.

[29]

The trial judge did not err in concluding that nothing had occurred that
    would have required the police to facilitate a re-consultation. The trial judge
    had sufficient evidentiary support for his conclusion that Ms. Rowe-Boothe consciously
    and deliberately decided to speak to the police and that her statements were
    voluntary.

DISPOSITION

[30]

Ms. Rowe-Boothe has not demonstrated that the trial judge made any
    reviewable error in respect of either of his rulings on the voluntariness of
    her statements. First, the trial judge reasonably decided, based on an
    objective view of all of the circumstances, that her statements during the
    telephone interview were voluntary. Second, the trial judge did not fail to
    consider adequately the impact on Ms. Rowe-Boothe of the police officers assertion
    that Ms. Rowe-Boothes lawyer would be unavailable for the remainder of the
    interview at the police station. His decisions are fully supported by the
    evidence and no reason has been demonstrated for interference by this court.

[31]

Accordingly, both grounds of Ms. Rowe-Boothes appeal are
    rejected and her appeal is dismissed.

H.S. LaForme J.A.

Paul
    Rouleau J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carelse-Brown, 2016 ONCA 943

DATE: 20161215

DOCKET: C58539

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marlon Carelse-Brown

Appellant

David Quayat, for the appellant

Nick Devlin, for the respondent

Heard: November 3, 2016

On appeal from the conviction entered on November 7, 2013
    by Justice Robert F. Goldstein of the Superior Court of Justice, sitting with a
    jury.

Gillese J.A.
:

[1]

This appeal requires the court to determine whether, based on a 911 gun
    call, police officers had reasonable and probable grounds to stop a speeding car
    and arrest its two occupants or, instead, were limited to an investigative detention.

BACKGROUND

[2]

On the evening of February 6, 2012, Constables Dickie and Verdoold (together,
    the Officers) were in uniform and on community response duty in Toronto.  Const.
    Dickie was driving a marked police cruiser and Const. Verdoold, who had 22
    years of experience on the police force, was in the passenger seat.

[3]

Following a 911 call, dispatch radioed the Officers with information of a
    person with a gun.  Based on information given by the 911 callers, dispatch
    alerted the Officers that the suspects had a firearm and were in a silver
    four-door Dodge sedan bearing licence plate BMMH719 that was driving southbound
    on Keele Street near Finch Avenue.  According to the 911 callers, the two
    occupants of the vehicle were light-skinned black males who appeared to be
    under 24 years of age, were wearing dark baseball caps, and the driver was wearing
    reading glasses.

[4]

Const. Verdoold entered the license plate number in his onboard computer
    and learned that the suspect vehicle, a silver four-door Dodge AXT, was
    registered to a car rental company and was not on file as a crime vehicle at
    the time.  He broadcast that information.

[5]

The Officers drove south on Jane Street, and then east on Wilson Avenue,
    in an attempt to intercept the Dodge.  As they drove, they continued to receive
    updated locations for the Dodge sedan.  Const. Verdoold learned from dispatch
    that the 911 callers were following the Dodge sedan after having had an
    encounter with the two occupants of the vehicle  whom they saw with handguns
    at a Tim Hortons coffee shop in a gas station at Allen Road and Sheppard Avenue
    West.

[6]

At one point, the 911 callers reported that the suspect vehicle was
    pulling into an underground parking area.  Shortly after, the 911 callers indicated
    that they could see police officers and said they would wait for the police at Sentinel
    Road and Derry Down Road.

[7]

At 7:03 p.m., the Officers saw a silver Dodge sedan driving southbound
    on Derry Down Road.  Const. Dickie confirmed that the license plate matched the
    license plate number that dispatch had given.  Const. Verdoold was able to
    confirm only the last three numbers.

[8]

Const. Dickie turned the police car around and began to follow the Dodge
    sedan.  He estimated that the Dodge was travelling at around 60 kph in a 40 kph
    zone.  The Dodge turned west on Frankton Crescent.  A second police vehicle took
    the first position behind it and activated its roof lights.  The Dodge
    stopped.

[9]

Based on a concern for the safety of the public, himself and the
    occupants of the Dodge, Const. Verdoold decided to initiate a high risk
    takedown (i.e. an arrest at gunpoint).  Const. Verdoold testified that
    speaking to the 911 callers before intercepting the suspect vehicle was not an
    option because the two occupants of the car were understood to have firearms.  He
    also testified that he had responded to well over 100 gun calls in his years on
    the police force and had been shot at twice.  He formed the intention to arrest
    the occupants of the Dodge before he made observations about them.

[10]

Const.
    Verdoold deployed a shotgun, exited his vehicle and took cover behind a
    telephone pole.  He ordered the driver to exit the Dodge with his hands up.  Other
    responding officers took the driver into custody.  He noted that, consistent
    with the 911 callers description, the driver was a young black male with a medium
    to light complexion.  Const. Verdoold then ordered the person in the front
    passenger seat of the Dodge to exit the car with his hands up and lie down on the
    ground, face down with his hands to his sides.

[11]

The
    passenger was Mr. Carelse-Brown, the appellant in this matter.  He is a black
    male, with a light to medium complexion, in his twenties.

[12]

The
    appellant complied with Const. Verdoolds orders.

[13]

Const.
    Verdoold handcuffed the appellant and told him that he was under arrest for
    possession of a firearm.

[14]

Const.
    Verdoold testified that he did not detain the appellant to further his
    investigation but, rather, placed the appellant under arrest knowing that allowed
    him to search the appellants pockets.  He testified that he understood the
    difference between these two police powers  investigative detention and arrest
     and the greater judicial scrutiny that the decision to arrest an individual
    entails.

[15]

Const.
    Verdoold searched the right side of the appellants body for anything in
    relation to firearms, including ammunition.  He testified that a pat-down
    would have been insufficient because the 911 callers had mentioned that the
    Dodge sedan had been seen to pull into an underground parking garage, and that
    the callers had lost sight of the vehicle, so the occupants of the Dodge could
    have discarded firearms while in the parking garage.  As a result, Const.
    Verdoold was looking for ammunition or a magazine, as well as for handguns.

[16]

Two
    other police officers searched the left side of the appellants body.

[17]

Const.
    Verdoold found a small quantity of marijuana, in two baggies, in the
    appellants coin pocket and over one thousand dollars in cash, folded into
    bundles, in the appellants front right pocket.  The two other officers found
    more cash and a cellphone in the appellants left front pocket.

[18]

Police
    dog services searched the area afterwards and did not find any firearm-related
    evidence.  Const. Verdoold then further arrested the appellant for possession
    of marijuana and read the appellant his rights to counsel.  After that, Const.
    Verdoold learned that the appellant would be charged with threatening bodily
    harm, possession of marijuana for the purpose of trafficking, and possession of
    the proceeds of crime.  The threatening charge related to the encounter between
    the 911 callers and the occupants of the vehicle at the Tim Hortons coffee shop
    earlier that evening.

[19]

The
    appellant was taken to the police station where the police carried out a strip
    search for safety reasons because the appellant was to be held with other
    prisoners pending a show cause hearing.  This search led to the discovery of just
    over 25 grams of cocaine in the appellants underwear.

[20]

At
    trial, he was convicted of possession of cocaine for the purpose of
    trafficking.

THE APPLICATION TO EXCLUDE THE COCAINE

[21]

The
    appellant brought an unsuccessful application to have the cocaine excluded from
    evidence on the basis of alleged
Charter
infringements.
[1]
He acknowledged that the police made no error in a) stopping the Dodge; and b) not
    interviewing the 911 callers before acting.  He conceded that the police were
    entitled to investigate the occupants of the Dodge and conduct a pat-down
    search.  He also conceded that Const. Verdoold had subjective grounds to arrest
    him.  However, he argued that the police did not have objectively reasonable
    and probable grounds for that arrest.  If the arrest was unlawful, the
    appellant submitted that it violated his rights under s. 9 of the
Charter
.

[22]

On
    an investigative detention, the appellant said that the police would not have had
    the right to go through his pockets.  For that reason, the appellant contended
    that the search which led to the seizure of the marijuana and cash was unlawful,
    and hence violated s. 8 of the
Charter
.  Those seizures led to the appellants
    subsequent strip search and the discovery of the cocaine in his underwear.  In
    the result, the appellant argued, the police violated his ss. 8 and 9
Charter

rights and the cocaine should be excluded from evidence.

[23]

The
    application judge disagreed.  He found that the police had reasonable and
    probable grounds to arrest the appellant.

[24]

The
    application judge began by noting that s. 495(1)(
a
) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, provides that a peace officer may arrest,
    without warrant, a person who has committed an indictable offence or who, on
    reasonable grounds, he or she believes has committed or is about to commit an
    indictable offence.  He then referred to the requirements for a lawful arrest
    identified in
R. v. Storrey
, [1990] 1 S.C.R. 241: (1) the arresting
    officer must personally believe that he or she has reasonable and probable
    grounds to make the arrest; and (2) it must be objectively established that those
    reasonable and probable grounds existed.

[25]

The
    application judge noted the appellants concession that Const. Verdoold had
    subjective grounds to arrest the appellant and then turned to the question
    whether there were objectively established reasonable and probable grounds to
    arrest.  In finding that there were, the application judge relied on this
    courts decision in
R. v. Golub
(1997), 34 O.R. (3d) 743, leave to
    appeal refused, [1998] 1 S.C.R. ix.

[26]

In
Golub
, the complainant Mr. Hepworth was drinking with the respondent Mr.
    Golub at Rhinos bar.  They left after the bar manager refused to serve Mr.
    Golub.  After visiting various other bars, Mr. Golub became very upset and
    angry, recounting trouble with his ex-wife.  At one point, he struck Mr.
    Hepworth.  Mr. Golub told Mr. Hepworth that he would get even with the staff at
    Rhinos bar and showed him a rifle under his jacket.    Mr. Hepworth warned the
    bar manager at Rhinos, who in turn called the police.

[27]

After
    speaking with Mr. Hepworth at Rhinos, the police treated his complaint as a gun
    call requiring immediate action.  They located Mr. Golub at his apartment and
    ordered him to come out.  He did so and was arrested a short distance from his
    apartment door.  Fearing that there might be someone else in the apartment with
    access to a dangerous weapon, the police entered the apartment without a
    warrant and found a rifle and ammunition underneath a mattress.  The respondent
    was charged with several weapons offences but was acquitted of them, having had
    the rifle excluded from evidence under ss. 8 and 24(2) of the
Charter
.

[28]

This
    court allowed the Crowns appeal against the acquittals.  Doherty J.A., writing
    for the court, rejected Mr. Golubs argument that his arrest was unlawful
    because it was based on the uncorroborated information of Mr. Hepworth, a
    person of unknown reliability.  The application judge set out paras. 17-19 of
Golub
,
    in which Doherty J.A. explained why that argument failed:

[17]  Mr. Harris' proposition is a novel one.  If correct, it
    would greatly restrict the police power of arrest.  It would preclude the
    police from arresting a suspect based on information received from a witness to
    the crime even where the witness could have arrested the suspect pursuant to s.
    494(1)(a).  In addition, as pointed out by Mr. Hutchison for the Crown, in the
    course of oral argument, Mr. Harris' position would set the test for reasonable
    grounds for arrest higher than the eventual standard for conviction since the
    respondent could be convicted based on the evidence of Hepworth absent any
    confirmation of his version of events.

[18]  Mr. Harris' reliance on the search warrant cases is
    misplaced.  Both a justice and [an] arresting officer must assess the
    reasonableness of the information available to them before acting.  It does not
    follow, however, that information which would not meet the reasonableness
    standard on an application for a search warrant will also fail to meet that
    standard in the context of an arrest.  In determining whether the reasonableness
    standard is met, the nature of the power exercised and the context within which
    it is exercised must be considered.  The dynamics at play in an arrest
    situation are very different than those which operate on an application for a
    search warrant.  Often, the officer's decision to arrest must be made quickly
    in volatile and rapidly changing situations. Judicial reflection is not a
    luxury the officer can afford. The officer must make his or her decision based
    on available information which is often less than exact or complete.  The law
    does not expect the same kind of inquiry of a police officer deciding whether
    to make an arrest that it demands of a justice faced with an application for a
    search warrant.

[19]  The justice asked to issue a search warrant based on
    information provided by a police source is in a very different position than
    the police officer who is face to face with the complainant.  The justice asked
    to issue a search warrant based on information provided by a police source
    cannot assess the reliability of that secondhand information without additional
    information from the officer pertaining to the reliability of the officer's
    source.  The police officer faced with a complaint from a witness to events has
    information from a firsthand source and can question that source, if
    necessary.  To the extent that the position of the justice and the arresting
    officer can be compared at all, the officer acting on a complaint from a
    witness to the relevant events is in a similar situation to a justice who acts
    on firsthand information provided by the police officer.

[29]

The
    application judge also noted that a police officer is entitled to take into
    account information that he or she receives from a police dispatcher, even if
    he or she cannot independently confirm it.  He found that just because the Officers
    could have conducted further investigation, it did not mean that they were
    required to do more before arresting the appellant, in a situation that
    required them to act.

[30]

At
    paras. 30-31 of his reasons, the application judge concluded:

[30] Using a contextual analysis it is clear that the police
    had reasonable and probable grounds to arrest Mr. Carelse-Brown, and that there
    was an objective basis for those grounds, in particular:

 The complainants indicated that they had been threatened
    by two men;

 According to the complainants, each man was armed with a
    handgun;

 The complainants provided a location where the threats had
    taken place;

 The complainants gave a generic description of the
    suspects, but a very detailed description of the vehicle, including the make,
    the colour, and the licence plate number;

 The complainants were obviously in some form of contact
    with the suspect vehicle, as they relayed updated information from time to time
    as to the location;

 The complainants did provide at least their first names to
    the police dispatcher. Constable Verdoold could not recall whether or not he
    learned their names at the time of the gun call, but Constable Dickie did.  It
    is likely that since both were privy to the same radio communications,
    Constable Verdoold learned the names of the complainants but did not recall at
    the time of the trial.  In any event, even if Constable Verdoold did not know
    their names, certainly other police officers (or at least a police dispatcher)
    did.

[31] As in
Golub
and
Bush
,
[2]
the police had a specific and detailed complaint from a witness to the events.  That
    complaint was about individuals who were armed, had committed an offence, and
    were in a vehicle described with a high degree of specificity.

[31]

The
    application judge then considered whether the coin pocket search would have
    been permitted incident to investigative detention.  His reasons are not
    summarized here because that issue was not pursued on this appeal.

[32]

The
    application judge found that because there was no
Charter

breach,
    it was not necessary for him to decide whether the evidence should be excluded pursuant
    to s. 24(2).  Nonetheless, he considered the matter and determined that even if
    there had been a breach of the appellants
Charter
rights, he would
    not exclude the evidence.  In his view, if the state conduct was
Charter
-infringing,
    it was not serious.  He further found that the pocket search was minimally
    intrusive and relatively fleeting.  Finally, he found that society had a strong
    interest in an adjudication of this case on the merits.  He stated, at paras.
    51-52 of his reasons:

[51]   The possession of almost an ounce of cocaine must be
    viewed in light of a fairly minor
Charter

violation where the
    police were, without a doubt, required to act.

[52] In terms of the overall reputation of the administration
    of justice, in my view, a reasonable person, being well-informed and having
    thought the matter through, would have trouble understanding why the police
    were not entitled to respond as they did in reaction to a gun call.  Still less
    would it be readily understandable why evidence should be excluded where the
    police engaged in behaviour that, if it fell below the standard, only did so
    minimally.

[33]

The
    application judge dismissed the application.  At trial, the cocaine was
    admitted into evidence and the appellant was convicted of possession of cocaine
    for the purpose of trafficking.  The appellant was sentenced to 21 months
    imprisonment and three years probation.

THE ISSUES

[34]

The
    appellant submits that the application judge erred in finding that Const. Verdoold
    had objectively reasonable and probable grounds to arrest him.  This submission
    underpins the appellants contention that, when the police stopped the suspect car,
    they were limited to a pat-down search of its occupants, incident to an investigative
    detention.

[35]

The
    appellant also submits that the application judge erred in his analysis under
    s. 24(2) of the
Charter
.

ANALYSIS

[36]

I
    would not interfere with the application judges determination that the police
    had objectively reasonable and probable grounds to arrest the appellant for
    unlawful possession of a firearm.

[37]

Before
    a search can be held to be incidental to an arrest, the lawfulness of the
    arrest must be established:
R. v. Saeed
, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37;
R. v. Fearon
, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 27; and
R. v.
Caslake
, [1998] 1 S.C.R. 51,
    at para. 13
.  The application judge set out and applied the correct
    legal principles in determining that matter.  As he stated, for an arrest under
    s. 495(1)(
a
) of the
Criminal Code
to be lawful: (1) the
    arresting officer must personally believe that he or she has reasonable and
    probable grounds to make the arrest; and (2) it must be objectively established
    that those reasonable and probable grounds existed:
Storrey
, at p. 250.

[38]

The
    appellant conceded, both below and before this court, that Const. Verdoold had
    subjective grounds to arrest the appellant.  Consequently, the sole issue is whether
    the application judge erred in finding that objectively reasonable and probable
    grounds existed  that is, whether a reasonable person, standing in Const. Verdoolds
    shoes, would have believed that reasonable and probable grounds existed to make
    the arrest:
Storrey
, at p. 250.

[39]

In
    finding that Const. Verdoold objectively had reasonable and probable grounds to
    arrest, it will be recalled that the application judge relied on the following:

 The complainants indicated that they had been threatened by
    two men;

 According to the complainants, each man was armed with a
    handgun;

 The complainants provided a location where the threats had
    taken place;

 The complainants gave a generic description of the suspects,
    but a very detailed description of the vehicle, including the make, the colour,
    and the licence plate number;

 The complainants were obviously in some form of contact with
    the suspect vehicle, as they relayed updated information from time to time as
    to the location;

 The complainants did provide at least their first names to
    the police dispatcher. Constable Verdoold could not recall whether or not he
    learned their names at the time of the gun call, but Constable Dickie did. It
    is likely that since both were privy to the same radio communications,
    Constable Verdoold learned the names of the complainants but did not recall at
    the time of the trial. In any event, even if Constable Verdoold did not know
    their names, certainly other police officers (or at least a police dispatcher)
    did.

[40]

The
    appellant says that the application judges first finding in this list is
    erroneous because there was no evidence that the 911 callers advised that they
    had been threatened by the two men in the suspect vehicle or that the Officers
    had received that information from dispatch.

[41]

I
    agree that at the time of arrest, Const. Verdoold did not know that the 911
    callers had told dispatch that the occupants of the Dodge threatened them
    during their encounter at the Tim Hortons coffee shop.  Therefore, it was an
    error for the application judge to have relied on the complaint of threatening
    when assessing whether objectively reasonable and probable grounds to arrest
    existed.

[42]

In
    my view, however, although Const. Verdoold had not learned of the threats to the
    911 callers before he made the decision to arrest, there were objectively
    reasonable and probable grounds to arrest.

[43]

Const.
    Verdoold knew that the 911 callers had recently encountered the occupants of
    the suspect vehicle at a nearby Tim Hortons coffee shop and that dispatch had reported
    that both of the occupants of the suspect vehicle had handguns.

[44]

The
    911 callers had identified themselves by giving their first names to the police
    dispatcher.  The callers gave specific and detailed information about the
    vehicle and its occupants. They behaved in an open and helpful way, actively
    assisting the police in locating the suspect vehicle, by following it and
    reporting on its movements.  The callers also offered to stop and meet the
    police at a specified intersection.

[45]

When
    the Officers first encountered the suspect vehicle, it was being driven at a
    high rate of speed  60 kph on a residential street with a speed limit of 40
    kph.  The information received by the dispatcher from the 911 callers, and
    relayed to the Officers, had been confirmed: the colour, make and type of the
    suspect vehicle; the vehicles licence plate; the vehicles location as it
    moved about; and the number and description of its occupants.  Everything that the
    Officers saw was consistent with the information that the 911 callers had given.
    There was no reason to discount that information.  Based on that information,
    the Officers had every reason to believe that the occupants of the suspect
    vehicle were in possession of handguns.

[46]

The
    grounds to arrest depended on the plausibility of the 911 callers report of unlawful
    possession of a firearm.  In these circumstances, the Officers had no reason to
    doubt the
bona fides

of the callers.  In my view, not only were
    they justified in acting on that information, they would have been derelict in
    their duty had they not acted on it.

[47]

I
    reject the appellants submission that the Officers were limited to an
    investigative detention because they had not taken steps to confirm the 911
    callers information.  In
Golub
, this court squarely rejected the
    proposition that an arrest could not be made based on information provided by
    an unknown source, absent confirmation of that information  information that
    may itself be less than exact and complete.  In this regard, the words of
    Doherty J.A., at para. 18 of
Golub
, bear repeating:

In determining whether the reasonableness standard is met, the
    nature of the power exercised and the context within which it is exercised must
    be considered.  The dynamics at play in an arrest situation are very different
    than those which operate on an application for a search warrant.  Often, the
    officer's decision to arrest must be made quickly in volatile and rapidly
    changing situations. Judicial reflection is not a luxury the officer can
    afford. The officer must make his or her decision based on available
    information which is often less than exact or complete.  The law does not
    expect the same kind of inquiry of a police officer deciding whether to make an
    arrest that it demands of a justice faced with an application for a search
    warrant.

[48]

This
    was a dynamic, dangerous and rapidly changing situation involving a serious
    threat to public and officer safety.  Only about ten minutes elapsed from the time
    that the 911 call was first made, in which the callers alerted the police to
    their encounter with two men bearing handguns, to the time of the appellants
    arrest  an arrest that took place next to the car in which he had been a
    passenger and which had been speeding through a residential area in Toronto.
    And, as I have already explained, Const. Verdoold made his decision to arrest
    after taking into account all of the available information.  To this I would
    add that the court has not been pointed to any information which Const.
    Verdoold is said to have disregarded and I see none on my review of the record.

[49]

Although
    the police in
Golub
interviewed the complainant prior to acting upon
    his information, that does not render such an interview a requirement in every
    case of a 911 call.  See also
R. v. Lowes
, 2016 ONCA 519, at paras.
    10-11, in which this court held that there is no obligation on the police to
    undertake additional investigative steps to test a 911 report of ongoing crime
    before they are entitled to take action in reliance on that call.

[50]

In
    oral argument, the appellant asserted that finding the arrest to be lawful runs
    afoul of this courts recent decision in
R. v. McGuffie
, 2016 ONCA
    365, 131 O.R. (3d) 643.

[51]

I
    do not agree.

[52]

In
McGuffie
, the police responded to information from security personnel
    at a bar that a group of five men had been seen passing around a handgun.  The
    doorman told Constable Greenwood that the appellant, who was quickly walking
    away from the bar, was a member of the suspect group.  Const. Greenwood detained
    Mr. McGuffie for investigative purposes and conducted a protective pat-down
    search.  This court held that the initial detention and search were lawful.
    However, the detention became arbitrary when Const. Greenwood confined the
    appellant in the back of a police cruiser.

[53]

The
    facts in
McGuffie

are very different from those in this case.
    Const. Greenwood detained Mr. McGuffie, who had been one of a group of five men
    in which a handgun had been passed around.  Mr. McGuffie was leaving the bar on
    foot.  Here, both occupants of a speeding car had been very recently seen with
    handguns and there was every reason to believe, at the time the car was
    stopped, that both men in the car had handguns.

[54]

The
    appellant also referred the court to
R. v. Godoy
, [1999] 1 S.C.R. 311,
    at para. 22, for the proposition that police action resulting from a 911 call must
    be minimally intrusive of liberty, as required in the circumstances.

[55]

Again,
    I do not find that
Godoy
assists the appellant.  In
Godoy,
the
    Supreme Court dealt with the reasonable limits on the common law police power
    to enter a dwelling to ascertain the health and safety of a 911 caller.  The
    limits on the police powers to enter a dwelling are not at issue in this case.

[56]

In
    the end, the appellant is inviting this court to ask why Const. Verdoold did
    not simply conduct an investigative detention.  That is the wrong question.
    The correct question is: was the arrest lawful?  The answer to that question is
    set out above.  It leads me to conclude that Const. Verdoolds decision to arrest
    was a good-faith choice, objectively supported by the facts available to him at
    the time of arrest.

[57]

I
    would, therefore, not interfere with the application judges determination that
    reasonable and probable grounds for the arrest were objectively established.

[58]

Accordingly,
    it is unnecessary to consider whether the application judge erred in his
    analysis under s. 24(2) of the
Charter
.

DISPOSITION

[59]

For
    these reasons, I would dismiss the appeal.

Released: December 15, 2016 (K.F.)

E.E. Gillese J.A.

I agree. K. Feldman J.A.

I agree. M.L. Benotto J.A.

[1]

Reasons reported at
R. v.
    Carelse-Brown
, 2013 ONSC 4287, 286 C.R.R. (2d) 360.

[2]

R. v. Bush
, 2010 ONCA
    554, 101 O.R. (3d) 641.