WARNING

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

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

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    information that could identify the victim or a witness shall not be published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

(a)     any of the following
    offences;

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

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

(iii)     REPEALED: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

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

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

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

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

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    the victim shall not be published in any document or broadcast or transmitted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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Shilling, 2021 ONCA 916

DATE: 20211220

DOCKET: C68825

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hubert Nathanial Shilling

Appellant

Lynda Morgan and Laura Metcalfe, for
    the appellant

Michael Dunn, for the respondent

Heard: December 16, 2021

On appeal from the convictions entered by
    Justice Vanessa V. Christie of the Superior Court of Justice on August 28, 2019,
    with reasons at 2019 ONSC 5038, and from the sentence imposed on January 31,
    2020, with reasons at 2020 ONSC 1193.

REASONS FOR DECISION

I.

INTRODUCTION

[1]

The trial in this judge-alone proceeding was not
    complex. It took less than a full day of court time and turned on whether the
    trial judge accepted the complainants evidence. The trial judge delivered her
    reasons the day after trial. After finding the complainant both credible and
    reliable, the trial judge convicted the appellant of two counts of sexual
    interference. He was sentenced to four and a half years in prison. He appeals
    from conviction and seeks leave to appeal sentence. He also brings a fresh
    evidence motion in support of his sentence appeal.

[2]

At the conclusion of the oral hearing of the
    appeal, we advised the parties that the motion and the appeals were dismissed,
    with reasons to follow. These are the promised reasons.

II.

BACKGROUND IN BRIEF

[3]

The appellant and the complainants mother were
    in a romantic relationship. The complainant moved in with the appellant in
    April or May 2015; her mother and two siblings moved into the appellants
    residence in June 2015. The family moved out in October 2016, at the
    appellants request, in part because of the complainants behaviour and her
    disobedience in following the appellants house rules, including doing chores.

[4]

Around December 2016, the complainants mother
    and the appellant became friends again. The family began visiting at the
    appellants house and, at times, the children were left with the appellant when
    the complainants mother went to work.

[5]

The complainant said that two incidents of
    sexual assault occurred while she, her mother, and her siblings lived with the
    appellant. The first incident happened under the blankets on a bed in the
    appellants bedroom while her siblings were sitting on the floor watching a
    movie in the same room. The second occurred on the couch while her mother was
    at work and her siblings were at the park. The complainant disclosed the incidents
    to her mother in the summer of 2017.

[6]

At trial, the only issue was whether the events
    actually occurred, a matter which turned on the credibility and reliability of
    the complainants testimony. The trial judge found that, despite some minor
    inconsistencies in the complainants testimony and recollection: she was an
    honest witness; her testimony was detailed in many respects; she considered her
    answers when she was unsure of them; she admitted when she did not remember
    something; and, she was not shaken in cross-examination in any significant way.
    After noting that corroboration is not required, the trial judge found that
    parts of the complainants testimony were corroborated by her mothers evidence.

[7]

There are two aspects of the defence position at
    trial that are relevant to this appeal. The first was the defence suggestion that
    the complainant had a motive to fabricate the incidents  she did not want to return
    to the rules and chores of the appellants household and was concerned that the
    family was slipping back into that routine. The second was that the
    complainants account of the assaults was inherently implausible.

[8]

The trial judge rejected the suggestion that the
    complainant was motivated to lie because she was concerned about having to move
    back with the appellant and she did not like the house rules. When the
    complainant disclosed the incidents to her mother, there was no suggestion that
    she would have to live with the appellant again because the relationship
    between her mother and the appellant at that time was simply a friendship.

[9]

The trial judge also rejected the defence
    suggestion that the incidents were improbable or impossible. The evidence about
    the couch and those involved made that incident neither improbable nor
    impossible. In terms of the bedroom incident, the trial judge found that the
    appellant could hold the complainant down with his arm and pull down both her
    pants and his. She also found that he tried to cover up the activities by placing
    a blanket over them. She further found that the other children in the room, who
    were only seven or eight years of age, were on the floor looking in the other
    direction while watching a movie, and there was no significant noise that would
    have attracted their attention.

III.

THE CONVICTION APPEAL

[10]

The appellant submits that the trial judge erred
    in:

i.

failing to properly consider the complainants
    motive to lie;

ii.

assuming the appellants guilt and relying on
    unsupported assumptions when assessing how the risk of detection impacted the
    complainants credibility (the circular reasoning argument); and

iii.

finding the mothers evidence corroborated the
    complainants testimony.

[11]

In our view, the trial judge committed none of
    the alleged errors.

IV.

ANALYSIS

Proper Consideration of the Complainants
    Motive to Lie

[12]

The appellant contends that the trial judge used
    a purely objective analysis to decide whether the complainant had a motive to
    lie. We see nothing in this contention.

[13]

The trial judge did not use words associated
    with an objective analysis, such as the reasonable person. Her reasons are
    grounded in her findings of fact about what was happening in the complainants
    life at the time that she disclosed the incidents to her mother. We also note
    that the suggestion that the complainant lied because she did not want to
    return to the appellants home because of his rules was never put to the complainant.
    And, in any event, as the trial judge found, at the time of disclosure there
    was no suggestion that the complainant would have to live with the appellant
    again.

No Circular Reasoning

[14]

The appellant submits that the trial judge assumed
    his guilt in rejecting the defence argument that it would not make sense that
    the appellant would assault the complainant while her siblings were in the same
    room.

[15]

Again, we see nothing in this submission. The
    trial judge did not assume the appellants guilt. Rather, she explained why she
    accepted the complainants description of the assault in the bedroom, a summary
    of which can be found above. There is nothing circular in her reasoning; it is
    solidly grounded in the evidence.

No Error in the Use of the Mothers Evidence

[16]

The appellant submits that the trial judge fell
    into error when she said that the evidence of the complainants mother
    corroborated that of the complainant. We see nothing in this submission.

[17]

As already noted, the trial judge began by observing
    that corroboration was not necessary. And, the trial judge did not use the
    mothers evidence to bolster the complainants credibility. The trial judge summarized
    those parts of the mothers evidence that confirmed the complainants evidence
    on matters such as the complainants behaviours that led to her moving to the
    appellants home, the complainants dislike of the rules at the appellants home,
    that they all watched movies together, and the setup of the appellants home.

V.

THE FRESH EVIDENCE MOTION

[18]

The appellant moves to have fresh evidence
    admitted in support of his sentence appeal. Based on the fresh evidence, he asks
    this court to reduce his sentence from four and a half years to three years.

[19]

The fresh evidence relates to two matters that occurred
    while the appellant has been serving his custodial sentence. First, the
    appellant contracted COVID-19 in December 2020. His symptoms lasted for
    approximately four days and he spent that time in isolation in a cell. He says
    he experienced heightened anxiety as a result of the COVID-19 diagnosis and
    isolation. Later that month, he had a major anxiety attack. Second, in February
    2021, a psychodiagnostics assessment report (the Report) said the appellant had
    post-traumatic stress disorder (PTSD).

[20]

The fresh evidence consists of a short affidavit
    from a lawyer who works in the law firm that represents the appellant. The
    affidavit is based on the following documents, which were appended to the
    affidavit: media articles; a document from Correctional Services Canada dated
    May 25, 2021 regarding the status of COVID-19 in penitentiaries; four inmate
    communiques from December 2020 and January 2021 related to Joyceville
    Institutions response to COVID-19; a letter advising the appellant he had
    contracted COVID-19; and, the Report.

[21]

In our view, the proposed fresh evidence could
    not be expected to affect the sentence. Moreover, some of it  such as the
    media articles  is inadmissible because it constitutes untestable hearsay. The
    Report should not be admitted because it is not fresh  it simply confirms
    evidence already before the trial judge. An example of this is the information
    on the appellants difficult childhood. To the extent that the PTSD diagnosis
    is fresh, that diagnosis could have been provided prior to sentencing. The
    evidence on the appellants experience with COVID-19 could not be expected to change
    the sentence which must remain proportionate to the gravity of the offence and
    the moral blameworthiness of the appellant:
R. v. Morgan
, 2020
    ONCA 279, at paras. 10-11.

[22]

While COVID-19 was a collateral consequence for
    the appellant, it cannot be used to reduce the sentence to a point where it is
    no longer fit:
Morgan
, at paras. 9-11. For the reasons given on the
    sentence appeal, below, a change in sentence would render the sentence no
    longer fit.

[23]

The appellants specific evidence of contracting
    COVID-19 and any health-related problems that may arise from his incarceration
    are matters best dealt with by the Parole Board of Canada through the powers
    provided to it under the
Corrections and Conditional Release Act
, S.C.
    1992, c. 20, s. 121(1):
R. v. Premji
, 2021 ONCA 721, at para. 10.

VI.

THE SENTENCE APPEAL

[24]

The appellant submits that the trial judge erred
    by failing to take into account the totality principle and his sentence is
    manifestly unfit.

[25]

We disagree.

[26]

In her reasons, the trial judge stated she was
    required to take totality into account when imposing sentence and it is evident
    on a reading of her reasons that she did so.

[27]

As for the fitness of sentence, we note the
    following. The appellant was in a position of trust in relation to the
    complainant, having taken on the role of a step-parent. He committed two
    separate, serious acts of sexual interference on the complainant when she was a
    child of between 11 and 14 years of age. And, he has a related criminal record,
    having a prior conviction for sexual assault. Mid-single digit penitentiary
    terms for sexual offences against children are normal: see
R v. Friesen
,
2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 5, 114. The sentence imposed here
    falls within that range.

VII.

DISPOSITION

[28]

Accordingly, the motion to admit fresh evidence and
    the conviction appeal are dismissed. While leave to appeal sentence is granted,
    that appeal is also dismissed.

E.E. Gillese
    J.A.

David Brown
    J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sicotte v. 2399153 Ontario Ltd.,
    2021 ONCA 912

DATE: 20211221

DOCKET: C68978

MacPherson, Simmons and
    Nordheimer JJ.A.

BETWEEN

Joanne Sicotte

Plaintiff (Appellant)

and

2399153 Ontario Ltd., Josée
    Virgo,
Philippe Grandmaitre and Denis Marchand

Defendants (Respondents)

Martin Black, for the appellant

Alden Christian, for the respondents 2399153
    Ontario Ltd., Josée Virgo and Philippe Grandmaitre

Nadia Authier, for the respondent Denis
    Marchand

Heard: November 3, 2021 by video conference

On appeal from the judgment of Justice Robyn
    M. Ryan Bell of the Superior Court of Justice, dated December 9, 2020, with
    reasons reported at 2020 ONSC 7581.

Nordheimer J.A.:

A.

Introduction

[1]

The appellant, Joanne Sicotte, brought a motion for
    summary judgment on a guarantee of a commercial mortgage signed by the
    respondents, Josée Virgo, Philippe Grandmaitre, and Denis Marchand. The motion
    judge dismissed the appellants motion but granted summary judgment to the
    respondents dismissing the appellants action against them.

[2]

The result of the motion judges decision is
    that the appellant is prevented from enforcing the guarantee until another
    mortgage that the corporate respondent 2399153 Ontario Ltd. (the Borrower) made
    with the Business Development Bank of Canada (BDC) is paid out. By the terms
    of the BDC mortgage, the payout may not occur until 2043, or even later if BDC
    grants an extension.

[3]

The appellant submits that the motion judge
    erred in rendering a decision that has such a drastic and unfair result for her.
    I agree with the appellant. For the following reasons, I would grant her
    appeal, set aside the order below, and grant summary judgment in favour of the
    appellant.

B.

facts

(1)

The parties and events

[4]

The appellant loaned $800,000 to the Borrower in
    2014 in exchange for a mortgage over the Borrowers property pursuant to the
    terms of a loan agreement (the Sicotte Loan). The three individual
    respondents  Ms. Virgo, Mr. Grandmaitre, and Mr. Marchand  are officers,
    directors and shareholders in the Borrower and guarantors of this mortgage. Pursuant
    to a separate guarantee agreement, they agreed to guarantee the Borrowers debts
    and liabilities at any time owing by the Borrower to the appellant. A fourth
    officer, director and shareholder of the Borrower is Marc Robert, the
    appellants spouse.

[5]

The appellant says that the Borrower is
    obligated to make monthly mortgage payments, has failed to do so, and is,
    therefore, in default under the loan agreement. She looks to enforce the
    guarantee against Ms. Virgo, Mr. Grandmaitre and Mr. Marchand (the
    guarantors).

[6]

The complicating factor is that, in 2018, BDC
    loaned an additional $3.9 million to the Borrower in exchange for a mortgage
    over the same property as the one described in the Sicotte loan. As part of the
    BDC loan agreement, the appellant, the Borrower and BDC signed a Postponement
    of Debt Agreement (the Postponement Agreement) which provided in part:

[T]he Creditor [the appellant] agrees with the
    Bank [BDC] that any claim of the Bank in respect of the Loan [the BDC loan] shall
    take precedence over and be fully paid in priority to the Debt [the Sicotte
    Loan], and repayment of the Debt is hereby expressly postponed in favour of the
    Bank
and the Creditor will not, so long as the Borrower
    is indebted to the Bank in respect of the Loan, demand payment, either in whole
    or in part, of the Debt
[Emphasis added.]

[7]

Concurrent with the BDC loan, the original Sicotte
    mortgage was amended in significant respects by:

i.

deleting the principal amount of $800,000 and
    inserting a principal amount of $1,522,757;

ii.

deleting the interest rate of 5.0% and inserting
    an interest rate of 6.0%;

iii.

extending the term for one year; and

iv.

deleting the monthly payment amounts of $3,333.33
    and inserting monthly payment amounts of $7,613.79 (acknowledged to be payments
    of interest only).

[8]

The Borrower made the monthly interest payments to
    the appellant in July, August and September 2018. The payments then ceased. No
    payments have been made since. Further, the mortgage matured and became due and
    payable in full on July 10, 2019.

[9]

In reliance upon the Postponement Agreement, BDC
    advised the appellant that she could not demand payment from the Borrower, or
    enforce her mortgage against the property, until such time as BDC is paid in
    full, the ultimate due date being in August 2043 or, possibly by extension,
    even later.

[10]

The appellant appears to have accepted BDCs
    warning about the mortgage. Instead, she commenced this action on the guarantee
    and brought a motion for summary judgment against the guarantors. All parties
    agreed that the motion for summary judgment was an appropriate method for
    resolving the dispute and that there were two possible outcomes  summary
    judgment could be granted in favour of the appellant or an order could be made dismissing
    her action, notwithstanding the absence of a cross-motion for such relief: see
Meridian
    Credit Union Limited v. Baig
, 2016 ONCA 150, 346 O.A.C. 57, at para. 17,
    leave to appeal to S.C.C. refused, 36974 (March 2, 2017).

(2)

The motion judges decision

[11]

The motion judge dismissed the appellants
    motion. In its place, she granted an order dismissing the appellants entire
    action. The core of her reasoning was as follows:

Are 239 Ontarios liabilities to Ms. Sicotte
    under the Mortgage presently owing? In my view, the answer to this question
    is no, based on a plain reading of the Postponement executed by Ms. Sicotte.

Giving the words used in the Postponement
    their ordinary and grammatical meaning, Ms. Sicotte agreed:

(i) the repayment of the BDC loan takes
    precedence over and shall be fully paid in priority to the Sicotte Loan;

(ii) repayment of the Sicotte Loan is
    postponed in favour of the BDC;

(iii) Ms. Sicottes right, title, and
    interest in any security in respect of the Sicotte Loan is postponed in favour
    of the BDC; and

(iv) while 239 Ontario is indebted to BDC,
    Ms. Sicotte is not entitled to demand payment of the Sicotte Loan.

As the Postponement expressly states, BDC made
    its loan to 239 Ontario conditional on the Sicotte Loan being postponed.

The wording of the Postponement is clear and
    unequivocal. I find that the intention of the parties to the Postponement
    BDC, Ms. Sicotte, and 239 Ontario  was that no payments (interest or
    otherwise) could or would be made on the Sicotte Loan until such time as the
    BDC loan is repaid in full. The BDC loan has not been repaid in full; it
    matures in August 2043. I find that 239 Ontario remains indebted to Ms. Sicotte
    but, by operation of the Postponement, no amounts are presently owing by 239
    Ontario under the Sicotte Loan and Ms. Sicotte has no right to insist on
    payment.

I reject Ms. Sicottes contention that the
    Postponement is irrelevant and her argument that the guarantors are not
    entitled to rely on an agreement to which they are not parties. To the
    contrary, Ms. Sicotte must be held to the clear terms of the agreement she and
    239 Ontario made with BDC. Because of that bargain, there are no amounts
    presently owing by 239 Ontario to Ms. Sicotte under the Mortgage. Therefore,
    the Mortgage is not in default and the guarantors obligations are not
    triggered.

C.

issues

[12]

The appellant advances three issues on the
    appeal:

1.

Did the motion judge err by failing to distinguish between a debt being
    owed and a debt being subordinated and temporarily unenforceable against the
    borrower?

2.

Did the motion judge err by failing to distinguish between the
    obligations of the primary debtor/borrower to the appellant as a lender and
    those of the guarantors?

3.

Did the motion judge err by applying a lease-up pre-condition to the
    repayment of the subject loan after such pre-condition had ceased to apply on
    the pay-out of the previous construction financing?

[13]

For the following reasons, I conclude that the
    motion judge made each of these three errors.

D.

analysis

(1)

Standard
    of review

[14]

I begin by noting that the motion judge was
    required to interpret several types of documents  loan, mortgage, guarantee,
    and postponement of debt. All these documents were commercial and contractual
    and, taken together, they involved several commercial and individual parties.

[15]

In
Sattva Capital Corp. v. Creston Moly
    Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50 and 52, the Supreme
    Court of Canada held that [c]ontractual interpretation involves issues of
    mixed fact and law and that, therefore, deference is owed to first instance decision-makers
    on points of contractual interpretation. Accordingly, the palpable and overriding
    error standard applies to these issues, which are issues of contractual
    interpretation with no extricable question of law: see
Heritage Capital
    Corp. v. Equitable Trust Co.
, 2016 SCC 19, [2016] 1 S.C.R. 306, at paras.
    21-24. The appellant, fairly, acknowledges in her factum that this is the
    appropriate standard of review on each of the three issues she raises on this
    appeal.

(2)

Issues 1 and 2: Failure to distinguish between
    the primary debt and the guarantee, and between owing and enforceable debt
    obligations

[16]

The first two issues greatly overlap and can be
    dealt with together. In my view, the motion judges central error is that she confused
    the appellants rights as they relate to the underlying debt with her rights as
    they relate to the guarantee. The two are separate and distinct contractual
    obligations, and that distinction must be respected. The result arrived at by
    the motion judge improperly conflates the two. In the circumstances, this
    amounts to an error of law, or at the very least a palpable and overriding
    error of mixed fact and law, as those concepts relate to the standard of
    review.

[17]

The Postponement Agreement, upon which both the
    guarantors and the motion judge placed exclusive reliance, was made between the
    appellant, the Borrower, and the BDC. The guarantors were not parties to the
    Postponement Agreement. Nothing in the Postponement Agreement purports to, or
    does, involve, much less alter, the relationship between the appellant and the
    guarantors. Simply put, there is nothing in the Postponement Agreement that
    purports to address or affect the appellants rights vis-à-vis the guarantors.

[18]

On that latter point, I do not accept that the
    reference in the Postponement Agreement that the [appellant] at the request of
    the [BDC] shall postpone in favour of the [BDC], all its or his right, title
    and interest in any security in respect of the Debt postponed by these
    presents refers to the guarantee. First, the guarantee is not a security
    postponed by these presents. Second, if the BDC had intended to impact on the
    rights and obligations of the guarantors, it presumably would have sought their
    concurrence to that impact, either by making them parties to the Postponement
    Agreement or through the execution of a separate agreement.

[19]

The motion judge also erred in concluding that
    the indebtedness of the Borrower to the appellant was not owing to the appellant.
    The motion judge recited this conclusion at para. 30, and again at para. 41, of
    her reasons. That conclusion reflects both a factual and a legal error. The
    mortgage, which secured the debt due by the Borrower to the appellant, has
    matured in accordance with its terms. It is an error to conclude that a matured
    mortgage does not represent monies that are due and owing.

[20]

If those facts were not, on their own,
    sufficient to address this point, I would also note that the guarantee refers
    to debts owing by the Borrower to the Lender or
remaining unpaid
by the
    Borrower to the Lender (emphasis added). It should be self-evident that the
    debt remains unpaid by the Borrower. Neither the principal amount of the
    mortgage has been paid nor have the monthly interest payments been made. The
    motion judge does not make reference to this language in her analysis. Nevertheless,
    the motion judge does note that section 2.02 of the guarantee entitles the
    appellant to demand payment or performance from the guarantors, even if she has
    not exhausted her remedies as against the Borrower. Yet the motion judge gives
    no effect to this section.

[21]

What the motion judge confused, with the active
    support of the guarantors, is the question of whether a debt is due and owing
    and whether a lender can enforce payment of a debt that is due and owing. The
    former addresses liability and the latter addresses enforcement. As this case
    demonstrates, just because a debt is due and owing does not necessarily mean
    that a lender can take steps to enforce payment of the debt. In this case, the
    appellant disentitled herself to enforce payment of the debt
by the Borrower
because of the contractual arrangements she entered into with the BDC, so as to
    permit the BDC to advance other monies to the Borrower. Understandably, the BDC
    insisted on being first in priority in terms of any enforcement rights against
    the Borrower (and its assets). The appellant contractually agreed to give the BDC
    that priority by postponing her enforcement rights as against the Borrower.

[22]

What the appellant did not do, and which is
    central to the issues in this case, is postpone or otherwise alter her rights
    of enforcement against the guarantors. Contrary to the finding of the motion
    judge, the Postponement Agreement did not do so. The first clue to that
    conclusion, as I alluded to above, ought to have arisen from the salient fact
    that the guarantors were not parties to the Postponement Agreement.

[23]

The motion judges conclusion about the
    Postponement Agreement is also inconsistent with the terms of the guarantee.
    The guarantee makes it clear that the obligations of the guarantors are
    independent of the obligations of the Borrower. By way of example, section 1.02
    of the guarantee states:

The liability of the Guarantor in this
    Guarantee will be absolute and unconditional and will not be affected by:

(a)     any lack of validity or
    enforceability of any agreement between the Borrower and the [appellant]

[24]

To a similar effect is section 2.01 of the
    guarantee, which states:

The liability of the Guarantor in this
    Guarantee will not be released, discharged, limited or in any way affected by
    anything done, suffered or permitted by the [appellant] in connection with any
    duties or liabilities of the Borrower to the [appellant] or any security
    therefor including any loss of or in respect of any security received by the
    [appellant] from the Borrower or others.

[25]

With respect, these provisions in the guarantee
    could not be clearer or more broadly worded. While the motion judge made
    reference to these provisions, she failed to give them any effect.

[26]

Consistent with the interpretative principles set
    out in
Sattva
,

the surrounding circumstances are relevant to
    a proper interpretation of the contractual document. Rothstein J. said, at
    para. 47:

[T]he interpretation of contracts has evolved
    towards a practical, common-sense approach not dominated by technical rules of construction.
    The overriding concern is to determine the intent of the parties and the scope
    of their understanding. To do so, a decision-maker must read the contract as a
    whole, giving the words used their ordinary and grammatical meaning, consistent
    with the surrounding circumstances known to the parties at the time of
    formation of the contract. [Citations omitted.]

[27]

The surrounding circumstances known to the
    parties here was that the Borrower needed to obtain construction financing to
    ensure that the vacant land that it held as its only asset could be developed
    so as to generate revenues to pay the Borrowers obligations. The appellant,
    recognizing that reality, agreed to postpone her rights as against the Borrower
    to enable that financing to take place. Indeed, she did so twice: once for the
    Borrower to obtain construction financing, and then again when the Borrower
    negotiated the loan with the BDC that, among other things, paid out the
    construction financing.

[28]

However, there was never any agreement that the
    appellants rights against the guarantors were to be similarly postponed. That
    conclusion flows inevitably from the factual record. In particular, there was
    an express agreement, at the time of the BDC financing, to amend the mortgage
    in four specific respects, as I set out above.

[29]

The respondents expressly agreed to these
    changes.
[1]
If the appellants rights were to be, in all respects, entirely subsumed and
    postponed to the BDC financing, as now urged by the guarantors, and as found by
    the motion judge, then there was no need for a one-year extension of the
    mortgage since, on the motion judges findings, the appellant was not able to
    enforce the mortgage, or the guarantee, until the BDC financing became due in
    2043. Nor does it appear that there was much practical purpose for providing
    that interest-only payments were to be made since, as the respondents would
    have it, there is no remedy for any failure to make those payments. Indeed,
    those interest-only payments, that the respondents expressly agreed were to be
    made, stopped only three months after they began and yet, in the result, the
    appellant is precluded from obtaining any relief arising from the failure to
    make those payments.

[30]

I would add, on this point, that there is
    evidence in the record that at least one of the purposes of the one-year
    extension was to allow time for the parties to pay out the Borrowers debt to
    the appellant. This intent is set out in an email from the appellants lawyer
    to the guarantors dated July 3, 2018, the same email that confirmed the
    guarantors acceptance of the terms, and the understanding upon which the
    appellant was postponing her rights against the Borrower to those of the BDC.
    If, as found by the motion judge, the appellant had waived her rights to
    payment of the debt, not only from the Borrower but also from the guarantors,
    there was no practical purpose to paying the appellant out, since the appellant
    had no rights of collection for the next twenty-five years. The motion judge
    did not address this evidence.

(3)

Issue 3: The lease-up of the property

[31]

The third issue arises from an alternative
    argument advanced by the guarantors. The guarantors contend that the
    construction financing contained a term that the loan amount did not have to be
    repaid until all of the units to be constructed in the buildings were leased.
    That has never happened. The guarantors submit that this is another reason that
    no amounts are owing by the Borrower, or by them, to the appellant.

[32]

That contention not only suffers from the same
    flaw of ignoring the distinction between the obligations under the principal
    debt and the obligations under the guarantee, but it also ignores the salient
    fact that the construction financing was paid out by the BDC financing. There
    is no basis in the record for concluding that the terms attached to the
    construction financing survived that payout and remained in force.

(4)

Potential new issue: Section 3.01 of the guarantee

[33]

Finally, the respondent Mr. Marchand raises what
    appears to be a new issue, and that is the effect of section 3.01 of the
    guarantee. Section 3.01 reads:

At any time that the [appellant] is entitled
    to enforce its security in accordance with the provisions of the Mortgage, the
    [appellant] shall be entitled to make demand upon any one or all persons
    comprising the Guarantor for payment and performance of all Obligations.

[34]

Mr. Marchand contends that because the appellant
    was not in a position to enforce her rights against the Borrower, she was not
    entitled to make a demand for payment under the guarantee. It is not clear if
    this issue was raised before the motion judge. Certainly, it is not referred to
    in her reasons. In any event, it does not assist the guarantors.

[35]

The appellant was entitled to enforce her
    security in accordance with the provisions of the Mortgage. Default had been
    made in the payments required and the mortgage had matured. The argument that
    there was no right to enforce because of the Postponement Agreement ignores the
    fact that section 3.01 of the guarantee refers expressly to the provisions of
    the mortgage, not any other document. The argument also ignores the specific
    provisions of the guarantee in sections 1.02 and 2.01 that I have referred to above,
    and it ignores section 4.02 which provides that the guarantee constitutes the
    entire agreement between the Guarantor and the [appellant]. Mr. Marchand
    acknowledges that the interpretation of the guarantee requires that all of its
    terms are to be read and considered as a whole.

E.

CONCLUSION

[36]

In the end result, as I have already observed,
    the conclusion of the motion judge has the effect of precluding the appellant,
    not only from being repaid the monies that were borrowed from her for the next
    twenty-two years, but also from receiving any interest payments to her on those
    same funds. Indeed, the time for repayment could go beyond that point since the
    BDC has the right to extend its financing. It means that the appellant must
    wait more than two decades, not only to be repaid the monies that she lent, but
    even to receive any return on those monies. That is a result that drives the
    interpretation of the security arrangements between the appellant and the
    guarantors to an absurd result. As noted by Cromwell J. in
Bhasin v. Hrynew
,

2014 SCC 71, [2014] 3 S.C.R. 494, at para. 45:

Further, as Lord Reid observed in
Schuler
    A.G. v. Wickman Machine Tool Sales Ltd.
, [1974] A.C. 235 (H.L.), at p.
    251, [t]he more unreasonable the result the more unlikely it is that the
    parties can have intended it.

[37]

I would allow the appeal, set aside the order of
    the motion judge, and grant summary judgment against the guarantors, each as to
    one-third of the outstanding debt, in accordance with the terms of the
    guarantee. I would award the appellant her costs of the appeal fixed in the
    amount of $15,000, inclusive of disbursements and HST. I would also award the
    appellant the costs of the action and the summary judgment motion fixed in the
    amount of $20,000, inclusive of disbursements and HST.

Released: December 21, 2021 J.C.M.

I.V.B.
    Nordheimer J.A.

I
    agree. J.C. MacPherson J.A.

I
    agree. Janet Simmons J.A.

[1]

I note that, arguably, the guarantors would have been bound
    by these changes in any event since section 2.01 of the guarantee provides that
    the appellant could deal with the Borrower
without obtaining
    the consent of or giving notice to the Guarantor.


WARNING

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

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

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

(a)     any of the following
    offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barreau, 2021 ONCA 918

DATE: 20211221

DOCKET: M52943 (C69723)

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Barreau

Respondent

and

J.R.

Appellant

and

Toronto Police Service

Appellant

David Butt, for the appellant/moving
    party J.R.

Noah Schachter, for the
    appellant/moving party Toronto Police Service

Nicolas de Montigny, for the respondent
    Attorney General of Ontario

Chris Rudnicki and Theresa Donkor, for
    the respondent Kevin Barreau

Heard: December 17, 2021 by video
    conference

On appeal from
    the judgment of Justice Jill M. Copeland of the Superior Court of Justice,
    dated July 27, 2021, dismissing an application for
certiorari
from the
    order of Justice Russell S. Silverstein of the Ontario Court of Justice, dated May
    27, 2021.

REASONS FOR DECISION

[1]

As an issue on this appeal concerns whether the
    third-party records regime in ss. 278.1-278.9 of the
Criminal Code
, R.S.C., 1985, c. C-46,
applies, by
    order of the panel on the motion this appeal was heard
in camera
.

[2]

The arguments below focused on the applicability
    of the third-party records regime to the evidence it was anticipated the former
    officer (J.R.) would provide. The application judge concluded that the trial
    judge had not made an error of jurisdiction or an error of law on the face of
    the record in issuing a subpoena requiring J.R. to testify at Mr. Barreaus
    trial. We see no error in her analysis or her conclusions.

[3]

As both the trial judge and application judge
    held, clearly the third-party records regime would not apply to the oral
    statements allegedly made by J.R. to her former colleague (A), who provided
    two affidavits on the application before the trial judge.

[4]

As to the draft statement of claim, which in one
    paragraph repeated the alleged oral statement, both judges below correctly
    stated the applicable legal principles. In particular, they recognized that the
    principles in
R. v. Shearing
,
2002 SCC 58, [2002] 3 S.C.R. 33,

applied to the issue of the lawfulness of how the defence acquired the
    draft statement of claim. We see no reversible error in their conclusions that
    settlement and mediation privilege did not apply and, therefore, in the
    particular circumstances, the third-party records regime did not apply.

[5]

In any event, the trial judge held that if the
    third-party records regime applied, upon applying the statutory criteria he
    concluded that production of the draft statement of claim to the defence on its
Charter
application was necessary in the interests of justice. We see
    no reversible error in that conclusion.

[6]

The appeal is dismissed.

[7]

The interim stay dated August 9, 2021 granted by
    Harvison Young J.A. is set aside. Accordingly, the unsealing and set aside orders
    made by Copeland J. at paras. 29(ii) and (iii) of her endorsement dated July
    27, 2021 are now in force.

E.E. Gillese
    J.A.

David Brown J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marzouk, 2021 ONCA 921

DATE: 20211221

DOCKET: C68089

Rouleau, Huscroft and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Marzouk

Appellant

Faisal Mirza and Kelly Gates, for the appellant

Jeffrey Wyngaarden
, for the respondent

Heard: October 29, 2021, by
    video conference

On appeal from the conviction entered on
    January 9, 2020 with reasons reported at 2020 ONSC 168, and the sentence
    imposed on March 3, 2020 by Justice Dunphy of the Superior Court of Justice.

ADDENDUM

[1]

In reasons dated December 1, 2021, the court allowed the sentence appeal,
    varied the sentence to one of two years less a day followed by a one-year probation.
    The court sought submissions from counsel as to appropriate terms for that
    probation.

[2]

Having reviewed those submissions the court orders that the terms be
    those agreed to by counsel plus the requirement that the appellant complete 60
    hours of community service.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.

J.A.
    Thorburn J.A.


WARNING

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

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

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

(a)     any of the following
    offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Priestap, 2021 ONCA 920

DATE: 20211221

DOCKET: C68369

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Gary Priestap

Appellant

Bruce Engel, for the appellant

Michael Fawcett, for the respondent

Heard: December 13, 2021

On appeal from the convictions entered
    on August 27, 2013, and the sentence imposed on October 16, 2015, by Justice Thomas
    J. Carey of the Superior Court of Justice.

REASONS FOR DECISION

Overview

[1]

The appellant, Bradley Priestap, appeals his convictions on
    multiple counts of voyeurism, break and enter to commit voyeurism, possession
    of instruments for break and enter, and prowling on property at night. The
    events that gave rise to the charges occurred during several nights in August
    and September 2012 in a student housing neighbourhood near the campus of
    Western University. At sentencing the appellant was declared
a
    long-term offender.

[2]

The appellant was sentenced to serve nine years in
    custody followed by a ten-
year supervision order. Although his notice of
    appeal seeks leave to appeal from his sentence, before us the appellant
    abandoned his sentence appeal.

[3]

The appellant advances three main grounds of appeal
in
    respect of his convictions: (i) the trial judge failed to provide adequate
    reasons that were supported by the evidence; (ii) the trial judge erred by summarily
    dismissing any notion that an alternate suspect could have been responsible
    for the crime
[
s
]
; and (iii)
    ineffective assistance of counsel.

[4]

At the conclusion of the appellants submissions, we advised that it was
    not necessary to hear from the respondent and dismissed the appeal, with
    reasons to follow. These are those reasons.

Adequacy of reasons

[5]

The appellants challenge to the adequacy of the trial judges reasons
    combines (a) disagreement with some specific findings of fact, such as the
    similarity of the type of duct tape on the appellants camera with that found
    in his car
 together with a bag containing a black toque,
    flashlight, and screw driver  with (b) a complaint that the trial judge did
    not provide detailed reasons for why he rejected the appellants explanation
    about his presence in the student housing as it bordered on laughable.

[6]

As stated in
R. v. Vuradin
,
2013 SCC 38,

[2013]
2
S.C.R. 639, at para. 15, The core question in
    determining whether the trial judges reasons are sufficient is the following:
    Do the reasons, read in context, show why the judge decided as he did on the
    counts relating to the complainant? When reasons are alleged to be
    insufficient, an appellate court must perform a functional and contextual
    reading of a trial judges reasons to assess whether the reasons, read in
    context and as a whole, in light of the live issues at trial, explain what the
    trial judge decided and why they decided that way in a manner that permits
    effective appellate review:
R. v. G.F.
,
    2021 SCC 20,
71 C.R. (7th) 1,
at para. 69.

[7]

In the present case, the trial judges reasons explain what he decided
    and why. The reasons reveal that the trial judge relied on an accumulation of
    evidence to convict the appellant: the pattern of travel of the appellants
    vehicle recorded by a warrant-approved tracking device attached to the car; the
    observations of the officers who conducted surveillance of the appellant in the
    student housing area on the night of September 28, 2012; the arrest of the
    appellant that evening in that area; the photographs of partially clad female
    students found in the appellants camera; the duct tape that covered the flash
    on the appellants camera; the contents of the black bag seized from the
    appellants car pursuant to a warrant; and the description given by a female
    student of the person who had entered into her room when she was asleep.

[8]

As well, the trial judge spent considerable time in his reasons
    describing and assessing the appellants explanation for moving amongst various
    houses in the student area at night: namely, that he was looking for a friend
    named Rob or Rocco who previously had used his camera and must have been the
    person who took the photographs of the female students. In his reasons, the
    trial explained why he found many parts of Mr. Priestaps story to be
    ridiculous and an affront to common sense and intelligence and, therefore,
    rejected it.

[9]

It was for the trial judge to assess the appellants credibility and we
    see nothing unreasonable in the conclusion he reached. Nor are we persuaded
    that the trial judges factual findings were tainted by palpable and overriding
    error.

[10]

Accordingly,
    we reject this ground of appeal.

Alternate suspect

[11]

The
    appellant submits that the trial judge failed to provide trial counsel with an
    opportunity to present the evidence of a third
-party
,
    or alternate, suspect.

[12]

The
    record does not support this ground of appeal.

[13]

Evidence of the possible involvement of a third party in the
    commission of an offence is admissible if there is a significant connection
    between the third party and the crime:
R. v. Grandinetti
,
2005 SCC 5,
[2005] 1 S.C.R. 27, at paras. 46
-47.

[14]

As the respondent Crown accurately notes, the trial judge did allow
    the appellant to call evidence with respect to two proposed third-party
    suspects but did not permit such evidence in respect of a third individual. The
    conduct of the third individual was described in an April 27, 2013 newspaper
    article that trial counsel put to one of the investigating officers, P.C.
    Lipskey, during cross-examination
. The article described the activity of
    a young man who drove a car on to the Western University campus, would stop and
    ask for directions from a female student, invite the student into his car to
    show him how to reach his destination, and then proposition the student for
    sexual favours.

[15]

Officer
    Lipskey testified he was not familiar with the investigation into the activities
    described in the article, which was published about half a year after the
    appellants arrest. When trial counsel continued her questioning, the trial
    judge interjected and the following exchange took place:

THE COURT: Ill let you ask him about the
    other

ones, but this is  are
    you suggesting anything that involves anything possibly sexual and University
    students is relevant, any investigation is relevant to this investigation?
    Youre talking about somebody propositioning people in cars. This is an investigation
    into break and enters and also, trespass and prowling by night and voyeurism
    while people are sleeping. Am I supposed to think that, first of all, the fact
    that offences are happening while an accused person is in custody, is not
    remarkable? Theres going to be all sorts of things happening, maybe this kind
    of thing happening, but secondly this second set of circumstances doesnt seem
    to have any relation to whatsoever the charge that were being, that were
    dealing with here.

MS. CONRON: Well Your Honour, it would be my
    submission that it is tangently

related
    because it is of a sexual nature. It is on the Western University region. Its
    while Mr. Priestap is in custody. I expect hell provide evidence and this may
    tie into that.

THE COURT: Well the Officer has said he
    doesnt know any  he doesnt agree with you that its related. I, I dont
    think youre, I think what youre, frankly youre wasting our time with it.

MS. CONRON: Well Ill move on.

THE COURT: Okay.

[16]

Given
    the lack of connection between the conduct of the driver of a car on the
    Western University campus and the night-time prowling and break and enter
    activity for which the appellant was charged, we see no error in the trial
    judge suggesting to counsel that it would be a waste of time to pursue further
    questioning about the investigation into the car driver.

Ineffective assistance of counsel

[17]

Although
    the appellant filed a lengthy affidavit alleging numerous deficiencies in the
    legal assistance provided to him by trial counsel, in his factum he relies on
    two allegations of ineffective assistance: (i) his counsel did not properly
    prepare him for trial, specifically by failing to ask the appellant that he was
    aware of the police presence in the student area at all times and was in the
    area at other times; and (ii) his counsel failed to bring a
Charter
application to exclude any and all police
    observations of the appellant.

[18]

We
    accept the Crowns submission that the appellant has failed to demonstrate that
    trial counsels alleged competence prejudiced the appellants right to a fair
    trial:
R. v. Garofoli
(1988), 41 C.C.C. (3d)
    97 (Ont. C.A.), at
p
. 15
2, revd on
    other grounds, [1990] 2 S.C.R. 1421
.

[19]

In
    respect of counsels alleged failure to ask the two questions, the appellant
    has not demonstrated how any answers he might have given would have impacted
    the result. We agree with the Crown that the trial judges strong finding against
    the appellants credibility casts a pall over his attempt before us, in effect,
    to reconstruct an innocent explanation for his presence in the student
    residence area on the nights in question.

[20]

In
    respect of a
Charter
application that was
    never brought, we accept the Crowns submission that the appellant has not
    presented a proper record on this appeal to enable this court to evaluate his
Charter
claims nor has he demonstrated that the result
    would have been different had such an application been litigated.

[21]

We
    see no merit in this ground of appeal.

Disposition

[22]

For the reasons set out above, the appeal from convictions is
    dismissed.

E.E. Gillese
    J.A.

David Brown
    J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simmons, 2021 ONCA 919

DATE: 20211221

DOCKET: C69285

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaiah Norlyn Simmons

Appellant

Jessica Zita, for the appellant

Erica Whitford, for the respondent

Heard: December 14, 2021

On appeal from the sentence imposed on February
    1, 2021 by Justice John A. Desotti of the Superior Court of Justice, with
    reasons for sentence reported at 2021 ONSC 674.

REASONS FOR DECISION

Overview

[1]

The appellant pleaded guilty to possession for
    the purpose of trafficking cocaine, possession of a loaded prohibited firearm,
    and possession of a loaded firearm while prohibited from doing so. The
    appellant received a global sentence of six years imprisonment.

[2]

The appellant contends that the global sentence
    of six years is excessive and should be reduced to a sentence in the range of
    five to five and a half years. In support of this submission, the appellant
    makes two arguments
[1]
:

1.

The sentencing judge erred in treating the
    timing of the appellants guilty plea (after the preliminary hearing) as an
    aggravating factor.

2.

The sentencing judge failed to consider the
    appellants rehabilitative potential.

[3]

At the conclusion of the hearing, we granted
    leave to appeal sentence but dismissed the appeal for reasons to follow. We now
    provide our reasons.

Facts

[4]

The appellant was arrested following a high-risk
    police takedown of a car. The appellant was in the front passenger seat. During
    the takedown, the appellant removed a fully loaded handgun from his waistband
    to drop it on the floor of the car. He was also found with a firearm magazine containing
    ten bullets in his jacket pocket. A vacuum sealed plastic bag containing 250
    grams of cocaine and crack-cocaine  valued at $25,000  was also found in the
    car, along with a digital scale.

[5]

At the time of his arrest, the appellant was subject
    to a ten-year firearms prohibition order. That order had been imposed by a
    court in 2017 after the appellants convictions for possession of a loaded
    prohibited/restricted firearm and carrying a concealed weapon.

[6]

The sentencing judge sentenced the appellant to
    four years on the possession of a loaded prohibited firearm offence; one-year
    consecutive for the weapons prohibition breach, and one-year consecutive for
    the drug offence for a global sentence of six years. From this six-year
    sentence, the appellant received
Summers
credit of 660 days and
Duncan
credit for 107 days for a total deduction of 767 days from the global
    sentence:
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575;
R.
    v. Duncan
, 2016 ONCA 754.

Discussion

A.

The Timing of the Guilty Plea

[7]

The appellant argues that the sentencing judge
    erred in principle when he noted that it was an aggravating factor that there was
    a preliminary hearing before the [appellant] eventually entered into guilty
    pleas. The appellant submits that this error deprived the appellant of
    substantial credit for pleading guilty in the sentencing process.

[8]

We agree with the appellant that the sentencing
    judge erred in considering the timing of the guilty plea to be an aggravating
    factor: see
R. v. Kozy
, (1990), 74 O.R. (2d) 545 (Ont. C.A.), at
    p. 550;
R. v. F. (J.)
, 2011 ONCA 220, 105 O.R. (3d) 161, at para. 84, affd
    on other grounds, 2013 SCC 12, [2013] 1 S.C.R. 565. The fact that a preliminary
    hearing had been held before the appellant pleaded guilty should not have been
    treated as an aggravating factor.

[9]

That said, an error in principle, the failure to
    consider a relevant factor, or the erroneous consideration of an aggravating
    factor will only justify appellate intervention if it appears from the sentencing
    judges decision that such an error had an impact on the sentence:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[10]

In our view, appellate intervention is not
    justified in this case. The timing of the guilty plea was not central in the
    sentencing judges assessment on sentence. It was only one of several
    aggravating factors noted by the sentencing judge. The sentencing judge focused
    on the fact that the appellant had received a serious previous sentence in 2017
    for possession of a restricted weapon with a prohibition from the possession of
    firearms and the appellant was oblivious to the peril that he would face if
    again apprehended for similar offences. The sentencing judge quite properly
    concluded that [p]ossessing a firearm while selling drugs is a recipe for
    death or injury to the [appellant], unsuspecting buyers of drugs, criminals
    that are intent on depriving the [appellant] of money or drugs, or the public
    who may unwittingly be present when the potential mayhem begins.

[11]

In light of the seriousness of the offence
    involving a firearm; the appellants previous record; the possession of a
    significant amount drugs for trafficking; and the possession of a firearm in
    breach of the outstanding weapons prohibition, we cannot say that the trial
    judges error impacted the sentence he ultimately imposed. We would not give
    effect to this ground of appeal.

B.

The Appellants Rehabilitative Potential

[12]

The appellant argues that the sentencing judge
    did not address the appellants rehabilitative potential, which was addressed in
    materials filed during the hearing. We disagree. The sentencing judge
    referenced the pre-sentence report and a letter from the appellants father
    that addressed the appellants potential to rehabilitate himself. In his
    reasons, the sentencing judge also listed several mitigating factors. However,
    he noted that [e]ach gun case turns frankly on its own offence specific and
    offender specific facts, but that the paramount consideration was deterrence
    and denunciation. We see no basis to interfere with his assessment and
    balancing of the relevant principles. This ground of appeal must fail.

Disposition

[13]

For these reasons, leave to appeal sentence is
    granted but the appeal is dismissed.

E.E.
    Gillese J.A.

David
    Brown J.A.

S.
    Coroza J.A.

[1]

The appellants counsel advised during oral argument that
    the appellant was abandoning the other two grounds of appeal raised in the
    factum, as well as the fresh evidence application.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doering, 2021 ONCA 924

DATE: 20211222

DOCKET: M53009 & M53015 (C67952)

Fairburn
A.C.J.O. (Motions Judge)

BETWEEN

Her
Majesty the Queen

Respondent

and

Nicholas
Doering

Appellant

Alan D. Gold, for the appellant

Jamie Klukach and Samuel Greene, for
the respondent

Joseph Markson and Kate Robertson, for
the proposed intervener, the Police Association of Ontario

Michael Lacy and Philip Wright, for the
proposed interveners, Canadian Police Association and Toronto Police
Association

Heard: December 16, 2021 by video conference

ENDORSEMENT

[1]

These reasons pertain to two applications
brought pursuant to r. 30 of the
Criminal Appeal Rules
, Court of
Appeal for Ontario, for leave to intervene in an appeal from conviction:
R.
v. Doering
, C67592, reasons for judgment reported at 2019 ONSC 6360. The
appeal is scheduled to be heard February 9, 2022.

[2]

The appellant is a police officer who was tried
in a judge-alone trial in the Superior Court of Justice. He was convicted of
two offences, both of which were said to have occurred in the course of his
duties: (1) criminal negligence causing death, contrary to s. 220(b) of the
Criminal
Code
, R.S.C., 1985, c. C-46; and (2) failing to provide the necessaries of
life, contrary to s. 215(2)(b) of the
Criminal Code
.

[3]

In response to multiple 9-1-1 calls, the
appellant was dispatched to a location where a woman, Ms. Debra Chrisjohn, had
been seen behaving erratically. It is not in dispute that Ms. Chrisjohn had
ingested a great deal of methamphetamine. Nor is it in dispute that the degree
of toxicity in her body was such that she ultimately succumbed to a heart
attack.

[4]

When he arrived on scene, the appellant placed
Ms. Chrisjohn in the back of his police vehicle. He eventually drove Ms.
Chrisjohn to another location and placed her into the custody of a different
police service that had an outstanding warrant for her arrest. Ms. Chrisjohn
died while in the custody of the other police service.

[5]

The defence conceded at trial that Ms. Chrisjohn
needed medical assistance while she was in the appellants custody and that the
failure to get her that assistance endangered her life. Despite that
concession, the defence argued, and the trial judge accepted, that the
appellant did not know or subjectively appreciate that Ms. Chrisjohn needed
that assistance.

[6]

Therefore, one of the primary issues in dispute
at trial was whether the appellants conduct amounted to a marked departure (or
a marked and substantial departure for purposes of the criminal negligence
count) from the standard of care of a reasonably prudent police officer in the
circumstances. Of course, those circumstances engage a commonplace occurrence
in the world of policing: the interaction between police officers and
individuals in various states of impairment. The trial judge concluded that the
appellants failure to obtain medical attention for Ms. Chrisjohn constituted a
sufficient departure from the standard of care of a reasonably prudent police
officer and that convictions should be entered on both counts.

[7]

The appellant contends that the trial judge made
numerous factual and legal errors when arriving at the conclusion that he was
guilty of both failing to provide the necessaries of life and criminal
negligence causing death.

[8]

There are two applications for intervention
before the court: (1) Canadian Police Association & Toronto Police
Association (CPA/TPA); and (2) Police Association of Ontario (PAO).
Collectively, I will refer to the CPA/TPA and PAO as the Associations. The
appellant consents to and the respondent opposes both applications.

[9]

Multiple criteria inform whether to grant leave
to intervene in an appeal as a friend of the court, including the general
nature of the case to be heard, the issues that arise in the case, and the
contribution that the intervener can make to those issues without doing an
injustice to the parties:
Peel (Regional Municipality) v. Great Atlantic
& Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164 (C.A.), at p.
167;
R. v. M.C.
, 2018 ONCA 634, at para. 9.

[10]

While it is rare to permit an intervention in a
criminal case unless a constitutional issue is raised, there is no rule against
such interventions. It remains a question of whether the proposed intervener
will make a useful contribution beyond that offered by the parties without
causing an injustice to the parties:
R. v. McCullough
(1995), 24 O.R. (3d)
239 (C.A.), at p. 243.

[11]

The respondent acknowledges the experience and
expertise of the Associations. This is beyond question.

[12]

The CPA represents approximately 60,000 police
service personnel in Canada and about 160 police services. The TPA has about
8,000 members. The PAO represents more than 28,000 uniformed police officers
and civilian employees of municipal police services. All three associations
have developed significant expertise in issues relating to policing, and the CPA
and PAO have previously offered their expertise through interventions in cases
involving issues of import to the practice and regulation of policing. A few
examples suffice:
Hill v. Hamilton-Wentworth Regional Police Services Board
,
2007 SCC 41, [2007] 3 S.C.R. 129;
Ontario (Attorney General) v. Fraser
,
2011 SCC 20, [2011] 2 S.C.R. 3;
Wood v. Schaeffer
, 2013 SCC 71, [2013]
3 S.C.R. 1053;
Peel (Police) v. Ontario (Special Investigations Unit)
,
2012 ONCA 292, 110 O.R. (3d) 536;
R. v. McNeil
, 2009 SCC 3, [2009] 1
S.C.R. 66.

[13]

In my view, the Associations have a real,
substantial, and identifiable interest in the subject matter of this appeal.

[14]

At a granular level, I agree with the respondent
that this is a fact-intensive case. The appellant challenges some of the trial
judges important factual conclusions. Even so, the appellant also directs his
submissions at the legal approach taken by the trial judge, including on the
following issues: (1) the legal approach to what a reasonably prudent police
officer would have appreciated in the circumstances; (2) the determination of
the applicable standard of care in the absence of expert evidence as to the
professional standards applicable to police officers; and (3) the failure to
consider the relevance of a mistake of fact in relation to offences of
objective liability.

[15]

While I accept that it is possible that this
appeal may ultimately turn on certain factual conclusions reached by the trial
judge, specifically as they relate to the interactions between the appellant
and the deceased and other police officers and medical personnel, at this
stage, it is simply too early to know. All that is known with certainty now is
that, given the subject-matter underpinning the convictions in this case, a
police officers criminal liability arising from a failure to obtain medical
attention for an intoxicated individual could have implications for policing in
general.

[16]

The CPA/TPA wishes to advance a number of
arguments that can be collapsed into two overarching submissions: (1) a police
officers on-the-job experience with intoxicated persons should be taken into
account when assessing what a reasonably prudent officer would do in any given
circumstance; and (2) there are important policy, operational, and resource
implications arising from the potential for criminal liability if a police
officer falls below the legal standard of care.

[17]

The PAO wishes to advance submissions on the
following three points: (1) the importance of considering mistakes of fact by a
police officer when determining that officers liability for criminal
negligence; (2) the need to avoid placing undue emphasis on police policy when
conducting a proper reasonable standard of care analysis; and (3) the need for
expert evidence when determining the content of the standard of care exercised
in a professional setting.

[18]

The respondent opposes the interventions on several
bases.

[19]

First, the respondent argues that the applicants
proposed arguments reveal a clear partisanship on the facts and the outcome of
the appeal.

[20]

The respondents position is not without merit.
The CPA/TPAs written argument in particular is riddled with references to the
evidence in this case and, at points, appears to weigh in on the merits. I
agree with the respondent that the CPA/TPA position, as it currently stands,
does not properly confine itself to the legal issues it purports to advance and
that this is problematic.

[21]

The reality is that interveners arguments will
typically support one side or the other. As noted in
Jones v. Tsige
(2011),
106 O.R. (3d) 721 (C.A.), at para. 28: It should scarcely surprise, indeed it
would seem almost the very essence of intervention, that the position to be
advanced by a proposed intervenor would tend to support that of one of the
original litigants and oppose that of the other. Accordingly, the simple fact
that interveners support one side or the other is not in and of itself
inappropriate. The difficulty arises where interveners, as friends of the
court, weigh in on the actual merits of the appeal. No party should have to
face the addition of what are tantamount to other parties opposite. That is the
problem with the CPA/TPA position as it is currently cast. Even so, it is a
problem that can be easily overcome.

[22]

Despite their written argument on this
application crossing the line into the actual merits of the appeal, the Associations
are advancing legal issues that are properly the subject of intervention. In my
view, they can make a useful contribution on those issues while staying
entirely away from the merits of the appeal. I am satisfied that with a
properly crafted order, the interveners will confine themselves to the legal
issues to be addressed, stay out of the facts of this case, and not take a
position on the merit of the appellants position or the actual outcome of the
appeal. Should they fail to comply with that order, as with all interventions,
it will be open to the panel hearing the appeal to disregard the intervention
as unhelpful.

[23]

The respondent also opposes the applications on
the basis that the interveners are proposing to both: (1) expand the issues on
appeal; and (2) repeat what the appellant has already said.

[24]

I do not perceive the interveners to be
expanding the issues on appeal. Rather, they are providing fresh perspectives
on the issues already before the court. This is the
sine qua non
of an
intervention. There are no new legal issues being advanced; only new ideas
about how to approach those issues.

[25]

To the extent that the objection centres on
duplicative submissions, I have reviewed the appellants factum. While there is
some duplication, such as on the point involving the relevance of a mistake of
fact to the
mens rea
of criminal negligence, the submissions are
duplicative only at the most basic level. While the appellant raises the
issues, the Associations expand on them and offer fresh perspectives on how to
approach them.

[26]

The respondent also resists the CPA/TPA
intervention on the basis that the arguments pertaining to strategic policy and
operational demands are not useful and, in any event, impermissibly augment the
record. This submission cannot succeed.

[27]

It is a matter of common sense that there may be
policy and resource implications arising from questions involving the standard
of care associated to situations where police officers are dealing with
impaired individuals. This is not something upon which evidence is required. As
with all cases, the court will not be deciding this case in a vacuum. Interveners
with expert insight into the professional environment at issue may provide a helpful
context within which the appeal will be decided.

[28]

Finally, the respondent argues that the interveners
 all police associations  will create an imbalanced perspective on appeal
owing to the lack of input from other public interest groups who can raise
countervailing policy-based considerations. The fact is that no other public
interest groups sought to intervene on this appeal. Had they done so, those
applications would have been heard at the same time as these ones.

[29]

The interveners have a real, substantial, and
identifiable interest in the subject matter of this appeal. Properly developed
and constrained, their submissions will be relevant and useful to the court. In
my view, no prejudice will be caused to the parties by granting the leave to
intervene applications.

[30]

Accordingly, the interveners are granted
intervener status as friends of the court on the following terms:

I.

The interveners may each file a factum of up to ten
(10) pages in length.

II.

The interveners factums shall be filed not
later than January 7, 2022.

III.

To account for any new arguments that may need
responding to, the respondents factum may be up to an additional 10 pages in
length.

IV.

The interveners shall not raise new issues or
adduce any new evidence.

V.

The interveners shall not supplement the record
or make any submissions on the merits of the appeal.

VI.

The time allowed for oral argument, if any,
shall not be decided until the interveners factums have been filed and
considered.

VII.

There shall be no costs awarded for or against
the interveners on this application or on the appeal proper.

[31]

Applications granted.

Fairburn
A.C.J.O.


WARNING

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

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

Criminal Code
provide:

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.T., 2021 ONCA 922

DATE: 20211222

DOCKET: C67335

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

BETWEEN

Her Majesty the Queen

Respondent

and

J.T.

Appellant

Chris Sewrattan, for the appellant

Molly Flanagan, for the respondent

Heard: November 24, 2021

On appeal from the conviction entered on
    June 10, 2019 by Justice Susan Chapman of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

After receiving an alert that on May 28, 2017
    child pornography had been transmitted from an identified Internet Protocol
    address (IP address) using a Skype file sharing program, Toronto Police
    obtained a search warrant for the residential address associated with that IP
    address. The residence was owned by JTs parents. When the search warrant was
    executed on November 16, 2017, JT was discovered holding a computer tablet that
    belonged to him. A commercial movie was playing in full screen. A separate
    application containing child pornography was also opened on the computer
    tablet. Although the child pornography was not immediately visible on the
    screen, it could readily and easily be accessed because it was already opened.

[2]

Det. Cst. Kidd of the Sex Crimes Unit, who was
    present at the time of the search, determined that the IP address at the
    residence had changed since the May 28, 2017 transmission.

[3]

In the days that followed, a forensic
    examination of the computer tablet was conducted with the aid of forensic
    software that categorizes and analyzes images and videos. The images of child
    pornography that had been transmitted on May 28, 2017 were found on
    the device. Additional images of child pornography were located in the
    downloaded document files. The downloaded document files also contained
    documents that could be linked circumstantially to JT, and his user account and
    his email address were linked to the computer.

[4]

JT was charged with several child pornography
    offences on a four count information. He was tried and convicted of possessing
    child pornography and making child pornography available. He appeals those
    convictions on two grounds, arguing: (1) that the trial judge erred by
    admitting expert evidence from Det. Cst. Kidd relating to the downloading of
    files without qualifying Det. Cst. Kidd as an expert (the qualification
    error); and (2) that the trial judge committed a
Sekhon
error,
    contrary to
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, by
    admitting and relying on anecdotal evidence from Det. Cst. Kidd (the
Sekhon
error).

[5]

At the end of the oral hearing, we dismissed
    JTs appeal for reasons to follow. These are our reasons.

[6]

The alleged qualification error relates to the
    admission of testimony by Det. Cst. Kidd, who was not qualified as an
    expert witness, that an IP address will change if the computer is disconnected
    from and then reconnected to the computer network. We are not persuaded that
    this testimony required expertise. This was mundane factual evidence about the
    operation of internet services that did not require specialized knowledge to
    observe or understand. Moreover, the parties agreed that no issue was taken
    with Det. Cst. Kidds ability to speak to the contents of the computer and the
    forensic analysis of the computer, as it pertains to the activities on their
    computer  as it relates to the child pornography, and no objection was taken
    to the evidence. We therefore dismiss this ground of appeal.

[7]

The alleged
Sekhon
error relates to the
    admission and use by the trial judge of testimony from Det. Cst. Kidd that in
    his experience he had never seen child pornography end up on a computer in an
    automatic fashion, without having been placed there by user action. The trial
    judge relied on this evidence in rejecting JTs suggestion that some of the
    documents could have been placed automatically into the downloads folder on the
    tablet.

[8]

We are not persuaded that a
Sekhon
error
    occurred. Det. Cst. Kidd was not offering unnecessary and irrelevant anecdotal
    testimony about the guilt of other similarly situated offenders to support a
    finding that JT was also guilty of possessing or making available child
    pornography. When his impugned testimony is read in context, it is clear that
    Det. Cst. Kidd was simply relying on his experience to explain the technical
    operation of computers, specifically, that documents are not automatically
    downloaded by computers, but by human action.

[9]

Nor did this evidence reverse the burden of
    proof by requiring JT to show that his state of mind or conduct was different
    than the state of mind or conduct of other alleged offenders. As indicated,
    Det. Cst. Kidds evidence related to the technical operation of computers and
    did not purport to speak directly to the elements of the offence, as was the
    case in
Sekhon
.

[10]

Nor do we agree with the submission made on JTs
    behalf that there would be no realistic way to counter this evidence other than
    by searching for and calling competing anecdotal evidence from an investigator
    who had experienced the automatic downloading of documents onto a computer. If
    it is true that Det. Cst. Kidd was incorrect and there are indeed ways that
    documents can automatically be downloaded onto a computer, any admissible
    technical evidence relating to the operation of computers could have been called
    to challenge his testimony.

[11]

The appeal is therefore dismissed.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: SS & C Technologies Canada
    Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913

DATE: 20211222

DOCKET: M52803 (C69439)

Simmons, Pepall and Roberts JJ.A.

BETWEEN

SS & C Technologies Canada
    Corp.

Applicant

(Respondent/Responding Party)

and

The Bank of New York
    Mellon Corporation

and CIBC Mellon Global Securities Services
    Company

Respondents

(Appellants/Moving Parties)

J. Thomas Curry, Christopher Yung, Eli
    Mogil and Erin S. Chesney, for the appellants/moving parties

Ren Bucholz and Catherine Fan, for the respondent/responding
    party

Heard: December 8, 2021

REASONS
    FOR DECISION

[1]

This is a motion to review the September 3,
    2021 order of a single motion judge of this court. The motion judge dismissed
    the moving parties motion for directions concerning their appeal.
    Specifically, the motion judge dismissed the moving parties request that their
    appeal be expedited and that they be relieved from the filing of a copy of the
    application judges order on liability.

[2]

On April 14, 2021, the application judge
    determined liability issues in favour of the responding party (the liability
    order). He directed that there be a trial on the issue of damages, which is now
    scheduled for May 18 to 27 and June 21 to 24, 2022 (the damages trial), and
    he suspended any appeal periods until he released his reasons on damages. Subsequently,
    he dismissed a motion by the moving parties to adjourn the damages trial until
    after the appeal from the liability order and refused to sign the draft order
    until the disposition of the damages trial. The moving parties have appealed
    the liability order and have not sought leave to appeal the other orders.

[3]

The motion judge declined to expedite the
    appeal to be heard before the damages trial. She also concluded that it was not
    necessary to consider the moving parties request that they be relieved from
    the filing of a copy of the application judges liability order.

[4]

The moving parties submit that the motion
    judge erred by effectively ordering a stay of their appeal when there was no
    motion for this relief before her. They argue that as their appeal could
    dispose of most if not all of the issues to be determined on the damages trial,
    the motion judges decision was unreasonable because the justice of the case
    requires that their appeal be heard before the damages trial.

[5]

We do not accept these submissions. We see no
    factual or legal error that would warrant intervention with the motion judges
    decision not to expedite the appeal.

[6]

It is well established that a panel review of
    a motion judges decision is not a
de novo

determination:
Machado
    v. Ontario Hockey Association
, 2019 ONCA 210, at para. 9. The reviewing
    panel asks whether the motion judge erred in principle in disposing of the
    motion: see
Yaiguaje v. Chevron Corporation
, 2017 ONCA 827, 138 O.R.
    (3d) 1, at para. 21. Discretionary decisions of a single judge are, absent legal
    error or misapprehension of evidence, entitled to deference:
Machado
,
    at para. 9;
Yaiguaje
, at para. 20.

[7]

The motion judges refusal to expedite the
    appeal was squarely within her discretion. The motion judge considered and
    applied the overarching principle of whether it was in the interests of justice
    to expedite the appeal. She correctly balanced all the relevant factors.

[8]

Effectively, the moving parties are asking
    this court to reweigh the factors considered by the motion judge and to redo
    her analysis afresh. Absent error, which is not present here, that is not our
    task.

[9]

As is clear from the motion judges order, she
    did not stay the hearing of the appeal from the liability order nor did she
    make any order respecting the filing of the formal liability order. Apart from
    the absence of a signed order, there is no impediment to the moving parties
    perfecting and continuing with their appeal. The parties agree that the
    liability order was a final order. As a result, we would vary the motion
    judges order to relieve the moving parties from the obligation of filing a
    copy of the formal liability order in order to perfect their appeal.

[10]

That said, it would be most desirable if a copy of the
    formal liability order were filed prior to the hearing of the appeal. To that
    end, we encourage the parties to agree on the form of the liability order prior
    to the hearing of the appeal.

[11]

It will be up to the moving parties to perfect their appeal
    and apply for an appeal date through the scheduling office in the ordinary
    course. However, nothing in our order alters the application judges order dismissing
    the moving parties motion to adjourn the damages trial nor the present
    scheduling of the damages trial.

[12]

The motion is otherwise dismissed.

[13]

As the results of this motion are mixed, we fix costs in
    the agreed upon amount of $5,000, inclusive of disbursements and all applicable
    taxes, and order that they be awarded to the successful party on the appeal.

Janet
    Simmons J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.