COURT OF APPEAL FOR ONTARIO

CITATION: Negash (Re), 2018 ONCA 179

DATE: 20180226

DOCKET: C63908

Hoy A.C.J.O., Simmons and Pardu JJ.A.

IN THE MATTER OF: ROBIEL
    NEGASH

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Kathryn Hunt, for the Person in Charge of the Centre for
    Addiction and Mental Health

Jacob Sone, for the Attorney General of Ontario

Heard:  February 12, 2018

On appeal against the disposition of the Ontario Review
    Board, dated May 24, 2017.

REASONS FOR DECISION

[1]

On February 9, 2010, the appellant, Robiel Negash, now aged 30 years,
    was found not criminally responsible on account of mental disorder on a charge
    of robbery, contrary to the
Criminal Code of Canada
. He has been
    subject to the jurisdiction of the Ontario Review Board since that time. He is
    diagnosed as suffering from schizophrenia and substance use disorder.

[2]

In 2017, the appellants treatment team asked the Centre for Addiction
    and Mental Health (the Hospital) to request an early Board hearing under s.
    681(2) of the
Criminal Code
, to obtain a new disposition that would improve
    their ability to manage the appellant in the community.

[3]

In its Reasons for Disposition dated June 15, 2017, the Board found that
    the appellant remains a significant threat to the safety of the public. The
    appellant had not contested the evidence that he remained a significant threat
    to the safety of the public and he does not challenge that finding on appeal.

[4]

The Board also accepted the submissions of the Hospital and the Crown
    that, having regard to the appellants recent deterioration, the appellants
    risk could only be managed on a detention disposition, with privileges up to
    and including the ability to live in the community, and that a conditional
    discharge was no longer appropriate.

[5]

On appeal, the appellant argues that: (1) despite articulating the
    correct legal test in its analysis, the Board failed to apply the correct test
    when it ordered that the appellant be detained, and (2) the Board unreasonably
    concluded that a conditional discharge was not appropriate.

[6]

In particular, the appellant argues that the Boards conclusion that a
    detention order was necessary and appropriate was unreasonable because, in his
    view, a conditional discharge, with a term, on his consent, requiring that he
    comply with treatment, could manage his risk as well as or better than a
    detention order. He notes that the Board did not propose to immediately change
    his existing residence in the community. He submits that if he failed to follow
    the conditions of a conditional discharge he could be returned to the Hospital
    expeditiously for breaching his conditions pursuant to the provisions of the
Criminal
    Code
. He argues that the Hospitals assertion that a detention order is
    required to manage the risk he presents is not reasonable given its failure to
    rely on his breaches of his conditional discharge, in the period leading up to
    his 2017 hearing before the Board, to return him to Hospital.

[7]

We are not persuaded that there is any basis to interfere with the
    Boards disposition.

[8]

In our view, the appellant seeks to characterize his disagreement with
    the result of the Boards application of the correct test as a legal error in
    the application of that test. Nothing in the Boards Reasons for Disposition
    suggest that it failed to apply the correct legal test.

[9]

Nor is the Boards disposition unreasonable.

[10]

The
    Board accepted the evidence of the appellants treating psychiatrist that the
    appellant had become increasingly more impulsive, his insight into his illness was
    unstable, he had not been compliant with the terms of his conditional
    discharge, and there was a strong likelihood that he would become non-adherent
    with medication again. It was entitled to do so. The Board also noted that the
Mental
    Health Act
, R.S.O. 1990, c. M.7
(MHA)
    had not addressed the appellants needs. Even when it was possible to admit him
    to Hospital on a Form 1, it was not always possible to keep him in Hospital for
    the time needed to adequately stabilize him.

[11]

The
    Board concluded that a detention order, which would have the benefit of quick
    readmission should the appellants presentation warrant it, was necessary and
    appropriate, given his current presentation.

[12]

The
Criminal Code
provisions on which the appellant relies would require
    that he be arrested for breach of the terms of his conditional discharge and
    held in custody to be brought before a justice, who  assuming that the terms
    of the conditional discharge required it  could then order that the appellant
    be returned to the Hospital. But a return to the Hospital would not necessarily
    effect a readmission of the appellant to the Hospital. Readmissions could only
    be effected on either a voluntary basis, or if the appellant met the criteria
    for involuntary admission under the MHA. Further, the threshold for the
    continued detention of the appellant at the Hospital under the MHA is high. In
    January 2017, the appellant did not agree to hospitalization and, in February
    2017, the appellant discharged himself against medical advice. As indicated
    above, the Board noted that the MHA had not addressed the appellants needs.

[13]

Having
    regard to the evidence of the appellants recent deterioration, the strong
    likelihood of non-adherence with medication, and the ineffectiveness of the MHA
    in managing the appellants risk, the need to ensure his quick readmission to
    and detention at the Hospital in the event of decompensation provided a
    reasonable basis for finding that a detention order is the least restrictive,
    least onerous disposition and is necessary and appropriate. In so concluding,
    we note the Hospitals acknowledgement that s. 672.56(2) of the
Criminal
    Code
would require it to notify the Board if it detained the appellant in
    Hospital for more than seven days. The Board would then have to hold a hearing
    regarding his detention in hospital as soon as practicable.

[14]

Accordingly,
    the appeal is dismissed.

Alexandra Hoy A.C.J.O.

Janet Simmons J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Peters v. Swayze, 2018 ONCA 189

DATE: 20180226

DOCKET: C63711

Sharpe, Rouleau and Benotto JJ.A.

BETWEEN

Deanna Lynn Peters

Applicant (Appellant)

and

Howard James Swayze

Respondent (Respondent)

Lisa DeLong and Elizabeth Abraham, for the appellant

Gerry Smits, for the respondent

Heard: February 16, 2018

On appeal from the order of Justice R. John Harper of the
    Superior Court of Justice, dated April 7, 2017, with reasons reported at 2017
    ONSC 1779.

REASONS FOR DECISION

[1]

Deanna Peters appeals the dismissal of her claim for a constructive
    trust interest in a home owned by her former common law partner Howard Swayze.

[2]

Peters and Swayze cohabited for 15 years from 2000 to 2015. When they
    began living together, Swayze took title to a home that he had owned with his
    former spouse. There was no equity in the home. Peters and Swayze lived for two
    years in Peters apartment and then, in 2002, they moved to the home that
    Swayze had acquired from his former spouse.

[3]

By May 2005, the parties had acquired significant debt. They
    consolidated their combined debt with a loan with CitiFinancial for $57,290.
    Swayze was the borrower and Peters co-signed the loan. Swayze testified that
    the carrying costs of the loan became too much and he refinanced the debt with
    a mortgage on his home in the amount of $187,568. CitiFinancial was paid
    $57,000 and, after other legal expenses, Swayze was paid $19,000 from the
    proceeds of that mortgage. Peters was not liable for the mortgage.

[4]

There was evidence that, in 2016, the home was worth between $260,000
    and $320,000. The balance owing on the mortgage at that time was approximately
    $157,000, although Swayze then made a $17,000 lump sum payment against the
    principal.

[5]

At no time did the parties have joint bank accounts or joint savings.
    Peters was on Swayzes benefits from work and she and her daughter were on
    Swayzes car insurance as secondary drivers.

[6]

Peters submits that the trial judge erred in dismissing her claim to a
    constructive trust interest in the home. She claims that she is entitled to
    half the equity in the home on the basis of her contributions during
    cohabitation. She points to the fact that she paid half the monthly mortgage
    costs of $1,000, paid the phone, internet and cable, and bought food. She also
    relies on her work cleaning the home and working in the garden, which she
    claims benefitted Swayze and increased the value of the home. These facts, Peters
    submits, establish unjust enrichment entitling her to half the increase in the
    equity of the home as a joint family venture.

[7]

Peters does not suggest that the trial judge erred in his articulation
    of the law. The Supreme Court of Canada set out the law on unjust enrichment
    arising from a common law relationship in
Kerr v. Baranow
,
2011 SCC 10, [2011] 1 S.C.R. 269. The
    court: (i) determines if there has been an unjust enrichment, by determining whether
    the defendant has been enriched and the claimant has suffered a corresponding deprivation;
    if so then (ii) there must be no reason in law or justice for the defendant to
    keep the benefits conferred by the claimant.

[8]

If an unjust enrichment has been established, the concept of joint
    family venture comes into play when considering remedy. The
Kerr v. Baranow
factors to be considered in determining whether a joint family venture exists
    are:

·

Mutual effort  did the parties pool their efforts and work towards
    a common goal?

·

Economic integration  how extensively were the parties finances
    integrated?

·

Actual intent  did the parties intend to have their lives economically
    intertwined?

·

Priority of the family  to what extent did the parties give
    priority to the family in their decision making?

[9]

The determination of whether there has been unjust enrichment and a joint
    family venture are questions of fact, which Peters bears the onus of establishing.

[10]

The
    trial judge found that unjust enrichment had not been established. Peters was
    never on title to the home and never financially liable for the mortgage on the
    home. She did not pay for capital repairs, insurance, or property taxes. The
    $500 that Peters paid per month was essentially rent for herself and her daughter
    who lived in the home. Although she paid for the phone, internet and cable, she
    and her daughter were the primary users of these services. There was no evidence
    of how much the garden increased the value of the home and the trial judge
    found that gardening was really just a hobby for her.

[11]

Having
    not found unjust enrichment, the trial judge was not required to consider
    whether a joint family venture existed. He nonetheless did so and concluded
    that wealth of the parties was not created from the fruits of the domestic and
    financial relationship. The parties earned about the same income and kept their
    finances separate. They did not pool their resources, integrate their financial
    lives or demonstrate an intention to join their finances. They in fact lived
    separately in the home.

[12]

We
    see no error of fact or law made by the trial judge.

[13]

The
    appeal is dismissed with costs payable to Swayze fixed at $5,000 inclusive of
    disbursements and taxes.

Robert J. Sharpe J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Phoenix Interactive Design Inc. v. Alterinvest II
    Fund L.P.,

2018 ONCA 98

DATE: 20180202

DOCKET: C62718

Pepall, Lauwers and Huscroft, JJ.A.

BETWEEN

Phoenix
    Interactive Design Inc. and

1932780 Ontario Inc.

Applicants (Respondents/

Appellants by way of
    cross-appeal)

and

Alterinvest
    II Fund L.P. by its General Partner,

Business Development Bank of Canada

Respondent (Appellant/

Respondent by way of
    cross-appeal)

George Benchetrit and Michael Kril-Mascarin, for the
    appellant/respondent by way of cross-appeal

Raymond F. Leach and Michael A. Polvere, for the
    respondents/appellants by way of cross-appeal

Heard: May 24, 2017

On appeal from the judgment of Justice Johanne N.
    Morissette of the Superior Court of Justice, dated August 31, 2016, with
    reasons reported at 2016 ONSC 5442, 61 B.L.R. (5th) 237.

Pepall J.A.:

A.

INTRODUCTION

[1]

This appeal involves the principles applicable to the calculation of a
    bonus that the respondents promised to pay to the appellant on the sale of the respondents
    company.  The applications judge determined that the bonus payable amounted to
    $242,552.79 and not $888,462.78 as claimed by the appellant.  She dismissed the
    respondents claim that no bonus was payable because it contravened the
    criminal rate of interest found in s. 347 of the
Criminal Code
, R.S.C.
    1985, c. C-46; was unconscionable; and was
ultra vires
the objects of
    the appellant, the Business Development Bank of Canada (BDC).

[2]

The appellant appealed from her decision and the respondents
    cross-appealed.  For the reasons that follow, I would allow the appeal in part and
    dismiss the cross-appeal.

B.

Background Facts

[3]

BDC and other financial institutions established
    the appellant, Alterinvest II Fund L.P. (ALP), to provide subordinate debt
    and equity financing to small and medium sized businesses in Canada.  The
    respondent, Phoenix Interactive Design Inc. (Phoenix), was seeking such
    financing.  It was in the business of developing, distributing, and supporting
    automated teller machine and bank branch automation software.  Kyle MacDonald
    was the founder of Phoenix, and its President and Chief Executive Officer.  She
    was also the principal of the respondent, 1932780 Ontario Inc. (193),
    (together with Phoenix, the Phoenix parties), which was formed in March 2015 as
    the amalgam of a number of predecessor companies.

[4]

In November 2010, ALP offered Phoenix and 193s
    predecessors a loan for $2.25 million with a November 23, 2015 maturity date.
    The purpose of the loan was to refinance an existing loan of $1.25 million and
    to meet Phoenixs working capital needs with additional financing of $1 million.
     ALP, Phoenix and 193s predecessors entered into a loan agreement on February
    16, 2011.  The loan had a fixed rate of interest of 12.8% per annum and monthly
    royalties payable commencing in February 2011.

[5]

In the loan agreement, Phoenix and 193s
    predecessors were described as the Borrowers. The parties agreed that ALP
    would be paid a bonus if any of the Borrowers were sold.  Specifically, the
    bonus provision, contained in s. 4.6(a) of the loan agreement, stated:

If any of the following events occur:
if
    50% or more of any Borrower (consolidated assets or shares) is sold
or
    merged with an unrelated company; if there is a change of control of any
    Borrower; or if any Borrower goes public prior to the Maturity Date or extended
    maturity date of the Credit Facilities,
then a bonus of 1% of the net
    proceeds received by the shareholder, after transaction costs,

determined
    as at the closing date of such transaction
becomes due and payable.
    Notwithstanding any repayment of the Credit Facilities, the bonus referred to
    herein will remain in full force and effect until the Maturity Date

(or
    any amended maturity date agreed by the Bank)
so that in the event of sale,
    IPO, or similar transaction the Borrowers obligation to pay the bonus will
    survive prepayment.

[Emphasis added.]

[6]

Accordingly, the bonus was 1% of the net
    proceeds of sale after transaction costs and was payable notwithstanding any
    prepayment of the loan.  The bonus would remain in force until the maturity
    date, that is, November 23, 2015.

[7]

Paragraph 8.1 of the loan agreement precluded a
    sale or reorganization of any of the Borrowers without ALPs consent.

[8]

In the fall of 2014, Diebold Inc. (Diebold)
    approached Phoenix regarding a possible purchase of the company.  In February
    2015, MacDonald met with ALP to advise that negotiations were underway for the
    sale of Phoenix.  She also advised that the Phoenix parties were not willing to
    pay ALP the bonus in accordance with the loan agreement because she believed
    that the fee would be disproportionate to the amount outstanding on the loan.  ALP
    disagreed and responded by confirming that it would seek payment of the bonus.
    On March 5, 2015, Phoenix paid the full amount of $408,944.66 that was
    outstanding under the loan agreement for principal, fees, and royalties.
    However, that amount did not include any sum on account of the bonus.

[9]

Prior to the closing of the stock purchase transaction,
    193s predecessor companies amalgamated to form a new company, 1926723 Ontario
    Inc. (Targetco).  Phoenix Interactive International Inc. (Holdco), which
    was owned by MacDonald, held all the shares in Targetco.  Targetco issued
    dividends totaling $50 million on March 10 and 11, 2015.  In satisfaction of
    the dividends, Targetco issued promissory notes totaling $50 million to Holdco.

[10]

On March 13, 2015, Diebold bought Phoenix for
    $92.5 million.  The $50 million debt under the promissory notes from the
    pre-closing reorganization, plus an additional $5.125 million of debt (largely representing
    income tax liabilities arising from the reorganization), formed part of the
    purchase price and were repaid by the purchaser on the date of closing.

[11]

The parties were unable to agree on the amount
    of the bonus payable to ALP.  The Phoenix parties argued that the bonus
    calculation should not include the $55.125 million, whereas ALP argued that
    those funds formed part of the proceeds of sale and therefore should be
    included in the bonus calculation.

[12]

BDC commenced an application against the Phoenix
    parties and MacDonald seeking information on the sale price, in order to
    calculate the bonus owed to BDC, and a declaration that the bonus was payable.
    The Phoenix parties then commenced an application for a declaration that: the
    bonus contravened the criminal rate of interest found in s. 347 of the
Criminal
    Code
; was unconscionable; and was
ultra vires
the objects of BDC.  Ultimately, $975,000 was ordered to be paid
    into court as security for the Phoenix parties obligations with respect to the
    bonus, interest, and costs.

C.

Applications Judges Decision

[13]

The applications judge dismissed the Phoenix
    parties application.  She also dismissed BDCs request that the bonus be based
    on the $92.5 million proceeds of sale less the transaction costs.

[14]

Dealing first with the interest rate, the
    applications judge rejected the Phoenix parties argument that once they paid
    off the loan, there was a zero balance and therefore an infinite annual
    interest rate that was usurious.  She held that payment of the bonus was
    required regardless of any prepayment, and, because the bonus was still owing, there
    was not a zero balance in the loan account.  In addition, relying on
Garland
    v. Consumers Gas
, [1998] 3 S.C.R. 112
and
Pegelder Construction Co. v. Dancorp
, [1998] 3 S.C.R. 90, she
    concluded that the prepayment, a voluntary act of the debtor, could not give
    rise to an illegality.  She accepted the evidence of ALPs expert that the applicable
    maximum rate of interest was 26.9%.  As such, the payment of the bonus was
    never contrary to s. 347 of the
Criminal Code
, which prohibits
    interest rates in excess of 60%.

[15]

The applications judge also rejected the Phoenix
    parties argument that the bonus was unconscionable.  She concluded that the
    conditions required to establish unconscionability as outlined in
Titus
    v. William F. Cooke Enterprises Inc.
,

2007 ONCA 573, 284 D.L.R. (4th) 734, at
    para. 38, were not present. These conditions are as follows:

(a)
a grossly unfair and improvident transaction;

(b)   a victims lack of independent legal
    advice or other suitable advice;

(c)   an overwhelming imbalance in bargaining
    power caused by the victims ignorance of business, illiteracy, ignorance of
    the language of the bargain, blindness, deafness, illness, senility, or similar
    disability; and

(d)  the other partys knowingly taking
    advantage of this vulnerability.

[16]

She also found the bonus was not
ultra
    vires

BDCs objects, because BDC had the statutory power
    to make loans and investments, determine and charge interest, and determine
    employee remuneration.

[17]

Lastly, the applications judge addressed the
    calculation of the bonus and whether the $55.125 million characterized as certified
    indebtedness represented proceeds of sale.  She determined that that sum was
    not to be included in the calculation of the bonus.  She observed that the
    bonus was to be activated on transfer to an unrelated company.  It was not
    payable if the Borrowers undertook a reorganization with a related company.  If
    the reorganization had arisen a year prior to the sale, there would have been
    no complaint from BDC.  She reasoned that Phoenix made a transfer to a related
    company to pay dividends to MacDonald for her efforts as a key employee and to
    achieve tax efficiency, not to deny ALP the bonus.  Additionally, in her view,
    the issue of consent did not apply to the pre-sale transaction, which was for
    dividend purposes.

[18]

The applications judge also deducted from the
    bonus calculation $9 million in income taxes payable by Phoenix and $604,063
    for professional fees paid to Deloitte, who had advised Phoenix during the sale
    to Diebold.  She held that the fees related to the structuring of the sale of
    the business and as such should be deducted from the bonus calculation.

[19]

The applications judge therefore ordered the
    Phoenix parties to pay $242,552.79 to BDC, representing a 1% bonus based on net
    proceeds of sale of $24,255,279.

[20]

ALP appeals from the applications judges
    decision and the Phoenix parties cross-appeal.

D.

Issues

[21]

There are four issues to consider:

(i)    should
    the bonus calculation include the sum of $55.125 million?

(ii)   is the bonus contrary to s.
    347 of the
Criminal Code
?

(iii)   is the bonus unconscionable?

(iv)  is the bonus
ultra vires
BDCs legislated mandate?

[22]

For the reasons that follow, I would answer
    issue 1 in the affirmative, and issues 2 to 4 in the negative.

E.

Analysis

(1)

Should the bonus calculation include the sum of $55.125
    million?

[23]

ALP submits that the sum of $55.125 million should
    not have been subtracted from the $92.5 million purchase price for the purposes
    of calculating the bonus.

[24]

I agree.  In my view, the applications judge
    erred in deducting this amount from the sale proceeds.  She erred for two
    reasons.

[25]

First, the purchase price between the Phoenix
    parties and Diebold was $92.5 million.  Phoenix conceded that the $55.125
    million debt was repaid by the purchaser and was received by Phoenix on the closing
    of the sale to the purchaser.   The applications judge failed to consider the
    terms of the purchase agreement.  Omitting this figure from the calculation of
    the bonus ignores the purchase agreement terms.

[26]

Second, the establishment of the debt of $55.125
    million was created by the Phoenix parties as part of the pre-sale
    reorganization.  No such reorganization was permitted under paragraph 8.1 of
    the loan agreement absent ALPs consent.  No such consent was requested or
    received.  Indeed, MacDonald stated that she had forgotten that the provisions
    requiring ALPs consent were in the loan agreement.  A party is precluded from
    taking advantage of and benefitting from a state of affairs caused by its own
    wrongdoing:
Barclays Bank PLC v. Metcalfe & Mansfield
    Alternative Investments VII Corp.
, 2013 ONCA 494, at
    para. 149.

[27]

The fact that the transaction was stated to be for
    dividend purposes with a related company is immaterial.  The reference to an
    unrelated company in the loan agreement went to the nature of the sale
    transaction that would trigger the payment of the bonus.  It was speculative to
    suggest that if the indebtedness had arisen a year earlier, there would have
    been no complaint from ALP.  Moreover, as evident from the underlying
    documentation, the reorganization was clearly part of the purchase
    transaction.  The Phoenix parties acknowledged that the $55.125 million was
    paid to them on the closing of the sale transaction from the sale consideration
    received from the purchaser.  At its heart, that sum formed part of the
    proceeds of disposition on account of the sale to the purchaser.  I agree with
    ALP that it would be a strange result if Phoenixs obligation to pay the bonus
    was reduced or eliminated due to their tax minimization manoeuvres, which
    contravened the terms of the loan agreement, did not actually reduce the amount
    they received, and formed part of the consideration for the sale to the
    purchaser.

[28]

The applications judges treatment of the
    remaining deductions is also inconsistent with her analysis.  The bonus
    provision in the loan agreement provided for a payment equal to 1% of net
    proceeds after transaction costs.  ALP accepted that adjustments for working
    capital and legal fees were appropriate deductions for the purposes of
    calculating the quantum of the bonus.  However, it disputed the deductions for professional
    fees and income taxes arising from the sale to Diebold in that the former
    included fees unrelated to the sale transaction and the latter did not
    constitute transaction costs as described in the loan agreement.  The
    applications judge, having concluded that the $55.125 million was part of the
    pre-sale transaction and therefore did not form part of the proceeds of sale,
    nonetheless permitted the professional fees and income taxes relating to the
    pre-sale transaction to be deducted from the bonus calculation.

[29]

The applications judges conclusion was
    inconsistent with the result.  Having reversed her conclusion, I would uphold
    her decision on the professional fees and income taxes; these all formed part
    of the costs of the transaction with Diebold.

[30]

As such, the net proceeds amounted to $79,380,048,
[1]
1% of which is $793,800.48.

(2)

Is the bonus contrary to s. 347 of the
Criminal
    Code
?

[31]

The Phoenix parties submit that the bonus was
    contrary to s. 347 of the
Criminal Code
.
    Specifically, they take issue with the applications judges conclusion that the
    outstanding loan amount did not have a zero balance when Diebold bought Phoenix
    because the bonus payment was still owing.  The Phoenix parties concede that the
    account cannot be zero if an obligation exists to pay an amount in the future.  However,
    they argue that the bonus payment was not an existing obligation because it was
    based on a future event  the sale of Phoenix  that was uncertain at the time
    the loan was prepaid.

[32]

The Phoenix parties go on to challenge the
    applications judges treatment of their voluntary prepayment of the outstanding
    indebtedness based on the voluntariness principle identified in
Garland

and
Degelder
. This
    principle suggests that a legal credit agreement does not become illegal as a
    result of a voluntary prepayment.  The Phoenix parties argue that the
    voluntariness principle is inapplicable to the present case.  This is because the
    bonus payment was not outstanding, accrued, due, or owing at the time of the
    prepayment and only became payable on the sale of Phoenix.  At that time, no
    debt was outstanding.

[33]

I disagree with these submissions.  At para. 25
    of her reasons, the applications judge correctly decided that the loan
    agreement required payment of the bonus regardless of any prepayment in advance
    of the loans maturity date.  Therefore, the bonus was owing and there was no
    zero balance.  This conclusion is based on the applications judges reliance on
    s. 4.6(a) of the loan agreement, which states that the obligation to pay the
    bonus will survive prepayment.

[34]

Furthermore, the prepayment was made on March 5,
    mere days before the Phoenix sale closed on March 13.  The Phoenix parties
    cannot fairly argue that the obligation to pay the bonus was some uncertain
    future obligation.

[35]

At para. 24 of
Degelder
, the Supreme Court held that a transaction which was legal when
    entered into cannot become illegal under s. 347 through a voluntary act of the
    debtor.  As the applications judge correctly identified at para. 28 of her
    reasons, where the prepayment is within the control of the borrower and not
    required by the lender, that prepayment will be considered voluntary and cannot
    render a legal loan agreement illegal.

[36]

In the case at bar, Phoenix made a voluntary
    prepayment during the term of the loan.  This payment was not required by ALP;
    it was entirely within the control of Phoenix.  The Phoenix parties cannot rely
    on the prepayment to argue that when Phoenix was subsequently sold, the bonus was
    illegal because ALP purported to charge an effective annual interest rate that
    was infinite on a loan balance of zero.  The loan balance was only zero at that
    time
because
of the prepayment.  It would be a bizarre result if the Phoenix
    parties obligation to pay the bonus was rendered illegal by their own decision
    to prepay the loan.  The applications judge did not err in her treatment of
    this issue.

(3)

Is the bonus unconscionable?

[37]

Next, the Phoenix parties submit that the
    applications judge erred by relying on the four-part test for unconscionability
    identified in
Titus
.  They submit that the
    applicable test is that identified by the British Columbia Court of Appeal in
Morrison
    v. Coast Finance Ltd.
(1965), 55 D.L.R. (2d) 710 (B.C.
    C.A.).  The
Morrison
test consists of two elements: (a)
an
    inequality in the position of the parties, arising out of the ignorance, need
    or distress of the weaker party; and (b) the substantial unfairness of the
    bargain that is obtained by the stronger party.
The Phoenix
    parties argue that this error was significant because
Morrison
does not
    require an overwhelming imbalance in power, nor does it link inequality in
    bargaining power to independent legal advice.

[38]

I disagree that the applications judge erred in
    applying the test identified in
Titus

rather
    than the Phoenix parties preferred test of
Morrison
.  I say this for two reasons.

[39]

First,
Titus
is
    the law in Ontario. It was decided in 2007 by this court, and most recently
    re-affirmed as the leading case on the test for unconscionability in Ontario in
Kielb v. National Money Mart Co
., 2017 ONCA
    356, 66 B.L.R. (5th) 39.  This court has not endorsed the 1965
Morrison

test and lower courts in Ontario have primarily employed
    the
Titus

test since that case was decided:
    see
e.g. Girxti v. Kingston (City)
,
2010 ONSC
    5161;
John Deere Financial Inc. v. 1232291 Ontario Inc.
,
2015 ONSC 7467;
Arisoft
    Inc. v. Ali
, 2015 ONSC 7540 (Div. Ct.);
Kilislian
    v. Copper Creek GP Inc.
, 2015
ONSC 7072; and
Grenier v. Algonquin College of Applied
    Arts and Technology
, 2014 ONSC 1984.

[40]

Second, even if I were to accept that the test
    for unconscionability as articulated in
Morrison

applied, which I do not, the Phoenix parties have failed to show
    that it has been met.  An inequality in the bargaining positions of the parties
    to an agreement is an element of both the four-step test from
Titus
and the two-step test from
Morrison
.

[41]

At para. 40, the applications judge considered
    this element and concluded that MacDonald was a sophisticated business woman,
    who had the benefit of independent legal advice and fully understood the
    nature of the terms and effect of the bonus provision.  These findings are
    well-supported by the record.  For example, when negotiating the loan
    agreement, MacDonald made changes to s. 4.6(a), such that the bonus was amended
    from 1% of the value of the borrowing companies  at the closing date to 1%
    of the net proceeds received by the shareholder, after transaction costs.  ALP
    accepted these changes.  They are an example of MacDonalds sophistication and
    bargaining power.

[42]

I would not give effect to this ground of
    appeal.

(4)

Is the bonus
ultra vires
BDCs legislated mandate?

[43]

Finally, the Phoenix parties submit that the
    applications judge erred in finding that the bonus was not
ultra
    vires
.  They argue that she failed to consider whether BDCs
    exercise of its statutory powers was in accordance with its objects.  They submit
    that BDC may only structure loans on terms that are in accordance with the objects
    set out in ss. 4(1) and 4(2) of its enabling legislation, the
Business
    Development Bank of Canada Act
, S.C. 1995, c. 28 (the
BDC
    Act
).  These objects are to support Canadian
    entrepreneurship by  raising funds or capital and to give particular
    consideration to the needs of small and medium-sized businesses.  The Phoenix
    parties further submit that the bonus provision did not advance BDCs objects
    because the bonus constituted a cash grab that was detrimental to Canadian
    entrepreneurship.

[44]

In my view, the applications judge was correct
    in concluding that the bonus provision in the loan agreement was not
ultra
    vires
BDCs mandate.  BDC must exercise its powers in
    accordance with the objects set out in the
BDC Act
.  However, in this case these objects were not violated.

[45]

Subsections 14(1)(a) and 22(b) of the
BDC
    Act

provide

BDC with the power to make loans and investments and determine
    and charge interest and any other form of compensation for services [it]
    provides in the exercise of its powers under this Act.  A plain reading of
    these provisions indicates that Parliament conferred broad discretion upon BDC in
    the exercise of its powers under the
BDC Act
.  It
    was open for BDC to negotiate the rate of return and loan structure that it did.
    As the applications judge observed at para. 45:

By extending the loan to the applicants, BDC
    supported a Canadian entrepreneur by providing her with financial services to
    assist her to raise working capital which allowed her to ultimately sell her
    business for over $92 million.

I would decline to give effect to the
    respondents cross-appeal on this issue.

F.

Disposition

[46]

In conclusion, I would allow the appeal of ALP, with the exception
    of its appeal of the issue of deduction of professional fees and taxes, and would
    dismiss the cross-appeal of the Phoenix parties.  I would vary the applications
    judges order to order that ALP is entitled to a bonus of $793,800.48 rather
    than $242,552.79.

[47]

The parties did not reach an agreement on the costs of the appeal.
    In the event of success, ALP requested its full costs of $23,000, on the basis
    that the loan agreement so provides.  The Phoenix parties submitted that this
    court should exercise its discretion to grant costs on a partial indemnity
    scale in the amount of $16,000.  Given that ALP was not entirely successful, I
    would grant ALP costs of $20,000, inclusive of disbursements and applicable
    tax.

[48]

The parties did reach an agreement on the costs below.  Both
parties
    agreed that the successful party would be entitled to an order of $160,000, inclusive
    of disbursements and applicable tax for their costs below.  I would therefore
    order that the
Phoenix parties
pay ALP $160,000
    inclusive of disbursements and applicable tax.

Released:

GH                                                  S.E.
    Pepall J.A.

FEB -2 2018                                     I agree
    P. Lauwers J.A.

I
    agree Grant Huscroft J.A.

[1]
This amount reflects the gross purchase price paid by Diebold for Phoenix of
    $92.5 million, less the sum of the following amounts found by the trial judge,
    at para. 57 of her reasons, to represent each respective deduction: $2.8
    million for working capital, $625,000 for working capital post-closing,
    $228,722 for transaction costs, $604,063 for professional fees, and $8,862,167
    for income taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aragon, 2018 ONCA 124

DATE: 20180207

DOCKET: C62776

MacFarland, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pierre Maurice Aragon

Appellant

Ariel Herscovitch, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally: February 1, 2018

On appeal from the conviction entered on April 18, 2016
    and the sentence imposed on April 18, 2016 by Justice Lisa Cameron of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

We are satisfied that the appellants attendance was properly compelled
    by the judges order and agree with the Crowns submission that the service of
    a subpoena in addition would have been superfluous and unnecessary. The
    appellant was by that order required to testify and he refused to do so. He was
    afforded ample opportunity on this record to consult counsel and to consider
    his position. He declined the trial judges offer of further time to consult
    with counsel. He made it perfectly clear that he would not testify. He knew the
    difference between perjury and contempt and he chose contempt. The judges
    finding of contempt on this record is unassailable. The case was a simple one
    and her reasons, although brief, are sufficient to explain to the appellant why
    he was convicted. It was not complicated. Contempt of court is always a serious
    matter and strikes at the very heart of the administration of justice.

[2]

The sentence appeal is abandoned and accordingly the appeal is
    dismissed.

J. MacFarland J.A.

M.L. Benotto J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barclay, 2018 ONCA 114

DATE: 20180208

DOCKET: C63097

Hoy A.C.J.O., Doherty and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devyn Barclay

Appellant

Jonathan Dawe, for the appellant

Jeanette Gevikoglu, for the respondent

Heard: December 6, 2017

On appeal from the conviction entered on April 27, 2016
    and the sentence imposed on December 21, 2016 by Justice Edward J. Koke of the
    Superior Court of Justice, sitting without a jury.

Hoy A.C.J.O.:

A.

OVERVIEW

[1]

At issue on this appeal is whether the police were entitled to detain a
    person and his luggage, based only on a suspicion, for one and three-quarters
    hours until the arrival of a drug sniffer dog.

[2]

The RCMP received a call from a confidential informant. The confidential
    informant advised the police that a passenger on a VIA train bound for Washago,
    ON, from Vancouver, BC, ticketed under the appellants name, had two large
    black suitcases from which the confidential informant could smell an odour of
    marijuana. The informant described the passenger as a bearded man around 35
    years old, 510 and 175 pounds, wearing a beige Duck Dynasty cap, and added
    that he was supposed to be getting off at Washago but is now getting off at
    Parry Sound, Ontario.

[3]

Acting on that tip, the Ontario Provincial Police placed the appellant
    (who closely matched the description provided by the confidential informant)
    under investigative detention as he disembarked from the train in Parry Sound
    with two large black suitcases. They suspected, based on the tip, that the
    suitcases contained marijuana, but they smelled nothing. The police did not
    believe they had grounds to arrest the appellant.

[4]

After reading the appellant his rights and allowing him to make
    telephone calls from the police cruiser, police called for a drug-sniffer dog.
    The nearest dog was 90 km away. While they waited for the dog to arrive, the
    police took the appellant and his luggage to the police detachment to use a
    washroom and access a landline telephone.

[5]

The dog arrived approximately one and three-quarters hours after the
    police first detained the appellant. The dog made a positive hit on one of
    the suitcases and the appellants duffle bag. The police arrested the appellant
    and found 33 pounds of marijuana in his luggage.

[6]

The trial judge concluded that the length of time that the appellant was
    detained pending the deployment of the dog was reasonable in the circumstances.
    He wrote, at para. 57:

Canada is a large country comprised of many small towns which
    are spread out over great distances. It is not feasible for each of the
    detachments in these small towns to maintain their own sniffer dogs, and in the
    circumstances a delay of a little less than 2 hours was not unreasonable.

[7]

The trial judge convicted the appellant of possession of marijuana for
    the purpose of trafficking, contrary to s. 5(1) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19, and breach of probation. He sentenced
    the appellant to 12 months incarceration.

[8]

The appellant appeals his conviction, arguing that the trial judge erred
    in concluding that the lengthy investigative detention of himself and his
    luggage did not fall outside the permissible scope of the police power of
    investigative detention. The appellant also seeks leave to appeal sentence.

[9]

For the reasons that follow, I agree with the appellant that the
    detention of him and his luggage violated his s. 9
Charter
rights.
    However, I would not exclude the evidence of the seized marijuana under s.
    24(2) of the
Charter
. I would dismiss the appellants appeal of his
    conviction. I would grant leave to appeal sentence but dismiss the appeal from
    sentence.

B.

the chronology

[10]

At 8:40 a.m.
[1]
on April 1, 2014, the confidential informants tip was relayed to the police in
    Parry Sound.

[11]

At 9:14 a.m., the appellant disembarked from the train. After verifying
    the appellants name, the police detained him, cautioned him, and advised him
    of his right to counsel.

[12]

At 9:27 a.m., the appellant was in the police vehicle, sheltered from
    the light rain and wind, making an initial telephone call on his cell phone.
    The police performed a frisk search of the appellant for police safety before
    putting him in the police vehicle. The police put the appellants luggage in
    the trunk of their vehicle and left the trunk lid open. Two more police
    officers arrived. None of the officers detected an odour of marijuana coming
    from the bags, even when one of the officers placed his face close to the bags.

[13]

At 9:37 a.m., the appellant concluded his initial call.

[14]

At 9:40 a.m., the police requested the closest drug-sniffer dog. They
    expected that it would take 30-45 minutes for the dog to arrive.

[15]

At 9:57 a.m., the police took him to the detachment so that he could use
    the washroom and call his counsel from the detachments landline. (The
    appellant had made several phone calls from the police vehicle and the battery
    on his cell phone was dying. Further, Officer Lewis did not think that the
    washroom at the VIA station was open.)

[16]

At 10:00 a.m., they arrived at the detachment and police placed the
    appellants luggage in a small room.

[17]

At 10:06 a.m., the appellant was on the phone with counsel. The
    appellant was not locked up at the detachment, but he was not free to leave.
    He waited in an interview room.

[18]

At 10:58 a.m., the sniffer dog, Racket, arrived and the police moved
    the appellants luggage to the larger garage area.

[19]

At 11:02 a.m., Racket sniffed the appellants luggage and indicated that
    one suitcase and the appellants duffle bag had an odour of drugs. The
    appellant was arrested and the police searched the contents of the appellants
    luggage.

(1)

The prolonged detention of the appellant and his luggage was unlawful
    and violated the appellants rights under s. 9 of the
Charter

[20]

I agree with the appellant that the investigative detention of him and
    his luggage fell outside the scope of the common law police power of
    investigative detention and infringed s. 9 of the
Charter
. As the
    appellant concedes, the police were entitled to initially detain the appellant
    and his luggage for investigative detention, based on the tip. But the
    approximately one and three quarters hours the police detained them was simply
    too long.

[21]

Section 9 of the
Charter
provides that everyone has the right
    not to be arbitrarily detained. A detention will not be arbitrary if it is
    lawful. One type of lawful detention is a common law investigative detention as
    defined in
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59. This power
    allows the police to detain people for investigation if there are reasonable
    grounds to suspect in all the circumstances that the individual is connected to
    a particular crime and that such detention is necessary. However, the
    investigative detention must be brief in duration and conducted in a
    reasonable manner:
Mann
, at para. 45.

[22]

If the police conduct in detaining the appellant amounted to a lawful
    exercise of their common law powers, then the investigative detention was not
    arbitrary, and did not violate the suspects right under s. 9 of the
Charter
.
    On the other hand, if the police conduct fell outside the scope of these
    powers, it constituted an infringement of the appellants right under s. 9 not
    to be arbitrarily detained.
R. v. Clayton
, 2007 SCC 32 [2007] 2 S.C.R.
    725, at para. 19.

[23]

The Crown submits that there is no constitutionally defined time limit
    to a common law investigative detention. It argues that brevity must be
    delineated by the totality of the circumstances and the officers diligence in
    conducting the investigation. It submits that, in this case, the police were
    spotless in their observance of the appellants rights during his detention,
    acted diligently, and called for the closest drug-sniffer dog. As the trial
    judge adverted to in his reasons, the fact that the dog was some 90 kilometres
    away reflects policing reality in the region and frames the reasonableness of
    the duration of the detention. The Crown argues that the common law empowers
    police to detain an individual for as long as reasonably necessary to further the
    investigation of the particular crime to which the individual is suspected of
    being connected.

[24]

The Crown further argues that the totality of the circumstances in
    this case includes that, viewed objectively, based on the confidential
    informants tip, the police had reasonable and probable grounds to arrest the
    appellant and search his luggage when he disembarked from the train with the
    two suitcases. Effectively, the Crown says that because, objectively, the
    police were in fact entitled to arrest the appellant, brief can be
    interpreted liberally.

[25]

I cannot accept the Crowns submissions.

[26]

I agree that there is no bright line temporal rule in determining
    whether an investigative detention involved an unjustifiable use of police
    powers and, as a result, is arbitrary. However, the requirement that an
    investigative detention be brief nonetheless connotes a temporal limitation
    and not a period that can be extended for as long as necessary to further an
    otherwise appropriate, diligent, and legitimate investigation of the particular
    crime to which the individual is suspected of being connected. It follows that
    the permitted duration of an investigative detention is not defined by the time
    reasonably required to deploy a sniffer dog, even if the police treatment of
    the suspect is otherwise exemplary during the period of detention.

[27]

The permitted duration of an investigative detention is determined by
    considering whether the interference with the suspects liberty interest by his
    continuing detention was more intrusive than was reasonably necessary to
    perform the officers duty, having particular regard to the seriousness of the
    risk to public or individual safety.
R. v. Clayton
, at para. 31;
R.
    v. Mann
,
at p. 324;
R. v. Aucoin
, 2012 SCC 66, [2012] 3
    S.C.R. 408, at para. 36.

[28]

But all investigative detentions must be brief because the state
    interference with the individuals liberty rests on a reasonable suspicion of
    criminal activity, a much lower standard than the reasonable and probable
    grounds needed for an arrest.  The relatively low reasonable suspicion
    standard cannot constitutionally sustain a detention that is not brief.

[29]

The purpose of the brief detention contemplated under the investigative
    detention power is to allow the police to take investigative steps that are
    readily at hand to confirm their suspicion and arrest the suspect or, if the
    suspicion is not confirmed, release the suspect.

[30]

The word brief is descriptive and not quantitative.  It describes a
    range of time and not a precise time limit.  The range, however, has temporal
    limits and cannot expand indefinitely to accommodate any length of time
    required by the police to reasonably and expeditiously carry out a police
    investigation.

[31]

The permitted duration of an investigative detention is case-specific.
    Some of the relevant factors include:

·

the intrusiveness of the detention
.
    For example, handcuffing the suspect behind his or her back and placing the
    suspect in a police cruiser, or diverting the suspect from his intended path by
    taking him to the police detachment to continue the investigation, will
    generally be more intrusive of the suspects liberty interest than asking him
    questions at the point of initial detention. The more intrusive the detention
    is to the suspects liberty interest, the more closely its duration will be
    scrutinized.

·

the nature of the suspected
    criminal offence
. If the suspected offense is not serious, the permitted
    duration will probably be at the shorter end of brief.

·

the complexity of the
    investigation
. If the investigation is not complex, one would expect
    that police questioning of the suspect would not reasonably need to be lengthy,
    and the permitted duration will probably be at the shorter end of brief.
    However, if the investigation of the suspected criminal offence is complex, its
    complexity will only justify a longer permitted duration within the range of
    brief to the extent it is causally linked to the duration of the detention.

·

any immediate public or individual
    safety concerns
. Immediate public or individual safety concerns may
    justify a permitted duration at the longer end of brief.

·

the ability of the police to
    effectively carry out the investigation without continuing the detention of the
    suspect
. If there are other reasonable means of continuing the investigation
    without detaining the suspect, the continued detention of the suspect would
    likely render continued detention unconstitutional.

·

the lack of police diligence
.
    For example, if a sniffer dog were immediately available, and yet the police
    detained the suspect for 20 minutes before employing the dog to confirm or
    refute their suspicion, then, depending on all of the other relevant factors,
    the interference with the suspects liberty interest as a result of the lack of
    police diligence might render the delay  unconstitutional.

·

the lack of immediate availability
    of the required investigative tools
. On the other hand, depending on all
    of the other relevant factors, if a sniffer dog were made available as soon as
    practicable and employed as soon as available, the same 20-minute detention
    might fall within the range of time that can be characterized as a brief
    detention.

[32]

The relative importance of these and other relevant factors, and thus
    the permissible length of an investigative detention, will vary from case to
    case. But it is crucial to remember that such factors merely situate the
    permitted duration of the detention within the range of what is brief, and
    that all investigative detentions must be brief.

[33]

In my view, the lawful investigative detention of the appellant and his
    luggage had ended by no later than 9:40 a.m. By that time, the police had
    completed their investigation at the VIA station. Their investigation had
    yielded nothing: four police officers had been unable to detect any odour of marijuana
    emanating from the appellants luggage and they believed that it would take
    35-40 minutes for a sniffer dog to arrive.

[34]

The further interference with the appellants liberty interest by his
    continued detention while police awaited the arrival of the drug-sniffer dog
    was more intrusive than was reasonably necessary to address the seriousness of
    the risk to public or individual safety and to perform the police duty, given
    the nature of the offence. The police suspected that the appellant had marijuana
    in his luggage. The investigation was not complex and, in this situation, the
    risk to public or individual safety was low. If the police had wanted to
    continue investigating the appellant, they knew where he lived and, in the
    circumstances, had numerous avenues they could have pursued without interfering
    with his liberty.

[35]

Finally, police require reasonable and probable grounds, both
    subjectively and objectively, to arrest a suspect without a warrant.
    Subjectively, the police did not think they had reasonable and probable grounds
    to arrest the appellant, based solely on the confidential informants tip.
    Therefore, they were not entitled to arrest him, and there is no basis to
    interpret brief in the broad manner that the Crown proposes.

[36]

Moreover, I do not agree that, objectively, the police had reasonable
    and probable grounds to arrest the appellant when he disembarked from the train
    with the two suitcases, based on the confidential informants tip. Although the
    confidential informant suspected criminal activity, the confidential informant
    had no inside information. The appellants tip was not that the suitcases
    contained marijuana. The confidential informant gave only one reason for
    suspecting the appellant of criminal activity, namely that the appellants
    suitcases had the odour of marijuana. The sense of smell is highly subjective:
R.
    v. Polashek
(1999), 45 O.R. (3d) 434 (C.A.). There was no indication that
    the confidential informant had special, or even reliable, olfactory powers or
    special training or experience in detecting the odour of marijuana. While
    information from this confidential informant had led to the arrest and
    subsequent conviction of another individual for possession of marijuana, there
    was is no evidence that this information was based on the confidential
    informants ability to smell marijuana. In all of the circumstances, the tip
    was not sufficiently compelling to provide reasonable and probable grounds to
    arrest the appellant. Although the police had reasonable grounds to suspect
    that the appellant had marijuana in his luggage when they detained him,
    objectively, they did not have reasonable and probable grounds to believe that
    he had committed an offence.

(2)

The evidence should not be excluded under s. 24(2) of the
Charter

[37]

Having found no violation of the appellants
Charter
rights,
    the trial judge did not address the admissibility of the seized evidence under
    s. 24(2) of the
Charter
. My assessment of the three lines of inquiry
    mandated by
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 leads me to
    conclude that, in all the circumstances, the admission of the seized marijuana
    would not bring the administration of justice into disrepute and should not be
    excluded under s. 24(2) of the
Charter
.

[38]

The first line of inquiry considers the seriousness of the state conduct
    that led to the breach of the appellants
Charter
rights. I agree with
    the Crown that the state conduct that led to the breach is at the low end of
    the spectrum. The Crowns disregard of the appellants
Charter
rights was
    not wilful or reckless.
[2]
Moreover, as the Crown submits, but for exceeding the permissible duration of
    the detention, the police were spotless in their observance of the appellants
    rights during his detention.

[39]

The second line of inquiry focuses on the seriousness of the impact of
    the
Charter
breach on the
Charter
-protected interests of the
    appellant. The length of his detention had a reasonably serious impact on the
    appellants
Charter
- protected rights. The appellant and his
    belongings were detained for approximately 1 hour and 20 minutes longer than
    was permissible. However, he was not locked up at the detachment and, in and
    of itself, the dog sniff search was minimally invasive:
R. v. Chehil
,
    2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 24 and 28.

[40]

The final inquiry concerns societys interest in an adjudication on the
    merits. The evidence sought to be excluded is both reliable and critical to the
    prosecutions case. Its exclusion may undermine the truth-seeking function of
    the justice system and render the trial unfair from the public perspective:
Grant
,
    at para. 81. Moreover, the offence is moderately serious. The appellant acted
    as a courier to bring 33 pounds of marijuana  drugs with a street value of
    between $174,000 and $350,000  from British Columbia to Ontario.

C.

appeal against sentence

[41]

The appellant argues that the trial judges sentencing reasons disclose
    two related errors of principle.

[42]

First, he submits that the trial judge treated the appellants previous
    conditional discharge on a charge of simple possession of marijuana as if it
    were a prior criminal record that disentitled the appellant from being
    sentenced as a first offender.

[43]

Second, he submits that the trial judge failed to consider the principle
    that a first sentence of imprisonment should be as short as possible and
    tailored to the individual circumstances of the accused, particularly when the
    accused is a youthful first offender:
R. v. Priest
(1996), 30 O.R.
    (3d) 538 (C.A.). The appellant was 25 years of age at the time of this offence.

[44]

I agree with the appellant that the trial judge erred by describing the
    appellant as not a first time offender. At the time the appellant committed
    this offence, he had received a conditional discharge in respect of his prior
    conviction for possession of marijuana, and, as the appellant submits, was
    accordingly deemed pursuant to s. 730(3) of the
Criminal Code
not to
    have been convicted of the offence. While s. 730(4) of the
Criminal Code
provides that the court may revoke the discharge if the offender is convicted
    of an offence while bound by the conditions of his probation order, counsel
    advised that the appellants discharge had not been revoked. Therefore,
    technically, the appellant was a first-time offender at the time he was
    sentenced.

[45]

However, I am not persuaded that this error justifies appellate
    intervention.

[46]

The police seized 33 pounds of marijuana, with a street value of between
    $174,000 and $350,000. The Crown sought a sentence of two to three years
    custody, while the defence requested a suspended sentence and probation or, in
    the alternative, a 90-day intermittent custodial sentence (in addition to the
    65 days, or 98 days calculated at 1.5 to 1, the appellant had spent in
    pre-trial custody) that would allow the appellant to continue to operate the
    renovation contracting business he had started while on bail pending trial.

[47]

The trial judge noted that those convicted of possession for the purpose
    of trafficking of a significant quantity of soft drugs face incarceration
    absent exceptional circumstances. Among the trial judges reasons for
    concluding that this was not a situation which constituted exceptional
    circumstances and a suspended sentence was not appropriate was that, unlike
    almost all the cases referred to by trial counsel for the appellant where a
    suspended sentence was imposed, the appellant [was] not a first time offender
    and was serving a period of probation at the time he committed this offence.
    Moreover, the cases cited by the appellants trial counsel were decided before
    the amendment to the
Criminal Code
to eliminate conditional sentences
    for serious drug offences. The trial judge reasoned that, [t]o issue a
    suspended sentence in the circumstances of this case is to do indirectly what
    the legislature has taken steps to prohibit.

[48]

The trial judge summarized as follows:

the actions of [the appellant] were planned and deliberate. He
    was transporting a large quantity of drugs. The transportation of these drugs
    required careful planning and a degree of sophistication. He was on probation
    at the time for a drug related offence. These facts take him out of the
    exceptional circumstances category and justifies a period of incarceration.

[49]

While the reference to Mr. Barclay as not a first time offender was
    inaccurate, the trial judge did not err in considering that the appellant was
    on probation for a drug-related offence at the time that he committed this
    offence. He referred to this fact three times in his reasons. Given his
    emphasis on this fact, and all of his other reasons for concluding that a
    suspended sentence was not appropriate, I am not persuaded from his reasons
    that his error in referring to the appellant as not a first time offender
    impacted on his conclusion that a period of incarceration was appropriate.

[50]

Nor am I persuaded that the trial judge failed to give effect to the
    principle articulated by Rosenberg J.A. in
R. v. Priest
. In
Priest
,
    Rosenberg J.A. stated, at p. 545, that where a custodial sentence is
    appropriate, a first sentence of imprisonment should be as short as possible
    and tailored to the individual circumstances of the accused
rather than
    solely for the purpose of general deterrence
. (Emphasis added.)

[51]

The trial judge concluded that a 12-month sentence was appropriate. He
    imposed a lesser sentence than the two to three years custody sought by the
    Crown because of the positive steps the appellant had taken towards changing
    the direction of his life. He wrote I do not wish to impose a sentence which
    would prove detrimental to [the appellants] prospects for rehabilitation. The
    trial judge did not impose a sentence focused on general deterrence. Rather, he
    considered the particular circumstances of the accused, including the positive
    steps that he had taken, and imposed a shorter sentence than sought by the
    Crown in order not to detrimentally impact the appellants prospects for
    rehabilitation.

D.

disposition

[52]

For these reasons, I would dismiss the appeal against conviction and I
    would grant leave to appeal sentence, but dismiss the appeal against sentence.

Released: AH  FEB 08
    2018

Alexandra Hoy A.C.J.O.

I agree Doherty J.A.

I agree K. Feldman J.A.

[1]

All times noted are in Eastern Standard Time.

[2]

I note that the case of
R. v. Schmitz,
2014 NWTTC 28,
    provides some judicial support for the police officers view in this case that
    detaining suspects for an hour or two pending the arrival of a police dog is
    constitutionally compliant. While I do not agree with the reasoning in
Schmitz
, the fact that a court elsewhere in Canada has taken a different
    approach reinforces my view that the officers did not act with reckless
    disregard for the appellants constitutional rights in this case.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blackett, 2018 ONCA 119

DATE: 20180207

DOCKET: C51004

MacFarland, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

ONeil Blackett

Appellant

James Lockyer, for the appellant

Roger A. Pinnock, for the respondent

Heard: January 29. 2018

On appeal from the conviction entered on August 30, 2001
    by Justice David Watt of the Superior Court of Justice, sitting without a jury.

By the Court
:

[1]

This
    is another appeal that arises as the result of the reinvestigation of cases
    where Dr. Charles Smith provided opinions and evidence as to the cause of death
    in children.

[2]

On
    February 8, 1999 the appellant was babysitting his 13 month old daughter,
    Tamara at the childs mothers apartment in Scarborough while the mother was
    out doing errands. At 2:00 p.m. the mother returned to find the child lifeless
    in her playpen. Resuscitative efforts were unsuccessful and the child was
    pronounced dead shortly after her arrival at Scarborough Grace Hospital.

[3]

Dr.
    Smith opined that the child had died as a result of a mechanical type of
    asphyxia likely caused as the result of neck compression or possibly blunt
    force applied to the abdominal/chest area accompanied by a choking episode. He
    dismissed the possibility that the child died from aspiration of stomach
    contents or any other accidental or unexplained cause.

[4]

The
    appellant was charged with second degree murder and was ultimately committed to
    stand trial on that charge. Eventually he pleaded guilty to manslaughter and
    was sentenced to three years and three months imprisonment in addition to the
    15 months of pre-trial custody. The appellant has served his sentence.

[5]

On
    September 15, 2009, the late Justice Rosenberg of this court granted the
    appellants application for an extension of time to file an appeal from his
    conviction. Before this court the appellant seeks to have his guilty plea set
    aside, the manslaughter conviction quashed and a new trial on the charge of
    manslaughter.

[6]

This
    court has the jurisdiction to set aside a plea on appeal where the appellant
    establishes that there are valid grounds for doing so and it is in the
    interests of justice. In our view this is one of those cases.

[7]

The
    appellant is now 41 years old. After graduation from high school in the late
    1990s he met Valda Thomas. She lived in his neighbourhood and had two children
    from a prior relationship. The two severed their relationship in mid-1997. Tamara
    was born on January 18, 1998. In September of that year, Ms. Thomas told the
    appellant he was Tamaras father. He began to visit, provide some financial
    support and on occasion babysit Tamara and her sisters.

[8]

Tamara
    had a history of breathing difficulties and intestinal problems. On December
    30, 1998 she was hospitalized overnight for high fever, gastroenteritis and
    dehydration.

[9]

On
    January 20, 1999 Tamara suffered a fractured right femur while in the
    appellants care at Ms. Thomas home. The first paramedic on the scene
    described the appellant as an anxious parent who showed concern and tried to
    comfort the child as her leg was being splinted. He told medical personnel that
    the child had been in her wooden crib and her leg had become entangled in its
    spindles. Police, called by hospital staff to investigate, determined the crib
    to be unsafe; the injury was ruled accidental. The child was placed in a hip
    spica cast which she was still wearing when she died.

[10]

The Childrens Aid
    Society (CAS) was notified and Tamaras case was referred to the Suspected
    Child Abuse and Neglect (SCAN) team at the Hospital for Sick Children. Ms.
    Thomas refused to co-operate with the investigation while the appellant was
    co-operative with the CAS and tried to persuade Ms. Thomas to be also. The
    investigation was ongoing at the time of Tamaras death.

[11]

In the days following
    her release from hospital Tamara became ill; she was vomiting and began losing
    weight in the days prior to her death.

[12]

On February 8, 1999
    the appellant had spent the day with Tamara. On Ms. Thomas return from doing
    errands Tamara was found lifeless and cold to the touch in the playpen. There
    is a dispute on the evidence about whether the appellant tried to prevent Ms.
    Thomas from calling 911 but a call was made. The appellant was described as
    distraught and confused when police arrived and he was performing CPR on
    Tamara. The appellant showed police the playpen where Tamara had been found and
    pointed out to them the stains on the bedding which he thought indicated that
    the child had thrown up while sleeping. He denied causing harm to the child.

[13]

The appellant told
    police the child had suffered from constant diarrhea and vomiting since coming
    home from the hospital. Since being in the cast there was a problem with her
    laying on her back, because she always used to throw up whatever we gave her.
    Before noon the appellant put Tamara in her playpen with a bottle of chocolate
    milk which she drank until falling asleep. Other than the problems described
    above, the appellant told police that he did not note any other signs that the
    child was unwell.

[14]

As noted, at the
    preliminary inquiry Dr. Smith opined that mechanical asphyxia had caused
    Tamaras death. He opined on several hypothetical mechanisms that may have
    caused the death including smothering and strangulation in addition to those
    already noted. He particularly emphasized other injuries found on the child at
    post mortem including fractures of both left and right femurs and several rib
    fractures.

[15]

Concerns about Dr.
    Smiths work began to arise in 2001. The Crown sought an independent review or
    Tamaras case and Dr. Dowling, Chief Medical Examiner in the province of
    Alberta was retained. Although some concern was raised in Dr. Dowlings first
    report about Dr. Smiths conclusions; it was generally supportive.

[16]

Dr. James Ferris, the
    head of Pathology at Vancouver General Hospital and former Chief Forensic
    Pathologist of British Columbia was retained by the appellant to review Dr.
    Smiths findings. In his May 3, 2001 report he disputed some of Dr. Smiths
    conclusions and doubted his interpretation of others.

[17]

In a second report
    dated June 7, 2001 Dr. Dowling stated:

The best I am able to do, as a pathologist, is express my
    concern that I do not see a clear cut underlying cause of death.

[18]

Fifteen months after
    the appellant was committed for trial  and two weeks prior to the commencement
    of his trial on the second degree murder charge, the Crown offered to withdraw
    the second degree murder charge in exchange for the appellants plea of guilty
    to unlawful act manslaughter and a term of imprisonment of four years on the
    manslaughter conviction.

[19]

A number of factors
    came into play in the appellants decision to plead guilty to manslaughter. Of
    particular significance was the impact he thought Dr. Smiths evidence would
    have on the jury. That together with the fact that a jury was unlikely to be
    sympathetic toward him because the case involved the alleged murder of an
    infant and that in his opinion and that of his lawyer he would not be an
    effective witness on his own behalf. It was in these circumstances, that
    despite his lawyers admonition that he not plead guilty to something he did
    not do, he nevertheless instructed his lawyer to agree to certain facts that
    were read into the record when his plea was taken including:

Tamara Thomas died of asphyxia on February 8, 1999. She was 13
    months old. This asphyxiation was precipitated by ONeil Blackett in
    frustration forcefully trying to feed the child with sufficient violence to
    cause vomiting and choking. He then left her either unconscious or entering
    unconsciousness, unable to breathe, and she died.

Dr. Charles Smith of the Hospital for Sick Children performed
    an autopsy on February 9, 1999. He found evidence of several injuries, but no
    anatomical cause of death. In particular as they related to the cause of death,
    he found:

·

A bruise and a small tear to the frenulum, inside the upper lip;

·

A deep hemorrhage to the left sternomastoid muscle, not
    externally visible;

·

Pulmonary hemorrhages consistent with asphyxia.

[20]

And of course Dr.
    Smith ultimately concluded the death of Tamara to be a result of asphyxia.

[21]

Filed by way of fresh
    evidence on this appeal are the affidavits of the appellant and his trial
    counsel, Stephen Bernstein which explain why the appellant pleaded guilty to
    manslaughter despite always insisting that he did nothing to cause Tamaras
    death.

[22]

In April 2007, it was
    learned that Dr. Smith had made errors in some 20 files that were reviewed by
    the Office of the Chief Coroner of Ontario including the case of Tamara Thomas.

[23]

Since that time, as
    the fresh evidence discloses, Dr. Milroy had prepared in December, 2007 a
    detailed medico-legal report in which he was critical of Dr. Smiths autopsy
    report and his conclusion that asphyxia was the cause of death. Dr. Milroys
    detailed findings are set out in his report filed as part of the fresh evidence
    on this appeal. He concluded the cause of death was unascertained.

[24]

Dr. Milroy repeated in
    his evidence before the Goudge inquiry, his view of Dr. Smiths conclusions as
    outlined above and concluded there was insufficient evidence to support a
    definitive cause of death.

[25]

Both Dr. Jack Crane,
    State Pathologist for Northern Ireland and Dr. Michael Pollanen, Chief Forensic
    Pathologist for Ontario supported Dr. Milroys opinions and were critical of
    Dr. Smith.

[26]

At the request of
    counsel, Dr. Milroy in 2013 prepared a further report and in that report
    concluded that Dr. Smiths conclusion that asphyxia was the cause of Tamaras
    death was not supported by the autopsy findings. He could neither exclude a
    natural or an unnatural cause of death.

[27]

Dr. Michael J. Shkrum
    of the London Health Sciences Centre in his report dated April 12, 2013 came to
    a similar conclusion. He concluded
inter alia
:

1.

The use of the
    term asphyxia to designate the cause of death in this case is inappropriate.
    Asphyxia is a mechanism of death in which hypoxia or lack of oxygen arises from
    a specific case.

2.

Although there
    are mechanical causes of asphyxia which interfere with breathing (e.g.
    smothering) or blood flow to/from the brain (e.g. strangulation), there are no
    definitive findings which allow the death of Tamara Thomas to be linked to a
    specific type of mechanical asphyxia. The findings cited or observed by Dr.
    Smith are either non-specific of have plausible alternative explanations.

6.

In my opinion,
    the cause of death is Unascertained in a child who acutely aspirated while
    being treated with hip spica cast for a femur fracture and who also has
    multiple healing fractures.

[28]

The appellant seeks to
    have admitted as fresh evidence:

1.

Backgrounder
    prepared by the Chief Coroner of Ontario (November 1, 2005)

2.

Backgrounder
    prepared by the Chief Coroner of Ontario (April 19, 2007)

3.

Dr. Christopher
    Milroy: Autopsy Report Review Form (Dec. 2006)

4.

Dr. Christopher
    Milroy: Medico-Legal Report prepared in October, 2007.

5.

Extracts from
    Dr. Milroys Testimony at the Goudge Inquiry

6.

Dr. Pollanens
    Memorandum prepared for the Goudge Inquiry

7.

Extracts from
    the Goudge Report

8.

Report of Dr.
    Milroy dated February 8, 2013

9.

Report of Dr.
    Shkrum dated April 12, 2013

10.

Affidavit of Stephen Bernstein
    sworn September 10, 2014

11.

Affidavit of Appellant sworn
    October 11, 2017

12.

College of Physicians and
    Surgeons (Ontario) v. Smith
, 2011 Carswell Ont. 2589

[29]

The Crown fairly does
    not contest the admission of this evidence nor dispute its content.

[30]

In para. 23 of its
    factum the Crown notes:

Dr. Smiths conclusion that asphyxia properly described the
    cause of death in this case is reflected in the agreement statement of fact
    tendered in support of the plea. It is now well understood that Dr. Smiths
    opinion in this regard cannot be relied upon.

The respondent accepts that in the circumstances of this case,
    Dr. Smiths flawed opinion as to the cause of Tamara Thomas death played a
    significant role in the appellants decision to enter a plea of guilty.
    Accordingly, the respondent agrees that it is in the interests of justice in
    the circumstances of this case that the conviction be set aside and a new trial
    ordered on a charge of manslaughter.

[31]

In our view this is
    one of those cases, where despite the passage of time since the plea was
    entered, this court should exercise its power to set aside the guilty plea in
    the interests of justice. The fresh evidence establishes that absent Dr.
    Smiths flawed opinion the appellant would not have pleaded guilty to
    manslaughter.

[32]

Accordingly, the fresh
    evidence is admitted, the appeal is allowed, the guilty plea set aside, the
    conviction for manslaughter is set aside and a new trial is ordered.

[33]

Our thanks to Mr.
    Lockyer and Mr. Pinnock for their assistance.

Released: February 7, 2018 (M.L.B.)

J. MacFarland J.A.

G. Pardu J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bokhari, 2018 ONCA 183

DATE: 20180226

DOCKET: C60490

Feldman, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bashir Bokhari

Appellant

Michael McKee, for the appellant

Deborah Krick, for the respondent

Heard: February 9, 2018

On appeal from the conviction entered on March 20, 2015,
    by Justice Elinore A. Ready of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of unauthorized possession and careless storage
    of a sawed-off shotgun and possession of prohibited devices, including a
    silencer and three high capacity magazines. He appeals only from his
    convictions relating to the shotgun and silencer. The appellants conviction
    appeal rests on two errors alleged to have been made by the trial judge.

[2]

First, the appellant maintains that the trial judge reversed the burden
    of proof. In support of this claim, he points to six passages in the reasons
    for judgment where the trial judge makes reference to the fact that he did not
    testify. The appellant argues that, by referring to his decision not to testify
    on so many occasions, it is clear that the trial judge drew an inference of
    guilt from his silence. We disagree.

[3]

The testimonial silence of an accused cannot give rise to an inference
    of guilt:
R. v. Noble,
[1997] 1 S.C.R. 874, at paras. 79-82. Even so, once
    uncontradicted evidence points to guilt beyond a reasonable doubt, the
    accuseds silence will sometimes mean that he has failed to provide any basis
    for concluding otherwise:
Noble,
at para. 82. See also:
R. v.
    Ibrahim,
2014 ONCA 157, 318 O.A.C. 1, at para. 41.

[4]

Although an error is not generated by simple reference to an accuseds
    decision not to testify, making references to the accuseds silence can run a real
    risk of implicitly or explicitly impinging upon the right to silence and reversing
    the burden of proof. Accordingly, trial judges should exercise caution when
    referencing the accuseds silence at trial, lest they fall into error.

[5]

While it would have been preferable had the trial judge not mentioned
    the appellants decision not to testify so many times, we are satisfied that,
    taken alone and as a whole, the trial judge did not fall into error by
    reversing the burden of proof in this case. At most, the references to the
    accuseds decision not to testify can be taken as referring to the fact that
    the Crowns evidence stood uncontradicted. Read in context, the reasons for
    judgment demonstrate the trial judges understanding that she had to consider
    the whole of the evidence that was before her. The reasons do not reflect any
    reliance on the appellants silence to infer guilt. This ground of appeal must
    fail.

[6]

As for the second ground of appeal, the appellant maintains that the
    verdict is unreasonable. We disagree.

[7]

During the execution of a
Controlled Drugs and Substances Act
, S.C. 1996, c. 19

search
    warrant, the police discovered an empty light-weight gun locker in the basement
    of the appellants home. The appellant, his wife and son had lived in this home
    for at least six years. At some point in the previous six years his daughter
    had also lived in the residence.

[8]

When the gun locker was moved, the police discovered an obvious piece of
    particle board affixed to the wall. The particle board was removed with ease
    and the shotgun and silencer were discovered behind. It is this discovery that
    led to the convictions that are challenged on appeal.

[9]

Both the wife and son testified. They denied any knowledge of the shotgun
    and silencer. The trial judge accepted their evidence on this point. She also
    accepted their evidence that they had little to do with the basement area in
    general. The appellant was the only other person living in the home at the time
    who may have had knowledge of the shotgun and silencer.

[10]

The
    trial judges reasons amply support the circumstantial inferences drawn in
    relation to knowledge and control. While the defence posited the theory that
    the former home owner may have left the shotgun and silencer behind, the trial
    judge rejected this theory on the basis that: (a) the shotgun and silencer were
    valuable items and not easily replaceable; (b) one would not simply forget
    them and leave them behind; (c) the former home owner would know that the items
    would inevitably be discovered by the new home owner; and (d) when discovered,
    the police would be able to easily trace them back to the former home owner. For
    these reasons, the trial judge concluded that it made no sense that the former
    owner would have left the shotgun and silencer behind.

[11]

The
    trial judge went on to consider the evidence as a whole and determined that she
    was satisfied beyond a reasonable doubt that the accused had knowledge and
    control of the shotgun and silencer. Among other things, she considered the
    fact that: (a) he had lived in the home for six years; (b) the wife and son did
    not know about the shotgun and silencer; (c) the gun locker placed in front of
    the particle board was easy to move; (d) the appellant was experienced with
    guns and would have looked in and around the gun locker; (e) the basement was
    well-maintained; (f) neither the wife nor son cleaned the basement; and (g) the
    particle board was obvious and easy to remove. The pictures of the location where
    the items were found provide support for these conclusions.

[12]

The
    circumstantial inferences drawn by the trial judge were available on the
    evidence. This was a verdict that is well supported by the evidence. This
    ground of appeal must also fail.

[13]

The
    appellant also seeks leave to appeal his sentence on the basis that the 14
    months custody, less 21 days credit, should have been imposed as a conditional
    sentence. We disagree.

[14]

These
    were serious offences, directly affecting public safety. The trial judge
    focused on the correct sentencing principles. Although the appellant has some
    serious health issues, the trial judge satisfied herself that the correctional
    authorities could accommodate them. She carefully considered whether to impose
    a conditional sentence and declined to do so. The reasons disclose no error and
    are entitled to deference by this court.

[15]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

K. Feldman J.A.
David Brown J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buchanan, 2018 ONCA 151

DATE: 20180214

DOCKET: C62775

MacPherson, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert William Buchanan

Appellant

Robert W. Buchanan, in person

Howard L. Krongold, duty counsel

Victoria Rivers, for the respondent

Heard: February 7, 2018

On appeal from the conviction entered on July 25, 2016 and
    the sentence imposed on September 7, 2016 by Justice J.R. Henderson of the
    Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that there were no grounds to arrest him and no
    basis to issue a search warrant.  We disagree.

[2]

The trial judge properly considered the
Debot
criteria.  There
    was ample basis for the arrest and issuance of the warrant based on the police
    surveillance evidence.

[3]

The trial judge made no errors in fixing the sentence and there is no
    basis for concluding that there is any error in calculating pre-trial custody.

[4]

The appeals from conviction and sentence are dismissed.


WARNING

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

An order
restricting publication in this proceeding under ss. 486.4(1), (2), (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. Carlson, 2018 ONCA 157

DATE: 20180214

DOCKET: C61862

MacPherson, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shaun Joseph Carlson

Appellant

Shaun Joseph Carlson, acting in person

Deborah Calderwood, for the respondent

Howard Krongold, duty counsel

Heard: February 7, 2018

On appeal from the conviction entered on September 3,
2015 and the sentence imposed on February 25, 2016 by Justice Maureen D.
Forestell of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his convictions for sexual
assault and other offences related to events on May 8, 2013. He was sentenced
to eight years imprisonment.

[2]

On appeal, Mr. Krongold, on behalf of the
appellant, argues that the trial judge erred in her handling of the s. 276
application, and in how she dealt with the underlying issue in her final
reasons for judgment.

[3]

We disagree. The complainants inconsistency on
her relationship with an acquaintance was fully appreciated by the trial judge.
She rightly concluded that further details about the complainants potential
sexual relationship with her friend would not have realistically advanced the
motive theory of the defence. While the trial judge could have used stronger
language in her reasons for judgment when referring to this aspect of the
complainants evidence, and its impact on her credibility, we are satisfied that
the trial judge appreciated the importance of this problem in her evidence.

[4]

Moreover, this aspect of the trial judges
reasons must be read within the context of the reasons as a whole. The trial
judge made a very thorough and careful appraisal of the evidence of the
complainant. She did the same with the appellant, whose evidence was rejected
along the path to finding him guilty beyond a reasonable doubt. All of her
findings are well-grounded in the evidence. We would not interfere.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Constant-Booth, 2018 ONCA 154

DATE: 20180214

DOCKET: C63727

MacPherson, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Constant-Booth

Appellant

Anthony Constant-Booth, acting in person

Deborah Calderwood, for the respondent

Robert B. Carew, duty counsel

Heard: February 8, 2018

On appeal from the conviction entered on January 17, 2017
    and the sentence imposed on April 27, 2017 by Justice Julianne A. Parfett of
    the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction and
    sentence in relation to an aggravated assault that took place outside a
    McDonalds restaurant in Ottawa. The main issue at trial was identification.

[2]

The trial judge provided detailed reasons to
    support her conclusion that the appellant had been identified as the assailant
    beyond a reasonable doubt. There was conflicting evidence on this issue which,
    in our view, the trial judge addressed in an adequate fashion. We are not
    persuaded that the reasons were wanting, nor do we believe that the verdict was
    unreasonable. The conviction appeal is dismissed.

[3]

On sentence, we are not persuaded that the
    sentence imposed was unfit. This was a serious and cowardly attack of a man on
    the ground resulting in serious injuries. He required reconstructive surgery
    and experiences continued difficulties.

[4]

Moreover, this is not a case where the parity
    principle requires an adjustment of the appellants sentence. There were
    significant differences between the appellant and Mr. Bailey. For one, Mr.
    Bailey entered an early plea of guilty, a significant mitigating factor.
    Moreover, where Mr. Bailey has a very minor record, the appellant has a serious
    record for numerous and violent offences. Lastly, the offences committed by the
    two men were appreciably different and the appellants was far more serious. In
    our view, the trial judges careful reasons reflect these factors.

[5]

In conclusion, while we acknowledge that the
    sentence imposed on the appellant was severe, it was not unfit. The appeal from
    sentence is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Correia, 2018 ONCA 104

DATE: 20180202

DOCKET: C62995

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fernando Correia

Appellant

Stuart OConnell, for the appellant

Craig Harper, for the respondent

Heard and released orally: January 30, 2018

On appeal from the conviction entered on September 14,
    2016 and the sentence imposed on December 2, 2016 by Justice Beth A. Allen of
    the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

After a jury trial the appellant was acquitted
    of charges of aggravated assault and mischief to property but convicted of
    dangerous operation of a motor vehicle. The charges arose out of an argument
    and physical interaction between the appellant, who was driving his car, and a
    passenger who got out of the car at some point.

[2]

The appellant and the passenger offered markedly
    different versions of what had transpired. It is clear that the car being
    driven by the appellant struck and injured the passenger after he was out of
    the car and then collided with and damaged a retaining wall.

[3]

In his factum, the appellant argues that the
    jurys not guilty verdicts on aggravated assault and mischief to property are
    inconsistent with its finding of guilt for dangerous operation. We do not
    agree. The jury was properly instructed that the offences of aggravated assault
    and mischief to property require proof of a subjective intent and on the other
    hand, the offence of dangerous operation does not

require proof of
    subjective intention to engage in the prohibited conduct.

[4]

We are satisfied that the trial judges charge
    to the jury in regard to dangerous operation was satisfactory. After
    instructing the jury in accordance with the model jury charge, and reviewing in
    detail the appellants explanation for why he felt he had to escape the
    situation by driving in the manner he did, she told the jury they should
    consider all the circumstances, including any evidence about the appellants
    state of mind, in deciding whether the appellant drove in a manner that was a
    marked departure from the manner in which a reasonable prudent driver would
    drive in the same circumstances. On our reading of the charge as a whole, she
    adequately related the appellants evidence to the fault element in dangerous operation.

[5]

We are not persuaded that the trial judge erred
    in refusing to put the excuse of necessity to the jury. She was not asked to do
    so at trial. Nor are we persuaded that there was any air of reality to support
    a claim advanced here that she should have done so.

[6]

The appeal against conviction is dismissed.

[7]

The appellant also appeals his sentence of 12
    months imprisonment. As we read the sentencing judges reasons, she did not
    make findings incompatible with the jurys verdicts of not guilty on the
    charges of aggravated assault and mischief to property. Specifically, she did
    not find as a fact that the appellant intentionally injured the passenger or
    intentionally damaged the retaining wall. The trial judge took into account the
    proper sentencing considerations, including the aggravating and the numerous
    mitigating factors. We have not been persuaded she made any error in principle
    that warrants this courts intervention.

[8]

Leave to appeal sentence is granted, but the
    appeal as to sentence is dismissed.

R.G. Juriansz J.A.

David Watt J.A.

B.W. Miller J.A.