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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. R.C., 2017 ONCA 806

DATE: 20171020

DOCKET: M48306 (C64312)

Feldman J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

R.C.

Appellant (Applicant)

Mark C. Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard: October 17, 2017

REASONS FOR DECISION

A.

Introduction

[1]

The appellants application for bail pending appeal is opposed by the
    Crown on the public interest ground.

[2]

The appellant was convicted in January 2017 of four counts: sexual
    assault; sexual interference; incest; and assault, all with respect to his
    biological daughter when she was 13-14 years old, in 2008-2009. The sexual
    assaults included full vaginal intercourse. He was sentenced on October 13,
    2017 to eight years in penitentiary. His appeal is from conviction.

[3]

The appellant was arrested in November 2012 and released on a promise to
    appear. He remained on that release without incident for over 4 years until his
    trial. Following his conviction in January of this year, he was initially
    detained pending obtaining sureties. After a hearing before the trial judge
    where release was opposed by the Crown, the appellant was granted bail pending
    sentencing. He remained on bail until his sentencing last week.

[4]

For the reasons that follow, the application for bail pending appeal is
    granted on the terms contained in the draft order filed.

B.

The Law

[5]

Section 679(3) of the
Criminal Code
sets out the circumstances
    where an appellant may be released and provides that:

(3) In the case of an appeal referred to in paragraph (1)(a) or
    (c), the judge of the court of appeal may order that the appellant be released
    pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for
    leave to appeal is not frivolous;

(b) he will surrender himself into
    custody in accordance with the terms of the order; and

(c) his detention is not necessary
    in the public interest.

[6]

The applicant seeking bail pending appeal bears the burden of
    establishing that each criterion is met on a balance of probabilities: see
R.
    v. Oland
, 2017 SCC 17, 409 D.L.R. (4th) 457, at para. 19.

[7]

The public interest under s. 679(3)(c) includes public safety and public
    confidence in the administration of justice: see
Oland
, at paras. 23,
    26; and
R. v. Farinacci
(1993), 67 O.A.C. 197 (C.A.). Public
    confidence involves weighing the two competing interests of enforceability and
    reviewability: see
Oland
, at paras. 24, 26; and
Farinacc
i
,
    at paras. 41, 44. The balancing of enforceability and reviewability is a
    qualitative and contextual exercise, with no precise formula: see
Oland
,
    at para. 49.

C.

The Positions of the Parties

[8]

In this case, the Crown does not oppose bail under ss. 679(3)(a) or (b).
    The Crowns position is that this is one of the cases referred to by the
    Supreme Court in
Oland
, where the public interest in enforceability outweighs
    the reviewability interest because of the seriousness of the offence and the
    length of the sentence imposed: see
Oland
, at para. 50. The Crown
    states that in those circumstances the grounds of appeal should be stronger
    than merely beyond frivolous and that in this case the grounds are weak.

[9]

The appellants position is that it is not in the public interest to
    deny bail in this case. He submits that although the offences are very serious
    and a long sentence was imposed, the grounds of appeal are strong enough to
    pass the
Oland
threshold. As well, the particular offender has been on
    release for almost five years without incident, the first four years and three
    months of which was on a simple promise to appear without sureties, and has
    shown himself to present no issue of public safety.

D.

Analysis

[10]

The
    grounds of appeal in this case relate to the sufficiency of the reasons for
    conviction  in particular the alleged failure of the trial judge to grapple
    with inconsistencies in the complainants evidence, compared with a focus on
    minor problems with the appellants evidence.

[11]

In
    my view, the appellant has met his onus in this case. The reasons of the trial
    judge are apparently incomplete. They were given orally, and the trial judge
    indicated that he would be adding transcript references to illustrate his
    areas of concern regarding the appellants evidence and his conclusion that it
    did not raise a reasonable doubt. However, he has not yet added those
    references. The appellant testified and denied all of the sexual allegations.
    The reasons for rejecting his evidence form a critical part of the basis for
    conviction.

[12]

Therefore,
    as the reasons stand, the grounds of appeal raised by the appellant are in my
    view sufficiently strong to meet both the: (i) not frivolous test of s.
    679(3)(a), which, per
Oland
, at para. 20, is a very low bar; and
    (ii) the more pointed assessment required by
Oland
under the
    reviewability part of the confidence component of public interest: see paras.
    44-45.

[13]

As
    noted, the Crown does not oppose bail under s. 679(3)(b). I also give weight to
    the appellants lengthy history of bail compliance as: (i) part of the
    assessment of the public interest with its two components, confidence and
    safety; and (ii) an additional consideration under the balancing of
    enforceability and reviewability: see
Oland
, at paras. 23, 26, 39, 51.

[14]

In
    my view, in the circumstances of this case, the balancing of enforceability and
    reviewability favours granting bail pending appeal.

E.

Conclusion

[15]

The
    application for bail pending appeal is granted on the terms contained in the
    draft order filed. In oral argument, counsel for the appellant agreed that if
    there is any untoward delay in perfecting the appeal, this order may be
    revisited when an extension is sought.

K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scharf, 2017 ONCA 794

DATE: 20171017

DOCKET: C59582

Pepall, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Scharf

Appellant

Jeffrey Langevin, for the appellant

Morris Pistyner, Kelvin Ramchand and Jessica Legrand,
    for the respondent

Heard: October 10, 2017

On appeal from the conviction entered on July 15, 2014
    and the sentence imposed on October 7, 2014 by Justice Kevin Phillips of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for the purpose of trafficking
    cocaine and several offences relating to possession of prohibited weapons. He
    was sentenced to 5 years for the trafficking and 1 ½ years consecutive for the
    weapons offences less credit for pre-trial custody. He appeals only his
    conviction for trafficking and the five year sentence in connection with it.

[2]

The appellant, and his friend Stephen Burns, had been the target of a
    police investigation.  On the day in question, when the appellant was at Burns
    home, several police officers approached the home in an unmarked van. The
    appellant testified that just months earlier, his friend Wayne Drinkwalter had
    been shot by assailants pretending to be police officers. Consequently, he thought
    the intruders were members of a hit squad out to kill him and Burns. He says
    that he ran to the bathroom for cover. The evidence of the arresting officers
    suggested that Burns had preceded the appellant to the bathroom. After securing
    both Burns and the appellant, the officers found a plastic bag containing 236
    grams of cocaine in the toilet.

[3]

The Crown submitted that the appellant was in possession of the cocaine
    and attempted to flush it down the toilet. The defence argued that Burns
    attempted to flush it. Burns said the cocaine was his.

[4]

The trial judge found that the appellant had possession of the cocaine
    and had attempted to flush it down the toilet.

[5]

The appellant submits: (i) the trial judge misapprehended the evidence
    by finding that he was in the bathroom and in possession of the cocaine; (ii)
    the verdict is unreasonable because the trial judge did not explain how he
    resolved contradictions in the evidence concerning whether he was in the
    bathroom or not; and (iii) he had ineffective assistance of counsel primarily
    because Drinkwalter was not called as a witness.

[6]

We do not agree with these submissions.

[7]

The trial judge did not misapprehend the
    evidence that the appellant was in the bathroom. On the appellants own
    evidence, he ran there to avoid the intruders. He said multiples times that he
    was in the bathroom. The trial judge accepted the combined evidence of the
    police officers to find that the appellant and Burns were in the bathroom
    together and that the appellant, who was near the toilet, engaged himself in
    an effort to flush the cocaine.
The findings of fact and credibility
    underlying this conclusion are owed deference. They are not contradicted by the
    evidence and do not render the verdict unreasonable.

[8]

The appellant relies on fresh evidence to
    support his assertion of ineffective assistance of counsel. He submits that his
    lawyer should have called two witnesses, including Drinkwalter, who would have
    corroborated his concern that the intruders were not police. The evidence of
    these witnesses could not have affected the result of the trial. The evidence,
    therefore, does not meet the
Palmer
test. Nor
    does it establish the prejudice required to substantiate an allegation of
    ineffective assistance: see
R.

v. White
(1997) 32 O.R. (3d) 722. In short, the result of the trial would
    have been the same had the evidence been admitted at trial. We come to this
    conclusion for three reasons. First, the appellants testimony about
    Drinkwalters experience was never challenged. Second, the trial judge accepted
    the evidence that Burns had loudly announced that the house was about to be
    raided by the cops. Finally, if the appellant was afraid of the intruders, he
    would not have left the bathroom door open.

[9]

Although not the subject of submissions by the appellant, we do not
    agree with the trial judges determination that the act of flushing the cocaine
    down the toilet amounted to trafficking:
R. v. MacDonald
, [1963]
    B.C.J. No. 98;
R. v. Pappin
(1970) 12 C.R.N.S. 287. However, the trial
    judge found as fact that the appellant was in possession of the cocaine in a
    quantity greater than for personal use. The trafficking offence was therefore made
    out.

[10]

The
    appellant submits that the sentence of five years for trafficking is outside
    the range and this court should substitute three years. We do not agree. The
trial judge considered the principles of sentencing, identified the
    appropriate mitigating and aggravating factors, and imposed a sentence that was
    fit.  See also
R. v. Bryan,
2011 ONCA 273, [2011]
    O.J. No. 1581. The appellant has not demonstrated an error in law or in principle
    that impacted the sentence that would warrant appellate intervention as
    required by
R. v. Lacasse,
2015 SCC 64,

[2015] 3 SCR 1089 and
R. v. Wu,
2017 ONCA 620,

[2017]
    O.J. No. 3868 .

[11]

For these reasons, the appeal is dismissed.
    Leave to appeal sentence is allowed, but the sentence appeal is dismissed.

S.E. Pepall J.A.

M.L. Benotto J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Silva, 2017 ONCA 788

DATE: 20171013

DOCKET: C62172

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eduardo Silva

Appellant

Eduardo Silva, acting in person

Ian R. Smith, appearing as duty counsel

Lorna Bolton, for the respondent

Heard: October 5, 2017

On appeal from the convictions entered by Justice Alfred
    J. OMarra of the Superior Court of Justice on May 12, 2016.

REASONS FOR DECISION

[1]

On August 14, 2013, five individuals robbed an
    auto body shop. About two months later, the police executed a search warrant at
    a residential address connected to the appellant. A loaded semi-automatic
    handgun was seized.

[2]

The appellant appeals from his convictions for
    robbery with a firearm and possession of a restricted firearm. He raises two
    grounds of appeal: (1) the trial judge erred in finding the appellants
    statement voluntary; and (2) the trial judge erred in refusing to exclude
    evidence resulting from a s. 8
Charter
breach under s. 24(2) of the
Charter
.

[3]

The appellant argues that his statement ought to
    have been excluded as involuntary, maintaining that he and his girlfriend were
    threatened by the police. He alleged that police threatened to charge his
    girlfriend with possession of the gun and promised to release her if he made a
    statement. The appellant submits that this threat made his statement
    involuntary.

[4]

The voluntariness ruling turned on credibility
    findings. The trial judge specifically rejected the appellant and his
    girlfriends suggestion that police had threatened him. He concluded that the
    appellant made his statement of his own free will, and was in control of what
    he would and would not tell police.  These
    credibility findings are owed deference. There is no basis on this record upon
    which to interfere with the ruling.

[5]

Duty counsel addressed the second ground of
    appeal pertaining to the alleged error in the trial judges s. 24(2) analysis.

[6]

The trial judge found a s. 8
Charte
r breach
    arising from his conclusion that the Information to Obtain (ITO) the search
    warrant executed at a residential address where the appellant, his girlfriend,
    and her family lived, contained insufficient grounds connecting him to that
    address. The trial judge came to this conclusion notwithstanding the fact that:

(a)

there was evidence that the appellants girlfriend was Amada Camacho;

(b)

approximately 60 police occurrences connected Ms. Camacho and her family
    to the residential address searched;

(c)

the appellant had been seen attending at the address on one occasion
    shortly before the warrant was issued; and

(d)

a phone that was loosely associated with the robbery was registered to
    Mike Silva at the residential address searched.

[7]

Duty counsel argued that the trial judge erred
    in not excluding the evidence under s. 24(2) of the
Charter
. The admissibility of evidence is to be
    examined under the three prongs set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    paras. 71-86:

1.

the
    seriousness of the
Charter
-infringing state conduct;

2.

the
    impact of the breach on the individuals
Charter
-protected interests;
    and

3.

the
    societal interest in the adjudication of the case on its merits.

[8]

The appellant maintains that the trial judge
    erred in his admissibility determination by allowing the third
Grant
consideration
    to overwhelm the inquiry. The trial judge concluded that the police conduct was
    negligent and the impact of the breach on the appellants
Charter
rights was serious.
    Having regard to these findings, it is argued that the trial judge allowed the
    third prong for consideration under
Grant
 the societal interest in the adjudication of the case on its merits  to trump
    the other considerations.

[9]

Despite Mr. Smiths able submissions, we
    disagree.

[10]

Section 24(2) findings are owed considerable
    deference on appeal:
Grant
,
    at para. 86. Absent an error in principle, a palpable and overriding factual
    error, or an unreasonable determination, deference is owed:
R. v. McGuffie
, 2016
    ONCA 365, 131 O.R. (3d) 643, at para. 64. We find no such error.  We do not read the trial judges reasons as
    allowing the third prong of
Grant
to overwhelm the inquiry. He carefully balanced each of the relevant considerations
    under
Grant
.

[11]

We first note that if the ITO fell short in
    setting out sufficient reasonable grounds to believe that the residence to be
    searched was connected to the appellant, it was not by much. Having regard to
    the location searched, the trial judge specifically noted the serious impact of
    the breach on the appellants
Charter
protected interests. Moreover, while the trial judge characterized
    the police conduct as in the realm of negligence, noting that they should
    have done more to confirm the appellants
de facto
residence, he concluded that the
    failure to do so did not arise from an intention to mislead or deceive.

[12]

As for the third prong of
Grant
, the trial
    judge adverted to the reliability of the evidence tending to weigh in favour of
    admission. This is a correct statement of law: see
Grant
, at para. 115. Balancing all relevant
    factors, and having regard to all of the circumstances, the trial judge
    concluded that exclusion of the evidence was not required. It was open to him
    to come to this conclusion. We see no error in his approach.

[13]

The conviction appeal is dismissed.

K. van
    Rensburg J.A.

G. Pardu
    J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tang, 2017 ONCA 775

DATE: 20171010

DOCKET: M48288 (C64301)

Brown J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Dat Quoc Tang

Appellant

Andrew Burgess, for the appellant

Amy Alyea, for the respondent

Heard: September 21, 2017

ENDORSEMENT

I.

OVERVIEW

[1]

The appellant, Dat Quoc Tang, was charged with ten drug trafficking
    offences as part of two investigations into Toronto-area gang activity known as
    Project Battery and Project Rx. Charges were laid against 34 other accused
    as part of the investigations.

[2]

Code J. heard a global motion brought on behalf of all accused under s.
    8 of the
Canadian Charter of Rights and Freedoms
challenging the
    legality of the issuance of various wiretap authorizations and general warrants
    by McMahon J. during the investigation. Code J. dismissed the motion.

[3]

As a result, the appellant entered a plea of not guilty to one count of
    possession of heroin for the purpose of trafficking and one count of
    trafficking a controlled substance for the benefit of a criminal organization.
    He did so without contesting allegations contained in two agreed statements of
    fact. The appellant was found guilty of the two offences by McMahon J. on April
    6, 2017; the Crown withdrew the remaining charges.

[4]

The appellant was sentenced on the morning of September 21, 2017 to
    seven years imprisonment, less credit for four months pre-sentence custody.

II.

POSITIONS OF THE PARTIES

[5]

The appellant seeks judicial interim release pending the hearing of his
    appeal on terms similar to those attached to his interim release prior to
    sentencing.

[6]

The Crown opposes the application for two reasons. First, the Crown
    submits the appellant has failed to establish his grounds of appeal are not
    frivolous. Second, the Crown takes the position the detention of the appellant
    is necessary in the public interest because he was convicted of very serious
    offences and his grounds of appeal are weak.

III.

HAS
    THE APPELLANT ESTABLISHED THAT HIS APPEAL IS NOT FRIVOLOUS?

A.

The governing standard

[7]

The bar for establishing that an appeal is not frivolous is very low:
R. v. Oland
, 2017 SCC 17, at para. 20. As
    described by Watt J.A. in
R. v. Manasseri
,
    2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: An appeal is not frivolous if
    the proposed grounds of appeal raise arguable issues. An applicant need not
    establish a likelihood, much less a certainty of success on appeal, but must be
    able to point to a viable ground of appeal that would warrant appellate
    intervention if established.

B.

The grounds of appeal

[8]

The appellants grounds of appeal concern findings Code J. made in the
    two sets of reasons he released on the global s. 8 motion:
R. v. Brewster
,
    2016 ONSC 4133 (the Surveillance Decision) and 2016 ONSC 8038 (the Camera
    Decision.)

The failure to disclose information about the operation of
    mobile device identifiers

[9]

As his first ground of appeal, the appellant contends Code J. erred in
    characterizing as non-material the omission of the police to include in the ITO
    affidavits certain information about the workings of a surveillance technology
    known as a mobile device identifier (MDI), also known as a Stingray. The
    MDI mimics a cell phone tower and has two functions. First, it can identify a
    specific phone by revealing its International Mobile Subscriber Identity (IMSI)
    and International Mobile Equipment Identity (IMEI) numbers. The former attaches
    to the SIM card placed in a cell phone; the latter to the individual phone. Second,
    a MDI can track phones with known IMSI and IMEI numbers. The MDI does not
    intercept private communications; it identifies serial numbers associated with all
    cell phones in the vicinity where it is deployed.  As a result of this impact
    on all nearby phones, a standard general warrant minimization clause requires
    an operator to activate a MDI for not more than three minutes at a time, and
    allow a two minute rest period between activations.

[10]

The
    appellant argues the ITO affiant failed to disclose three material pieces of
    information to the issuing justice: (i) the MDI has a tracking function, as
    well as a location identification function; (ii) the MDI has two modes of
    operation, one of which can interrupt calls for up to two minutes; and (iii)
    the decision of the field operators not to follow the minimization clause but,
    instead, to replace the two minute rest period with the switching of frequencies
    every three minutes.

[11]

Code
    J. acknowledged the three deficiencies in the affidavits were omissions, but
    concluded they were not material ones in the sense that had they been fully
    explained to the issuing justice, they would have made no difference to the
    issuance of the General Warrant or to its minimization term.

[12]

The
    appellant argues that Code J. erred in so concluding, given how intrusive the
    MDI technology can be. He submits the omissions in the ITO affidavits were
    material and constituted a failure of the affiants duty to make full, fair and
    frank disclosure.

[13]

Code
    J. described this aspect of the global s. 8 motion has having a relatively
    narrow compass because the general warrant authorizing the use of the MDI
    device only had an impact on seven intercepted calls made by one accused. The
    appellant was not that accused.

Warrantless searches: surveillance in underground parking lots
    and covert hallway cameras

[14]

The
    appellants second ground of appeal involves the failure of the police to
    disclose to the issuing justice information about two investigative techniques
    they had used before seeking judicial authorizations: (i) the physical
    surveillance of common areas of the condominiums, primarily underground parking
    lots; and (ii) the installation of covert hallway cameras with the consent of
    the buildings property managers or boards of directors.

[15]

First,
    a small portion of the surveillance conducted by the police prior to the
    authorizations involved the police entering common areas of condominium
    buildings, primarily underground parking lots, to conduct surveillance. Initially,
    the police entered without permission. As the investigations progressed, they
    secured consent from the condominiums property managers to enter common areas.

[16]

Code
    J. described the information obtained from such searches as factually
    insignificant and of a relatively minor amount. He concluded that when
    conducting the surveillance the police were not acting unlawfully and they did
    not violate s. 8 by conducting limited physical surveillance in the common
    areas of multi-unit buildings. He held there was no reasonable expectation of
    privacy in non-obtrusive observations made in the underground parking lots,
    elevators or hallways of large, multi-unit condominium buildings. Code J.
    concluded, at para. 114 of the Surveillance Decision:

I am satisfied that the physical surveillance carried out in
    this case in the common areas of multi-unit buildings did not amount to a
    search. Accordingly, s. 8 of the
Charter
was not engaged. I am also
    satisfied that the detailed circumstances surrounding this surveillance were
    not material to issuance of the wiretap authorization and the related General
    Warrants and did not need to be set out in the Affidavits.

[17]

The
    appellant submits Code J. erred in so finding. Although the appellant
    acknowledges that the determination of whether a reasonable expectation of
    privacy exists turns on the specific facts of a case, he argues that the
    frequency and duration of the police entries into the common areas distinguish
    the present case from those in which no reasonable expectation of privacy in
    common areas was found. The appellant also contends the case law has not been
    unanimous on the question of s. 8 protection in common areas of multi-unit
    buildings.

[18]

Second,
    prior to seeking the authorizations from McMahon J. the police had installed
    surveillance cameras in the common hallways of three buildings pursuant to
    consents obtained from the property managers or condominium board. The cameras
    generated evidence of the comings and goings of the suspects of the
    investigation, either in the hallway leading from an elevator to a unit or in
    the hallway coming from a unit to an elevator. The appellant contends the
    police did not make full and frank disclosure of the prior installations of
    hallway cameras to the issuing justice on the initial application for a general
    warrant to install more cameras. As a result, the warrant authorizing the
    installation of cameras should be set aside and the resulting video evidence
    excluded pursuant to ss. 8 and 24(2) of the
Charter
.

[19]

Code
    J. observed there was little guidance in the case law on whether the
    warrantless installation of cameras in the hallways of condominiums with the
    consent of the buildings property manager or board of directors infringed s. 8
    of the
Charter
. He held s. 8 was engaged on the basis that the
    surreptitious video recording in common areas of multi-unit buildings
    constituted a search or seizure. Code J. was satisfied the police obtained a
    sufficient consent to install the cameras and a warrant to install them was not
    required because of the reduced privacy interest engaged. He concluded the
    installation of the cameras did not violate s. 8 of the
Charter
.

[20]

Code
    J. went on to find the police failed to comply with their duty to make full and
    frank disclosure by not mentioning the prior installation of hallway cameras in
    the affidavits in support of the general warrants. However, he concluded the
    non-disclosure was not material in the circumstances.

[21]

The
    appellant argues Code J. erred in so finding. In addition, the appellant
    contends Code J. erred in concluding the property management staff had the
    authority to cooperate with an ongoing investigation and consent to the police
    entry into common areas. The appellant submits the consents of the buildings
    boards of directors were required.

The naming of the appellant as a Known Person

[22]

The
    final ground of appeal advanced by the appellant is that Code J. erred in
    finding there was sufficient evidence to name him as a Known Person in the
    renewal and expansion authorizations granted by the issuing justice.

[23]

Code
    J. relied on the combination of three pieces of evidence to support his
    finding: (i) information from a confidential informant that the appellant was a
    heroin dealer; (ii) the appellants longstanding history of association with
    the Asian Assassins gang, including his arrest and charge on five relatively
    serious criminal incidents between 2003 and 2006; and (iii) recent evidence
    inferring the appellants current association with alleged members/associates
    of the Asian Assassins.

C.

Analysis

[24]

Dealing
    first with the last ground of appeal, given the low threshold to satisfy the
    statutory test for naming a known person, I am not persuaded this ground of
    appeal is not frivolous.

[25]

The
    same cannot be said for the other grounds of appeal. Code J. characterized the
    MDI issues as somewhat novel s. 8 issues involving, as they do, a new
    investigative technology. As to the grounds relating to the warrantless
    surveillance, the determination of whether a reasonable expectation of privacy
    exists often turns on the specific circumstances. At issue on this appeal is
    the extent to which a reasonable expectation of privacy exists in the common
    areas of large, multi-unit condominiums. I cannot say that issue is a frivolous
    one. Accordingly, I am satisfied the appellant has established his appeal is
    not frivolous.

IV.

THE PUBLIC INTEREST

[26]

The
    public interest criterion in s. 679(3)(c) of the
Criminal Code
consists
    of two components: public safety and public confidence in the administration of
    justice:
Oland
, at para. 23.

[27]

There
    is no suggestion in the present case that the appellants release would
    jeopardize public safety. He complied without incident with the terms of his
    bail pending his trial and sentencing.

[28]

The
    public confidence criterion requires balancing several factors: the seriousness
    of the offence; the strength of the grounds of appeal; public safety; and
    flight risks.

[29]

Dealing
    first with the seriousness of the offence, the appellant was convicted of
    possession of heroin for the purpose of trafficking and trafficking a
    controlled substance for the benefit of a criminal organization.

The
Oland
framework for considering applications for bail pending appeal assumes the
    appeal judge will have the benefit of the trial judges reasons for sentence in
    which the factors going to the seriousness of the crime will have been
    addressed: at para. 38.

[30]

That
    did not occur on the present application. The appellant had pre-booked a 2:30
    p.m. time slot on September 21, 2017 for hearing his application for judicial
    interim release pending appeal, as permitted by s. 7.2.2(3) of the
Practice
    Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
(1 March 2017). The sentencing reasons were delivered orally on the morning of
    September 21, 2017. However, the appellant did not file a transcript or
    synopsis of the sentencing reasons.

[31]

Such
    an approach by counsel is not helpful. The appellant bears the burden of
    establishing each s. 679(3) criterion on a balance of probabilities:
Oland
,
    at para. 19. The absence of sentencing reasons creates a gap in the evidentiary
    record. Accordingly, I cannot accept the submission of appellants counsel in
    her affidavit that he was a relatively peripheral target of the larger police
    investigation or counsels submission at the hearing that the appellant was at
    the low end of the investigation. I will proceed on the basis the appellant
    was convicted of very serious drug offences, as reflected by the lengthy
    sentence he received.

[32]

Oland
calls on the appeal judge to examine the grounds identified in the notice of
    appeal with an eye to their general legal plausibility and their foundation in
    the evidence: at para. 44. Given that the appellant rests his reasonable expectation
    of privacy arguments on the recent decision of this court in
R. v. White
,
    2015 ONCA 508, 325 C.C.C. (3d) 171, it would not be appropriate to comment on
    those grounds in any detail. Suffice it to state, the main grounds of appeal are
    founded in the evidence and are not frivolous.

[33]

There
    is no concern that the appellant is a flight risk or poses a threat to public
    safety.

[34]

When
    balancing the relevant factors as part of the public confidence analysis, one
    must recall the observation of the Supreme Court in
Oland
, at para. 29,
    that [r]arely does this component play a role, much less a central role, in
    the decision to grant or deny bail pending appeal. In the present case, the
    seriousness of the offence points in the direction of the enforceability
    interest, while the absence of flight risk or threat to public safety points
    towards reviewability. I regard the non-frivolous nature of the main grounds of
    appeal as somewhat neutral. In the end, this is a close case, but overall the
    factors favour reviewability.

[35]

Accordingly,
    I grant the application.

[36]

That
    said, the conditions of bail pending appeal must reflect the strong
    enforceability interest in this case. Counsel provisionally agreed on the terms
    of release. I accept all of their proposed terms, except for proposed Condition
    13, which states: Pursue the appeal diligently. The strong enforceability
    interest in this case requires imposing a stronger obligation on the appellant
    to bring his appeal on for a timely hearing.

[37]

To
    give effect to the strong enforceability interest, I shall fix a date for
    perfection of the appeal as a condition of bail pending appeal. I recognize
    this appeal is only one of several related appeals that seek to review the
    Surveillance and Camera Decisions. Yet, slightly over six months have elapsed
    since the appellant was convicted. The appellant has had ample time to begin
    the process of securing the materials from the 2016 hearings before Code J. for
    inclusion in his appeal book. The appellant proposes as a term of bail a
    surrender date of January 12, 2018, from which I conclude the appellant should
    be in a position to perfect his appeal by that date. Accordingly, Condition 13
    of the order granting this application shall read as follows:

13. PERFECT the appeal by January 12, 2018. If you do
    not perfect the appeal by that date and seek an extension of this order, you
    must include in your extension application materials an explanation for your
    failure to perfect by January 12, 2018, together with a detailed plan for
    perfecting the appeal, which itemizes the remaining steps for perfection and
    commits to fulfilling each step by a specified date.

[38]

I
    have placed my fiat on the draft order provisionally agreed to by counsel, as
    amended by this endorsement.

David Brown J.A.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (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 complainant 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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. Thyagarajah, 2017 ONCA 825

DATE: 20171027

DOCKET: C62689

Laskin, Feldman and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Varatharajah Thyagarajah

Applicant/Appellant

Marc Schiffer, for the appellant

Peter Fraser, for the respondent

Heard and released orally: October 23, 2017

On appeal from the decision of the Summary Convictions
    Appeal Court dated January 26, 2016 by Justice Kenneth Campbell of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on May 6,
    2014 by Justice Mavin Wong of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault. His appeal to the summary
    conviction appeal court was dismissed. He now seeks leave to appeal to this
    court. He raises four issues on which he seeks leave.

[2]

First, he seeks leave to introduce as fresh evidence the expert opinion
    of a doctor on multiple system atrophy, a disease that the complainant suffered
    from.

[3]

We deny leave to admit this fresh evidence. We accept that the doctor is
    an acknowledged expert on neurodegenerative disorders, including multiple
    system atrophy. But even if we do not give effect to the lack of due diligence,
    the proffered evidence does not satisfy the
Palmer
test
[1]
.

[4]

The doctor did not review any of the complainants medical records. He
    did not have any information about whether the complainant was on medication. And
    he did not review the transcript of the trial or the complainants videotaped
    statement. The doctors two page general opinion letter could not reasonably
    have affected the issue for which it was tendered: whether the complainant
    consented to the sexual activity. Leave to introduce the fresh evidence is
    refused.

[5]

Second, the appellant seeks leave to introduce the complainants
    criminal record, which was not disclosed to the defence before trial. He argues
    that there is a reasonable possibility the criminal record could have affected
    the result at trial or the fairness of the trial. We disagree.

[6]

Undoubtedly, the complainants criminal record should have been
    disclosed to the defence before trial. The Crowns failure to do so was
    inadvertent. But the complainants record consisted of a single entry for
    uttering a forged document for which she was convicted over 20 years before the
    trial when she was a young woman, and for which she received a suspended
    sentence.

[7]

We see no reasonable possibility that this dated record could have
    affected the trial judges assessment of the complainants credibility or the
    result at trial. Nor in our view could it have affected the fairness of the
    trial. The complainant died before she could testify at trial. Thus, the record
    could not be used to impeach her evidence on cross-examination. At most, it
    would have been another argument in support of the appellants contention that
    the complainants evidence should not be believed. In our view the
    unavailability of the record at trial would have affected trial fairness or the
    defences strategy minimally or not at all.

[8]

Third, the appellant submits that the summary conviction appeal court
    judge erred in law in upholding the trial judges finding that the
    complainants videotaped statement was admissible under the principles in
Khelawon
[2]
.

[9]

The appellants submission on this issue has two branches: first, the
    summary conviction appeal court judge erred by failing to hold that the
    material inconsistency in the complainants statement about the sexual activity
    undermined the threshold reliability of her statement; and, second, in the
    light of the Supreme Court of Canadas recent decision in
Bradshaw
[3]
,
    released after the trial and summary conviction appeal, both the trial judge
    and the summary conviction appeal court judge erred in holding that the DNA
    evidence corroborated the complainants hearsay statement: see
Bradshaw
at para. 45. We do not accept the appellants submissions.

[10]

On
    the first branch of his submission, both the trial judge and the summary
    conviction appeal court judge were well aware of the material inconsistency in
    the complainants evidence. They expressly referred to it. But this material
    inconsistency was only one aspect of a much larger evidentiary framework on
    which both judges relied in finding that threshold reliability was established.
    That was their call to make.

[11]

On
    the second branch of the appellants submission, the Crown fairly acknowledges
    that the DNA evidence standing alone could not corroborate the complainants
    evidence that she did not consent to the sexual activity. However, the DNA
    evidence was only part of a much broader evidentiary record about the
    circumstances of the sexual assault. Those circumstances included the
    complainant being found half naked on the bathroom floor, crying. The evidence
    taken as a whole corroborated the reliability of the complainants statement:
    see
Bradshaw
at para. 4.

[12]

Thus,
    we see no error in law in the summary conviction appeal courts conclusion,
    upholding the trial judges finding that the complainants videotaped statement
    met the standard for threshold reliability.

[13]

Fourth,
    the appellant submits that the summary conviction appeal court judge erred in
    law in upholding the trial judges finding that there was no s. 11(b) of the
Charter
[4]
violation.

[14]

The
    appellant does not assert that the trial judge erred in her analysis under the
Morin
framework
[5]
.
    He argues that
Jordan
[6]
compels a different result.

[15]

We
    disagree. The trial in this case took place and was completed before
Jordan
was released. Thus, the
Morin
framework applies: see
Cody
[7]
at para. 71. The appellant must, therefore, fail on this issue.

[16]

Accordingly,
    the appeal is dismissed.

John Laskin J.A.

K. Feldman J.A.

R.A. Blair J.A.

[1]

Palmer v. R.
, [1980] 1 S.C.R.
    759, at p. 775.

[2]

R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787.

[3]

R. v. Bradshaw
, 2017 SCC 35.

[4]

Canadian Charter of Rights and Freedom
, Part I of the
Constitution Act, 1982
, being Schedule B to
    the
Canada Act 1982
(U.K.), 1982, c. 11.

[5]

R. v. Morin
, [1992] 1 S.C.R. 771, at pp. 787-788.

[6]

R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.

[7]

R. v. Cody
, 2017 SCC 31.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Whiteley, 2017 ONCA 804

DATE: 20171023

DOCKET: C61795

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Whiteley

Applicant (Appellant)

Eva Taché-Green, for the applicant (appellant)

Nancy Dennison, for the respondent

Heard:  October 16, 2017

On appeal from the conviction of Justice T. Cleary of the Ontario
    Court of Justice, dated December 22, 2014, and on appeal from the sentence
    imposed on February 13, 2015.

REASONS FOR DECISION

[1]

The appellant and Shawn Downey had a fight in the appellants small
    one-room apartment.  During the altercation, the appellant was pushed into the
    closet area by Mr. Downey and perhaps two others.  As he was being struck by Mr.
    Downey, the appellant picked up a metal object from the floor of the closet and
    struck Mr. Downey with it many times.  Several of the blows hit Mr. Downey in
    the head and face.  He suffered very serious injuries.

[2]

The appellant was charged with aggravated assault and other related offences.
    The trial judge convicted on the aggravated assault charge and entered stays on
    the other counts.  He imposed a sentence of four years, 10 months in addition
    to credit of 14 months for presentence custody, resulting in an effective
    sentence of six years.

[3]

The appellant appealed his conviction and, if leave be granted, his sentence.
    At the end of oral argument, the court dismissed the conviction appeal, granted
    leave to appeal sentence, and varied the sentence to time served.  These are
    the reasons for our disposition.

The Conviction Appeal

[4]

The appellant testified that he struck Mr. Downey in self-defence.  He gave
    evidence about his prior relationship with Mr. Downey and the events in the
    hours and minutes immediately before the altercation.  It was the defence
    position that in all the circumstances, it was reasonable for a person in the
    appellants position to be afraid of Mr. Downey and to believe that significant
    force was required to neutralize the threat posed to the appellant by Mr.
    Downey.

[5]

The trial judge accepted that the appellant had initially acted in
    self-defence.  He further held, however, that the appellant went too far in the
    course of the altercation.  The trial judge said:

There is no inference that I can make nor any direct evidence
    that he [the appellant] was being struck in such a way or such force was being
    used against him when Mr. Downey was on his knees as to require the repeated
    striking with the metal object.  Even taking Mr. Downeys testimony at face
    value that he does not back down and he was holding on to this person, it is
    clear that he was on his knees when struck more than once with the door
    closer.
It is only reasonable to infer that he was of very minimal
    physical danger to Mr. Whiteley.  Mr. Whiteley simply got carried away.
[Emphasis added.]

[6]

Much of the oral argument focused on whether the trial judge had made a
    finding as to the point in the altercation when the appellants blows could no
    longer be justified in self-defence.  Counsel for the appellant submitted there
    was no clear finding on this issue.  She further argued that on the appellants
    evidence, which she stressed was not rejected by the trial judge, the
    altercation had to be looked at as a single ongoing event.  In her submission,
    it was unreasonable to make different assessments of the availability of
    self-defence as the altercation progressed.

[7]

Crown counsel acknowledges that the reasons are somewhat unclear.  She
    submits, however, that the reasons are best understood as a finding that while
    the first or second blow with the metal object may have been justified in
    self-defence, the many that followed could not be justified.  Crown counsel
    submits that this finding is readily available on the evidence.  She points out
    that the trial judge properly instructed himself on the law of self-defence, in
    particular the objective/subjective assessment required in determining the
    reasonableness of the appellants conduct in the circumstances.

[8]

We agree with the Crown that the trial judge concluded that some of the
    blows landed with the metal object could not be justified in self-defence.
    That conclusion does not turn on an assessment of the appellants credibility,
    but rather on the totality of the evidence, which included the appellants
    testimony and his description of the relevant events in his statement.  On that
    evidence, the trial judge concluded that the appellant continued to use deadly
    force after, on a reasonable assessment of the circumstances as perceived by
    the appellant, the use of that degree of force was no longer necessary as the
    appellant was not in any imminent danger.  On that analysis, which was open to
    the trial judge on the evidence, the self-defence claim failed.

[9]

The appellant also argued that the trial judge failed to consider separately
    his claim that he was defending his property.  Mr. Downey was no doubt a
    trespasser and defence of property under s. 35 was in play.  However, in our
    view, in the circumstances of this case, that defence added nothing to the defence
    available to the appellant under s. 34.  The trial judges failure to give
    separate consideration to the defence of property argument did not prejudice
    the appellant.

The Sentence Appeal

[10]

The
    trial judge imposed an effective sentence of six years.  He gave the appellant
    credit for 14 months presentence custody, yielding a net sentence of four
    years, 10 months.

[11]

The
    appellant makes two submissions on his sentence appeal.  First, he submits that
    the trial judge erred in his calculation of credit for presentence custody.  Had
    the appellant received the 1.5:1 credit for his presentence custody, he would
    have been entitled to a total credit of 17 months.  The trial judge reduced the
    17 months to 14 months on the basis that the appellants criminal record could
    result in the appellant not being released at the two-thirds point of his
    sentence.  The appellant submits that while he has a significant record, it
    comes nowhere near the kind of record that would justify an assumption that the
    appellant would not be released after two-thirds of his sentence had been
    served.

[12]

There is merit to this submission.  However, as we would give effect to
    the second submission made by the appellant, we need not decide whether the
    trial judge erred in failing to give full 1.5:1 credit for the appellants
    presentence custody.

[13]

Counsels
    second argument goes to the fitness of the length of the jail term imposed by
    the trial judge.  Counsel submits that the trial judge failed to consider the
    central mitigating fact in this case.  Counsel argues that, on the trial
    judges findings, the appellant was justified in using significant force to
    defend himself against Mr. Downey, even to the point of striking him with the
    metal bar.  Counsel contends that sentences imposed on accused persons who are
    justified in acting in self-defence, but go beyond the limits of the defence,
    are inevitably significantly lower than sentences imposed on accused whose
    assaultive conduct is not justified in any way.  He submits that the lower
    sentences reflect the lower level of culpability applicable to offenders who
    are found to have initially acted in self-defence.  Counsel points to the
    reasons in
R. v. Smith
, [1999] O.J. No. 2766, where Durno J. said, at
    para. 7:

The final mitigating factor is critical in determining an
    appropriate sentence in this case.  This case is one of excessive force in
    self-defence during an incident in which Mr. McShane [the victim] engaged in
    repulsive racist behaviour and was the initiator of physical aggression.

[14]

In
    this case, Mr. Downey was the aggressor, at least until the appellant had
    struck him with the metal object.  Mr. Downey was a trespasser and over several
    hours had intimidated the appellant and ignored the appellants requests that
    he leave the appellants home.

[15]

Mr.
    Downeys role in the altercation and the fact that the appellant was justified
    in using significant force against Mr. Downey, should have been treated as significant
    mitigating factors on sentence.  The trial judge made no reference to either.  Instead,
    he referred to the mitigating factors as very minimal.  The trial judges
    failure to recognize the dominant mitigating factors constitutes an error in
    principle, justifying appellate intervention.

[16]

The
    trial judge did refer to the appellants criminal record, which is extensive
    and was to a degree an aggravating feature.  We note, however, that there has
    been only one entry in the record since 2002.  The appellant was convicted of
    criminal harassment in 2012 and received a four-month sentence.  The trial
    judge made no references to this significant gap.

[17]

Having
    regard to the circumstances of the altercation between the appellant and Mr.
    Downey, the serious injuries suffered by Mr. Downey, and the appellants antecedents,
    three years would have been an appropriate sentence.

[18]

The
    appellant has been in custody for about two and one-half years since he was
    sentenced.  In our view, he has served enough time for this offence.

Conclusion

[19]

As
    indicated at the end of oral argument, the conviction appeal is dismissed, leave
    to appeal sentence is granted and the sentence is varied to time served.

Doherty J.A.

H.S. LaForme J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Reeb v. The Guarantee Company of North America,
    2017 ONCA 771 DATE: 20171005

DOCKET: C63193

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Ryan Reeb

Applicant/Appellant

and

The Guarantee Company of North America and
    Co-Operators General Insurance Company

Respondents

Bruce R. Mitchell, for the appellant

Jeff M. K. Garrett, for the respondent

Heard: July 20, 2017

On appeal from the judgment of Justice C.M. Bondy of the
    Superior Court of Justice, dated December 6, 2016.

REASONS FOR DECISION

[1]

This is an appeal from the dismissal of an
    application for a declaration that the appellant, Ryan Reeb, is an insured
    under two policies issued by the respondent insurers.

[2]

The question for this court is whether to rule
    on the merits of the appeal, or to allow the appeal in view of the apparent
    conflict of interest between Mr. Reeb and Royal & Sun Alliance Insurance
    Company of Canada, the insurer who appointed, pays and instructs appellants
    counsel. For the reasons that follow, we allow the appeal on the basis of the apparent
    conflict of interest.

[3]

Some brief background is necessary to frame the
    conflict of interest issue.

[4]

On February 25, 2007, James Riley and Ryan Reeb,
    both 14 years of age at the time, were playing with pellet guns at Rileys
    house.  Reeb shot Riley who lost an eye. The underlying action is by
    James Riley against Ryan Reeb, his mother Laura Reeb, and his father Tim Reeb.

[5]

At the time of the incident, Ryan Reebs
    parents, Laura and Tim, were separated.

[6]

Laura Reeb had homeowners insurance with Royal
    & Sun Alliance which had a third party liability limit of $1 million. James
    Rileys claim was for $1.5 million.

[7]

Royal & Sun Alliance appointed appellants
    counsel to defend Ryan Reeb under a non-waiver and reservation of rights
    agreement. In respect of coverage, Royal & Sun Alliance is represented by another
    law firm.

[8]

On behalf of Ryan Reeb, appellants counsel brought
    the application for a declaration that Ryan is insured under two additional
    policies of insurance issued by the respondents. The first was issued to
    his father, Tim Reeb, by the respondent, The Guarantee Company of North
    America. The second was issued to Tims second wife, Theresa Curry-Reeb,
    by the respondent, Co-operators General Insurance Company. The respondent
    insurers are represented by another law firm. The respondent insurers concede
    that Ryan Reeb is insured under both policies but they assert that the
    intentional act exclusion in both policies applies to exclude the injuries
    suffered by James Riley.

[9]

The application judge dismissed the application
    based on the intentional act exclusion in both of the insurance policies issued
    by the respondent insurers, leading to this appeal.

[10]

If this court upholds the application judges
    decision, then the intentional act exclusion will apply, and Ryan Reeb will not
    be entitled to coverage under the additional policies issued by the respondent
    insurers. Moreover, it is likely that this courts decision will also
    eliminate coverage for Ryan Reeb under the Royal & Sun Alliance
    policy.

[11]

As a result of this constellation of interests,
    this court raised with the parties whether appellants counsel was in an
    apparent conflict of interest. On the one hand, he is being paid by Royal
    & Sun Alliance to defend Ryan Reeb and pursue this appeal. On the other
    hand, however, if the appeal fails, then Ryan Reeb will have no insurance
    coverage whatsoever, which would be to Royal & Sun Alliances financial advantage.

[12]

At the panels request, counsel for the parties
    and coverage counsel for Royal & Sun Alliance made written submissions to
    address the conflict of interest issue. The following summary sets out their
    responses:

(i)

Appellants counsel asserts
    that there is no conflict: pursuing the additional insurance was necessary and
    in Ryan Reebs interests because the Riley claim exceeded the policy limits of
    the Royal & Sun Alliance policy.

(ii)

Coverage counsel for Royal
    & Sun Alliance submits that the status of coverage under the policy is not
    relevant to the court. Royal & Sun Alliance will not agree prior to
    this courts disposition of the appeal to pay the costs of defence or to
    maintain coverage for the Reebs in the event that the appeal is dismissed. Royal
    & Sun Alliance relies on the non-waiver and reservation of rights agreement
    and will decide what to do when the court rules.

(iii)

Counsel for the respondent
    insurance companies takes the position that, it is reasonable to infer Royal
    & Sun Alliance will not provide coverage to Ryan Reeb if the appeal is
    dismissed, and will rely on the non-waiver and reservation of rights agreement.
    He notes that the issue of coverage for Ryan Reeb and Laura Reeb by Royal &
    Sun Alliance was not addressed before the application judge but was raised for
    the first time by appellants counsel at the hearing of this appeal. Most
    important, counsel submits that after the plaintiffs made a settlement offer under
    the policy limits, there was no benefit to Mr. Reeb in proceeding with the underlying
    application; he was already being defended by Royal & Sun Alliance which
    had not denied coverage. Respondents counsel submits nevertheless that this
    court should determine the issues before it on the record and applicable case
    law without any consideration of Royal & Sun Alliances duty to provide
    coverage. He asserts the coverage issue can be addressed in another proceeding
    if coverage is denied by Royal & Sun Alliance.

[13]

When a lawyer is retained by an insurance
    company to represent its insured, a conflict of interest may arise where the
    interests of the insurance company and the insured are not in alignment. In her
    text,
Understanding Lawyers Ethics in Canada
, 2d ed. (Markham: LexisNexis
    Canada Inc., 2016), at para. 6.87, p. 272, Alice Woolley concisely frames the
    conflict of interest question in the context of the tension between the
    insurance companys contractual rights and the insureds interests to full and
    fair representation, as follows:

While courts have generally been deferential to the contractual
    rights of insurance companies in this respect, courts have also held that a
    lawyer owes a duty to fully represent and protect the interest of the insured
    and have required that the insured has obtained independent counsel where there
    is a reasonable apprehension of conflict of interest on the part of counsel
    appointed by the insurer.

[14]

In
Hoang v. Vicentini
, 2015 ONCA 780,
    at para. 74, this court recently reiterated the criteria to be considered when
    determining whether there is a conflict of interest between an insured and his
    insurer with respect to the insureds legal representation:

In
Brockton
, this court described the degree of
    divergence that must exist before a court can require an insurer to surrender
    control of the defence. Rejecting the concept of "appearance of
    impropriety" as a basis for depriving an insurer of its contractual right
    to control the defence, this court instead adopted, at para. 43, the concept of
    conflict of interest:

The balance is between the insured's right to a full and fair
    defence of the civil action against it and the insurer's right to control that
    defence because of its potential ultimate obligation to indemnify. In my view,
    that balance is appropriately struck by requiring that there be, in the
    circumstances of the particular case, a reasonable apprehension of conflict of
    interest on the part of counsel appointed by the insurer before the insured is
    entitled to independent counsel at the insurer's expense. The question is
    whether counsel's mandate from the insurer can reasonably be said to conflict
    with his mandate to defend the insured in the civil action. Until that point is
    reached, the insured's right to a defence and the insurer's right to control
    that defence can satisfactorily co-exist.

[15]

In our view, there is a reasonable apprehension
    of a conflict between the interests of Mr. Reeb and Royal & Sun Alliance.
    While we are not saying that appellants counsel actually preferred the
    interests of Royal & Sun Alliance over those of Mr. Reeb, the apprehension
    of a conflict precludes this court from ruling on the merits of the appeal. In
    order to protect his interests in these proceedings in light of the conflict,
    Mr. Reeb ought to have had independent counsel who did not report to or take
    instructions from Royal & Sun Alliance to advise him on the advisability of
    bringing the underlying application in the face of a settlement offer, and representing
    him on this appeal. There is no way of knowing how things would have unfolded
    had Mr. Reeb been represented by independent counsel throughout, which impugns
    both the application and this appeal.

[16]

As a result, we allow the appeal and set aside
    the application judges decision.

[17]

What should happen next? To determine this question,
    we invite written submissions from the parties and Royal & Sun Alliance.
    However, independent counsel for Ryan Reeb or
amicus curiae
should be
    appointed and remunerated for the purpose of assisting this court in assessing
    what future steps should be taken in these proceedings.

[18]

Before we schedule the delivery of those
    submissions, in order to ensure that Ryan Reebs interests are protected at
    this stage with respect to our request for additional submissions regarding his
    future representation and the disposition of the costs of this appeal, we intend
    to appoint
amicus curiae
to assist the court.  Counsel for the parties
    and Royal & Sun Alliance may make brief written submissions of no more than
    two pages within ten days of the release of these reasons concerning the issue
    of
amicus
 remuneration before this court. Counsel may also include
    names of possible
amicus
for this courts consideration on the
    understanding that this court may appoint
amicus
who is not among
    counsels suggested counsel.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Roda v. Toronto Police Services Board, 2017 ONCA
    768

DATE: 20171003

DOCKET: C61827

Sharpe, Blair and Epstein JJ.A.

BETWEEN

Frank Roda

Plaintiff (Appellant)

and

Toronto Police Services
    Board
, Detective Timothy Kavanagh (Major Crime Unit),
P.C. Bronagh Fynes
, Ronald Hitti and Brian Rowsell

Defendants (Respondents)

Frank Roda, acting in person

Richard Oliver and Penelope Ma, for the respondents,
    Toronto Police Services Board and P.C. Bronagh Fynes

Heard and released orally: October 2, 2017

On appeal from the judgment of Justice S.F. Dunphy of the
    Superior Court of Justice, dated January 29, 2016.

REASONS FOR DECISION

[1]

The appellant was arrested in 2006 and charged with a number of offences.
    He was committed for trial after a preliminary hearing in which the preliminary
    hearing judge concluded that the Crown had made out a
prima facie
case. He was found not guilty of all charges after a jury trial. The appellant
    then launched this civil claim against the Toronto Police Services Board, two
    police officers involved in the investigation, as well as his alleged victims.
    His claim was based on a number of torts including negligent investigation
    against the Police Services Board and the police officers. His claims against
    two of the defendants were dismissed or discontinued prior to the motion that
    is the subject of this appeal. The remaining defendants, the Toronto Police
    Services Board and one of the officers involved in the investigation brought
    this motion for summary judgment.

[2]

The motion judge gave careful and detailed reasons concluding that
    several of the claims were statute barred and that the appellant had adduced no
    evidence capable of supporting the remaining claims for negligent investigation
    and perjury.

[3]

The appellant has advanced nothing before us to question the motion
    judges determination that several of the claims were statute barred. As for
    the claims for negligent investigation and perjury, we agree with para. 80 of
    the motion judges reasons where he stated:

While termination of proceedings in favour of the plaintiff is
    a necessary condition to a negligent investigation claim it is not a sufficient
    one. Not every acquittal warrants a claim. There must also be a breach of the
    standard of care of a reasonable police officer in similar circumstances
    determined subject to all of the uncertainties and frailties of foresight and not
    resorting to the harsh perfection of hindsight.

[4]

The appellant has adduced no evidence capable of satisfying that
    standard. We are not persuaded that the proposed fresh evidence should be
    admitted. It was available at the time of the summary judgment motion and in
    any event, it does not fill the void identified by the motion judge, namely,
    that the appellant has failed to adduce any evidence capable of supporting his
    allegations.

[5]

Accordingly, the appeal is dismissed. Costs to the respondents fixed at
    $10,000 inclusive of taxes and disbursements.

Robert J. Sharpe
    J.A.

R.A. Blair J.A.

Gloria Epstein
    J.A.