COURT OF APPEAL FOR ONTARIO

CITATION:
Plester v. PolyOne
    Canada Inc., 2013 ONCA 47

DATE: 20130128

DOCKET: C54909

Laskin, LaForme and Hoy JJ.A.

BETWEEN

John Edward Plester

Plaintiff (Respondent)

and

PolyOne Canada Inc.

Defendant (Appellant)

Greg McGinnis and Brendan Clancy, for the appellant

Cherolyn R. Knapp and Heather J. Wood, for the
    respondent

Heard: January 11, 2013

On appeal from the order of Justice Bonnie J. Wein of the
    Superior Court of Justice, dated December 23, 2011, with reasons reported at
    2011 ONSC 6068.

ENDORSEMENT

[1]

The trial judge held that PolyOne Canada Inc. dismissed the respondent,
    John Plester without cause, and that he is therefore entitled to damages.
    PolyOne appeals this decision.

[2]

PolyOne argues that the trial judge erred in grounding her conclusion
    that dismissal was a disproportionate response to the respondents conduct on a
    particular incident of another employees conduct  the Glassford incident.

[3]

While we agree that the trial judge erred in focussing on the Glassford
    incident, we nonetheless agree with the trial judge that dismissal without
    notice or pay in lieu of notice was not warranted in the case of this 17-year
    employee with an almost unblemished record. In the result we dismiss this
    appeal.

[4]

The background, briefly, is as follows.

[5]

PolyOne is a manufacturing company. Its processes are complex and
    potentially dangerous. PolyOne has succeeded in ingraining a strong culture of
    workplace safety. Its Cardinal Rules of safety include the requirement that
    any machinery being worked on be locked out, and that employees immediately
    report any violations of safety policy.

[6]

The respondent, a line-supervisor, failed to lock-out a machine before
    attempting to fix it. It was the culmination of a frustrating day. He was
    distressed by his lapse and was trying to get his head around what he had
    done; he did not immediately report his violation. The next morning, he attempted
    to dissuade subordinates from reporting his mistake. A head-office executive
    was visiting. The respondent wanted to report himself at an opportune time.

[7]

By the time the respondent spoke to his subordinates, they had already
    reported his violation. PolyOne promptly dismissed the respondent, without
    notice or pay in lieu of notice.

[8]

Considering the importance of workplace safety, the trial judge
    characterized the respondents conduct as a serious mistake, compounded by his
    delay in reporting. She then considered how such breaches were viewed by
    PolyOne. She concluded that an incident involving another employee, Mr.
    Glassford, provided a good comparison. Mr. Glassford was an Operations Manager,
    and breached the same Cardinal Rule as the respondent. As Mr. Glassford was not
    terminated as a consequence of his breach of the Cardinal Rule, PolyOnes
    dismissal of the respondent was not a proportionate response.

[9]

PolyOne points out that Mr. Glassfords violation was not reported at
    the time, and only surfaced in the course of this action.  We note that this
    point does not appear to have been specifically argued before the trial judge.
    Nevertheless, we agree that managements failure to terminate Mr. Glassford at that
    time cannot be used as a comparator, and the trial judge erred in treating it
    as such.

[10]

We
    appreciate that an employers ability to respond strongly and swiftly to
    violations of rules designed to ensure workplace safety reinforces the
    importance of such rules,
and promotes a culture of
    workplace safety. We also appreciate that a line-supervisor, such as the
    respondent, is generally subject to a higher standard than a line worker. And,
    given PolyOnes fully warranted concerns about workplace safety, we agree with
    the trial judge that the respondent made a serious mistake. However, the
    respondents mistake did not appear to have put any other persons at risk, and
    he was a long-standing, good, hard-working employee with only minor incidents
    of past discipline as a line-worker, pre-dating his promotion to line-supervisor
    some six years before.

[11]

Moreover,
    the trial judge accepted that the respondent planned to report his violation;
    what occurred was an intended short delay in reporting, as opposed to a
    suppression of a violation. We are not persuaded by PolyOnes argument that
    that the respondents conduct was such a violation of trust that a continuing
    relationship was impossible.

[12]

In
    the result, we agree with the trial judge that, in these circumstances,
    dismissal without notice or pay in lieu of notice was not warranted.

[13]

In
    the event it succeeded on its argument that it had just cause for dismissal,
    PolyOne also argued that the trial judge erred in concluding that the
    respondents actions had not disentitled him to payments under the
Employment
    Standards Act
,
2000
, S.O. 2000 c. 41. Having regard to our
    conclusion on the just cause issue, it is unnecessary for us to address this
    argument.

[14]

For
    the reasons above, the appeal is accordingly dismissed.  If the parties are
    unable to agree on costs, they may provide brief written submissions within
    thirty days.

John Laskin
    J.A.

H.S. LaForme
    J.A.

Alexandra Hoy
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
QRC Limited
    Partnership v. TBS Stores, 2013 ONCA 41

DATE: 20130123

DOCKET: C56060

Goudge, Epstein and Tulloch JJ.A.

BETWEEN

Black Saxon QRC Inc.
    as General Partner for and on behalf of QRC Limited Partnership

Applicant (Appellant)

and

TBS Stores Inc.

Respondent (Respondent)

APPLICATION UNDER Rules
    14.05(3)(d) and (h) of the
Rules of Civil Procedure

Daniel S. Murdoch, for the appellant

Ryan Morris, for the respondent

Heard: January 21, 2013

On appeal from the judgment of Justice David Brown of the
    Superior Court of Justice, dated September 1, 2012.

APPEAL BOOK ENDORSEMENT

[1]

In our view the motion judge was correct to find that interest on the
    principal outstanding under this note runs from the date of issue of the note.
    We agree with his reasons that, without clear language saying so, interest
    would not run on the balance owed under the note before that note was issued,
    thus before the payee, the principal or the rate were fixed.

[2]

The appeal is dismissed with costs fixed at $7500 all in.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Beals, 2013
    ONCA 6

DATE: 20130109

DOCKET: C56128

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jermaine Beals

Appellant

Brady Cunningham, for the appellant

Mabel Lai, for the respondent

Heard: January 7, 2013

On appeal from the sentence imposed on May 15, 2012 by
    Justice Alphonse T. Lacavera of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of forcible entry (s. 72(1)), public
    mischief (s. 140), assault causing bodily harm (s.267), being unlawfully in a
    dwelling house (s. 349(1)), uttering death threats (s. 264.1), and failure to
    comply with probation (s. 145(3)).  He received a sentence of 12 months
    incarceration plus two years probation.  With respect to the breach of
    probation, the sentencing judge sentenced the appellant to time served of 4.5
    months pre-trial custody.

[2]

The appellant appeals the sentence on the grounds that (1) the sentence
    was harsh and excessive; (2) the trial judge failed to adequately apply the
Gladue
analysis; and (3) the sentence violates the jump principle.

[3]

The appellant has served approximately eight months of his sentence.  He
    requests that his sentence be substituted to time served plus one year
    probation.

[4]

In our opinion, the sentencing judge did not err with respect to his
    application
Gladue
or the jump principle.  In any event, the sentence
    was with the range and was fit.

[5]

Accordingly, while leave to appeal sentence is granted, the
    appeal as to sentence is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bhatti, 2013
    ONCA 20

DATE: 20130116

DOCKET: C54365

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Iftikhar Bhatti

Appellant

Mark Halfyard, for the appellant

Shawn Porter, for the respondent

Heard and released orally: January 10, 2013

On appeal from the sentence imposed on September 28, 2011
    by Justice H.W. Allen of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

Over a period of approximately 3 months, the appellant purchased six
    tractor trailer loads worth of stolen property (commercial goods) with the
    intention of re-selling them at a profit. Midway through his trial for
    possession of stolen property the appellant pled guilty to four of the counts
    against him. For sentencing purposes, the parties agreed the retail value of
    the goods was $500,000. All the property was eventually recovered and returned
    to its rightful owners. The trial judge sentenced the appellant to 12 months
    imprisonment plus three years probation.

[2]

The appellant seeks leave to appeal his sentence and submits that the
    trial judge erred in principle in not imposing a conditional sentence. The
    appellant is 55 years old. He had no prior criminal record, and owned and
    operated a textile business for 25 years prior to losing his job on account of
    his conviction. He has five children. Three live with him and a fourth, who
    lives with her mother, has Downs syndrome. He assists with her care on
    weekends.  The appellant suffers from a number of back and gastro-related
    medical issues.

[3]

The appellant says the trial judge made two errors in principle:

(1)     He overemphasized the importance of general
    deterrence, particularly given the appellant was a first-time offender;

(2)

He erred in taking judicial notice of the prevalence of tractor trailer
    thefts in the community, when it was not even argued by the Crown nor was the
    defence given an opportunity to respond to this issue, and in relying on it as
    an aggravating factor.

[4]

In the course of exchanges with counsel, the trial judge made it clear
    that his principle concern was general deterrence.  He indicated that with
    respect to possession of stolen goods of this magnitude and character, general
    deterrence was very significant.  We do not view his comments, respecting the
    extent of tractor trailer theft and his personal knowledge in that regard, as an
    indication he used this extent of tractor trailer theft as an aggravating
    factor.  Rather, he used it as an indicator of the need for general deterrence
    respecting crimes of this nature.

[5]

Nor are we of the opinion that he over emphasized general deterrence.
    Although we acknowledge that there were a number of mitigating factors, the
    sentencing judge considered them in reaching his conclusion. This was not a
    crime that arose out of the appellants need but out of greed and it involved a
    crime of significant magnitude over a period of several months. We are of the
    opinion that the trial judge did not err in principle.  The sentence he imposed
    was within the range and it was open to the trial judge in the circumstances
    not to accede to the defence request for a conditional sentence. We see no
    error in this regard.

[6]

Accordingly leave to appeal sentence is granted but the appeal as to
    sentence is dismissed.

K.M. Weiler J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Chapman, 2013
    ONCA 15

DATE: 20130114

DOCKET: C54697

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Chapman

Appellant

Timothy E. Breen, for the appellant

Marcella Henschel, for the respondent

Heard and released orally: January 8, 2013

On appeal from the sentence imposed on July 21, 2011 by
    Justice Richard G. Byers of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant pled guilty to manslaughter and received a global sentence
    of nine years and a net sentence of seven years taking into account 22 months
    time served in pre-trial custody.  He appeals his sentence and raises three
    grounds of appeal: (1) whether the sentencing judge erred by giving less weight
    to the mitigating effects of the appellants intoxication and limited
    intellectual capacity because those factors had already served to reduce the
    charge of murder to manslaughter; (2) whether the sentencing judge erred in
    giving less than 2:1 credit for pre-trial custody;
[1]
and (3) whether the sentence imposed is unfit.  He asks for a sentence of seven
    years less 2:1 credit for time served.  Alternatively, he asks that the
    nine-year sentence reflect credit for time served on a 2:1 basis.

A.

Circumstances of the Offence

[2]

Steffany Gardiner was killed on September 18, 2009.  At the time of her
    death she was 26 years old and was the mother of a 7-month-old child.  During
    the summer of 2009 she had been involved in a relationship with the appellant.
    The relationship ended several days before her death because of purported
    infidelity on the part of the appellant.

[3]

On the night of her death, Ms. Gardiner, Kevin Ruttan, and the appellant
    had been travelling around in a van visiting various friends and making various
    purchases of beer and marijuana.  All three of them had been drinking and using
    drugs throughout the night.  At around 1:00 a.m. the group stopped at Papineau
    Beach, in Hastings Highland.  Ms. Gardiner had engaged in sexual contact with
    both men while en route to the beach and after arriving at the beach that
    night.  However, at some point after arriving at the beach Ms. Gardiner became
    upset with Ruttan.  As a result of that, Ruttan asked the appellant to wait in
    the van while he took a walk down the beach with Ms. Gardiner.

[4]

A struggle ensued and Ruttan stabbed Ms. Gardiner twice with a knife.  The
    appellant, who had been in the van for an estimated 20 to 25 minutes, came looking
    for Ms. Gardiner and Ruttan.  He found Ruttan on top of Ms. Gardiner with his
    forearm pressing down across her throat.  She was still struggling.  Ruttan
    called out to the appellant and told him to come and hold Ms. Gardiner down.
    The appellant did not know what was going on, but he proceeded to hold down Ms.
    Gardiners arms while Ruttan continued to apply pressure to her throat until
    she fell silent.  At Ruttans request, the appellant then went to the van to
    retrieve a baseball bat.  Ruttan told the appellant to strike Ms. Gardiner with
    the bat but the appellant replied, No, you do it.  Ruttan then struck Ms.
    Gardiner on the head four or five times while the appellant stood nearby and
    watched.  A post-mortem report concluded that Ms. Gardiner was still alive when
    she was struck on the head and that death was caused by blunt force trauma to her
    head.

[5]

Ruttan and the appellant fled Ontario but were arrested in Quebec on
    September 22, 2009.  Ruttan pled guilty to second degree murder and received a
    sentence of life imprisonment without eligibility for parole for 15 years.

B.

Circumstances of the Appellant

[6]

The appellant was 32 years of age at the time of the homicide. He is the
    youngest of two siblings and was raised in a stable and supportive home
    environment.  The appellant had known Ruttan for some time and had even invited
    Ruttan to live with him for a period of time, although the appellant reported
    that Ruttan was bossy towards him.

[7]

Psychological testing of the appellant revealed an IQ of 68, placing him
    within the classification of mild retardation.  The psychological testing and
    clinical evaluation of the appellant indicated that he suffers from significant
    impairment to his intellectual functioning and that he is a follower.  The
    appellants cognitive functioning would be further compromised when impaired by
    alcohol and/or drugs.

[8]

The appellant had a limited criminal record including one prior
    conviction for assault.

C.

Whether the sentencing judge gave appropriate consideration to the
    mitigating effects of the appellants intoxication and limited intellectual
    capacity

[9]

The crown and defence agreed that the proper range of sentence for
    aggravated manslaughter is seven to 12 years.  The Crown asked for a sentence
    of 12 years less credit for pre-trial custody, while counsel for the appellant
    sought a sentence of seven years less credit for pre-trial custody.

[10]

In
    submissions on sentencing, the Crown submitted that, at least part of the
    reason that the Crown agreed to accept a reduced plea to manslaughter and not
    second degree murder, was because of the appellants mental status and level of
    intoxication that night.  As such, the Crown argued that the appellants mental
    status and intoxication should not be used again as mitigating factors in
    sentencing the appellant for manslaughter  to do so would be provide a double
    benefit because these factors were already spent to reduce the charge from
    second degree murder.

[11]

In
    his reasons for sentence the sentencing judge responded to the Crowns
    submission as follows:

The Crown is right that at least part of the reason that the
    Crown agreed to accept a reduced plea to manslaughter and not second degree
    murder is because of some sense of all the players, including the Crown, that
    wouldnt be right.  It wouldnt be fair in these circumstances to [the
    appellant].  And so he doesnt go down for second degree murder, which is life.

And so the Crown says to me, thats it.  Thats all the credit
    he gets.  Thats it.  And there are some cases that say that.

The problem for me is the law says I am supposed to sentence
    the offender who stands before me, and the sentence should be fit for him and
    fit for what he did.

And so I think if I follow that law, which I understand to be
    the law of the land, I have to take into account, even on sentencing, to some
    degree at least, who he is, where he comes from, what his record is, the degree
    of his participation, the likelihood that he will be in trouble again.

[12]

The
    appellant focuses primarily on the words to some degree at least to argue
    that the sentencing judge accepted the Crowns argument.  The appellant points
    to
R. v. Stone
(1999), 134 C.C.C. (3d) 353 (S.C.C.) for the
    proposition that the weight of a mitigating factor should not be diminished
    even if that factor has already served to reduce the charge from murder to
    manslaughter.

[13]

We
    do not agree that the trial judge accepted the Crowns argument.  Taken in
    context, the trial judge was simply conveying that he rejected the Crowns
    submission and intended to consider all the relevant circumstances.  We see no
    error in principle in his comments and would dismiss this ground of appeal.

D.

whether the trial judge erred in giving less than 2:1 credit for
    pre-sentence custody and whether the   sentence is unfit.

[14]

The
    sentencing judge stated that in his opinion the appropriate global sentence was
    nine years.  While expressing an intention to allow approximately 44 months
    credit for pre-trial custody and endorsing the indictment to that effect, the sentencing
    judge in fact only allowed 24 months credit.  The appellant submits that by not
    giving 2:1 credit the sentencing judge erred in principle and that, as a
    result, the sentence is not entitled to deference.

[15]

A
    trial judge has the discretion to depart from the general practice of giving 2:1
    credit as long as he gives proper reasons for doing so.  The trial judge gave
    no reason for departing from his stated intention to give approximately 44
    months credit for pre-sentence custody.  There was either an error in principle
    or a mathematical error on his part.

[16]

Notwithstanding
    appellants counsels submissions that this offence should not be characterized
    as aggravated assault on account of the appellants limited intellectual
    capacity and other mitigating factors, we are of the opinion that, having
    regard to the appellants direct participation in the assault, the offence is
    rightly characterized as aggravated manslaughter as both counsel agreed at
    trial.  This was a brutal attack on a vulnerable victim.  A global sentence of
    seven years less credit for pre-trial custody on a 2:1 basis would not
    adequately denounce the appellants participation in this heinous crime.

[17]

We
    are of the opinion that effect ought to be given to the sentencing judges
    original stated intention to impose a nine year global sentence less
    approximately 2:1 credit for pre-trial custody.  Accordingly, leave to appeal
    sentence is granted, the appeal as to sentence is allowed and the sentence is
    varied to a net sentence of five and a half years taking into account pre-trial
    custody.

Karen M. Weiler J.A.

R.A. Blair J.A.

Paul Rouleau J.A.

[1]

The Crown concedes
    that the amendments to s. 719(3) of the
Criminal Code
do not apply in this
    case because appellant was charged in September 2009, prior to the coming into
    force of the
Truth in
    Sentencing Act
.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Chowbay, 2013
    ONCA 42

DATE: 20130124

DOCKET: C53380

Rosenberg, Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Valmiki Chowbay

Appellant

Robert Lepore, for the appellant

Tracy L. Kozlowski, for the respondent

Heard: January 23, 2013

On appeal from the conviction entered on October 14, 2010
    by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

In our view, this jury verdict with respect to the appellant is
    unreasonable. Any possibility of the appellant being a party to this offence
    turned on the finding that the transaction was fraudulent from the outset. This
    was mere speculation on this record. Similarly, it was speculative that the
    appellant did anything to aid this transaction after November 1, 2005, when the
    transaction undoubtedly was shown to be fraudulent.

[2]

Given the absence of reasonable inferences that the appellant did
    anything for the purpose of aiding a fraudulent transaction, this verdict
    cannot stand.

[3]

Accordingly, the appeal is allowed, the conviction set aside and an
    acquittal entered.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Clarke, 2013
    ONCA 7

DATE: 20130111

DOCKET: C55206

Laskin, Goudge and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Calvin Clarke

Appellant

Diana Lumba, for the appellant

Mabel Lai, for the respondent

Heard: December 10, 2012

On appeal from the sentence imposed on February 18, 2011
    by Justice Fergus O'Donnell of the Ontario Court of Justice.

Laskin J.A.:

A.

introduction

[1]

The only issue on this sentence appeal is whether the
Truth in
    Sentencing Act
, S.C. 2009, c. 29, governs the credit to which the
    appellant is entitled for his pre-sentence custody.  Under the Act, an offender
    cannot receive more than one-and-a-half days credit for each day spent in
    pre-sentence custody.

[2]

The appellant
committed
the offences for which he was convicted
    before the Act came into force, but he was
charged
with the offences
    after the Act came into force.  Section 5 of the Act says that the limits on credit
    for pre-sentence custody apply only to persons
charged
after the Act
    comes into force (emphasis added).

[3]

The trial judge held that the Act applied, and gave the appellant the
    maximum credit the Act permits: one-and-a-half days credit for each day spent
    in pre-sentence custody.  The appellant says that the Act does not apply to
    offences committed before it came into effect.  Therefore, he is entitled to
    two days or even three days credit for every day he spent in pre-sentence
    custody.  The Crown accepts that if the Act does not apply, the appellant is
    entitled to 2 for 1 credit.

B.

background

(1)

The Offences and the Sentence

[4]

The appellant, now 26 years old, was charged with break and enter and
    numerous firearms-related offences.  He pleaded guilty.  The trial judge
    sentenced him to 10 years imprisonment, less 17 months credit for the 348 days
    he spent in pre-sentence custody (effectively 1.5 for 1 credit).

(2)

The
Truth in Sentencing Act

[5]

Before Parliament enacted the
Truth in Sentencing Act
, courts
    typically gave offenders 2 for 1 and occasionally even 3 for 1 credit for time
    spent in pre-sentence custody.  This enhanced credit reflected the harshness of
    that period of detention because of the absence of remedial programs and the
    inapplicability of remission provisions to that period:
R. v. Wust
,
    2000 SCC 18, [2000] 1 S.C.R. 455, at para. 28.

[6]

The
Truth in Sentencing Act
took away the courts discretion to
    give 2 for 1 or even greater credit for pre-sentence custody.  Instead, the Act
    stipulates in s. 3(3) that though the court may take into account any time
    spent in custody, the court shall limit any credit for that time to a maximum
    of one day for each day spent in custody.

[7]

However, the Act does provide in s. 3(3.1) that, despite s. 3(3), the
    court may give enhanced credit to a maximum of one-and-a-half days for each day
    spent in custody, "if the circumstances justify it.

[8]

In this case, the appellant was beaten while in custody.  The trial
    judge held that the appellants beating coloured the balance of his time in
    custody and the quality of that time and his sense of security during that time
    in custody.  That circumstance standing alone justified the maximum credit
    permitted under s. 3(3.1): one-and-a-half days for each day the appellant spent
    in pre-sentence custody.

[9]

On this appeal, the critical provision of the Act is s. 5.  Section 5 states
    that the limits on credit for pre-sentence custody in the subsections enacted
    by s. 3 apply only to persons charged after the day on which those subsections
    come into force.  Those subsections came into force on February 22, 2010.  As
    is evident from the chronology to which I now turn, the appellant was charged
    after that date.

(3)

Relevant Chronology

[10]

The
    relevant dates and events are as follows:

February
    20-21, 2010:
The appellant commits the offences.

February 22, 2010:
Section 3 of the
Truth
    in Sentencing Act
comes into force.

March 11 or 12, 2010:
The appellant is arrested and
    charged with the offences.

November 10, 2010:
The appellant pleads guilty.

February 18, 2011:
The appellant is sentenced.

C.

analysis

[11]

This
    appeal is not about the wisdom of the
Truth in Sentencing Act
.
    Indeed, it is not even about the constitutionality of the Act: the appellant
    has not argued on appeal, and did not argue at trial, that s. 5 infringes s.
    11(i) of the
Canadian

Charter of Rights and Freedoms
.
    Section 11(i) provides that if the punishment for an offence has been varied
    between the time of commission of the offence and the time of sentencing, the
    person found guilty of the offence has the rightto the benefit of the lesser
    punishment.  That section plays no part in this appeal.

[12]

Therefore,
    this appeal turns solely on a question of statutory interpretation.  The
    question is whether the Act applies to an offenders sentence, where the
    offender committed the offences for which he was sentenced before the Act came
    into force, but was charged with those offences after the Act came into force.
    I would answer that question yes  the Act does apply.

[13]

Our
    courts have developed principles to determine when new legislation applies.
    One cardinal principle is that a person convicted of a criminal offence should ordinarily
    be sentenced under the provisions in place when the offence was committed:
R.
    v. Johnson,
2003 SCC 46, [2003] 2 S.C.R. 357, at para. 41.  This principle
    is but an example of the broader principle that legislation affecting
    substantive rights should be presumed not to apply retrospectively:
R. v.
    Dineley
, 2012 SCC 58, at para. 10.  The appellant relies on this
    presumption in arguing that s. 3 of the Act, which affects his substantive
    right to greater than 1.5 for 1 credit, should not be applied to his sentence
    for offences he committed before the Act came into force.

[14]

However,
    the presumption against retrospectivity can be displaced by a clear legislative
    intent that a provision is to apply retrospectively.  Where the statutory
    language carries that clear meaning, the presumption does not apply.  In her
    majority reasons in
R. v. Dineley
, at para. 10, Deschamps J. discussed
    the presumption and how it might be rebutted:

There are a number of rules of interpretation that can be
    helpful in identifying the situations to which new legislation applies. Because
    of the need for certainty as to the legal consequences that attach to past
    facts and conduct, courts have long recognized that the cases in which
    legislation has retrospective effect must be exceptional.  More
    specifically, where legislative provisions affect either vested or substantive
    rights, retrospectivity has been found to be undesirable.
New legislation that affects substantive rights will be
    presumed to have only prospective effect unless it is possible to discern a
    clear legislative intent that it is to apply retrospectively
. [Citations
    omitted; emphasis added].

[15]

Does
    s. 5 of the
Truth in Sentencing Act
show a clear legislative intent that
    the new restrictions on credit for pre-sentence custody in s. 3 are meant to
    apply restrospectively, to the sentencing of persons who committed an offence
    before the Act came into force but were charged after?

[16]

The
    Alberta Court of Appeal recently considered this same question in
R. v.
    Serdyuk
, 2012 ABCA 205.  The Court concluded, at para. 28, that Parliament
    did not intend the Act
In our view, it is clear that Parliament intended by s. 5 of
    the
Truth in Sentencing Act
to put beyond question that
only
persons who committed their crimes and were charged for them
after
the
    amended
Code
provisions came into force would be affected by the
    amendments. Neither official language version mentions the date of offence,
    but, as noted below, the absence of such reference is not an obvious exclusion.
    [Emphasis in original.]
[17]

I
    disagree.  Section 5 shows a clear parliamentary intent that the new provisions
    for credit for pre-sentence custody apply to persons, such as the appellant,
    who committed an offence before February 22, 2010, but were charged with the offence
    after that date.  I rest my submission on two grounds.
[18]

First,
    the starting rule of statutory interpretation is to examine the plain words
    Parliament used:
R. v. D.A.I.
, 2012 SCC 5, [2012] 1 S.C.R. 149, at
    para. 26.  If those words have a clear meaning and do not give rise to any
    ambiguity  that is, they are not reasonably capable of more than one meaning
    the court should give effect to those words.
[19]

The
    words of s. 5 are clear and admit of only one meaning.  The new provisions
    apply to the sentencing of all persons charged after the Act came into force,
    no matter when the offences were committed.  I agree with the respondent that to
    give effect to the appellants position, one would have to read into s. 5 the
    following underlined words:
[The new provisions], as enacted by s. 3, apply only to persons
    charged
with an offence committed
after the day on
    which those [provisions] come into force.
[20]

Parliament
    has to be taken to know the difference between the date an offence takes place
    and the date a person is charged with the offence.  To read in those underlined
    words would change Parliaments intent on the applicability of the
Truth in
    Sentencing Act
.  The trial judges interpretation of the Act is therefore
    consistent with the plain words of the statute.
[21]

Second,
    the words of a statute take their colour and their meaning from their context
    and the Acts purpose:
Canada (Information Commissioner) v. Canada
    (Minister of National Defence)
, 2011 SCC 25, [2011] 2 S.C.R. 306, at para.
    27.
[22]

One
    obvious purpose of the
Truth in Sentencing Act
is to reduce the credit
    available for the population of offenders detained before sentencing. The
    triggering date for detention before sentencing is the date the person is
    charged and held pending a bail hearing.  The date a person commits an offence
    is of no relevance to this purpose of the
Truth in Sentencing Act
.
    Thus, the appellants interpretation of s. 5 is at odds with the statutes
    purpose.  The trial judges interpretation that the Act applies to the
    appellant because he was charged after it came into force is consistent with
    the statutes purpose.
[23]

For
    these reasons, I agree with the trial judge and would dismiss the appeal.
D.

conclusion
[24]

The
Truth in Sentencing Act
governs the credit to be given to the
    appellant for his pre-sentence custody.  I would grant leave to appeal
    sentence, but would dismiss the appeal.
Released: Jan. 11, 2013                               John
    Laskin J.A.
JL                                                                     I
    agree S.T. Goudge J.A.
I
    agree E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Delacruz, 2013 ONCA 61

DATE: 20130130

DOCKET: C52656

Doherty, Simmons and Tulloch JJ.A.

Her Majesty the Queen

Respondent

and

Paul Delacruz

Appellant

Paul Aubin, for the appellant

Grace Choi, for the respondent

Heard:  January 29, 2013

On appeal from the conviction entered by a jury presided
    over by Justice D.F. Baltman of the Superior Court of Justice, dated December
    9, 2009 and the sentence imposed on June 7, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the reasons of the trial judge on the meaning of the
    word report in s. 140(1)(c).  Those reasons are reported at (2009), 249
    C.C.C. (3d) 501:  see in particular paras. 15-22.

[2]

The two authorities referred to by the appellant turn on the findings on
    intent made by the trial judges in those cases.  To the extent that they
    suggest the report must be made to a police officer, we disagree with those
    authorities:  see
R. v. Duguay
, [1979] O.J. 4610 (Ont. Prov. Ct.);
R.
    v. McQuarrie
, [1992] M.J. No. 72 (Prov. Ct.)

[3]

There was ample evidence upon which the jury could conclude beyond a
    reasonable doubt that the appellant intended to mislead the police when he made
    the false allegations of serious criminal conduct to the Childrens Aid Society.

[4]

The instruction on the burden of proof was correct.  The fact that it
    could have been put another way is of no consequence.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dwyer, 2013
    ONCA 34

DATE: 20130122

DOCKET: C54727 & C54734

Rosenberg, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Appellant

and

Beverley Dwyer

Appellant/Respondent

Ryan Clements, for Beverley Dwyer

Melissa Adams, for the Crown

Heard: September 7, 2012

On appeal from the conviction entered by Justice Faye E.
    McWatt of the Superior Court of Justice, sitting without a jury, on July 15,
    2011, and from the sentence imposed on November 15, 2011, with reasons reported
    at 2011 ONSC 6555.

Rosenberg J.A.:

[1]

The appellant Beverley Dwyer was convicted by McWatt J. of fraud over
    $5,000 and four counts of using a forged document. She appeals from the forgery
    convictions on the basis that they offend the rule against multiple
    convictions, articulated in
R. v. Kienapple
, [1975] 1 S.C.R. 729. She
    also appeals from the sentence of three and one-half years imprisonment. The
    Crown appeals from the refusal of the trial judge to order a fine in lieu of
    forfeiture pursuant to s. 462.37(3) of the
Criminal Code
. For the
    following reasons, I would dismiss the appeals. In these reasons, I refer to
    Ms. Dwyer as the appellant, even where she is the respondent on the Crown
    appeal.

FACTS

[2]

For the purposes of these reasons, the facts may be summarized as
    follows.

[3]

The appellant, who had experience as a tax preparer and mortgage broker,
    obtained control of various pieces of identification belonging to her
    half-sister, Pauline Barnes. During the relevant time, Ms. Barnes lived in the
    United States and would occasionally return to Ontario. The fraud relates to
    the family home where the appellant, her mother, Pauline Barness daughter and
    other family members lived. The home was in the name of the appellant, her
    mother and Pauline Barness daughter.

[4]

In August 2005, the appellant approached Ms. Barnes to help her
    refinance the family home. She convinced Ms. Barnes to let her use her name on
    the mortgage application. Over the next few weeks, the appellant presented
    various false documents, some of which were the subject of the using-forged-documents
    charges, to a representative of the Royal Bank of Canada to obtain the
    mortgage. The bank gave a mortgage for $663,750. These funds were paid into the
    trust account of a lawyer, Mr. Atuobi-Danso. When the bank learned of the fraud
    it was able to recover over $400,000 from various sources. Ms. Barnes was criminally
    charged in relation to the fraud.  Those charges were eventually withdrawn. The
    trial judge found that Ms. Barnes was an innocent dupe. Mr. Atuobi-Danso was disciplined
    by the Law Society of Upper Canada for his involvement in the transactions.

The Conviction Appeal

[5]

The appellant submits that the convictions for forgery should be stayed
    in accordance with the rule in
Kienapple.
The appellant submits that
    the use of the forged documents was the means by which the fraud was committed
    and accordingly, it was a single transaction.  The charges involved are: one
    count of fraud over $5,000 where the victim is the Royal Bank of Canada; and
    four counts of using a forged document (a 2003 Revenue Canada Notice of
    Assessment, a forged 2003 Revenue Canada Tax Return, a forged 2004 Revenue
    Canada Notice of Assessment, and a forged 2004 Revenue Canada Tax Return).
    These documents related to Pauline Barnes and had been forged to show that Ms.
    Barnes had employment income of over $200,000. In fact, Ms. Barnes never made
    more than $23,000 per year. These documents, along with various other false
    documents, were presented to a representative of the bank to support the
    application for a mortgage to refinance the house where the appellant, her
    mother and various other family members lived.

[6]

In my view, the
Kienapple
rule does not apply.  The rule
    precludes multiple convictions for different offences where there is both a
    factual and legal nexus connecting the offences. While there is a close factual
    nexus, the legal nexus is missing. The fraud charge and the charges of using
    forged documents have different elements and describe different criminal wrongs:
    see
R. v. R.K.
(2005), 198 C.C.C. (3d) 232 (Ont. C.A.), at paras.
    27-40; and
R. v. Prince
, [1986] 2 S.C.R. 480, at pp. 493-96. I would
    dismiss the appeal from conviction.

The Appellants Sentence Appeal

[7]

The trial judge sentenced the appellant to three and one-half years
    imprisonment.  The appellant submits that the trial judge erred in principle in
    several respects. The first alleged error concerns material the Crown filed at
    the sentence hearing. The Crown filed the reasons in three separate discipline
    cases before the Law Society of Upper Canada in which the appellant was
    referenced as having dealings with each of the lawyers involved. The
    appellants role in the transactions is unclear. In her reasons for sentence,
    the trial judge made reference to those proceedings in the following terms:

Although Ms. Dwyer is not the subject of any of these hearings
    nor took part as a party in them, her involvement in transactions which the
    Society found to be fraudulent and deserving of discipline against each of the
    three lawyers is of concern. That is especially so because the cases set out
    some starkly similar facts to the features of the case before me.

[8]

I agree with the appellant that this information should not have been
    presented in the form that it was and that the trial judge should have ignored
    it. These other alleged bad acts and uncharged transactions were never proved
    beyond a reasonable doubt as required by s. 724(3)(e): see
R. v. Angelillo
,
    2006 SCC 55, [2006] 2 S.C.R. 728, at para. 32. The trial judge should not have
    taken this material into consideration. However, as her reasons show, the trial
    judge did take this material into account.

[9]

The appellant also submits that the trial judge erred in finding that
    the appellant committed a breach of trust. The trial judge found that the
    appellant abused Ms. Barness trust while safe-keeping her identity cards and
    then in the fraudulent use of her social insurance number, which she had from
    preparing Ms. Barness tax returns in prior years. The trial judge also stated
    that the appellant had abused the public trust given to her as a tax preparer
    and mortgage broker.

[10]

In
    my view, the trial judge did not err in her characterization of the offences
    and the appellants history. As the trial judge noted earlier in her reasons,
    the appellant had been previously convicted of 17 counts of false reporting of
    inflated expenses and two counts of tax evasion in her tax preparing business.
    On appeal from conviction and sentence respecting those convictions, the
    summary appeal court judge described the offences as a breach of the public
    trust. It was also fair to characterize the appellants dealings with Ms.
    Barnes as a form of breach of trust. The evidence shows that Ms. Barnes and the
    other members of the appellants family relied upon the appellant in respect of
    financial dealings. It was because they trusted her that the appellant was able
    to place the mortgage on the family home and defraud the bank of over $600,000.

[11]

The
    appellant further submits that the trial judge erred in treating the
    appellants failure to make restitution as an aggravating factor. I agree with
    that submission. The appellant did not have the advantage of having made
    restitution as a mitigating factor, but that did not make the offence more
    serious. The objective gravity of the offence lay in the manner in which the
    appellant fraudulently obtained the mortgage.

[12]

Given
    the errors in principle in the use of the Law Society proceedings and the
    mischaracterization of the failure to make restitution, it falls to this court
    to determine a fit sentence without deference to the trial judges decision. In
    my view, the sentence of three and one-half years imprisonment was fit. As I
    have noted, the appellant did commit a breach of trust. She used her access to
    documents and information that had been entrusted to her to obtain the
    mortgage. She abused the trust that her mother and other members of her family
    placed in her with respect to financial dealings. Her actions led to Ms.
    Barnes, her half-sister, being criminally charged. As a result of the fraud,
    the family lost its home. Remarkably, this was not the first time the appellant
    had dishonestly dealt with the home. In 1995, when her mother was out of the
    country, the appellant put the family home up for sale without her mothers
    knowledge.

[13]

The
    appellant was a mature offender with a history of dishonesty. In addition to
    the prior income tax offences, she had been previously convicted of furnishing
    false information to the Superintendent under the
Mortgage Brokers Act
,
    R.S.O. 1990, c. M.39. Given the size of the fraud in this case and its impact
    on the victims, I am of the view that the sentence was fit.

[14]

Accordingly,
    while I would grant leave to appeal sentence, I would dismiss the appellants
    appeal from sentence.

The Crowns Sentence Appeal

[15]

Section
    462.37 of the
Criminal Code
provides for the forfeiture of the
    proceeds of crime where an offender is convicted of a designated offence. Fraud
    over $5,000 is a designated offence: s. 462.3(1). Section 462.37 also provides
    for a fine in lieu of forfeiture pursuant to subsection (3) if the court is
    satisfied that a forfeiture order should be made in respect of any property but
    that property or any part of it cannot be made subject to an order. Subsection
    (4) requires the court to impose a term of imprisonment in default of payment
    of the fine, the length of the term depending on the amount of the fine.

[16]

The
    evidence showed that the Royal Bank of Canada was defrauded of $633,750. Once
    it learned of the fraud, the bank was able to recover $426,049 by the freezing
    of bank accounts, the repayment of funds from payees and civil actions. The
    details as to how and from whom the bank recovered these funds were not
    disclosed during the sentence proceedings.  This left $207,700 outstanding. The
    Crown sought a fine in lieu of forfeiture in that amount.
[1]
There is no question that a forfeiture order could not be made in respect of
    this amount since neither the bank nor the police were able to trace those
    funds.

[17]

The
    trial judge gave the following reasons for refusing to make the order for a
    fine in lieu of forfeiture:

As much as it would be appropriate in the circumstances of this
    case, I cannot see that the provisions of sections 462.37(1), (3) and (4) of
    the
Criminal Code
relating to forfeiture of proceeds of crime are
    practical.  If I were to impose a fine in lieu of of forfeiture, that fine must
    be $207,700 [
R. v. Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392], and as
    much as I believe that the defendant still has much of that money, section
    462.37(4)(v) of the
Criminal Code
would necessitate that a two to three
    year jail sentence be imposed in default of payment of the fine.

During the sentencing hearing, the defendant asserted, through
    counsel, that she is unable to pay a fine, but adduced no evidence to support
    that assertion.  She has blatantly avoided the issue of where the $207,700 is
    now and I conclude as a result of that that they are in her possession.

The three and a half year period of incarceration is sufficient
    in light of the outstanding funds received and kept by the defendant.

[18]

As
    the trial judge recognized, the leading decision on the interpretation and
    application of s. 462.37(3) and (4) is the Supreme Court of Canadas decision
    in
R. v. Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392. However, in my
    view, the trial judge erred in her interpretation of s. 462.37(3). In
Lavigne,
the court held that a trial judge has only a limited discretion to refuse to
    make an order for a fine in lieu of forfeiture where the pre-requisites for
    making the order have been made out. In this case, the trial judge refused to
    order a fine in lieu of forfeiture because it was her view that the three-and-one-half-year
    sentence was sufficient. In other words, since the principles of sentencing would
    be satisfied by the three-and-one-half-year prison sentence, that sentence
    would be a sufficient punishment.  However, that basis for refusing to order a
    fine in lieu of forfeiture was rejected by the Supreme Court in
Lavigne
,
    at paras. 25-26:

The
amicus curiae
argues that the effect of imposing a
    fine without regard to the general principles of sentencing is to punish the
    offender twice. What that argument fails to consider is that those principles
    are not all disregarded and that a fine instead of forfeiture is seen as a
    separate component of the sentence.
While such an order is technically part
    of the sentence, it is nevertheless distinguished by the fact that its purpose
    is to replace the proceeds of crime. It is not regarded as punishment
    specifically for the designated offence.

The actual objective of Part XII.2 is to deal with the proceeds
    of crime separately from, and in addition to, the punishment for committing a
    crime. The fine imposed in this instance has some special features: there are
    specific rules for imprisonment in default of payment (s. 462.37(4) and (5)).
    The fine or imprisonment imposed as the primary sentence punishes the
    commission of the designated offence, while forfeiture or a fine instead of
    forfeiture deprives the offender of the proceeds of his or her crime and deters
    potential offenders and accomplices. [Emphasis added.]

[19]

Further,
    to the extent that the trial judge may have not imposed a fine in lieu of
    forfeiture because the appellant did not have an ability to pay the fine, that
    was not an appropriate consideration, as the court in
Lavigne
made clear,
    at para. 37:

Given the clear objective, the fact that the words are equally
    clear, and the counter‑productive effects of taking ability to pay into
    consideration, I conclude that the court may not take ability to pay into
    account in determining the amount of the fine to be imposed instead of
    forfeiture.

The ability to pay is only a factor in considering how
    much time the offender should be given to pay the fine:
Lavigne,
at
    paras. 47-48.

[20]

Given
    the trial judges errors, it falls to this court to determine whether a fine in
    lieu of forfeiture should be imposed and, if so, the terms for payment. This
    court has no power to remit the question of sentence to the trial judge:
R.
    v. Kakekagamick
(2006), 81 O.R. (3d) 664 (C.A.), at para. 60.

[21]

The
    appellant submits that the order should not be made because the Crown failed to
    establish that the missing funds were property of an offender. This
    submission turns on the interpretation of ss. 462.37, 462.3 and 2 of the
Criminal
    Code
. A pre-requisite to imposing a fine in lieu of forfeiture is that an
    order of forfeiture under s. 462.37(1) should be made. A pre-requisite to
    making a forfeiture order is that the court is satisfied on a balance of
    probabilities that any property is proceeds of crime and that the designated
    offence was committed in relation to that property. Proceeds of crime is
    broadly defined in s. 462.3(1) as any property, benefit or advantage, within
    or outside Canada, obtained or derived directly or indirectly as a result of (
a
)
    the commission in Canada of a designated offence.

[22]

As
    is made clear in para. 12 of
Lavigne
, the term property in these
    sections has the meaning set out in s. 2:

(a) real and personal property of every description and deeds
    and instruments relating to or evidencing the title or right to property, or
    giving a right to recover or receive money or goods,

(b) property originally in the possession or under the control
    of any person, and any property into or for which it has been converted or
    exchanged and anything acquired at any time by the conversion or exchange,

[23]

The
    part of the definition that applies in this case is para. (b), being property
    originally in the possession or under the control of any person. I accept that
    the Crown proved that the designated offence of fraud was committed in relation
    to the entire $633,750. The difficulty is that the Crown failed to prove that
    the entire amount was originally in the possession or under the control of the
    appellant.

[24]

In
    my view, an order for a fine in lieu of forfeiture can be made under s.
    462.37(3) only where the offender has possession or control of the property in
    question or at least had possession of the property at some point. This
    conclusion flows from the use of the phrase any property of an offender in s.
    462.37(3) and the definition of property in s. 2. Such an interpretation is
    consistent with the objectives of s. 462.37, which are to deprive offenders of
    the proceeds of crime and ensure that they do not benefit from those proceeds:
    see
R. v. Appleby
, 2009 NLCA 6, 242 C.C.C. (3d) 229, at paras. 26,
    32-33. Those objectives would not be furthered by making orders in relation to
    property that was never in the possession of the offender, over which the
    offender never had control and from which the offender did not benefit: see
    also
R. v. Mackenzie
, [2002] O.J. No. 2512 (C.J.).

[25]

The
    decision to order a fine in lieu of forfeiture must be based on the evidence.
    As the court in
Lavigne
said, at para. 35:

The fine, as that provision [s. 462.37(3)] says, is equal to
    the value of the property. Further, equivalency between the value of the
    property and the amount of the fine is inherent in the words instead of. The
    fine takes the place of forfeiture. For the substitution to be genuine, the
    value must be equal.
The courts discretion applies both to the decision
    whether or not to impose a fine and to the determination of the value of the
    property. It must be exercised in light of the evidence
, and once this
    process has been completed, the court may not take the offenders ability to
    pay into consideration as a basis for deciding either to impose no fine or to
    reduce the amount of the fine. [Emphasis added.]

[26]

In
    her reasons, the trial judge stated: I believe that the defendant still has
    much of that money; and She has blatantly avoided the issue of where the
    $207,700 is now and I conclude, as a result of that, that they are in her
    possession. The trial judge did not, however, identify any of the evidence
    upon which those findings were based and, in my view, that finding is not
    supported by the evidence. In argument before this court, Crown counsel could
    point to only one item in the record that showed the appellant had control of
    the missing funds.  This is a direction to the lawyer, Mr. Atuobi-Danso, to pay
    out certain of the proceeds. It is a reasonable inference that this document
    was authored by the appellant and is some evidence of her control of the funds
    referred to in the direction. However, this document and the other supporting
    documents, such as cheques, only account for $436,756.38. There is no
    explanation for the remaining funds and thus no evidence that the appellant ever
    had control of the missing funds. Crown counsel at trial conceded in her
    submissions that it was difficult to trace the funds. For example, in respect
    of where the funds went, she told the judge that all of that would be
    speculative. The Crown made no attempt to identify the missing funds, so as to
    show they were the funds referred to in the direction and had not been
    recovered by the Bank. At its highest the evidence shows that the appellant had
    control of $10,700 more than the Bank recovered. I would therefore allow the
    Crown appeal only to the extent of ordering that the appellant pay a fine of
    $10,700. In default of payment the appellant is sentenced to a term of 6 months
    imprisonment consecutive pursuant to s. 462.37(4)(a)(ii) and (b) of the
Criminal
    Code
.

[27]

In
    my view, given the Crowns failure to prove even on a balance of probabilities
    that the appellant had possession or control of the missing funds, I can see no
    basis for making the order for a fine in lieu of forfeiture except as stated
    above.

DISPOSITION

[28]

Accordingly,
    I would dismiss the appellants conviction appeal. I would grant leave to appeal
    sentence to both the appellant and the Crown. I would dismiss the appellants sentence
    appeal. I would allow the sentence appeal by the Crown and impose a fine of
    $10,700 in lieu of forfeiture. In default of payment I would impose a sentence
    of 6 months imprisonment consecutive to the sentence of three and one-half
    years imprisonment.

Released: MR January 22, 2013

M.
    Rosenberg J.A.

I
    agree R.A. Blair J.A.

I
    agree Paul Rouleau J.A.

[1]
The bank was able to recover a further $183,900 from Mr.
    Atuobi-Dansos insurer.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Evon, 2013
    ONCA 10

DATE: 20130110

DOCKET: C53923

Laskin, LaForme and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Joseph Evon

Appellant

Gary J. Grill and Kendra Jean Stanyon, for the appellant

Christopher G. Walsh, for the respondent

Heard: January 7, 2013

On appeal from the conviction entered on February 4, 2011
    and the sentence imposed on August 2, 2011 by Justice Scott K. Campbell of the Superior
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge found that the police had justifiable grounds to search
    the house.  The appellants main argument amounted to an attack on this finding
    of fact.  However, the trial judges finding was amply supported by the
    evidence.  That evidence included the specificity of the 911 call, the
    confirmation of that call, the appellants reputation with the police, and most
    important, the officers evidence, which the trial judge accepted.

[2]

Accordingly, we are not persuaded of any basis to interfere with this
    finding.  That the trial judge did not refer to all pieces of evidence that
    might have supported the appellants position is not a basis of appellate
    intervention.

[3]

The appellants second ground of appeal concerns the search conducted by
    Constable DeGraaf.  We accept that in examining the package he exceeded his
    authority under
Waterfield
.  However, nothing turns on his having done
    so.   The plain view observations of Constable Ing supported the issuance of
    the telewarrant.

[4]

Accordingly, the conviction appeal is dismissed.

[5]

On the sentence appeal, in our view, the forfeiture order was
    reasonable.  The appellant does not challenge the length of his sentence.

[6]

Accordingly, the sentence appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Fagan, 2013 ONCA
    32

DATE: 20130121

DOCKET: C53233

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Colleen Fagan

Appellant

David Russell, for the appellant

Karen Shai, for the respondent

Heard and released orally: January 17, 2013

On appeal from the conviction entered on May 13, 2010 and
    the sentence imposed on August 12, 2010 by Justice Peter H. Howden of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of two counts of fraud  one relating to an
    elderly man, William McCormack, and the other relating to the Department of
    Veterans Affairs (DVA)  and one count of theft  relating to Mr. McCormack
    by Howden J. of the Superior Court of Justice on May 13, 2010.

[2]

On August 12, 2010, the trial judge imposed a custodial sentence of 20
    months, plus two years of probation, and a restitution order of $125,000 in
    favour of the estate of Mr. McCormack and $13,994 in favour of the DVA. One of
    the terms of probation requires the appellant to commence restitution payments
    of $50 per month within six months after her release and continue payments of
    $100 per month throughout the second year of probation.

[3]

The appellant appeals her convictions on the two counts relating to Mr.
    McCormack. She also appeals the restitution component of her sentence,
    including its linkage with the probation order.

[4]

The appellant lived in Mr. McCormacks home as a caregiver from 2002 to
    2007.  In 2002, she was 44 and he was 78 years old. Starting almost immediately
    after her arrival, the appellant began withdrawing large sums of money from Mr.
    McCormacks bank account. From 2003 to 2006, she withdrew about $180,000. This
    was more than Mr. McCormacks pension income and far more than his modest
    living expenses.

[5]

The Crown position at trial was that the appellant exercised almost
    complete control over an elderly, vulnerable man and defrauded and stole a
    substantial amount of money from him.

[6]

The defences principal position at trial (the appellant did not
    testify) was that the appellant did not withdraw the subject money; someone
    else did. Her secondary position was that, if she did obtain the money, it was
    because Mr. McCormack was both capable and generous and chose to reward her for
    her excellent services as a caregiver.

[7]

On appeal, the appellant abandons her principal position. However, she
    asserts that the trial judge reasoned in a speculative fashion and improperly
    reached the conclusion that the appellant lost his independence over time and
    came under the control of the appellant.

[8]

We do not accept this submission. The appellants argument on this issue
    is essentially an exhortation that we re-try the case. In our view, the trial
    judge carefully reviewed the evidence of family, friends and professional
    people closely involved with Mr. McCormack and came to the conclusion that the
    appellant abused her position to gain control over him and then defraud and
    steal, on many occasions over a five year period, his assets.

[9]

The appellant also submits that the trial judge reached an unreasonable
    verdict. Her argument on this issue traverses the same evidentiary terrain as
    her first submission. In our view, the trial judges decision was entirely
    reasonable.

[10]

Finally,
    the appellant contends that the trial judge erred by imposing a restitution
    order and imposing a term of probation requiring the appellant to make monthly
    payments. In particular, the appellant asserts that the trial judge failed to
    take account of her ability to pay a substantial restitution order, especially
    with payments scheduled to start soon after her release from jail.

[11]

We
    disagree. The appellant took a great deal of money from a vulnerable elderly
    man and blatantly defrauded money from the DVA. A restitution order in favour of
    these victims was entirely appropriate. Implicitly, in fixing a quantum of
    restitution well below the amount defrauded and stolen and, especially, by choosing
    very low payments linked to 18 months of a two year probation order, the trial
    judge was clearly factoring in the appellants ability to pay. It needs to be
    recalled that the appellant has offered no explanation of what happened to the
    money in the period from her theft/fraud to the charges being laid.

[12]

The
    appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Hajivasilis, 2013 ONCA 27

DATE:  20130121

DOCKET: C55233

OConnor A.C.J.O., Doherty, Sharpe, Epstein JJ.A.
    and Cavarzan J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Ioannis Hajivasilis

Respondent

Matthew Asma, for the appellant

Ioannis Hajivasilis, acting in person

Adam Little, appearing as
amicus curiae

Heard:  October 25, 2012

On appeal from the order of Justice Cathy Mocha of the
    Ontario Court of Justice, dated January 23, 2012, with reasons reported at 2012
    ONCJ 110, dismissing an appeal of the order of Justice of the Peace Angelo
    Cremisio of the Ontario Court of Justice, dated June 17, 2009, with reasons
    reported at 2009 ONCJ 310.

Doherty J.A.:

I

overview

[1]

In
Shah v. Becamon
, 2009 ONCA 113, 94 O.R. (3d) 297, this court
    held that the graduated licence scheme set out in the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8 (
HTA
 or the
Act
) applied only to the
    operation of a motor vehicle on a highway as defined in the
HTA
.  The
    court further held that the shopping plaza parking lot where the accident
    occurred was not a highway within the definition in the
HTA
.  No one
    questions the correctness of either holding.

[2]

In
Shah
, the court went on in
obiter dicta
, at para.
    23, to hold the entire
HTA
, including the graduated licence system,
    is limited to highways.  In this case, counsel for the Crown (the appellant)
    submits that this
obiter
is wrong
    insofar as it limits the operation of the entire
HTA

to only highways.  Counsel contends that
    highway is a defined term in the
HTA
that appears in many, but not all, provisions of the
HTA
.  He submits that the definition of highway cannot
    be read into the sections of the
HTA
that do not use the word highway or some other
    word that incorporates the definition of highway.
Specifically,
    counsel submits that the accident reporting requirement in s. 199 makes no
    reference to highway and applies even when the accident triggering the
    reporting requirement occurs on property that does not fall within the meaning
    of highway.

[3]

Counsel appointed as
amicus
,
    however,
submits that the
obite
r in
Shah
is
    correct.  He contends that the purpose and object of the
HTA
is the
    protection of persons using public roadways and that the reach of the
HTA
has been limited to highways in various contexts by this court.  In support
    of his argument, counsel points to the difference between the
HTA
and
    corresponding legislation in many other provinces, which, unlike the
HTA
,
    does not restrict the meaning of the word highway by reference to public
    access and use.  Counsel submits that the
obiter
in
Shah
is
    consistent with the more limited definition of highway used in the
HTA
.

[4]

I agree with the position advanced by the appellant.  I would hold that
    the
obiter
in
Shah
limiting the operation of the entire
HTA
 to highways is wrong
and should not
    be followed.  Many provisions of the
HTA
are by their terms limited to
    highways.  Other provisions, however, are not so limited.  Nothing in the
    overall structure of the
HTA
or its purpose compels the reading of the
    word highway into sections in which it does not appear.  Section 199 is one such
    section.  I would hold that the reporting requirement in s. 199 generally applies
    even if the accident does not occur on a highway as defined in the
HTA
.

II

background

[5]

The prosecution alleged that Mr. Hajivasilis (the respondent) backed
    his vehicle into a car parked in a supermarket parking lot.  According to the
    prosecution, even though there was substantial damage to the parked vehicle,
    the respondent drove away.  He was charged with failing to report the accident
    as required by s. 199(1) of the
HTA
.
[1]
That section provides
:

Every person in charge of a motor vehicle or street car who is
    directly or indirectly involved in an accident shall, if the accident results
    in personal injuries or in damage to property apparently exceeding an amount
    prescribed by regulation, report the accident forthwith to the nearest police
    officer and furnish him or her with the information concerning the accident as
    may be required by the officer under subsection (3).

[6]

The Justice of the Peace, after noting that the accident had occurred on
    private property in a parking lot, raised the issue of the applicability of s.
    199.  He referred counsel to the then recent decision in
Shah
.  Ultimately,
    the Justice of the Peace, relying on
Shah
, dismissed the charge and
    held that s. 199 did not apply to an accident that occurred on property that
    did not fall within the definition of highway in the
HTA
:
R. v.
    Hajivasilis
, 2009 ONCJ 310.  He did not address the merits of the
    allegation.

[7]

On appeal, Mocha J., of the Ontario Court of Justice, held that the
    Justice of the Peace had correctly followed the
obiter dicta
in
Shah
:
R. v. Hajivasilis
, 2012 ONCJ 110.  She did the same and dismissed the
    appeal, observing at para. 22 that:

If the decision in
Shah
needs further clarification,
    it must occur at the Court of Appeal, not here.

[8]

Rouleau J.A. granted leave to appeal from that decision.  As the appeal
    squarely raised the correctness of the
obiter dicta
in
Shah
,
    a five-judge panel was constituted to hear the appeal.

III

the statutory interpretation problem

[9]

The
HTA
defines highway as follows:

highway includes a common and public highway, street, avenue,
    parkway, driveway, square, place, bridge, viaduct or trestle,
any part of which is intended for or used by the general public
    for the passage of vehicles
and includes the area between the lateral
    property lines thereof[.]  [Emphasis added.]

[10]

The
    phrase intended for or used by the general public for the passage of vehicles
    limits the meaning of highway.  If a vehicle is being driven on property to
    which the general public does not have access or if that access is for a
    limited purpose other than passage (such as parking), the property will not
    fall within the meaning of highway.  Most privately owned parking lots are
    not highways as defined in the
HTA
: see
R. v. Mansour
,
    [1979] 2 S.C.R. 916;
Gill v. Elwood
, [1970] 2 O.R. 59 (C.A.); and
Sked
    v. Henry
(1991)
, 28 M.V.R.
    (2d) 234 (Ont. Gen. Div.).  It is accepted that the parking lot where the
    respondent allegedly struck the parked vehicle does not fall within the meaning
    of highway in the
HTA
.

[11]

The
    word highway appears repeatedly in the
HTA
, especially in offence-creating
    provisions.  For example, s. 32(9) prohibits a person from driving a motor
    vehicle on a highway in contravention of the terms of his or her drivers
    licence.  That section clearly has application only when the driving occurs on
    property that falls within the meaning of highway.  A person driving without
    a licence on property that is not intended for or used by the general public
    for the passage of vehicles is not in violation of s. 32(9).

[12]

Other
    words used in the
HTA
are defined using the word highway.  In doing
    so, those words arguably incorporate within their definition the limitation
    found in the definition of highway.
[2]
Driver and roadway are two examples.  According to s. 1(1) of the
HTA
:

driver means a person who drives a vehicle on a highway;

roadway means the part of the highway that is improved,
    designed or ordinarily used for vehicular traffic, but does not include the
    shoulder, and, where a highway includes two or more separate roadways, the term
    roadway refers to any one roadway separately and not to all of the roadways
    collectively[.]

[13]

Thus,
    for example, s. 48, which allows a police officer to require the driver of a
    motor vehicle to stop for a specified reason, arguably has application only on
    highways as defined in the
HTA
since, by definition, driver means a
    person who drives a vehicle on a highway.  A person driving a motor vehicle on
    a private parking lot is at least arguably not a driver for the purposes of the
HTA
.

[14]

Section
    199 does not use the word highway or any word that incorporates the word highway
    in its statutory definition.  The question of statutory interpretation raised on
    this appeal can be put in these terms:

Is s. 199 of the
HTA
, which does not use the word highway, subject
    to the same limitation found in the definition of highway such that s. 199
    applies only when the accident occurs on property intended for or used by the general
    public for the passage of vehicles?

[15]

The
obiter
in
Shah
answers yes.  I say no.

IV

IS
SHA
h
BINDING?

[16]

In
Shah
, the insurer denied coverage claiming that the
    driver at the time of the accident was operating the vehicle alone in contravention
    of the terms of her graduated licence that required her to be accompanied by a
    licenced driver.  The insurer argued that as the driver was not authorized by
    law to operate the vehicle at the time of the accident, the terms of the applicable
    standard contract of automobile insurance had been breached thereby taking the
    insurer off coverage.

[17]

The trial judge rejected
    the insurers argument.  He held that as the accident had not occurred on a
    highway as defined in the
HTA
, the licensing provisions under the
Act
did not apply.  The driver was therefore not in
    breach of the terms of her licence when she was operating the motor vehicle in
    the parking lot.

[18]

This court upheld the
    trial judges ruling.  The court rejected arguments that the parking lot was a
    highway for the purposes of the
HTA
.  The court also rejected the argument that the
    licensing provisions should, as a matter of policy, be read so that drivers
    were not on or off coverage depending on the exact location of an accident.  In
    rejecting this argument the court stated, at para. 35:

The legislature has struck
    the balance explicitly  the graduated licensing scheme applies to the operation
    of a motor vehicle on a highway.  Indeed, not surprisingly, the entire
HTA
applies to what its title foreshadows, highways.
[3]

[19]

No one questions the
    courts analysis in
Shah
of the scope of the graduated licensing provisions in the
HTA
or their interaction with the relevant statutory
    condition in the applicable automobile insurance policy.  The appellant does
    contend, however, that the last statement in the above-quoted passage, which purports
    in a single terse statement to describe the reach of some 200 provisions in the
HTA
, is not binding or
    even persuasive and should not be applied.

[20]

R. v. Henry
,
    2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57, makes the point that lower
    courts are bound not only by the
ratio decidendi
of decisions from higher courts, but also by some
obiter
    dicta
.  Binnie J. stated:

The issue in each case, to
    return to the Halsbury question, is what did the case decide?  Beyond the
ratio
    decidendi
which, as the Earl of
    Halsbury L.C. pointed out, is generally rooted in the facts, the legal point
    decided by this Court may be as narrow as the jury instruction at issue in
Sellars
or as broad as the
Oakes
test.
All
obiter
do not have, and are not intended to have, the same weight.  The weight
    decreases as one moves from the dispositive
ratio decidendi
to a wider
    circle of analysis which is obviously intended for guidance and which should be
    accepted as authoritative
.  Beyond that, there will be commentary,
    examples or exposition that are intended to be helpful and may be found to be
    persuasive, but are certainly not binding in the sense that
Sellars
principle in its most exaggerated form would have it.  The objective of the
    exercise is to promote certainty in the law, not to stifle its growth and
    creativity.
The notion that each phrase in a judgment of
    this Court should be treated as if enacted in a statute is not supported by the
    cases and is inconsistent with the basic fundamental principle that the common
    law develops by experience
.  [Emphasis added.]

[21]

The
    challenged
obiter
in
Shah
does not fall within the wide circle
    of analysis described in
Henry
.  That
obiter
reaches well
    beyond the specific issue raised in
Shah
.  It plays no role in the
    reasoning of the court necessary to decide the specific issue before it.  Nor
    is there any analysis, beyond a reference to the title of the legislation, to any
    of the provisions of the
HTA
other than those concerned with the
    graduated licensing scheme.  With respect, the bald assertion that no part of
    the
HTA
reaches beyond highways does not reflect a full consideration
    of the entirety of the
Act
or the implications of limiting the entire
    act to highways as defined in the
Act
.  It is not the kind of
obiter
that should be regarded as authoritative: see Glanville Williams,
Learning
    the Law
, 7th ed. (London: Steven & Sons, 1963) at pp. 82-84.

[22]

As
    the
obiter
in
Shah
does not resolve the question of whether
    s. 199 applies to accidents that do not occur on the highway, it is necessary
    to engage in a full interpretive analysis.  The
obiter
in
Shah
does not assist in that process.

V

the interpretation of section 199 of the
HTA

A.

the statutory language and context

[23]

Professor Driedgers oft-repeated modern principle of statutory
    interpretation begins with the words of the relevant provision, but recognizes
    that those words take their meaning from the context in which they are used: Elmer
    A. Driedger,
Construction of Statutes
, 2d ed. (Toronto: Butterworths,
    1983) at p. 87.  Context can be multi-layered, extending outward from the
    provision in issue to other related statutory provisions, the statute as a
    whole, related statutes and the relevant
Interpretation Act
.  Context
    also includes applicable legal norms and the purpose or intent of the
    legislation: see
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC 42,
    [2002] 2 S.C.R. 559, at paras. 26-30; Ruth Sullivan,
Sullivan on the
    Construction of Statutes
, 5th ed. (Markham: LexisNexis Canada Inc., 2008)
    at pp. 353-58.

[24]

Before
    proceeding with my application of the modern principle to s. 199, I note that
    the predecessor section to s. 199 was considered in
R. v. Berg
(1956),
    116 C.C.C. 204 (Ont. Co. Ct.).  In a thorough and careful judgment, Kinnear Co.
    Ct. J., after an analysis that fits easily within the modern principle
    approach to statutory interpretation, concluded that the reporting requirement
    applied whether the accident occurred on or off a highway.  I have borrowed
    liberally from his reasons in my analysis of s. 199.
[4]

(i)

Section 199

[25]

I
    begin my examination of the statute with the language of s. 199(1).  For ease of
    reference, I repeat the relevant part of the section:

Every person in charge of a motor vehicle  who is directly or
    indirectly involved in an accident shall, if the accident results in personal
    injuries or in damage to property apparently exceeding an amount prescribed by
    regulation, report the accident forthwith to the nearest police officer and
    furnish him or her with the information concerning the accident as may be
    required by the officer.

[26]

The
    officer to whom the accident is reported must prepare a report in the form
    provided by the Minister of Transportation and forward that report to the
    Registrar of Motor Vehicles: ss. 199(3)-(4).

[27]

A
    plain reading of s. 199(1) reveals no reference to the word highway or any
    word that incorporates the definition of highway.  The reporting obligation in
    s. 199(1) is placed on every person in charge of a motor vehicle.  If the
    legislature has defined certain terms in the definition section of legislation,
    but chooses to use other undefined terms in a particular section, the
    interpretative exercise must strive to give some meaning to the choice made by
    the legislature.  In s. 199, the legislature chose to use the phrase, every
    person in charge of a motor vehicle, a more expansive phrase than the word driver.
    This choice suggests a reporting requirement that is not limited to persons who
    fall within the definition of the word driver, that is, persons who drive a
    vehicle on a highway.

(ii)

Related Provisions in the
HTA

[28]

Expanding
    the context from the words of s. 199(1) to the language of related sections
    takes me to s. 205 of the
HTA
.  Section 205 places certain
    responsibilities on the Registrar of Motor Vehicles, the official who receives
    the reports generated under s. 199.

[29]

Under
    s. 205, the Registrar of Motor Vehicles must:

·

investigate motor vehicle accidents, traffic conditions and other
    matters (s. 205(1)(b));

·

keep records of all motor vehicle accidents in Ontario reported
    to him or her (s. 205(1)(c)(i));

·

keep an operating record of every driver showing all accidents
    in which the records of the Registrar indicate the driver has been involved
    (s. 205(1)(c)(v)).

·

develop adequate uniform methods of accident and traffic
    statistics (s. 205(1)(d));

·

study accident causes and trends, traffic problems and regulations
    (s. 205(1)(d)); and

·

prepare an annual report for the Minister containing
    recommendations for the prevention of motor vehicle accidents and the solution
    of traffic problems (s. 205(1)(e)).

[30]

None
    of the responsibilities of the Registrar of Motor Vehicles set out in s. 205 are
    limited to accidents or other traffic-related concerns on highways.  The
    responsibilities relate to all accidents and related traffic conditions in the
    province.  The broad responsibilities of the Registrar, particularly as they
    relate to the accident reports generated by s. 199(1) and other sections of the
HTA,
are consistent with an interpretation of s. 199 that requires the
    reporting of all motor vehicle accidents that meet the criteria specified in that
    section.

(iii)

Part XIV

[31]

A
    further broadening of the context leads next to a review of the entirety of Part
    XIV of the
HTA
, the part of the
HTA
containing s. 199.  That Part includes various
reporting
    requirements.  A review of the four reporting requirements most closely
    connected to s. 199 reveals that two use the word highway while the other two
    do not.

[32]

Section
    199.1 contains reporting requirements relating to vehicles that are irreparable
    or salvage, both defined terms under the
HTA
and its regulations:  see
    e.g., s. 199.1(4).  The reporting requirements make no reference to highway
    or any word incorporating the definition of highway.  Section 199.1 is clearly
    intended to give the Registrar notice of vehicles that have been badly damaged
    as the use of those vehicles could pose a safety risk.  That purpose is not
    served by a reading of s. 199.1 that would limit reporting requirements to
    vehicles on a highway.  Indeed, if the vehicle reaches the highway, it may
    well be too late to worry about any requirement to report the status of the
    vehicle.

[33]

Section
    202 imposes a reporting duty on Crown Attorneys and police officers.  The
    section applies only when there is a fatal accident.  The section does not use
    the word highway.  A plain reading would suggest that all fatal accidents are
    subject to the requirements of s. 202.

[34]

Section
    200, like s. 199, contains a provision requiring the reporting of accidents.
    Section 200, however, imposes duties on the person in charge of the vehicle in
    the accident that are more onerous than the reporting requirement in s. 199.  By
    its terms, s. 200 applies only [w]here an accident occurs on a highway.  Section
    201, imposing another reporting requirement, is again specifically limited to the
    operating or driving of a vehicle upon a highway.  Sections 200 and 201
    indicate that when the legislature wanted to limit a reporting requirement to
    an accident or other event that occurred on a highway, it specifically wrote
    that limitation into the reporting requirement.

[35]

My
    review of the language used in the various reporting requirements in Part XIV
    satisfies me that if the legislature determined that the particular reporting
    requirement should be triggered only by events which occurred on a highway,
    it expressly said so.  When it chose to impose a broader reporting requirement,
    it refrained from using the word highway or any other defined word, such as
    driver, that would restrict the reporting requirement to highways.  The
obiter
in
Shah
would effectively erase one of the distinctions written into
    the various reporting requirements by the legislature.

(iv)

The
HTA
as a Whole

[36]

Broadening
    the context from Part XIV to the entirety of the
HTA
offers no support
    for reading highway into s. 199.  Numerous provisions in the
HTA
,
    like s. 199, do not use the word highway or any related word.  Many of those
    sections create duties that are intended to protect the public by regulating various
    activities relating to motor vehicles.  Many of those duties cannot reasonably
    be seen as contingent upon or properly limited to circumstances in which a
    motor vehicle is used on a highway.

[37]

For
    example, there are provisions requiring the licensing, permitting or
    authorization of motor vehicle dealers (s. 59), driving instructors (s. 58), and
    persons who pick up passengers for compensation (s. 39.1).  There are also
    provisions requiring that dealers of second-hand motor vehicles keep certain
    detailed records (s. 60) and that sellers of rebuilt tires clearly identify the
    tires as rebuilt (s. 71(3)).  Moreover, there are provisions prohibiting the
    defacement or alteration of licence plates (s. 12), the submission of false or
    inaccurate documents to the Ministry (s. 9), and the possession of more than
    one owners permit referable to the same licence plate or vehicle (s. 7(15)).

[38]

The
    provisions described above, and many others in the
HTA
, regulate
    various activities associated with motor vehicles.  Even though the duties
    imposed by these provisions are not tied directly to the operation of a vehicle
    on a highway, the provisions clearly enhance public safety in connection with
    the use of motor vehicles whether on the highway or elsewhere.

[39]

Even
    the provisions of the
HTA
dealing with the Rules of the Road (Part
    X),
[5]
which are clearly most closely associated with conduct on a highway, are not
    all limited to highways.  For example, s. 134 authorizes a police officer, in any
    of the enumerated circumstances, to direct traffic according to his or her
    discretion and requires every person to obey those directions.  The section
    says nothing about limiting this authority or duty to highways.  Police
    officers will have occasion, in the interests of public safety, to direct and
    control traffic in a place that is not a highway.  It would defeat the obvious
    purpose underlying s. 134 if it were read as being limited to a highway.

[40]

In
    summary, my review of the
HTA
as a whole demonstrates that many of the
    duties created by various sections of the
HTA
that do not use the word
    highway cannot be limited to highways.  Viewed from the perspective of the
HTA
as a whole, context contraindicates reading all sections of the
HTA
as
    applicable only to highways.

(v)

Section 1.1

[41]

My
    contextual review of the
HTA
brings me next to s. 1.1, which reads:

The Lieutenant Governor in Council may make regulations
    providing that this
Act
or any provision of this
Act
or of a
    regulation applies to a specified place or class of place that is not a
    highway.

[42]

Section
    1.1 was added to the
HTA
by the
Safer Roads for a Safer Ontario
    Act, 2007
, S.O. 2007, c. 13, s. 2.  Mocha J. interpreted s. 1.1 as
    indicating that provisions of the
HTA
could extend to places beyond a
    highway only by the exercise of the regulation-making power in s. 1.1: at
    paras. 19-20.  She read the section as supporting the
obiter
in
Shah
.

[43]

Section
    1.1 does not suggest that, absent an appropriate regulation, all provisions of
    the
HTA
are limited to highways.  The section permits the extension
    by regulation of the
HTA
, or a provision of the
HTA
, to
    places other than highways.  Thus, a section that by its terms was limited to highways
    could be extended to other places by regulation without the need to amend the
    provision itself.  Section 1.1 offers no support for the contention that absent
    an appropriate regulation, all provisions of the
HTA
are referable
    only to highways.

[44]

Section
    1.1 does, however, provide context in a somewhat different way.  The section contemplates
    the extension of the entire
HTA
or parts of it to places other than
    highways.  This broad regulation-making power is inconsistent with the
obiter
in
Shah
that would limit the HTA to highways.  The regulation-making
    power in s. 1.1 is, however, entirely consistent with an interpretation of the
HTA
that extends beyond highways.

(vi)

The Title

[45]

I
    conclude my search for context in the legislation by reference to the title of
    the legislation  the
Highway Traffic Act
.
[6]
In
Shah
, at para. 35, the
    court stated:

Indeed, not surprisingly, the entire
HTA
applies to
    what its title foreshadows, highways.

[46]

The
    title of an enactment can assist in the interpretation of a provision within
    the enactment:  see
Temelini v. Ontario Provincial Police (Commissioner)
(1999)
, 44 O.R. (3d) 609 (C.A.), at pp.
    620-21.  In my view, it places far too much weight on the title of the
HTA
to suggest that a word that is given a specific definition in the text of the statute
    effectively becomes a description of the scope of the statute because that word
    is used in the title.  Had the legislature intended the word highway to
    define the scope of the
HTA
, I would have expected a specific
    statutory provision addressing the scope of the
Act
, and not merely a
    definition of the word highway applicable to the legislation.

[47]

I
    also agree with counsel for the appellant that a comparison of the English and French
    titles of the
HTA
supports his position.  The French title of the
HTA
is Code de la route.  The French version defines highway as voie
    publique.  The title of the French version of the
HTA
considered along
    with the definition of highway in the French version suggests that the
Act
is not limited to highways.  The French and English versions of a statute are
    equally authoritative:
Legislation Act, 2006
, S.O. 2006, c. 21, Sch.
    F., s. 65.

B.

the object of the
HTA

[48]

The
    modern approach to statutory interpretation looks to the purpose or object of
    the statute as an aid in interpreting the statutes provisions.  This approach
    is legislatively mandated in Ontario by s. 64 of the
Legislation Act, 2006
:

An Act shall be interpreted as being remedial and shall be
    given such fair, large and liberal interpretation as best ensures the
    attainment of its objects.

[49]

There
    is no preamble to the
HTA
and nothing in the
Act
speaks directly
    to the objects of the
HTA
.  Nor did counsel in their comprehensive
    presentations refer to any of the usual secondary sources that might assist in pinpointing
    the objects of the
Act
.  In attempting to discern the object of the
HTA
,
    one is left with the circular proposition that the words of the
HTA
enlighten
    the reader as to the objects of the
HTA
which in turn assist the
    reader in giving meaning to the words in the
HTA
.  As Rothstein J.
    recently cautioned in
Canada v. Craig
, 2012 SCC 43, 347 D.L.R. (4th)
    385, at para. 30, interpreting words by reference to unexpressed legislative
    intention purportedly discovered through a purposive reading of those words must
    be avoided: see also
Shell Canada Ltd. v. Canada
, [1999] 3 S.C.R. 622,
    at para. 43.

[50]

Bearing that caution in mind, the case law does identify in
    broad terms the object of the
HTA
.
    In
R. v. Raham
, 2010
    ONCA 206, 99 O.R. (3d) 241, at para. 33, the court refers to the
HTA
as public welfare legislation designed to protect
    those who use the roads of the province.  Earlier, in
Hydro-Electric
    Power Commission of Ontario v. Bruell Float Service Ltd.
(1974), 3 O.R. (2d) 108, at p. 114, affd on other
    grounds [1976] 1 S.C.R. 9, this court said:

The general purpose of the
Highway
    Traffic Act
is the regulation of the
    use of the highways by persons on foot and in vehicles; that is not to say that
    certain provisions of the statute will not apply to the use of vehicles other
    than on a highway, but in an over-all sense the Legislature is directing itself
    to the regulation of vehicular traffic and not to commerce conducted in or by
    means of vehicles.

[51]

In
    my view, regulation to protect the public using the provinces roads is not
    necessarily limited to roads that fall within the meaning of highway in the
Act
.
    Public safety concerns might well demand regulation in respect of traffic in
    large private parking facilities even though those facilities are not used by
    the general public for the passage of vehicles.  Similarly, public safety
    concerns might well demand the regulation of private parking facilities as
    incidental to regulations maintaining the safety of the highway leading into
    and out of that facility.

[52]

Insofar
    as s. 199 is concerned, I think it can be argued that public safety is enhanced
    by a general reporting requirement with respect to accidents involving injury
    or a certain level of property damage.  Lessons learned from the reports with
    respect to those accidents may enhance the overall safety of the roads by
    identifying safety concerns that have application beyond the immediate
    circumstances of the particular accident.

[53]

When
    I place the language of s. 199 in the context of its related provisions, the
HTA
as a whole, and the object of the
HTA
, I see no reason to read the
    word highway into the
Act
.  In my view, the section makes perfect
    sense and is consistent with the object of the
HTA
if it is read as
    written.

C.

other arguments

[54]

Amicus
has made two additional arguments which do not fit exactly into the contextual
    analysis as I have set it out.  I will briefly address both arguments.

[55]

First,
amicus
submits that
an interpretation that
    extends s. 199 beyond accidents on highways leads to absurd results.  For
    example, he suggests that the appellants interpretation would require persons
    who slam their hands in a car door while it is parked in their driveway to
    report that accident under s. 199.

[56]

The potential absurdity
    raised by
amicus
turns
    on the meaning of the word accident in s. 199 and not on whether the section
    applies to places other than highways.  Any problems relating to the
    interpretation of the word accident arise in respect of the various reporting
    conditions imposed in ss. 199, 200 and 201.  That interpretative problem is for
    another day.

[57]

Second,
amicus
submits that s. 199 should not be read as applying
    to private property because the reporting requirement forces persons involved
    in accidents to provide potentially incriminating information to the police.  The
    potential use of any statutorily compelled statements in subsequent proceedings
    raises issues that have a constitutional and evidentiary dimension.  Those
    issues are no doubt important but, in my view, have no connection to the interpretation
    of s. 199.  If the section raises legitimate self-incrimination concerns, those
    concerns are not properly addressed by effectively reading down the legislation.

VI

conclusion

[58]

I
    would allow the appeal, set aside the order below, and direct a new trial.  I
    would hope that in the circumstances the Crown would not proceed with that new
    trial.

[59]

I
    would not want to leave this case without acknowledging the efforts of both Mr.
    Asma, counsel for the Crown, and Mr. Little, court appointed
amicus
.
    Their written and oral arguments were first rate and of great assistance to the
    court.

RELEASED:  DD  JAN 21 2013

Doherty J.A.

I agree Dennis
    OConnor A.C.J.O.

I agree Robert J. Sharpe
    J.A.

I agree G.J. Epstein
    J.A.

I agree J. Cavarzan
    (per Doherty J.A.)

[1]
The offence is actually created by s. 214 which makes it an
    offence to contravene a provision of the
HTA
.

[2]
I say arguably because the matter is not directly raised and I
should
not be taken as having considered all of the sections that use
    those words.

[3]
The court said much the same
at para.
1
    of the judgment
:
The
Highway Traffic Act
, R.S.O. 1990, c.
H8 (
HTA
)
, is a comprehensive statute regulating drivers
and
vehicles in Ontario.  The anchor of the statute is,
    as its title suggests,

highways

.  The purpose of the statute is the regulation of drivers
a
n
d
vehicles with a view to protecting the
    travelling public who use the highways.

[4]

R. v. Soules
, 2011 ONCA 429, 105 O.R. (3d) 561, at para.
    7, notes that s. 199 refers to the obligation to report accidents on the
    highway.
Soules
does not suggest that the reporting obligation is
    limited to highways.  Nor was the proper statutory interpretation of s. 199 at
    issue in
Soules
.

[5]
It is perhaps noteworthy that Part X is entitled Rules of the
    Road and not Rules of the Highway.

[6]
The former long title of the
HTA
 An Act to Regulate
    Travel on Highways, and the Speed, Operation and Load of Vehicles Thereon
    was dropped soon after the
HTA
was enacted in 1923.  In my view, it
    does not assist in the interpretative exercise.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Moradi, 2013 ONCA 17

DATE: 20130115

DOCKET: C54844

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hamid Moradi

Applicant

Michael Crystal, for the applicant/appellant

Sandy Thomas, for the respondent

Heard: January 11, 2013

On appeal from the sentence imposed on December 22, 2011
    by Justice M.A. James of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in principle on the part of the sentencing judge. He was
    aware of, and took into account, the appellants family circumstances,
    including his wifes medical condition and the difficulties with her pregnancy.
    His reasons adequately explain his route to his decision and he concluded,
    having regard to the appellants circumstances and the nature of his crimes,
    and the case law, that a conditional sentence was not appropriate. There is no
    error in that conclusion in the circumstances, in our view.

[2]

Nor do we think the fresh evidence changes the picture. While we commend
    the appellant for his rehabilitative efforts while on bail pending appeal, the
    fresh evidence is essentially on extension of what was to be expected at the
    time of sentencing.

[3]

Accordingly, while leave to appeal is granted, the appeal is
    dismissed.