COURT OF APPEAL FOR ONTARIO

CITATION:

Herbert v. Brantford
    (City), 2012 ONCA 98

DATE: 20120213

DOCKET: C52254

Weiler, Armstrong and Rouleau JJ.A.

BETWEEN

Clara
    Herbert, infant Under The Age of 18 years by her
    Litigation Guardian, Everill Muir, the said
    Everill Muir, Gary Muir, Kiri Lyn
    Muir, Kevin Muir and Kelly Baird

Respondents/Plaintiffs

and

The City of Brantford

Appellant/Defendant

Deborah Berlach, for the appellant

Robert J. Hooper and Sumitra Lagoo, for the respondents

Heard and released orally: January 13, 2012

On appeal from the judgment of Justice Alan C.R. Whitten of
    the Superior Court of Justice, dated May 7, 2010.

ENDORSEMENT

[1]

Gary Muir was a retired high school teacher and an experienced cyclist.
    On September 23, 2003, he set out on his bicycle for a ride on a public trail
    in the City of Brantford.  The City owned and operated the trail.  Mr. Muir was
    very familiar with the trail and had cycled on it many times including the week
    before September 23rd.  He was aware of the risks and dangers of using the
    trail and, in particular, the hazardous nature of the location where his
    accident happened.

[2]

On the day in question, Mr. Muir cycled down a hill towards a bridge
    over the Grand River.  He noticed ahead of him two people who were also on
    bicycles, although when he testified, his recollection was that they were
    pedestrians.  One of the two people appeared to be in his lane.  In order to
    avoid a collision, he veered to the right and lost control of his bicycle.  He
    fell from his bicycle into an area of the trail, which was strewn with stones
    and a large rock.  He struck his head and suffered a catastrophic injury
    making him a quadriplegic.

[3]

In this action against the City of Brantford, the trial judge found that
    the City was 40 per cent responsible for the accident because of the Citys
    failure to carry out proper inspection and maintenance of the trail.  The trial
    judge found that in the particular area where Mr. Muir lost control, there was
    sprawling of the pavement with a pile of rocks or a large jagged rock within a
    few feet of the pavement.  The trial judge concluded that the sprawling of the
    pavement had been there for some time and the Citys failure to attend to this
    situation amounted to a total disregard of Mr. Muirs safety.

[4]

Mr. Muir was found to be 60 per cent responsible for his accident in
    that he failed to keep a proper look-out, failed to yell at the persons ahead
    of him and because he was driving at an excessive rate of speed.

[5]

Counsel for the City argues that the trial judge failed to properly
    apply s. 4 of the
Occupiers Liability Act
which provides in these
    circumstances that the City must not act with reckless disregard of Mr. Muir.  Counsel
    submitted that the trial judge, in fact, applied the standard in s. 3(1) of the
    Act,
i.e.
, to take such care as in all the circumstances of the case is
    reasonable to see that persons entering on the premises ... are reasonably safe
    while on the premises.

[6]

We disagree.  The trial judge carefully reviewed the evidence in detail
    and concluded that the City had failed to meet the standard in s. 4 of the
    Act.  We are not persuaded that he conflated s. 4 and s. 3(1) of the Act.  In
    our view, the evidence at trial was sufficient to enable the trial judge to
    make the finding he did.

[7]

The appellant seeks leave to appeal the costs award.  The trial judge
    granted interest on some of the experts fees of between one and two per cent
    compounded monthly.  It is the compounding of the interest that is the sole
    issue in respect of the costs appeal.

[8]

The trial judge appears to have decided this matter on the basis that it
    raises an access to justice issue for Mr. Muir and his family.  The trial judge
    acknowledged that there was a dearth of evidence as to the actual financial
    circumstances of Mr. Muir and his family.  Despite this, he went on to find
    that it would have been difficult, if not impossible, for him and his family to
    carry the cost of the approximately $42,000 in expert fees.  In the
    circumstances of this case, we do not agree that the evidence relied upon by
    the trial judge supports this exceptional order.  In our view, the trial
    judges reference to the statutory accident benefits regime is of no help in
    this argument.

[9]

In the result, the appeal as to the merits is dismissed.  Leave to
    appeal the costs is granted and the appeal in respect of the compounding of the
    interest is allowed.

Costs

[10]

The
    respondents are entitled to their costs of the appeal on the merits.  However,
    such award should be reduced to take into account that the appellant succeeded
    on the costs appeal.  In the result, the respondents are awarded their costs
    fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.

Karen M. Weiler J.A.

Robert P. Armstrong J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Herold v. Bank
    of Nova Scotia, 2012 ONCA 131

DATE: 20120224

DOCKET: C54371

Sharpe, Blair and Juriansz JJ.A.

BETWEEN

Nicole (Nora) Herold

Appellant

and

The Bank of Nova Scotia

Respondent

Appellant in person

Evan L. Cappe, for the respondent

Heard: February 24, 2012

On appeal from the order of Justice Sandra Chapnik of the
    Superior Court of Justice, dated August 24, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the decision of the motion judge granting
    summary judgment.  We agree with her conclusion that the appellant has failed
    to provide any evidence that she paid her student loan.  Indeed, her letter of
    March 3, 1997 essentially admits that she owed the money and a judgment of the Federal
    Court, which she is appealing, found after a full review of the evidence, that
    she had not paid the loan.  It follows that her claim against the respondent
    bank must fail and therefore, this appeal must be dismissed.

[2]

Costs to the respondent fixed at $5000 inclusive of disbursements
    and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:
Hugh
    Munro Construction Ltd. v. Moschuk, 2012 ONCA 109

DATE: 20120216

DOCKET: C53976

Lang and LaForme JJ.A. and Pattillo J. (
Ad Hoc
)

BETWEEN

Hugh Munro Construction Ltd.

Plaintiff/Appellant

and

Donald Moschuk

(also known as Don Moschuk)

Defendant/Respondent

R. Ivan Holloway and Kevin D. Toyne, for the appellant

Peter Halamandaris, for the respondent

Heard:  February 13, 2012

On appeal from the order of Justice Douglas C. Shaw of
    the Superior Court of Justice, dated May 31, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The contractor launched its action in November 2009, more than two years
    after the last work was done and more than two years after a reasonably-timed
    invoice would have been sent and payment made or refused. In the circumstances
    of this case, the motion judge was entitled to conclude that the action was
    barred by the passage of the two-year limitation period.  The appeal is
    accordingly dismissed.

[2]

Costs to the respondent in the agreed-upon amount of $10,000, inclusive
    of all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Laberakis
    (Re), 2012 ONCA 70

DATE: 20120201

DOCKET: C53946

Weiler, Sharpe and Blair JJ.A.

IN THE MATTER OF: Gregorios Laberakis

Gregorios Laberakis, acting in person

Anita Szigeti and Jill Presser, as
amicus

curiae

Jean D. Buie, for the Centre for Addiction and Mental
    Health

Leslie Paine, for the Attorney General

Heard and released orally: January 30, 2012

On appeal against the disposition of the Ontario Review
    Board dated, February 22, 2011.

ENDORSEMENT

[1]

The appellant appeals the Ontario Review Boards disposition ordering
    that he continue to be subject to a Conditional Discharge.

[2]

We are of the opinion that the majority decision of the Board contains
    serious errors of law.  There was no positive evidence on which the Board could
    have found that Mr. Laberakis continued to pose a significant threat to the
    safety of the public. The index offences, although very serious, occurred in
    2001; the appellant has been living in the community for almost five years now;
    there is no evidence of non-adherence to medication; he has strong community
    support; the treatment team and the hospital support the disposition of an
    absolute discharge. There is no factual basis to support a finding that the
    appellant poses significant threat to the community.

[3]

The majority failed to apply the appropriate threshold of risk. Risk
    assessment tests indicate that the appellant poses a low risk to the
    community.  The Board was concerned with the appellants internalization of the
    events surrounding the offences and further opined that it could not be said
    the appellant would seek help if needed.  Dr. Eayres testified that the
    appellant was not absolutely certain that he would become ill again if he were
    to discontinue taking his medication. There are limitations on the appellants
    insight into his condition. That said, Dr. Eayres testified that the appellant
    agreed that it was important to stay on the medication in order to avoid
    returning to the same state of mind that produced the terrible events.  Dr.
    Eayres was of the opinion he would continue taking his medication and supported
    an absolute discharge. There was no expert opinion to the contrary. While the
    Board does not necessarily err because it declines to follow the experts or
    the hospitals opinion and must make its own decision, it must do so on the
    evidence. The majoritys concerns in effect placed an inappropriate burden on
    the appellant.

[4]

For these reasons, we would allow the appeal, set aside the Boards
    order and in its place grant the appellant an absolute discharge.

Karen
    M. Weiler J.A.

Robert
    J. Sharpe J.A.

R.A.
    Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Lacoste v. Clarica
    Life Insurance, 2012 ONCA 126

DATE: 20120223

DOCKET: C52011

Sharpe, Blair and Juriansz JJ.A.

BETWEEN

Nicole Lacoste

Plaintiff (Appellant)

and

Clarica
    Life Insurance Company and

The Mutual Life Assurance
    Company of Canada

Defendants (Respondents)

John B. Gorman, Q.C., for the appellant

John A. Terry and Yousuf P. Aftab, for the respondents

Heard: February 23, 2012

On appeal from the judgment of Justice Paul Rivard of the
    Superior Court of Justice, dated March 25, 2010.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the language of the Long Term Disability Insurance
    Policy is clear and the trial judge did not err in concluding that the
    appellants disability benefit is reduced by the payment she receives under the
    CPP and the HOOPP disability plans.  Accordingly, the appeal is dismissed.

[2]

The respondent cross-appeals the costs order. Despite Mr. Aftabs
    capable argument, we are not persuaded that there is any error of principle in
    the trial judges costs decision that would justify this court interfering with
    the costs order he made.  Accordingly, leave to appeal costs is granted but the
    appeal is dismissed.

[3]

In view of the divided success, net costs of both proceedings to
    Sun Life fixed at $7,500 inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:
Metropolitan Toronto Condominium
    Corporation No. 879 v. Mereshensky, 2012 ONCA 73

DATE: 20120202

DOCKET: M40496 (C54253

Simmons, Armstrong and Juriansz JJ.A.

BETWEEN

Metropolitan Toronto Condominium Corporation No.
    879

Applicant (Respondent in Appeal)

and

Lyudmila Mereshensky, Ahuva Rozenfeld and Yakov
    Mereshensky

Respondents (Appellants)

Megan Mackey, for the applicant

Yakov Mereshensky, in person

Heard and endorsed: February 1, 2012

An application for an order to quash the Amended Notice
    of Appeal of Yakov Mereshensky.

APPEAL BOOK ENDORSEMENT

[1]

The court file includes an affidavit of service
    indicating the amended motion record and factum were served under the rules. As
    a general rule, no appeal lies from a judge's decision to refuse to grant leave
    to appeal under s. 45 of the
Arbitration Act
.
    There is an exception to the general rule where the judge on the leave
    application mistakenly declines jurisdiction. See:
Hillmond
    Investments Ltd. v. Canadian Imperial Bank of Commerce
(1996), 29 O.R. (3d) 612 (C.A.) and
Denison Mines Ltd. v. Ontario
    Hydro
(2001), 56 O.R. (3d) 181 (C.A.). Here, the leave
    judge did not decline jurisdiction but considered the leave application fully.
    As the exception to the general rule does not apply, this appeal does not lie.
    It is therefore quashed.

[2]

As a result, it is unnecessary that we deal with
    motion M40544.

[3]

Costs of the appeal and all motions are to the
    condominium corporation on a partial indemnity scale fixed at $1,500 inclusive
    of all disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario
    (Attorney General) v. Collins, 2012 ONCA 76

DATE: 20120203

DOCKET: M40735 (C52985)

Weiler, Sharpe and Blair JJ.A.

BETWEEN

The Attorney General of Ontario

Respondent

and

Maxine Collins

Appellant [Moving party]

Maxine Collins in person

Greg Skerkowski, for the respondent

Heard and released orally: January 31, 2012

ENDORSEMENT

[1]

The appellants private prosecution was stayed by the Attorney
    General pursuant to s. 579(1) of the
Criminal Code
before her case had
    been considered by a justice of the peace on a pre-enquete hearing pursuant to
    s. 507.1.

[2]

The appellant applied for mandamus to require the justice of the
    peace to proceed with the pre-enquete. The application judge held that the
    recent decision of this court in
R. v. McHale,
2010 ONCA 361
, 256 C.C.C. (3d) 26, leave
    to appeal refused [2010] S.C.C.A. No. 290, stood as binding authority that the
    Attorney General was entitled to stay the proceedings and therefore dismissed
    the mandamus application.

[3]

The appellant wishes to challenge the authority of
R. v.
    McHale
and asked the Chief Justice to strike a five-judge panel to hear
    her appeal.

[4]

On August 24, 2011, Mr. Kromkamp, the Courts senior legal
    officer, wrote to the appellant advising her that O'Connor A.C.J.O. had reviewed
    both her correspondence requesting a five-judge panel and her appellants
    factum but that he had declined to grant her request.

[5]

The appellant moved for an order to review and to set aside that
    decision before Goudge J.A. In his endorsement, dated November 18, 2011, Goudge
    J.A. stated:

In my view the order of O'Connor A.C.J.O. is correct. I see no
      reason for a five-judge panel. Motion dismissed.

[6]

The appellant now moves to review and set aside the order of
    Goudge J.A.

[7]

In our view, the motion must be dismissed on the ground that
    there is no authority to review or appeal a decision of the Chief Justice of
    Ontario or the Associate Chief Justice of Ontario to assign, or to refuse to
    assign, five judges to hear an appeal.

[8]

The Chief Justice of Ontario and, in his or her absence, the
    Associate Chief Justice of Ontario, has, by virtue of the
Courts of Justice
    Act
, s. 5(1) and (2) "general supervision and direction over the
    sittings of the Court of Appeal and the assignment of judicial duties of the
    court." It is pursuant to that authority, and to the court's practice,
    that those judicial officers determine when it is appropriate to assign five
    judges to hear a case. Neither the
Courts of Justice Act
nor the
Rules
    of Civil Procedure
provide for any appeal or review from decisions of the
    Chief Justice or Associate Chief Justice with respect to the assignment of
    judicial duties.

[9]

We would add, however, that it is still open to a panel of three
    judges assigned to hear a particular case, to ask the Chief Justice to consider
    assigning the case to a panel of five judges if that panel of three is
    persuaded that an arguable case can be made for reviewing or overruling one of
    this court's past decisions.

[10]

For these reasons, this motion is dismissed.

K.M. Weiler J.A.

Robert J. Sharpe J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario
    (Finance) v. Ontario (Information and Privacy
    Commissioner), 2012 ONCA 125

DATE: 20120224

DOCKET: C54157

Rosenberg, Feldman JJ.A. and Swinton J. (
ad
    hoc
)

BETWEEN

Minister of Finance for the Province of Ontario

Applicant (Appellant)

and

Diane
    Smith, Adjudicator, Information and Privacy Commission/Ontario and John Doe, Requester

Respondents (Respondents in Appeal)

Sara Blake and Andrea Cole, for the appellant

William S. Challis, for the respondent Diane Smith,
    Adjudicator, Information and Privacy Commission of Ontario

Alex Cameron and Kevin Yip, for the respondent Requester,
    John Doe

Heard: January 18, 2012

On appeal from the order of the Divisional Court (Aston,
    Linhares de Sousa and Lederer JJ.), dated April 1, 2011.

Rosenberg
    J.A.:

[1]

The Minister of Finance for Ontario appeals from the decision of
    the Divisional Court (Aston, Linhares de Sousa and Lederer JJ.) upholding,
    except in one respect, the decision of an Adjudicator under the
Freedom of
    Information and Protection of Privacy Act,
R.S.O. 1990, c. F.31 [the Act]
    to release the requested records to the respondent Requester. The records
    relate to advice to the Minister leading up to a decision by the Minister about
    the effective date of certain amendments to s. 2 of the
Corporations Tax
    Act
, R.S.O. 1990, c. C.40
.
    While the Ministers privacy decision originally relied upon several sections
    of the Act, the case now turns on s. 13(1) of the Act which gives the Minister,
    as head of the institution, the discretion to refuse to disclose a record
    where the disclosure would reveal advice or recommendations of a public
    servant, any other person employed in the service of an institution or a
    consultant retained by the institution. In holding that the documents must be
    disclosed the Adjudicator relied upon this courts decisions in
Ontario
    (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner)
(2005), 202 O.A.C. 379 (C.A.) [
MOT
] and
Ontario (Ministry of
    Northern Development and Mines) v. Ontario (Assistant Information and Privacy
    Commissioner)
(2005), 203 O.A.C. 30 (C.A.) [
MNDM
].

[2]

In my view, in deciding to release the requested records, the
    Adjudicator misinterpreted and misapplied the decisions of this court with the
    result that she arrived at an unreasonable decision. I would allow the appeal
    and remit the matter to the Information and Privacy Commission.

THE FACTS

[3]

The Ministry of Finance received a request under the Act for all
    records or parts of records in the Ministry that consider the issue of
    retroactivity and the effective date of amendments to s. 2 of the
Corporations
    Tax Act
, which was effective May 11, 2005. Although the Requester is
    referred to in the materials as John Doe, there seems to be no dispute that the
    Requester seeks the records as part of a dispute with the Ministry over tax
    liability. The Ministry believes that certain corporations had entered into a
    tax avoidance scheme and amended the
Corporations Tax Act
to prevent
    tax leakage.

[4]

The Ministry located six records that respond to the request. The
    records are all brief, consisting of one or two pages and may be described as
    follows. Records I to IV are all titled Tax Haven CorporationsTiming of
    Implementation. They are slightly different versions of what the adjudicator
    described as draft option papers. Record I has three sections titled option 1,
    2 or 3. The record contains a note of a possible fourth option which was
    considered. Options 1 and 2 and the possible fourth option set out arguments
    for and against adopting the various options. Option 3 also has arguments for
    and against, but carries an explicit recommendation from the author(s) of the
    document. The possible fourth option also carries an express recommendation.
    Records II and III are similar to Record I, with more or less detail. Record IV
    is similar to Records I to III, except that reference to the possible fourth
    option has been dropped, as has the express recommendation in Option 3.

[5]

Record V is titled Tax Avoidance Strategy. It very briefly
    identifies the possible options that are dealt with in more detail in Records I
    to IV. It also includes a statement from which one could infer what the civil
    servants viewed as the preferred option.

[6]

Record VI is titled Legislating an End to Tax Haven Loophole.  Like
    Record V it identifies the civil servants preferred option, but also includes
    information about what became the fourth option. It includes factual
    information about the federal government criteria for retroactive application
    of tax changes. The Ministry agreed to disclose the factual information but
    sought redaction of the two parts of the document that discuss recommendations.

[7]

Following the original decision of the Adjudicator, the Minister
    applied for reconsideration of the decision. In this application, the Minister
    filed an affidavit from Ann Langleben the Acting Assistant Deputy Minister of
    the Tax Policy Division. At the relevant time Ms. Langleben was Director of the
    Corporate and Commodity Tax Branch, Office of the Budget, Taxation and Pensions.
    She deposed that she was involved in reviewing and advising on the tax policy
    option papers that are Records I to IV. To the best of her recollection, the
    records formed part of the Budget brief process and involved briefings of the
    Assistant Deputy Minister, Office of the Budget and Taxation, the Deputy
    Minister of Finance, and the Minister of Finance. She attached to her affidavit
    an excerpt from an Agenda of a meeting with the Minister on April 11, 2005 with
    the item Corporate Minimum Tax and Tax Haven Corporations (OBT). She deposed
    that this agenda is evidence that the options referred to in the documents went
    to the Minister and were included for explanation and decision by the Minister.
    She states: To the best of my knowledge, all the options were presented as
    advice and recommendations, with relevant considerations.

THE
    DECISIONS OF THE ADJUDICATOR

[8]

The Adjudicator held that to qualify as advice or recommendations
    within the meaning of s. 13 of the Act, the information in the record must
    suggest a course of action that will ultimately be accepted or rejected by the
    person being advised. She held that there was no clear evidence of
    communication of the information in Records I to V from one person to another.
    She characterized the records as draft records and it was not apparent that the
    information in the records was communicated to the person being advised and
    therefore used in the Ministrys deliberative process.

[9]

The Adjudicator also held that even if Records I to V were draft
    versions of the final document and there was evidence that the information was
    communicated to the person being advised, she would have found that only the
    recommendation portion in Option 3 of Records I to III and Record V consisted
    of information which suggests a course of action that will ultimately be
    accepted or rejected by the person being advised. As a preferred option is
    not expressly identified and cannot be inferred in the remainder of the
    information in these records, there is no suggested course of action and
    [therefore] no advice or recommendations.

[10]

As to Record VI, as indicated, the Ministry had agreed to
    disclose most of the document. The remainder was also not exempt since it did
    not suggest a course of action that would ultimately be accepted or rejected by
    the person being advised.

[11]

The Adjudicator refused to reconsider her decision. She held that
    the Ministry had not established a fundamental defect in the adjudication
    process. In any event if she were to reconsider her decision, she would not
    reach a different conclusion. As to Records I to V, she still found there was
    no clear evidence of communication of the information in the records from one
    person to another. As to Record VI, the Ministry had still not provided any
    substantive information to demonstrate that the information suggests a course
    of action that will ultimately be accepted or rejected by the person being
    advised.

THE DECISION OF THE DIVISIONAL COURT

[12]

In a brief endorsement, the Divisional Court held that the
    standard of review is reasonableness. The Court summarized the finding of the
    Adjudicator respecting Records I to V as that there was no recommended course
    of action demonstrated in these documents. This decision fell within the range
    of possible acceptable outcomes, and  thus, is reasonable. Further, her finding
    that it was not demonstrated that the information in those records had been
    communicated to the decision-maker was also within the range of possible
    acceptable outcomes, and thus, reasonable.

[13]

The Court disagreed with the Adjudicator about Record VI. It held
    that, on its face, the document makes a recommendation. The redacted matters
    contain further advice as to how the issue should be dealt with. There was no
    dispute that there was communication of the advice or recommendation found in
    the document, within the deliberative process. Accordingly, the redactions were
    covered by the exemption in s. 13(1) of the Act and were to be withheld.

ANALYSIS

(a)

Standard of Review

[14]

There is no dispute that the standard of review is
    reasonableness. See
MOT
,
at paras. 9-12.

(b)

Interpretation
    of s. 13 of the
Freedom of Information and Protection of Privacy Act.

[15]

The parties to this appeal are the Minister as appellant, and the
    Adjudicator and the Requestor as respondents.  All parties relied upon this
    courts decisions in
MOT
and
MNDM
. However, they have very
    different interpretations of the holdings in those cases. The Minister submits
    that there need not be a preferred option identified in the documents to come
    within s. 13(1). Ms. Blake, counsel for the Minister, submits that
    imposing such a requirement fundamentally misconceives the role of the civil
    service in a Parliamentary democracy. Where, as here, the Minister is the
    decision maker, it is the role of the civil service to present the various
    options. It is not for the civil service to make the decision. Further, there
    is no requirement that the advice or recommendations in the documents be
    communicated to the decision maker. The s. 13(1) exemption envisages a
    deliberative process in which there may be a series of drafts. What is required
    is that the records relate to a decision which will ultimately be made.

[16]

Mr. Challis on behalf of the Adjudicator takes a much different
    view of the holdings in
MOT
and
MNDM
. He submits that this
    courts decisions in those cases must be read with the decisions of the
    Divisional Court and the decisions of the Adjudicators. That package of
    decisions demonstrates that to qualify as advice or recommendations within s.
    13, the information must reveal a suggested course of action that will
    ultimately be accepted or rejected by its recipient during the deliberative
    process. Where a preferred option cannot be identified or inferred and a
    suggested course of action is not otherwise revealed, the exemption does not
    apply. Mr. Challis gives the analogy of a solicitor acting for a client. The
    information conveyed to the client could hardly be considered advice if the
    solicitor did not give an opinion as to the preferred course of action the
    client should take. Further, the Minister must show that the information has
    been communicated to the person being advised in the deliberative process.

[17]

For the following reasons, I agree with the approach of the
    Minister. In my view, that approach is consistent with the holdings in
MOT
and
MNDM
; the approach of the Adjudicator is not. In particular, Mr.
    Challis analogy to a solicitor advising a client fundamentally misconceives
    the role of the civil service in our democratic process.

[18]

In
MOT
, the court considered the meaning of the phrase
    advice and recommendations in s. 13(1), and in particular, the governments
    argument that the two words had to be given different meanings. Thus, the
    government argued that advice did not require a deliberative process and
    would include information or analysis conveyed without a view to influencing a
    decision or the adoption of a course of action. Speaking for the court,
    Juriansz J.A. rejected the governments position. He held that the appropriate
    rule of interpretation was the associated words rule, where the reader looks
    for a common feature among the terms. The term advice also had to be
    interpreted in a manner consistent with the purpose of the Act as outlined in
    s. 1.  Juriansz J.A. was satisfied that the Adjudicator had properly
    interpreted the phrase advice and recommendations. He adopted this part of
    the Adjudicators reasons:

[A]dvice and recommendations, for the purposes of section 13(1)
    must contain more than mere information. To qualify as "advice" or
    "recommendations", the information contained in the records must
    relate to a suggested course of action, which will ultimately be accepted or
    rejected by its recipient during the deliberative process (Orders P-94, P-118,
    P-883 and PO-1894). Information that would permit the drawing of accurate
    inferences as to the nature of the actual advice and recommendation given also
    qualifies for exemption under section 13(1) of the Act (Orders P-1054, P-1619
    and MO-1264).

[19]

He also noted, at para. 29, that the Adjudicators interpretation
    left room for advice and recommendations to have distinct meanings:

A "recommendation" may be understood to "relate
    to a suggested course of action" more explicitly and pointedly than
    "advice". "Advice" may be construed more broadly than
    "recommendation" to encompass material that permits the drawing of
    inferences with respect to a suggested course of action, but which does not
    itself make a specific recommendation.

[20]

In
MNDM
, Juriansz J.A., again writing for the court,
    considered that the interpretation adopted by the Adjudicator in the two orders
    was reasonable and indistinguishable from the interpretation of the Adjudicator
    in
MOT
. At paras. 9 and 10, Juriansz J.A. referred to portions of the
    two orders (PO-2028 and PO-2084) in
MNDM
:

PO-2028

In previous orders, this office has found that the words
    "advice" and "recommendations" have similar meanings, and
    that in order to qualify as "advice or recommendations" in the
    context of section 13(1), the information in question must reveal a suggested
    course of action that will ultimately be accepted or rejected by its recipient
    during the deliberative process of government policy-making and decision-making
    . In addition, adjudicators have found that advice or recommendations may be
    revealed in two ways: (i) the information itself consists of advice or
    recommendations; or (ii) the information, if disclosed, would permit one to
    accurately infer the advice or recommendations given .

PO-2084

A number of previous orders have established that advice or
    recommendations for the purpose of section 13(1) must contain more than mere
    information. To qualify as "advice" or "recommendations",
    the information must relate to a suggested course of action that will
    ultimately be accepted or rejected by its recipient during the deliberative
    process .

[21]

There is a slight distinction in the way the adjudicators in
MOT
and
MNDM
interpreted advice and recommendations. In
MOT
and
    PO-2084, the adjudicators refer to information that must relate to a
    suggested course of action. In PO-2028, the adjudicator suggested that the
    information must reveal a suggested course of action. He went on to describe
    two ways that advice or recommendations may be revealed: (i) the information
    itself consists of advice or recommendations; or (ii) the information, if
    disclosed, would permit one to accurately infer the advice or recommendations
    given. Section 13 itself, speaks of the discretion to refuse to disclose a
    record where the disclosure would reveal advice or recommendations.

[22]

Justice Juriansz went on to hold that the adjudicator in
MNDM
could reasonably hold that the mere fact that a document refers to options or
    pros and cons did not determine that the document revealed advice or
    recommendations. Rather, it depends on the circumstances of each case. He held,
    at para. 16, that the following was a reasonable approach:

The [Adjudicator] proceeded on the basis that whether records
    that set out "options" and "pros and cons" reveal advice or
    recommendations depends on the circumstances of each case. He assessed the
    context in which the records at issue were created and communicated and
    determined they contained no information that could be said to
    "advise" the Board in making its decision on funding, nor did they
    allow one to accurately infer any advice given. He found that the records
    consisted of "mere information" broken down into various
    pre-determined categories.

[23]

Bearing in mind that the standard of review applied by the court
    in
MOT
and
MNDM
was reasonableness, not correctness, the
    following conclusions may be drawn about the meaning of s. 13(1). Advice and
    recommendations, within the meaning of s. 13, must contain more than mere
    information. If it were enough that the record contained information, s. 13(1)
    would, as was observed by Juriansz J.A. in
MOT
,
at para. 28, severely diminish the
    publics right to information. The information contained in the records must
    relate to a suggested course of action that will be ultimately accepted or
    rejected by its recipient. It is implicit in the various meanings of advice
    and recommendations considered in
MOT
and
MNDM
that s.
    13(1) seeks to protect a decision-making process. If the document actually
    suggests the preferred course of action it may be accurately described as a
    recommendation. However, advice is also protected, and advice may be no more
    than material that permits the drawing of inferences with respect to a
    suggested course of action but does not recommend a specific course of action.

[24]

Whether the material in the document expressly makes a
    recommendation or simply presents advice on different courses of action, it
    will be unlikely that the document relates to or reveals only one course of
    action. Especially where the document is to go to the Minister, it will be
    unlikely that there is only one possible course of action that the Minister
    could take in dealing with difficult issues. The civil servants may have a
    preferred option and this may be obvious from the way in which the document is
    drafted, but the Minister, as the decision maker, is entitled to advice on a
    range of possible courses of action. Even where the decision-maker is not a
    Minister but a senior civil servant, those decision makers are also entitled to
    confidential policy advice, which may or may not include explicit
    recommendations as to what the persons reporting to them believe is the
    preferred course of action.

[25]

The reasonableness standard requires courts to give deference to
    the tribunal with regard to both the facts and the law (
Dunsmuir v. New
    Brunswick
, [2008] 1 S.C.R. 190, at para. 48). In my view, the Adjudicator
    made two fundamental errors in her interpretation of s. 13(1) which led to an
    unreasonable decision; a decision that was not within the range of acceptable
    and rational solutions (
Dunsmuir
,

at para. 47). The first error was in holding that there must be evidence
    that the information in the records actually went to the final decision maker.
    The second error was in holding that s. 13 only applies to the suggestion of a single
    course of action ultimately adopted or rejected by the decision maker. I will
    deal with each error in turn.

[26]

There is no requirement under s. 13(1) that the Ministry be able
    to demonstrate that the document went to the ultimate decision maker. What s.
    13 protects is the deliberative process. During that process the position of
    the civil service will undoubtedly evolve and this evolution will be reflected
    in the advice and recommendations in the particular document. I agree with the
    description of that process by Evans J. in
Canadian Council of Christian
    Charities v. Canada (Minister of Finance)
, [1999] 4 F.C. 245 (T.D.), 53
    D.T.C. 5337, at para. 31:

It would be an intolerable burden to force ministers and their
    advisors to disclose to public scrutiny the internal evolution of the policies
    ultimately adopted. Disclosure of such material would often reveal that the
    policy-making process included false starts, blind alleys, wrong turns, changes
    of mind, the solicitation and rejection of advice, and the re-evaluation of
    priorities and the re-weighing of the relative importance of the relevant
    factors as a problem is studied more closely. In the hands of journalists or
    political opponents this is combustible material liable to fuel a fire that
    could quickly destroy governmental credibility and effectiveness.

[27]

Advice and recommendations in drafts of policy papers that are
    part of the deliberative process leading to a decision are protected by s.
    13(1). There need not be direct evidence that any particular paper made its way
    to the ultimate decision maker. The circumstantial evidence in this case is
    overwhelming that all six records were part of the deliberative process that
    led to a decision by the Minister, based on the advice and recommendations in
    these policy papers.

[28]

The unreasonableness of the approach of the Adjudicator is
    demonstrated by a simple example. Assume Record IV could be shown to
    unequivocally have been given to the Minister. Assume that Records I to III are
    earlier drafts of Record IV but, as here, very similar in content. If only Record
    IV were protected, because it could not be shown who received and acted upon Records
    I to III, the protection afforded Record IV would be illusory and meaningless.
    This would be an absurd and unreasonable interpretation and application of s.
    13(1), yet it is the inevitable result of the Adjudicators decision.

[29]

The second fundamental error made by the Adjudicator in this case
    was to interpret
MOT
and
MNDM
,
and hence s. 13(1), as protecting only information that
    identified the single course of action recommended to the decision maker. Such
    an interpretation would all but denude s. 13(1) of any real meaning and is
    unreasonable. It is inconsistent with the context in which the
Freedom of
    Information and Protection of Privacy Act
operates, which is to protect a properly
    functioning democratic process in which the civil service provides advice on a
    range of options, but is not itself always the decision maker.

[30]

Section 13(1) protects advice and recommendations. One of the
    most important functions performed by a civil service in a properly functioning
    Parliamentary democracy is to provide advice to Ministers of the Crown. Advice
    comes in different forms and one form is advice as to the range of possible
    actions. This permits the decision-maker to make the best and most informed
    decision. It would be counter-productive and inconsistent with the policy
    behind s. 13(1) to strip away this form of advice and protect only advice which
    is entirely directory. Yet this is the effect of the decision of the
    Adjudicator and the Divisional Court. To obtain the protection of s. 13(1), the
    advice would have to be presented to the decision-maker without advice as to
    the advantages or disadvantages of a particular option and by presenting the
    advice in a form that supported only one option.

DISPOSITION

[31]

Accordingly, I would allow the appeal, set aside the decision of
    the Divisional Court and the Adjudicator and remit the matter to the
    Information and Privacy Commissioner to reconsider the Requesters application
    in light of these reasons. There will be no order for costs.

Signed:        M. Rosenberg J.A.

I agree K. Feldman J.A.

 I agree K. Swinton J. (ad
    hoc)

RELEASED:  MR FEBRUARY 24, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Badiru, 2012 ONCA
    124

DATE: 20120223

DOCKET: C50244 and C50557

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
Ad Hoc
)

BETWEEN

Her Majesty the Queen

Respondent
(Appellant on sentence appeal)

and

Peyton Badiru

Appellant (Respondent
    on sentence appeal)

Howard L. Krongold and Matthew Webber, for the
    appellant/respondent on sentence appeal

Susan Ficek, for the respondent/appellant on sentence
    appeal

Heard: January 23, 2012

On appeal from the conviction entered by Justice Harriet
    E. Sachs of the Superior Court of Justice, sitting with a jury, on October 17,
    2008, and the sentence imposed on February 26, 2009.

By the Court
:

A.
INTRODUCTION

[1]

The appellant Peyton Badiru appeals from his conviction for second
    degree murder.

[2]

The appellant Crown appeals from the 13-year period of parole
    ineligibility imposed as part of Badirus sentence.

B.
FACTS

[3]

Gabriel Jaramillo was shot to death in a basement after-hours club in
    Toronto at about 6:00 a.m. on Saturday, June 3, 2006.

[4]

The core of the Crowns case against Badiru was the eyewitness testimony
    of Francisco Gellibert, the owner of the club, and Reza Talebi, the clubs
    bouncer.  Gellibert and Talebi testified that they saw Badiru shoot Jaramillo
    inside the club immediately after a fist fight between Jaramillo and Luis
    Rosales, the brother of Badirus girlfriend or wife.  They said that just as Talebi
    separated Jaramillo and Rosales, Badiru walked into the room with a handgun and
    shot Jaramillo.  Gellibert testified that there were four shots; Talebi
    testified that there were three.  An autopy revealed that one bullet struck
    Jaramillo in the neck, killing him almost instantly.  Talebi testified that
    Badiru showed up at his house after the shooting, and told him you know that
    in there, it was just me and you and no one else.  This appears to have been
    an effort to discourage Talebi from going to the police.

[5]

The defence case emphasized Gellibert and Talebis lack of credibility.
    Both witnesses were subject to
Vetrovec
[1]
warnings and there were substantial inconsistencies between their statements.
    Notably, in his initial statement to police, Gellibert did not mention Talebis
    presence or role at the murder scene.

[6]

Badiru testified that he was at the club, but was not involved in the
    shooting.  A defence witness, Jorge Riberio, testified that he was with Badiru
    in a different room of the club when the shots were fired.

[7]

After an 18-day trial, the jury convicted Badiru of second degree
    murder.  The trial judge, Sachs J., imposed a sentence of life imprisonment
    with a parole ineligibility period of 13 years.

[8]

Badiru appeals his conviction.  The Crown appeals the sentence, seeking
    to increase the parole ineligibility period to 15 years.

C.
DISCUSSION

(1)
Badirus conviction appeal

(a)

Instruction on collusion between
    Crown witnesses

Badiru contends that the trial
    judge erred by failing to instruct the jury that they could rely on mutual
    confirmation between Crown witnesses Gellibert and Talebi only if they were
    satisfied that the witnesses had not colluded about their

testimony.

[9]

Badiru does not challenge the contents of the trial judges
Vetrovec
warnings about Gellibert and Talebi.  Nor does he contend that the trial judge
    erred in instructing the jury that it was open to them to rely on similarities
    between Gellibert and Talebis accounts of the shooting as confirmatory
    evidence.  Rather, Badiru submits that once the mutual confirmation door is
    opened the jury must be cautioned about the potential for collusion between the
    witnesses.  This is so because, if there has been collusion, the evidence of
    each
Vetrovec
witness is not independent of the other and cannot,
    therefore, be confirmatory.

[10]

We
    do not accept this submission.  Defence counsel at trial did not request that
    the possibility of collusion be included in the jury charge, a copy of which
    had been provided to counsel before the pre-charge meeting.  In the pre-charge
    discussions no objection was taken to the absence of a collusion charge.  Nor
    did counsel object to its absence after the charge was delivered.  Importantly,
    defence counsel never put to either
Vetrovec
witness in
    cross-examination that they had colluded with each other.

[11]

All
    of this silence on the defence side about possible collusion between the two
    main Crown witnesses was not, in our view, accidental.  The thrust of the
    defence case was, in fact, the opposite of collusion between Crown witnesses: it
    was that the number and quality of inconsistencies between the two
Vetrovec
witnesses were so striking that it made their testimony not reliable or
    credible.

[12]

This
    focus of the defence case is well illustrated by defence counsels closing
    address to the jury:

Now two witnesses have been presented to you and Im going to
    suggest to you that theyre totally unsatisfactory.  Theyre criminal
    perjurers.  You watched them commit some crimes right in this box.  You watched
    them commit crimes on a big technicolour screen.  They have deliberately and
    repeatedly lied under oath.  They committed a daily double and triple of
    perjury.  They have lied under oath about lying while they were lying about the
    next thing.

Importantly, the two Crown witnesses that are of any
    importance in this case contradict each other on every material point including
    what happened in room number three.  On every point they contradict themselves
    from their prior statements to the next statement to what they say here in this
    trial over and over again
.                                                                                [Emphasis
    added.]

[13]

In
    short, the emphatic defence position was that Gellibert and Talebi were liars,
    as demonstrated by inconsistencies within and between their testimony, not that
    they were liars because they concocted an identical story about the events
    surrounding the shooting.  The trial judges jury charge fairly reflected the
    defence position.

(b)
Instruction on fabrication of alibi evidence

[14]

Badirus
    second ground of appeal is that the trial judge failed to properly instruct the
    jury on how to deal with the Crowns allegation in its closing address to the
    jury of a jointly concocted fabrication by Badiru and Riberio.

[15]

We
    agree with Badiru that the Crowns closing submission that Riberio and Badiru
    had concocted and colluded together to prepare their testimony overreached
    the evidence.  The Crown did not lead evidence of joint concoction, nor did it
    ask the jury to draw an inference of guilt based on joint concoction.  However,
    the trial judge did explicitly address defence counsels two main objections to
    the Crowns closing address in this domain:

During her closing address to you, Crown counsel
    suggested that Mr. Riberio gave his statement to the private investigator on
    July 25
th
, 2006 after he had had the opportunity to view Francisco
    Gelliberts videotaped statement to the police.  Crown counsel then went on to
    argue that Mr. Riberio tailored his statement to the private investigator using
    information that he had learned from viewing Mr. Gelliberts videotaped
    statement.

Members of the jury, there is
no evidence
before you that before Mr. Riberio gave his statement to the private
    investigator on July 25
th
, 2006, he had had the opportunity to view
    Mr. Gelliberts videotaped statement or even that that statement had been
    disclosed to the defence by that time.  Therefore, I am instructing you to
    ignore this aspect of Crown counsels closing remarks to you.

I am also instructing you to ignore any suggestion by
    the Crown that defence somehow participated in finding Mr. Riberio to be Mr.
    Badirus alibi witness because he was a person with no criminal record and a
    sad story to tell.  There is no evidence of any kind of misconduct
on the
    part of Mr. Badirus defence counsel
.  According to Mr. Riberio, he tried
    to contact Mr. Badiru shortly after he saw the newscast with Mr. Badirus
    picture and the mother of Mr. Badirus child got back to him.  [Emphasis
    added.]

[16]

On
    appeal, Badiru renews trial counsels assertion that no evidence was not
    strong enough; that the language should have been it was impossible.  This
    strikes us as a very minor distinction.  Badiru also submits that the
    correction relating to defence counsels conduct might have left the jury
    speculating about Badirus own role in obtaining Riberios testimony.  However,
    a fair reading of trial counsels objection to the Crown closing, both
    immediately after it was made and later in discussions about the trial judges
    draft jury charge, establishes that the central focus of the objection related
    to defence counsels conduct.  The trial judge was simply responding to the
    main thrust of the submission before her.

[17]

Badiru goes on to argue that the trial judge erred in the way she
    addressed the joint concoction issue in her charge.  In summarizing the Crowns
    position, she said: This demonstrated that their story [Badiru and Riberios]
    was a jointly concocted fabrication.

[18]

Badiru
    argues that the trial judge erred in including this statement in her charge.
    Moreover, having done so, she erred in failing to instruct the jury (1) that
    there was no evidence that Badiru and Riberio had colluded and (2) that if the
    jury disbelieved Badiru and Riberios evidence, they should not draw an
    inference that Badiru and Riberio jointly concocted their evidence and use that
    inference as evidence of guilt.

[19]

We
    would not give effect to these submissions.

[20]

We
    start by noting that, consistent with the position taken by both counsel, the
    trial judge did not instruct the jury that they were entitled to draw an
    inference adverse to Badiru if they believed that he and Riberio had concocted
    evidence.

[21]

Defence
    counsel had an opportunity to vet the trial judges charge beforehand and did
    not ask the trial judge to remove the impugned statement from her charge.  Nor
    did he ask that the trial judge give the instruction relating to the
    possibility of an adverse inference now sought.

[22]

We
    also note that the trial judge gave a carefully worded
W.D.
[2]
charge.  She instructed that if the defence evidence did not leave the jury
    with a reasonable doubt, they could find Badiru guilty only if the rest of the
    evidence that they did accept proved guilt beyond a reasonable doubt.  The
    trial judge made it clear that the Crowns case depended almost entirely on the
    evidence of Gellibert and Talebi.

[23]

Badiru
    relies on
R. v. OConnor
(2002), 62 O.R. (3d) 263, at para. 36, for
    the proposition that an instruction is required to prevent the jury from
    improperly using disbelief of an exculpatory statement to infer guilt despite
    an absence of independent evidence of fabrication.
OConnor
, like
R.
    v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5, involved allegedly false out of
    court statements introduced by the Crown to raise an inference of guilty
    fabrication.  In this case, however, Badirus and Riberios testimony was
    offered by the defence for exculpatory purposes.  We do not think that an
    instruction on the difference between disbelief and a finding of fabrication
    was mandatory here, given that the allegedly false statement was part of the
    defence evidence, the trial judge gave an adequate
W.D.
instruction, the
    Crown did not ask the jury to infer guilt from disbelief, and the defence did
    not request the instruction now sought.

(c)
Instruction on Crown witnesses lack of motive to lie

[24]

Third,
    Badiru submits that the trial judge erred by failing to instruct the jury on
    how to assess the Crowns claim that Gellibert and Talebi had no motive to lie
    about what had happened at the club, thereby improperly shifting the burden of
    proof to the defence.

[25]

We
    do not accept this submission.  The closing submission of Crown counsel on this
    point was not inappropriate; nor did it require a corrective instruction from
    the trial judge in relation to the burden of proof.  The comments of trial
    counsel did not improperly place the burden of proof on the defence.  There is
    a difference between submitting that the witnesses had no motive to lie in a
    case where the defence submits that Crown witnesses are lying, and a submission
    that the defence should have called evidence of motive to lie and failed to do
    so.  The Crown did not cross-examine Badiru to suggest that there was a burden
    on him to establish that the Crown witnesses had a motive to lie.  Defence
    counsel went to the jury almost entirely on the basis that the two main Crown
    witnesses were lying.  The Crown was entitled to counter that defence within
    limits and submit that these witnesses had no motive to lie: see
R. v.
    LeBrocq
(2011), 2011 ONCA 405, 278 O.A.C. 142, at para. 19.

(d)
Instruction on Badirus exclusive motive to kill

[26]

Badirus
    final submission is that the trial judge erred in failing to give a corrective
    instruction concerning the Crowns improper submission that Badiru was the only
    person in the club with a motive to kill Jaramillo.  Since there were many
    people in the club, most of whose relationship with the deceased is unknown,
    the trial judge should have instructed the jury to disregard the suggestion
    that only Badiru had a motive to kill the deceased.

[27]

We
    do not accept this submission.  The only evidence about anyone having a motive
    to kill Jaramillo that emerged from the trial was the fact that Rosales, the
    brother of Badirus girlfriend or wife, was in a fight with the deceased
    moments before the shooting.  The suggestion that any one among the many
    unknown people at the club could have had a motive to kill is mere
    speculation.  The jury was instructed to avoid speculation when assessing
    evidence.  Accordingly, based on the evidence, the Crowns submission on this
    point did not require correction.

[28]

For
    these reasons, we would dismiss the conviction appeal.

(2)
The Crowns sentence appeal

[29]

The
    Crown submits that in imposing a 13-year period of parole ineligibility, the
    trial judge gave insufficient consideration to the aggravating circumstances of
    the offence.  This court has said that the use of handguns in public places
    cries out for lengthy increased periods of parole eligibility:
R. v.
    Danvers
(2005), 199 C.C.C. (3d) 490, at para. 77.  Badirus callous
    execution-style shooting of an unarmed man in a club in the presence of bystanders
    showed a wanton disregard for the lives of others and warrants an exemplary
    sentence.  The Crown submits that Badirus parole ineligibility should be
    increased to 15 years.

[30]

We
    do not accept this submission.  In our view, the trial judge engaged in a
    comprehensive and fair assessment of the relevant factors.  It needs to be
    recalled that the sentence in this case is one of life imprisonment with the
    possibility  not the certainty  of parole after 13 years.  This is a lengthy
    sentence.

[31]

Moreover,
    we note that in
R. v. Dooley
, 2009 ONCA 910, 249 C.C.C. (3d) 449 at
    para. 179, Doherty J.A. observed: It is hard, absent some error in principle
    or misapprehension of material evidence, to justify appellate intervention to
    adjust a mandatory period of parole ineligibility downward by two or three
    years.  By parity of reasoning, this observation should apply with equal force
    to a Crown request to increase a period of parole ineligibility by two or three
    years, which is the Crown position in this case.

[32]

For
    these reasons, we would dismiss the sentence appeal.

D.
DISPOSITION

[33]

The
    conviction and sentence appeals are dismissed.

Released: February 23, 2012 (D.OC.)

Dennis OConnor A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (
ad hoc
)

[1]
Vetrovec
    v. The Queen
, [1982] 1 S.C.R. 811.

[2]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Costa, 2012 ONCA 127

DATE: 20120224

DOCKET: C53776

Armstrong and Watt JJ.A. and Then J.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Rodrigues Costa

Appellant

Joseph Di Luca, for the appellant

Holly Loubert, for the respondent

Heard orally: February 23, 2012

On appeal from the conviction entered on February 16,
    2011 and the sentence imposed on June 1, 2011 by Justice J.F. Kenkel of the
    Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his convictions for aggravated assault (x 1) and
    assaults with a weapon (baseball bat) (x 2) and seeks leave to appeal his
    sentence of 18 months.

[2]

On conviction, the appellant argues that the trial judge misapprehended
    the evidence in relation to an argument between the appellant and one of the
    complainants and that the trial judge imposed a higher standard of scrutiny to
    the evidence of the appellant than that used to assess the evidence of the
    complainants.

[3]

We disagree.  The record at trial does not support these grounds of
    appeal.

[4]

In respect of sentence, counsel for the appellant concedes that the
    sentence is within the range but that the trial judge failed to take into
    account the unblemished character of the appellant, the good psychological
    assessment of the appellant and his many charitable works.

[5]

While we recognize these factors, so did the trial judge and we see no
    basis to interfere with the trial judges unique role in sentencing.

[6]

In the result, the conviction appeal is dismissed, leave to appeal
    sentence is granted but the sentence appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Gebremicael, 2012
    ONCA 68

DATE: 20120201

DOCKET: C52132

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Noad Gebremicael

Appellant

Brigitte Gratl, for the appellant

Lucas Price, for the respondent

Heard and released orally: January 30, 2012

On appeal from the conviction entered on December 11,
    2009 and the sentence imposed on April 22, 2010 by Justice Roland J. Haines of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

Following a trial before a judge and jury, the appellant was convicted
    of trafficking in a controlled substance. He was sentenced to a period of
    incarceration of 14 months (including 4 months pre-trial custody credited on a
    two for one basis for 8 months) plus 2 years probation.  He appeals both his
    conviction and sentence.

The conviction appeal

(a)

Alleged Inconsistent
    verdicts

[2]

The appellant argues that inconsistencies in the description of the
    alleged cocaine in count two led to an acquittal and that the same
    inconsistencies were present in count one.  Constable Powell testified that the
    contents he observed on January 4th (count two) were the same as the contents
    he observed on January 3rd (count one). The appellant submits that Constable
    Powell was saying that the substance he received on both dates was in hard
    form, whereas Constable Hartleibs description of the contents received was
    powdery.  The appellant therefore argues that inasmuch as the jury acquitted on
    count two, the conviction on count one was unreasonable in the face of the
    inconsistent description of the cocaine.

[3]

In our opinion, it was open to the jury to interpret Constable Powells
    answer as a reference to the nature of the two substances, as opposed to their
    appearance and conclude that he was simply testifying to his belief that both
    substances were cocaine. The jurys verdicts were not inconsistent. Even if
    there was a conflict in the evidence as to whether the cocaine was in powder or
    hard form, this would not render the verdicts inconsistent in law.  A jury is
    entitled to accept some, part or none of a witnesss evidence.

(b)

Alleged Failure to
    instruct on a substance held out to be cocaine

[4]

The appellant was not charged with this offence. He was charged with
    trafficking in cocaine. The trial judge told the jury that in order to convict
    they had to be satisfied that the substance held out by the appellant was
    cocaine. There is no merit to this ground of appeal.

(c)

Whether the trial judges instruction on aiding and abetting was
    insufficient

[5]

The appellant submits that the trial judge instructed the jury that as
    long as the accused aids in the transaction, he is guilty of the charge of
    aiding and abetting.  The appellant submits that the trial judge ought to have
    made clear to the jury that an accused must be found to aid the seller not the
    purchaser.

[6]

While it would have been better if the trial judge had acceded to
    counsels request to specifically charge the jury as requested, in the
    circumstances the charge was adequate. The trial judge told the jury in order
    to find the appellant guilty they must find he aided in the commission of the
    offence. The offence charged was trafficking in cocaine.  The trial judge
    defined trafficking in the context of this case as to sell something to
    someone. In his charge on aiding, the trial judge told the jury that, It is
    the Crowns position that Mr.  Gebremicael is guilty on count four, that
    relates to the events that took place on February 1, 2008 as an aider to Mr.
    Wells who sold cocaine to Detective Constable Powell. Thus, the jury knew that
    in order to find the appellant guilty of trafficking he must be aiding the
    seller. In any event, there is no air of reality to the defence. Before the
    jury, the appellant did not argue that he was only aiding the purchaser and the
    evidence amply supported the finding that he was aiding the seller.

(d)

Whether the trial judge erred in his ruling that the appellant was not
    entrapped

[7]

The appellants submission that the trial judge erred in failing to find
    that the appellant was randomly virtue tested is without merit. The evidence of
    Constable Powell is that he attended Hush Fashions because it had been
    identified as a source of cocaine.  This evidence was unchallenged and provided
    the police with a reasonable basis for approaching the appellant, the person
    who was running the business.  The trial judges reasons for rejecting the
    appellants argument that he was induced into trafficking cocaine disclose no
    error.

[8]

Accordingly the appeal as to conviction is dismissed.

The sentence appeal

[9]

The sentence was fit and well within the range for such offences.  There
    is no error in the trial judges refusal to give a conditional sentence.

[10]

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

Karen M. Weiler
    J.A.

Robert J. Sharpe
    J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. John, 2012
    ONCA 114

DATE: 20120217

DOCKET: C49362

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kervin John

Appellant

Kervin John, appearing in person

Heather Pringle,
amicus curiae

Jamie Klukach, for the respondent

Heard and released orally: February 8, 2012

On appeal from the convictions entered by Justice Deena
    Baltman of the Superior Court of Justice, sitting with a jury, on June 3, 2008
    and the sentences imposed by Justice Baltman on September 8, 2008.

ENDORSEMENT

(1)

Conviction Appeal

[1]

The appellant argues that his trial counsels assistance was ineffective,
    resulting in a miscarriage of justice.  On this basis, he says, his convictions
    for breaking and entering and theft over $5,000 (motor vehicle) should be set
    aside and acquittals entered.

[2]

Extensive fresh evidence was tendered on appeal in support of the
    appellants ineffective assistance claim.  The fresh evidence, which we have
    reviewed in detail, wholly fails to displace the presumption of trial counsels
    competency that applies by operation of law.  Quite the opposite.  The record
    in this case, including the fresh evidence, reveals trial counsels high degree
    of effort and professionalism in advancing the appellants defence and
    interests in accordance with his express and repeated instructions,
    notwithstanding trial counsels retainer only a short time prior to this jury
    trial.

[3]

On behalf of the appellant,
amicus
attacks trial counsels
    closing submission concerning the theft of the car and its contents.  The Crown
    had a strong circumstantial case on the issue of the car theft.  DNA analysis
    revealed the appellants blood in the car, his fingerprints on the car and his
    DNA on objects in the car.  This evidence clearly linked the appellant to the
    stolen car.  In addition, there was DNA evidence linking the appellant to the
    scene of the crime.  Moreover, the appellant steadfastly refused to provide
    trial counsel with any explanation for his presence in or possession of the
    admittedly stolen car or for his whereabouts at the critical times in question,
    thus preventing trial counsel from advancing any explanation on his behalf
    before the jury. The appellant elected not to testify.  In all these
    circumstances, there was an ample evidentiary basis for the jurys verdict of
    guilty on the theft over charge.

[4]

We conclude, therefore, that there is no basis on this record to hold
    that, by reason of trial counsels conduct, trial fairness was impaired in this
    case or the jurys verdicts are unreliable.  The appellant has failed to
    demonstrate any prejudice arising from the acts or omissions of his trial
    counsel.

[5]

The conviction appeal is dismissed.

(2)

Sentence Appeal

[6]

The appellant appeals his sentences of five years imprisonment for
    breaking and entering and two years imprisonment, concurrent, for theft of the
    car, after credit for pre-sentence custody, on the basis that his total
    sentence was too harsh.

[7]

We disagree.  On the basis of the appellants extensive criminal record,
    including his record for prior similar offences, and the evidence of his
    virtually uninterrupted pattern of criminal behaviour since his return to
    Canada, the sentence imposed was fully justified.

[8]

Leave to appeal sentence is granted and the sentence appeal is
    dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.