COURT OF APPEAL FOR ONTARIO

CITATION: OZ Merchandising Inc. v. Canadian
    Professional Soccer League Inc., 2020 ONCA 532

DATE: 20200824

DOCKET: M51656 (C67488)

Roberts J.A. (Motion Judge)

BETWEEN

OZ Merchandising Inc.

Plaintiff

(Appellant/Moving Party)

and

Canadian
    Professional Soccer League Inc.,

Eastern
    Ontario District Soccer Association
,

The
    Ontario Soccer Association
,

Canadian
    Soccer Association
,

Canadian
    Soccer League Inc.,

CSL
    Association Inc., Ira Greenspoon,

Vincent
    Ursini,
Cary Kaplan
and Stan Adamson

Defendants

(
Respondents
/
Responding
    Parties
)

Rose A. Faddoul and Nicholas Karnis, for
    the moving party

Jordan Goldblatt, for the responding
    parties, Eastern Ontario District Soccer Association and the Ontario Soccer
    Association

Frank Costantini, for the responding
    party, Canadian Soccer Association

No one appearing for the responding
    party, Cary Kaplan

Heard: August 14, 2020 by
    videoconference

REASONS
    FOR DECISION

[1]

The moving party seeks leave of the court to
    file a factum exceeding 30 pages. Its draft factum surpasses 500 pages in
    length, over 300 of which are appendices. While it is now prepared to move the
    appendices to a compendium and reduce the number of pages of its factum, the
    moving party submits that it cannot reduce the draft factum to less than about
    125 pages and that any lesser extension would not be of any utility. As part of
    its factum, the moving party wishes to rely on proposed fresh evidence. It
    claims that the issues are complex, the trial was long, and it cannot properly
    argue its numerous grounds of appeal without the lengthy factum that it seeks
    leave to serve and file.

[2]

The responding parties oppose the moving partys
    motion. They say that they would not object to a factum of 40, 50 or even 60
    pages in the circumstances of this case but that the moving partys proposed
    factum is excessively long. If the moving party is permitted to file a factum
    exceeding 30 pages, the responding parties ask that they be granted the
    same extension, to which the moving party agrees.

[3]

I am not persuaded that the requested extension
    to the moving partys factum is warranted.

[4]

I start with some general, well-established
    principles. The
maximum
length of appellate facta is 30 pages: Practice
    Direction Concerning Civil Appeals at the Court of Appeal for Ontario, (March
    1, 2017), at 11.7(4). The 30-page limit is not a suggestion or a starting
    point. It has been set with a view to reasonably complex cases  simpler cases
    can often be dealt with adequately in much shorter factums:
Chief Mountain
    v. Canada (A.G.)
, 2012 BCCA 69, 317 B.C.A.C. 50, at paras. 6-7;
R. v.
    Van Wissen
, 2016 MBCA 108, at para. 5. These rationales are reflected in
    the provisions of rr. 61.11 and 61.12 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, that stipulate the need for
concise
statements of
    the facts and law in the facta submitted by appellants and respondents. The
    purpose of the 30-page limit is to focus counsel on the issues and not have a
    factum that goes on, and in fact, wanders:
Brown v. Lowe
, 2000 BCCA
    635, at paras. 1, 4. See also:
R. v. Port Chevrolet Oldsmobile Ltd.
,
    2008 BCCA 443, 262 B.C.A.C. 51, at para. 5;
Saint John (City) v. Saint John
    Firefighters Association
,
International Association of Fire
    Fighters
,
Local 771
(2010), 362 N.B.R. (2d) 327 (C.A.), at
    para. 10.

[5]

Relief from compliance with the 30-page limit for
    appellant and respondent facta requires leave of the court:
Rules of Civil
    Procedure
,

rr. 61.09(4), 61.12(8); Practice Direction, at 11.7(5).
    Leave is exceptional and granted sparingly in special circumstances:
Saint
    John Firefighters Association
, at paras. 12-13;
Canada v. General
    Electric Capital Canada Inc.
, 2010 FCA 92, 403 N.R. 114, at para. 5. While
    a party must be permitted to present its whole case effectively, this does not
    take away from the requirement of conciseness and the duty of efficiency to the
    court:
General Electric Capital Canada Inc.
, at para. 5. As Paciocco
    J.A. observed in
Michail v. Ontario English Catholic
    Teachers Assn.
(4 September 2018), Toronto, M49554 (Ont. C.A.)
, at
    para. 15,
[T]
he 30-page limit
    for facta is imposed to keep appeals manageable, efficient and cost-effective
    for the litigants and the court (cited by Brown J.A. in
Michail v. Ontario
    English Catholic Teachers Association
, 2018 ONCA 950, at para. 6.).

[6]

The overarching question is whether the
    extension is required in the interests of procedural fairness and justice to
    advise the other side of the issues in dispute so it can prepare properly for
    the appeal and to assist the division of the Court that hears the appeal to
    deal effectively with the issues:
Port Chevrolet Oldsmobile Ltd.
, at
    para. 5;
Saint John Firefighters Association
, at para. 10. See also:
JJM
    Construction Ltd. v. Sandspit Harbour Society
, [1998] B.C.J. No. 3383 (B.C.C.A.),
    at para. 6.

[7]

The fact that the appeal raises important and
    complicated questions of fact or law, there are numerous grounds of appeal, the
    underlying proceedings have been ongoing for many years, or the trial was
    lengthy, does not automatically justify an extension of the page limit. These
    circumstances inform many appeals that are nevertheless contained within the
    30-page factum limit:
General Electric Capital Canada Inc.
, at para. 5;
Talwar v. Grand River Hospital Board of Directors
, 2018 ONSC 6112
    (Div. Ct.), at para. 36;
Van Wissen
, at para. 5.

[8]

With these principles in mind, I turn to the
    circumstances of the present motion. While I give significant weight to the
    assessment of counsel for the moving party that a longer factum is required,
    the difficulty is that the materials and submissions simply contain general
    statements about the complexity of the legal and factual issues, the number of
    grounds in the notice of appeal, and the fresh evidence that the moving party
    will seek leave to file in order to present its narrative of events. From my
    review of the materials, I am unable to discern the necessity of an extended
    factum for the moving party to properly present its appeal. To permit the
    moving party to file a 125-page factum would be oppressive to the respondents
    and unhelpful to the panel hearing this appeal.

[9]

Moreover, as the moving party fairly acknowledged,
    there is much repetition in the factum, as well as references to the trial
    transcripts and other materials, that could be easily excised. Furthermore, as
    the responding parties submit, portions of the proposed factum relate to
    matters not before the trial judge, including fresh evidence and a request to
    change the venue of the trial. I see no reason why, with concise writing and
    thoughtful editing, the moving party cannot present its appeal within the
    30-page limit prescribed by the Practice Direction, at 11.7(4).

[10]

I finish with the moving partys submission that
    the 60 or so grounds in its notice of appeal cannot be fairly treated within
    the 30-page limit. This is not a determinative consideration. The moving partys
    choice to raise numerous grounds of appeal does not serve as the kind of
    exceptional circumstance that justifies exceeding the 30-page limit. Such a
    shotgun approach to appellate advocacy was decried by Chartier J.A. (as he
    then was) in
R. v. Henderson (W.E.)
, 2012 MBCA 93, 284 Man. R. (2d)
    164, at para. 51, when faced with a request for an extended factum in an appeal
    where counsel raised 23 grounds of appeal. His comments, at para. 50, are
    apposite here:

Courts expect counsel to be of assistance in
    the appellate process. They expect counsel not to waste the courts valuable
    resources by simply dumping the appeal on the courts lap. Counsel are expected
    to have sufficient confidence to prioritize their arguments, to separate the
    wheat from the chaff and to provide fully developed arguments on what should be
    the real points for appellate review. Not only is this in the best interests of
    their clients; it is in the best interests of the administration of justice.

Disposition

[11]

For these reasons, I dismiss the motion.

[12]

I grant the moving party four weeks to revise
    its factum.

[13]

Following receipt of the moving partys factum,
    the responding parties shall serve and file their facta within the time limits
    prescribed by the
Rules of Civil Procedure
.

[14]

The responding parties are entitled to their
    respective partial indemnity costs of this motion each in the amount of
    $1,700.00, inclusive of disbursements and applicable taxes.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v.
    Persons Unknown, 2020 ONCA 541

DATE: 20200824

DOCKET: M51713 (C68536)

Pepall J.A. (Motion Judge)

BETWEEN

Attorney General for Ontario

Respondent (Responding Party)

and

Persons Unknown

Respondents

and

Hasina Nanji, Indra Gordon and
    Advocacy Centre for Tenants Ontario

Appellants (Moving Parties)

Benjamin
    Ries for the moving parties, Hasina Nanji, Indra Gordon and the Advocacy Centre
    for Tenants Ontario

Domenic
    Polla for the responding party, Attorney General for Ontario

Kristin Ley, for the responding party,
    the Federation of Rental Housing Providers of Ontario

Heard: August 21, 2020 by videoconference

REASONS FOR DECISION

[1]

Before me, the moving party seeks directions but more particularly seeks
    an order for an expedited appeal of the August 2, 2020 order of Myers J. of the
    Superior Court of Justice.

[2]

On July 6, 2020, the Chief Justice of the Superior Court of Justice
    granted an order that resulted in the end of the moratorium on residential
    evictions in Ontario as of July 31, 2020.  The moving parties seek to reinstate
    that moratorium and have commenced proceedings to set aside the July 6, 2020
    order.

[3]

The moving parties brought a motion for an urgent stay of the July 6,
    2020 order until the application to set aside that order could be heard.  On
    August 2, 2020, Myers J. dismissed the motion for the stay.  He noted at paras.
    32 and 33 of his reasons that balancing the risk of COVID-19 for the subset of
    evicted, vulnerable tenants and mortgagors who may end up homeless or in
    shelters against the economic risk to landlords and mortgagees of a further
    delay of evictions reflected policy choices for the government.  However, if
    the matter were to proceed, he directed that one or more case conferences were
    to be held to determine process and parties.

[4]

In response to the moving parties request for an expedited appeal, the
    Attorney General advises that it intends to bring a motion to quash the appeal
    on the grounds that this court lacks jurisdiction. It has no objection in
    principle to the appeal being expedited but submits that the motion to quash
    should be heard first.

[5]

There is a serious threshold issue as to whether this court has
    jurisdiction and the motion to quash should be heard before scheduling the
    appeal.  That said, the motion to quash should be heard immediately.  The
    request for an expedited appeal will be adjourned to the panel hearing the
    motion to quash so that it may await the outcome of that motion.

[6]

The parties before me advised that they were content to proceed with the
    motion to quash in writing.  Counsel for the Attorney General and for the
    moving parties advised of reasonable time frames within which they could have
    their materials prepared and finalized.  Within this expedited framework, the
    Attorney General is to serve and file its motion to quash materials by August
    28, 2020 and the moving parties are to serve and file their responding
    materials by September 2, 2020.  Counsel for the Federation of Rental Housing
    Providers of Ontario advised that they support the Attorney Generals motion
    but do not plan to file any materials.  No other parties appeared and in any
    event, no case conference has been held in the Superior Court of Justice to
    address the issue of parties as directed by Myers J.

[7]

In conclusion, the motion to quash is scheduled to be addressed in
    writing before a panel on September 10, 2020, and the moving parties request
    for an expedited appeal is adjourned to that day to be dealt with in writing
    after the motion to quash has been addressed.

[8]

There shall be no order of costs of the motion for directions.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Cobra Float
    Service Inc., 2020 ONCA 527

DATE: 20200825

DOCKET: C67448

Watt, Harvison Young and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen in Right
    of Ontario (Ministry of Labour)

Respondent

and

Cobra Float Service Inc.

Appellant

Nader Hasan and Caitlin Milne, for the
    appellant

Wes Wilson and Graeme Adams, for the
    respondent

Heard: June 22, 2020 by video conference

On appeal from judgment of Justice Ronald
    Minard of the Ontario Court of Justice, dated March 19, 2019.

Harvison Young J.A.:

[1]

On appeal at the Ontario Court of Justice, Cobra
    Float Service Inc. (Cobra) was convicted for an offence contrary to the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1. Cobra argues that the appeal
    judge erred in summarily dismissing its application for a stay of proceedings, which
    it brought pursuant to s. 11(b) of the
Canadian Charter of Rights and
    Freedoms
, and before sentencing occurred. For the reasons that follow, I
    would dismiss the appeal.

A.

The Proceedings Below

[2]

In May 2013, Luis Pinto was tragically killed
    while unloading a large piece of equipment which fell over and crushed him. As
    a result, Mr. Pintos employer, Cobra, was charged in May 2014 with failing to
    ensure that equipment was not moved in a manner that endangered a worker,
    contrary to s. 25(1)(c) of the
Occupational Health and Safety Act
. After
    a five-day trial, Cobra was acquitted by a justice of the peace on the basis of
    a due diligence defence.

[3]

The Crown appealed the acquittal and was
    successful. In October 2018, the appeal judge entered a conviction and put the
    matter over for sentencing, pursuant to s. 121 of the
Provincial Offences
    Act
, R.8.0. 1990, c. P.33 (
POA
).

[4]

Before sentencing occurred, Cobra brought an
    application for a stay of proceedings, pursuant to s. 11(b) of the
Charter
.
    The Crown brought a motion for summary dismissal of Cobras s. 11(b)
    application.

[5]

In March 2019, the appeal judge dismissed
    Cobras s. 11(b) application. He found that as a statutory court, he had no
    inherent jurisdiction and there was no
POA
provision granting
    jurisdiction to hear a new
Charter
application on appeal. He stated:

there is clearly no express or implied power
    in either s. 116 or s. 121 [of the
POA
] for an appeal court to hear or
    grant relief on an issue that was not raised and ruled upon at the trial level.

[6]

The appeal judge also held that there is a
    general common law rule against determining a new issue on appeal. He found
    that the case at bar did not fit into any of the exceptions to this general
    rule.

[7]

To begin, he noted defence counsel was
    competent, and did not bring an s. 11(b) application at any point of the trial
    (despite numerous opportunities to do so, such as after the release of
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631 shortly before the trial
    began). In addition, he distinguished this case from the circumstances of
R.
    v. Bosley
, 1992 CarswellOnt 125 (Ont. C.A.), because the s. 11(b)
    application in this case could readily have been brought without in any way
    upsetting anyone. The appeal judge sentenced Cobra to a fine of $85,000.

[8]

Cobra sought leave to appeal from the conviction
    and the s. 11(b) dismissal, under s. 131 of the
POA
. This court denied
    leave to appeal from the conviction, but granted leave to appeal from the s.
    11(b) dismissal:
R. v. Cobra Float Service Inc.
(July 23, 2019),
    Toronto, M50411 (Ont. C.A.), at para. 6.

B.

Issues on Appeal

[9]

The issues on this appeal are narrow:

(1)

Did the appeal judge have the jurisdiction to consider the s. 11(b)
    application, brought before him for the first time?

(2)

If the answer to (1) is yes, did the appeal
    judge properly exercise his jurisdiction to dismiss the s. 11(b) application
    summarily?

[10]

For the reasons that follow, I would find (1) that
    that the appeal judge did have jurisdiction to consider Cobras s. 11(b)
    application, and (2) that he did not err in summarily dismissing the s. 11(b)
    application.

[11]

In light of those conclusions, it will be
    unnecessary to address the merits of the s. 11(b) application.

C.

ANALYSIS

(1)

Did the appeal judge have the jurisdiction to
    consider the s. 11(b) application, brought before him for the first time?

[12]

Cobra submits that the appeal judge erred in
    finding he had no jurisdiction over its s. 11(b) application. It notes that the
    test for
Charter
jurisdiction is set out in
R v. Conway
, 2010
    SCC 22, [2010] 1 S.C.R. 765, at para. 81, as follows:

a)

does the tribunal or court have power to decide
    questions of law; and

b)

if so, does any statute exclude
Charter
jurisdiction from the tribunal or courts powers?

[13]

In this case, Cobra submits that a statutory
    court convened under s. 121 of the
POA
clearly has powers to decide
    questions of law, and there is no statute excluding
Charter
jurisdiction
    from the
POA
courts powers. As such, the appeal judge had jurisdiction
    to hear the s. 11(b) application.

[14]

The respondent does not take issue with the
    appellants position that the appeal judge had the jurisdiction to hear the
    case. In fact, it argues that the reasons, read fairly and as a whole, indicate
    that the appeal judge was simply declining to exercise his discretion to
    entertain the application at that stage of the proceedings.

[15]

In my view, the appeal judge had jurisdiction to
    consider an s. 11(b) application on appeal. The appeal judge was sitting
    pursuant to s. 121 of the
POA
. He had the power to decide questions of
    law and the legislature has not clearly withheld authority to adjudicate the
Charter
.
    As such, pursuant to the test in
Conway
,

at para. 81, the
    appeal judge did have general jurisdiction to hear
Charter
issues that
    are properly brought before it. Further, this court has previously found that
    an appellant is entitled to raise the s. 11(b)
Charter
issue of
    post-hearing delay in an appeal to the Provincial Offences Appeal Court:
Orgaworld
    Canada Ltd. v. Ontario (Environment and Climate Change)
, 2014 ONCA 654, 319
    C.R.R. (2d) 335, at para. 2.

(2)

Did the appeal judge properly exercise his
    jurisdiction to summarily dismiss the s. 11(b) application?

[16]

As discussed above, the appeal judge had the
    jurisdiction to consider a
Charter
application. The crucial issue in
    this case arises from the fact that Cobra brought its s. 11(b) application for
    the first time on appeal.

[17]

The decision to hear a constitutional issue for
    the first time on appeal is discretionary:
Guindon v. Canada
, 2015 SCC
    41, [2015] 3 S.C.R. 3, at para. 20. Accordingly, the appeal judge had the
    discretion to decline to consider Cobras s. 11(b) application. That leads
    to the question whether the appeal judge properly exercised his discretion to
    dismiss the 11(b) application summarily.

[18]

Discretionary decisions attract a high level of
    deference on appeal. Appellate courts will only intervene where there is a
    clearly identifiable legal error, a material misapprehension of the relevant
    evidence, or a result that is clearly wrong in the sense that it is not
    defensible on the relevant law and facts:
Popack v. Lipszyc
, 2016 ONCA
    135, 129 O.R. (3d) 321, at para. 25.

[19]

Generally speaking, appeal courts will decline
    to hear new arguments on appeal, including constitutional arguments:
R. v.
    Roach
, 2009 ONCA 156, 246 O.A.C. 96, at para. 6.
As this court explained in
R. v. L.G.
, 2007 ONCA 654, 228
    C.C.C. (3d) 194, at para. 43, the reluctance to hear new issues on appeal stems
    from:

concerns about
    prejudice to the other side arising from an inability to adduce necessary
    responding evidence at trial, the lack of a sufficient record to make necessary
    findings of fact, and societys overarching interest in the finality of
    litigation.

[20]

The test for whether new issues should be
    considered on appeal is stringent. The discretion to hear a new constitutional
    issue on appeal should only be exercised exceptionally and never unless the
    challenger shows that doing so causes no prejudice to the parties:
Guindon
at para. 23. When determining whether to exercise this discretion, a judge
    should consider all of the circumstances, including the state of the record,
    fairness to all parties, the importance of having the court resolve the issues,
    and the broader interests of the administration of justice:
Guindon
,
    at para. 20.

[21]

It is also worth noting that this court has said
    the failure to move for a stay of proceedings, either before or at trial,
    would, in most cases, be fatal:
R. v. Rabba
(1991), 64 C.C.C. (3d)
    445 (Ont. C.A.), at p. 447.

[22]

Cobra argues that the appeal judge erred in
    declining to hear the s. 11(b) application. There was no waiver of s. 11(b)
    rights that warranted a summary dismissal. Rather, it submits that a
    significant portion of the delay prior to the end of the trial (10 months) was
    attributable to the trial court and the justice of the peace. This created an
    intractable dilemma, similar to that in
Bosley
, where it is
    understandable that defence counsel would not want to complain about s. 11(b)
    in the middle of the trial to the trial judge who, in its view, was partially
    to blame for the delay in issue. It was loathed to jeopardize an acquittal,
    which it obtained at trial.

[23]

As for post-verdict delay, Cobra argues they
    could not have raised those issues before the trial court, given it was
functus
at that point.

[24]

The appeal judge made a number of findings. He found
    that the defence had multiple opportunities to raise s. 11(b) concerns before
    the appeal, but did not do so. This led him to find that it was speculation to
    say Cobra would have raised s. 11(b) at trial, had Cobra been found guilty.
    In his view, experienced defence counsel made a deliberate decision not to
    raise s. 11(b) throughout the entire proceedings. These were findings of fact
    that attract a high level of deference.

[25]

I agree with the appeal judge that this case is
    distinguishable from
Bosley
, in which the unreasonable 17-month delay
    occurred entirely after the completion of evidence. Further, defence counsel in
Bosley
had repeatedly expressed concern about the delay accruing after
    the end of the evidence. Doherty J.A. called this one of those unusual cases
    where this court should entertain a s. 11(b) argument even though a stay was
    not sought prior to the completion of the proceedings below:
Bosley
,

at para. 23. This case was very different. As the appeal judge noted, the
    allegedly unreasonable delay did not entirely arise after trial, and the
    defence was silent about s. 11(b) until Cobra was convicted on appeal.

[26]

The appeal judge also addressed Cobras argument
    that it was in an intractable dilemma, given that the justice of the peace
    was a major source of the delay. Cobra submits that in these circumstances, as
    in
Bosley
, it is understandable that defence counsel was reluctant to
    bring an s. 11(b) application. The appeal judge rejected this argument, stating
    that:

the transcripts show a clear respect by
    counsel on both sides for the justice of the peace and vice versa. For lack
    again of a better phrase, their skin would not be that thin that they would
    refrain from bringing such a decisive motion simply because somebodys feelings
    might be hurt or upset.

[27]

There is no evidence on the record that allows
    this court to find that defence counsel decided not to raise s. 11(b) out of
    fear of punishment from the justice of the peace. For that reason, finding any
    fear of punishment is speculative and the appeal judge was entirely justified
    to reject the submission.

[28]

In any case, it would have been open to Cobra to
    bring a s. 11(b) application in response to the Crowns appeal from the acquittal.
    Cobra also could have requested that, if the judge was contemplating granting
    the appeal, then a new trial should be ordered to allow them to argue delay
    before a court at first instance. Despite having competent counsel, Cobra did
    not do either of these things.

[29]

Finally, Cobra also submitted that the general
    rule against raising issues, particularly
Charter
issues, for the
    first time on appeal should not apply here because the necessary record of
    dates, adjournments and full transcripts were before the appeal court as they
    are before this court. Even if that is the case, it does not follow that an
    appeal court is obliged to hear an appeal if the record is sufficient. This is
    merely one factor that may be considered. As already discussed, the rule against
    hearing new issues on appeal is stringent and the discretion to hear a new
    constitutional issue on appeal should only be exercised exceptionally and never
    lightly.

[30]

The Crown argues that had the delay issue been
    known to Crown counsel at trial, it would have asked different questions of a
    witness to build a suitable evidentiary record for the s. 11(b) application.
    The Crown also submits that having the s. 11(b) application heard on appeal
    truncates their rights of appeal, in that they would only be able to appeal on
    issue of law alone, with leave. As outlined earlier, the onus is on Cobra to
    show there is
no
prejudice in these circumstances.
    The fact that there is a complete record of timelines does not address this
    concern, and I am not satisfied that Cobra has met this burden.

[31]

The appeal judges findings were open to him on
    the record before him and I see no basis for interfering with his exercise of
    discretion not to entertain the s. 11(b) application, for the reasons he gave.
    I am not persuaded the appeal judge caused an injustice in summarily dismissing
    Cobras s. 11(b) application. As the appeal judge explained, there is nothing
    here to justify departing from the general rule that judges should decline to
    consider a new issue for the first time on appeal.

[32]

Given the high deference given to discretionary
    decisions, the stringent standard for hearing new issues on appeal, and the
    lack of exceptional circumstances that are necessary to meet this stringent
    standard, the appeal judge did not err in summarily dismissing Cobras s. 11(b)
    application.

D.

Disposition

[33]

For these reasons, I would dismiss the appeal.

Released: August 25, 2020

D.W.

A. Harvison Young J.A.

I agree David Watt J.A.

I agree S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Securities Commission v.
    Bluestream Capital Corporation, 2020 ONCA 530

DATE: 20200824

DOCKET: M51589

Paciocco J.A. (Motion Judge)

BETWEEN

Ontario Securities Commission

Creditor (Responding Party)

and

Bluestream Capital Corporation,
    Bluestream International Investments Inc., Krown Consulting Corp., 1859585
    Ontario Ltd. (Operating as Sovereign International Investments) and Peter
    Balazs

Debtors

and

Camerlengo Holdings Inc.

Garnishee (Moving Party)

Mark A. Ross and Eric Brousseau, for the moving
    party

Ian K. Latimer and Asad Ali Moten, for the
    responding party

Heard: August 20, 2020 by videoconference

REASONS FOR DECISION

[1]

Bluestream Capital Corp (Bluestream) had been
    used as a vehicle of fraud by Peter Balazs. On April 1, 2015, the respondent,
    the Ontario Securities Commission (the OSC), obtained a disgorgement order
    against Bluestream so that it could attempt to recoup funds for Mr. Balazss
    victims.

[2]

Camerlengo Holdings Inc. is a closely held
    holding company, used by the Camerlengo family for tax purposes. Mr. Fred Camerlengo
    is the sole shareholder and directing mind of Camerlengo Holdings Inc. He utilized
    several other corporations in connection with his business as an electrical
    contractor, prior to his retirement.

[3]

During its investigation, the OSC discovered that
    on January 27, 2011 Camerlengo Holdings Inc. lent $200,000 to Bluestream. On
    August 29, 2017, the OSC issued a notice of garnishment to Camerlengo Holdings Inc.
    for this amount. Mr. Camerlengo obtained leave to represent Camerlengo Holdings
    Inc. and a garnishment hearing was scheduled in early April before Schreck J. The
    sole ground of opposition offered by Camerlengo Holdings Inc. at that hearing
    was that losses suffered by members of the Camerlengo family, as victims of the
    frauds, should be set off against Camerlengo Holding Inc.s debt to Bluestream.

[4]

On April 18, 2018 Schreck J. issued his
    decision. He denied the set-off defence, declaring that Camerlengo Holdings Inc.
    owed $200,000 to Bluestream and must pay that amount to the Sheriff. Camerlengo
    Holdings Inc. did not appeal that decision.

[5]

Discussions were undertaken between Mr.
    Camerlengo and the OSC about recovery of the debt. On October 24, 2018, OSC
    counsel notified Mr. Camerlengo that the OSC would obtain the records of
    Camerlengo Holdings Inc. and go after any improper transactions. A judgment
    debtor examination was held on November 21, 2018.

[6]

On December 23, 2019, after further
    investigation, the OSC commenced a civil action against Mr. Camerlengo and his wife,
    Mirella Camerlengo. The OSC alleged, among other things, that the June 25, 1996
    conveyance by Mr. Camerlengo of his interest in the matrimonial home to his
    spouse was a fraudulent conveyance, that Mr. Camerlengo wrongly commingled
    personal and corporate funds, and that he improperly disbursed funds through
    Camerlengo Holdings Inc. for his benefit and the benefit of his wife. This
    activity allegedly included the false identification of the Bluestream loan
    deposit as a shareholder advance by Mr. Camerlengo to Camerlengo Holdings Inc.,
    declaring illegal dividends, and paying funds from Camerlengo Holdings Inc. to
    himself, M. Camerlengo and others, to the prejudice of creditors.

[7]

Camerlengo Holdings Inc. now brings a motion pursuant
    to r. 3.02 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, to
    extend the time within which Camerlengo Holdings Inc. can appeal Schreck J.s
    decision of April 18, 2018. Camerlengo Holdings Inc. also seeks corollary orders
    authorizing the serving and filing of a notice of appeal, establishing a
    deadline for the perfection of the appeal, and a stay of Schreck J.s decision.
    By challenging the decision that creates the debt, Camerlengo Holdings Inc.
    hopes to cut the legs out from under the OSCs action against the Camerlengos.

[8]

I would dismiss Camerlengo Holdings Inc.s
    motion. In all the circumstances, including the familiar factors for
    consideration identified in
Enbridge Gas Distributions Inc. v. Froese
,
    2013 ONCA 131, 114 O.R. (3d) 636, at para. 15, it is not in the interests of justice
    of the case to extend the time for appeal, leaving it unnecessary and
    inappropriate to grant the corollary relief requested.

[9]

First, Camerlengo Holdings Inc. concedes that it
    had no intention within the appeal period to appeal the decision. This is not
    fatal to the motion, since the absence of an intention to appeal is only a
    factor to be considered:
Kefeli v. Centennial College of Applied Arts &
    Technology
, [2002] O.J. No. 3023 (C.A.), at para. 14. The presence of an
    intention to appeal is, however, an important consideration unless the
    explanation for the absence of an intention mitigates its absence. The
    explanation for the absence of an intention to appeal that Camerlengo Holdings
    Inc. advances does not do so.

[10]

Paragraph (j) of Camerlengo Holdings Inc.s
    Notice of Motion accurately summarizes the state of the relevant evidence
    before me: Justice Schrecks decision was not challenged until now because
    Camerlengo Holdings was represented by Fred Camerlengo and the judgment was
    against a dormant holding company with no assets.

[11]

In relying on the fact that Camerlengo Holdings
    Inc. was represented by Fred Camerlengo, Camerlengo Holdings Inc. claims that it
    has been prejudiced by his ignorance of the law. He attests that he did not appreciate
    that there was a right of appeal, or that the decision was wrong. Camerlengo
    Holdings Inc. contends that it should be given a right of appeal now that it
    has taken legal advice and educated itself.

[12]

The OSC asks me not to believe the claims of Mr.
    Camerlengos ignorance of the law. It points out that Mr. Camerlengo operated a
    highly successful business and was an experienced litigant, having been a represented
    party in several legal actions. It says that Mr. Camerlengos claim that he did
    not know there was a right of appeal is unbelievable, and that during the
    judgment debtor examination he agreed with the suggestion that he thought
    Schreck J.s decision was wrong when it was released.

[13]

I need not make credibility findings to
    determine whether the absence of an intention to appeal has been persuasively
    explained. This is because the additional explanation for the delay in
    appealing that is offered - the fact that Camerlengo Holdings Inc. was judgment
    proof  works strongly against the extension requested.

[14]

Quite plainly, the fact that Camerlengo Holdings
    Inc. was judgment proof could only have relevance on this issue if this fact was
    considered by Mr. Camerlengo in deciding whether to challenge the decision. Either,
    contrary to the first explanation, Mr. Camerlengo was aware of the possibility
    of appeal and chose not to spend the resources required to do so because be
    believed Schreck J.s decision to be pointless, or he chose not to seek legal
    advice about whether anything could be done about Schreck J.s decision because
    be believed the decision to be pointless. Either way, on behalf of Camerlengo
    Holdings Inc., Mr. Camerlengo made a tactical decision to take no measures to
    seek to disturb the legal force of a solemn judicial decision because he believed
    it to be unenforceable. In my view, it is not in the interests of justice to
    assist Camerlengo Holdings Inc. in overcoming the implications of its own
    considered decision to disregard a judicial ruling.

[15]

The admission that Camerlengo Holdings Inc. considered
    the fact that it was judgment proof also diminishes the force of its attempt to
    rely on Mr. Camerlengos ignorance of the law as a basis for the extension. If
    Camerlengo Holdings Inc.s decision not to seek outside help from Mr.
    Camerlengo or his family to pay for a lawyer was encouraged by the belief that
    the proceedings against it did not matter because it was judgment proof, it is
    difficult to treat its unrepresented status as a consideration favouring an
    extension of the time to appeal. It appears instead to have been a tactical
    gamble aimed at saving family money that may prove to have failed.

[16]

The length of the delay also works against
    Camerlengo Holdings Inc.s request. It has been well over two years since that
    decision, the bulk of the delay occurring before COVID-19 slowed the wheels of
    justice. I do not accept Camerlengo Holdings Inc.s attempt to lay
    responsibility for this inordinate delay at the feet of the OSC because it
    delayed its enforcement efforts. Again, that is tantamount to saying, Had the
    OSC alerted us sooner that the decision may matter, we would have acted
    sooner.

[17]

I accept that the delay has caused prejudice.
    The recovery efforts of the OSC are undertaken on behalf of the Balazs victims
    whose interests are compromised by any delays in recovery.

[18]

Finally, with respect to the strength of the
    appeal, I do not share Camerlengo Holdings Inc.s assessment that Schreck J.s
    decision is obviously incorrect. Camerlengo Holdings Inc.s appeal rests on the
    theory that, even though no finding was made on this issue by Schreck J., its
    loan to Bluestream must be taken on appeal to have been a demand loan that was
    not yet due and payable, and therefore not subject to garnishment under the
    authority of
Transportaction Lease Systems Inc. v. Spire Freezers Ltd.
,
    2011 ONSC 5509. Camerlengo Holdings Inc.s case on appeal is certainly
    arguable, but its outcome is far from obvious.

[19]

First, the status of the loan was not raised as
    an issue before Schreck J. The only objection taken to the garnishment was the
    set-off claim and Camerlengo Holding Inc. does not propose to take issue with
    Schreck J.s decision on this issue if an extension of time to appeal is granted.
    As pointed out by OSC counsel during the hearing, Schreck J. decided correctly
    the only issue litigated before him.

[20]

Second, even if this first obstacle is overcome,
    success in an appeal of Schreck J.s decision depends upon this court accepting
    the twin submissions that: (1) the loan in question was a demand loan that was
    not due and payable, and (2) garnishment of a debt under a demand loan is only
    possible where a demand for payment has been made and the loan becomes payable.

[21]

The first submission is problematic. Cases
    provided by Camerlengo Holdings Inc. do support the proposition that a loan
    made without terms is a demand loan, however it was not affirmatively
    established before Schreck J. that the Bluestream loan did not have terms, and
    there is controversy between the parties about who bore the burden at the
    garnishment hearing on this question. Moreover, Camerlengo Holdings Inc. did
    not take the position before Schreck J. that the loan was not due and payable.
    To the contrary, he testified that the reason he did not repay the loan was that
    Mr. Balazs disappeared.

[22]

Even if this proves to have been a demand loan
    that was not yet due and payable, the application of the decision in
Transportaction
    Lease Systems Inc.

is not assured. That decision is not binding in
    this court. Indeed, this court does not appear to have decided whether demand
    loans can be garnished where no demand has been made. Moreover, in
Transportaction
    Lease Systems Inc.
, at para. 19, M. Brown J. specifically left open the
    possibility that another judge may come to a different decision where there are
    allegations of fraudulent transactions or conveyances taken. In this case such
    allegations have been made.

[23]

In deciding where the interests of justice lie, Camerlengo
    Holdings Inc. asks that I consider the inequity of the OSC seeking to set aside
    longstanding transactions, including the conveyance of an interest in the
    matrimonial home, in order to obtain recovery from victims of the very fraud
    they are pursuing. In order to do so I would have to prejudge the merits of the
    OSCs action, and I will not do so. Moreover, if I was to get into the business
    of considering the equity of the OSCs action I would have to consider that
    unless the OSCs action succeeds, Mr. Camerlengo may receive a windfall. As the
    sole shareholder of Camerlengo Holdings Inc., he will have had the benefit of a
    $200,000 loan that Camerlengo Holdings Inc will never have to repay.

[24]

In all of the circumstances, it is not in the
    interests of justice to extend the time to appeal. The motion for an extension
    under r. 3.02 is dismissed, as are the requests for leave to file a notice of
    appeal and time to perfect.

[25]

Costs are payable to the OSC in the amount of
    $10,000, inclusive of disbursements and applicable taxes.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Amankwa, 2020 ONCA 514

DATE: 20200818

DOCKET: C66958

Roberts, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shadrack Amankwa

Appellant

Shadrack Amankwa, acting in person

David Parry, appearing as duty counsel

Benita Wassenaar, for the respondent

Heard: August 11, 2020 with the appellant
    appearing by teleconference and duty counsel and the respondent appearing by
    videoconference

On appeal from the conviction
    entered by Justice Cynthia Johnston of the Ontario Court of Justice on April
    12, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of the offences of break and enter and
    commit theft, and robbery with an offensive weapon. He pled guilty to the break
    and enter charge but disputed the robbery charge.

[2]

Following the end of their relationship, the appellant carried out a
    home invasion robbery at his former girlfriends residence. Accompanied by
    another man, the appellant admitted that he kicked in the door of her
    condominium. He confronted the complainant with what appeared to her to be a
    firearm while she was in bed with her one-year-old son. He pushed the complainant
    against her bedroom wall and demanded money, which she gave to him. The appellant
    and his accomplice also took the complainants computer and television that she
    has never recovered.

[3]

The appellant was sentenced on the convictions to four years imprisonment
    less 308 days credit for pre-sentence custody. He is now out of custody and
    has abandoned his sentence appeal.

[4]

The appellant appeals only his robbery conviction. With the able
    assistance of duty counsel, the appellants main submission is that the trial
    judge engaged in uneven scrutiny of the evidence of the appellant and the
    complainant.

[5]

We do not accept this submission.

[6]

It is well established that the standard for the ground of uneven scrutiny
    is high and the trial judges findings on credibility are owed deference. As
    this court, per Laskin J.A., explained in
R. v. Aird
, 2013 ONCA 447, at
    para. 39:

The "different standards of scrutiny" argument is a difficult
    argument to succeed on in an appellate court. It is difficult for two related
    reasons: credibility findings are the province of the trial judge and attract a
    very high degree of deference on appeal; and appellate courts invariably view this
    argument with skepticism, seeing it as a veiled invitation to reassess the
    trial judge's credibility determinations. Thus, as Doherty J.A. said in
R.
    v. J.H.
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59: "[t]o succeed
    in this kind of argument, the appellant must point to something in the reasons
    of the trial judge or perhaps elsewhere in the record that make it clear that
    the trial judge had applied different standards in assessing the evidence of
    the appellant and the complainant."

[7]

There is no indication that the trial judge applied different standards
    in assessing the evidence of the appellant and the complainant in this case. We
    see no basis to interfere with the trial judges findings that were reasonable
    and grounded in the evidence that was open to her to accept.

[8]

The trial judge was alive to the frailties in the complainants
    evidence, including the fact that she failed to immediately tell the police of
    her relationship with the appellant and attempted to downplay that relationship
    at trial. As she was entitled to do, the trial judge accepted the complainants
    explanation of her failure to be entirely candid about her relationship with
    the appellant because she was embarrassed by it. She concluded that the
    complainant was otherwise credible and reliable with respect to the details of
    the home invasion robbery.

[9]

As she was also at liberty to do, the trial judge did not accept the
    appellants evidence where it conflicted with the complainants version of
    events. Her rejection of the appellants evidence did not result from trial
    judges uneven scrutiny but from the clear problems with the appellants credibility
    that the trial judge detailed in her reasons. The most striking example, as the
    trial judge noted, was the appellants denial of being angry notwithstanding that
    he admitted violently kicking in the complainants door.

[10]

The
    appellant, himself, questioned the reasonableness of the trial judges findings
    that he threatened the complainant with an offensive weapon and put his hands
    on her neck. These findings were reasonable and supported by the complainants
    evidence that the trial judge was entitled to accept. There is no basis to
    intervene.

[11]

In
    conclusion, we see no error in the trial judges analysis or conclusions, which
    were reasonable and open to her to make on the record before her. After
    carefully considering the whole of the evidence, she determined that the Crown had
    met its high onus of proving beyond a reasonable doubt that the appellant had
    committed the robbery offence as charged. Essentially, the appellant is asking
    this court to retry the case. That is not the function of an appellate court.

[12]

Accordingly,
    the appeal is dismissed.

L.B. Roberts J.A.

B.W.
    Miller J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Claros, 2020 ONCA 519

DATE: 20200821

DOCKET: C65618

Roberts,
    Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Marcelo Claros

Appellant

Christopher Marcelo Claros, acting in
    person

Richard Litkowski, duty counsel

Jessica Smith Joy, for the respondent

Heard: August 12, 2020 by videoconference

On appeal from
    the convictions entered on January 26, 2018 by Justice Frederic M. Campling of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of aggravated
    assault and various firearms offences, all related to the shooting of David
    Fafinski with a shotgun at an intersection in Hamilton, Ontario. The appellant
    was sentenced to imprisonment for slightly less than five years.

[2]

The appellant appealed his convictions; the
    Crown appealed sentence. A differently-constituted panel of this court already
    allowed the Crowns sentence appeal and substituted a global sentence of eight
    years imprisonment: see
R. v. Claros
, 2019 ONCA 626. The appellant
    pursues his appeal against conviction.

[3]

By way of overview, we adopt the following factual
    summary from this courts reasons in
Claros
, in which Paciocco J.A. wrote, at
    paras. 9-13:

On May 25, 2016, Mr. Claros had a mutual
    friend [Chantelle Tweddle] arrange a meeting with David Fafinski at 9:00 p.m.
    in Hamiltons east end. Mr. Fafinski was asked to bring $14,000 worth of
    cocaine to that liaison. Mr. Fafinski thought he was meeting the mutual friend
    when he showed up, but Mr. Claros was there instead.

At some point after encountering Mr. Claros,
    Mr. Fafinski attempted to flee. As he ran down a Hamilton street near an
    intersection, Mr. Claros shot him with a sawed-off shotgun. The shotgun was
    loaded with buck shot, not bird shot.

Mr. Fafinski was lucky. His lower extremities
    were sprayed and he was knocked down, but his injuries were not serious.

Immediately after the shooting, Mr. Claros
    fled. As a result, he was not arrested at the scene.
That
    arrest happened two days later after he and his girlfriend, Halley MacPhee,
    tried to outrun the police in the car Ms. MacPhee was driving near Thunder Bay.
    The chase ended when Ms. MacPhee stopped to avoid a spike belt, and the pair
    was arrested.

During the police chase,
    Mr. Claros threw the shotgun out of the moving vehicle. It seems the pursuing
    officers did not see this happen. The shotgun was found on the side of the road
    by a concerned citizen who called the police.
The
    recovered shotgun proved to have been stolen. It also proved to have Mr.
    Claross DNA on its surface. As a result, Mr. Claros was charged with firearms
    offences related solely to the Thunder Bay incident.

[4]

The appellants girlfriend, Ms. MacPhee, was
    jointly charged with numerous offences arising from the Hamilton shooting. She
    was acquitted on all counts.

[5]

With the assistance of duty counsel, the
    appellant raises numerous grounds of appeal.

THE EVIDENCE OF CHANTELLE TWEDDLE

[6]

The appellant made a number of submissions
    concerning the frailties of Chantelle Tweddles evidence, as well as
    shortcomings in how the trial judge evaluated her evidence.

[7]

The case for the Crown hinged on Ms. Tweddles
    evidence. She had a child with the appellant. The appellant and Ms. MacPhee
    visited Ms. Tweddle on the day of the shooting. It was at the appellants
    urging that Ms. Tweddle arranged the fictitious drug transaction with Mr.
    Fafinski and led him to believe that he would be meeting her at the Hamilton
    intersection.

[8]

In his oral reasons for judgment, the trial
    judge said that Ms. Tweddle was the most important witness for the Crown. He appreciated
    that her evidence had to be approached with caution. After all, she was an
    unindicted accomplice. She gave inconsistent statements to the police out of
    fear of being charged in the shooting. As the trial judge said:

And at the outset, I will say there are
    circumstances that required me to carefully scrutinize her evidence and to
    consider what other evidence was confirmatory of hers.

After doing that, and I arrived at the
    conclusion which I was inclined to when I first listened to Ms. Tweddle, and that
    she was telling the truth as best she could remember it roughly a year and a
    half after the fact.

[9]

The trial judge also found that the police
    threatened to charge Ms. Tweddle if she did not tell the truth. He noted that
    these threats are among the reasons I found it necessary, despite my initial
    inclination to believe Ms. Tweddle, to scrutinize her evidence more carefully
    and particularly to look for confirmatory evidence.

[10]

The appellant submits that, although the trial
    judge said he would carefully scrutinize Ms. Tweddles evidence, this
    approach is not borne out in his reasons. We disagree. In the course of
    recounting Ms. Tweddles narrative, the trial judge referred to other
    supporting evidence. This included cell phone records. The Crown also led the
    evidence of a witness, who the trial judge characterized as an excellent
    witness with a good recall and a good attention to detail. That witness made
    observations from his third-floor apartment close to the intersection. Although
    he did not see the actual shooting, this witness heard a loud bang and looked
    out of his window. He saw a man run to a silver Ford Mustang, a car that fits
    the description of the vehicle that the appellant and Ms. MacPhee were in when
    fleeing the police in Thunder Bay two days later.

[11]

As discussed below, although the trial judge
    disbelieved Mr. Fafinskis evidence concerning the identification of the
    shooter, he accepted other aspects of his evidence that confirmed Ms. Tweddles
    version of events.

[12]

The appellant points to other aspects of Ms.
    Tweddles testimony that he says are problematic. Ms. Tweddle had deleted
    important text messages that she referred to in her evidence. It would appear
    that, outside of court, she refreshed her memory about a cellphone number from
    phone records that had yet to be authenticated; the trial judge had ruled that
    she could not refresh her memory from these unauthenticated records. The
    appellant also contends that the trial judge failed to assign sufficient weight
    to Ms. Tweddles prior inconsistent statements. Finally, the appellant claims
    that Ms. Tweddle had an animus towards him that coloured her testimony.

[13]

We do not accept these submissions. The trial
    judge was keenly aware of the in-and-out-of-court circumstances that touched on
    Ms. Tweddles performance and credibility as a witness. In terms of refreshing
    her memory, the records in issue were subsequently authenticated. Moreover,
    there is no credence to the claim of animus. The evidence demonstrated that the
    appellant and Ms. Tweddle maintained a positive relationship around the time of
    the shooting; the appellant and Ms. MacPhee spent a couple of hours with Ms.
    Tweddle earlier that same day. As the trial judge said, it appears that you
    [the appellant] and Ms. Tweddle had a reasonably civilized relationship as
    parents of the same child.

[14]

The appellants essential claim is that the
    trial judge erred in accepting Ms. Tweddles evidence and that he was unduly
    generous in overlooking the flaws in her testimony. The trial judges
    credibility assessments are entitled to deference on appeal. There is no basis
    to intervene on appeal.

[15]

We dismiss this ground of appeal.

THE EVIDENCE OF DAVID FAFINSKI

[16]

The appellant submits that the trial judge erred
    in the way he dealt with the evidence of Mr. Fafinski. The Crown did not call
    him as a witness; the defence did. Mr. Fafinski testified that he knew who shot
    him and it was not Mr. Claros. However, Mr. Fafinski would not say who it was.
    If it had been the appellant who shot him, he would not have said so.

[17]

The trial judge rejected Mr. Fafinskis evidence
    on this point. The appellant submits that the trial judge failed to provide
    proper reasons for doing so. We disagree. The trial judge said the following:

Mr. Fafinski is a man with a significant
    criminal record, but currently with a job as a tow truck driver. He appears to
    have left the criminal life.

It was very clear to me that he was lying, and
    he was lying for a very understandable reason, and he did not want to finger
    you. He had not done so throughout the investigation, and there are obvious
    reasons why he would not do so. One is fear of retaliation and opprobrium
    which greets  a rat or an  informer. And in my view, he would not have said
    anything to harm your case. For that reason, when he said, he and you had no
    animosity, contrary to the evidence of Ms. Tweddle, I disbelieve Mr. Fafinski
    on that as well.

[18]

We see no error in the trial judges approach.
    His explanation for rejecting Mr. Fafinskis evidence on this point is entitled
    to deference on appeal.

[19]

We reject this ground of appeal.

THE INJURY AND THE SHOTGUN

[20]

The appellant submits that the trial judge erred
    in finding that Mr. Fafinskis injury was caused by the same shotgun recovered
    by the police in the aftermath of the Thunder Bay offences. The trial judge
    held that there is no expert evidence about that gun, but I am satisfied
    beyond a reasonable doubt on the other evidence that it was the gun that you
    used to shoot Mr. Fafinski. The trial judge referred to hospital records that
    were admitted into evidence. He also considered evidence of holes in a window
    near the shooting scene. The trial judge then made the following findings:

Thats consistent with the weapon being a
    shotgun, but other than the circumstantial evidence, there is no other proof
    that it was the gun found in your possession.

I examined Exhibit 4 as closely as I could.
    Its the spent 12-gauge shell.
I am not an expert, of course, but there was
    nothing about it that told me whether it had contained buckshot or some other
    type of projectile
.

So simply, on the physical evidence,
    leaving aside the circumstantial evidence, Mr. Fafinskis wound could have been
    caused by Exhibit 3. It was not caused by an ordinary bullet from a rifle or a
    handgun
. [Emphasis added.]

[21]

The appellant submits that the trial judge erred
    in making these findings without expert evidence and that he improperly took
    judicial notice of these facts. We are satisfied that there was an evidentiary
    foundation for the trial judge to make the inferences that he did, in the
    absence of expert evidence, and without resort to judicial notice.

[22]

First, the trial judge based his findings on the
    physical evidence, along with the circumstantial evidence related to the
    Thunder Bay incident. The police recovered a shotgun on the side of the road,
    wrapped in a shower curtain. The appellants DNA was found on the gun. The gun
    had been reported stolen in Alberta. The appellant traveled from Alberta to
    Hamilton to visit his son on the day of the shooting. After the shooting, it
    would appear that he was traveling back to Alberta with the shotgun when he was
    arrested. Accordingly, there was compelling evidence that it was the same gun.

[23]

Second, although proof that the same shotgun was
    used in both sets of offences would have strengthened the identification of the
    appellant as the shooter, the appellants liability did not turn on the gun
    being the same. Moreover, the evidence identifying the appellant as the shooter
    was already compelling, if not overwhelming.

[24]

We would dismiss this ground of appeal.

LATE DISCLOSURE AND
CHARTER
RELIEF

[25]

There were disclosure problems in this case. It
    was not until the eve of trial that significant disclosure was made to the
    defence. After the trial was underway, a surveillance video and text messages
    between the appellant and Ms. MacPhee were disclosed. This resulted in two
    failed applications to stay proceedings under ss. 7 and 24(1) of the
Canadian Charter of Rights and
    Freedoms
.
Still, the trial judge said he was rather
    shocked by the shortcomings in disclosure and felt that there should be some
    remedy. He rejected an award of costs as a remedy because the appellant was
    defended on a legal aid certificate. Consequently, he sought to remedy the
Charter

breaches
    through a sentence reduction.

[26]

In
Claros
, on the sentence appeal, this
    court found that the trial judge erred in reducing the appellants sentence as
    a remedy for the
Charter

breaches. Applying the principles in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1
    S.C.R. 206, Paciocco J.A. said, at para. 75: Here there is simply no link
    between the
Charter
breaches and the determination of a fit sentence. In my view, this is therefore
    not a case for a sentencing reduction.

[27]

The appellant submits that, as a result of this
    decision, he has been unfairly deprived of a remedy for
Charter

violations
    found by the trial judge. We disagree. The nullification of the sentence
    reduction as a

remedy by the panel in
Claros
does not impact on the correctness
    of trial judges refusal to grant either of the other two remedies he
    considered (i.e., a stay of proceedings or a costs award). The appellant does
    not challenge the trial judges decision refusing to order a stay of
    proceedings. This signals an acceptance that the trial judge ensured that the
    fairness of the trial was not compromised by the late disclosure. Nor does the
    appellant ask this court to make a costs order, or grant any other remedy that
    is appropriate and just. There is no reason to believe that the appellant
    would be in any different position had the same panel heard the appeals against
    sentence and conviction at the same time.

[28]

This ground of appeal is dismissed.

CONCLUSION

[29]

The appeal is dismissed.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.

Gary
    Trotter J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.B., 2020 ONCA 512

DATE: 20200818

DOCKET: C67835

Roberts, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.B.

Appellant

D.B., acting in person

Lynda Morgan, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: August 10, 2020 by videoconference

On appeal from the sentence imposed
    by Justice Hugh K. OConnell of the Superior Court of Justice on November 26,
    2019.

REASONS FOR DECISION

[1]

The appellant pled guilty to and was convicted of the sexual
    assault of his estranged wife and use of an imitation firearm
. He was sentenced
    to a four-year custodial sentence less pre-sentence custody of 31.5 months.

[2]

The appellant appeals from his sentence. With the able assistance of duty
    counsel, he submits the sentencing judge made the following reversible errors:

i.

The sentencing judge
erroneously considered
    premeditation of the sexual assault as an aggravating factor that materially
    impacted his sentence for that offence. The inference of premeditation of the sexual
    assault was not the only reasonable inference open to the sentencing judge on
    the agreed statement of facts.

ii.

The sentencing judge failed to give sufficient enhanced credit for pre‑sentence
    custody. The additional amount of four months allotted by the sentencing judge
    for the harsh conditions that the appellant endured while in custody prior to
    sentencing was so low that it resulted in an error of law.

[3]

The appellant himself made the submission that the three-year probationary
    period was too long and unnecessary.

[4]

We do not accept these submissions.

[5]

The agreed statement of facts amply supports the sentencing judges
    finding that the entire sequence of events resulting in the offences committed
    by the appellant was the product of deliberate planning and premeditation, trickery
    and luring.

[6]

According to the agreed statement of facts that formed the foundation of
    the appellants guilty plea, under the admitted false pretence of collecting
    winnings from a bet to share with her, the appellant lured his estranged wife
    to a motel room that he had previously reserved. To persuade her to enter the motel
    room, he told her others would be present, which the appellant also admitted
    was false. Once his estranged wife was inside the motel room, the appellant locked
    and barred the door with handcuffs that he had brought with him and a chair. He
    advised her that he was going to kill himself, showing her what appeared to be
    a firearm and bullets that he had previously placed in a drawer in the motel room,
    but that he would first sexually assault her, which he did. He told his estranged
    wife that he would not use the firearm against her but that he would become
    physical if she tried to leave or use her cell phone. Out of fear that he would
    kill himself, the appellants wife remained with him overnight and then drove
    him the next morning for food and back to his car.

[7]

In the circumstances of this case, it would have been highly artificial for
    the sentencing judge to separate out the different components of what was clearly
    planned as a sequence of events that the appellant intended to and did commit against
    his estranged wife and against her will. The sentencing judge did not stray
    beyond the agreed facts; any inferences that the sentencing judge drew followed
    clearly from what was set out in the agreed statement:
R. v. Druken
,
    2006 NLCA 67, at para. 18.

[8]

Even if the sentencing judge had erred as argued, the alleged error had
    no impact on sentence which was entirely fit and there is no basis for appellate
    intervention:
R. v. Lacasse
, [2015] 3 S.C.R. 1089, at para. 44.

[9]

First, there is no issue that the sentence is well within the appropriate
    range of 21 months to four years in cases of sexual assault involving forced
    intercourse with a spouse or former spouse, as identified by this court in
R. v. Smith
,
    [2011] O.J. No. 3832 (C.A.), at para. 87. Moreover, there were numerous other aggravating
    features of the offences that amply justified the three-year custodial sentence
    for sexual assault. These included: the appellants planning and deliberation of
    the entire scenario by reserving the motel room and bringing what appeared to
    be bullets and a firearm; his trickery and luring that breached the trust
    relationship with his estranged wife; his confinement of her and threats of physicality
    if she attempted to leave; and his sexual assault of a former domestic partner.
    The sentencing judge properly considered and applied the appropriate sentencing
    principles and reasonably balanced the aggravating and mitigating factors,
    including the appellants guilty plea.

[10]

With
    respect to the sentencing judges determination of four months of enhanced credit
    for the harsh conditions of the appellants detention, we see no error in the exercise
    of his discretion. As this court most recently reiterated in
R. v. Brown
,
    2020 ONCA 196, at para. 13, it is well-established that the amount of enhanced
    credit granted engages the sentencing judges discretion
.
It
    is not subject to any rigid formula or calculus. The sentencing judge thoroughly
    considered the relevant circumstances and his decision was reasonable and not
    demonstrably unfit.

[11]

Duty
    counsel submitted that if this court rejects this ground of appeal,
    consideration should nevertheless be given to facilitate the appellants early
    release because of the risks that the appellant runs while incarcerated during
    the COVID-19 pandemic. The appellants statutory release date is in October
    2020.

[12]

We
    cannot intervene. Whether or not the appellant should be granted early parole
    because of COVID-19 considerations is a matter strictly within the jurisdiction
    of the Parole Board. While he remains in custody, the primary responsibility
    for his welfare and safety lies with the federal government and Corrections
    Canada.

[13]

Finally,
    with respect to the probationary order, the appellant has not pointed to any
    error in the exercise of the sentencing judges discretion that would permit
    appellate intervention.

[14]

We
    find no basis to interfere with the appellants sentence.

[15]

Accordingly,
    the appeal is dismissed.

L.B. Roberts
    J.A.

B.W.
    Miller J.A.

Gary
    Trotter J.A.