COURT OF APPEAL FOR ONTARIO

CITATION: Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 722

DATE: 20211015

DOCKET: C69156

Strathy C.J.O., Pepall and Pardu JJ.A.

BETWEEN

Thrive Capital
    Management Ltd., Thrive Uplands Ltd.,
     2699010 Ontario Inc. and 2699011 Ontario Inc.

Plaintiffs (Respondent)

and

Noble 1324 Queen Inc., Michael Hyman, Giuseppe
    Anastasio, David Bowen, Noble Developments Corporation, Hampshire and
    Associates Incorporated, Lisa Susan Anastasio, Rajeree Etwaroo and Con-Strada
    Construction Group Inc.

Defendants (Appellants)

Justin Necpal, Justin H. Nasseri and Joshua Ng, for the
    appellants

Brian N. Radnoff and Joshua Suttner, for the respondents

Heard: September 15, 2021 by video conference

On
    appeal from the judgment of Justice Markus Koehnen of the Superior Court of
    Justice, dated January 21, 2021.

Pardu J.A.:

[1]

The appellants were found in contempt of court for multiple failures to
    disclose their assets and to account for money paid in respect of real estate investments.
    They do not challenge the finding of contempt but say that the motion judge
    erred in granting judgment against them for some $9 million dollars, following
    the sentencing hearing.

Background

[2]

The respondents alleged that the appellants misappropriated $9 million
    dollars of investment funds intended for real estate projects in Brampton and
    Richmond Hill.

[3]

The respondents started an action and quickly obtained a
Mareva
injunction. The motion judge found that the respondents had a strong prima
    facie case that their assets had been misappropriated. The terms attached to
    the
Mareva
injunction required the appellants to produce an accounting
    for the funds, affidavits of assets, and contact information for the recipients
    of all funds and documents related to the real estate projects.

[4]

The matter was adjourned several times in an attempt to persuade the
    appellants to comply, without success. They were found in contempt on June 19,
    2020 and do not challenge that finding.

[5]

Their purported compliance was derisory. As the motion judge noted, the
    appellants:

blatantly ignored even the
    simplest of court orders, have forced the plaintiffs to court on numerous
    occasions to deal with their outright refusals to comply and have wasted scarce
    public resources in doing so. They have treated court orders as meaningless
    scraps of paper that could be used to tie the plaintiffs up in knots rather
    than as mandatory directives that form an essential part of basic social order.

[6]

The flagrant nature of the contempt is demonstrated by the responses to
    the order to disclose their assets.

[7]

Hymans affidavit of assets filed following the April 23, 2020 order
    describes a bank account with $17 in it, shares in a private company he valued
    at $500, and corporate assets of about $1916. A net worth statement he filed
    about two months earlier showed net assets of $15,061,000, including $5 million
    in cash, a Rolls-Royce and a Lamborghini with a total value of $1,564,000, and
    five other cars worth over $2 million. Hyman asked for an interim order
    permitting him to use $40,000 a month for living expenses.

[8]

In a similar vein, Anastasios affidavit of assets disclosed a bank
    account containing $18,517.91 and two Volkswagen Jettas worth about $15,000
    each. He was also discovered to have leased a Porsche 911 and a Rolls-Royce. He
    asked for $20,000 a month for living expenses.

[9]

Their affidavits, purportedly filed to explain where the money went, do
    more to obfuscate than clarify

[10]

The
    motion judges observation, I cannot understate the seriousness of the
    Defendants continued contempt of court, was well founded. On June 19, 2020 he
    found the appellants in contempt for failure to comply with the orders to
    provide an accounting of funds, disclosure, and contact information for
    individuals or entities who received money from the accounts or the appellants.
    In addition, he found Hyman in contempt for failing to close the purchase of
    the Richmond Hill property, breaching the
Mareva
injunction by
    transferring funds, failing to provide information regarding vehicles, and
    breaching the prohibition that the Mercedes Benz and Land Rover were not to be
    driven. After making these findings, the motion judge asked the parties to make
    submissions on whether judgment was a possible sanction for contempt.

[11]

The
    respondents served a motion record seeking judgment against the appellants in
    the form of a r. 60.11 sanction for contempt:
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

They did not invoke r. 60.12 in their motion
    record. The appellants sought an urgent case conference, claiming that they had
    been taken by surprise by the request for judgment and that this required
    submissions on the merits of the action.

[12]

The
    motion judge adjourned the sentencing hearing for a month to allow the
    appellants to prepare arguments on whether judgment in the action could be a
    sanction for contempt. He directed that the arguments available were that it
    was possible, that it was not possible, or that it was not possible without
    adjudicating the merits. He directed: The point of the sanctions hearing is
    not, however, to argue the merits. The defendants are able to argue on the
    sanctions hearing that judgment on the merits is not appropriate without an
    adjudication on the merits. That does not require them to actually adjudicate
    the merits.

[13]

The
    respondents provided the appellants with the case authority upon which they
    relied to support their claim for judgment,
Falcon Lumber Limited. v.
    24803375 Ontario Inc.
, 2019 ONSC 4280,
    affd 2020 ONCA 310,

a case dealing with striking
    pleadings for failure to make documentary disclosure.

[14]

The
    respondents sought judgment against the appellants and 6 months incarceration.

[15]

The
    motion judge concluded that the appellants behaviour was serious enough to
    warrant incarceration, but that judgment was more appropriate. He found that it
    would be inappropriate to allow the appellants to defend the proceeding, while
    at the same time ignoring orders of the court. He found that a fine would not
    be adequate to persuade the appellants to obey the court orders and would
    amount to a licence to steal. The appellants efforts to comply with the orders
    were inadequate and their evidence was not worthy of belief. They continued to
    be in contempt of the orders at the sentencing hearing.

[16]

The
    motion judge was satisfied that the appellants conduct warranted incarceration
    but concluded that incarceration was not the preferable penalty. He concluded
    that it was most appropriate to tailor the remedy to the default by granting
    the respondents judgment. He indicated that he would ordinarily expect a party
    who was accused of a $9 million fraud to explain why they were legitimately
    entitled to the money. In the absence of any explanation some nine months after
    the action had been started, he indicated that he saw no injustice in granting
    judgment against the appellants. Relying on rr. 60.11 and 60.12 as the source
    of his authority, he concluded this is an appropriate case in which to use
    that power as a sanction for contempt. Here the defendants have not yet
    defended. The appropriate corollary is to deny them the ability to defend and
    to enter judgment against them. He concluded that if he had not granted
    judgment, he would have sentenced the appellants to six months incarceration.

Analysis

[17]

Here
    the motion judge was critical of the appellants failure to explain why they
    were entitled to the money and relied on that failure in deciding that judgment
    was the appropriate remedy. However, he had instructed that the appellants were
    not to address the merits of the action at the sentencing hearing. This
    requires that the judgment be set aside and the matter returned to the Superior
    Court for a new sentencing hearing. In light of the appellants behaviour, it
    is easy to see why he was highly skeptical that there was any defence to the
    action. If the merits were a factor, however, the appellants should have been
    able to address that issue.

[18]

I
    turn now to a consideration of the issues raised by this appeal:

1.

What factors are relevant to determining a sanction for contempt?

2.

Can an opposing party move to strike a defence or bar a defendant from
    participating in the proceeding as a remedy for contempt?

3.

If such a motion is brought, are the merits of the proceeding a factor in
    deciding whether to grant the remedy?

4.

Is judgment directly available as a sanction for contempt?

5.

What are the steps required to attempt to obtain judgment against a
    party in contempt?

[19]

The
    merits of an action may not be particularly relevant in determining what
    punishment is appropriate for contempt of court but are relevant to the issue
    of whether judgment should be granted. The purpose of a penalty for civil
    contempt is two-fold; not only do such penalties enforce the rights of a
    private party, but they also maintain respect for the authority of the courts.
    The factors relevant to the determination of the appropriate sentence for civil
    contempt include:

1.

The proportionality of the sentence to the wrongdoing;

2.

The presence of mitigating factors;

3.

The presence of aggravating factors;

4.

Deterrence and denunciation;

5.

The similarity of sentences in like circumstances; and

6.

The reasonableness of a fine or incarceration.

[20]

None
    of these factors focuses on the merits of the proceeding:
Boily v. Carleton
    Condominium
, 2014 ONCA 574, 121 O.R. (3d) 670, at paras. 79, 90. A fine
    imposed for contempt is payable to the Crown and not to the opposing party:
SNC-Lavalin
    Profac Inc. v. Sankar
, 2009 ONCA 97, 94 O.R. (3d) 236, at para. 14.

[21]

The
    distinctions between the two distinct roles of a court imposing a sanction for
    contempt on the one hand and granting judgment on the other can be blurred if
    the analysis is not separated.

[22]

There
    can be no doubt, however, that a statement of defence can be struck for
    contempt of court. Courts have denied contemnors the opportunity to deal with a
    claim on the merits. In
iTrade Finance Inc. v. Webworx Inc.
, (2005) 255 D.L.R. (4th) 748 (Ont. S.C.J.),
the
    court found that the defendants failure to comply with court orders was such
    that the remedy of striking its pleadings was appropriate. In
Paul Magder
    Furs Ltd. v. Ontario (Attorney General)
, 6 O.R. (3d) 188 (Ont. C.A.), at
    para. 14, the court observed that it is an abuse of process to assert a right
    to be heard by the court and at the same time refuse to undertake to obey the
    order of the court so long as it remains in force. Section 140(5) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 gives the court express power to stay
    or dismiss a proceeding as an abuse of process. In
Dickie v. Dickie
(2006), 78 O.R.(3d) 1, this court refused to hear a litigant who was abusing
    the processes of the court. By analogy, a court could bar a defendant in
    contempt from filing a statement of defence.

[23]

Rule
    60.12 provides explicitly that where a party fails to comply with an interlocutory
    order, the court may, in addition to any other sanction provided by the rules,
    stay the partys proceeding, dismiss the proceeding, strike out the partys
    defence, or make such other order as is just.

[24]

Both
    rr. 60.11 and 60.12 deal with failures to obey court orders. Rule 60.11 focuses
    on the context of contempt proceedings. Either rule would allow a court to
    strike a statement of defence or bar a litigant from filing a defence.

[25]

In
    determining whether to strike a pleading, even where judgment is not granted
    concurrently, there may be some analysis of the merits of the claims. In
Falcon
    Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors)
, 2020 ONCA 310,
Brown J.A. discussed the
    factors to be considered when determining whether to strike a partys claim for
    failure to produce documents under r. 30.08(2). This rule expressly permits a
    court to strike out a statement of defence from a party who fails to serve an
    affidavit of documents, produce documents for inspection, or comply with an
    order of the court under rr. 30.02 to 30.11, which deal with the various
    aspects of documentary discovery.

[26]

Brown
    J.A. observed that the exercise of discretion to strike a pleading is not
    limited to a last resort, following multiple failures, but that a court would
    usually want to ensure that a party had a reasonable opportunity to cure the
    default before striking a pleading:
Falcon Lumber Limited
, at para.
    50. Relevant factors would include whether the failure was deliberate or
    inadvertent, whether the failure was clear, whether there was a reasonable
    explanation for the default and a promise to cure it, whether the substance of
    the default was important, whether the default continued, and the impact upon
    the opposite partys attempts to get justice:
Falcon Lumber Limited
,
    at para. 51.

He went on to note that the court could also consider the
    merits of the defaulting partys claim or defence, but that this might only
    play a limited role, as one would expect a party with a strong claim or defence
    to comply promptly with its disclosure obligations:
Falcon Lumber Limited
,
    at para. 52. Finally, he noted that a court must consider whether an order
    striking a pleading would constitute a proportional remedy to ensure that civil
    justice was proportionate, timely, and affordable:
Falcon Lumber Limited
,
    at para. 53.

Has the defaulting partys conduct increased the opposite
    partys costs of litigating the action? Has the default delayed adjudication of
    the matter on the merits?:
Falcon Lumber Limited
, at para. 55.

[27]

This
    analysis applies with equal force to motions under r. 60.12 to strike a
    statement of defence for failure to comply with an interlocutory order, as well
    as to the sanction of striking pleadings when sought for contempt. Where the
    remedy for contempt sought is an order barring a party from defending or an
    order striking a pleading, some assessment of the merits may be necessary to
    determine whether such an order is a proportionate response to the contempt
    alleged. Where, for example, the contempt is less serious, is likely to be
    cured, and it appears that a party has a defence of substance, it would be
    disproportionate to bar the defendant from participating in the action.

[28]

Where
    a statement of defence is struck, there may well follow an unopposed motion for
    default judgment.

[29]

While
    it may be tempting to collapse the issues of contempt and striking a defence on
    the one hand and a motion for judgment on the other hand into one proceeding,
    this may be false economy.

[30]

It
    can turn motions to strike pleadings for failure to comply with orders, whether
    as a sanction for contempt or pursuant to r. 60.12, into something resembling
    summary judgment motions, thereby shifting the focus from the failure to comply
    to the merits of the action. When granting judgment on the claim, the merits
    must be addressed.

[31]

While
    a judgment on the merits brings an action to an end, a court may subject a
    party in contempt to multiple sanctions hearings in order to compel compliance.

[32]

The
    Ontario
Rules of Civil Procedure
do not explicitly provide that
    judgment may be entered against a party who has failed to comply with a court
    order. Rule 60.12 does allow a court to make any order that is just for failure
    to comply with an order. In contrast, r. 10.53(1)(d)(iii) of the Alberta
Rules
    of Court
, AR 124/2010, says that judgment may be entered as a penalty
    for contempt. Final judgment in the action is not directly available as a
    punishment for contempt of court in Ontario.

[33]

This
    is not to say that in a given case, judgment may not be an appropriate remedy
    against a party who is in contempt or who has failed to comply with an interim
    order. There is no impediment in the Rules barring a party from moving for
    various and alternative relief. For example, a litigant could move under r.
    60.11 for an order imprisoning a party for contempt, for an order striking
    their pleadings under either rr. 60.11 or 60.12, and for default judgment in
    the event the pleadings are struck. If the latter is included, the moving party
    should expect that there will be a more searching inquiry about the merits and
    that the respondent will be given an opportunity to respond to the merits.

[34]

Here,
    there is no doubt that a strong response was required to sanction the
    appellants contempt, but they should not have been barred from making any
    submission as to the merits of any defence when it was clear that the
    respondents were seeking final judgment on their claims. Even if the moving
    party had not sought judgment on the motion but sought only to bar the
    appellants from defending the action because of their contempt and disobedience
    of court orders, some skeletal review of any defence raised may have been required
    to assess whether they should be barred from defending the action.

[35]

Here
    the plaintiffs sought judgment as a sanction for contempt, although judgment is
    not a remedy directly available as a punishment for contempt. As the appellants
    were entirely aware that judgment was sought on the motion, the procedural
    mischaracterization in the motion record might have been forgiven pursuant to r.
    1.04 of the
Rules of Civil Procedure
, had the appellants not been
    barred from addressing the merits at all in their response to the motion.

[36]

I
    would set aside the judgment and remit the matter to another judge of the
    Superior Court to determine the appropriate sanction to be imposed upon the
    appellants for their contempt of the orders of the motion judge. Ordinarily one
    would expect the same judge to make the finding of contempt and impose the
    sanction, however here, given that the motion judge  has expressed his views on
    the appropriate sanction, the better course would be to have a different judge
    decide what should follow the finding of contempt, depending on the relief sought
    and pleaded.

Reasonable apprehension of bias

[37]

I
    would not conclude that an informed person, looking at the matter realistically
    and practically, and having thought the matter through, would think it more
    likely than not that the judge would decide the case unfairly. It is not
    surprising that the motion judge was concerned about the appellants wilful and
    outrageous conduct, which deserved a significant response by the court.

[38]

I
    would direct the parties to make brief written submissions in relation to the
    costs of the appeal and the costs awarded below, due by October 29, 2021.

Released: October 15, 2021 GRS

G. Pardu J.A.

I agree G.R. Strathy C.J.O.

I agree S.E. Pepall
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Battiston v. Microsoft Canada Inc., 2021 ONCA 727

DATE: 20211018

DOCKET: C68550

Benotto, Brown and Harvison Young JJ.A.

BETWEEN

Fransic Battiston

Plaintiff (Respondent)

and

Microsoft Canada Inc.

Defendant (Appellant)

Deborah Glendinning, Nancy
    Roberts and Mark Sheeley, for the appellant

Andrew Monkhouse and
    Samantha Lucifora, for the respondent

Heard: September 9, 2020 by video
    conference

On
    appeal from the judgment of Justice Mario D. Faieta of the Superior Court of
    Justice, dated July 15, 2020.

REASONS FOR
    DECISION

[1]

For almost 23 years, the respondent was employed by
    Microsoft Canada Inc. He was terminated without cause and brought an action for
    wrongful dismissal. The trial judge found that the respondent was entitled to
24
    months pay in lieu of reasonable notice less 1 percent contingency for
    re-employment during the balance of the notice period, plus a 0.7 percent
    annual merit increase, an annual cash bonus of $12,100 and stock awards.

[2]

Microsoft Canada Inc. appeals, but only with respect to
    the trial judges conclusion that the respondent is entitled to unvested stock
    awards after his termination. The appellant relies on the Stock Award Agreement
    (the Agreement) which provided that any unvested stock awards do not vest to
    an employee if employment ends for any reason.
The trial judge found
    that the termination provisions in the Agreement were not drawn to the
    respondents attention and could not be enforced because they were harsh and
    oppressive.

[3]

In oral submissions, t
he appellant raised
    several issues in support of its position:

1)

the trial judge erred in finding the termination
    provisions unenforceable as the decision was rendered prior to the Supreme
    Court decision
Matthews v. Ocean Nutrition Canada Ltd.
,
2020 SCC 26, 449
    D.L.R. (4th) 583. (In that case, the Supreme Court revised the test for whether
    bonus payments are included as part of damages in lieu of reasonable notice);

2)

the Award Agreement was a separate agreement
    that did not form part of the compensation package because it was with the
    parent company, not the appellant;

3)

the terms violate s. 60(a) or (b) of the
Employment
    Standards Act
, which precludes changes to wages during
    the notice period; and

4)

the terms of the Agreement were not brought to
    the attention of the respondent.

[4]

The appellant raised several more issues in
    written submissions:

1)

the trial judge erred in law in
    imposing a common law right to damages in respect of the unvested stock awards
    (the first step of
Matthews
);

2)

the trial judge erroneously ruled
    against the appellant after concluding that the award agreements were
    unambiguous (the second step of
Matthews
);

3)

the trial judge erred by modifying
    the legal test by adding an unfounded harsh and oppressive standard; and

4)

that policy considerations
    militate in support of allowing this appeal, including regarding differential
    treatment of employees post-termination.

[5]

We need only address one issue which is
    dispositive of the appeal: the trial judges conclusion that, because the
    respondent did not receive notice, the Agreement is unenforceable.

[6]

Each year the respondent received an email as follows:

Congratulations on your recent
    stock award! To accept this stock award, please go to
My
    Rewards
and complete the online acceptance process. A record will be
    saved indicating that you have read, understood and accepted the stock award
    agreement and the accompanying Plan documents. Please note that failure to read
    and accept the stock award and the Plan documents may prevent you from
    receiving shares from this stock award in the future.

[7]

Each year, for 16 years, the respondent confirmed that he received these
    emails. His practice was to click a box to confirm that he had read, understood
    and accepted the stock award agreement. In fact, he said that he did not read the
    Agreement and thus did not know about the termination provisions. He thought he
    would get the unvested stock if he was terminated.

[8]

The trial judge found that the Agreement unambiguously excludes the
    respondents right to vest his stock awards after he has been terminated
    without cause. However, he also found that the terms are unenforceable because
    they are harsh and oppressive and because the respondent was not given notice.
    The trial judges reasons are somewhat unclear on this issue. Although he
    states at paragraph 65 that there is no dispute that notice was not given, he
    later made a finding of fact which demonstrates that the appellant did not
    concede the issue. He said the following at paragraph 70:

I find that the termination
    provisions found in the Stock Award Agreements were harsh and oppressive as
    they precluded [the respondents] right to have unvested stock awards vest if
    he had been terminated without cause.
I also accept [the
    respondents] evidence that he was unaware of these termination provisions and
    that these provisions were not brought to his attention by Microsoft
. Microsofts
    email communication that accompanied the notice of the stock award each year
    does not amount to reasonable measures to draw the termination provisions to
    [the respondents] attention. [Emphasis added.]

[9]

This finding cannot stand because the trial judges conclusion that the
    notice provisions were not brought to the respondents attention fails to
    address the following facts:

1)

For 16 years the respondent expressly agreed to the terms of the
    agreement.

2)

The respondent made a conscious decision not to read the agreement despite
    indicating that he did read it by clicking the box confirming such.

3)

By misrepresenting his assent to the appellant, he put himself in a
    better position than an employee who did not misrepresent, thereby taking
    advantage of his own wrong: see
Berlingieri v. DeSantis
(1980), 31
    O.R. (2d) 1 (C.A.) at para. 18.

[10]

The trial judge erred by finding the respondent received no notice.

[11]

The appeal is allowed with costs in the amount of $20,000 inclusive of
    disbursements and HST. We do not interfere with the award of costs in the court
    below.

M.L. Benotto J.A.

David Brown J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cowan, 2021 ONCA 729

DATE: 20211018

DOCKET: C67628

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Cowan

Appellant

Chris Rudnicki, for the appellant

Victoria Rivers, for the respondent

Heard: October 8, 2021 by video conference

On appeal from the conviction on a charge of possession of
    cocaine for the purpose of trafficking entered by Justice R. Khawly of the
    Ontario Court of Justice on August 16, 2019; and on appeal from the sentence of
    nine months imposed on November 8, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of possession of cocaine for the purposes of
    trafficking and received a sentence of 9 months. He appeals his conviction. If
    the conviction appeal fails, the appellant seeks leave to appeal his sentence
    and, if leave is granted, appeals his sentence. He asks the court to impose a
    conditional sentence.

The Conviction Appeal

[2]

This was a simple single-issue trial. The appellant admitted he was in
    possession of a significant amount of cocaine when he was arrested. He also
    admitted that it had been packaged for resale. He testified, however, that all
    of the cocaine was for his personal use. Counsel argued the appellant should be
    convicted of the included offence of possession of cocaine.

[3]

The appellant was arrested and found in possession, both on his person
    and in his vehicle, of about 64 grams of cocaine. Most of the cocaine had been
    separated and packaged into about 65 baggies, each containing a street-level
    quantity of that drug. In short, the quantity and the packaging of the cocaine found
    in the possession of the appellant strongly suggested he was in possession of
    the cocaine for the purposes of resale.

[4]

Three days before his arrest, the appellant was under video surveillance
    by his employers, who suspected him of theft. The video surveillance captured
    the appellant meeting with several individuals in his vehicle at various
    locations. Generally speaking, each individual was in the appellants vehicle
    for a minute or two before leaving.

[5]

In his evidence, the appellant acknowledged he used crack cocaine. He admitted
    he had possession of the cocaine seized from his person and vehicle. The
    appellant testified he purchased the cocaine from a dealer with whom he had some
    prior connection. The cocaine was already packaged in individual baggies ready
    for resale. The dealer explained to the appellant he had repossessed the drugs
    from one of his sellers when the seller had defaulted on payment. The dealer was
    driving north from Toronto to Muskoka and did not want to take the drugs with
    him in his vehicle. The dealer offered all of the cocaine to the appellant at a
    substantially reduced price.

[6]

The appellant testified he purchased the drugs and took possession of
    them in their individual baggies. The drugs were, however, exclusively for his personal
    use.

[7]

The appellant explained that the several meetings captured on the video
    surveillance related to his shoe resale business. Some involved the sale of
    shoes and others involved collecting money owed on the previous sale of shoes.

[8]

The video surveillance appeared to show that two of the several people
    who met with the appellant in his vehicle may have been purchasing shoes. The
    appellant was a shoe hoarder and had literally hundreds of pairs of shoes in
    his apartment. The Crown did not allege any illegality relating to the
    appellants acquisition or resale of the shoes.

[9]

The grounds of appeal on conviction arise out of the trial judges
    application of the burden of proof.

[10]

When, as in this case, the appellant testifies and denies the
    allegation, the trial judge should approach the burden of proof by asking the
    three questions laid down in
R. v. W. (D.)
(1991), 63 C.C.C. (3d) 397
    (SCC):

·

Does
    the trial judge believe the accuseds explanation?

·

If
    the trial judge does not believe the accuseds explanation, does that
    explanation leave the trial judge with a reasonable doubt?

·

If
    the evidence of the accused is not believed and does not leave the trial judge
    with a reasonable doubt, has the Crown proved guilt beyond a reasonable doubt based
    on the evidence the trial judge does accept?

[11]

Counsel agree that, on the evidence, the outcome of the case turned on
    the answer to the first two questions posed in
W. (D.)
. Counsel agree,
    and so do we, that if the evidence of the accused was rejected and did not
    leave the trial judge with a reasonable doubt, the remainder of the evidence
    established beyond any doubt that the appellant had possession of the cocaine
    for the purposes of trafficking.

[12]

The trial judge indicated he did not believe the appellants evidence.
    He then turned to the second question posed in
W. (D.)
and asked
    whether the appellants evidence could reasonably be true.

[13]

The phrase could reasonably be true should be avoided. It can imply
    that the accused carries the onus of demonstrating the existence of a
    reasonable doubt: see
R. v. Rattray
, 2007 ONCA 164, at para. 13. The
    ultimate question on appellate review is not, however, whether the trial judge
    used an inappropriate phrase, but whether the trial judge correctly applied the
    burden of proof.

[14]

With respect to the first question  did the trial judge believe the
    accused  counsel for the accused at trial candidly and correctly acknowledged
    that the appellants denial that he had possession of the cocaine for the
    purposes of resale strained credulity in all of the circumstances. She urged
    the trial judge, however, to take into account the appellants apparent mental disorder
    when assessing his evidence.

[15]

As has repeatedly been stated, this court must defer to credibility
    assessments made at trial. We see no error in the manner in which the trial
    judge assessed the credibility of the appellants evidence. The trial judge
    tested that evidence against the trial judges notions of common sense, human
    experience and logic. Triers of fact are required to do exactly that:
R. v.
    Calnen
, 2019 SCC 6, at para. 112.

[16]

We do not agree that, in assessing the appellants evidence, the trial
    judge invoked negative stereotypes based on the appellants economic
    circumstances and lifestyle. Nor did the trial judge introduce new
    considerations not arising from the evidence into his fact-finding. The trial
    judge focused on the evidence. In his view, the appellants explanation as to
    how he came to be in possession of a significant amount of cocaine, packaged
    for resale, but intending to use all of the cocaine himself, was incredible.

[17]

With respect to the second question posed in
W. (D.)
 does
    the accuseds evidence leave the trial judge with a reasonable doubt  we are
    satisfied, despite the inappropriate language used by the trial judge, that, on
    this record, the trial judges conclusion the appellants evidence could not
    reasonably be true was tantamount to a finding that he was not left with a
    reasonable doubt based on that evidence.

[18]

The conviction appeal is dismissed.

The Sentence Appeal

[19]

The appellant is not a Canadian citizen, although he has been in Canada
    for 26 years. He is subject to deportation on account of this conviction. The
    parties agree the trial judge misapprehended the potential likelihood of
    deportation if the appellant received a sentence of 6 months or more. They also
    agree that this misapprehension of a significant collateral consequence warrants
    a
de novo
assessment of the fitness of the 9-month sentence imposed by
    the trial judge.

[20]

At the time of trial, the statutory minimum in place prohibited the
    granting of a conditional sentence. This court struck down the mandatory minimum
    in
R. v. Sharma
, 2020 ONCA 478. The appellant submits that a
    conditional sentence can and should be imposed.

[21]

Crown counsel acknowledges that a conditional sentence is now available,
    but submits that the sentence was nonetheless fit. In the alternative, Crown
    counsel submits that if the sentence is varied, it should be varied to
    something slightly less than 6 months, to be followed by a period of probation.

[22]

The appellant is, for all intents and purposes, a first offender. The
    circumstances of the offence indicate the appellant was engaged in low-level
    trafficking. His personal circumstances strongly suggest the appellants mental
    disabilities played a central role in the appellant ending up selling drugs
    from his vehicle. In our view, a conditional sentence with appropriate terms
    can serve the ultimate purpose of sentencing and properly reflect a
    consideration of the applicable sentencing principles.

[23]

At the request of the court, counsel drafted suggested terms should the
    court decide to impose a conditional sentence. We are in substantial agreement
    with those terms.

[24]

The sentence is varied to a conditional sentence of 12 months on the
    following terms. The appellant will:

a.

Keep the peace and be of good behaviour;

b.

Appear before the court as directed;

c.

Report to a supervisor within 1 week after this courts decision is
    released and thereafter as directed by the supervisor;

d.

Remain in Ontario, unless written permission to leave Ontario is first
    obtained from the court or the supervisor;

e.

Notify the court or the supervisor in advance of any change of name or
    address and promptly notify the court or the supervisor of any change in
    employment or occupation;

f.

Reside at an address approved by the supervisor;

g.

For the first 7 months of this order, remain in his residence at all
    times except,

(i)
    between the hours of 12:00 p.m. to 4:00 p.m. on Sundays in order to acquire the
    necessities of life;

(ii)
    for any medical emergencies involving the appellant or any member of his
    immediate family;

(iii)
    while going directly to and from court appearances, religious services and
    legal, medical or dental appointments; and

(iv)
    while going directly to, from and while at a place of work approved by the
    supervisor.

h.

For the last 5 months of this order, remain in his residence between the
    hours of 10:00 p.m. and 5:00 a.m., except for medical emergencies involving the
    appellant or a member of his immediate family;

i.

Attend and actively participate in all assessments, counselling or
    rehabilitative programs as directed by the supervisor and complete them to the
    supervisors satisfaction;

j.

Sign release forms as required to enable the supervisor to monitor the
    appellants attendance and completion of any assessments, counselling or
    rehabilitative programs; and

k.

Do not possess any weapons, as defined by the
Criminal Code
.

Conclusion

[25]

The conviction appeal is dismissed. Leave to appeal sentence is granted,
    the appeal is allowed, and the sentence is varied in accordance with these
    reasons.

Fairburn A.C.J.O.

Doherty J.A.

David Watt 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. J.M., 2021 ONCA 735

DATE: 20211018

DOCKET: M52652 (C68627)

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.M.

Applicant

Jessica Zita, for the applicant

David Friesen, for the respondent

Heard: September 23, 2021 by videoconference

Watt J.A.:

[1]

A jury found the applicant guilty of sexual assault. The trial judge
    imposed a sentence of imprisonment for eighteen months. A judge of this court
    ordered the applicant released pending the determination of his appeal against
    conviction.

[2]

The applicant sought funding for his appeal from Legal Aid Ontario (LAO).
    He relied on an opinion letter from counsel that set out several proposed
    grounds of appeal. Each ground alleged an error or omission in the trial judges
    charge to the jury.

[3]

On November 20, 2020, LAO declined the applicants funding request. The
    applicant appealed. On February 25, 2021 the appeal was dismissed. LAO would
    not be funding the applicants appeal.

[4]

On April 8, 2021, the applicant applied to the chambers judge for an
    order under s. 684(1) of the
Criminal Code
that counsel be assigned to
    act on his behalf on his appeal from conviction. The chambers judge dismissed
    the application.

[5]

The applicant now seeks an order quashing the order of the chambers
    judge and directing that counsel be appointed under s.684(1) to act on the
    applicants behalf with her fees and disbursements being paid by the Attorney
    General who is the respondent on appeal in accordance with s. 684(2) of the
Criminal

Code

[6]

At the conclusion of argument, we dismissed the application. We said
    that we would explain why we came to that conclusion. We do so now.

The Essential Background

[7]

A brief reference to the proceedings before the chambers judge will
    provide the essential background.

The Chambers Motion

[8]

Before the chambers judge, the applicant contended that an order under
    s. 684 of the
Criminal Code
was desirable in the interests of justice.
    The applicant lacked sufficient means to retain counsel. His appeal was
    meritorious. And, left to his own devices, he lacked the ability to argue the
    case on his own.

[9]

The respondent opposed the motion, principally on the basis that the
    appeal was bankrupt of merit. The respondent acknowledged that the applicant
    lacked the means necessary to retain counsel and appears to have accepted that
    the applicant lacked the ability to advance argument on his own behalf.

The Decision of the Chambers Judge

[10]

The chambers judge accepted that the statutory standard in s. 684(1)
    required her to determine whether it appeared desirable in the interests of
    justice that the applicant should have legal assistance to argue his appeal and
    that he lacked sufficient means to do so.

[11]

It was uncontroversial, the chambers judge explained, that the applicant
    lacked the financial means to retain counsel. She was also not prepared to say,
    as counsel for the respondent had argued, that the appeal lacked merit.
    However, funding orders are exceptional. The circumstances did not satisfy the
    interests of justice standard. The issues raised were straightforward. They
    could be advanced by duty counsel in an inmate appeal with the assistance of
    the opinion letter counsel wrote to LAO seeking funding. The issues could also
    be determined by a panel of the court assigned to inmate appeals.

This Application

[12]

In this court the applicant seeks an order quashing the order of the
    chambers judge. In its place, he asks that we appoint Ms. Zita as his counsel
    and direct that her fees and disbursements be paid by the Attorney General who
    is the respondent in the appeal.

The Arguments of Counsel

[13]

The applicant invokes several sources as a basis upon which we can
    review the order of the chambers judge. Those sources include:

i.

the Practice Direction concerning Criminal Appeals;

ii.

section 683(3) of the
Criminal

Code
;

iii.

the Practice Direction concerning Civil Appeals; and

iv.

section 7(5) of the
Courts of Justice Act
, R.S O. 1990, c.C 43.
    (
CJA
).

[14]

To obtain an order under s. 684, the applicant accepts, he must show
    that it is in the interests of justice that counsel be appointed to act on
    his behalf. The order is discretionary. Whether it should issue depends upon
    and requires consideration of all the circumstances. These include the merits
    of the appeal, the appellants ability to present his case without the
    assistance of counsel, and the ability of the court to determine the issues
    raised without the assistance of counsel.

[15]

In this case, the applicant continues, the appeal has substantial merit.
    It alleges specific errors and omissions in the charge to the jury, thus
    surpasses the standard that it be arguable. The proceedings under review were a
    10-day jury trial with pre-trial and in-trial motions including a s 276. application.
    There was a pre-charge conference about what should be included in the charge.
    The jury asked questions. These issues are well beyond the ability of the
    appellant to present to the Court. Further, the Duty Counsel Program available
    in inmate appeals is not an adequate substitute for fully-funded counsel. The
    availability of assistance from that program should not undermine meritorious
    s. 684 applications.

[16]

The respondent challenges the review mechanisms asserted by the
    applicant. Rights of appeal are entirely statutory. The
Criminal

Code
provides no right of appeal from refusal of an order under s. 684. And the
Criminal

Code
is where any appellate rights must be found. Section 7(5) of the
    C
JA
, alone or together with s. 683(3) of the
Criminal

Code,
is of no avail. The
CJA
does not apply to criminal proceedings. And it
    is well settled that it, in tandem with s. 683(3) of the
Criminal

Code
,
    affords no basis of appeal or review. Likewise, Practice Directions which
    implement but cannot create rights of appeal or review.

[17]

Turning to the merits, the respondent points out that the remedy
    afforded by s. 684 is discretionary. Decisions granting or refusing the
    appointment of funded counsel are accorded significant deference on appeal. In
    this case, the applicant has not demonstrated any basis upon which we should
    interfere. The circumstances have not changed. The chambers judge did not err in
    law or depart from governing principles. She did not dismiss the application on
    the basis that the Duty Counsel Program would be an adequate or sufficient
    substitute for funded counsel. The chambers judge simply observed that the
    straightforward issues advanced by the applicant could be properly advanced by
    Duty Counsel aided by the opinion letter prepared by counsel. And this court,
    assisted by Duty Counsel, and counsel for the respondent, is well-positioned to
    decide the appeal without funded counsel.

Discussion

[18]

Like counsel, we approach our task in two steps. The first examines the
    existence and scope of our authority, if any, to review the decision of the
    chambers judge refusing to make an order for funded counsel. Second, we
    consider the merits of the claim.

Issue #1: The Availability of
    Review

[19]

The applicant invokes several different sources as a basis upon which we
    are entitled to review the decision of the chambers judge.

Rights of Appeal under the
Criminal Code

[20]

The right of appeal is an exceptional right. Appellate rights, procedure
    on appeal, and the jurisdiction of appellate courts are wholly creatures of
    statute. An appellate court such as this has no inherent jurisdiction to
    entertain an appeal in criminal cases
: Welch v. The King
[1950], S.C.R
    412, at page 428;
R. v. Morgentaler, Smoling and Scott
(1984), 16 CCC (3d)
    1 (Ont. CA), at pages 5-6;
R. v. Smithen-Davis
, 2020 ONCA 759, at
    paras. 27-28. Where no right of appeal is given, none exists.

[21]

Section 684 contains no provision that authorizes an appeal by any party
    to the proceedings under the section. Nor is an appeal authorized by any other
    provision in Part XXI or elsewhere in the
Criminal

Code
. See
    by comparison, s. 490(17) of the
Criminal

Code
.

Sections 683(3) of the
Criminal

Code
and 7(5) of the
CJA

[22]

Section 683(3) of the
Criminal

Code
permits a court of
    appeal to exercise, in relation to proceedings in the court, any powers beyond
    those in s. 683(1) that the court can exercise in civil matters. Section 7(5)
    of the
CJA
permits a panel of the court, on motion, to set aside or
    vary a decision made by a single judge of the court on a motion.

[23]

Section 683(3) cannot reasonably be read as extending the appellate
    jurisdiction of a court of appeal beyond the jurisdiction the
Criminal

Code
expressly grants it.

[24]

Section 683(1) defines the authority of a court of appeal to make
    procedural orders to facilitate the hearing and adjudication of an appeal,
    provided the court concludes that it is in the interests of justice to make
    these orders. Section 683(3) expands the express authority granted by s. 683(1)
    to include any power the court may exercise in civil matters:
R. v. Perkins
,
    2017 ONCA 152, 347 CCC (3d) 58, at paras. 21-22;
R. v. Codina
, 2009
    ONCA 907, 266 CCC (3d) 1, at para. 8.

[25]

On its own, s. 7(5)
CJA
cannot ground a right of appeal in
    criminal proceedings. The province lacks the constitutional competence to
    create rights of appeal in criminal cases:
Perkins
, at para. 63.

[26]

Nor does the combination of sections 683(3) of the
Criminal

Code
and 7(5) of the
CJA
fare any better as a source of appellate
    jurisdiction. To decide otherwise would be to encroach on Parliaments
    exclusive jurisdiction to determine rights of appeal in criminal proceedings:
Perkins,
at para. 23.

The
Criminal Appeal Rules
and
Practice
    Directions

[27]

Section 482(1) of the
Criminal

Code
permits a court of
    appeal to make rules of court not inconsistent with the
Criminal

Code
or any other Act of Parliament. These rules apply to appeals within the
    jurisdiction of the court instituted in relation to criminal proceedings. Rules
    may be made under s. 482(3)(d) to carry out the
Codes
provisions
    relating to appeals. However, this rule-making authority cannot be invoked to
    extend the substantive jurisdiction of the court. The authority to make rules,
    equally to issue practice directions, is limited to matters already within the
    jurisdiction of the court. Rules implement jurisdiction otherwise granted. They
    do not create substantive rights that do not otherwise exist:
Smithen-Davis
,
    at paras. 27-28;
McEwen (Re)
, 2020 ONCA 511, at paras. 53-55. See
    also,
R. v. OMalley
(1997), 119 CCC (3d) 360 (BCCA), at para. 18.

[28]

In the result, neither the
Criminal Appeal Rules
nor the
Practice

Directions
of the court can ground a right of appeal or of review for
    which the
Criminal

Code
does not provide.

Section 684 and Concurrent Jurisdiction

[29]

A judge and a panel of judges of this court have equivalent jurisdiction
    to determine whether an order for state-funded counsel is desirable in the
    interests of justice under s. 684(1) of the
Criminal

Code
. In
    other words, the jurisdiction of a single judge and a panel of judges is
    concurrent. This is not unique to s. 684. See, for example, ss. 675(1)(a)(ii);
    (b)(1.1); 678(2); and 839(1).

[30]

The mere fact of concurrent jurisdiction in a single judge and a panel
    of the court does not mean that a panel of judges has authority to review the
    order of a single judge or sit on appeal of that order. To decide otherwise
    would be at odds with the very essence of concurrent jurisdiction. Separate,
    but equal. Indeed, the
Criminal

Code
confirms as much when it
    provides, for example, in s. 675(4), for a right to a panel hearing when leave
    to appeal is refused by a single judge.

[31]

Yet the absence of a review authority does not mean that a judge and a
    panel of the court cannot both exercise jurisdiction to consider a request for
    the appointment of state-funded counsel in the same case. As this court has
    previously decided, in an appropriate case, a panel of the court may exercise
    its s. 684 jurisdiction even though a judge of the court has refused to do so:
R.
    v. Bernardo
(1997), 121 CCC (3d) 123 (Ont. CA), at para. 12.

[32]

The
Bernardo
court did not define the scope of what it
    considered appropriate to warrant panel consideration of an application for
    state-funded counsel under s. 684 after rejection of an application for the
    same relief by a single judge. It was not necessary for the court to formulate
    a test or standard or otherwise to define the outer reaches of what might
    engage the concurrent jurisdiction of a panel after consideration by a single
    judge. Suffice it to say, that what prompted the
Bernardo
court to
    exercise its concurrent jurisdiction was a change of circumstances. What
    changed, as the single judge contemplated in his refusal of the application,
    was that substantial parts of the trial record not available to the single
    judge became available to the panel. This enabled the panel to make a more
    mature assessment of the complexity of the appeal and the appellants ability
    to effectively argue the appeal without the assistance of counsel:
Bernardo,
at para. 12.

[33]

Absent from the decision in
Bernardo
is any suggestion that the
    panel was exercising an appellate jurisdiction in relation to the decision of
    the single judge. The authorities invoked by the
Bernardo
court, as
    well as its analysis reveal a
de

novo
assessment based on
    changed circumstances:
Bernardo
, at para 12;
R. v. Foster
(1954), 110 CCC 214 (Ont. CA), at page 215;
R. v. Walker
(1978), 46
    CCC (2d) 124 (Que. CA), at page 25.

[34]

From this review of the authorities, we are satisfied that there is no
    right of appeal or other review from the chambers judge refusing to direct the
    appointment of state-funded counsel. Our concurrent jurisdiction permits us to
    consider the application afresh, provided we are satisfied that circumstances
    have changed sufficiently from those before the single judge to warrant a
    reassessment.

Issue #2: The Merits of the
    Claim

[35]

In large measure, the scope of our jurisdiction on this application
    predestines its demise. We exercise no appellate or cognate review function.
    Rather, we canvass whether there has been a change in circumstances since the
    decision of the application judge. Further, if there has been such a change, we
    evaluate its nature and extent to determine whether the interests of justice
    warrant a different conclusion than reached by the chambers judge.

[36]

In this case, the applicant asserts no change in circumstances between
    those prevalent on the determination of the chambers judge and those current on
    this application. This is not a case in which additional relevant material has
    become available after the initial decision. It follows, that the application
    cannot succeed on the basis of changed circumstances.

[37]

Even if we were prepared to conclude that we could exercise our
    concurrent jurisdiction on the basis of a legal error in the reasoning or
    conclusion of the chambers judge, we would not do so here.

[38]

The remedy afforded by s. 684(1) -  the appointment of state-funded
    counsel - is discretionary. The applicable standard - the interests of
    justice - involves the exercise of a case-specific discretion which is subject
    to substantial deference on appeal absent any error of law or principle,
    misapprehension of material evidence, or a decision that is plainly
    unreasonable.

[39]

In this case, the error alleged is that the chambers judge essentially
    concluded that the Duty Counsel Program for inmate appeals was an adequate
    proxy or surrogate for state-funded counsel. We are not persuaded that the
    chambers judge declined the application on this basis. As we understand her
    reasons, the chambers judge concluded that the grounds of appeal to be
    advanced, all of which related to the charge to the jury, were straight forward
    and could be properly advanced on an inmate appeal. This was so despite the
    applicants evidence about his learning disability and his challenges with
    reading comprehension and communication.

Disposition

[40]

It is for these reasons that we dismissed the application for an order
    for state-funded counsel under s. 684.

Released: October 18, 2021 D.W.

David Watt J.A.

I agree. M.L. Benotto
    J.A.

I agree. Gary Trotter
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Campbell, 2021 ONCA 739

DATE: 20211019

DOCKET: M52783 (C68693)

Brown J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Responding Party

and

Andrew Campbell

Applicant

Aidan Seymour-Butler, for the applicant

Stephanie A. Lewis, for the responding party

Heard: October 12, 2021 by video conference

ENDORSEMENT

I.        OVERVIEW

[1]

The applicant, Andrew Campbell, applies for bail
    pending appeal.

[2]

Almost three years ago, on November 2, 2018, Mr.
    Campbell was convicted by a jury of kidnapping, pointing a firearm, and assault
    causing bodily harm.

[3]

Briefly, the facts as set out in the reasons for
    sentence are as follows. A confrontation occurred between Mr. Campbell and the
    victim, Jamal Karshe, in the early morning hours one Saturday in 2015 at the
    apartment of Heather Lafleur. In the result, Mr. Campbell left the apartment
    and then returned with a handgun, which he pointed at Mr. Karshe. Mr. Campbell
    directed Ms. Lafleur to tie up the victim and then pour heated oil on the
    victims thigh and around his ears. Mr. Campbell and Ms. Lafleur then put
    the victim in a truck, which Mr. Campbell drove to a wooded area. He put Mr.
    Karshe on the ground and choked him to the point of unconsciousness.

[4]

On May 22, 2019, the sentencing judge imposed a
    global sentence of seven years imprisonment which, after appropriate credits,
    resulted in a sentence to be served of 73 months, or six years and one month.
    The time remaining on his sentence is now three years, eight months, and two
    weeks.

[5]

Mr. Campbell filed an inmate notice of appeal
    dated June 6, 2019 against conviction and sentence. By order dated September
    18, 2020, Hourigan J.A. granted Mr. Campbell a s. 684 order. A solicitors
    notice of appeal was filed on October 8, 2020.

[6]

By notice of application dated August 16, 2021,
    Mr. Campbell seeks bail pending appeal.

[7]

The Crown opposes the application. The Crown
    takes the position that while Mr. Campbells appeal is not frivolous and he
    will surrender into custody in accordance with the terms of a release order, he
    has not demonstrated that his detention is not necessary in the public
    interest:
Criminal Code
,
R.S.C. 1985, c. C-46,
s. 679(3)(c).

II.       RESIDUAL PUBLIC SAFETY CONCERNS

[8]

The Crown submits that there are residual public
    safety concerns inherent in Mr. Campbells release plan as it proposes that for
    the first two weeks following his release, the appellant live alone at his
    mothers home, not in the presence of any of his sureties. The appellants
    mother proposed this arrangement in order to minimize the risk that she might
    contract COVID-19 from him upon his release.

[9]

At the hearing, the appellant abandoned this
    part of his release plan in light of the Crowns opposition. Under his amended
    plan, Mr. Campbell would reside in his mothers presence from the time of his
    release.

[10]

As a result of this amended plan, I am satisfied
    that there are not any residual public safety concerns with the proposed
    release plan. As well, Mr. Campbell complied with the terms of his
    presentence interim release.

[11]

I next consider the reviewability and
    enforceability interests that make up the public confidence component of
Criminal
    Code
s. 679(3)(c).

III.      REVIEWABILITY INTEREST

A.

Introduction

[12]

The strength of the grounds of appeal play a
    central role in assessing the reviewability interest. In conducting a more
    pointed assessment of the strength of an appeal beyond the not frivolous
    requirement, a court must examine the grounds identified in the notice of
    appeal with an eye to their general legal plausibility and their foundation in
    the record:
R. v. Oland
,
2017
    SCC 17, [2017] 1 S.C.R. 250
, at para. 44. The courts
    task is to ascertain if the grounds of appeal clearly surpass the minimal
    standard required to meet the not frivolous criterion:
Oland
, at
    para. 44.

[13]

On this application, Mr. Campbell focuses on
    three grounds of appeal: (i) the trial judge failed to properly instruct the
    jury on the need for cultural competence and context when assessing the
    evidence of the appellants post-offence conduct; (ii) the trial judge failed
    to properly instruct the jury on reasonable doubt; and (iii) the verdict was
    unreasonable.

[14]

In his reasons granting the s. 684 order,
    Hourigan J.A. considered the merits of the appeal, concluding that he would not
    categorize any of the grounds of appeal as strong. However,
he was not prepared to conclude that none of the grounds
    are arguable:
R. v. Campbell
,
    2020 ONCA 573, at para. 10.

B.

Grounds of appeal concerning the charge to the
    jury

[15]

Two of the grounds concern the trial judges instructions
    to the jury.

Post-offence conduct

[16]

The first concerns the charge regarding how the
    jury could use the evidence of Mr. Campbells conduct at the time of his
    arrest.

[17]

After Mr. Karshe was left unconscious on the
    ground, he awoke and walked to a gas station, where help was summoned. The
    police were called.
Three plain clothes officers went to Ms. Lafleurs
    apartment building where they set up surveillance of her apartment door in the
    stairwell. When Mr. Campbell and another male left the apartment, the plain
    clothes officers exited the stairwell. At least one officer had his gun drawn.
    Mr. Campbell ran. The officer who testified at trial was confident that he said
    something to the effect of stop, police, but he was not confident about
    whether he did so before or after Mr. Campbell started to run. Mr. Campbell
    fled to the stairwell on the opposite side of the hall. The arresting officers
    pursued him downstairs and into the hallway of the tenth floor. There, Mr. Campbell
    stopped running, faced the approaching officers, and put his hands in the air.
    He was tackled to the ground, handcuffed, and told he was under arrest for
    attempted murder.

[18]

In his charge, the trial judge gave detailed
    instructions on the use the jury could make of the evidence about what Mr.
    Campbell did or said during the events surrounding his arrest. In the course of
    his instructions, the trial judge reviewed Mr. Campbells evidence about those
    events:

[94] Mr. Campbell testified that he ran
    because three men were chasing him with firearms drawn. He did not realize they
    were police officers until he was handcuffed.

[95] Mr. Campbell testified that the previous
    evening, some guy was calling Ms. La[f]leur repeatedly and to his knowledge,
    she did not take any of the calls. In his police statement there is evidence
    that Mr. Campbell was concerned about this guy and that he may send some men
    over. He did not know the guy and had never met him. When asked why he would be
    concerned, he said he was paranoid.

[19]

The trial judge also reviewed some of the
    evidence given by Officer Wilson about those events:

[103] When cross-examined, Officer Wilson agreed that it would
    be reasonable to run if three unknown men with guns were chasing you, or
    something to that effect. However, it was also the officer's evidence that he
    and the other officers repeatedly yelled "Stop police" or something
    to that effect and Mr. Campbell stopped running on the 10th floor.

[20]

In the portion of the charge setting out the
    position of the defence, the trial judge stated:

Defence counsel suggests that the, or submits rather, that the after-the-fact
    conduct alleged by the Crown, that is Campbell running from police in civilian
    clothing is of no assistance in determining the legal issues in this case. Mr.
    Campbell had a perfectly reasonable explanation for why he ran. In fact,
    defence counsel asks us to recall Officer Wilson's testimony that he, too,
    would have done the same, that is run away from strange men with guns.

[21]

The appellant does not dispute that the charge
    on post-offence conduct contains the required elements for a standard charge on
    such evidence. The appellants complaint is that the charge was legally
    deficient because it was insufficient on the issue of the issue of
    race/cultural context of the appellants evidence  specifically, the
    perspective of the appellant, a Black man, when faced with plain clothes
    officers with their guns drawn.

[22]

During the pre-charge conference, defence
    counsel advised that she did not have major issues with the post-offence
    conduct section of the charge. While defence counsel requested certain wordsmithing
    changes to the narrative of events, no request was made to add language of a
    racial/cultural context nature.

Reasonable doubt

[23]

The appellant submits that the trial judge erred when,
    following questions from the jury, he failed to provide further instructions on
    the issue of credibility or recharge on
R. v.
W.(D.)
, [1991] 1 S.C.R. 742.

[24]

After retiring, the jury sent the judge a
    question:
We would like to hear a playback of Jamal Karshe's
    cross-examination.
A discussion ensued amongst the trial
    judge and counsel whether the entirety of the cross-examination should be
    played back or whether the jury should be asked if there were specific portions
    of the cross-examination they wished to listen to. It was agreed to bring the
    jury back and ask if they could be more definitive about what evidence they
    wanted to hear. The trial judge then asked the jury to retire and provide a
    written answer to the following question:

The only question we had and I'm going to put the question to
    you and then you're going to have to go out and put your response in writing,
    but is there a certain area you're looking at or do you want to hear the whole
    thing generally?

[25]

Further discussion ensued once the jury retired.
    Defence counsel stated that since the jury seemed to be discussing the
    credibility and reliability of Mr. Karshes evidence, it might be best to
    playback the entire cross-examination.

[26]

The jury returned with a two-part written
    request regarding Mr. Karshes evidence:

Did  in anywhere during Mr. Karshe's testimony, was he asked
    if he knew or had knowledge of a gun, I think in Heather's apartment prior to
    seeing it in Mr. Campbell's hands?

Would like to hear the defence attorney's suggestion at the end
    of Mr. Karshe's testimony and his responses.

[27]

Further discussion ensued amongst the trial
    judge and counsel.

[28]

Defence counsel initially submitted that the
    whole cross-examination should be played to the jury. Ultimately, the trial
    judge and counsel agreed that the jurys inquiries could be addressed by
    playing back a specific part of Mr. Karshes cross-examination. The jury
    returned; the portion was played back; at the end of which the trial judge
    inquired:

All right, members of the jury. You've heard
    that exchange. Were you able to hear it? And did it answer the questions or the
    inquiries or do you need to hear further evidence? Everyone seems okay. All
    right. Then I'll ask you to step out again and continue your discussions for a
    little while anyways. Thank you.

[29]

No request was made by defence counsel that the
    trial judge provide further instructions on the issues of credibility and
    reasonable doubt.

C.

Unreasonable verdict

[30]

The appellant submits that the jurys verdict
    was unreasonable for two reasons: (i) the only direct evidence led by the Crown
    about the events came from the complainant, Mr. Karshe; and, (ii) although a
    gun was found in the stairwell near the place of Mr. Campbells arrest, his DNA
    was not found on that gun.

[31]

The Crown counters that the mere fact that Mr.
    Campbells DNA was not found on the firearm did not make the pointing a firearm
    conviction unreasonable because:

There was ample evidence to support the jurys verdict on this
    count: the victim testified that the [appellant] threatened him with a handgun
    wrapped in green cloth; the arresting officer testified that the [appellant]
    looked like he was running with a weapon; and a handgun wrapped in green cloth
    was recovered from the stairwell the [appellant] ran through.

D.

Potential grounds of appeal

[32]

The appellants notice of application hints at
    possible other grounds of appeal that are under investigation by appellate
    counsel: the propriety of the Crowns cross-examination of the appellant and
    trial counsels concession of the voluntariness of the appellants statement to
    the police. Given that these potential grounds of appeal are under
    investigation, undeveloped, and do not form part of the notice of appeal, I am
    not prepared to consider them as part of this application:
Oland
, at
    para. 45.

E.

Assessment

[33]

I have considered the three grounds of appeal in
    light of the trial judges charge to the jury, the discussion between the trial
    judge and defence counsel during the pre-charge conference and following the
    question from the jury, and the evidence regarding the handgun and the
    circumstances of Mr. Campbells arrest. While the absence of an objection from
    defence counsel is not determinative of the two issues regarding the
    instructions to the jury, it does inform the consideration of whether the trial
    judge adequately tied the legal instructions to the specific circumstances of
    the case.

[34]

I agree with the assessment made by Hourigan
    J.A. in his s. 684 reasons  that is to say, I cannot conclude that none of the
    grounds are arguable. At the same time, I do not view them, to use the language
    of
Oland
, as clearly surpassing the minimal standard required to meet
    the not frivolous criterion.

IV.      ENFORCEABILITY INTEREST

[35]

Mr. Campbell has been convicted of very serious
    offences. The circumstances of the offences, as described in para. 3 above,
    were violent and caused Mr. Karshe significant harm. The global sentence
    imposed of seven years imprisonment underscores the seriousness of the
    offences.

V.       BALANCING THE INTERESTS

[36]

Balancing the reviewability and enforceability
    interests that make up the public confidence component of
Criminal Code
s. 679(3)(c) requires a qualitative and contextual assessment, measured through
    the eyes of a reasonable member of the public:
Oland
, at paras. 47 and
    49.

[37]

I conclude that in the present case the
    enforceability interest significantly outweighs the reviewability interest. The
    grounds of appeal, although arguable, do not clearly surpass the minimal
    standard of the not frivolous criterion. The offences were very serious, understandably
    attracting a lengthy prison sentence.

[38]

This is not a case where the anticipated delay
    in hearing the appeal relative to the length of the sentence tips the balance
    in favour of reviewability:
Oland
, at para. 48. The appellant delayed
    for a considerable period of time before bringing this application for release:
    he waited over two and one-half years following his conviction and one year
    since the appointment of counsel following the s. 684 application.

[39]

As well, the appellant has not indicated a willingness
    to move his appeal along with dispatch. While the appellant proposes as a
    condition of release the standard term of pursuing his appeal with all due
    diligence, he objects to the Crowns request that any release order require
    him to perfect his appeal by the end of this year. I pressed applicants
    counsel on this point during the hearing, but it is obvious that he lacked
    instructions to commit to any specific perfection date, let alone a reasonably
    prompt perfection date. Such an unwillingness raises concerns on my part that
    if release were to be granted, the appellant would not pursue his appeal with
    all due diligence, contrary to the general obligation that all appellant
    offenders proceed with their appeals in a timely fashion.

[40]

Accordingly, on the record before me, I am not
    satisfied that the appellant has demonstrated that his detention is not
    necessary in the public interest.

DISPOSITION

[41]

For these reasons, the application for bail pending
    appeal is dismissed.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Narwhal International Limited v. Teda International
    Realty Inc., 2021 ONCA 741

DATE: 20211019

DOCKET: C68786

Strathy C.J.O., Pepall and Pardu JJ.A.

BETWEEN

Narwhal International
    Limited

Applicant (Appellant)

and

Teda International Realty Inc.

Respondent (Respondent)

Gennady Tcherny, President of Narwal International
    Limited, acting as agent for the appellant, with leave of the Court

Stephanie Tassopoulos, for the respondent

Heard: By written submissions

COSTS ENDORSEMENT

[1]

Having received and considered the parties written submissions, we
    order costs to be paid by the appellant to the respondent in the amount of
    $7,500, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

S.E. Pepall J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Bond, 2021 ONCA 730

DATE: 20211019

DOCKET: C67283

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Bond

Appellant

Craig Zeeh and Jessica Zita, for the appellant

Mabel Lai, for the respondent

Heard: September 29, 2021 by video conference

On appeal from the convictions entered on June 11, 2018
    and the sentence imposed on October 23, 2018 by Justice David L. Corbett of the
    Superior Court of Justice.

MacPherson J.A.:

A.

Introduction

[1]

In a judge alone trial, the appellant was convicted of several offences
    relating to drugs and a firearm. He received a global sentence of 11 years,
    less 2 years and 11 months for pre-trial custody. The appellant appeals the
    convictions and sentence.

[2]

The principal grounds of appeal relating to the convictions are that the
    trial judge erred in upholding the warrants that led police to discover the
    drugs and firearm and in his treatment of the warrantless pinging of the
    appellant's cell phone, including his finding that the evidence obtained under
    the warrants that the appellant says was derived from the pinging should not
    be excluded under s. 24(2) of the
Canadian Charter of Rights and Freedoms
.

[3]

The only ground of appeal relating to the sentence is that the trial
    judge erred in his calculation of credit for pre-trial custody.

B.

facts

(1)

The parties and events

[4]

Four confidential informants led police to believe that the appellant
    was dealing cocaine from an apartment on Jane Street in Toronto and was
    habitually armed with a semi-automatic handgun. Three informants had proved
    reliable in the past and one had never previously provided information to
    police.

[5]

Using location pings from a cell tower to the appellants cell phone, in
    addition to database searches and surveillance, police found three addresses
    with which the appellant was associated and where he was suspected of dealing
    cocaine. They also found that the appellant had a lengthy criminal record.

[6]

On December 27, 2016, the police applied to a Justice of the Peace for
    search warrants relating to those addresses with which Bond was associated: a
    residential apartment (the apartment), a commercial condominium (the
    commercial unit), and a green Honda Accord (the vehicle).

[7]

At 2:32 p.m. on December 27, the Justice of the Peace denied the
    warrants and provided reasons:

a.

The relied upon confidential
    informant information was dated, and there was no indication when the
    information given was actually observed or how/when it was acquired;

b.

The ITO
    indicated the information provided was corroborated in each case, yet not all
    information was clear on the corroborating details;

c.

Appendix
    A items to be seized was too broad, and the ITO lacked supporting information
    to provide a nexus; and

d.

There were
    insufficient reasonable grounds to believe items to be seized would be at the
    specific location.

[8]

Later the same date, the police submitted the same ITO to a second
    application judge at the Ontario Court of Justice. The only addition to the ITO
    was paragraph 19 which indicated that the application had been submitted to and
    refused by a Justice of the Peace. The reasons for the refusal were included in
    the ITO. At 5:20 p.m., the second application judge granted the authorization.

[9]

The police executed the warrants. At the apartment, they found property
    linking the appellant to the apartment, cocaine, and cocaine paraphernalia. In
    the commercial unit, police found property linking the appellant to the
    premises, a firearm and ammunition, and enough cocaine to give rise to the
    inference that it was possessed for the purpose of trafficking. Police found no
    material evidence in the vehicle. After the apartment and commercial unit were
    searched, police obtained another warrant to search the appellants storage locker
    where they found small amounts of cocaine.

(2)

The trial judges
Charter
ruling

[10]

At the trial, the appellant challenged both the validity of the search
    warrants and the warrantless search of his cell phone by virtue of pinging a
    nearby cell tower. The trial judge framed the two issues in this fashion:

During the trial the defence sought to exclude evidence on the
    basis that it was obtained in violation of Mr. Bonds rights to be free from
    unreasonable search and seizure. This application had two aspects argued before
    me:

(a) Police obtained warrants on the basis of information
    from confidential informants. The defence argued that the warrants could not be
    upheld on the basis of unredacted portions of the Information to Obtain (ITO)
    used before the issuing justice.

(b) Police obtained information about Mr. Bonds whereabouts
    by pinging the phone with which he was associated. Police did this with the
    assistance of Bell Canada without first obtaining a warrant to do so. The
    defence argued that this was a warrantless search and all information obtained
    by police as a result of this pinging should be excluded.

[11]

In comprehensive reasons, the trial judge rejected the appellants
    submissions on both issues.

[12]

On the validity of the warrants issue, the trial judge concluded:

The judicial summary and the redacted ITO make it clear that
    police had reasonable and probable grounds to believe Mr. Bond had committed
    criminal offences and was probably still committing them on an ongoing basis. In
    terms of the test in
Debot
, the totality of this evidence is
    credible, corroborated and compelling. Direct evidence from four informants,
    three of whom had previously proved reliable, is a very strong case to
    establish reasonable grounds to believe that a crime has been and will be
    committed. The weaker part of the evidence in support of the warrants concerns
    whether the places to be searched are sufficiently connected to Mr. Bond to
    justify authorization of search warrants. And the evidence in respect to these
    issues is not found in the information obtained from the confidential
    informants. The defence has full access to the information before the issuing
    justice on these contested points, and is able to challenge it fully in this
    court.

The evidence pointing to the Apartment and the Commercial
    Condo, fully disclosed to the defence as it was provided to the issuing
    justice, was more than sufficient to ground issuance of the warrants. The Crown
    has satisfied step 6 of
Garofoli
in respect to the basis for believing
    Mr. Bond was an armed drug dealer. The warrants are upheld.

[13]

On the pinging the appellants cell phone issue, the trial judge found
    no s. 8
Charter
infringement. Alternatively, he was prepared to
    assume that a
Charter
infringement was made out. However, even excluding
    the pings evidence, he declined to strike down the search warrants or exclude
    the other evidence obtained during those searches under s. 24(2) of the
Charter.

C.

issues

[14]

The appellant frames the issues as follows:

Conviction appeal

(1)

The trial judges written reasons
    on the
Charter
application are an after-the-fact justification;

(2)

The trial judge misapprehended the
    nature of the application;

(3)

The trial judge erred in finding
    that the affiants judge shopping was permissible; and

(4)

The trial judge provided
    insufficient reasons on the
Charter
application.

Sentence appeal

(5)

The trial judge erred in his
    calculation of pre-trial custody.

D.

analysis

(1)

Reasons as improper after-the-fact justification for result

[15]

The genesis of the appellants argument on this issue is an email the
    trial judge sent to counsel during the trial:

The defence application to exclude evidence is dismissed except
    for the cellphone pings information obtained without a warrant. In respect to
    those, I am not satisfied that urgency was of such kind as to justify
    proceeding without a warrant. However, I am satisfied that the police acted in
    good faith in proceeding without a warrant. In the result, I find that search
    to have been unreasonable within the meaning of s. 8 of the
Charter
for having been done without a warrant.

My reasons for decision are reserved and will be released in
    due course.

[16]

After the trial concluded, the trial judge issued comprehensive reasons
    for his
Charter
ruling. The appellant contends that [w]hen the
    written reasons were finally released, they revealed that the trial judges
    findings departed significantly from his brief oral conclusions given over a
    year earlier. (Appellants Factum, at para. 39).

[17]

I am not persuaded by this submission. I see no clear dichotomy between
    the trial judges very brief ruling during the trial and his comprehensive
    reasons for the ruling after the trial. Indeed, as the trial judge explained in
    his formal reasons, the pings issue was peripheral to the broader search
    warrants issue:

In my view, even if the evidence from the pings was excluded,
    the Crowns case would not be materially affected. Police had an
    independent basis for believing that Mr. Bond was living at the Apartment, and
    that basis was sufficient for granting the warrants. The pings were not
    relevant to any issue other than identifying Mr. Bonds whereabouts, an issue,
    itself, only relevant to identifying the premises to be authorized under the
    warrants. The warrants were justified without the pings, and so
    excluding the pings would not affect anything else: none of the evidence admitted
    against Mr. Bond, other than the pings themselves, was derived from the
    pings. Indeed, police subsequently conducted direct surveillance that
    provides a much stronger basis  the one truly relied upon by the Crown  to
    tie Mr. Bond to the premises searched. On this analysis, societys
    interest in adjudication on the merits would be unaffected by exclusion of the
    evidence, and I would exclude the evidence under s. 24(2).

[18]

I agree with this analysis.

(2)

Misapprehension of the nature of the application

[19]

The authorization granted by the second application judge listed the
    enumerated offence as unlawful possession of a firearm contrary to s. 91 of the
Criminal Code
. The appellant submits that the trial judge in his
    reasons focused exclusively on his drug trafficking and ignored whether he
    possessed a firearm and whether it would be located in the places to be
    searched.

[20]

I am not persuaded by this submission. In his reasons, the trial judge
    made extensive reference to both drugs and firearms:

i.

All four of the confidential informants provided detailed and specific
    first-hand information, identifying Andrew Bond as a cocaine dealer, carrying
    on business as such at [an apartment on] Jane Street, Toronto, and provided
    information that Mr. Bond possessed and used a firearm in his drug-dealing.

ii.

Each of the confidential informants identified a photo of Andrew Bond as
    the armed drug dealer.

iii.

Three of the confidential informants described the firearm as a
    semi-automatic handgun (one of whom described it as Glock-style, police-style)
    and said that Mr. Bond keeps the gun tucked in his front waistband.

I am satisfied that this information, taken together, provides
    evidence:

b. That the Subject is habitually armed with a
    semi-automatic handgun which the Subject carries by tucking the gun in at the
    waist of his pants.

Here, the totality of information from the confidential
    informants grounded the officers belief that Mr. Bond was an armed and
    dangerous drug dealer, selling cocaine in Toronto.

On the basis of information from the confidential informants
    and the fruits of police investigation  Mr. Bond appears to be a very
    dangerous man, systematically dealing hard drugs, carrying a loaded
    semi-automatic handgun, in defiance of multiple prohibition orders.

[21]

In summary, these passages, and other similar passages, completely belie
    the appellants submission that in his
Charter
reasons the trial judge
    focused exclusively on the alleged drug offences.

(3)

The judge shopping issue

[22]

As set out in the Facts section of this judgment, on December 27, 2016,
    the police applied twice for search warrants relating to two properties and one
    vehicle.

[23]

At 2:32 p.m., the Justice of the Peace refused to authorize the
    warrants, giving four reasons in support.

[24]

At 5:20 p.m., the justice of the Ontario Court of Justice authorized the
    warrants, without reasons.

[25]

At trial, the appellant raised this issue, labelling it impermissible
    judge-shopping. The trial judge dealt with it in a footnote:

The defence argued that taking the second request to [the justice
    at the Ontario Court of Justice] was impermissible judge-shopping. Police
    disclosed the prior request to the Justice of the Peace, including the
    rejection and reasons for the rejection, when they made the request of [the
    second application judge]. This is not impermissible judge-shopping: it
    was within [the second application judges] discretion to decide the warrant
    request, and he did so on full and fair information:
R. v. Campbell
, [2014]
    OJ No. 6541 (SCJ), per McMahon J.

[26]

The appellant submits that the trial judge erred in reaching this
    conclusion. His position on this issue is succinctly summarized in his factum,
    at para. 58:

Judge shopping strikes at the core of our judicial system. The
    concept undermines the high level of confidence that is placed in our judicial
    system, where the decision of a judicial officer is final and binding unless
    and until it has been overturned by a higher court. Section 487(2) of the
Criminal
    Code
provides that a justice may issue a warrant. The
Criminal Code
defines
    a justice as a Justice of the Peace or a judge of the provincial court.
    Therefore, [the justice at the Ontario Court of Justice] cannot be considered a
    higher court than [the] Justice of the Peace
By
    applying for successive warrants on the same information to a different judge
    of the same court, the police committed impermissible judge-shopping
. [Emphasis
    added.]

[27]

I do not accept this submission, including the emphasized conclusion.

[28]

I begin by observing that I do not think that there should be a
    bright-line rule that the police cannot make a second application for a warrant
    if the first application is rejected. It needs to be recalled that there is no
    appeal from the initial refusal: see
R. v. Campbell
, [2014] O.J. No.
    6541 (S.C.), at para. 40.

[29]

On this point, I agree with what Thackray J.A. said in
R. v. Duchcherer
,
    2006 BCCA 171, at para. 29:

The procedure of applying successively for search warrants
    cannot reasonably be said, as such, to be an abuse of process or a subversion
    of the judicial system. Within the process there can, of course, be abuses
    that would lead to such a finding. It will be a fact driven decision in
    each case whether the circumstances amount to an abuse of process.

[30]

My second contextual observation is that the second judge considering
    whether to grant the search warrant is not sitting in appeal of the first judges
    decision nor in review of that judges decision by way of prerogative writ. As
    Thackray J.A. said in
Duchcherer
, at para. 17, where a judge knows of
    the previous application to a justice of the peace for a search warrant, but
    exercises his own discretion, it is a hearing
de novo
, not a review of
    the decision of the justice of the peace.: see also
R. v. Colbourne
(2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 41.

[31]

This court in
Colbourne
, at para. 42 began to address the issue
    of whether a warrant could be granted on a second application. I agree with
    Doherty J.A. that had the second information been the same as the first
    information, the initial refusal would have played a much more significant role
    in how the second Justice of the Peace exercised his or her discretion. While
    it does play a role and should be considered by the second application judge,
    the fact a warrant request has been rejected is not determinative to the second
    request. This is supported by Doherty J.A.s further reasoning in
Colbourne
,
    at para. 42, that he need not decide whether I would go so far as to say that
    two applications based on the same information are improper even if full
    disclosure of the initial refusal is made.

[32]

Turning to the merits of the appellants submission on this issue, in my
    view, the disclosure to the second application judge of the previous refusal
    and the reasons for that refusal ensured the openness and transparency of the
    process that the appellant submits was lacking. Those factors were endorsed by
    McMahon J. in
Campbell
, at para. 56:

In submitting the materials the officer should ensure the ITO
    includes the particulars of the earlier refusal, including the time, name of
    the judicial officer, and the reasons of refusal.

A copy of any reason or endorsement provided by the judicial
    officer who refused the warrant should be an appendix to the ITO.

[33]

As the trial judge noted in the footnote dealing with the judge-shopping
    issue, the police complied with these factors. The second application judge,
    who issued the search warrant, was fully apprised of the previous application,
    its timing, the fact that it had been rejected, and the reasons for the
    rejection. He was well-positioned to consider the application
de novo
.

[34]

McMahon J. in
Campbell
also identified another factor to
    consider, namely that no specific officer should be selecting individually any
    reviewing judge; instead, the second judicial officer should be the one on
    call. I note that the appellant does not allege that this factor is in play in
    this case.

[35]

In conclusion, like McMahon J. in
Campbell
, at para. 58, I do
    not accept the argument that allowing successive search warrant applications on
    the same materials would amount to judge-shopping and would be a reason not to
    allow for such procedure. Each case will need to be addressed on its own
    facts. In this case, the trial judge did not err by affirming the validity of
    the second search warrant.

(4)

Insufficient reasons

[36]

The appellant submits that the trial judges written reasons did not
    address critical issues or allow for meaningful appellate scrutiny.

[37]

I disagree. The trial judge wrote careful and extensive (66 paragraphs)
    reasons and this court, with the assistance of the oral and written submissions
    of counsel, is well-positioned to provide meaningful appellate scrutiny.

(5)

Sentence appeal

[38]

The trial judge imposed a sentence of 11 years, less 2 years and 11
    months for pre-trial custody. The appellant and respondent jointly submit that
    the trial judge made a modest error in his calculation of credit for pre-trial
    custody. I accept this submission and would give the appellant an additional 70
    days credit for pre-trial custody.

E.

disposition

[39]

I would dismiss the conviction appeal. I would allow the sentence appeal
    and assign an additional 70 days to the calculation of pre-trial custody.

Released: October 19, 2021 JCM

J.C. MacPherson
    J.A.

I agree. L.B.
    Roberts J.A.

I agree. B.W. Miller
    J.A.