COURT OF APPEAL FOR ONTARIO

CITATION:

Peel (Police) v. Ontario
    (Special Investigations Unit),
2012 ONCA 292

DATE: 20120507

DOCKET: C53753

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

H.M.
    Metcalf in his capacity as Chief of
    the Peel Regional Police

Applicant (Appellant)

and

Ian
    Scott, Director of the Special Investigations Unit and Her
    Majesty the Queen in Right of Ontario (Ministry
    of Community Safety and Correctional Services)

Respondents (Respondents in Appeal)

David Migicovsky, for the appellant

Peter C. Wardle and Danielle Gallo, for the respondent
    Ian Scott

Harry G. Black, Q.C., for the intervener, the Peel
    Regional Police Association

David Butt, for the intervener, the Police Association
    of Ontario

Sean
    Dewart and Tim Gleason, for the interveners, the Canadian Civil Liberties
    Association
et al

Heard: December 13, 2011

On appeal from the judgment of Justice A. Donald
    MacKenzie of the Superior Court of Justice, dated May 3, 2011, with reasons
    reported at 2011 ONSC 1292.

Cronk
    J.A.:

[1]

In the late 1980s, several fatal police shootings in Ontario gave rise
    to considerable public concern regarding the impartiality and transparency of
    police investigations into the use of deadly force by police officers.  The
    ensuing government response led to the creation in 1990 of the Special
    Investigations Unit (the SIU), a civilian agency whose director is empowered
    under Part VII of the
Police Services Act
, R.S.O. 1990, c. P.15 (the
    Act) to conduct independent investigations into serious injuries and deaths
    that may have resulted from criminal offences committed by police officers.

[2]

From the outset, the role of the SIU has been controversial, resulting
    in uneasy, and often hostile, relations between some police agencies and the
    SIU.  The dispute in this case, which arises from allegations of serious
    historical wrongdoing by a former police officer, is an example of persisting
    tensions between these groups.

[3]

As I will explain, the dispute between the parties concerns the scope of
    the SIUs investigative mandate under s. 113(5) of the Act.  That provision
    reads:

The director [of the SIU] may, on his or her own initiative,
    and shall, at the request of the Solicitor General or Attorney General, cause
    investigations to be conducted into the circumstances of serious injuries and
    death that may have resulted from criminal offences committed by police
    officers.

I.   Facts

(1)

Jurisdictional Question

[4]

On June 26, 2010, the Peel Regional Police (the PRP), received a
    complaint from a member of the public who alleged that she had been sexually
    assaulted by a member of the PRP.  The complainant also claimed that a second PRP
    officer witnessed or knew of the assaults, some of which were said to have
    taken place while the complainant, then a minor, was being transported into
    custody by the police.  It later emerged that the alleged assaults took place
    in 1981 or 1982 and that both the alleged perpetrator and the alleged police witness
    had retired from the PRP by the time of the complaint.

[5]

On receipt of the complaint, the PRP notified the SIU, as required under
    s. 3 of the Ontario
Conduct and Duties of Police Officers Respecting
    Investigations by the Special Investigations Unit
, Reg. 267/10, as amended
    by O. Reg. 283/11, enacted pursuant to the Act (the SIU Regulation).

[6]

When the SIU commenced an investigation into the complainants
    allegations, the PRP challenged the SIUs jurisdiction over the complaint.  It
    asserted that the SIU had no authority to investigate alleged criminal offences
    committed by police officers: (1) who had resigned or retired by the time of
    the complaint; and (2) prior to the creation of the SIU in 1990.  As a result,
    the PRP maintained that it was the appropriate agency to investigate the
    complaint.

[7]

The respondent Ian Scott, the Director of the SIU, disagreed.
[1]
He asserted his investigative jurisdiction over the complaint by reason of s.
    113(5) of the Act and directed the PRP to cease its investigation.  The PRP
    declined to do so.

[8]

When the parties failed to resolve their competing jurisdictional
    claims, the Chief of the PRP, the appellant H.M. Metcalf, applied to the
    Superior Court of Justice for declaratory and related injunctive relief
    regarding the SIUs authority concerning the complaint.  In his notice of
    application, he sought declarations that the director of the SIU has no
    jurisdiction: (1) pursuant to s. 113(5) of the [Act], [to conduct an
    investigation] into the circumstances surrounding an injury to a third party
    from an alleged criminal offence committed by a former police officer; and (2)
    to conduct an investigation into the circumstances surrounding an injury to a
    third party from a criminal offence alleged to have occurred prior to 1990.

[9]

The Peel Regional Police Association and the Police Association of
    Ontario intervened in support of the PRPs jurisdictional claim.
[2]
Various legal clinics and the Canadian Civil Liberties Association also
    intervened; however, they supported the SIUs position that it has jurisdiction
    over the complaint.

(2)

Application Judges Decision

[10]

The
    application judge held that the SIU has jurisdiction under s. 113(5) of
    the Act to investigate alleged criminal offences committed by persons who were
    serving police officers at the time of the alleged offences.  He also held that
    the Act applies retrospectively to afford the SIU jurisdiction to investigate alleged
    criminal offences committed by police officers prior to the creation of the SIU
    in 1990.

[11]

With
    respect to the SIUs jurisdiction over complaints involving former police
    officers, the application judge held, at para. 84:

In sum, the words of s. 113(5) give the SIU jurisdiction over
    the investigation of alleged criminal misconduct causing serious injury or
    death by serving police officers who have since retired or resigned prior to
    the time of the complaint or the investigation into such complaint.

[12]

The
    application judge recognized that the issue whether the SIU has jurisdiction to
    investigate alleged pre-1990 criminal offences committed by police officers engages
    the question of the retrospective application of s. 113(5) of the Act.  He
    expressly adverted to the well-established presumption against the
    retrospective application of legislation.  He held, however, that two
    exceptions to the presumption  the procedural rights exception and the
    public protection exception  apply in this case to afford the SIU
    jurisdiction over the complaint.

[13]

More
    specifically, the application judge held that s. 113(5) of the Act affects only
    procedural, rather than substantive, rights of police officers whose alleged conduct
    is the subject of a proposed investigation by the SIU.  He additionally held
    that the Act is designed to provide a public benefit  independent oversight of
    police conduct  without any corresponding detriment for police officers whose
    conduct is the subject of an investigation under s. 113(5).  As a result, in
    his view, both the procedural rights and the public protection exceptions to
    the presumption against the retrospectivity of legislation apply to furnish the
    SIU with authority to investigate the complaint.

[14]

The
    application judge expressed his overall conclusion, at para. 110, in this
    fashion:

I am persuaded that the words police officers in s. 113(5)
    must be interpreted as referring to police officers at the time of the alleged
    misconduct and that the presumption against the retrospectivity of the
Act
is unrebutted [
sic
] or displaced by the procedural rights and public
    protection exceptions to the presumption.

[15]

Accordingly,
    by judgment dated May 3, 2011, the application judge dismissed the application and
    awarded costs to the SIU in the amount of $25,000.

[16]

The
    PRP appeals both aspects of the application judges ruling.

II.       Legislative Framework

[17]

Section
    113 of the Act and the SIU Regulation provide the legislative framework governing
    SIU investigations and the conduct and duties of police officers in respect of
    SIU investigations.  The full text of s. 113 is set out in Appendix A.  In
    addition, s. 2(1) of the Act contains the following pertinent definitions:

member of a police force means an employee of the police
    force or a person who is appointed as a police officer under the
Interprovincial
    Policing Act, 2009
;

....

police officer means a chief of police or any other police
    officer, including a person who is appointed as a police officer under the
Interprovincial
    Policing Act, 2009
, but does not include a special constable, a First
    Nations Constable, a municipal law enforcement officer or an auxiliary member
    of a police force;

[18]

Sections
    113(1) to (4) of the Act establish the SIU and provide for its administrative
    framework.  Section 113(5) confers investigative powers on the director of the
    SIU and his or her delegates.  Section 113(6) restricts the class of SIU
    investigators who may participate in an SIU investigation.  Finally, ss. 113(7)
    to (10) impose certain duties on the director and his or her delegates
    including the duty to cause informations to be laid against police officers in
    certain circumstances (s.113(7))  and corresponding duties on members of
    police forces and appointed officials concerning the conduct of SIU
    investigations.

[19]

Recently,
    in
Schaeffer v. Ontario (Provincial Police)
, 2011 ONCA 716, 107 O.R.
    (3d) 721, at para. 6, leave to appeal sought, [2012] S.C.C.A. No. 6, Sharpe
    J.A. of this court provided this succinct overview of the statutory scheme
    regarding the SIU:

The SIU consists of a director, who cannot be a police officer
    or a former police officer, and investigators, who cannot be current police
    officers [ss. 113(2) to (3.1)].  Under s. 113(5) of the [Act], the director is
    empowered to cause investigations to be conducted into the circumstances of
    serious injuries and deaths that may have resulted from criminal offences committed
    by police officers.  The director has, under s. 113(8), the duty to report the
    results of investigations to the Attorney General and to lay informations
    against police officers if there are reasonable grounds to do so, and to refer
    them to the Crown Attorney for prosecution under s. 113(7).  Police officers
    are also directed by s. 113(9) to co-operate fully with the members of the
    [SIU] in the conduct of investigations.

[20]

As
    Sharpe J.A. also noted in
Schaeffer
, at para. 7, the SIU Regulation
    provides further guidance in the application of s. 113 of the [Act].  Under
    s. 1(1) of the SIU Regulation, a subject officer is defined as a police
    officer whose conduct appears, in the opinion of the SIU director, to have
    caused the death or serious injury under investigation.  A witness officer
    is defined, in turn, as a police officer who, in the opinion of the SIU
    director, is involved in the incident under investigation but is not a subject
    officer.

[21]

I
    will refer to other relevant provisions of the SIU Regulation in the context of
    the issues to which they relate.  At this point, however, I note that s. 3 of
    the SIU Regulation requires a chief of police to notify the SIU immediately
    of an incident involving his police officers that may reasonably be considered
    to fall within the investigative mandate of the SIU.  Under s. 5, the SIU is
    the lead investigator in the investigation of an incident and has priority
    over any police force in the investigation.  Nonetheless, a chief of police is
    required to also cause an investigation to be conducted forthwith into any
    incident of which the SIU is notified, subject to the SIUs lead role in
    investigating the incident, for the purpose of reviewing the policies of or
    services provided by the police force and the conduct of its police officers
    (ss. 11(1) and (2)).

III.      Issues

[22]

Two
    issues are raised in this appeal:

(1)

Does the
    SIU have jurisdiction under s. 113(5) of the Act to investigate an alleged
    criminal offence committed by a police officer where the officer was a serving
    police officer at the time of the alleged offence, but had resigned or retired
    by the time of the complaint of wrongdoing?

(2)

Does the
    SIU have jurisdiction under s. 113(5) of the Act to investigate an alleged
    criminal offence committed by a police officer where the alleged offence
    occurred prior to the creation of the SIU in 1990?

IV.     Analysis

(A)SIUs Jurisdiction to Investigate
    Alleged Criminal

Offences
    Committed by Former Police Officers

[23]

The
    PRP argues that the SIUs investigative jurisdiction under s. 113 of the Act is
    confined to investigations of alleged criminal offences causing serious injuries
    and death committed by persons who were serving police officers
at the time
    of the investigation
.  The PRP contends that s. 113(5) contemplates SIU
    investigations of the actions of police officers in certain circumstances and
    that a former police officer is not a police officer for the purpose of Part
    VII of the Act.

[24]

The
    application judge rejected this argument, holding that the language of s. 113(5),
    when read in its grammatical and ordinary sense, in the context of the entire
    legislative regime governing the SIU and the purpose of the Act, grants the SIU
    jurisdiction to investigate alleged criminal offences causing serious injuries
    and death committed by persons who were serving police officers
at the time
    of the conduct at issue
.  He stated, at para. 83:

I am persuaded that the words of s. 113(5), when read in their
    grammatical and ordinary meanings and examined in the context of the section,
    the
Act
and the Regulations and interpreted harmoniously with the
    purpose of the
Act
, grant the SIU jurisdiction to investigate alleged
    criminal offences causing serious injury or death committed by serving police
    officers who have, since the time of the alleged criminal offences, resigned or
    retired.  This reading of the
Act
is consistent with the legislative
    text and promotes or advances the Legislatures intention of vesting
    independent and transparent oversight of police officers conduct in the public
    interest.

[25]

For
    the following reasons, I agree with the application judges interpretation of
    the ambit of s. 113(5) of the Act.

(1)

Principles of Statutory Interpretation

[26]

The
    modern Canadian approach to statutory interpretation requires that the words of
    legislation are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament: E.A. Driedger,
Construction of
    Statutes
(2nd ed. 1983), at p. 87, as cited in
Rizzo & Rizzo Shoes
    Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21;
Bell ExpressVu Limited
    Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.  Under
    this approach, textual considerations must be read in concert with legislative
    intent and established legal norms.  In addition, context plays a critical role
    in the interpretive process:
Application under s. 83.28 of the Criminal
    Code (Re)
, 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 34 (
Re s. 83.28
);
Bell ExpressVu
, at para. 27.  Under the requisite contextual analysis,
    the law presumes that constituent elements of a legislative scheme are meant to
    work together logically and teleologically, each contributing to the
    achievement of the legislatures goal.  This presumption of coherence,
    sometimes called the presumption against internal conflict, seeks to avoid
    contradictions or inconsistencies among parts of the same body of legislation:
    Ruth Sullivan,
Sullivan on the Construction of Statutes
, 5th ed.,
    (LexisNexis Canada Inc: 2008), at p. 223.

[27]

In
    Ontario, the legislature has provided additional guidance regarding the
    construction of legislation.  Section 10 of the former
Interpretation Act
,
    R.S.O. 1990, c. I. 11 directed that every statute is deemed to be remedial and is
    to receive such fair, large and liberal construction and interpretation as
    will best ensure the attainment of the object of the Act, according to its true
    intent, meaning and spirit.  Section 64 of the
Legislation Act, 2006
,
    S.O. 2006, c. 21, Schedule F, directs a similar interpretive approach to
    legislation, as best ensures the attainment of [the legislations] objects.

(2)

Interpretation of Section 113(5)

[28]

The
    PRP attacks the application judges interpretation of s. 113(5) of the Act on
    several grounds.  It argues, principally, that his construction of s. 113(5) is
    contrary to the plain language of that provision and, further, to the scheme
    and purpose of the legislative regime governing the SIU.  I will address these
    arguments in turn.

Language of
    Section 113(5)

[29]

The
    application judge reviewed in detail the events leading to the creation of the
    SIU, the history of Part VII of the Act and the SIU Regulation, and the
    parties positions concerning the SIUs statutory mandate.  He was also alert
    to the applicable principles of statutory interpretation, described above.
    Against this backdrop, he commenced his analysis by considering the plain
    meaning of the words of s. 113(5).  In approaching this task, he was mindful
    that the words used in s. 113(5) must be read in context and in accordance with
    their grammatical and ordinary sense.

[30]

The
    application judge concluded that there is a clear temporal connection between
    the alleged criminal offences that the SIU is authorized to investigate by
    reason of s. 113(5), and the status of the alleged perpetrator of the offence.
    He reasoned, at para. 86:

The syntactical structure of subsection (5) of s. 113 indicates
    that the words police officers are referable to the words criminal
    offences: that is, the subsection describes criminal offences committed
by
police officers.  It is not syntactically sound to
    read the words police officers as relating to investigations.  In other
    words, subsection (5) does not describe investigations
into
police officers but rather investigations
into
criminal
offences
committed
by
police officers.  [Emphasis in original.]

[31]

I
    agree.  The grammatical and ordinary sense of the words used in s. 113(5)
    indicates that the SIUs investigative authority relates to the conduct of
    persons who were police officers at the time an alleged criminal offence was
    committed.  For convenience, I again set out the operative words of s. 113(5):

The director may  cause investigations to be conducted into
    the circumstances of serious injuries and deaths that may have resulted
from
    criminal offences committed by police officers
.  [Emphasis added.]

[32]

This
    language strongly suggests that the SIUs investigative jurisdiction is
    triggered if an alleged criminal offence that may have caused serious injuries
    and death is committed by a person who, at the time of the commission of the
    offence, was a serving police officer.  The operative phrase in s. 113(5) is
    committed by police officers.  I agree with the SIU and supporting
    interveners submission that the noun police officers in this phrase is the
    direct object of the verb committed.  The object does not modify the verb
    temporally.  Rather, the verb is modified by reference to the suspects status
    at the time of the offence.  Thus, the temporal focus of s. 113(5) is the time
    of the conduct said to constitute a criminal offence.  It follows that the
    person whose alleged criminal conduct may be investigated is a person who, at
    the time of the alleged conduct, was a serving police officer.  Nothing in the
    language of s. 113(5) suggests that the SIUs investigative jurisdiction
    depends on the employment status of the involved police officer at the time of
    the investigation.

Purpose of Part VII of the Act and the SIU Regulation

[33]

The
    application judge concluded, at para. 91:

[R]eading the
Act
as conferring on the SIU authority
    and jurisdiction to investigate serious police misconduct leads to a result
    that is fair and in furtherance of the purpose of the
Act
.  Such a
    reading of the
Act
provides complainants with a mechanism for an
    impartial and independent review of complaints and thereby enhances public
    confidence and trust in the administration of justice.

Again, I agree.

[34]

This
    approach to the interpretation of the legislation governing SIU investigations was
    cited with approval by Sharpe J.A., writing for a unanimous court, in
Schaeffer
,
    at para. 58.  In addition, Sharpe J.A. stated, at para. 58, that the purpose of
    the legislative regime relating to SIU investigations is to ensure the
    independent and accountable investigation of the use of police force causing
    death or serious injury and, as well, to foster confidence in such investigations
    and in the integrity of the police.  He subsequently reiterated, at para. 76:

[T]he overarching purpose of the legislation [is] the preservation
    and promotion of independence, account-ability, and public confidence in the
    investigation of police use of deadly force.

[35]

Justice
    Sharpe, at para. 58, also accepted the following description of the purpose
    underlying Part VII the Act and the SIU Regulation, set out by the SIU in its factum
    in
Schaeffer
:

The legislative purpose underlying [Part VII of the Act and the
    SIU Regulation] is clear and unequivocal: to maintain and foster public
    confidence in the rule of law and the administration of justice by ensuring
    that when police actions result in the death of or serious injury to civilians,
    they are subject to an independent, impartial and effective investigation the
    conclusions of which are accessible and transparent.

[36]

I
    also endorse and adopt this description of the legislative aim of Part VII of
    the Act and the SIU Regulation.  It fully accords with the overall purpose of
    the Act as described by this court in
Ontario (Civilian Commission on
    Police Services) v. Browne
(2001), 56 O.R. (3d) 673.  As noted in
Browne
,
    at para. 66, the purpose of the Act is declared in a series of principles set
    out in s. 1.  These include:

Police services shall be provided throughout Ontario in
    accordance with the following principles:

1.       The need to ensure the safety and security of all
    persons and property in Ontario.

2.       The importance of safeguarding the fundamental
    rights guaranteed by the
Canadian Charter of Rights and Freedoms
and
    the
Human Rights Code
.

...

4.       The importance of respect for victims of crime and
    understanding of their needs.

5.       The need for sensitivity to the pluralistic,
    multiracial and multicultural character of Ontario society.

[37]

In
    this context,
Browne
holds, at para. 67: The legislative purpose [of
    the Act] is demonstrably to increase public confidence in the provision of
    police services, including the processing of public complaints.

[38]

This
    interpretation of the purpose of Part VII of the Act and the SIU Regulation is
    also consistent with the history of the legislative scheme governing the SIU, as
    revealed in the numerous task force reports, studies and reviews that
    precipitated the creation of the SIU or thereafter examined its mandate and
    relationship with police agencies in Ontario.

[39]

I
    note, especially, that Part VII of the Act was the legislated response to
    recommendations made by Clare Lewis in the Ontario
Report of the

Race
    Relations and Policing Task Force, 1989
, established in the aftermath of
    two fatal police shootings in 1988.  That report, at pp. 146 to 147, documented
    public concern that police investigations into fatal police shootings lacked
    objectivity since they amounted to the police investigating the police.  I
    think it self-evident, as the SIU submits, that the Task Forces use of the
    phrase the police investigating the police refers to police investigating
    police conduct.

[40]

The
    Task Force concluded, at pp. 147 to 148, that internal police investigations of
    such incidents no longer satisfied public demand for impartiality and the
    maintenance of public confidence in police investigations.  It therefore
    recommended, and the Ontario government subsequently accepted, that the process
    for investigating police shootings must involve independent civilian oversight.
    The creation of the SIU soon followed.

Absence of Express Reference to Former Officers

[41]

The PRP argues, in effect, that the SIUs investigative mandate can only
    extend to the conduct of former police officers by express language.  In
    support of this argument, the PRP points out that neither the definition of
    police officer under s. 2, set out above, nor s. 113(5) of the Act expressly
    refer to former police officers, while other provisions of the Act do
    differentiate between serving police officers and former police officers.  The PRP
    submits that as several provisions of the Act draw this distinction, and s.
    113(5) does not, the legislature did not intend that s. 113(5) authorize SIU
    investigations of alleged crimes involving police officers who resign or retire
    before any complaint of wrongdoing.  This interpretive conclusion, the PRP says,
    is buttressed by the provisions of the SIU Regulation which, it maintains, apply
    only if a subject officer refers to a person who is a serving police officer
    at the time of the initiation of an SIU investigation.

[42]

In
    my opinion, there are several critical flaws in this argument.

[43]

It
    is true that some provisions of the Act specifically refer to police officers
    in contrast to former police officers: see ss. 26.1(2) and 94(1) of the Act.
    In fact, this distinction is drawn in some parts of s. 113 itself.  Section 113(3)
    states:

A person
who is

a police officer or former police
    officer
shall not be appointed as director, and persons who are police
    officers shall not be appointed as investigators.  [Emphasis added.]

See also ss. 113(3.1).

[44]

However,
    the references to former police officers relied on by the PRP are necessary
    given the particular temporal focus of the legislative provisions at issue and
    the mischief at which they are directed.  As I will explain, the same cannot be
    said of s. 113(5).

[45]

Section
    113(3) illustrates this point.  This provision is phrased in the present tense.
    It provides that a person who
is
a police officer or former police
    officer cannot be appointed as director of the SIU and persons who
are
police officers cannot be appointed as SIU investigators (emphasis added).
    Plainly, therefore, the prohibitions in s. 113(3) are concerned with the
    current status of the officer in question.

[46]

This
    is understandable since the object of s. 113(3) is to avoid the actual or
    apparent conflict of interest that would arise if the director of the SIU is
    also a serving or former police officer or if an SIU investigator is also a
    serving police officer.  That the legislature intended to protect against such
    conflicts of interest is reinforced by s. 113(6) of the Act, which prohibits an
    SIU investigator from participating in an SIU investigation relating to members
    of a police force of which he or she was previously a member.

[47]

In
    my view, the aim of these provisions, in accordance with the purpose of the Act
    generally and s. 113 in particular, is to constrain the SIUs investigative
    powers under s. 113(5) to the extent necessary to prevent actual or perceived
    conflicts of interest in the investigation of serious police wrongdoing.  To
    conclude otherwise would be to sanction, in effect, the police investigating
    the police, thereby defeating the legislative purpose of Part VII of the Act.

[48]

Section
    113 seeks to ensure that the SIUs power of investigation under s. 113(5) is
    not exercised by persons  the director and SIU investigators  who have the
    very conflict of interest that would exist here if the PRP were viewed as the
    agency vested with lead responsibility for investigating the conduct of one of
    its former members.  This is the type of conflict of interest that Part VII of
    the Act specifically seeks to avoid.  It follows that the express inclusion of
    the phrase former police officer in s. 113(3) is necessary to achieve the
    legislatures objective.

[49]

In
    contrast, s. 113(5) is cast in both the past and present tenses.  Specific
    mention of former police officers is therefore not required to achieve its
    intended legislative purpose since the temporal focus of the provision is on
    the officers status at the time of his or her alleged wrongdoing, not at the
    time of the disclosure or investigation of that wrongdoing.

[50]

I
    do not regard the provisions of the SIU Regulation as undercutting this
    conclusion.  Unlike some other regulations under the Act,
[3]
the SIU Regulation does not expressly distinguish between serving and former
    police officers.  Nonetheless, on a fair reading of the SIU Regulation, I
    accept that many of the obligations imposed by it can only have effect when applied
    to serving police officers, rather than persons who were once police officers
    but who, by reason of retirement or resignation, are civilians at the time of
    an SIU investigation.
[4]

[51]

That
    said, the provisions of the SIU Regulation must be understood in the context of
    the mischief at which they are aimed.  The SIU Regulation is concerned with the
    potential for delay, disruption, collusion and, generally, the attempted
    frustration of an SIU investigation by police officers.  To meet this potential
    mischief, the legislature designed particular regulatory measures in the form
    of specified duties and obligations attaching to serving chiefs of police and police
    officers regarding SIU investigations.

[52]

Once
    again, the relevant legislative history is instructive.  The SIU Regulation and
    its predecessor were enacted in 1999 in the aftermath of various reviews of
    police oversight in Ontario in the 1990s, including that of the SIU.
[5]
These reviews highlighted, in essence, police officers refusal to co-operate
    with the SIU.  Since the root causes of this on-going opposition to the SIUs
    role were systemic in nature and did not implicate the conduct or attitudes of
    former police officers in respect of the SIU, no need for regulatory controls
    concerning former police officers was identified.  The recommendations for
    reform made in these reviews led to the promulgation of the SIU Regulation.

[53]

Thus,
    the events that fuelled the introduction of the SIU Regulation confirm its
    focus on the SIU-related obligations of persons who, at the time of a complaint
    of serious police wrongdoing, are positioned to provide notice to the SIU of
    the incident and to produce or protect evidence potentially relevant to an SIU
    investigation of the incident  in other words, serving chiefs of police or
    police officers.

[54]

The
    enforcement provisions of O. Reg. 268/10 further support the conclusion that
    the SIU Regulation itself is not directed at former police officers.  By
    operation of s. 30(1) of O. Reg. 268/10 and s. 2(1)(c)(ii) of the
Code of
    Conduct
annexed to it, non-compliance with the SIU Regulation by any chief
    of police or other police officer constitutes misconduct and, hence, a
    disciplinary offence for the purpose of the complaints and disciplinary processes
    set out in Part V of the Act.  Continued membership in a police force is a
    necessary pre-condition to the imposition of disciplinary sanctions under Part
    V.  See for example, ss. 76(1) and 90(1) of the Act.

[55]

I
    note one additional difficulty with the PRPs suggested interpretation of the
    SIUs statutory mandate.  As the application judge aptly observed, under the
    PRPs urged interpretation of s. 113(5), an ongoing SIU criminal investigation
    could be ground to a halt by the simple act of the resignation or retirement or
    the discharge of the police officer whose alleged conduct is the subject of the
    investigation.  Bluntly put, this would mean that the SIUs investigative
    jurisdiction would be subject to the unilateral and potentially capricious
    control of the affected police force and the suspect officer.  This would
    undermine the precise purpose of Part VII and the Act as a whole including,
    especially, public confidence in the integrity of investigations into alleged
    serious police wrongdoing.  In my view, this interpretive result should not be
    countenanced absent a clear indication of such intention by the legislature.

Interplay Between Sections 113(5) and (7)

[56]

The PRP also argues that an interpretation of s. 113(5) that affords the
    SIU investigative jurisdiction over the conduct of former police officers
    creates a conflict with s. 113(7) of the Act.  The latter provision states:

If there are reasonable grounds to do so in his or her opinion,
    the director shall cause informations to be laid against police officers in
    connection with the matters investigated and shall refer them to the Crown
    Attorney for prosecution.

[57]

The
    PRP submits that, on a plain reading of s. 113(7), the person against whom an
    information may be laid must be a serving police officer at the time the
    information is laid.  Otherwise, it contends, the words against police
    officers in s. 113(7) would be superfluous.  I disagree.

[58]

The
    application judge considered, and rejected, this argument.  He reasoned in
    part, at para. 87, that the reference to police officers in s. 113(7)
    logically refers to police officers whose conduct is subject to investigation
    under s. 113(5).

[59]

This
    holding is unassailable.  Section 113(7) authorizes the SIU to lay informations
    against police officers in connection with
the matters investigated

    (emphasis added).  The use of the phrase the matters investigated establishes
    a clear link between the investigations conducted by the SIU under s. 113(5)
    and the SIUs duty under s. 113(7) to lay informations based on the results of
    its investigations.

[60]

I
    recognize that this connection between ss. 113(7) and (5) of the Act is not
    dispositive  it does not resolve the question of the meaning of police
    officers in both provisions.  However, there is nothing that grammatically or
    textually requires the term police officers in s. 113(7) to be interpreted
    more narrowly than the same phrase as it appears in s. 113(5), so as to exclude
    the possibility of laying an information under s. 113(7) against a former
    police officer in a proper case.  Indeed, a contrary conclusion would offend
    the interpretive principle of the presumption of coherence, described above.  Under
    that presumption, Part VII of the Act must be read as a whole and in a manner
    that seeks to avoid inconsistencies or contradictions between its constituent
    provisions: see Sullivan,
supra
, at p. 223.  In
Morgentaler v. The
    Queen
, [1976] 1 S.C.R. 616, at p. 676, Dickson J. (as he then was) put the
    proposition this way:

We must give the sections a reasonable construction and try to
    make sense and not nonsense, of the words.  We should pay Parliament the
    respect of not assuming readily that it has enacted legislative inconsistencies
    or absurdities.

[61]

I
    see no operational conflict between ss. 113(5) and (7) on the interpretation of
    those provisions that I favour.  On the contrary, I regard them as complementary.
    The inclusion of the words against police officers in s. 113(7) simply
    ensures that the SIUs duty under s. 113(7) does not apply to non-police
    officers, that is, to persons who are not and have never been police officers.
    Properly read, s. 113(7) contemplates that, where reasonable grounds exist to
    do so, informations shall be laid by the director of the SIU, and then referred
    to the Crown Attorney for prosecution, against those persons who were serving
    police officers at the time of the commission of the alleged criminal offences
    investigated by the SIU.

[62]

This
    is the logical law enforcement outcome of a criminal investigation under s.
    113(5) that yields evidence of criminal wrongdoing.  It is also consistent with
    s. 113(8) of the Act, which requires the director of the SIU to report the
    results of SIU investigations to the Attorney General.  For criminal law
    enforcement purposes, it matters not whether the alleged crime was committed by
    a serving or a former police officer.

Professional
    Responsibility Authorities

[63]

In
    support of the construction of s. 113(5) for which it contends, the PRP also relies
    on various professional responsibility cases, in which statutory or voluntary
    disciplinary or oversight bodies have been held to have no jurisdiction to
    investigate or regulate the conduct of former members of the profession or
    group at issue, absent specific provision for such jurisdiction in their
    enabling statutes.

[64]

These
    authorities do not assist the PRP in this case.  In each of the cited cases,
    the jurisdiction of the relevant statutory body related to its membership,
    thus importing a requirement of current membership status to anchor
    investigative or regulatory jurisdiction.  In
Maurice v. Priel
, [1989]
    1 S.C.R. 1023, for example, it was held that the disciplinary jurisdiction of
    the Law Society of Saskatchewan did not extend to a judge, whose conduct while
    a practising solicitor was impugned, because: (1) the Law Societys disciplinary
    powers applied only to members of the society; (2) the membership consisted
    of barristers and solicitors (and persons admitted to the society as students);
    and, (3) by operation of law, the person in question was not a barrister and
    solicitor while serving as a judge.

[65]

Similarly,
    in
Colvin v. Canada (Royal Canadian Mounted Police  RCMP)
, [1994] 3
    F.C. 562, leave to appeal refused, [1994] S.C.C.A. No. 387, the Federal Court
    of Appeal held that the RCMP Public Complaints Commission had no jurisdiction
    to entertain a public complaint concerning the alleged conduct of a person who
    had retired from the RCMP before the initiation of the complaint.  Under the
    relevant legislation: (1) complaints could be made regarding the conduct of
    members of the RCMP; (2) the statutory definition of member expressly
excluded
persons who had been dismissed or discharged from the RCMP (that is, former
    members); and (3) the entirety of the public complaints process under the
    relevant statute contemplated that, at the time of a conduct complaint, the
    Commissioner of the RCMP was in a position of authority over the person whose
    conduct was complained of.  These provisions necessarily meant that the RCMP
    Public Complaints Commission had no investigative jurisdiction concerning the
    conduct of former members of the RCMP.  Further, the RCMP Commissioner  who
    played a vital role under the statutory public complaints scheme  had no
    authority over, and no legal or enforceable duty concerning, a person who had
    ceased to be a member of the RCMP.  Thus, the particular oversight scheme in
    question, coupled with the applicable statutory definition of membership, restricted
    the investigative jurisdiction of the RCMP Public Complaints Commission.

[66]

These
    and similar authorities cited by the PRP illustrate that the scope of statutory
    investigative or regulatory jurisdiction is legislation-specific, depending in
    each instance on the language of the jurisdiction-conferring statute, when
    construed in accordance with the applicable principles of statutory
    construction.

[67]

Examples
    abound of various professional responsibility statutes that expressly confer
    jurisdiction on disciplinary or regulatory bodies over former members of the
    profession or association at issue.
[6]
These statutes are concerned with the investigative jurisdiction of
    disciplinary or regulatory bodies, not with jurisdiction to conduct criminal
    investigations.  Consequently, unlike Part VII of the Act, they provide
    expressly for jurisdiction over former members, since such jurisdiction is
    grounded on the membership status of the person whose conduct is to be
    investigated or subject to regulation.  Further, professional responsibility
    statutes have specific and distinct objects, as well as mechanisms for
    achieving them.  In the end, they provide little interpretive guidance outside
    the investigative or regulatory domain to which they relate.

[68]

In
    this case, unlike the provisions of the applicable statute in
Colvin
,
    nothing in the definitions of police officer or member of a police force
    under s. 2 of the Act, or any provision of the Act that specifically adverts to
    former police officers, answers the question of when a police officer who is
    alleged to have committed a criminal offence must be a serving police officer
    to trigger the SIUs jurisdiction under s. 113(5).  Under the Act, it is not a
    question whether such an offence will be investigated but, rather, which
    investigative body has lead jurisdiction to do so.  All interpretive roads,
    therefore, lead back to the words and purpose of s. 113(5), the scheme of Part
    VII, and the purpose of Part VII and the Act as a whole, as I have discussed.

Absence
    of Prejudice

[69]

I
    make one final observation.  In my view, it is telling that the PRP could point
    to no public policy reason why the SIUs investigative jurisdiction should be
    narrowly interpreted so as to prevent SIU investigations of alleged serious
    wrongdoing by former police officers.  Nor has the PRP adduced any evidence of
    prejudice to a former police officer whose conduct is the subject of an SIU
    investigation.  I again emphasize that under the scheme of s. 113, it is not a
    question
whether
but, rather,
by whom
alleged serious
    wrongdoing by police officers will be investigated.

(3)

Conclusion

[70]

In
    light of all these factors, I conclude that an interpretation of s. 113(5) of
    the Act that affords the SIU jurisdiction to investigate alleged criminal acts
    committed by persons who were serving police officers at the time of the acts
    in question is consistent with the language of s. 113(5).  Further, it is an
    interpretation that is harmonious with and advances the intent of the
    legislature and the scheme and object of Part VII of the Act and the Act as a
    whole.

(B)SIUs Jurisdiction to Investigate
    Alleged Pre-1990

Criminal Offences Committed by Police
    Officers

[71]

The
    PRP argues that the procedural rights and public protection exceptions to the
    presumption against the retrospective application of legislation do not apply
    to the legislative regime applicable to the SIU.  Consequently, the PRP
    submits, the SIU has no jurisdiction to investigate an alleged pre-1990 criminal
    offence committed by a police officer.  I would not accede to this argument.

[72]

I
    begin with the procedural rights exception to the presumption against the
    retrospectivity of legislation.  At common law, procedural legislation is
    presumed to apply immediately, to both pending and future facts.  As Sullivan,
supra
,
    discusses at p. 696, this presumption of immediate application has been
    characterized, variously, in these terms: (1) there is no vested right in
    procedure; (2) the effect of a procedural change is deemed beneficial for all;
    (3) procedural provisions are an exception to the presumption against
    retrospectivity; and (4) procedural provisions are ordinarily intended to have
    an immediate effect.  Sullivan also notes, at p. 696, the following early
    formulation of the rule in
Wright v. Hale
(1860), 6 H. & N. 227,
    at p. 232:

[W]here the enactment deals with procedure only, unless the
    contrary is expressed, the enactment applies to all actions, whether commenced
    before or after the passing of the Act.

[73]

Canadian
    courts have recognized that the determination of whether a legislative
    provision is purely procedural requires examination of the substance of the
    provision and its practical impact on the parties.  In
Martin v. Perrie
,
    [1986] 1 S.C.R. 41, at p. 48, the Supreme Court of Canada cited with approval
Yew
    Bon Tew v. Kenderaan Bas Mara
, [1983] 1 A.C. 533 (P.C.), at p. 562 for the
    principle that the substance of a provision, rather than the label assigned to
    it, is controlling of whether it is procedural in nature.  The central question
    is whether the provision, if applied retrospectively, would impair existing
    rights and obligations.  If so, the provision is not purely procedural and
    cannot be given retrospective effect.

[74]

Martin
also confirms that the intention of the legislature to interfere with vested
    rights and obligations must be express.  The Supreme Court explained, at pp. 49
    to 50, citing
Spooner Oils Ltd. v. Turner Valley Gas Conservation
,
    [1933] S.C.R. 629, at p. 638:

A legislative enactment is not to be read as prejudicially
    affecting accrued rights, or an existing status ... unless the language in
    which it is expressed requires such a construction ... the underlying
    assumption being that, when Parliament intends prejudicially to affect such
    rights or such a status, it declares its intention expressly, unless, at all
    events, that intention is plainly manifested by unavoidable inference.
    [Citations omitted.]

[75]

More
    recently, in
Re s. 83.28
,
supra
, the Supreme Court of Canada
    considered whether s. 83.28 of the
Criminal Code
(the
Code
),
    introduced as a result of the enactment of the
Anti-terrorism Act
,
    S.C. 2001, c. 41, applied retrospectively.  Section 83.28 authorized the
    obtaining, on
ex parte
application, of an order for a judicial
    investigative hearing concerning suspected terrorism offences.
[7]
The issue was whether s. 83.28 applied in circumstances where the terrorism
    offences at issue were committed before the
Anti-terrorism Act
came
    into force.

[76]

In
Re s. 83.28
, the majority cautions, at para. 56, that an assessment
    whether a provision is or is not procedural must be determined in the circumstances
    of each case.  Further, for a provision to be regarded as procedural, it must
    be exclusively so [citations omitted].  The majority concluded, at paras. 56
    and 60 to 61, that s. 83.28 of the
Code
was purely procedural in
    nature since it merely provided: a mechanism for the gathering of information
    and evidence in the ongoing investigation of past, present and future offences
    and outline[d] the process by which judicial investigative hearings are to be
    carried out.

[77]

The
    issue in this case, therefore, is whether s. 113(5) of the Act is procedural,
    rather than substantive, in nature and effect.  In holding that s. 113(5)
    affects procedural and not substantive rights of police officers whose conduct
    is the subject of a proposed SIU investigation, the application judge reasoned,
    at para. 98, that: (1) neither the police officer in question nor a complainant
    have a substantive right as to who conducts an investigation into any
    complaint; and (2) the obligations imposed by the SIU Regulation on witness
    officers and chiefs of police (there being no compulsory obligations imposed
    thereunder on subject officers) were procedural in nature.

[78]

For
    four reasons, I agree with the application judges analysis and conclusion.
    First, I accept that, by its terms, s. 113(5) has retrospective effect.  As the
    application judge stated, at para. 95, s. 113(5) attaches consequences (investigations
    by the SIU rather than by the police) to events (the conduct giving rise to the
    alleged criminal offence) that occurred before the creation of the SIU in 1990.
    The presumption against the retrospectivity of legislation is therefore
    engaged.  The question is whether the presumption is displaced by the
    procedural rights exception.

[79]

Second,
    both before and after the creation of the SIU, alleged criminal acts by police
    officers were subject to criminal investigation.  The effect of the SIU
    legislative regime is to transfer
lead
responsibility for those
    investigations in limited circumstances (where the alleged offences may have
    caused serious injuries and death) from one organization (the involved police
    force) to another (the SIU).

[80]

Moreover,
    Part VII of the Act does not expose police officers in Ontario, for the first
    time, to external or public review of their conduct.  As the PRP emphasizes for
    its own purposes, a multi-layered scheme of police oversight, encompassing both
    internal and external review processes, exists in Ontario.  This did not change
    with the establishment of the SIU.  Rather, to paraphrase the words of the Supreme
    Court in
Re s. 83.28
, above-quoted, s. 113(5) of the Act simply
    provides a different, alternative mechanism for the gathering of information
    and evidence in investigations of alleged criminal offences said to involve
    police officers.  No police officer has a vested right in a particular form of
    procedure for the investigation of his or her alleged criminal conduct.

[81]

Third,
    I am persuaded that neither the Act nor the SIU Regulation interferes with the
    substantive rights of police officers whose conduct is proposed to be
    investigated by the SIU.

[82]

The
    Act and the SIU Regulation do not impose any duties or obligations on subject
    officers that do not already apply to them by operation of law in police-conducted
    investigations of alleged criminal offences.  I note, in particular, that while
    s. 113(9) of the Act requires a police officer whose conduct is being
    investigated by the SIU to co-operate fully, an investigating police force is
    authorized under the police
Code of Conduct
, appended to O. Reg.
    268/10, to require co-operation and to obtain a statement from a police officer
    during an investigation.  The
Code of Conduct
also imposes obligations
    on police officers regarding note-taking and co-operation with investigators.

[83]

Accordingly,
    many of the provisions of the SIU legislative regime, said by the PRP to
    infringe a police officers rights, mirror a subject officers existing rights
    and obligations in a police-conducted criminal investigation.  Unlike witness
    officers, subject officers have no obligation under the SIU Regulation to meet
    with the SIU, to answer SIU investigators questions or to produce their notes
    on the incident under investigation at the request of the SIU: see SIU
    Regulation, ss. 8 and 9.  In fact, read as a whole, the SIU Regulation reveals a
    nuanced legislative approach that is designed to protect against any abrogation
    of a subject officers right against self-incrimination, avoiding, for example,
    the compulsory provision of inculpatory information by a subject officer.

[84]

Finally,
    the PRP relies heavily on the decision of the Federal Court of Appeal in
Royal
    Canadian Mounted Police Act (Can.) Re
, [1991] 1 F.C. 529, leave to appeal
    refused, [1991] S.C.C.A. No. 57 (
Re RCMP
), in support of its argument
    that the SIU legislative regime affects the substantive rights of involved
    police officers.

[85]

In
    my view, this reliance is misplaced.  I see no parallel between the decision in
Re RCMP
and the retrospectivity issue before this court.  As the
    application judge stated, at paras. 100 to 101, the public complaints process
    under scrutiny in
Re RCMP
was fundamentally different, and more
    onerous and comprehensive, than the SIU investigative process envisaged by the
    Act and the SIU Regulation.

[86]

Furthermore,
    unlike this case, the oversight process at issue in
Re RCMP
represented
    an inaugural scheme for public review  by civilians  of the conduct of
    members of the RCMP. As I have explained, neither the establishment nor the
    investigative mandate of the SIU occasioned such a sea change in review of
    police conduct in Ontario.  Police officers whose conduct is subject to
    investigation by the SIU continue to enjoy all the rights and protections
    previously available to them at law in a police-conducted criminal
    investigation.  In addition, the criminality of the acts in question continues
    to be determined by reference to the same laws and legal norms as apply in such
    investigations.  The only difference, as the SIU stresses, is the identity of
    the investigating body.

[87]

I
    therefore conclude that the application judge did not err in holding that the
    procedural rights exception to the presumption against the retrospectivity of
    legislation applies in this case.  In light of this conclusion, it is
    unnecessary to address his additional finding that the public protection
    exception to the presumption also applies to anchor the SIUs investigative
    jurisdiction over the complaint.

V.      Disposition

[88]

For
    the reasons given, I would dismiss the appeal.  I would award the respondent
    SIU Director his costs of the appeal, fixed as agreed by counsel in the amount
    of $11,500, inclusive of disbursements and all applicable taxes.  As also
    agreed by the parties, I would award no costs against or in favour of any
    intervener.

Released:  MAY -7 2012                   E.A. Cronk
    J.A.

DOC                                                I
    agree D. OConnor A.C.J.O.

I
    agree John Laskin J.A.

Appendix A

PART VII

SPECIAL INVESTIGATIONS

113. (1)     There shall be a special investigations unit of
    the Ministry of the Solicitor General.

(2)     The unit shall consist of a director appointed
    by the Lieutenant Governor in Council on the recommendation of the Solicitor
    General and investigators appointed under Part III of the
Public Service of
    Ontario Act, 2006
. R.S.O. 1990, c. P. 15, s. 113(2).

(3)     A person who is a police officer or former police
    officer shall not be appointed as director, and persons who are police officers
    shall not be appointed as investigators.

(3.1)   The director may designate a person, other than
    a police officer or former police officer, as acting director to exercise the
    powers and perform the duties of the director if the director is absent or
    unable to act.

(4)     The director, acting director and investigators
    are peace officers.

(5)     The director may, on his or her own initiative,
    and shall, at the request of the Solicitor General or Attorney General, cause
    investigations to be conducted into the circumstances of serious injuries and
    deaths that may have resulted from criminal offences committed by police
    officers.

(6)     An investigator shall not participate in an
    investigation that relates to members of a police force of which he or she was
    a member.

(7)     If there are reasonable grounds to do so in his
    or her opinion, the director shall cause informations to be laid against police
    officers in connection with the matters investigated and shall refer them to
    the Crown Attorney for prosecution.

(8)     The director shall report the results of
    investigations to the Attorney General.

(9)     Members of police forces shall co-operate fully
    with the members of the unit in the conduct of investigations.

(10)    Appointing officials shall co-operate fully with
    the members of the unit in the conduct of investigations.

[1]
I refer to the SIU and its director, collectively, as the SIU in these reasons.

[2]
I refer to the Chief of the PRP and the PRP and supporting interveners,
    collectively, as the PRP in these reasons.

[3]
For example, former O. Reg. 554/91,
Political Activities of Municipal
    Police Officers
, expressly provided for former municipal police officers,
    who once held elected office, to reapply for appointment to a police force in
    certain circumstances: ss. 7(4) and (5).  Virtually identical language now
    appears in s. 17(4) of O. Reg. 268/10.

[4]
Section 6(1) of the SIU Regulation, for example, obliges a chief of police to
    segregate all the police officers involved in the incident from each other,
    while s. 6(2) prohibits a police officer involved in the incident from
    communicating with other police officers concerning their involvement in the
    incident, until the completion of SIU interviews.  These and other provisions
    of the SIU Regulation can only be enforced effectively as against serving
    police officers.

[5]
See for example,
Consultation Report of the Honourable George W. Adams,
    Q.C. to the Attorney General and Solicitor General Concerning Police
    Cooperation with the Special Investigations Unit
, (Hon. George W. Adams,
    Q.C., May 14, 1998).

[6]

For
    example, the
Veterinarians Act
, R.S.O. 1990, c.
    V.3, s. 24(1); the
Registered Insurance Brokers Act
, R.S.O. 1990, c.
    R. 19, s. 24(2); the
Chartered Accountants Act, 2010
, S.O. 2010, c. 6,
    s. 19(1); the
Regulated Health Professions Act, 1991
, S.O. 1991, c. 18,
    Sch. 2, s. 14.

[7]
Pursuant to s. 83.32 of the Code, s. 83.28 ceased to apply as of March 1, 2007.


COURT OF APPEAL FOR ONTARIO

CITATION:
Pejhan
    Estate, 2012 ONCA 327

DATE: 20120515

DOCKET: C53037

Weiler, Blair and Rouleau JJ.A.

In the Estate of Youssef Pejhan, deceased

And in the Matter of Pejiko Investments Limited

David M. Goodman, for the appellant, Houshang (Henry) Pejhan

Larry J. Levine, Q.C., for the respondent, Shahindokht (Nadia)
    Majidi-Ahi

Heard: May 14, 2012

On appeal from the judgment of Justice Kevin W. Whitaker
    of the Superior Court of Justice, dated November 15, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant acknowledges that this is a fact driven appeal.   The
    trial judge did the best he could with the evidence he had.  We see no basis
    for interfering with his conclusion.  We accept that the amount he allowed
    Henry Pejhan included any portion of the mortgage costs attributable to
    legitimate expenses.

[2]

Accordingly, the appeal is dismissed.  Costs of the appeal are to the
    respondent and are agreed at $10,000, inclusive of disbursements and all
    applicable taxes.  The parties agree that Henry Pejhan is to account Pejiko
    Limited for the sum of $10,000 the company advanced to Henrys solicitor, Mr.
    Goodman.


COURT OF APPEAL FOR ONTARIO

CITATION:

Portuguese Canadian Credit
    Union Limited v. Pires, 2012 ONCA 335

DATE: 20120518

DOCKET: C54847

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Portuguese
    Canadian Credit Union Limited,

by its
    liquidator, Deposit Insurance Company of Ontario

Plaintiff (Respondent)

and

Virgilio A. Pires

Defendant (Appellant)

Richard Campbell, for the appellant

Mark Dunn, for the respondent

Heard and released orally: May 11, 2012

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated December 14, 2011.

ENDORSEMENT

[1]

We see no error in the motion judges reasoning or in her conclusion
    that the appellants proposed counterclaim is statute-barred.

[2]

Based on the appellants own pleading, he was aware before May 2006 that
    his shares were not redeemable in the manner that he claimed had been represented
    to him.  Any losses suffered by him ultimately arose from the restrictions on
    his share redemption rights.

[3]

This admission is fatal to the appellants claim for damages for alleged
    fraud, breach of fiduciary duty and misrepresentation.    His counterclaim was
    not issued until June 16, 2010, well beyond the applicable two-year limitation
    period for these claims.

[4]

Before this court, the appellant also argues, for the first time, that
    his claim for damages for alleged breaches by the respondent of the
Securities
    Act
,
R.S.O. 1990, c. S.5, is
    not statute-barred because it is subject to a six-year limitation period under
    s. 129.1 of that Act.  We would not give effect to this argument.

[5]

Even assuming that the appellant can advance a damages claim against the
    respondent of the type asserted by him based on alleged infractions of the
Securities
    Act
, the appellant has provided no authority to support the conclusion
    that his claim is a proceeding under the Act within the meaning of s. 129.1
    so as to trigger the six-year limitation period.

[6]

In any event, we note that s. 38(1) of the
Securities Act
,
on which the appellant relies in part,
    does not appear to apply in respect of securities that are subject to
    redemption obligations.  Further, although the appellants pleading invokes s.
    38(2) of the
Securities Act
, no claim on this basis was pursued before
    the motion judge or in oral argument before this court.

[7]

In all the circumstances, the appeal is dismissed.  The respondent is
    entitled to its costs of the appeal, fixed in the amount of $5,000, inclusive
    of disbursements and all applicable taxes.

E.A. Cronk J.A.

Russell Juriansz J.A.

Gloria Epstein J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION:
Precious
    Metal Capital Corp. v. Smith, 2012 ONCA 298

DATE: 20120508

DOCKET: C54301

Rosenberg, Juriansz
    and Rouleau JJ.A.

BETWEEN

Precious Metal Capital Corp.

Plaintiff
    (Appellant)

and

Gregory Charles Smith, Taghmen Ventures Limited,
    NHG Capital Limited, Gregory Jack Peebles, Haviland Management Inc., Haviland
    International Resources Inc. Limited aka Haviland International Resources
    Limited, Euro Americas Securities Limited, International Consolidated Minerals
    Limited, and Platinum Diversified Mining Inc.,
Platinum
    Partners Value Arbitrage Fund, L.P., Mark Nordlicht and Ancash Mining Ltd.

Defendants (
Respondents
)

AND BETWEEN

Gregory Charles Smith, Taghmen Ventures Limited,
    NHG Capital Limited, International Consolidated Minerals Limited, International
    Consolidated Minerals Inc. (formerly Platinum Diversified Mining Inc.,) and
    Euro Americas Securities Limited

Plaintiffs by Counterclaim (Respondents)

and

Precious Metal Capital
    Corp., Steven Babcock, Gary Sugar, George H. Babcock, Babcock Consulting
    Limited and Plataperu Resources Inc.

Defendants to the Counterclaim (Appellants)

Morris Manning, Q.C. and David Roebuck, for the
    appellants

Matthew Milne-Smith, for respondents
Platinum Partners Value
    Arbitrage Fund, L.P., Mark Nordlicht and Ancash Mining Ltd.

Heard: January 30, 2012

On appeal from the judgment of Justice Peter A. Cumming
    of the Superior Court of Justice dated September 2, 2011, with reasons reported
    at 2011 ONSC 2962, 72 E.T.R. (3d) 69.

Juriansz
    J.A.:

[1]

This is an appeal from the order of Cumming J. dated September 2, 2011, granting
    summary judgment to the moving parties, Platinum Partners Value Arbitration
    Fund L.P., Mark Nordlicht and Ancash Mining Ltd. (known collectively as the Ancash
    defendants). The Ancash defendants were three of 12 defendants in the initial action.

[2]

The appellant, Precious Metal Capital Corp. (PMCC), is an Ontario
    company with the object of locating, acquiring and developing precious metal
    mining opportunities in South America. The success of its action against the
    Ancash defendants depends on it establishing that the defendant Gregory Jack
    Peebles breached his fiduciary duty to PMCC and committed a breach of
    confidence. PMCC claims relief against the Ancash defendants on the basis of
    their knowing assistance in Peebles breach of trust, and for conspiracy and
    unjust enrichment. Likewise, the success of the Ancash defendants summary
    judgment motion depends on them establishing that there is no liability on the
    part of Peebles.

[3]

PMCC claims that it retained Peebles, first verbally in early January
    2005 and subsequently by written agency agreement dated May 20, 2005, to raise
    financing for three mining properties: San Luis, Millotingo and Pachapaqui. It
    claims it shared confidential information about Pachapaqui in the course of
    retaining him. PMCC asserts that Peebles retainer as agent and the confidential
    information he received created a fiduciary relationship that he breached by
    acquiring Pachapaqui for himself.

[4]

It is common ground that PMCC engaged Peebles in regard to San Luis and
    Millotingo. The heart of the dispute is whether he was also engaged in regard
    Pachapaqui.

[5]

Peebles and his partner and companies, the defendants Gregory Smith,
    Haviland Management Inc. and Haviland International Resources Inc., bought
    Pachapaqui from its owner Plata-Peru, and sold it to the Ancash defendants.
    Peebles assembled a deal in which International Consolidated Minerals Limited
    (ICM) would acquire all three properties (Pachapaqui from the Ancash defendants
    and San Luis and Millotingo from PMCC) in exchange for shares. ICM did not
    close the deal when it learned that PMCC did not own San Luis and Millotingo.
    PMCC then commenced this action.

(1)

Decision of the motion judge

[6]

The motion judge began his analysis by observing that PMCC's claim
    against the Ancash defendants was derivative of its claim against the
    defendants Peebles, Smith, Haviland Management Inc. and Haviland International
    Resources Inc. He asked: [i]s there a genuine issue requiring a trial with
    respect to whether PMCC retained Haviland [Management Inc.] (
i.e.
Mr.
    Peebles) to help PMCC purchase Pachapaqui and did Mr. Peebles owe and breach a
    duty of confidence to PMCC in that regard? He found that a trial was not
    required to decide the question and awarded summary judgment to the
    respondents.

[7]

The record before the motion judge included the direct evidence of two
    witnesses, Gary Sugar and Stephen Babcock, that there was an agency
    relationship between PMCC and Peebles which obligated Peebles to help PMCC
    acquire Pachapaqui. However, the motion judge found that the agency
    relationship the two witnesses claimed existed cannot exist in law on the
    facts before me, given the strength of the documentary evidence, together with
    the evidentiary record as a whole, in contradicting Messrs. Sugar and Stephen
    Babcock.

(2)

Test for summary judgment

[8]

The summary judgment motion below was decided before this courts
    decision in
Combined Air Mechanical Services v. Flesch
, 2011 ONCA 764, 108 O.R. (3d) 1
. In
Combined
    Air
,
this court
    articulated the test to be applied on a summary judgment motion under the
    amended Rule 20. The question whether there is a genuine issue requiring a
    trial must be answered in light of whether a full trial is required for the
    judge to get a full appreciation of the evidence and issues required to make dispositive
    positive findings. The ultimate question is whether a trial is required in the interest
    of justice.

[9]

The court indicated that the full appreciation test would likely be
    met in cases that are largely driven by documents, in which testimonial
    evidence and contentious factual issues are limited:
Combined Air
, at
    para. 52. The test is unlikely to be met in cases in which there are multiple
    factual issues involving conflicting evidence from a number of witnesses and a
    voluminous evidentiary record (para. 51).

(3)

Discussion

[10]

This
    is a case in which there is a voluminous evidentiary record and conflicting
    evidence from a number of witnesses. Nevertheless, the
Combined Air
formulation of the summary judgment test is met in this case. The record
    enabled the application judge to have a full appreciation of the evidence and
    issues required to make the findings he did.

[11]

The
    voluminous evidentiary record in this case is due to the complexity of the transactions
    and the relationships among the parties. However, relatively few documents bear
    on the one issue on which the case turns: whether Peebles was retained by PMCC
    as its agent to purchase, or finance the purchase of, Pachapaqui on its behalf.

[12]

In
    this case there is conflicting evidence from a number of witnesses. However,
    most of the points of disagreement among the witnesses are minor or are about
    issues that are not material. The only material conflict relates to the one
    issue stated above. Gary Sugar and Steven Babcock assert that PMCC retained
    Peebles as an agent and provided him with confidential information to acquire
    Pachapaqui on its behalf, while Peebles denies that.

[13]

The
    motion judge was well aware that credibility findings should not be made on a
    summary judgment motion and he studiously avoided doing so. Despite the
    conflicting affidavit evidence, he was still able decide that a trial was not
    required to determine whether Peebles was an agent for PMCC in acquiring
    Pachapaqui, without making findings about the credibility of the witnesses. He
    did so by concluding that the testimony of Gary Sugar and Steven Babcock would
    be insufficient in law to establish the plaintiffs claim given the strength
    of the documentary evidence, together with the evidentiary record as a whole,
    in contradicting [them] in their assertion.

[14]

This
    was a determination he was entitled to make. If the action had proceeded to
    trial, PMCC would have borne the burden of proving it retained Peebles as agent
    to acquire an interest in Pachapaqui and that it provided him with confidential
    information. The assertions of Gary Sugar and Steven Babcock were the only
    evidence offered to support these claims. As the motion judge demonstrated in
    his careful analysis, all of the documentary and other evidence pointed in the
    opposite direction. In the face of the facts established by the documentary and
    other evidence, including the evidence of the actions and communications of Gary
    Sugar and Steven Babcock themselves, it was open to the motion judge to
    conclude that the plaintiff could not obtain judgment in its favour at trial.
    On all the evidence in the record, PMCC simply could not fulfill its burden of
    proving that it retained Peebles as agent and provided him with confidential
    information to acquire Pachapaqui on its behalf.

[15]

I
    need not repeat the motion judges careful analysis of the evidence in the
    record. I would merely highlight a few facts.

[16]

One,
    Peebles acquired no confidential information about Pachapaqui from PMCC.
    Plata-Peru, the former owner of Pachapaqui, disseminated information about the
    mine to potential investors and buyers. Any information about Pachapaqui that
    Peebles learned from Steven Babcock or Gary Sugar was not confidential
    information that belonged to PMCC but information Plata-Peru had disseminated
    throughout the mining community.

[17]

Two,
    as the motion judge said, any aspiration on the part of PMCC to acquire
    Pachapaqui was wishful fantasy. PMCC's only assets were in relation to San
    Luis and Millotingo. As the motion judge found, PMCC misrepresented both to the
    Peebles group and to ICM, the ultimate purchaser of Pachapaqui, that it owned
    the San Luis and Millotingo properties. In fact, it held options that had gone
    into default. PMCC was in no position to acquire Pachapaqui.

[18]

Three,
    the agency agreement, which contained an entire agreement clause, did not
    mention Pachapaqui. The evidentiary record enabled the motion judge to find, as
    he did, that the amount of financing contemplated by the agreement realistically
    relates to development of the San Luis and Millotingo properties, that
    Peebles entitlement to remuneration was not tied to Pachapaqui, and that the amount
    of remuneration the agreement provided was inconsistent with the addition of
    Pachapaqui to the venture.

[19]

Four,
    as the motion judges review of the evidence shows, PMCC was well aware that
    Peebles was acquiring Pachapaqui on his own account. Steven Babcock was an
    officer and director of Plata-Peru and was fully apprised of the Peebles
    groups initiative to purchase Pachapaqui. His actions and communications are
    not consistent with PMCC being an undisclosed principal behind Peebles
    proposal. In fact, had PMCC been an undisclosed principal, Steven Babcock would
    have been in a conflict of interest.

[20]

For
    these reasons, I would conclude that the record enabled the application judge
    to have a full appreciation of the evidence and issues, and that there is no
    basis for interfering with his decision that a trial is not necessary to
    conclude that PMCC cannot establish its claim that Peebles was its agent in
    acquiring Pachapaqui. Without establishing that claim, PMCCs action against
    the respondents cannot succeed.

(4)

Conclusion

[21]

I
    would dismiss the appeal and fix the respondents costs in the amount of
    $15,000.00 including disbursements and applicable taxes.

R.G. Juriansz J.A.

I agree M. Rosenberg
    J.A.

I agree Paul Rouleau
    J.A.

Released:
May 8, 2012


WARNING

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

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

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

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

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

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

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

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

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

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

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

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. A.A., 2012 ONCA 323

DATE: 20120516

DOCKET: C51586

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

A. A.

Appellant

Michael Dineen, for the appellant

Catherine Mullaly, for the respondent

Heard: April 26, 2012

On appeal from the conviction entered on October 19, 2009
    and the sentence imposed on November 12, 2009 by Justice Lloyd Budzinski of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions for sexual assault and utter death
    threat on the ground that in applying the third stage of the
W.D
.
    analysis, the trial judge misapprehended the evidence of the complainant and
    relied on inferences from her evidence that did not logically support the
    conclusion that he drew from them.

[2]

Both the complainant and the appellant testified at the trial. They were
    both friends of another young man, T.F., but had not met each other until that
    evening. There was no issue that they had a lengthy sexual encounter on the
    evening in question. The issue was whether it was consensual or forced on the
    complainant by the appellant. The appellant told her he would drive her home. The
    assault occurred when they were walking, supposedly to the appellants car.

[3]

In assessing the appellants evidence for credibility and reliability,
    the trial judge noted that he demonstrated a pattern of boasting and
    inflationary thinking. As an example, the trial judge mentioned that the
    appellant spoke of one time driving a Lincoln Navigator and working at jobs only
    if the minimum pay was $12 an hour. In fact, however, he had no place to stay,
    having been ejected from a hostel, and no money at the time. The trial judge
    concluded that the appellants tendency to boast undermined his credibility and
    was consistent with the complainants description of his boasting about his
    potentials.

[4]

The appellant submitted that the trial judge erred and misapprehended
    the evidence when he said that the complainant gave evidence of the appellants
    boasting. However, there was some evidence from the complainant, given in
    cross-examination, where the complainant was asked about what occurred after
    the assault. The appellant had walked her to the bus stop and while walking, he
    said that she was going to be his girlfriend, and because of that, he was
    prepared to tell her that he had lied to her earlier when he told her he had a
    car, and that he never had a car.

[5]

The trial judge stated that their descriptions of the boasting were not
    the same, but that the appellants description was consistent with the
    complainants. In light of the fact that the appellant had told her  or
    boasted - that he had a car when he did not, and that in evidence he had referred
    to having (boasted about) a Lincoln Navigator, in our view the trial judge did
    not err in his apprehension that the complainant had described some boasting by
    the appellant.

[6]

In assessing the complainants
    credibility, the trial judge referred to her as giving her evidence in an
    objective manner. In support, he pointed to two aspects of her evidence: (1)
    that she was open about the fact that she was angry at T.F. because she was
    supposed to sleep at his house that night; and (2) that she described the appellant
    after the attack as friendly and as wanting to continue the relationship. The
    trial judge explained that these statements could be viewed as inconsistent
    with someone who was attacked against her will or who was trying to falsely
    blame someone to get the attention of her boyfriend.

[7]

The appellant argues first that the
    trial judge misapprehended the complainants evidence about the accused after
    the attack and second, that the inference he drew from her evidence did not
    follow logically from that evidence. We do not agree.

[8]

The complainant was asked a number of
    times in examination in-chief and cross-examination about what the accused said
    and did after the attack. She described how he walked her to the bus stop so
    that she could take the bus home, and on the way he told her that she would now
    be his girlfriend and that she was pretty. He also threatened her and T.F. with
    death if she told anyone about the attack.

[9]

In totality, it was not an unfair
    characterization of her evidence by the trial judge to say that she described
    the appellant as friendly in the context of deciding whether she was credible.
    He concluded that she was essentially straightforward and he drew the inference
    that she was not embellishing to suit a purpose, which enhanced her credibility.
    He was entitled to view her evidence in that way and made no error in so doing.

[10]

The appellants submission is that the
    trial judges conclusions regarding the complainants evidence amounted to
    misapprehensions of her evidence and did not support his finding on the third
    branch of
W.D.
that the Crown had proved its case beyond a reasonable
    doubt based on the evidence that the court accepted.

[11]

In our view, the trial judge did not
    misapprehend the evidence. He referred to the law as set out in
W.D
. He
    was entitled to reject the evidence of the appellant and accept and act on the
    evidence of the complainant in order to find that the charges of sexual assault
    and utter a death threat to the complainant were proved beyond a reasonable
    doubt. In contrast, he was not satisfied beyond a reasonable doubt on the count
    of threatening death to T.F. and dismissed that count.

[12]

The appeal is dismissed.

Signed:        John
    Laskin J.A.

K.
    Feldman J.A.

David
    Watt J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110.
    (1)
Subject to this section, no person shall publish the
    name of a young person, or any other information related to a young person, if
    it would identify the young person as a young person dealt with under this Act.

111.
    (1)
Subject to this section, no person shall publish the
    name of a child or young person, or any other information related to a child or
    a young person, if it would identify the child or young person as having been a
    victim of, or as having appeared as a witness in connection with, an offence
    committed or alleged to have been committed by a young person.

138.
    (1)
Every person who contravenes subsection 110(1)
    (identity of offender not to be published), 111(1) (identity of victim or
    witness not to be published), 118(1) (no access to records unless authorized)
    or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure)
    of this Act, or subsection 38(1) (identity not to be published), (1.12) (no
    subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15)
    (information to be kept separate), 45(2) (destruction of records) or 46(1)
    (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985,

(a)       is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding two years; or

(b)       is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. A.M., 2012 ONCA 359

DATE:  20120531

DOCKET: C53424

Rosenberg, Armstrong and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

A.M.

Appellant

Graham T. Clark, for the appellant

Alison Wheeler, for the respondent

Heard and endorsed: March 21, 2012

Written endorsement released: March 26, 2012

On appeal from the conviction entered on June 14, 2010
    and the sentence imposed on July 28, 2010 by Justice Brian Muir Scully of the Ontario
    Court of Justice (Youth Court), sitting without a jury.

ADDENDUM

[1]

We have been informed that the Crown does not intend to proceed
    on the new trial ordered by this court. We have also been informed that the
    appellant was only seeking a new trial on the charges of aggravated assault and
    assault with a weapon.

[2]

Accordingly, the appeal from conviction on the charges of
    aggravated assault and assault with a weapon is allowed, those convictions are
    quashed, and a new trial ordered. The charges of aggravated assault and assault
    with a weapon will be stayed.

[3]

The remaining conviction for weapons dangerous cannot support the
    serious violent offence designation under s. 42(9) of the
Youth Criminal
    Justice Act
. Accordingly, leave to appeal sentence is granted and the
    serious violent offence designation is quashed.

Signed: M. Rosenberg J.A.

Robert P. Armstrong J.A.

R. A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Amos, 2012
    ONCA 334

DATE: 20120522

DOCKET: C52012

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Anthony Amos

Appellant

Russell Silverstein and I. Grant, for the appellant

Frank Au, for the respondent

Heard:  April 5, 2012

On appeal from a conviction of first degree murder
    entered by Justice J. Robert MacKinnon of the Superior Court of Justice, sitting
    with a jury, on November 13, 2009.

Watt J.A.:

[1]

The appellant and two others were tried together on a single count of
    first degree murder.

[2]

At the end of the Crowns case, some five or six weeks after the
    proceedings before the jury had begun, the trial judge granted a motion by the
    appellants trial counsel to be removed from the record, dismissed the
    appellants application for an adjournment to permit him to retain new counsel,
    and appointed the appellants former trial counsel as
amicus curiae
.

[3]

The jury found the appellant guilty of first degree murder.  He seeks a
    new trial on the ground that the trial judge erred in refusing his adjournment
    request and appointing as
amicus curiae
the very lawyer in whom the
    appellant had lost confidence and had discharged.

[4]

I would not give effect to either ground of appeal.

The First Ground: Refusal of an
    Adjournment

[5]

Some background is essential to assess the allegation of error in
    refusing the appellants adjournment request.

[6]

When only a handful of witnesses remained in the Crowns case, defence
    counsel advised the trial judge that when the Crowns case concluded he might
    have to withdraw as defence counsel. The appellant confirmed that he wished
    counsel to remain to conduct his defence until the conclusion of the Crowns
    case.

[7]

During his application to be removed from the record, defence counsel
    made it clear that irreconcilable differences had developed between him and the
    appellant. These differences involved instructions from the appellant about the
    conduct of the defence that counsel could not, in good conscience, follow. The
    appellant confirmed that he wished his lawyer to be removed as his counsel.
    The trial judge made the order.

[8]

The trial judge encouraged the appellant to obtain new counsel. He
    provided the names of senior criminal lawyers, a number of local counsel, and
    contacted Legal Aid to urge them to give prompt consideration to any requests
    involving the appellants case. The trial judge adjourned proceedings to permit
    the appellant to get new counsel.

[9]

The only lawyer the appellant tried unsuccessfully to contact was the
    lawyer who had represented him until the conclusion of the preliminary inquiry.
    He had discharged her because she lacked experience in a murder trial. The
    trial judge ensured that the appellant and his former counsel met. The lawyer
    indicated that she would be prepared to assume carriage of the appellants
    defence, but that she would not be available for at least three weeks and would
    not accept the retainer at Legal Aid rates.

[10]

The
    trial judge dismissed the appellants request for an adjournment of the trial
    proceedings for at least three weeks to permit his former counsel to
    re-acquaint herself with the case and proceed with the defence.

[11]

The
    appellant contends that the trial judge made several errors in exercising his
    discretion to refuse the adjournment request. Among the errors alleged are
    these:

i.        finding
    the adjournment request was a sham in the absence of any supportive evidence
    and in the face of a contrary finding that a genuine breakdown had occurred in
    the solicitor-client relationship;

ii.       unfairly
    requiring the appellant to continue his pursuit of new counsel when he had
    already identified his counsel of choice;

iii.      finding
    that the appellant was sophisticated, thus capable of conducting his own
    defence to a charge of first degree murder; and

iv.      assigning
    too much weight to the interests of the co-accused and failing to consider
    alternate remedies to safeguard their interests.

[12]

In
    my view, the trial judge was entitled to find that the adjournment request was
    a sham.  I say so for several reasons.

[13]

First,
    the appellant, for all practical purposes, ignored the trial judges offers of
    assistance when provided with names of local counsel and senior criminal law
    practitioners. The appellant did not contact Legal Aid about new counsel and
    only spoke to his former counsel when the trial judge summoned her to meet with
    the appellant at the court house.  Instead, the appellant wanted to engage his
    former counsel whom he had discharged because of her lack of experience in
    murder cases.

[14]

Second,
    the appellant had retained trial counsel, whom he sought to discharge, after
    the preliminary inquiry. He retained trial counsel because of trial counsels
    experience in murder cases. The trial judge characterized trial counsels
    conduct of the trial as entirely focused, appropriate and effective.

[15]

Third,
    trial counsel made it clear that underlying the irreconcilable differences
    between counsel and client was the inability of counsel in good conscience to
    follow the appellants instructions. It is a reasonable inference from these
    carefully-chosen words of an experienced trial lawyer that the appellants
    instructions were incompatible with counsels professional ethical obligations.

[16]

Fourth,
    the appellant blamed trial counsel for abandoning him. The truth of the
    matter was that the appellant discharged trial counsel. Failing to adhere to
    instructions that contravene a lawyers ethical obligations cannot be
    characterized as an abandonment of a client by any standard of measure.

[17]

In
    the end, I am satisfied that the combination of factors just described
    constituted an adequate evidentiary foundation for the trial judges finding
    that the appellants request for an adjournment to permit him to continue the
    trial with former counsel whom he had rejected due to lack of experience was a
    sham.

[18]

Further,
    I do not consider the finding that the adjournment request was a sham to be
    inconsistent with the finding that there had been a genuine breakdown in the
    relationship between the appellant and his trial counsel. The appellant
    discharged his trial counsel. In those circumstances, the trial judge was
    entitled to remove counsel from the record when his various resuscitative
    measures failed.

[19]

An
    accused has an unfettered right to discharge his or her legal counsel at any
    time and for any reason. The appellant did so here. The trial judge had no
    authority to interfere with the appellants decision. In particular, the trial
    judge had no authority to force the unwilling appellant to continue to be
    represented by counsel whom he had discharged:
R. v. Cunningham
, 2010
    SCC 10, [2010] 1 S.C.R. 331, at para. 9.

[20]

The
    trial judge had an obligation to ensure that the appellant understood the
    consequences of discharging trial counsel at the conclusion of the Crowns case
    in a joint trial. The trial judge told the appellant about those consequences
    and arranged for him to receive independent legal advice on the same subject.

[21]

The
    appellants unequivocal discharge of trial counsel left the trial judge with no
    real option other than to give effect to the discharge by permitting counsel to
    be removed from the record. The trial judge did have a discretion, however, to
    determine whether to grant the appellant an adjournment to permit him to
    continue the trial represented by counsel whom he had previously discharged due
    to her lack of experience in murder cases. The disagreement between former trial
    counsel and the appellant concerned the appellants instructions to introduce
    certain evidence that former counsel could not in good conscience put forward.
    In these circumstances, the trial judge could reasonably infer that what the
    appellant sought was a mouthpiece, a lawyer the appellant considered would
    follow his instructions unconstrained by ethical considerations. Such a
    conclusion was reasonably available in the circumstances, warranted the
    characterization sham, and was not inconsistent with the earlier finding
    about a genuine breakdown in the solicitor-client relationship between the
    appellant and his trial counsel.

[22]

In
    the end, the trial judge was obliged to consider whether it was in the interests
    of justice to grant the appellants request for an adjournment of a joint trial
    with a jury for at least three, and more likely four to five weeks. He declined
    to do so. After a careful review of his reasons, considered in their entirety, I
    am not prepared to say that his decision reflects error. The trial judge did
    not misapprehend relevant evidence, take into account improper considerations
    or assign unwarranted weight to the relevant factors.

[23]

This
    ground of appeal fails.

The Second Ground: The Selection of
Amicus

[24]

The
    appellant advances a second ground of appeal.  He says that the trial judge was
    wrong to appoint his former trial counsel as
amicus curiae
after that
    counsel had been removed as solicitor of record.

[25]

I
    do not agree.

[26]

At
    first, the appellant
s former counsel resisted the suggestion
    that he act as
amicus
.  The trial judge then
    defined the role of
amicus
to include:

i.        objecting
    to perceived legal errors;

ii.       assisting
    the appellant in drafting a statement of the defence                          position;

iii.      assisting
    the appellant in subpoenaing any defence witnesses;   and

iv.      advising
    the appellant on any questions of law.

[27]

The
    role of
amicus
, as the trial judge
    defined it,
did not include the examination of the appellant or any
    defence witnesses, or a closing address to the jury.

[28]

In
    the end, former counsel agreed to accept the appointment in accordance with the
    proposed terms. Indeed, the
amicus
mandate was expanded at the
    appellants request when the appellant sought further assistance. The trial
    judge made it clear that, if any conflicts arose between
amicus
and
    the appellant, he (the trial judge) would deal with them. None emerged.

[29]

In
    the circumstances of this case, I see no error in the
amicus
appointment. No bright line rule bars the appointment of former counsel as
amicus
.
    An accused need not have confidence in
amicus
with whom she or he has
    no solicitor-client relationship. The description
amicus curiae
is no
    accident. What occurred here did not compromise the actual or apparent fairness
    of the appellants trial, nor did it inhibit the appellant in making full
    answer and defence to the charge. The appellant made it clear that
he
decided, after a weekends reflection, not to testify or call defence witnesses.

[30]

I
    would dismiss the appeal.

Released: May 22, 2012  JL

David
    Watt J.A.

I
    agree W. Winkler C.J.O.

I
    agree John Laskin J.A.