COURT OF APPEAL FOR ONTARIO

CITATION: R. v. White, 2015 ONCA 508

DATE: 20150707

DOCKET: C56966

Simmons, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Merith White

Respondent

Emilie Taman and Jim Marshall, for the appellant

Andrew Burgess, for the respondent

Heard:  April 9, 2015

On appeal from the acquittals entered by Justice P.
    Lalonde of the Superior Court of Justice on April 5, 2013.

Huscroft J.A.:

[1]

The respondent owned and occupied a condominium unit in a small, 10-unit
    building. The following question is raised by this appeal: to what extent did
    the respondent have a reasonable expectation of privacy in the common areas  stairways,
    hallways, and storage rooms  of that building?

[2]

The police suspected that the respondent was involved with dealing drugs
    and made three surreptitious entries into common areas of his building. Once
    inside, a detective walked through the hallways, entered the storage area and
    viewed the contents of the respondents storage locker. The detective also hid
    in the stairwell, where he observed the respondents unit and listened to what
    was going on inside the unit. Using the information gathered from these entries,
    the police obtained a warrant and subsequently arrested the respondent on drug
    trafficking charges and possession of property obtained by crime.

[3]

At trial, the judge held that the evidence the detective gathered in the
    course of the three entries was obtained in breach of the respondents rights
    under s. 8 of the
Canadian Charter of Rights and Freedoms
and excluded
    it pursuant to s. 24(2). The trial judge acquitted the respondent of possession
    for the purpose of trafficking and possession of property obtained by crime, but
    convicted him of another charge. The Crown appeals against the acquittals,
    arguing that the respondent had no reasonable expectation of privacy in the
    common areas of his multi-unit building. For the reasons that follow, I
    disagree and would dismiss the appeal.

BACKGROUND

[4]

The respondent came to the attention of the police in the context of an investigation
    of Yianni Papadolias, whom they believed to be involved in drug trafficking. The
    police obtained a warrant to allow GPS tracking of Papadoliass car. Through
    this warrant, the police learned that Papadolias visited 711 Churchill Avenue,
    a condominium where the respondent owned a unit in which he resided, 75 times over
    a period of approximately four months (September 29, 2010  January 17, 2011).
    The police suspected that the respondent was a drug dealer for Papadolias and
    that Papadolias was using the condominium as a stash house.

[5]

Detective Hill entered the condominium at 711 Churchill Avenue on three
    occasions prior to obtaining a search warrant. Each of his visits is outlined
    below.

First Visit  December
    10, 2010

[6]

Detective Hill entered the respondents condominium to determine the
    layout of the building, points of entry and exit, and obtain information as to
    other people that might be of interest. The police were already aware that the
    respondent lived in unit 302 of the building.

[7]

Detective Hill entered the building without the knowledge of any of the
    residents and without any prior consent. He gained entry by following a postal
    worker into the building through a door that was always locked.

[8]

Once inside, he took the stairs to the lower level, where he entered an
    unlocked storage room. There he observed storage lockers with numbers
    corresponding to unit numbers in the building. The lockers were cage-like and
    their contents were visible. Detective Hill observed the contents of locker
    302, which corresponded to the number associated with the respondents unit.
    Specifically, he saw a charcoal or carbon filter, blower fan, and garden hose,
    among other things, all of which he considered could be used in a grow-op. He
    did not touch anything in the locker room, take photographs or video, or
    install any devices.

[9]

Detective Hill then went upstairs where he observed unit 302. He was in
    the building for approximately 20 minutes.

Second Visit  January
    20, 2011

[10]

The
    purpose of this entry was to determine whether Papadalios was coming or going
    from unit 302 and bringing or retrieving packages. Detective Hill entered the
    building through the north stairwell door, which he said was always locked.
    However, the door would not close properly and was not locked as a result.
    Again, he entered the building without the knowledge of any of the residents
    and without any prior consent.

[11]

Once
    inside the building, Detective Hill hid in a stairwell and from this location
    observed Papadalios leaving the respondents unit carrying a box. Papadalios
    was later observed transferring the box to a third person outside the building.

Third Visit  January
    21, 2011

[12]

Detective
    Hill used the same north stairwell door he had used on January 20 to gain entry
    to the condominium building in another attempt to find evidence linking
    Papadalios to unit 302. The door was still not closed properly and for the
    third time he entered the building without the knowledge of any of the
    residents and without any prior consent.

[13]

Detective
    Hill stationed himself in the stairwell and observed Papadalios entering unit
    302. Detective Hill overheard a conversation inside the unit and believed that
    it concerned a drug deal. He also heard what he thought was the sound of
    packing tape being removed from a roll. Detective Hill observed Papadalios
    leaving the unit with a box in his possession and depositing the box into a
    minivan. The minivan was pulled over by the police and the box was found to contain
    2,679.4 grams of marijuana and 166.6 grams of cocaine.

The Search Warrant

[14]

Detective
    Norman Redmond prepared the Information to Obtain a Search Warrant (ITO) for
    three locations, including the respondents residence at 711 Churchill Avenue,
    unit 302. Although the ITO mentioned that Detective Hill had made observations
    from within the condominium, the provincial court judge who issued the warrant
    was not informed that Detective Hill had entered the locked building without
    permission. Detective Redmond testified that it was not necessary to inform the
    judge of the surreptitious entries because Detective Hill had not done anything
    wrong in entering the condominium.

The Execution of the Warrant

[15]

Following
    execution of the warrant the police found 1,708 grams of cocaine, 6,860 grams
    of marijuana, and 5.1 grams of crack cocaine in the respondents condominium
    unit. The respondent was arrested and found to be in possession of 0.4 grams of
    cocaine and $400 in Canadian currency.

[16]

The
    respondent was charged with possession of cocaine and marijuana for the purpose
    of trafficking, possession of cocaine, and possession of property obtained by
    crime.

The Evidence at the
Voir Dire

[17]

At
    trial, the respondent brought an application alleging a breach of his rights
    pursuant to s. 8 of the
Charter
arising from the three surreptitious
    entries and the subsequent search of his condominium unit. A
voir dire
was
    conducted into the admissibility of the evidence obtained pursuant to the
    search warrant.

[18]

The
    Crown called three witnesses at the
voir dire
.

[19]

Zoë
    Gillespie, a member of the board of directors of the respondents condominium,
    testified that the north stairwell door is supposed to be locked but the locks
    do not latch properly in the winter. She understood there had been only one
    entry by the police, and stated that if the police had requested permission to
    enter the building it would have been granted. She added that Detective Redmond
    met with the board of directors of the condominium following execution of the
    search warrant and that 70% of the residents of the condominium had voted to
    sign an authorization under the
Trespass to Property Act
, R.S.O. 1990, c. T.21,
allowing police
    to enter the building in the future. She noted that the building has inadequate
    insulation and as a result, she can hear voices from the hallway and other
    apartments when she is in her own unit.

[20]

Detective
    Hill outlined the circumstances of his entries into the condominium. He said
    that in his experience it is very common to enter locked apartment or
    condominium buildings for the purpose of investigating or conducting
    surveillance activities. In cross-examination, he acknowledged that he would
    not enter the property of a single-unit dwelling  even so much as step foot
    onto the lawn of the property  but reiterated his understanding that he was
    entitled to enter a multi-unit property in furtherance of an investigation. He
    drew a distinction between observing by installing a camera, which in his view
    would require judicial authorization, and observing by standing in the common
    area of a multi-unit dwelling, which in his view was permitted. Detective Hill
    acknowledged that during his entries on January 20 and 21, his focus was on
    unit 302. Detective Hill did not agree with the suggestion that an ordinary
    person entering the condominium for purposes of surveying it as he had done
    would be trespassing, and reiterated that his entry into the building was
    permissible because he was in the midst of an investigation.

[21]

Detective
    Redmond testified that he did not believe permission was required to enter the
    common areas of the building and that it would have compromised the
    investigation to have sought permission. In cross-examination, he stated that
    there was no trespass because the police were lawfully conducting surveillance
    of a person suspected of drug trafficking. He acknowledged that a warrant would
    be required to install a camera in the building but said that a police officer
    could observe a unit in the condominium because he was not physically altering
    the building. In his view, police officers can enter the condominium by any
    means so long as they do not break anything in doing so. Detective Redmond confirmed
    Zoë Gillespies testimony that he had returned to the building subsequent to
    the respondents arrest to meet with the condominium board and seek their
    authorization under the
Trespass to Property Act
to enter the building in the future
(which was obtained subsequently). In his view, the authorization was
    unnecessary; it simply cleared up any lingering ambiguity.

THE TRIAL JUDGES DECISION

[22]

The
    trial judge issued detailed reasons outlining his decision on the
Charter
application.
    These reasons were later followed by a brief oral ruling in which he acquitted
    the respondent of possession for the purpose of trafficking and possession of
    property obtained by crime, and convicted the respondent of possession of
    cocaine. I discuss each decision below.

Charter
Application Decision

[23]

The
    trial judge conducted a thorough review of the jurisprudence and concluded that
    the respondent had a reasonable expectation of privacy in the condominium and
    its common areas as a result of his ownership interest and residency. He
    further concluded that the respondents rights under s. 8 of the
Charter
were violated by the warrantless searches conducted by the police. He found
    that the police had neither statutory authority to conduct the searches nor a
    constitutionally unrestricted right to trespass upon private property to
    conduct the searches.

[24]

The
    trial judge went on to consider whether the evidence should be excluded under
    s. 24(2) of the
Charter
. He found that Detective Hills
    unconstitutional searches of the common areas of the building formed the
    foundation for the search warrant pursuant to which the respondents unit was
    searched and that the temporal link was unbroken by any intervening event. Accordingly,
    the trial judge held that the threshold inquiry of s. 24(2)  which asks
    whether the evidence was obtained in a manner that infringed the
Charter

 was met.

[25]

The
    trial judge applied the three criteria outlined by the Supreme Court in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R.
    353,
at para. 71, and concluded as follows:

i.

the breach was serious because the police were willfully blind or
    ignorant as to the requirements of the
Trespass to Property Act
. There
    was also some bad faith on their part, which was confirmed by their refusal to
    answer questions in cross-examination. The evidence obtained from the illegal
    entries had to be excised from the affidavit that was used to obtain the search
    warrant and, once that occurred, there were no grounds for issuance of the
    warrant. As a result, the search of the respondents unit was warrantless;

ii.

there was a serious impact on the respondents
Charter
rights;
    and

iii.

admission of the evidence would bring the administration of justice into
    disrepute.

[26]

On
    this basis, the trial judge excluded the evidence.

Ruling as to Guilt

[27]

Having
    excluded the evidence obtained at the respondents condominium unit, the trial
    judge acquitted the respondent of possession of cocaine and marijuana for the
    purpose of trafficking. He also acquitted the respondent of possession of
    property obtained by crime.

[28]

However,
    counsel for the respondent conceded the admissibility of other evidence that
    came from other aspects of the investigation apart from the search executed at
    the respondents residence. This evidence included a certificate of analysis
    confirming that the 0.4 grams of white powder found on the respondent at the
    time of his arrest was in fact cocaine. Counsel for the respondent also made
    all the admissions necessary to ground a conviction for possession of
    cocaine. Based on these admissions and this evidence, the trial judge convicted
    the respondent of possession of cocaine. The trial judge sentenced the
    respondent to time served and a $500 fine. The respondent has not appealed his
    conviction or sentence.

ISSUES ON APPEAL

1.       Did the trial judge err in finding that the
    respondent had a reasonable expectation of privacy in the common areas of his
    condominium building and err in finding an infringement of s. 8 of the
Charter
?

2.       Did the trial judge err by excluding the
    evidence of drugs pursuant to s. 24(2) of the
Charter
?

[29]

The
    appellant argues that the trial judge erred in failing to conduct the thorough
    analysis as set out in
R. v. Edwards
, [1996] 1 S.C.R. 128, which, it
    submits, is fatal to his decision, and that he fixated on the respondents
    ownership of his condominium in distinguishing cases that have established that
    there is no reasonable expectation of privacy in the common areas of multi-unit
    buildings. The appellant further submits the police understood their common law
    duties and did not trespass on the respondents property.

[30]

The
    respondent argues this was a situation that required a warrant, but the police
    chose not to get one initially and conducted surveillance while trespassing on
    the respondents property. The respondent submits the trial judge made no
    errors in applying the
Edwards
test and that the case law establishes
    that the respondent had a reasonable expectation of privacy in the common areas
    of the condominium.

ANALYSIS

(1)

Did the trial judge err in finding that the respondent had a reasonable
    expectation of privacy in the common areas of his condominium building and err
    in finding an infringement of s. 8 of the
Charter
?

[31]

The
    right to be secure from unreasonable search or seizure protects
reasonable
expectations of privacy, and the reasonableness of an expectation is determined
    having regard to all of the relevant circumstances in a particular case.
    Justice Cory enumerated several relevant considerations in
Edwards
, at
    para. 45:

(i)   presence at the
    time of the search;

(ii)   possession or
    control of the property or place searched;

(iii)  ownership of the
    property or place;

(iv)  historical use of the
    property or item;

(v)
    the ability to regulate access, including the right to admit or exclude others
    from the place;

(vi)  the existence of a
    subjective expectation of privacy; and

(vii) the objective
    reasonableness of the expectation.

[32]

Justice
    Cory emphasized that these considerations are a guide to the question.

There is no requirement
    that each of the
Edwards
factors be considered in a mechanical fashion
    in order to render a valid decision.

[33]

In
    addition to its submissions on
Edwards
, the appellant relies chiefly on
    two decisions of this court. The first is
R. v. Laurin
(1997), 98 O.A.C. 50
.
In that
    case,

responding to an anonymous complaint, the police trespassed on
    private property by peering into the window of the basement apartment occupied
    by the appellant (with their faces two inches from the window). They entered
    the apartment building through unlocked doors for the purpose of knocking on
    the residents door, and once inside the building smelled marijuana in the
    hallway outside the appellants apartment. This court concluded that the police
    infringed the appellants reasonable expectation of privacy by peering into the
    window but not by smelling marijuana in the hallway, reasoning that the police
    were entitled to be in the hallway along with visitors, repair people, and the
    landlord. The court stated, at para. 39: [The polices] presence was not
    dependent on the invitation of the appellant, express or implied. I refer to
    the fact that the outer doors of the building were not locked or otherwise
    secured.

[34]

The
    second case is
R. v. Thomsen
,
[2005] O.J. No. 6303 (S.C.J.),
    affd 2007 ONCA 878,

which the appellant submits is fatal to the
    respondents
Charter
claim. In
Thomsen
, the police were called
    by the property manager, who advised of a possible marijuana grow-op in a
    particular apartment. They entered the building through a locked door that had
    a buzzer-entry system by following a tenant. Once inside the building, the
    police smelled marijuana in the hall outside the applicants apartment and
    heard a fan or droning sound coming from the apartment.

[35]

Applying
    the
Edwards
factors, Garton J. found that the applicant was not
    present at the time; he had no right of possession or control or ownership of
    the hallway; there was no history of use of the hallway that would have
    excluded others such as the police; the applicant had no right to regulate
    access to the hallway; there was no evidence that he had a subjective
    expectation of privacy in the hallway; and there was no objective reasonable
    expectation of privacy. In these circumstances, Garton J. concluded that the
    applicant had no reasonable expectation of privacy in the apartment hallway. An
    appeal from her decision was dismissed in

a two-line endorsement in
    which this court agreed with the reasons of the trial judge.

[36]

In
    my view,
Laurin
and
Thomsen
are distinguishable from the
    present case. I deal with each case in turn.

[37]

In
Laurin
,
the police
    were investigating in response to a complaint. The apartment building was not
    locked or otherwise secured. Moreover, the building in question was an
    apartment building rather than a condominium and the accused had no ownership
    interest in the common areas of the building. In any event, the court did not
    conclude there was never a reasonable expectation of privacy in an apartment
    hallway. On the contrary, the trial judge found that the police conduct at issue
    could not be considered intrusive and that the police did not take unusual
    advantage of their presence in the hallway: para. 44. It was simply a case in
    which there was no reasonable expectation of privacy concerning smells
    emanating from an apartment into the common hallway of the building.

[38]

The court acknowledged the competing considerations involved,
    at para. 46:

[T]he policy considerations relating to the reasonable
    expectation of privacy of an apartment dweller with respect to different kinds
    of police surveillance in the common hallways may be varied. On the one hand,
    it may be thought that tenants would not wish police officers to have the same
    scope as neighbours and visitors with respect to making ordinary decisions in
    the hallways. On the other hand, it may be quite in the interests of the
    tenants that they have this scope if they are legitimately engaged in
    investigating a complaint, to enter and make observations in the hallway which
    are not intrusive.

[39]

Thomsen
also concerned an investigation pursuant to a complaint, in this case from the
    buildings property manager. The trial judge found that the police had
    permission to enter the building and be in the hallways by virtue of the
    complaint and that the smell of marijuana was noticeable from the elevator
    doors in any event.

[40]

In
    summary, both
Laurin
and
Thomsen
involved single entries into
    the common hallways of apartment buildings in order to walk to a residents
    door in the course of investigating complaints. The police conduct involved in these
    cases was much less intrusive than in this case. And in neither
Laurin
nor
Thomsen
did the resident

own the unit. These were the
    circumstances in which it was concluded that the residents in
Laurin

and
Thomsen
had no reasonable expectation of privacy in the common
    hallways of their buildings.

[41]

In
    my view, these cases are not authority for the appellants categorical
    proposition that residents of multi-unit dwellings do not have a reasonable
    expectation of privacy in the shared common areas of those buildings, and that
    police may conduct non-intrusive surveillance from these locations. A more
    nuanced, contextual approach is required.

[42]

The
    unreasonableness of granting the police virtually unfettered access to multi-unit
    dwellings is illustrated in the testimony of Detective Redmond, elicited in
    cross-examination:

Q. And from your point of view, theres  theres nothing
    preventing him [Detective Hill] from entering into the building for the common
    areas of the building. Theres nothing wrong with that. Right?

A. No, there wasnt.

Q. Okay. Is there any limit on how he enters into those common
    parts of the building?

A. Well, I wouldnt  I wouldnt be happy, if he broke the
    front door, kicked it in and entered. To me, that would be unreasonable.

Q. Okay. And that would be because hed be damaging property.
    Right?

A. Correct. Hes. . .

Q. What if you could climb into a window or something like
    that?

A. Climb into a?

Q. Lets say theres a window that opens and its in the common
    areas and he can open it from the outside and climb in.  Is that okay?

A. I mean, if hes not breaking anything then, why not?

Q. Okay. So the test for whether hes committing an unlawful
    act or not is whether hes breaking something when he enters the place, in your
    mind?

A. Yeah. Whether hes, you know, damaging the property or
    anything like that. Correct.

[43]

If
    the police are entitled to climb through windows to gain entry to multi-unit
    residential buildings and, once inside, enter common areas such as storage
    rooms, hide in stairwells, and conduct surveillance operations for as long as
    they want on those who live there  all without a warrant  on the basis that
    those who live in these buildings have no reasonable expectation of privacy in
    the common areas, then the concept of a reasonable expectation of privacy means
    little.

[44]

It
    is clear that lower courts have rendered decisions rejecting reasonable
    expectation of privacy claims in several cases involving the common areas of
    multi-unit buildings: see e.g.
R. v. Piasentini
, [2000] O.J. No. 3319
    (S.C.J.);
R. v. Simpson
, [2005] O.J. No. 5056 (S.C.J.), revd on other
    grounds 2007 ONCA 793, 231 O.A.C. 19;
R. v. Nguyen
, 2008 ABQB 721, 462
    A.R. 240, affd 2010 ABCA 146, 477 A.R. 395; and
R. v. Verrett
, 2013 ABQB 658, 574 A.R. 212
. But the
    lesson from
Edwards
is that the reasonable expectation of privacy is a
    context-specific concept that is not amenable to categorical answers. A number
    of considerations may be relevant in determining whether an expectation of
    privacy is reasonable in the context of particular multi-unit buildings, albeit
    that none of them is dispositive. The
Edwards
factors must be
    considered as a whole, having regard to the particular circumstances of each
    case.

[45]

A
    resident may have possession or control of the common areas of a building to a
    greater or lesser extent. The size of a building may be a relevant
    consideration in determining reasonable expectations of privacy, as even in the
    context of a locked building protected by a security system it is reasonable to
    assume that the number of people that may be present in the common areas of the
    building will vary in accordance with the size of the building and its
    population. Ownership of the property may be of greater or lesser significance
    for the same reason. A resident of a large building with 200 units may have a
    lesser expectation of privacy than a resident of a small building with 2
    apartments.

[46]

In
    this case, the respondent owned a unit in a relatively small building that Detective
    Redmond testified had only 10 units over four floors. The building was small
    enough that Detective Hill had to hide, otherwise his presence as a stranger in
    the building might have been noteworthy. It was small enough that, from the
    stairwell, Detective Hill could overhear conversations taking place in the
    respondents unit and identify specific sounds connected to activities going on
    in the apartment (such as the unrolling of packing tape). And, save for the
    malfunctioning north stairwell door, the building was always locked to
    non-residents.

[47]

Although
    the respondent did not have absolute control over access to the building, it
    was reasonable for him to expect that the buildings security system would
    operate to exclude strangers, including the police, from entering the common
    areas of his building several times without permission or invitation and
    investigating at their leisure. It was reasonable for him to assume that
    although access to the buildings storage area was not regulated, it was not open
    to the general public. And it was reasonable for him to assume that people
    would not be hiding in stairwells to observe the comings and goings and
    overhear the conversations and actions within his unit.

[48]

In
    any event, the fact that a relatively large number of people may have access to
    a buildings common areas need not operate to eliminate a reasonable
    expectation of privacy. It is one thing to contemplate that neighbours and
    their guests, all of whom may be strangers to another resident, might be present
    in the common areas of a building, but another to say that a resident has no
    reasonable expectation of privacy as a result. An expectation of privacy may be
    attenuated in particular circumstances without being eliminated.

[49]

The
    appellant submits what it describes as a strong policy justification for
    finding that there was no reasonable expectation of privacy. Noting that an
    ever-increasing number of Canadians live in multi-unit buildings, the appellant
    contends that it would be perverse to make the common areas of their homes a
    zone of protection for criminal activity which diminishes their safety and
    quality of life.

[50]

I
    think this overstates things considerably. The reasonable expectation of
    privacy does not establish a zone for the protection of criminal activity in
    the common areas of multi-unit buildings, but neither does it permit the police
    to enter common areas of those buildings at any time and for any reason. The
    reasonable expectation of privacy is a concept which protects those interests
    that courts think ought to be protected having regard to the interests at stake
    in particular circumstances:
R. v. Tessling
, 2004 SCC 67, [2004] 3
    S.C.R. 432, at para. 42. Some limits on police activity are necessary if
    privacy is to be protected.

[51]

There
    is nothing perverse about providing a measure of privacy protection to the
    many Canadians who live in multi-unit dwellings. They, no less than those who
    live in detached homes, are entitled to the protection against unreasonable
    search and seizure the
Charter
provides. In any event, it is not an
    all or nothing choice. A balance must be struck between law enforcement
    objectives and privacy in modern urban life. Cases such as
Laurin

and
Thomsen
demonstrate that the police have considerable ability to investigate
    crime in multi-unit buildings. But they do not have
carte blanche
.

[52]

In
    my view, the trial judges conclusion that the respondent had a reasonable
    expectation of privacy in the common areas of his condominium building is
    correct. It follows that Detective Hill conducted a search when he entered the
    respondents building surreptitiously on December 10, 2010, January 20, 2011
    and January 21, 2011.

[53]

Before
    proceeding to the trial judges s. 24(2) analysis, I analyze whether the trial
    judge erred in finding that the three searches conducted by Detective Hill
    violated the respondents right to be secure against unreasonable search and
    seizure under s. 8 of the
Charter
.

[54]

To
    be constitutionally compliant, a search must be authorized by law; the law
    authorizing the search must be reasonable; and the search must be carried out
    in a reasonable manner:
R. v. Stillman
, [1997] 1 S.C.R. 607, at p.
    634.

[55]

The
    three searches by Detective Hill were conducted without a warrant and so are
prima
    facie
unreasonable:
R. v. Caslake
, [1998] 1 S.C.R. 51, at para. 30
.  It is not argued
    that this is a case of exigent circumstances. Nor is this a case in which the
    police were responding to a complaint.

[56]

The
    appellant asserts, but did not establish, that the searches were authorized by
    law because the police had an implied invitation to enter common areas of the
    building to conduct non-intrusive investigative steps. Although it is clear
    that the police, along with members of the public, have an implied licence to
    enter a property and knock on the door, this is for purposes of communicating
    with the resident. In this case, the police did not use their implied licence to
    knock on the respondents door. On the contrary, the police did everything
    possible to conceal their presence in the building.

[57]

In
    my view, the trial judges conclusion that the evidence obtained by the police during
    the three visits to the condominium prior to obtaining a search warrant was
    obtained by trespassing on private property is correct. The evidence of Zoë Gillespie,
    that consent to enter the building would have been granted had the police
    asked, cannot be relied on to provide retrospective license to the police to
    enter the building surreptitiously. Indeed, the action of the police in
    obtaining after-the-fact authorization from the condominium residents to allow
    the police to enter the building in the future suggests that they were aware of
Trespass to Property Act
concerns.

[58]

Even
    assuming that the police entered the building pursuant to an implied licence, the
    appellant would have to establish that the searches were conducted reasonably.
    In my view, it would also fail at this step. Detective Hill did not simply walk
    through the hallways of the building. He took advantage of defects in a
    security system in order to enter the building and conduct surveillance. He hid
    near the respondents unit in an attempt to eavesdrop or witness something. The
    building was so small and the insulation was so poor that he was able to
    overhear conversations and activities in the respondents unit from the
    stairwell.

[59]

In
    my opinion, Detective Hills searches violated the respondents rights under s.
    8 of the
Charter
.

(2)

Did the trial judge err in excluding the evidence pursuant to s. 24(2)
    of the
Charter
?

[60]

Detective
    Redmond acknowledged there was no basis for the judge to issue a search warrant
    to search the respondents unit in the absence of the evidence obtained by
    Detective Hill pursuant to the three searches. Given that the evidence was
    obtained in a manner that infringed the respondents
Charter
rights, the
    threshold question in s. 24(2) is met.

[61]

At the second stage of the s. 24(2) analysis,
Grant
requires the court to consider three things. First, the seriousness of the
Charter
infringement; second, the impact of the breach on the respondents
Charter
rights; and third, societys interest in having the case adjudicated on the
    merits. Ultimately, the question is whether, in all the circumstances,
    admission of the evidence would bring the administration of justice into
    disrepute:
Grant
, at para. 85.

Seriousness of the Breach

[62]

The
    trial judge found that Detectives Hill and Redmond were willfully blind to
    their obligations under the
Trespass to Property Act
. He found that
    they refused to answer questions in cross-examination and described their
    investigatory conduct as egregious and in bad faith. I note that this conclusion
    appears to be at odds with remarks the judge made during sentencing for the
    other offence. In passing sentence for possession of 0.4 grams of cocaine, the
    trial judge said:

I would like to say just one thing to the police officers. I do
    not want the police officer[s] to feel bad because of my decision. Even as a
    judge, I make mistakes. I know the local newspapers said that I said the police
    got it all wrong, well, that was not my intention in sentencing. I have high
    respect for the police officers work in this case.  They tripped up, so, they
    tripped up. No big deal. And next time, they will do better.

[63]

Nevertheless,
    the Supreme Court has made it clear that considerable deference is owed to the
    decisions of trial judges concerning the application of s. 24(2):
R.
    v. Mian
, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77. It is not open to
    this court to substitute its views of police conduct, barring clear and
    determinative error. I do not find any such error, so I accept the trial
    judges findings of police misconduct.

[64]

In
    my view, the police misconduct in this case is exacerbated by Detective
    Redmonds failure to inform the judge who issued the warrant about the
    circumstances in which Detective Hill obtained the evidence in the ITO. If the
    police were confident that they had acted in accordance with the law, one would
    have expected to see details of their investigation in the ITO. There were not
    one, not two, but three surreptitious entries into the respondents condominium
    in order to obtain evidence to support the issuance of a warrant. The judge
    should have been informed of these details. The failure to do so is serious. As
    the trial judge noted, there was no apparent urgency to this matter. And, as I
    have noted, the decision to seek permission to enter the common areas of the
    building after-the-fact suggests that the police were not as confident in their
    authority as the appellant argues.

Impact of the Breach

[65]

The
    trial judge found that there was a serious impact on the respondents
Charter
rights, but did not elaborate. In my view, the breach in this case seriously
    undermines the interests protected by s. 8 of the
Charter
. I accept
    that the reasonable expectation of privacy may be attenuated in the context of
    multi-unit buildings, where common areas including hallways, stairwells, and storage
    rooms are shared by the residents, but as I have said, the reasonable
    expectation of privacy does not disappear. Those who live in multi-unit
    dwellings are no less entitled to the protection of their privacy than those
    who live in single-family homes, albeit that the nature and extent of the
    expectations of privacy that they might reasonably hold may differ.

[66]

In
    this case, the police overheard conversations and activities taking place
    within a unit by hiding in a nearby stairwell. The home is entitled to the
    greatest degree of protection from unreasonable search, and in my view, the
    police conduct in this case had a serious impact on the respondents privacy
    rights.

Societys Interest in Having the Case Adjudicated on
    its Merits

[67]

The
    trial judge considered both the impact of admitting the evidence on the repute
    of the administration of justice and the impact of failing to admit the
    evidence. He concluded that the long-term impact of admitting evidence obtained
    in the search of a dwelling house with an improperly obtained warrant would
    bring the administration of justice into disrepute.

[68]

The
    trial judges s. 24(2) analysis is brief, but it is entitled to deference from
    this court. I see no basis to interfere with his conclusion.

DISPOSITION

[69]

For
    these reasons, I would dismiss the appeal.

Released: July 7, 2015 GH

Grant
    Huscroft J.A.

I
    agree Janet Simmons J.A.

I
    agree David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Woodcock, 2015 ONCA 535

DATE: 20150717

DOCKET:
C53297

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louis Raphael Woodcock

Appellant

James Lockyer and Mindy Caterina, for the appellant

Lucy Cecchetto, for the respondent

Heard: June 25, 2015

On appeal from the convictions entered on April 1, 2010
    by Justice Gladys I. Pardu of the Superior Court of Justice, sitting with a
    jury.

MacPherson J.A.:

[1]

The appellant was charged with second degree murder in the tragic death
    of 15-year-old Jane Creba. Ms. Creba, who was shopping with her sister on
    Boxing Day in 2005, was hit by a stray bullet during a gunfight between two
    groups of young men on a very crowded Yonge Street in Toronto, just north of
    the Eaton Centre.

[2]

Following a jury trial over which Pardu J. (as she then was) presided, the
    appellant was convicted of manslaughter in relation to the death of Ms. Creba
    and four counts of aggravated assault in relation to four other individuals
    wounded by stray bullets. The appellant appeals his convictions.

[3]

Ms. Creba was killed by a .357 Magnum bullet fired northbound by
    Jeremiah Valentine. The Crowns theory of causation was that the appellant, Valentine,
    and others in their groups had decided, prior to any shots being fired, to
    engage in a gunfight on a public street. As a result, but for the appellants
    willingness to engage in a gunfight, Valentine would not have fired the bullet
    that killed Ms. Creba.

[4]

The Crowns theory of causation had already proven successful against one
    of the appellants associates, J.S.R., who was convicted of second degree
    murder in Ms. Crebas death: see
R. v. J.S.R.
, (2008), 237 C.C.C. (3d)
    305 (Ont. C.A.);
R. v. J.S.R.,
2012 ONCA 568, 112 O.R. (3d) 81, leave
    to appeal to S.C.C. refused, [2012] S.C.C.A. No. 456. J.S.R. and the appellant
    were part of a group of friends standing outside a Foot Locker store when
    Valentine opened fire. Almost immediately, J.S.R.  or, less likely, the
    appellant  fired a 9mm automatic handgun southbound.

[5]

The Crowns theory of the appellants role was that he owned and carried
    the 9mm handgun and passed it to J.S.R., possibly after firing shots himself.
    There was strong evidence connecting the appellant to the gun, including DNA
    and the testimony of some of his associates. However, the evidence connecting
    the appellant to the actual shooting of the gun was circumstantial. Many
    eyewitnesses to the brief events on Yonge Street testified, but none of them
    identified the appellant as a shooter or saw him passing a gun to J.S.R.

[6]

The appellant submits that the trial judge erred in three respects: (1) by
    admitting expert evidence about how people carry and conceal guns in public;
    (2) by failing to instruct the jury that, in order to establish causation
    against the appellant, the Crown had to prove the mutual gunfight theory; and
    (3) by declining to leave self-defence with the jury.

(1)

Expert evidence
[1]

[7]

The appellant can be seen in surveillance video from the Eaton Centre
    wearing a jacket that is done up, but with his right or left arm occasionally
    out of the sleeve of the jacket. The trial judge allowed Stephen Horwood, a
    32-year veteran of the Toronto Police Service and a current criminal
    investigator for the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives,
    to testify as an expert on the recognition of the characteristics of armed
    persons. His evidence was that criminals keep firearms hidden but readily
    accessible and that likely areas of concealment are the waist, pants pockets or
    jacket pockets. He stated that a fully loaded 9mm handgun weighs 2 to 2.5
    pounds and that, if such a gun were tucked in the pants waist, it would shift
    as the individual moved, requiring it occasionally to be readjusted.

[8]

The initial ruling that Horwoods testimony was admissible forbade the
    Crown from showing Horwood the Eaton Centre surveillance video and adducing
    from him that the appellant had characteristics consistent with that of an
    armed person. On cross-examination, defence counsel referred to Horwoods
    observations of the appellant in the surveillance video. The Crown then
    successfully applied to play the surveillance video for Horwood. In
    re-examination, Horwood testified that the appellant caught his attention in
    the video as someone who was possibly armed. Yet, Horwood saw no protrusions in
    the appellants waist or pockets that resembled a gun. He admitted that he
    could not tell from the video whether the appellant was armed or not.

[9]

The appellant makes two submissions on this issue.

[10]

First,
    the appellant contends that Horwoods evidence should not have been admitted
    because, even by his own testimony, it was mostly  common sense. It follows
    that the jury did not need the assistance of an expert in order to evaluate the
    evidence.

[11]

I
    do not accept this submission. In my view, a full and fair reading of Horwoods
    testimony leads to the conclusion that his expertise was based on a combination
    of experience, science and common sense.

[12]

Moreover,
    in her ruling,
[2]
the trial judge drew a careful balance in setting the boundaries for Horwoods
    testimony. She permitted Horwood to testify about the physical properties of
    guns and how people carry and conceal guns. At para. 18, she observed,
    correctly in my view:

I am satisfied that this evidence is necessary to give the jury
    the tools to appreciate the evidence. It would not be surprising if most or all
    of the jurors will have never handled a handgun, much less carried an illegal
    firearm. Such an object is not an ordinary household object with which most
    persons can be presumed to be familiar.

[13]

However,
    the trial judge did not permit Horwood to view the video in the presence of the
    jury and offer his opinion about what he saw, on the basis that the potential
    prejudice associated with this evidence could exceed its probative value: at
    para. 2.

[14]

In
    the end, I cannot say that the halfway house result the trial judge reached
    in her comprehensive and well-reasoned ruling is flawed.

[15]

The
    appellants second submission on the expert evidence issue arises because of a
    changed landscape during the trial. Defence counsel vigorously and successfully
    cross-examined Horwood. He established that, after viewing the video, Horwood
    could not tell which of the appellants hands was dominant and could not see
    any protrusion in the appellants body or clothing. The cross-examination
    concluded with this exchange:

Q.      And from viewing that video, the most you could ever
    say is that the person whose arms are in the coat showed some signs of somebody
    who might be armed, correct?

A.      Correct.

Q.      You certainly cannot say, even from your expert
    opinion, that that person is likely armed, can you?

A.      No.

Q.      You couldnt even give this jury, say, a percentage
    chance of the person being armed?

A.      No, sir.

Q.      You couldnt say whether its a 1 percent chance, a 2
    two percent chance, a 20 percent chance? You cant even assist at all in that
    respect, can you?

A.      In saying definitively whether or not that person had a
    gun, no, I couldnt.

[16]

Following
    this cross-examination, Crown counsel requested that, in his re-examination, he
    be permitted to play the video in court and ask Horwood questions about it. The
    trial judge allowed this; however, she first permitted defence counsel to
    re-open his cross-examination to play the video in court and ask Horwood
    questions about it.

[17]

The
    appellant contends that the trial judge erred by permitting the video to be
    shown during re-examination. He says that this, in effect, reversed the second
    component of the trial judges initial ruling.

[18]

I
    am not persuaded by this submission. In Horwoods examination-in-chief, the Crown
    did not ask any questions about the video. Indeed, the Crown did not even ask
    Horwood if he had viewed the video. Then defence counsel conducted a
    cross-examination, which the appellants counsel described during the appeal
    hearing as very effective. The cross-examination included many questions
    about Horwoods viewing and interpretation of the video. In light of these two
    trial episodes, it became reasonable, in my view, for the trial judge to permit
    both counsel to play the video in court and ask Horwood questions about it.
    Both counsel did so, first defence counsel in a re-opened cross-examination and
    then Crown counsel in re-examination.

[19]

In
    summary, I see no error in the trial judges initial admissibility ruling or in
    her treatment of the cross-examination/re-examination issue. Both were
    appropriately balanced. I would not give effect to this first ground of appeal.

(2)

Causation

[20]

In
    the first
J.S.R.
appeal in this court, in 2008, the court found that
    the mutual gunfight theory of causation required the northbound shooter and J.S.R.
    to have decided to engage in a gun battle on a public street before the shots
    were fired. It was not enough for J.S.R to be merely returning the fire
    initiated by the northbound shooter: at para. 26.

[21]

On
    this appeal, the appellant does not contest that the Crown was entitled to
    anchor its causation argument in the mutual decision by the two groups to
    engage in a gunfight on a public street. However, the appellant submits that
    the trial judge gave an inadequate charge on this aspect of the case. The
    appellant asserts that the trial judge did not explain that the Crown had to
    prove this mutual decision theory with respect to the appellant in order to
    find that his conduct was a significant contributing cause to Ms. Crebas death.
    This, the appellant says, amounted to non-direction on a key element of
    causation.

[22]

I
    do not accept this submission. The relevant parts of the trial judges
    instruction on this issue are:

For an act to cause someones death, it must be at least a
    contributing cause, one that is beyond something that is trifling or minor in
    nature
.

It is likely that the bullet that injured and killed Jane Creba
    came from a gun fired by Jeremiah Valentine, who has pleaded guilty to her
    murder.
In dealing with this question, you must determine whether the
    conduct of the accused also caused her death, in that it was a contributing
    cause, beyond something that is trifling or minor in nature
.

If the conduct of the accused played no role in the death
    of Jane Creba, or if you have a reasonable doubt as to whether it contributed
    in a significant way to her death, then you must acquit the accused
.

If the Crown satisfies you beyond a reasonable doubt that
    the actions of the accused were a contributing cause of the death of Jane
    Creba, as I have described, then you will go on to the last question
.

The next question is whether the Crown has proven that the
    actions of the accused were a significant contributing cause to the death of
    Jane Creba.

The Crown submits that this was, in effect, a mutual shootout,
    and that the issue of who fired the first shot is of no moment and only
    reflects who reacted the fastest. The Crown submits that Jane Creba died as a
    result of a decision by both the accused and Jeremiah Valentine to participate
    in a shootout on Yonge Street, and that the conduct of the accused in firing,
    or passing a gun so [J.S.R.] could fire it, was a contributing cause of the
    death. The Crown submits that this position is supported by the following
    evidence:

(a) Given the timing of the gunshots, the accused must have
    been carrying loaded firearms. This suggests they were ready for a gunfight.

(b) From the words expressed by Valentine as he came out of
    the Foot Locker store, one can infer that there was a conflict of some sort
    between the accused and Valentine, and that the accused accepted his challenge
    to engage in a gunfight.

(c) From the number of shots fired and the rapidity with
    which the shots were fired, one can infer that the accused were willing to
    participate in a gunfight.

The defence submit that the bullet fired by Valentine killed
    Jane Creba, and that she could have been killed by the first bullet fired in
    the incident. The defence submits that the conduct of the accused had no effect
    on Jane Creba and did not cause her death. Neither the 9 millimetre Ruger, nor
    the .25 caliber gun injured Jane Creba. They submit that there is no evidence
    of any agreement to participate in a mutual shootout. The accused were chatting
    with friends as they stood outside the Foot Locker, saying goodbye to the
    girls, and there is no basis to conclude that they were part of any agreement
    to engage in a gunfight.

It will be up to you to determine, based on all of the
    evidence you have heard and all of the exhibits and admissions, whether the
    Crown has proven a sufficient causal relationship between the actions of the
    accused and the death of Jane Creba, according to the legal requirements for
    causation as I have explained them to you
. [Emphasis added.]

[23]

In
    my view, these passages are an appropriate combination of instruction on the
    applicable legal principles (the emphasized passages) and setting out, in a
    clear and succinct fashion, the positions of the parties on those issues. They
    are not, as the appellant asserts, devoid of content on the former and entirely
    concerned with the latter. It is true that the trial judge did not convert her
    summary of the opposing positions of the parties into a precise question for
    the jury to answer about a mutual decision to engage in a gunfight. However, in
    my view, the combination of her simple and clear summary of the parties
    positions on the mutual shootout issue and the legal instruction she gave
    would have focussed the jurys attention appropriately to answer the question
    posed in the final paragraph of the above passage.

[24]

In
    that vein, it is important to note that experienced defence counsel did not
    object to this component of the jury charge. In my view, this is not surprising
    given that the appellants core position, advanced in his closing address, was
    that he was not involved at all in the gunfight: he did not have a gun on
    Boxing Day, he did not fire a gun and he did not do anything to assist anyone
    else in firing a gun.

(3)

Self-defence

[25]

At
    trial, the appellants counsel informed the trial judge that he would not be
    advancing self-defence in his closing address; however, he requested that the
    trial judge include an instruction on self-defence in her jury charge. She
    refused. In a brief initial ruling, the trial judge said:

I will not be putting self-defence or provocation to the jury
    on the ground that there is no air of reality to those defences based on the
    evidence before me because of the absence of evidence related to the subjective
    elements.

Several days later, the trial judge provided additional
    reasons explaining this ruling.

[26]

The
    appellant submits that the trial judge erred in making this ruling. He says
    that there was evidence that Valentine threatened the appellants group and
    then fired the first shots. If the jury accepted this evidence and found that
    there was no prior agreement by the appellant to engage in a gunfight, then it
    would have been a legitimate act of self-defence for the appellant to fire back
    or to aid J.S.R. in doing so. The appellant would then be guilty of unlawful
    possession of a handgun, but not of manslaughter.

[27]

I
    do not accept this submission. In
R. v. Gauthier
, 2013 SCC 32, [2013]
    2 S.C.R. 403, at para. 34, Wagner J., after reviewing the leading authorities,
    said:

In conclusion, there is no cardinal rule against putting to a
    jury an alternative defence that is at first glance incompatible with the
    primary defence. The issue is not whether such a defence is compatible or
    incompatible with the primary defence, but whether it meets the air of reality
    test. In any case, the trial judge must determine whether the alternative
    defence has a sufficient factual foundation, that is, whether a properly
    instructed jury acting reasonably could accept the defence if it believed the
    evidence to be true.

[28]

In
    my view, the trial judge engaged in precisely this analysis. The appellant
    testified, so she reviewed his evidence: he did not possess a gun on Boxing
    Day; he did not fire a gun; for an instant he saw Valentine point a gun only at
    J.S.R. and not at him; he then saw J.S.R. pull out a gun; he started to run
    away; and he then heard the gunfire. This review led her to conclude that there
    was nothing to ground the subjective elements of the components of the then s.
    34(2) of the
Criminal Code
, R.S.C.
    1985, c. C-46 concerning whether the appellant believed he was being assaulted
    and could not save himself from being killed except by firing a gun
.
    The trial judge said that, for the jury to find these subjective elements
    required under s. 34(2), they would have to disbelieve the appellants evidence
    that he did not have a gun, disbelieve his evidence about his own state of mind
    and draw inferences that he had a different state of mind. Accordingly, she
    concluded that there was no air of reality to the proposed defence.

[29]

I
    agree with the trial judges analysis. She was aware of the applicable test,
    reviewed the relevant evidence, and reached a sound conclusion. In
R. v.
    Pappas
, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 26, McLachlin C.J.
    said:

The fact remains that the trial judge exercises a gatekeeper
    role in keeping from the jury defences that have no evidential foundation.
    Defences supported only by bald assertions that cannot reasonably be borne out
    by the evidence, viewed in totality, should be kept from the jury.

[30]

That
    is what the trial judge did in this case. I can see no error in how the trial
    judge exercised her gatekeeper function with respect to self-defence.

Disposition

[31]

I
    would dismiss the appeal.

Released: July 17, 2015 (H.S.L.)

J.C.
    MacPherson J.A.

I agree.
    Janet Simmons J.A.

I agree.
H.S. LaForme J.A.

[1]
At the appeal hearing, the panel did not call on the respondent to address this
    issue.

[2]
The trial judges reasons are reported at 2010 ONSC 671.


COURT OF APPEAL FOR ONTARIO

CITATION: Rego v.
    Santos, 2015 ONCA 540

DATE: 20150721

DOCKET: C58282

Hoy A.C.J.O., Epstein and Huscroft JJ.A.

BETWEEN

Victor Rego

Applicant

Respondent in Appeal

and

Claudia Santos

Respondent

Appellant

Milena Celap, for the appellant Claudia Santos

Laughlin J. Campbell and Dilmini Walaliyadde, for the
    respondent Victor Rego

Heard:  July 9, 2015

On appeal from the order of Justice John R. Sproat of the
    Superior Court of Justice, dated November 20, 2013.

ENDORSEMENT

[1]

The appellant mother and respondent father are the parents of a five year-old
    daughter. They have been involved in numerous custody and access proceedings
    since the first order was made granting access to the respondent on December
    15, 2010.

[2]

The respondent brought a contempt motion on October 26, 2012, alleging
    the appellant failed to comply with the terms of a temporary access order dated
    August 7, 2012.  The motion judge found the appellant in contempt and ordered
    that she pay a fine of $5,000 to the respondent along with costs of $10,000.
    These amounts were to be set off against the respondents child support
    arrears, with any balance to be paid by the appellant by August 31, 2013, after
    which the balance would be set off against the respondents ongoing child
    support obligation at the rate of $200 per month commencing September 1, 2013.

[3]

An appeal to the Superior Court of Justice was dismissed by Sproat J. on
    November 20, 2013. This is the second appeal of the finding of contempt.

[4]

The appellant appeals the decision of Sproat J. on the basis that the
    motion judge erred by:

(1)     finding her in
    contempt of the access order;

(2)

concluding that contempt was
    an appropriate remedy in the                       circumstances of this case;

(3)

ordering her to pay a fine of
    $5,000 directly to the                      respondent;

(4)

setting-off the costs payable
    to the respondent against past and                    future child support
    obligations;

(5)

failing to allow her to purge
    the contempt.

[5]

We reject these arguments.

[6]

As Sproat J. noted, the motion judge correctly set out the three-part
    test that must be met in order for a finding of contempt to be made (
G.(N.)
    c. Services aux enfants & adultes de Prescott-Russell
(2006), 82 O.R.
    (3d) 686 (C.A.) at para. 7):

(i)
the
    order that was breached must state clearly and equivocally what should and
    should not be done;

(ii)
the
    party who disobeys the order must do so deliberately and willfully; and

(iii)
the
    evidence must show contempt beyond a reasonable doubt.

[7]

We agree with Sproat J. that the motion judge applied the test properly.

[8]

The access order clearly and unequivocally sets out the dates and times
    of the access visits. The order provides sufficient clarity for the appellant
    to understand the allegations giving rise to the contempt motion.

[9]

The motion judge considered the evidence as a whole, including the fact
    that only two of thirteen scheduled unsupervised visits had occurred, and did
    not accept the appellant's explanations for the cancelled visits. We note that
    the parties were represented by counsel and chose to proceed without
    cross-examination on the affidavits. The motion judge found it inconceivable
    that the appellant could not facilitate the access order and inferred
    deliberate and wilful disobedience beyond a reasonable doubt.

[10]

As
    Sproat J. concluded, the evidence justified the motion judges finding of
    contempt beyond a reasonable doubt.

[11]

The
    appellant argued in her factum that the motion judge erred in ordering that her
    fine be paid directly to the respondent but abandoned this position at the oral
    hearing. This was appropriate, as Rule 31(5) of the
Family Law Rules
,
    O.Reg. 439/07 clearly provides that a court may order payment of a penalty to a
    party
.
As to the quantum of the
    penalty, we see no error in the appeal judges conclusion that the penalty
    imposed by the motion judge was fairly modest in all the circumstances.
[1]

[12]

The
    motion judge explained her decision to set-off costs payable to the respondent
    against past and future child support obligations as follows:

[The appellant] delayed paying the retainer for the s. 30
    assessment as ordered, thus delaying the investigation into what custody/access
    arrangement would be in this childs best interests, and she has been found in
    contempt of an access order causing the child to be deprived of most of the
    unsupervised access ordered from July to October 2012. If her costs obligation
    is not treated seriously it will send the message that she can disregard the
    court orders with no repercussions.

While it is true that the child will be affected by the set off
    it is also true that the child will be affected if [the appellant] continues to
    interfere with the childs access to [the respondent]. Furthermore the set off
    can be structured to ensure the child does not suffer unduly adverse economic
    consequences, given that [the appellants] current income is about $54,000 and [the
    respondent] will be paying child support of $781 per month plus contributing
    proportionately to the childs daycare expenses.

[13]

The
    decision to set-off costs payable to the respondent against the respondents
    support obligations is unusual. As the Supreme Court noted in
D.B.S. v.
    S.R.G.
[2006] 2 SCR 231 at para. 60, child support is the right of the
    child. However, the motion judge clearly made the order with the child's best
    interests in mind. She considered the potential financial effect on the child and
    determined, not unreasonably, that an incentive for the mother to facilitate
    access by the father was of greater overall benefit to the child. Moreover, the
    motion judge was sensitive to the concern that the child should not suffer
    undue economic consequences and structured the set-off accordingly. Sproat J.
    did not address the matter, but we see no error in the motion judge's decision
    to allow the set-off in these circumstances.

[14]

Finally,
    we agree with Sproat J. that there was no error in the motion judges decision
    not to bifurcate the liability and penalty phases of the contempt motion in
    order to afford the appellant an opportunity to purge her contempt. Although
    there is good reason to bifurcate contempt proceedings (
Boyd v. Carleton
    Condominium Corporation
145, 214 ONCA 574), given the appellants pattern
    of non-compliance and the consequences to the respondent and their daughter, it
    was open to the motion judge to impose the penalty immediately.

[15]

The
    appeal is dismissed.

[16]

The
    respondent is entitled to his costs of the appeal.  In our view $7,000,
    inclusive of taxes and disbursements, is appropriate in the circumstances of
    this case.

Alexandra
    Hoy A.C.J.O.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.

[1]
This is the second time the respondent has brought contempt proceedings. The
    record includes an endorsement by Maresca J. indicating that the appellant was
    found in contempt of prior access orders, but no penalty was imposed because
    the appellant complied with the order. The record did not include the contempt
    order, however, and there is some confusion as to the nature of the prior
    proceeding. Nothing in this appeal turns on the matter.


COURT OF APPEAL FOR ONTARIO

CITATION: Richter LLP v. Big Truck TV Productions Inc., 2015
    ONCA 567

DATE: 20150731

DOCKET: C59686

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Richter LLP

Creditor (Respondent)

and

Big Truck TV Productions Inc.

Debtor

and

Inch Hammond Professional Corporation

Garnishee (Appellant)

Brian D. Duxbury and Andrew D. Pelletier, for the
    appellant

Jonathan Charland, for the respondent

Heard: May 5, 2015

On appeal from the judgment of Justice Robert F. Goldstein
    of the Superior Court of Justice, dated November 5, 2014, with reasons reported
    at 2014 ONSC 6379.

Feldman J.A.:

Introduction

[1]

The appellant Inch Hammond is a law firm that was owed money by its
    client, Big Truck TV Productions Inc. Big Truck had a tax refund coming from
    the Canada Revenue Agency (CRA). Big Truck executed an Irrevocable Direction
    to Inch Hammond in respect of the anticipated tax refund, directing it to
    disburse the refund amount to pay three creditors in full, including itself for
    legal fees, with the balance to be paid to Big Truck. The respondent Richter,
    the third of these designated creditors, obtained default judgment against Big
    Truck and served a Notice of Garnishment on Inch Hammond in respect of the
    anticipated tax refund. Its intent was to obtain payment of its judgment debt
    from that refund.

[2]

Inch Hammond disbursed the refund from the CRA to the listed creditors
    in priority sequence in accordance with the Irrevocable Direction rather than
    seek a garnishment hearing. As the funds were insufficient to pay all three
    creditors, little was left over to pay Richter after the first two listed
    creditors were paid in full.

[3]

The matter reached the court in a garnishment hearing initiated by
    Richter under rule 60.08(16) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. The issue before the court was whether Inch Hammond was
    permitted to pay itself for its legal fees from the funds from the CRA in the
    face of the Notice of Garnishment.

Facts

[4]

As a digital media company, Big Truck was eligible for a tax credit
    under the Ontario Interactive Digital Media Tax Credit Program, governed by ss.
    93-93.2 of the
Taxation Act, 2007
, S.O. 2007, c. 11, Sch. A, and s.
    43.11 of the
Corporations Tax Act
, R.S.O. 1990, c. C.40. CTAP Inc.
    prepared the tax credit application for Big Truck for 2010, but when Big Truck
    was unable to pay CTAPs fees, CTAP sued. Inch Hammond acted for Big Truck and
    negotiated a settlement of the litigation, but neither the settlement amount
    nor Inch Hammonds legal fees were paid.

[5]

R&D Funding Management Inc. prepared Big Trucks 2011 tax refund
    application. In anticipation of Big Truck receiving a tax refund cheque in the
    amount of $265,000, a new settlement agreement with Big Truck was negotiated
    with CTAP, whereby the tax refund cheque would be directed to be paid to Inch
    Hammond to pay the three creditors  CTAP, Inch Hammond and R&D  with the
    balance to be paid to Big Truck. The anticipated tax refund was believed to be
    sufficient to pay all three creditors with some left over for Big Truck.

[6]

Inch Hammond prepared an Irrevocable Direction to reflect those terms.
    Big Truck executed the Irrevocable Direction after making an amendment that
    replaced the third creditor, R&D Funding, with Richter. In his
    affidavit, Mr. Hammond deposed that when he later saw Richters statement of
    claim, he inferred that at some point R&Ds contract with Big Truck had
    been assigned to Richter.

[7]

The following is the entire Irrevocable Direction as executed:

IRREVOCABLE
    DIRECTION

TO:    INCH HAMMOND
    PROFESSIONAL CORPORATION

Re:
Big
    Truck TV Productions Inc. et al ats. CTAP Inc.

Court
    File No: CV-11-439081 (the Action)

Payment
    of Settlement Funds

IN CONSIDERATION
of CTAP INC. (the Plaintiff) forbearing to obtain an issued and entered
    judgment in the Action or from taking any other enforcement steps against the
    Undersigned and for other good and valuable consideration:

THE
    UNDERSIGNED HEREBY IRREVOCABLY DIRECTORS [
SIC
] ITS LAWYERS, INCH HAMMOND
    PROFESSIONAL CORPORATION
, upon receipt of funds from the Canada
    Revenue Agency in accordance with the Undersigneds irrevocable direction dated
    (date), to pay out said funds as follows:

1.   Payment of all amounts owing to CTAP Inc. to Jack Copelovici,
    in trust.

2.   Payment to Inch Hammond Professional Corporation of all amounts
    owing, including fees and disbursements.

3.   Payment
    to Richter of all amounts owing.

4.   Balance of funds to be paid to Big Truck TV Productions Inc. or
    as otherwise directed by the Undersigned.

and doing this shall be its good
    and sufficient authority.

DATED
    this 13
th
day of April, 2013.

BIG TRUCK TV
    PRODUCTIONS INC.

Per: Michael
    Carpentier

Title: CEO

I HAVE AUTHORITY TO BIND THE CORPORATION

[8]

Big Truck also sent an Irrevocable Direction to the CRA, which was
    referred to in the above Irrevocable Direction, directing the CRA to make the
    refund cheque payable to Inch Hammond in Trust.

[9]

In July 2013, Richter obtained default judgment against Big Truck, and
    in October, issued a Notice of Garnishment to Inch Hammond in respect of the
    anticipated refund cheque from the CRA. It was only at that point that Inch
    Hammond reviewed the signed Irrevocable Direction it had received in April and
    found that Richter was named as the #3 payee.

[10]

Inch
    Hammond responded in November to the Notice of Garnishment with a Garnishees
    Statement, and corresponded with counsel for Richter. In the Garnishees
    Statement, Inch Hammond asserted that it did not owe a debt to Big Truck, but
    rather it was a trustee and a creditor of Big Truck. It also asserted that
    because Inch Hammond had been directed to pay other creditors before paying
    Richter, Inch Hammond required clarification and possibly a court order to
    determine whether it was required to pay Richter pursuant to the Notice of
    Garnishment.

[11]

The
    refund cheque was not issued by the CRA until December. While it was sent to
    Inch Hammond as directed, contrary to Big Trucks direction it was made out to
    Big Truck and not to Inch Hammond in Trust. Also, it was not for the
    anticipated amount of $265,000 but instead only for $150,074.70, an amount that
    was not sufficient to pay all three creditors in full.

[12]

Big
    Truck endorsed the cheque to Inch Hammond in February 2014. At that point, Inch
    Hammond paid CTAP in full in the amount of $52,716.08, it paid itself in full
    including interest in the amount of $94,824.88, and because it had received a
    Notice of Garnishment, it paid the balance ($2,533.74 less $10) not directly to
    Richter but to the Sheriff.

[13]

Richter
    then initiated a garnishment hearing motion, seeking payment from Inch Hammond
    of the amount it was owed as set out in the Notice of Garnishment. The motion
    judge found that the Notice of Garnishment put Inch Hammond on notice that
    there was a dispute about the funds, and that a court would have to decide the
    rights and liabilities of each party. He referred to the decision of this
    court in
International Union of Painters and Allied Trades, Local 200 v.
    S&S Glass and Aluminum (1993) Ltd.
(2004),
185
    O.A.C. 38
(C.A.), at para. 23, for the proposition that garnishment
    proceedings put the garnishee on notice that debts owing to the debtor are to
    be paid to the creditor. He found that Inch Hammond should have followed the
    garnishment procedure or paid the money into court, but should not have used
    self-help and should not have paid itself.

[14]

The
    motion judge decided the issue on that legal basis but also went on to address
    and reject other issues raised by Inch Hammond as defences, including legal and
    equitable set-off, the effect of registration under the
Personal Property
    Security Act
, R.S.O. 1990, c. P.10 (
PPSA
), and whether there
    was an absolute assignment. He found that Inch Hammond had not come to the
    court with clean hands. He ordered Inch Hammond to pay $89,608.19 to the
    Sheriff, being the amount owing as set out in the Notice of Garnishment, plus
    costs to Richter.

Issue on Appeal

[15]

Although
    all the issues addressed by the motion judge were argued on the appeal, it is
    only necessary to decide one issue to resolve the appeal: whether Inch Hammond
    was obliged to treat the refund cheque from the CRA to Big Truck as a
    garnishable debt it owed to Big Truck.

Analysis

(1)

Did Inch Hammond owe a garnishable debt to Big Truck?

[16]

The
    fundamental premise of the garnishment process is that a creditor who obtains
    an order for a debtor to pay money may enforce that order by garnishing debts
    payable by other persons to the debtor. That premise is articulated in rule
    60.08(1) which provides:

A creditor under an order for the payment or recovery of money
    may enforce it by garnishment of debts payable to the debtor by other persons.

[17]

In
    this case, the process was available to Richter as a creditor with a default
    judgment against the debtor, Big Truck, to use against Inch Hammond, if Inch
    Hammond was an other person with a debt payable to Big Truck.

[18]

Before
    the motion judge, Inch Hammond argued that it was not a debtor of Big Truck,
    but rather, it was a creditor. While acknowledging that fact, the motion judge
    focused on the status of the cheque from the CRA payable to Big Truck. He found
    that Inch Hammond was holding that cheque on behalf of Big Truck, and that it
    owed Big Truck a fiduciary duty to carry out its direction regarding the
    cheque.

[19]

I
    agree with the motion judge that Inch Hammond obviously did not owe money to
    Big Truck. However, with respect to the motion judge, I do not agree that
    Richter could nevertheless garnish monies to be paid pursuant to a direction
    to Inch Hammond for Big Trucks benefit. Rule 60.08(11) provides that [t]he
    garnishee is liable to pay to the sheriff any
debt of the garnishee to the
    debtor
, up to the amount shown in the Notice of Garnishment (emphasis
    added). If the garnishee owes no debt to the debtor, then this rule is
    inapplicable.

[20]

Since
    the CRA tax refund cheque was not a debt owed by Inch Hammond to Big Truck, the
    Notice of Garnishment had no effect in respect of that cheque.

[21]

The
    tax refund represented monies owed by the CRA to Big Truck, which Big Truck
    directed to be paid first to its legal counsel in trust and then to three of
    its creditors for the amounts owed to them (except to the extent of any
    available excess) in accordance with the Irrevocable Directions to the CRA and
    to Inch Hammond.

[22]

Had
    there been any balance available to pay to Big Truck, it may be that the amount
    of the balance that was directed to be paid to Big Truck would have represented
    a garnishable debt in the same way that upon termination of a legal retainer,
    the balance of trust funds owing to a client may be subject to garnishment:
Toronto-Dominion
    Bank v. Cooper, Sandler, West & Skurka
(1998), 37 O.R. (3d) 729 (Div.
    Ct.)(leave to appeal dismissed May 21, 1998). However, in the absence of any
    balance, Inch Hammond owed no debt to Big Truck.

[23]

After
    Big Truck executed the Irrevocable Direction, the only duty Inch Hammond owed
    to Big Truck was to carry out its terms. Once the amount of the cheque was
    known, it was clear that no balance of funds would remain and therefore no debt
    to Big Truck would arise.

Conclusion

[24]

Richters
    position on the appeal is solely that by serving a Notice of Garnishment it
    obtained priority to the extent of the amount claimed in the Notice. The motion
    judge accepted that Inch Hammond acted wrongfully by carrying out the terms of
    the Irrevocable Direction once it received the Notice of Garnishment and was
    therefore aware of a claim by Richter in priority to its own claim for payment
    by its client. However, because Inch Hammond owed no debt to Big Truck and
    there was no debt to garnish, Inch Hammond made no error by failing to treat
    the cheque from the CRA as garnishable. The rights of the parties in the
    garnishment hearing depended on whether there was a garnishable debt owed by
    Inch Hammond to Big Truck. In the absence of such a debt, Richter had no claim
    under rule 60.08 to the funds that had been disbursed by Inch Hammond.

[25]

I
    would allow the appeal and set aside the order made by the motion judge. I
    would specifically note that I am satisfied that Inch Hammond did not act in an
    improper manner or with unclean hands in all the circumstances.

[26]

I
    would allow the appeal with costs fixed in the agreed amount of $10,000
    inclusive of disbursements and HST.

Released: KF July 31, 2015

K. Feldman J.A.

I agree. K. van
    Rensburg J.A.

I agree. Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    St. Lewis v. Rancourt, 2015 ONCA 513

DATE: 20150708

DOCKET: C59074

Hoy A.C.J.O., Sharpe and Benotto JJ.A.

BETWEEN

Joanne St. Lewis

Plaintiff (Respondent)

and

Denis Rancourt

Defendant (Appellant)

Denis Rancourt, acting in person

Richard G. Dearden and Anastasia Semenova, for the
    respondent

Heard: June 26, 2015

On appeal from the orders of Justice Michel Z.
    Charbonneau of the Superior Court of Justice, sitting with a jury, dated June
    5, 2014, and June 6, 2014, and from the costs order, dated August 21, 2014.

ENDORSEMENT

[1]

The appellant was a tenured professor at the University of Ottawa until
    2009 when he was dismissed.  He authored a personal blog that  by his own
    admission - was purposefully critical of the university. At issue are two of
    his blog posts from 2011 which referred to the respondent, another professor at
    the university, as the house negro of Allan Rock, the president of the university.

[2]

The respondent sued for defamation.

[3]

On the second morning of trial, the appellant arrived at court and read
    a prepared statement to the trial judge indicating that he would not
    participate further. He left the trial and only returned to hear the jury
    verdict on June 5, 2014.  In the result, he did not call evidence in his
    defence.

[4]

The jury found that numerous statements in the impugned blog posts were
    defamatory and that there was actual malice on the part of the appellant. The
    jury awarded general damages of $100,000 and aggravated damages of $250,000.
    The trial judge endorsed the verdict and ordered substantial indemnity costs of
    $444,895, all inclusive, against the appellant. The trial judge then granted a
    permanent injunction requiring the appellant to remove the offending material
    from the internet and to refrain from further defamation of the respondent.

[5]

The appellant submits that a new trial should be ordered. He raises several
    grounds of appeal. He submits that the trial judge erred in the following ways:
    by not instructing the jury with respect to fair comment; by not considering
    that the respondents claim was statute barred; by not instructing the jury to
    watch a video of Malcom X speaking, which was embedded in his first impugned
    blog post; and by granting the injunction and costs. He also argues that the
    finding that he defamed the respondent violates his right to freedom of
    expression. Lastly, the appellant alleges a reasonable apprehension of bias on
    the part of the trial judge.

[6]

We address these arguments in turn.

[7]

The defence of fair comment requires that the defendant establish that
    the impugned statement was (1) a comment and not a statement of fact; (2) based
    upon true facts; (3) on a matter of public interest; (4) able to satisfy an
    objective test of fairness; and (5) made without malice:
Simpson v. Mair
,
    2008 SCC 40, [2008] 2 S.C.R. 420, at para. 1.  The defence of fair comment was
    not available to the appellant. He called no evidence, and without evidence, he
    could not establish the five criteria just set out. Although the appellant
    mentioned fair comment in his opening statement to the jury, the statement was
    not evidence and could not establish a defence. The trial judge did not err in
    this regard. Moreover, and in any event, the jurys finding of malice defeated
    the defence.

[8]

The appellant submits that, pursuant to s. 5(1) of the
Libel and
    Slander Act
, R.S.O. 1990, c. L.12 (Act), the respondent was required to
    serve a notice of libel within six weeks of acquiring knowledge of the impugned
    blog posts. The first notice of libel was served more than three months after
    the first impugned blog post was published. The limitation period, however,
    applies only to newspapers printed and published in Ontario and to broadcasts
    from a station in Ontario: Act, s. 7.  The burden of proof was with the
    appellant to establish that the blog posts fell within this definition under
    the Act. He called no evidence to establish that they did. The respondent was
    prepared to call expert evidence to address this issue, but, as the appellant
    did not lead any evidence, the respondent did not do so.

[9]

Linked to the first blog post was a video in which Malcolm X defines the
    term house negro. The appellant submits that the jury should have been
    instructed to watch the video.  The full transcript of the video was, in fact,
    put before the jury by one of the respondents expert witnesses. The
    respondents expert testified about the video but was not cross-examined
    because the appellant was not present. There was no request from the appellant
    that the jury be told to watch the video. The trial judge did not err in this
    regard.

[10]

In
    light of the jurys finding of liability grounded in malice, we see no reason
    to interfere with the trial judges exercise of discretion in connection with
    costs.

[11]

On
    June 6, 2014, the day after the jury verdict, the trial judge heard and decided
    a motion for a permanent injunction. The respondents counsel presented him
    with a draft order which was the subject of submissions. The trial judge
    permitted the appellant to participate. The draft order required the appellant
    to remove the defamatory articles from the internet and permanently restrained
    him from publishing any of the statements the jury found to be defamatory. The
    draft also included a provision permanently restraining the appellant from
    publishing any defamatory statement about the [respondent].

[12]

In
    granting the injunction, the trial judge said:

The evidence heard at trial clearly establishes that the
    [appellant] has carried out a persistent attack on the [respondent], and that
    the theme of his attack is that [she] lacks integrity and independence as a
    professional.

[13]

The
    trial judge correctly noted the situations in which permanent injunctions have
    been consistently ordered after defamation proceedings, as identified in
Astley
    v. Verdun
, 2011 ONSC 3651, 106 O.R. (3d) 792.  Chapnik J. wrote in
Astley
,
    at para. 21:

Permanent injunctions have consistently been ordered after
    findings of defamation where either: (1) there is a likelihood that the
    defendant will continue to publish defamatory statements despite the finding
    that he is liable to the plaintiff for defamation; or (2) there is a real
    possibility that the plaintiff will not receive any compensation, given that
    enforcement against the defendant of any damage award may not be possible...
    [Citations omitted.]

[14]

The
    trial judge concluded that, on either branch of
Astley
, the respondent
    had demonstrated the need for a permanent injunction. With respect to the first
    branch, the trial judge found that the appellant had demonstrated a total
    disregard for the judicial process and that his conduct, before and during the
    trial, made it more probable than not that he will continue to defame the
    respondent. With respect to the second branch, the trial judge found that there
    was no reasonable prospect that the appellant would be able to pay the damage
    and cost awards.

[15]

The
    injunction ordered by the trial judge preventing any defamatory statement -
    was broad. In his reasons, he said this:

The draft order submitted by the [respondent] is reasonable. It
    only forbids the [appellant] from publishing defamatory statements, not about
    stopping to blog whatsoever. It is not, as claimed by the [appellant], a
    silencing of him.  He can easily avoid breaching the injunction by simply
    refraining from publishing defamatory statements.

[16]

A
    broad ongoing injunction is an extraordinary remedy which should be used
    sparingly. However, where there has been a campaign of defamation and a
    likelihood that it will continue, there is authority for such an order. See:
Barrick
    Gold Corp. v. Lopehandia
(2004), 71 O.R. (3d) 416 (C.A.), at para. 78;
Astley
,
     at para. 35;
Ottawa-Carleton District School Board v. Scharf
, [2007]
    O.J. No. 3030 (S.C.), at para. 30(b), affd 2008 ONCA 154, leave to appeal
    refused, [2008] S.C.C.A. No. 285. Under these circumstances, we would not
    interfere with the terms of the trial judges order.

[17]

We
    do not accept the appellants submission that his constitutional right to
    freedom of expression affords him the right to defame. First, the appellant has
    led no evidence or argument that the respondents legal proceeding is a
    government action that would engage the
Charter
. Second, while the
    Supreme Court has modified the common law of defamation (see
Hill v. Church
    of Scientology
, [1995] 2 S.C.R. 1130;
Grant v. Torstar,
[2009] 3
    S.C.R. 640)) the appellant has failed to bring himself within any
Charter
-based
    defence. In the first sentence of
Mair
, Binnie J. wrote for the
    majority of the Supreme Court, the defence of fair comment .... helps hold the
    balance in the law of defamation between two fundamental values, namely the
    respect for individuals and protection of their reputation from unjustified
    harm on the one hand, and on the other hand, the freedom of expression and
    debate that is said to be the very life blood of our freedom and free
    institutions. Rather than attempting to prove that his right to freedom of
    expression should, at law, overcome the respondents right to protect her
    reputation, the appellant refused to participate in the trial.

[18]

There
    is a heavy burden on a party who seeks to rebut the presumption of judicial
    impartiality:
Yukon Francophone School Board, Education Area #23 v. Yukon
    (Attorney General)
, 2015 SCC 25, at paras. 20-26. There is nothing on the
    record that would satisfy that burden. A reasonable, informed person would not
    think it more likely than not that the trial judge, whether consciously or
    unconsciously, would not decide fairly.

[19]

For
    these reasons, the appeal is dismissed with costs payable to the respondent in
    the amount of $30,000.00 inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

Robert J. Sharpe J.A.

M.L. Benotto J.A.