CITATION:
Ontario (Ministry of Labour) v. Sheehan's Truck
          Centre Inc.,
2011 ONCA 645

DATE: 20111017

DOCKET: C53487

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

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

Respondent

and

Sheehans Truck Centre Inc.

Appellant

Daniel J. Michaluk, for the appellant

Raj Dhir and Sarah Loosemore, for the respondent

Heard:
June 30, 2011

On appeal from the conviction entered by Justice
          Alan D. Cooper of the Ontario Court of Justice, sitting as a summary
          conviction appeal court judge, dated December 22, 2010, reasons reported at
          2010 ONCJ 713, setting aside an acquittal entered by Justice of the Peace Paul
          Macphail, dated August 18, 2009.

Cronk J.A.:

[1]

The main issue on this appeal concerns the interpretation of s. 56 of
    an industrial workplace regulation known as
Industrial Establishments
,
    R.R.O. 1990, Reg. 851 (the Regulation), enacted under the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1 (the Act).  Section 56 of the
    Regulation requires employers to use a signaller in certain circumstances
    when operating specified equipment in an industrial establishment.  The constitutionality
    of s. 56 of the Regulation is also raised as an alternative and secondary issue.

I.         Relevant Legislative
    Provisions

[2]

Section 25(1)(c) of the Act requires an employer to ensure that
    prescribed health and safety measures are carried out in the workplace.  Section
    56 of the Regulation is one of these measures.  It reads as follows:

Where the operator of a vehicle, mobile equipment,
    crane or similar material handling equipment does not have a full view of the
    intended path of travel of the vehicle, mobile equipment, crane or similar
    material handling equipment or its load, the vehicle, mobile equipment, crane
    or similar material handling equipment shall only be operated as directed by a
    signaller who is a competent person and who is stationed,

(a)
        in full view of the operator;

(b)
      with a full view of the intended path of travel of the vehicle, mobile
    equipment, crane or similar material handling equipment and its load; and

(c)
        clear of the intended path of travel of the vehicle, mobile equipment,
    crane or similar material handling equipment and its load.

II.        Facts

[3]

The appellant, Sheehans Truck Centre Inc. (Sheehan), owns and
    operates a highway tractor truck sales business in Burlington, Ontario.  The units
    offered for sale are displayed in Sheehans parking lot.  In August 2006,
    Sheehan decided to expand its parking lot.  An external construction company
    was hired to complete the expansion work.

[4]

On the day in question, four Sheehan employees were directed by their
    supervisor to move a number of the truck units held for sale from one part of
    the parking lot to another to facilitate the paving work associated with the
    expansion.  One of these employees, Dennis Meek (Meek), attempted to move a
    25-foot long Volvo VNL 660 truck unit.  Although the truck unit was designed to
    attach to a cargo trailer, no trailer was attached to it at the time.  The cab
    of the truck unit had no rear window.

[5]

While Meek was attempting to back-up the truck unit, it became stuck on
    a mound of aggregate.  Another Sheehan employee, Joshua LaPenna (LaPenna),
    approached Meek and told him that he would clear the obstructing aggregate from
    behind the truck unit.  It is unclear whether Meek understood LaPennas offer
    of assistance.  In any event, LaPenna walked behind the truck unit and began to
    attempt to clear the obstruction.  Unfortunately, Meek then again reversed the
    truck unit and drove over LaPenna, causing him a serious pelvic injury.  As a
    result, LaPenna was hospitalized for several weeks and unable to work for a few
    months.

[6]

No signaller was involved at any point in directing Meeks operation
    of the truck unit.

[7]

Following the accident, Sheehan was charged with an offence under s.
    25(1)(c) of the Act, for failing as an employer to ensure that the signaller
    requirement under s. 56 of the Regulation was carried out in its workplace.  It
    defended the charge on two bases: (1) s. 56 of the Regulation did not apply to
    vehicles like the Sheehan truck unit; and (2) in the alternative, s. 56 of the
    Regulation violated s. 7 of the
Charter
on the grounds of overbreadth
    and gross disproportionality.

[8]

Sheehan was acquitted at trial.  The trial judge concluded that the Act
    is remedial public welfare legislation that is designed to guarantee a minimum
    level of protection for the health and safety of workers.  In this context, he
    held that s. 56 of the Regulation specifically addresses worker safety
as
    it relates to material handling
 (emphasis added).  In this sense, he
    concluded, s. 56 supports the broader protective purpose of the Act.

[9]

The trial judge next considered how the material handling provisions
    of the Regulation fit within this overall legislative scheme.  In his view, two
    factors indicated that material handling activity is a precondition to the
    application of s. 56 of the Regulation.  First, under the associated words
    rule of statutory interpretation, which requires that a listed statutory term
    be read in conjunction with associated listed terms, the words
or
similar
    material handling equipment (emphasis in original) in s. 56 direct the reader
    of that provision to the common function of material handling.  Second, the
    placement of s. 56 in the Regulation as a whole, among safety regulations grouped
    under the heading Material Handling, also supports the conclusion that s. 56
    contemplates material handling activity.

[10]

The trial judge then addressed the meaning of material handling, a
    term that is not defined in the Regulation.  He concluded that the Sheehan truck
    unit was not a vehicle or material handling equipment within the meaning of
    s. 56 of the Regulation.

[11]

In the trial judges view, the use of a signaller is clearly desirable
    and would constitute a true best practice  where a vehicle is backing-up
    in circumstances where the operator does not have a full view of the intended
    course of travel.  However, the use of a signaller is not a requirement of the
Highway Traffic Act
, R.S.O. 1990, c. H.8 (the
HTA
), the
    statute that governs most operations of a highway tractor type, nor has the
    legislature made it a general requirement for the safe reversing of a vehicle
    for the purposes of the Act or the Regulation.  In particular, given the
    intended place and purpose of the use of Sheehans truck unit, s. 56 did not impose
    a signaller requirement on Meeks operation of the unit.

[12]

Accordingly, the trial judge concluded that an offence under s. 25(1)(c)
    of the Act was not made out.  He therefore regarded it as unnecessary to
    address Sheehans attack on the constitutionality of s. 56 of the Regulation.

[13]

The Crown appealed, arguing that the trial judge erred in his
    interpretation of s. 56 of the Regulation.  It was the Crowns position that s.
    56 applies to all vehicles used in an industrial establishment, regardless of
    whether they constitute material handling equipment, when the operator of the
    vehicle has a blind spot preventing a full view of the vehicles intended path
    of travel.

[14]

The summary conviction appeal court judge (the SCAC judge) agreed.  In
    brief reasons on this issue (four paragraphs), he ruled that s. 56 of the
    Regulation does not require that a vehicle be engaged in the actual handling
    of materials at the time of a workplace accident.  Rather, in his opinion, s.
    56 is triggered where the vehicle at issue is intended to be used for this
    purpose and, further, this was the intended use of the Sheehan truck unit once
    a trailer was attached to it.  The SCAC judge also held that s. 56 of the
    Regulation does not violate s. 7 of the
Charter
and, hence, that it is
    constitutional.

[15]

The SCAC judge therefore set aside the acquittal entered by the trial
    judge and convicted Sheehan of failing to ensure that the signalling
    requirement established by s. 56 of the Regulation was carried out in its
    workplace, contrary to s. 25(1)(c) of the Act.  I will return to the SCAC
    judges reasoning in support of this decision later in these reasons.

[16]

Sheehan now appeals, with leave, to this court.

[17]

For the reasons that follow, I conclude that s. 56 of the Regulation does
    not apply to road vehicles in industrial establishments that are not actually
    or typically used to handle materials.  It follows, in my view, that the SCAC
    judge erred in his interpretation of s. 56 of the Regulation.  On the
    unchallenged findings of the trial judge, Sheehans truck unit was neither
    actually or typically used to handle materials.  Accordingly, an offence under
    s. 25(1)(c) of the Act was not made out.  In light of this conclusion, it is
    unnecessary to address Sheehans constitutional challenge to s. 56 of the
    Regulation.  I would therefore set aside the conviction entered by the SCAC
    judge, restore the decision of the trial judge, and enter an acquittal on the
    offence charged.

III.      Issues

[18]

As argued by the parties, there are two issues on this appeal:

(1)

Does s. 56 of the Regulation apply to a vehicle that does not
    constitute material handling equipment in an industrial establishment?

(2)

Does s. 56 of the Regulation offend s. 7 of the
Charter
on the
    basis of overbreadth or gross disproportionality?

IV.      Analysis

(1)

Statutory Interpretation Issue

(a)

The Regulation

[19]

Section 3 of the Regulation states that the Regulation applies to all
    industrial establishments.  The term industrial establishments is not
    defined under the Regulation.  However, it is defined in s. 1(1) of the Act as
    meaning an office building, factory, arena, shop or office, and any land,
    buildings and structures appertaining thereto.  Under this wide definition,
    there is no doubt that Sheehans business premises constituted an industrial
    establishment and that the Regulation, which is concerned with safety in
    industrial establishments, applied to Sheehans workplace.

[20]

Part I of the Regulation sets out various safety measures generally
    applicable to industrial establishments, including requirements relating to
    material handling.  Section 56 appears in Part I of the Regulation under the
    heading Material Handling.

[21]

The signaller requirement established by s. 56 is triggered by: (1) the
    operation of a vehicle, mobile equipment, crane or similar material handling
    equipment in circumstances where (2) the operator does not have a full view
    of the intended path of travel.

[22]

The parties accept that, by reason of the absence of a rear window in
    the cab of the Sheehan truck unit, Meek did not have a full view of the truck
    units intended path of travel when operating it in reverse.  Thus, the second
    precondition to the engagement of s. 56 was satisfied in this case.  The issue,
    therefore, is whether the truck unit constituted a vehicle...or similar
    material handling equipment for the purpose of s. 56, so as to satisfy the
    first precondition to the application of s. 56.  There is no suggestion that
    the Sheehan truck unit was an item of mobile equipment or a crane.

(b)

SCAC Judges Decision

[23]

The SCAC judges ruling that s. 56 of the Regulation applies to vehicles
    in industrial establishments that are intended for use in handling materials
    was based on the principle that public welfare legislation is to be interpreted
    broadly.  Relying on this courts decision in
Ontario (Ministry of Labour)
    v. Hamilton (City)
(2002), 58 O.R. (3d) 37, at paras. 16-17, leave to
    appeal refused, [2002] S.C.C.A. No. 146, the SCAC judge held that the
    Regulation is public welfare legislation and, consequently, that it is to be interpreted
    liberally [so] as to best assure the attainment of its objects.  In his view, the
    object of the Regulation is to protect vulnerable working men and women,
    especially when heavy equipment is involved, an objective with which the
    courts must not lightly interfere.  On this sole ground, he concluded that:

[Sheehans] truck...did not have to be engaged in
    the actual handling of materials at the time of the accident.  It is sufficient
    if it was intended to be used for this purpose with a trailer attached.  The
    intended purpose must take precedence over the literal, technical
    interpretation of the trial judge.

[24]

Sheehan argues that the SCAC judge erred by failing to consider the
    meaning of s. 56 of the Regulation in context, including in light of the
    safety-related purpose of the Act.  For the reasons that follow, I agree.

(c)

Governing Interpretive Approach

[25]

The Supreme Court of Canada has repeatedly endorsed the approach
    articulated by E.A. Driedger in
The Construction of Statutes
(Toronto:
    Butterworths, 1974), at 67, cited in Ruth Sullivan,
Sullivan on the
    Construction of Statutes
, 5th ed. (Markham: LexisNexis Canada Inc. 2008) at
    1, as the preferred modern method of statutory interpretation:

Today there is only one principle or approach,
    namely, the words of an Act are to be read in their entire context, in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament.

See for example,
Re Rizzo & Rizzo Shoes Ltd.
, [1998]
    1 S.C.R. 27, at para. 21;
Bell ExpressVu Limited Partnership v. Rex
,
    2002 SCC 42, at para. 26.

[26]

This approach also governs the interpretation of a regulation: Pierre-André
    Côté,
The Interpretation of Legislation in Canada
, 5th ed. (Toronto:
    Carswell, 2000), at 24.  It requires an examination of the language of the
    provision, the context in which the language is used and the purpose of the
    legislation or statutory scheme in which the language is found:
Blue Star
    Trailer Rentals Inc. v. 407 ETR Concession Co.
, 2008 ONCA 561, at para. 23,
    leave to appeal refused, [2008] S.C.C.A. No. 434.

(d)    Nature of Legislative Scheme

[27]

As noted by the SCAC judge, protective legislation that is designed to
    promote public health and safety, like the Act and associated regulations, is
    to be generously interpreted in a manner that is in keeping with the purposes
    and objectives of the legislative scheme:
City of

Hamilton
at
    para. 16.  In addition, in the case of regulations, the words of the
    authorizing statute provide necessary and important interpretive context: see
    for example,
Bristol-Myers Squibb Co. v. Canada (Attorney General)
, 2005
    SCC 26, at para. 38.

[28]

This court has recognized that the Act is a public welfare statute, the
    broad purpose of which is to maintain and promote a reasonable level of
    protection for the health and safety of workers in and about their workplace.
    This requires that the Act be interpreted in a manner consistent with its broad
    purpose, the promotion of worker safety: see
R. v. Timminco Ltd.
(2001),
    54 O.R. (3d) 21, at para. 22;
Ontario (Ministry of Labour) v. United
    Independent Operators Ltd.
2011 ONCA 33 (
UIOL
), at paras. 31 and
    64.

[29]

The SCAC judge was correct to approach the interpretation of s. 56 of
    the Regulation in a manner that advances the protective aims of the Act and the
    Regulation as a whole.  Both the Act and the Regulation are designed to
    safeguard workers in the workplace.  The Regulation focuses on worker safety in
    industrial establishments, as that term is defined under the Act.  In that
    context, s. 56 of the Regulation imposes a specific safety measure  a
    signaller requirement  that applies in defined circumstances in industrial
    establishments.

[30]

That said, consideration of the protective purposes of the legislative
    scheme is not the only consideration when attempting to ascertain the scope of
    s. 56 of the Regulation.   The Act seeks to achieve
a reasonable level of
    protection
(emphasis added) for workers in the workplace.  For obvious
    reasons, neither the Act nor the Regulation mandate or seek to achieve the
    impossible  entirely risk-free work environments.

[31]

The modern method of statutory interpretation requires that the words of
    s. 56 of the Regulation be interpreted in the entire context in which they are used
    and in accordance with their grammatical and ordinary sense, having regard to
    the purposes of the Regulation and the Act as a whole.  As I will explain, it
    is my opinion that by failing to conduct this contextual and purposive
    examination of s. 56 of the Regulation, the SCAC judge fell into error.

(e)
      Meaning of Vehicle in

Section
    56 of the Regulation

[32]

Section 56 of the Regulation provides that a signaller must direct the
    operation of a vehicle,
[w]here the operator of a vehicle
, mobile
    equipment, crane
or similar material handling equipment
does not have a
    full view of the intended path of travel... (emphasis added).  None of the
    terms vehicle, material handling or material handling equipment is
    defined in the Regulation or in the Act itself.

[33]

Notwithstanding the absence of a definition of the word vehicle in the
    Regulation, I think it self-evident that it is susceptible of a broad
    construction according to its ordinary meaning.  However, since it appears in
    s. 56 in association with other listed means of moving goods and products,
    including similar material handling equipment, the associated words rule of
    statutory interpretation requires that vehicle be interpreted in conjunction
    with the associated listed words.  As observed by the trial judge, under this
    rule, the reader is invited to look for a common feature among the terms
    listed.
[1]
The application of this rule, as well as a plain reading of the phrase a
    vehicle, mobile equipment, crane or similar material handling equipment,
    suggests that vehicle as employed in s. 56 means a vehicle that falls within
    the general class of material handling equipment.

[34]

The Crown argues that the term material handling equipment as used in
    s. 56 modifies only the immediately preceding word crane, and not the word
    vehicle.  I disagree.

[35]

In my view, the use of the words or similar in s. 56, in conjunction
    with the term material handling equipment, is a compelling indication that
    the provision is intended to apply only to those vehicles that constitute
    material handling equipment, and not to all vehicles used in an industrial
    establishment.

[36]

Moreover, s. 56 is also directed at the load of a vehicle.  The use
    of the word load in connection with vehicle also implies that the vehicles
    contemplated by s. 56 are those that handle goods or other materials.

[37]

Apart from the text of s. 56 itself, this interpretation is reinforced
    by the context in which s. 56 appears in the Regulation.  As noted by the trial
    judge, s. 56 forms part of various safety regulations set out in Part I of the
    Regulation, under the heading Material Handling.  This heading is a relevant
    and proper guide to the interpretation of s. 56: see
Law Society of Upper
    Canada v. Skapinker
, [1984] 1 S.C.R. 357, at pp. 376-77;
Re African Lion
    Safari & Game Farm Ltd. and Kerrio
(1987), 59 O.R. (2d) 65 (C.A.), at
    p. 73.

[38]

Most, although arguably not all, of the provisions under the Material
    Handling part of the Regulation concern some aspect of material handling
    performed in an industrial setting.  The placement of s. 56 in that part of the
    Regulation that concerns Material Handling further suggests that a vehicle
    under s. 56 means a vehicle that is also material handling equipment.

[39]

Finally, in my view, this interpretive conclusion also accords with
    logic and common sense.  If, as the Crown urges, the word vehicle in s. 56 is
    interpreted to mean all vehicles, rather than only vehicles that constitute
    material handling equipment, the scope of the signaller requirement under s. 56
    would be broad indeed.

[40]

In particular, given the wide definition of industrial establishments
    set out in s. 1(1) of the Act, an expansive interpretation of vehicle in s.
    56 of the Regulation would result in the application of the signaller
    requirement to vehicles of any type, in a host of industrial settings, as long
    as the operators view of the vehicles intended path of travel is partially or
    wholly obscured.  For example, the term industrial establishments includes
    shops and offices and adjacent lands.  If the Crowns interpretation of
    vehicle were to be accepted, the signaller requirement under s. 56 would
    apply to passenger cars operated in reverse in such everyday locations as
    shopping centres and plazas or many office building parking lots, so long as
    the drivers view is even partially obscured.

[41]

I have considerable difficulty in accepting that s. 56 of the Regulation
    is intended to have such sweeping application.  I agree with Sheehans
    contention that this expansive view of the scope of s. 56 would impose a
    signaller requirement in circumstances far beyond those that are reasonably
    necessary to protect workers from safety hazards in industrial settings.  In my
    opinion, if the legislature had intended s. 56 to have such a wide reach, this
    intention would have been expressed in clear and unambiguous language.

[42]

Based on his reasons, I am unable to conclude that the SCAC judge
    considered the meaning of the word vehicle in s. 56 of the Regulation in the
    context of the language of s. 56 itself and the Regulation as a whole.  In
    light of the considerations set out above, I agree with the trial judge that,
    properly read, vehicle in s. 56 means vehicles that come within the class of
    material handling equipment.

(f)
       Meaning of Material Handling in

Section
    56 of the Regulation

[43]

The phrase material handling appears to have received little judicial
    consideration, either generally or in the specific context of s. 56 of the
    Regulation. Moreover, the legislative history of the Regulation and of s. 56
    provides no insight into its intended meaning.

[44]

In contrast to the SCAC judge, who did not expressly advert to this
    issue in his reasons, the trial judge grappled directly with the meaning of
    material handling as it appears in s. 56 of the Regulation.  He concluded
    that, given the place and purpose of its use, the Sheehan truck unit was not
    material handling equipment as contemplated by s. 56.

[45]

I agree for several reasons.  First, the trial judge made the following
    pertinent factual findings concerning the Sheehan truck unit: (1) the truck
    unit was a highway tractor unit; (2) the primary and by far most common use
    of the truck unit was to convey attached trailers on public highways; (3) the
    trailers would often be laden with materials; and (4) the purpose of the
    unit, therefore, was the transport of goods and materials.

[46]

These findings are not challenged on this appeal.

[47]

The trial judge next considered whether the transport of goods and
    materials on public highways fell within the ambit of material handling as
    contemplated by s. 56 of the Regulation. In doing so, he turned to
Federal
    Express (Re)
, [2004] C.L.C.A.O.D. No. 1, a decision of an appeals officer
    under the
Canada Labour Code
, R.S.C. 1985, c. L-2 (the Code).

[48]

The issue in
Federal Express (Re)
was whether courier delivery
    vans constituted motorized materials handling equipment under the
Canada
    Occupational Health and Safety Regulations
, S.O.R./86-304, (the COHSR),
    enacted under the Code.  Section 14.16 of the COHSR required that motorized
    materials handling equipment used in areas occupied by employees be equipped
    with a horn or other similar audible warning device that automatically
    operates while [the equipment] travels in reverse.  In
Federal Express (Re)
,
    two courier companies were charged with contraventions of the Code and the
    COHSR because delivery vans owned by them were operated in reverse in areas
    occupied by employees when the vans were not equipped with the requisite back-up
    warning devices.

[49]

The COSHR contained a specific definition of materials handling
    equipment:

Materials handling equipment means equipment,
    including its supporting structures, auxiliary equipment and rigging devices,
used
    to transport, lift, move or position persons, materials, goods or things
and includes mobile equipment used to lift, hoist or position persons, but does
    not include an elevating device that is permanently installed in a building.
    [Emphasis added.]
[2]

[50]

In addition, the COSHR expressly excluded motor vehicles operated on
    public roads from the back-up warning device requirement, thus differentiating
    between road vehicles and materials handling equipment.  Other provisions of
    the COSHR also appeared to distinguish between road vehicles and materials
    handling equipment.

[51]

Thus, the legislative scheme considered in
Federal Express (Re)
differed in several material respects from the legislative framework under
    scrutiny in this case. Unlike the Regulation, the COHSR contained a specific
    definition of the term materials handling equipment, an express exclusion of
    motor vehicles operated on public roads from the back-up warning device
    requirement, and other provisions that distinguished road vehicles from
    material handling equipment.

[52]

The trial judge in this case, while alive to the different legislative
    schemes at issue, viewed the analysis and interpretive conclusion expressed in
Federal
    Express (Re)
regarding the meaning of materials handling equipment under
    the COHSR as persuasive and sensible.

[53]

I agree that
Federal Express (Re)
, while concerned with a
    different legislative regime, is instructive in identifying certain of the
    general characteristics of material handling.  In particular, the appeals officer
    in
Federal Express (Re)
noted, at paras. 33-34, that the English and
    French language versions of the definition of materials handling equipment in
    the COSHR suggested that materials handling has the following characteristics:

-

[the] purpose of handling  and its French equivalent manutention  is
    ... to manoeuvre persons, materials, goods or things, to transfer them, to
    change their positioning relatively [sic] to a previous one;

-

materials handling equipment is used when what needs to be moved is
    too heavy or too bulky to be moved manually;

-

the handling of materials is carried out as part of a larger process, as
    one of the steps that has to be accomplished in order to successfully complete
    the whole process; and

-

the handling of materials takes place in an enclosed area of the work
    place, for example, a warehouse, a terminal, a wharf, a tarmac, as opposed to
    an open area like  a public road.

[54]

The appeals officer in
Federal Express (Re)
also held that the
    purpose of the back-up warning device requirement under s. 14.16 of the COSHR
    was to deal with equipment that handles materials within a work place, as
    opposed to equipment that transports materials from an employers to a clients
    work place (para. 55).  In contrast, the sole purpose and function of the delivery
    vans in question was to move, carry or transport materials, persons, things or
    goods from one location to another, utilizing public roads.  Their operation for
    this purpose was subject to the prescriptions of the
Motor Vehicles Act
of the province where they are being operated (paras. 42 and 43-48).

[55]

The appeals officer concluded, at para. 58:

I will add that any summary review of the
    literature or of other legislation on the subject of materials handling equipment
    is further evidence that Part XIV of the [COSHR] was not intended to cover
    motor vehicles like courier vans and trucks.  It is clear that the designation
    of material handling equipment refers to what is commonly known as powered
    industrial trucks, that is mobile, power-driven vehicles that are used to
    carry, push, pull, lift, stack and tier material.  And among them we find lift
    trucks, electric pallet trucks, elevated order pickers, low-lift platform
    trucks, cantilever trucks, counter-balance front/side loader trucks and
    single-side loader rider trucks, to name but a few.

[56]

The focus of the appeal officers reasoning in
Federal Express (Re)
was on the place and purpose of use of the applicable vehicles, in the context
    of the specific language of the definition of materials handling equipment
    set out in the COSHR.

[57]

In this case, on the undisputed findings of the trial judge, the primary
    purpose of the Sheehan truck unit was the transport of goods and materials, via
    a trailer, on public highways. As the trial judge indicated, when used for this
    purpose, the operation of the Sheehan truck unit was subject to the provisions
    of the
HTA
.  In light of these findings, it cannot be said that the
    Sheehan truck unit possessed the attributes of material handling identified in
Federal
    Express (Re)
, set out above.

[58]

In addition, the Sheehan truck unit did not possess many of the features
    of material handling suggested by ordinary and specialized dictionary
    definitions of that term.

[59]

The French language version of s. 56 of the Regulation reads:

Si lopérateur
dun véhicule
,
    de matériel mobile, dune grue
ou dun appareil de manutention similaire
na pas une vue dégagée de la trajectoire prévue de lappareil ou de sa charge,
    il doit se faire guider par un signaleur qui est une personne compétente et qui
    est posté :

a)

bien en vue de lopérateur;

b)

bien en vue de la trajectoire prévue de

lappareil et de sa
    charge;

c)

à lécart de la trajectoire prévue de lappareil
    et de sa charge.

[Emphasis added.]

[60]

The term used in place of material handling in the French language
    version of s. 56 is manutention.
Le Nouveau Petit
    Robert
defines manutention as, [m]anipulation,
    déplacement manuel ou mécanique de marchandises, en vue de lemmagasinage, de
    lexpédition et de la vente.
This defines it as the
    movement of merchandise for the purpose of warehousing, shipment and sale.

[61]

A similar
definition is
found in Louis Ménard et al,
Dictionnaire de la comptabilité et de la
    gestion financière: anglais-français avec index français-anglais
(Montréal:
    Institut canadien des comptable agréés, 1994), which defines  manutention
    as:

Déplacement manuel ou mécanique de
    produits, de matières ou de marchandises, en général sur une faible distance,
    associé aux opérations dapprovisionnement, de fabrication, de montage,
    demmagasinage, dexpédition ou de vente.

[62]

This definition describes manutention as the
    movement of products, generally across a short distance (en général sur une
    faible distance),
associated with supply
,
manufacturing
, installation,
warehousing
, shipping or sale operations (associé aux opérations
    dapprovisionnement, de fabrication, de montage, demmagasinage, dexpédition
    ou de vente).

[63]

An
even
more
specific
    definition is found
in the
Quebec Governments
Grand dictionnaire terminologique
(2006), online: Office québécois de la langue française
    <http ://www.granddictionnaire.com/btml/fra/r_motclef/index800_1.asp>.
It defines manutention as follows:

Action de déplacer
    automatiquement, mécaniquement ou manuellement, à laide dappareils de
    manutention, des matières, des produits en cours de fabrication ou des produits
    finis
sur

une faible distance
et
généralement à lintérieur
.

Il ne faut pas confondre le terme
manutention
avec les termes
manipulation et transport
. En effet, le terme
manipulation
se limite aux déplacements effectués dans laire dun poste de travail,
    tandis que le terme
transport
correspond à des déplacements qui se font
sur
    une distance plus importante
que dans le cas de la manutention et
généralement
    à lextérieur
.

[Emphasis added.]

[64]

This definition specifies that manutention involves moving materials
    or products over a short distance (sur une faible distance) and generally in
    an interior setting (généralement à lintérieur). It also notes that manutention
    is distinct from the French term transport.  In contrast to manutention,
    transport refers to movements over a longer distance (sur une distance plus
    importante) and generally outside (généralement à lextérieur).

[65]

The Oxford English Dictionary also off
ers a
    brief and narrow definition of materials handling.  It defines the term as
    the movement and storage of materials
in a factory
 (emphasis added):
Oxford
    English Dictionary
, 2nd ed., vol. IX (Oxford, Clarendon Press, 1989), at p.
    465.

[66]

Taken as a whole, the above-quoted definitions suggest that
    manutention or material handling in the context of industrial
    establishments usually: (1) is undertaken in an interior or enclosed setting,
    such as a factory or plant; (2) extends over short distances; and (3) forms
    part of a broader industrial process involving the movement of materials or
    products for such purposes as supply, manufacturing, installation, warehousing,
    shipment and sale.

[67]

On the trial judges findings, these characteristics did not apply to
    the Sheehan truck unit.  In its condition on Sheehans lot on the day of the
    accident, the truck unit did not have the capacity to handle materials  no
    trailer was attached to it.  Even with a trailer attached, the intended purpose
    of the truck unit was to transport goods and materials on public highways, that
    is, in exterior settings over potentially considerable distances.  The trial
    judge held that the Sheehan truck unit was just one item of Sheehans truck inventory
    offered for sale to the public, after which it would almost certainly be
    employed on public roadways, with only minor use of private roadways.  Before
    this court, the Crown accepted that Sheehan is not in the business of selling
    trailers.

[68]

Further, as noted by the trial judge, there was no evidence at trial
    that Sheehan used the truck unit or intended to use it for anything other than
    sale to the public. In particular, there was no evidence that the Sheehan truck
    unit was engaged in or intended for any processing, manufacturing, material
    movement or other [non-sales-related] activity.  The trial judge summarized
    this aspect of the record in this fashion:

In fact, no evidence was presented to the court of
    any material handling activity by Sheehans, either actual activity or activity
    possible or contemplated, that would have utilized the Volvo truck (or any
    other truck in the sales yard inventory).

[69]

These findings and observations are amply supported by the evidential
    record.

(g)    Conclusion

[70]

In these circumstances, I conclude that s. 56 of the Regulation does not
    apply to road vehicles that are not actually or typically engaged in the
    handling of materials.  In light of the trial judges factual findings,
    above-described, I also agree that the Sheehan truck unit did not constitute a vehicle...or
    similar material handling equipment within the meaning of s. 56 of the
    Regulation.  The requisite element of material handling activity, necessary
    to trigger the application of s. 56, was not demonstrated in this case.  Accordingly,
    s. 56 of the Regulation did not apply to Sheehans truck unit on the day in
    question and the Crown failed to establish the
actus reus
of the offence
    charged under s. 25(1)(c) of the Act.

(2)

Constitutionality
    of Section 56

of
    the Regulation

[71]

In light of my conclusion that s. 56 of the Regulation did not apply to
    the Sheehan truck unit, it is unnecessary for the disposition of this appeal to
    consider Sheehans challenge to the constitutionality of s. 56 of the
    Regulation.

V.        Disposition

[72]

For the reasons given, I would allow the appeal, set aside the
    conviction entered by the SCAC judge and restore the verdict of acquittal
    entered by the trial judge.

[73]

Sheehan seeks costs of the appeal in the sum of $18,000 (its actual
    partial indemnity costs are said to approximate $78,000) on the ground that the
    issues on appeal raised matters of general public interest and importance.  The
    Crown resists an adverse costs award since costs awards against the Crown on
    the basis of public interest considerations are rare and exceptional and may
    only be justified in narrow circumstances that the Crown says do not apply
    here.

[74]

This appeal raised matters of general public importance concerning the
    interpretation of s. 56 of the Regulation.  Litigation involving the public
    interest raises unique policy considerations that may, in exceptional cases,
    justify a departure from ordinary costs rules: see
Victoria (City) v. Adams
,
    2009 BCCA 563, at para. 181.  Moreover, on the motion granting leave to appeal
    to this court in
UIOL
, Doherty J.A., in chambers, held that the
    financial burden arising from the reasonable legal costs of an appeal in what
    is essentially public interest litigation need not be borne by the successful
    party in a proceeding that the Crown properly views as the vehicle for clearing
    up a matter of statutory interpretation of wide application.  This is such a
    case.

[75]

The costs sought by Sheehan are reasonable.  It was successful at trial
    and, again, before this court.  In all the circumstances, I conclude that a
    costs award against the Crown in the modest amount of $18,000 is appropriate
    and I would so order.

RELEASED:

OCT 17 2011                                            E.A.
    Cronk J.A.

EAC                                                            I
    agree M. Rosenberg J.A.

I
    agree David Watt J.A.

[1]
See
Sullivan on the Construction of Statutes, supra
, at pp. 227-230.

[2]
The emphasized words in this quote also appear, in virtually identical
    language, in the definitions of material handling equipment set out in the
Aviation
    Occupational Health and Safety Regulations
, S.O.R./2011-87, s. 8.1, the
Oil
    and Gas Occupational Safety and Health Regulations
, S.O.R./87-612, s. 15.1,
    and the
Maritime Occupational Health and Safety Regulations
,
    S.O.R./2010-120, s. 209.


CITATION:
Qubti v. Reprodux
          Ltd., 2011 ONCA 651

DATE: 20111018

DOCKET: C51741

COURT OF APPEAL FOR ONTARIO

Blair, LaForme JJ.A. and Benotto J. (
ad hoc
)

BETWEEN

Elias Qubti

Plaintiff (Appellant)

and

Reprodux Ltd.

Defendant (Respondent)

Davit D. Akman and  Richard A. Levin, for the
          plaintiff/appellant

Nancy M. Shapiro, for the defendant/respondent

Heard & released orally:
October 13,
          2011

On appeal from the judgment of Justice Denise Bellamy of the
          Superior Court of Justice sitting without a jury, dated February 4, 2010.

ENDORSEMENT

[1]

Mr. Qubti appeals from the judgment of Bellamy J. dated February 4,
    2010, granting him damages for constructive dismissal in the amount of
    $9,462.00 but dismissing his claim for aggravated damages, punitive damages and
    damages for the intentional inflection of mental distress.

[2]

Mr. Akman submits on his behalf that the trial judge erred in law by
    concluding that the verbal abuse Mr. Qubti suffered at the hands of Reprodux
    was not the sole cause of his mental distress and therefore, that aggravated
    damages were not appropriate.  He further submits that the trial judge made
    numerous palpable and overriding errors in arriving at her findings of fact,
    but that even on the findings she made and on her own characterization of
    Reproduxs conduct toward Mr. Qubti, aggravated and punitive damages and
    damages for intentional inflection of mental distress must follow.

[3]

We do not agree.

[4]

Bellamy J. heard evidence over a 14 day trial.  She formed her opinions
    as to the reliability and credibility of the witnesses she heard and accepted
    some, but not all of each witness testimony.  Her findings were open to her on
    the record  including her findings that Mr. Qubti tended to exaggerate events
    and their impact and that Dr. Boyrazian was more of an advocate for Mr. Qubti
    than an objective witness.  She made no palpable and overriding error in her
    assessment of the evidence.

[5]

The trial judge found that Mr. Qubti had been the object of
    inappropriate verbal abuse in the workplace.  She did use strong language to
    describe why she did not condone it, calling it objectionable and offensive
    and at one point reprehensible.  However, whether the
impugned conduct
was or was not a direct or
    contributing cause of Mr. Qubtis mental distress, would not have affected the
    result here, in our view.
That is because, at
    the end of the day, the trial judge concluded that while the impugned conduct
was sufficient to create a hostile and poisoned work environment justifying a
    finding of constructive dismissal, it did not rise to the level sufficient to
    support a separate award for aggravated or punitive damages, or damages for
    infliction of mental distress.  While another judge may have taken a different
    view of the evidence, these findings were available to the trial judge and we
    see no error in law or in fact in her determination.

[6]

The appeal is therefore dismissed.

Cross-appeal
    as to costs

[7]

Reprodux cross-appeals against the award of
    $40,000 in costs plus $11,360 in disbursements made by the trial judge in favour
    of Mr. Qubti.  We see no reason to interfere and would not grant leave to
    appeal.

[8]

The trial judge was fully aware of the
    provisions of rule 76.13(3).  Her reasons make clear that she viewed the case
    as coming within the inception in rule 76.13(3)(b) however, namely that it was
    reasonable for the plaintiff to continue the proceeding under the ordinary
    procedure.  This was her call.

[9]

The cross-appeal is therefore dismissed.

Costs

[10]

Taking
    into account both the appeal and the cross-appeal, costs to Reprodux are fixed
    in the amount of $12,500 all inclusive.

R.A. Blair J.A.

H.S.
    LaForme J.A.

M.L. Benotto J. (ad
    hoc)


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.

CITATION:
R. v. B.F., 2011 ONCA 636

DATE: 20111011

DOCKET: C52041

COURT OF APPEAL FOR ONTARIO

Watt, Epstein and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B. F.

Appellant

Peter Copeland and Kevin Tilley, for the appellant

Grace Choi, for the respondent

Heard and released orally:
September 29,
          2011

On appeal from the convictions entered by Justice Ralph E.W. Carr
          of the Ontario Court of Justice, dated November 10, 2009, and the sentences
          imposed by Justice Carr on January 6, 2010.

ENDORSEMENT

[1]

The
appellant challenges his convictions of sexual assault, sexual
    interference and breach of probation on several grounds.

[2]

The appellant contends that the trial judge convicted him on the basis
    of a transaction that was different than the transaction that had formed the
    basis of the prosecution. We do not agree.

[3]

The trial judge made an express finding that the appellant intentionally
    touched the complainants vagina in the bathtub. We are not persuaded that the
    reference to the so called airplane incident tainted the findings in relation
    to those incidents that occurred in the bathtub or caused the appellant any
    miscarriage of justice. Neither are we persuaded that the trial judges reasons
    are insufficient despite their brevity and organizational confusion. Read in
    the context of the evidentiary record in this case, we are satisfied that the
    reasons are adequate to the task demanded of them by the authorities and reflect
    the core findings necessary for the convictions recorded.

[4]

The conviction of breach of probation is another matter. The trial judge
    did not make a discrete finding concerning the date upon which the sexual
    interference and assault occurred. It follows, in our view, that in the
    peculiar circumstances of this case, the conviction of breach of probation was
    unreasonable and cannot stand.

[5]

The respondent agrees that we should enter a stay on the conviction of
    sexual assault if we affirm the conviction of sexual interference. We agree.

[6]

In the result, the appeal from conviction of sexual interference is
    dismissed. The appeal from conviction of sexual assault is allowed and a stay
    entered.

[7]

The appeal from the conviction of breach of probation on the information
    charging the sexual offences is allowed and an acquittal entered. We are
    satisfied that the sentence imposed on the count of breach of probation with
    which we are concerned was concurrent to the sentence imposed for the sexual
    offences. The appellant pleaded guilty to several other breach offences
    contained in a separate information. Those convictions are not before us
    however, nor are the sentences imposed as a result of those convictions.

David
    Watt J.A.

G.J. Epstein J.A.

Karakatsanis
    J.A.


CITATION:
R. v. Belic, 2011
          ONCA 671

DATE: 20111027

DOCKET: C48959

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Neven Belic

Appellant

Heather McArthur and Victoria Rivers, for the appellant

Brian McNeely, for the respondent

Heard:
October 14, 2011

On appeal from the conviction
          entered on December 17, 2007 and the sentence imposed on February 6, 2008 by
          Justice Bruce A. Glass of the Superior Court of Justice, sitting with a jury,
          with reasons for sentence reported at 76 W.C.B. (2d) 508.

By the Court:

[1]

The appellant was convicted of second degree murder and two counts of
    aggravated assault arising out of an incident at a student pub in Oshawa,
    Ontario. He was sentenced to life imprisonment and an eighteen-year period of ineligibility
    for parole. His appeal from sentence was abandoned.

[2]

On the night of the incidents in question, the appellant arrived at the
    pub with several other men in a limousine and initially entered without passing
    through security. He was stopped and asked to return to the entrance where he
    was searched and allowed to re-enter. Soon after arriving, the appellant became
    involved in an altercation with Eugene Moses over a perceived insult. Gunshots
    were fired and Moses was killed. A friend of the appellant and a security guard
    were also injured.

[3]

The Crown relied on evidence of the appellants behaviour before, during
    and after the shooting. There was evidence that before going out the appellant
    had shown a friend a handgun that he intended to carry on the night in
    question. At the pub, the appellant conducted himself in a swaggering and
    aggressive manner, provoking the altercation that preceded the shooting.
    Several witnesses testified that they saw muzzle flash in the vicinity of the
    appellant when the shots were fired. There was considerable evidence of after-the-fact
    conduct, including the appellants flight and incriminating statements he allegedly
    made to undercover officers while in custody. Additionally, forensic evidence
    conclusively linked the ammunition found in the dresser drawer in a room where
    the appellant sought refuge the morning after the shooting, with the handgun
    and ammunition that were used to kill the deceased.

[4]

The appellant did not testify and called no evidence.

[5]

The appellant raises three grounds of appeal:

1.         the
    trial judge erred in his jury instruction with respect to the evidence of the Crowns
    firearms expert relied on by the defence on the issue of muzzle flash;

2.         the
    jury charge was unfair, unbalanced and prejudicial; and,

3.         the
    trial judge erred in his instruction with respect to post-offence conduct.

1.         Firearms expert and muzzle flash evidence

[6]

The Crown led the evidence of Shane Staniek of the Centre for Forensic
    Sciences. Staniek was qualified as an expert in the area of tool mark and
    firearms identification. He testified that a gun recovered after the shooting
    was the weapon used to shoot and kill the deceased. He further testified that the
    marks on the ammunition found in a dresser in a room to which the appellant fled
    after the incident, also matched the gun used in the shooting.

[7]

In cross-examination, defence counsel elicited evidence from Staniek as
    to the nature of muzzle flash without any objection from the Crown or comment
    from the trial judge. Defence counsel also advanced the hypothesis that seeing
    muzzle flash would not enable a witness to identify one person in a group as
    the shooter. When posing this question, defence counsel used a diagram indicating
    that the appellant was standing in a group at the time the fatal shots were
    fired. This diagram, however, was prepared by a witness who did not actually
    see the muzzle flash.

[8]

While Staniek agreed that it would be difficult to attribute the muzzle
    flash to one person in a group, he added I dont know if I can really give any
    kind of qualified answer to that. In re-examination by the Crown he stated:

If were just dealing with a flash, Im finding it
    difficult to really specifically relate it to some one individual. That's
    really beginning to be outside my area of firearms expertise.

Later in re-examination, he stated:

Well one can infer that between the flash and
    person, there is a gun, but it's dealing with peoples perceptions which I'm
    not comfortable commenting on.

However, when pressed further by the Crown in re-examination,
    Staniek repeated that he did not think it was possible to identify the shooter
    standing in a group of people on the basis of muzzle flash.

[9]

In his closing address to the jury, defence counsel placed substantial reliance
    on Stanieks evidence in relation to whether the location of muzzle flash could
    be used to identify the shooter. Defence counsel described Staniek as a genius
    and brilliant and submitted:

He will not attribute who the shooter is in terms
    of the muzzle flash. That is the firearms expert. Whose evidence are we going
    to rely on? Eye-witnesses in a bar who probably have never seen a flash of a
    gun before in their lives, [or] a guy whose life is dedicated to that science.
    That's reasonable doubt.

[10]

Before charging the jury, the trial judge asked both counsel to provide
    him with a written summary of their respective positions to put to the jury.
    The trial judge read those summaries into his charge verbatim; including defence
    counsels position that Staniek was a compelling witnesses who had been adamant
    that a muzzle flash near a person did not necessarily mean that person was the
    shooter. In articulating the defence position he specifically stated: [t]his
    expert's opinion undermines the entire theory of the Crowns case, and
    questions the observations of most witnesses as it relates to their perception
    of the exact location of the shooter.

[11]

The trial judge then made the following comment which is the focal point
    of this ground of appeal:

With respect to that, I would add the following; I
    note that Mr. Staniek was not qualified as an expert regarding muzzle flash
    establishing the location of the shooter. Rather, Mr. Staniek was allowed to
    provide expert opinion evidence as a firearms and tool marks examiner. The
    issue of a muzzle flash and the location of the shooter in relation to the
    muzzle flash, is not part of his expert testimony. Rather, that determination
    does not require expert opinion and may be determined by you the jurors, as
    part of your common sense interpretation of the evidence before you.

[12]

The appellant submits that the trial judge erred in two respects; first,
    by ruling that evidence as to muzzle flash was inadmissible as expert opinion
    evidence; and second, by failing to inform the defence in a timely manner of this
    ruling thereby undermining the position taken by defence counsel in his
    closing.

[13]

We are unable to accept these submissions.

[14]

We see no error on the part of the trial judge in ruling that the significance
    of muzzle flash evidence as a means of identifying the shooter did not fall
    within Stanieks area of expertise. While Staniek was permitted to answer
    questions on the nature of muzzle flash despite only being qualified as a tool
    mark and firearms identification expert, he was clearly reluctant to offer
    expert evidence regarding the capacity of a witness to identify a shooter
    standing in a group on the basis of muzzle flash. Even if he was competent to
    give expert evidence on the nature of muzzle flash, it was open to the trial
    judge to interpret his evidence as stating that he was unable to offer an
    expert opinion on that matter and equally open to the trial judge to so
    instruct the jury. Accordingly, we see no error in the impugned portion of the
    charge as it simply reflects a reasonable interpretation of Stanieks evidence.

[15]

Furthermore, we are not persuaded that the trial judge erred by failing
    to provide defence counsel with an earlier warning that the jury would be
    instructed in this manner. The trial judge gave defence counsel a considerable
    degree of latitude by permitting him to explore the implications of muzzle
    flash in view of the fact that he was only qualified as an expert on tool mark
    and firearms identification.  However, it does not follow that having given
    such latitude, the trial judge was compelled to accept counsels interpretation
    of that evidence.

[16]

Moreover, given the equivocal and hesitant nature of the evidence
    defence counsel was able to elicit from Staniek on the issue of using muzzle
    flash to identify the shooter, the trial judge had no reason to anticipate that
    defence counsel would interpret the evidence as he did, placing such heavy reliance
    on it in his closing address. We note here that defence counsel did not provide
    the trial judge with his written position until immediately before the trial
    judge commenced his instructions to the jury. It is clear from the exchange
    between defence counsel and the trial judge mid-way through the jury charge and
    before he gave the impugned instruction position, that the trial judge was
    surprised by defence counsels position. In response to defence counsels
    objection to the impugned portion, the trial judge stated:

With Mr. Staniek, it would appear to me that you
    were trying to take evidence that isn't part of what he was qualified to give
    expert opinion evidence about, and juice it up into being expert opinion
    evidence. So I'm going to correct it.

[17]

Given the manner in which the treatment of Stanieks evidence by defence
    counsel unfolded, we are not persuaded that the trial judge erred by failing to
    rule on the matter earlier or to warn defence counsel in advance of the nature
    of the impugned instruction.

2.         The jury charge

[18]

The appellant submits that the jury charge was unfair, unbalanced and
    prejudicial because the trial judge emphasized evidence favouring the Crown. The
    appellant objects, in particular, to the trial judge having repeated various
    portions of the Crowns incriminating evidence several times, without each time
    commenting on the appellants submissions as to the weakness of that same evidence.

[19]

We do not agree with this submission.

[20]

In our view, the trial judge did not unnecessarily repeat the Crowns
    evidence. Rather, as required, he identified the issues the jury had to decide
    and related to each of those issues the relevant evidence. This necessarily
    involved a certain amount of repetition. As we have already noted, the trial
    judge fully explained the defence position to the jury by reading in its
    entirety defence counsel's position on the evidence.

[21]

In our view, reading the charge as a whole, the jury would have clearly
    understood that the crucial issue was whether the Crown had been able to prove
    that the appellant was the shooter. The trial judge gave the jury the defence
    position on that issue exactly in the language requested by defence counsel.

[22]

Moreover, in a case where the accused does not testify and calls no
    evidence, it is almost inevitable that the judges summary of the evidence as
    it relates to each issue will focus on the evidence led by the Crown.

3.         Jury instruction on post-offence conduct

[23]

The appellant submits that the trial judge erred by using the then
    standard instruction on post-offence conduct later criticized by this court in
R.
    v. Hall,
2010 ONCA 724, 263 C.C.C. (3d) 5. Confronted with that submission,
    the Crown requested a five-judge panel to permit us to reconsider
Hall
.
    That request was denied and therefore
Hall
governs.

[24]

The Crown makes two arguments in response to the
Hall
point.
    First, the Crown submits that
Hall
has been overtaken by a subsequent
    decision of the Supreme Court of Canada in
R. v. White,
2011 SCC 13, 332
    D.L.R. (4
th
) 39. Second, the Crown points out that in any event, the
    decision in
Hall
makes it clear, at para. 146, that [s]tanding on its
    own, this flaw in the charge would not constitute reversible error.

[25]

We see nothing in
White
(2011) that undermines, or is
    inconsistent with,
Hall
. Indeed, in
White
(2011), the Supreme
    Court cited with approval the same passage from
R. v. White,
(1998) 2
    S.C.R. 72, at para. 57, that this court relied on in
Hall
. We note as
    well that an application for leave to appeal
Hall
was dismissed after
    the release of the Supreme Courts decision in
White
(2011).

[26]

However, we are satisfied that the
Hall
error alone would not
    have led the jury astray and, as counsel for the appellant conceded, standing
    on its own, it does not require us to set aside the conviction.

Conclusion

[27]

Accordingly, the appeal from conviction is dismissed and the appeal from
    sentenced is dismissed as abandoned.

RELEASED: October 27, 2011 (K.F.

K. Feldman J.A.

Robert J. Sharpe J.A.

Robert P. Armstrong J.A.


WARNING

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

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (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.

CITATION:
R. v. D.N.C., 2011
          ONCA 672

DATE: 20111028

DOCKET: C51591

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and Sharpe JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

D. N. C.

Appellant

Timothy E. Breen, for the appellant

Frank Au, for the respondent

Heard:
October 11, 2011

On appeal from the conviction entered on August 27, 2009 by
          Justice Robert Pelletier of the Superior Court of Justice.

By the court
:

[1]

This appeal involves an unusual application of issue estoppel to the
    admissibility of similar fact evidence.

[2]

The appellant was convicted of one count of sexual touching and one
    count of

sexual assault committed between January 1, 1995 and January 7,
    2001.  The complainant was the appellants son. The Crown led similar fact
    evidence of an incident that occurred on January 8, 2001, the day immediately
    following the time period captured by the indictment. The January 8 incident
    had been the subject of an earlier trial that ended in November 2001 with what
    the first trial judge described as a judicial stay. The stay had been granted
    when the complainant, then ten years old, refused to testify and Crown was
    denied an adjournment when the evidence that had been led to that point was
    tenuous at best and almost certainly insufficient to support a conviction. The
    trial judge made this clear in his ruling refusing the Crowns adjournment
    request, albeit without receiving submissions from counsel on the merits.

[3]

In May 2007, the complainant, by then prepared to testify, went to the
    police with the allegations of sexual abuse over an extended time period that
    formed the basis for the new charges at issue on this appeal. The Crown successfully
    applied to tender, as similar fact evidence, the same allegation of the alleged
    January 8 assault that had been judicially stayed at the first trial. The January
    8, 2001 allegation was a focal point of the second trial and figured
    significantly in the trial judge's reasons for conviction.

[4]

The appellant submits that the trial judge erred by allowing the Crown to
    lead evidence of the January 8, 2001 incident in the face of the judicial
    stay that was granted at the first trial.

Issue

[5]

The central issue before the trial judge at the second trial, and before
    us on this appeal, concerns the nature and effect of the judicial stay that
    was granted at the first trial with respect to the January 8, 2001 allegations
    and the application of the Supreme Court of Canadas judgment in
R. v.
    Mahalingan
, 2008 SCC 63, [2008] 3 S.C.R. 316.

Analysis

[6]

In
Mahalingan
, McLachlin C.J., writing for the majority, held at
    para. 2, that issue estoppel plays an indispensible role in ensuring fairness
    to the accused provided that it is confined to precluding the Crown from
    leading evidence which is inconsistent with findings made in the accuseds
    favour in a previous proceeding. Issue estoppel rests on the principle that fairness
    requires that an accused should not be called upon to answer allegations of law
    or fact already resolved in his or her favour by a judicial determination on
    the merits (para. 39).

[7]

The respondent Crown places considerable reliance on the fact that the
    first trial judge ordered a stay rather than refusing the adjournment and
    acquitting the appellant. The respondent submits that absent an acquittal or
    other clear finding of fact exonerating the appellant of the sexual misconduct
    forming the similar fact evidence, issue estoppel cannot apply and that paras.
    42 and 77 of
Mahalingan
suggest that where a prosecution is terminated
    by a stay, re-litigation will only be precluded in a limited range of cases
    that amount to an abuse of process. It is further argued that abuse of process
    is not available in this case as there is no suggestion of Crown misconduct.

[8]

We do not accept the Crowns submission for the following reasons.

The first trial and the judicial stay

[9]

The appellant was arrested on January 8, 2001 and charged with various
    sexual offenses allegedly committed on that date. Those charges were the
    subject of the appellants first trial that commenced in October 2001. At that
    first trial, the Crown called the complainants brother, who testified that he
    saw the appellant and the complainant together in circumstances that led him to
    believe the appellant was sexually abusing the complainant. After one day of
    trial, the case was adjourned for a month. When the case resumed in November 2001,
    the Crowns case was in serious difficulty as the complainant refused to
    testify. Crown counsel indicated that immediately after the alleged incident,
    the complainant had been taken to medical professionals where he had undergone certain
    tests, but that the samples had not been subject to forensic testing. The Crown
    sought an adjournment to submit these exhibits for analysis. Crown counsel
    acknowledged, however, that it was questionable whether forensic testing would
    yield any results and added: [b]ut I'm in a position where that's the only
    avenue left in the prosecution.

[10]

The trial judge refused the adjournment expressing concerns about the
    delay in the forensic testing and the appearance of justice in relation to the accuseds
    entitlement to the presumption of innocence. The trial judge concluded as
    follows:

Does justice look bad after all this delay? Yes. No
    question about it. Justice looks bad. I am going to take it upon myself to
    enter a judicial stay of proceedings and stop the prosecution at this point,
    but leave open the question of whether or not that judicial stay could be
    reopened upon a judges order within the next year and I do that rather than
    refuse to grant an adjournment requested by the Crown resulting in a dismissal
    at this time.

I feel that's the middle ground by which I may
    potentially preserve the rights of the public, but relieve [the appellant] of
    the weight of a prosecution and the restrictive terms under which he now lives.

Following the stay, instead of being tested, the
    exhibits were destroyed and the Crown never sought to lift the stay or pursue
    the case any further.

The second trial

[11]

At the second trial, the appellants trial counsel argued that evidence of
    the January 8, 2001 incident should be excluded on the grounds of both issue
    estoppel and abuse of process. The trial judge rejected that argument and concluded
    that by granting the ill-advised judicial stay of proceedings the first trial
    judge had taken pains to ensure that the charges could, at some point, be tried
    on their merits. As that had never occurred, the trial judge concluded the
    requirements for issue estoppel or abuse of process were not met. The Crown was
    thus not precluded from leading evidence as to the January 8, 2001 incident as
    similar fact evidence. The trial judges decision on this question is the
    central issue of this appeal.

Issue estoppel

[12]

In our view, in the particular circumstances of this case, the judicial
    stay granted at the first trial constituted, in functional terms, a judicial
    determination on the merits in favour of the appellant within the meaning of
Mahalingan
attracting the preclusive effect of issue estoppel.

[13]

First, it is clear from the record that the trial judge at the first
    trial had concluded that if an adjournment were refused, dismissal of the
    charges was inevitable. As we have noted, Crown counsel stated that because the
    complainant refused to testify, the only avenue left in the prosecution was
    an adjournment in the hope that the forensic tests might yield some evidence
    supporting the prosecution. The trial judge recognized in his reasons for
    granting the stay that if he were simply to refuse the requested adjournment,
    the inevitable result would be the dismissal of the charges.

[14]

Second, it is clear from the record that the trial judge was not
    prepared to grant the Crowns request for an adjournment. He decided instead to
    make an order that would stop the prosecution at this point, subject to the
    conditions of the stay.

[15]

Third, it is common ground that the trial judge had no legal authority
    to grant a judicial stay in the circumstances of this case.

[16]

Fourth, it is significant that after the trial judge entered the
    judicial stay, the Crown took no steps to proceed with the prosecution. The Crown
    did not appeal the trial judge's order. The Crown did not submit the exhibits
    for forensic testing. The Crown did not apply to have the stay lifted so that
    it could make the submission that the appellant should be convicted on the
    evidence that had already been led. Instead, the Crown acquiesced to trial
    judge's order to stop the prosecution at this point, seemingly resigned to
    the fact that the available evidence did not support a conviction.

[17]

In these circumstances, it is our view that fairness and the interests
    of justice require us to look behind the legally erroneous label of judicial
    stay to the substance of what occurred. Simply put, the trial judges legal
    error in purporting to grant a judicial stay should not have the effect of
    depriving the appellant of the remedy to which he is legally entitled on the
    basis that at the first trial, the Crown failed to prove its case against him.

[18]

It follows that the Crown should not have been permitted to adduce
    evidence of the January 8, 2001 incident as similar fact evidence. As the order
    terminating the first prosecution was, in the peculiar circumstances of this
    case, the functional equivalent of an acquittal, the rule of issue estoppel
    enunciated in
Mahalingan
precluded the Crown from relying on that evidence.

Abuse of process

[19]

Even if the label judicial stay excluded the application of issue
    estoppel, we would reach the same conclusion on the basis of abuse of process. McLachlin
    C.J.
,
clearly rejected, at para. 42 of
Mahalingan
, the
    proposition that abuse of process could or should be routinely used to achieve
    the fairness goal that underlies the doctrine of issue estoppel. However, at
    para. 77, McLachlin C.J. expressly stated that it was not necessary in
Mahalingan
to resolve the question of whether issue estoppel applies to situations where
    there is a disposition such as a stay at a first trial and went on to suggest
    that perhaps the more flexible approach of abuse of process can play a role
    in some cases. Although the examples McLachlin C.J. provided involved
    situations of stays granted on grounds such as unreasonable delay that do not engage
    a determination of the merits of the Crowns case, were it necessary, we would
    apply abuse of process to the present case.

[20]

A
s explained above, the
    disposition made by the first trial judge, amounted, in substance, to a
    judicial determination on the merits in favour of the appellant. We cannot
    agree that the appellant should be deprived of the benefit of that
    determination because the judge attached a legally erroneous label to the
    disposition he made. It would be fundamentally unfair to the appellant to be
    faced with the same allegations as the centerpiece of the later prosecution
    simply because of a legal error on the part of the first trial judge in his
    selection of the appropriate reme
dy.

[21]

We do not accept the respondents
    argument that abuse of process cannot apply because there was no Crown misconduct.
    It has long been held that
prosecutorial misconduct
    is not a precondition to a finding of abuse of process:
R. v. Keyowski
(1988),
    40 C.C.C. at p. 483;
R. v. Pietrangelo
2008 ONCA 449, 233 C.C.C. (3d)
    338, at para. 66. In our view, the circumstances here meet the clearest of
    cases standard for abuse of process.

Disposition

[22]

Accordingly, the appeal is allowed and a new trial is ordered.

RELEASED: October 28, 2011 (R.J.S.)

M.J. Moldaver J.A.

K. Feldman J.A.

Robert J. Sharpe 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.

CITATION:
R. v. D.W., 2011 ONCA
          669

DATE: 20111026

DOCKET: C50562

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.W.

Appellant

Candice Suter and Lucy Saunders, for the appellant

Emile Carrington, for the respondent

Heard:
October 25, 2011

On appeal from the finding of guilt entered on August 8, 2008,
          and the disposition imposed on May 7, 2009 by Justice Norris Weisman of the
          Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We agree with counsel for the appellant that the trial judge made
    certain errors in his s. 11(b) analysis, particularly in his application of the
    guidelines relevant to a
Youth Criminal Justice Act
accused.  However in
    the end, the important issues are those of prejudice and the gravity of the
    offence.

[2]

In our view, the assessment by the trial judge of the extent of actual
    prejudice to the appellant is one we would not interfere with.  He had the
    advantage of hearing the evidence.  Even if we were to include in the balancing
    some inferred prejudice, given the length of delay, in our view it does not
    outweigh the societal interest in having such a serious charge proceed to
    trial.

[3]

Thus, we agree with the result reached by the trial judge.  The appeal
    must be dismissed.


CITATION:
R. v. Dhanjal, 2011 ONCA 666

DATE: 20111024

DOCKET: C53344

COURT OF APPEAL FOR ONTARIO

Moldaver, Armstrong and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kuldip Dhanjal

Appellant

Jill Copeland, duty counsel, for the appellant

John Patton, for the respondent

Heard and released orally:
September 20,
          2011

On appeal from the decision of the summary
          conviction appeal court dated May 31, 2011 by Justice Gisele M. Miller of the
          Superior Court of Justice, dismissing the appeal from the conviction and
          sentence entered on July 5, 2010 by Justice Richard H.K. Schwarzl of the
          Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal the order of Justice Miller of the
    Superior Court of Justice in which she dismissed the summary conviction appeal
    from conviction and sentence in respect of charges for impaired driving and
    failing to remain at the scene of an accident.  He was fined $1,250 on the
    impaired driving charge and $1,750 on the fail to remain charge.

[2]

The appellant, who is not represented by counsel, submits in his factum
    that in effect, the summary conviction appeal judge erred in failing to
    conclude that the verdicts in respect of both charges were unreasonable.  He
    also submits that the trial judge failed to properly apply the criminal burden
    of proof and that he misapprehended the evidence in respect of the impaired
    driving charge.  Finally, he submits that the penalties by way of fines are
    excessive.

[3]

In addition, duty counsel, Ms. Copeland, made oral submissions in
    respect of the application for leave to appeal the convictions.  She submitted
    that the trial judge erred in law in relying on speculation as to the amount of
    alcohol the appellant had to drink prior to his car accident.

[4]

We are not satisfied that this is a proper case for leave to appeal the
    convictions or the sentences.  The appellant is asking this court to re-try
    this case which we are not permitted to do.

[5]

The trial judge gave detailed and thoughtful reasons for his decisions
    in this case although he did make one mistake in respect of the time period
    that the appellant was at the bar.  Contrary to the submission of duty counsel,
    there was evidence from which the trial judge could conclude that the
    appellants alcohol consumption and its effects were greater than claimed by
    the appellant.  In particular, we note that the appellant stopped to make a
    left hand turn for a prolonged period and then executed his turn in front of an
    oncoming car without activating his left turn signal.  His car collided with
    that car.  After the accident, the appellant stopped for only a few seconds,
    claiming that he did not see the other car or its driver although he had
    collided with it and it was parked nearby.

[6]

Finally, it was a cold November evening and he parked his car after the
    accident with the windows open, an indication that he likely intended to air it
    out from the smell of alcohol in the car.  We add that the evidence of the
    appellant and his statements to the police gave further support to the
    conclusion that the appellant consumed more alcohol before the accident than he
    admitted.

[7]

The summary conviction appeal judge gave careful and thoughtful reasons
    and saw no basis upon which to interfere with the trial judges findings.  We
    agree with the summary conviction appeal judge.  We are not persuaded that
    either the trial judge or the summary conviction appeal judge made any error of
    law that would provide a basis for granting leave to appeal.  The fines imposed
    for these sentences were reasonable and there is similarly no basis to grant
    leave to appeal sentence.

[8]

In the result, the application for leave to appeal conviction and
    sentence is dismissed.

M.J. Moldaver J.A.

E.A. Cronk J.A.

R.P. Armstrong J.A.


CITATION:
R. v. Dodge, 2011 ONCA 631

DATE: 20111006

DOCKET: C53067

COURT OF APPEAL FOR ONTARIO

Goudge, Armstrong and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Henry Dodge

Appellant

Jason H. Voss, for the appellant

David Friesen, for the respondent

Considered in writing: October 3, 2011

On appeal from the decision of the summary conviction appeal
          court dated November 23, 2010 by Justice T. David Little of the Superior
          Court of Justice, dismissing the appeal from the conviction entered on
          November 6, 2009, by Justice Gregory A. Pockele of the Ontario Court of
          Justice.

APPEAL BOOK ENDORSEMENT

[1]

In our view, this proposed appeal does not raise an issue of law but one
    of mixed fact and law.  It turns entirely on the particular facts and does not
    engage the interest of the general administration of justice.  Moreover the
    trial was not unfair to the appellant.  He had disclosure of the notes which
    were very close to the will say statements.

[2]

Finally the challenged remark by the trial judge was no more than an
    attempt to help a self represented accused.  All these issues were addressed by
    the summary conviction appeal court.

[3]

Leave is denied.


CITATION:
R. v. Enofe, 2011 ONCA 653

DATE: 20111018

DOCKET: C49039

COURT OF APPEAL FOR ONTARIO

Goudge, Armstrong and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Enofe

Appellant

R. Craig Bottomley, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally:
October 3, 2011

On appeal from the sentence imposed by Justice Sutherland of
          the Ontario Court of Justice on June 3, 2008.

ENDORSEMENT

[1]

The appellant would fault the trial judge for failing to make sufficient
    inquiry as to the appellants ability to pay a restitution order.  We do not
    agree.  This was, after all, a joint submission and the trial judge was aware
    of the facts now relied on by the appellant.

[2]

However in our view the trial judge gave insufficient weight to any
    prospect that the appellant, in these particular circumstances, would in future
    come to have the ability to repay $56,000.  He was a very minor player in the
    fraud who appears to have received little personal benefit from it.  He is an
    immigrant with no family here or abroad.  He is a student in an area of study
    with very limited gainful employment prospects.  In our view, taking these
    considerations together, it is unrealistic to think the appellant could ever
    discharge this order.  It should also be remembered that if the bank thinks
    otherwise, civil proceedings are open to it.

[3]

Leave granted.  Appeal allowed.  Restitution order set aside.

S.T. Goudge J.A.

Robert P. Armstrong J.A.

Paul Rouleau J.A.


CITATION:
R. v. Kokopenace, 2011 ONCA 635

DATE: 20111007

DOCKET: M40566 and M40567 (C49961 and C48160)

COURT OF APPEAL FOR ONTARIO

Goudge, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clifford Kokopenace

Applicant

and

Clare
          Spiers

Applicant

and

Nishnawbe
          Aski Nation, Bushie Family and Pierre Family

Interveners

Heard: October 6, 2011

By the Court
:

[1]

Both the appellants and the Crown seek directions from the court about
    how to proceed with the appellants applications for disclosure of certain Band
    lists in furtherance of their constitutional challenge to their convictions.
    The issues that must be resolved in order to ultimately answer the disclosure
    question are:

(1)       Whether the Crown is able to assert public
    interest privilege over the documents;

(2)       If not, whether a
Stinchombe
process or an
OConnor
process is to be used;

(3)       Whichever of these two be used, whether
    disclosure is required.

[2]

The major difference of opinion is whether these issues should be argued
    one after the other at a single hearing as the appellants propose, or whether
    the privilege issue should be heard and decided first, as the Crown submits.

[3]

In our view these three issues should be argued at a single hearing, and
    then decided.  We recognize that this will require the giving of notice to the
    Bands whose lists are being sought.  We are of the view that this notice should
    encompass all three issues.  We recognize that the service of these notices
    carries with it the possibility that some of the Bands may wish to exercise
    their rights to attend and make submissions on all three issues.

[4]

We reach this conclusion for a number of reasons:

(1)       The primary objective of this court must
    be to proceed as expeditiously as possible to hear the constitutional challenge
    to the convictions of the two appellants on serious criminal charges.

(2)       This objective is best served by
    convening a single hearing to resolve all three issues.

(3)       Given the time estimates of counsel, the
    record necessary for the hearing of these three issues and thus disposing of
    the appellants applications can be completed in time for the single hearing to
    take place in the week set aside for these appeals in November.

(4)       The service of notices encompassing all
    three issues serves to give an element of transparency to this step in the
    process that is always desirable in the interest of justice.  The notices will
    ensure that, whoever has present custody of the lists, the Bands whose lists
    they are, will know about the proceeding and the issues that affect those
    lists.

(5)       We recognize that the giving of notice
    may pose some risk to the relations between Bands and the Crown and for the
    important work of the Iacobucci Inquiry.  That risk remains to some degree, an
    imponderable.  Although we have no direct evidence concerning the risk from the
    Bands themselves the Crown and NAN both described it.  In all the circumstances
    however, we view the risk as acceptable, particularly given an appropriately
    worded notice, a notice mandated by the court, the objective of proceeding
    expeditiously with these appeals and most importantly, an understanding that
    the objective of the process of which notice is a part is to ensure that First
    Nations accused receive a fair trial as required by the Constitution.

[5]

We therefore direct the following:

(1)       These applications encompassing these
    three issues be heard at a single hearing commencing November 28, 2011.

(2)       Notice be given to those Bands whose
    lists are referred to in paragraph 1 of the Crowns factum together with the
    two Simcoe County Band lists.

(3)       Those Bands to be served which are
    members of NAN be served through Mr. Falconer.

(4)       The remaining notices be served by the
    Crown on each non-NAN Band.

(5)       Rouleau J.A. continue his case management
    role including the time table for the completion of the application records,
    the content and timing of the notices, the time assignments for the hearing and
    all other matters necessary to have these applications heard as directed.

RELEASED: October 7, 2011 (S.T.G.)

S.T. Goudge J.A.

H.S. LaForme
    J.A.

Paul Rouleau
    J.A.


CITATION:
R. v. McGee, 2011 ONCA 642

DATE: 20111017

DOCKET: C53109

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and Sharpe JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

John Vincent McGee

Appellant

Candice Suter, for the appellant

Scott Latimer, for the respondent

Heard and endorsed: October 12, 2011

On appeal from sentence imposed by Justice Charles Hackland of
          the Superior Court of Justice, dated December 15, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The sentencing judge gave cogent reasons for imposing a consecutive
    sentence on the Ottawa charges. We see no basis for interfering with his
    discretion in that regard.

[2]

As for the disparity in the length of the sentences imposed on the
    appellant and his co-accused Mr. Paul, we are satisfied that there were several
    factors that warranted the disparity, including the appellants longer criminal
    record, the fact that Mr. Paul pled guilty, and the assistance he provided
    the Crown in its prosecution of the appellant on the Ottawa charges.

[3]

In the circumstances, we are not persuaded that the disparity in
    sentencing resulted in an injustice to the appellant.

[4]

Accordingly, while we would grant leave to appeal, we would dismiss the
    appeal from sentence. We note that the appellants criminality is largely
    related to his addiction to drugs and it is our hope that if the appellant is
    motivated, he will receive treatment for his drug problem.


CITATION:
R. v. Mohamed, 2011 ONCA 627

DATE: 20111004

DOCKET: C52782

COURT OF APPEAL FOR ONTARIO

Cronk, Watt and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Rashid Mohamed

Appellant

Mohamed Rashid Mohamed, in person

Nadia Thomas, for the respondent

Heard: September 30, 2011

On appeal from the judgment of
          Justice L. Chapin, of the Ontario Court of Justice, sitting as a summary
          conviction appeal court judge, dated June 7, 2010, on appeal from the
          sentence imposed by Justice of the Peace D. Di Lorenzo, of the Ontario Court
          of Justice, dated December 2, 2008.

APPEAL BOOK ENDORSEMENT

[1]

In this appeal, the
ex parte
proceedings were properly conducted
    under s. 54(1)(a) of the
Provincial Offences Act
.  No jurisdictional issue
    arises.  We therefore see no merit in this appeal.  If any error occurred, it
    was in the reduction of the minimum fine after an
ex parte
trial.  An
    alternative statutory remedy exists for the appellant under s. 69(9) of the
POA
to seek reduction of the fine on the basis of an inability to pay.

[2]

The appeal is dismissed.