CITATION:
Ontario (Attorney
          General) v. Lee, 2011 ONCA 444

DATE: 20110609

DOCKET: C52494

COURT OF APPEAL FOR ONTARIO

Blair, Watt and Epstein JJ.A.

BETWEEN

Attorney General of Ontario

Applicant (Respondent in appeal)

and

170 Glenville Road, King [PIN: 03407-0007(LT) (IN REM)
          and Wing
Kwong
Lee

Respondent (Appellant)

J. Thomas Curry and P.E.
Veel
, for the appellant Wing
Kwong
Lee

Robin
Basu
and Leslie
Zamojc
, for the applicant (respondent in
          appeal)

Heard & released
          orally:
June 2, 2011

On appeal from the order of Justice Hugh K. OConnell of the
          Superior Court of Justice dated July 2, 2010.

ENDORSEMENT

[1]

Mr. Lee seeks to set aside the order of Justice Hugh K.
    OConnell dated July 2, 2010 granting the Crowns application for forfeiture of
    lands owned by him at 170 Glenville Road in King, Ontario.  The property was forfeited pursuant to s.
    8(1) of the
Civil Remedies Act
, 2001
    S.O. 2001,
ch
. 28.

[2]

Mr. Lee purchased the property in late November 2005
    and testified that he did so for purposes of a residential property for his
    family and as a future investment for his teenage daughter.  It was never used for either purpose.

[3]

In April 2006, the police began an investigation of the
    property and on April 20, executed a search warrant that led to the discovery
    of a sophisticated marijuana grow operation capable of generating $1 million in
    revenue each three month grow period.

[4]

No criminal charges were ever laid against Mr. Lee, or
    anyone else, with respect with the grow operation.  The Attorney General of Ontario sought and
    obtained forfeiture of the property pursuant to Ontarios
Civil Remedies Act.

[5]

Mr. Lees defence to the forfeiture application was
    essentially that he had leased the property to a man he knew only as Stephen
    and had nothing to do with, or knowledge of, the marijuana grow operation.  He said he had met Stephen through a friend
    of a friend at Casino Rama and agreed at that time to lease the property to him.  He did not know Stephens last name or
    where to contact him.  He made no
    inquiries about the background, business or employment status of the man to
    whom he was leasing his $457,000 property investment that was made apparently
    for his daughters benefit.  Rental
    payments, he said, were made in cash.  While he said there was a lease, none was ever produced.  Phone bills, propane bills and hydro bills in
    his name were delivered to the house, but the tenant was to look after them,
    he said.

[6]

Not
    surprisingly, the application judge rejected the story outright.

[7]

In these circumstances, the question whether Mr. Lee
    was a responsible owner as contemplated by s. 8(3) of the
Civil Remedies Act
does not arise.

[8]

Mr. Curry submits that the application judge erred in
    making his factual findings and drawing inferences by way of application and
    that he should have directed the trial of an issue.  We do not agree.  There may well be cases where a trial is
    called for in proceedings of this nature, but this is not one of them.  We observe, first, that no one asked the
    application judge to direct the trial of an issue.  Secondly, this is not a case where there was
    conflicting testimony that had to be resolved in any significant way.  No one was putting forward a different
    version of the story presented by Mr. Lee.  The application judge simply rejected his explanation.  Once that rejection occurred, virtually
    everything in Mr. Lees favour from an evidentiary standpoint fell by the
    wayside.

[9]

We would not give effect to this ground of appeal.

[10]

Mr. Curry further submits that the application judge
    erred in law by failing to address his mind to the issue of whether there was
    evidence to the contrary rebutting the presumption established in s. 7(2) of
    the Act that evidence of past unlawful activity with respect to the property is
    proof that the property is likely to be used to engage in unlawful activity and
    therefore is an instrument of unlawful activity and subject to forfeiture to the
    Crown under s. 8(1).  Again, we do not
    agree.

[11]

The application judge did not specifically deal with
    this question at any one point in his reasons.  When the reasons are viewed as a whole, however, it is clear that he
    considered that argument as presented by the appellant and that during the
    course of his findings on the evidence, he rejected it.  He found that the property had been acquired
    for the express purpose of developing a marijuana grow operation and
    characterized the police officers description of the extensive operation as
    apt (indicating that he inferred it was intended to be a long term
    enterprise).  He rejected Mr. Lees
    assertions to the contrary [as] merely bold statements, unfounded in either
    inference that can be drawn from factual underpinnings or as beacons of common
    sense.

[12]

There was ample basis on the record for the application
    judge to conclude  as we are satisfied he did  that there was a complete
    absence of evidence to the contrary as contemplated by s. 7(2).

[13]

Finally, we see no basis for interfering with the
    application judges discretionary finding against the submission that it would
    not be in the interests of justice to make the forfeiture order, as
    contemplated in s. 8(1) of the Act.  The
    law with respect to this concept has recently been articulated by this court in
AG Ont. V. 8477 Darlington Crescent et
    al.
, 2011 ONCA 363.  The application
    judge did not have the benefit of this decision and did not approach his
    analysis in exactly the same fashion.  We
    are satisfied, however, that in substance, he applied the essential principles
    underlying
Darlington
, that he did
    not fail to take into account any material considerations and that it was open
    to him on the record to arrive at the conclusion he did.

[14]

Accordingly, the appeal is dismissed.  The respondent is entitled to its costs fixed
    in the amount of $4,500 all inclusive.

R.A. Blair J.A.

David Watt J.A.

Gloria Epstein J.A.


CITATION:
Ontario
          (Labour) v. Black & McDonald Limited, 2011 ONCA 440

DATE: 20110609

DOCKET: C51467

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty
          The Queen In Right of Ontario

(Ministry of Labour)

Appellant

and

Black
        & McDonald Limited and Thomas G. Fuller & Sons Ltd.

Respondents

D.R. McCaskill, for the appellant

Don Rasmussen, for the respondent
          Thomas G. Fuller & Sons Ltd.

Norm Keith and Anna Abbott, for
          the respondent Black & McDonald Limited

Heard: December 6, 2010

On appeal from the judgment of
          Justice Denis J. Power of the Superior Court of Justice dated July 29, 2009,
          with reasons reported at (2009), 83 C.L.R. (3d) 44.

Laskin J.A.:

A.
Introduction

[1]

The
    issue on this appeal is whether the provincial offences appeal court judge erred
    in law in upholding the dismissal of three counts  counts 1, 2 and 4  in an
    information.  The case arises out of the
    death of an employee of the respondent Black & McDonald Limited at a
    construction site in Ottawa.

[2]

The
    City of Ottawa hired the respondent, Thomas G. Fuller and Sons Ltd., as the
    general contractor on a project to upgrade the Fleet Street Pumping
    Station.  Fuller retained Black &
    McDonald as a subcontractor.  Yves
    Blondin, a supervisor with Black & McDonald, was accidentally killed during
    the construction.

[3]

The
    Ministry of Labour laid charges under the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1 against both Fuller and Black
    & McDonald in an eight count information, of which counts 6, 7 and 8 were later
    withdrawn.  Counts 1, 2 and 3 laid
    charges against Fuller; counts 4 and 5 laid charges against Black &
    McDonald.

[4]

After
    a seven day trial in the Ontario Court of Justice, the trial judge convicted
    Fuller on count 3 and Black & McDonald on count 5, and fined each
    respondent $85,000.  However, the trial
    judge dismissed counts 1, 2 and 4, holding that they were duplicitous and
    fail to disclose an offence, in clear and simple terms.  Each respondent appealed its conviction.  The Crown cross-appealed against the
    dismissal of counts 1, 2 and 4, and against the sentences.

[5]

On
    appeal, the appeal court judge set aside the convictions and entered
    acquittals.  He concluded that each
    respondent had made out the defence of due diligence.  The appeal court judge also dismissed the
    Crowns cross-appeal.

[6]

In
    respect of counts 1, 2 and 4, although he did not agree with all of the trial
    judges reasoning, the appeal court judge concluded that the trial judge had
    reached the correct result.  In the
    appeal court judges view, there was duplication or overlapping among all five
    counts and the trial judge had exercised his discretion reasonably in reducing
    the number of counts against each respondent to one.

[7]

The
    Crown sought leave to appeal under s. 131 of the
Provincial Offences Act
, R.S.O. 1990, c. P.33.  Armstrong J.A. denied leave to appeal from
    the acquittals on counts 3 and 5.  However, he granted leave to appeal from the dismissal of counts 1, 2
    and 4.  He wrote that the Crown has
    raised a question of law concerning the validity of the charges, the answer to
    which  is essential for the due administration of justice.

[8]

For
    the reasons that follow, I would allow the Crowns appeal, and order a new
    trial on counts 1, 2 and 4.

B.
Additional
    Facts

[9]

The
    Fleet Street Pumping Station provides clean drinking water to commercial and
    residential buildings in the Ottawa area.  Fuller was hired to do the main construction work at the station.  Its work included laying large pre-cast
    concrete pipe sections in the underground trenches in order to carry water from
    the pumping station.  Fuller had not
    performed this type of installation before, so it brought in Black &
    McDonald as a mechanical subcontractor.  Black & McDonald had some experience with this installation, and
    provided both workers and a supervisor.

[10]

A
    wooden framework was used as a brace to pull the pipe sections into place.  On the day of the incident  February 21,
    2006  Mr. Blondin went down in the trenches.  A vertical section of the wooden framework snapped.  A piece broke off, struck Mr. Blondin in the
    head and killed him.  The Crowns theory
    was that the wooden framework was not designed or constructed to resist the
    forces to which it was subjected.

C.
The Relevant Legislation and the Charges

(a)
The
    Legislation

[11]

Charges
    were laid under s. 23(1)(a), s. 23(1)(b), s. 25(1)(c) and s. 25(2)(h) of the
Occupational Health and Safety Act
and
    under s. 31(1)(a) of O. Reg. 213/91 under the Act.

[12]

Section
    23(1)(a) states:

A constructor shall
    ensure, on a project undertaken by the constructor that,

(a) the measures and procedures
    prescribed by this Act and the regulations are carried out on the project;

A general contractor  as Fuller
    was on the Fleet Street Pumping Station project  is a constructor under the
    Act.  A constructor has overall
    responsibility for safety at a construction project.

[13]

Section 23(1)(b) states:

A constructor shall
    ensure, on a project undertaken by the constructor that,

(b) Every employer and every worker
    performing work on the project complies with this Act and the regulations;

[14]

Section 25(1)(c) states:

An employer shall
    ensure that,

(c) The measures and procedures
    prescribed are carried out in the workplace;

Black & McDonald was an
    employer under the Act and it employed Mr. Blondin.

[15]

Section 25(2)(h) states:

(2) Without limiting
    the strict duty imposed by subsection (1), an employer shall,

(h) take every precaution reasonable in the
    circumstances for the protection of a worker;

[16]

O. Reg. 213/91 regulates construction projects.  Section 31(1) addresses project design and
    construction:

Every part of a
    project, including a temporary structure,

(a) shall be designed and constructed to support or resist all loads and forces to
    which it is likely to be subjected without exceeding the allowable unit stress
    for each material used;

(b)
The Counts

[17]

The Crown was granted leave to appeal the dismissals on
    counts 1, 2, and 4, but not the acquittals on counts 3 and 5.  However, to put counts 1, 2, and 4 in
    context, I list all five counts:

Count 1
 That Thomas G. Fuller and Sons Ltd.
    did commit the offence of failing, as a constructor, to ensure that every part
    of a project was designed and constructed to support or resist all loads and
    forces to which it is likely to be subjected, contrary to sec. 31(1)(a) of
    Ontario Regulation 213/91, at a workplace located at 10 Fleet St., Ottawa,
    Ontario, Fleet Street Pumping station, contrary to section 23(1)(a) of the
Occupational Health and Safety Act
,
R.S.O. 1990 c. O.1
, as amended.

Count 2
 AND FURTHER THAT Thomas G. Fuller and
    Sons Ltd.  did commit the offence of failing, as a constructor, to ensure that
    every employer and every worker performing work on a project complied with the
    OHSA and its regulations, at a workplace located at 10 Fleet St., Ottawa,
    Ontario, Fleet Street Pumping station, contrary to sec. 23(1)(b) of the
Occupational Health and Safety Act
,
R.S.O. 1990, c. O.1
, as amended.

PARTICULARS: The defendant failed to ensure that
    an employer, Black and McDonald Limited, complied with the provisions of sec.
    31(1)(a) of Ontario Regulation 213/91.  A worker, Yves Blondin, was
    killed.

Count 3
 AND FURTHER THAT Thomas G. Fuller and
    Sons Ltd.  did commit the offence of failing, as an employer, to take every
    precaution reasonable in the circumstances for the protection of a worker, at a
    workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping station,
    contrary to sec. 25(2)(h) of the
Occupational
    and Safety Act
,
R.S.O. 1990, c.O.1
, as amended.

PARTICULARS:
The
    defendant failed to take the reasonable precautions of:

a) determining and/or limiting the forces
    and load applied to a wooden frame.

b) conducting a pre job hazard analysis.

A worker, Yves Blondin, was killed.

Count 4
 AND FURTHER THAT Black and McDonald
    Limited  did commit the offence of, failing, as an employer, to ensure that
    every part of a project was designed and constructed to support or resist all
    loads and forces to which it is likely to be subjected, contrary to sec.
    31(1)(a) of Ontario Regulation 213/91, at a workplace located at 10 Fleet St.,
    Ottawa, Ontario, Fleet Street Pumping station, contrary to section 25(1)(c) of
    the
Occupational Health and Safety Act
,
R.S.O. 1990, c. O.1
, as amended.

Count 5
 AND FURTHER THAT Black and McDonald
    Limited  did commit the offence of failing, as an employer, to take every
    precaution reasonable in the circumstances for the protection of a worker, at a
    workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping
    station, contrary to sec. 25(2)(h) of the
Occupational
    Health and Safety Act
,
R.S.O. 1990, c. O.1
, as amended.

PARTICULARS: The defendant failed to take
    the reasonable precautions of:

a) determining and/or limiting the forces
    and load applied to a wooden frame.

b) conducting a pre job hazard analysis.

A
    worker, Yves Blondin, was killed.

[18]

As is
    apparent, the subject matter of counts 1, 2, and 4 differs from the subject
    matter of counts 3 and 5.  Counts 1, 2
    and 4 all allege a failure to comply or a failure to ensure compliance with the
    design and construction requirement in s. 31(1)(a) of the Regulation.  Counts 3 and 5 allege a failure to take
    reasonable precautions for the protection of Mr. Blondin.

D.
Analysis

(a)
Reasons of the trial
    judge

[19]

The
    trial judge gave two reasons for dismissing Counts 1, 2, and 4.  First, the counts are duplicitous.  Second, the counts contain allegations that
    are convoluted, disingenuous, vague and ambiguous, and in some instances
    barely discloses an offence.  In short,
    according to the trial judge, counts 1, 2, and 4 fail to disclose an offence,
    in clear and simpler terms and [a]bsent particulars a defendant might be
    hard-pressed to decipher what it is they have done wrong.  In my view, each reason given by the trial
    judge amounts to an error of law.

(i)
The counts
    are not duplicitous

[20]

The
    trial judge appears to have confused a count that is duplicitous with a count
    that duplicates or overlaps another count.  A count is duplicitous if it offends the single transaction rule  that
    is, it joins separate and distinct offences in the same count: see
R. v. Papalia
, [1979] 2 S.C.R. 256;
R v. Selles
(1997), 34 O.R. (3d) 332
    (C.A.).  The single transaction rule is
    codified s. 25(2) of the
Provincial
    Offences Act
:

Each
    count in an information shall in general apply to a single transaction and
    shall contain and is sufficient if it contains in substance a statement that the
    defendant committed an offence therein specified.

[21]

Here,
    each count alleges a single offence.  No
    count offends the single transaction rule.  Neither Fuller nor Black & McDonald suggested otherwise.  Additionally, a number of counts in an
    information, each arising out of the same incident and even overlapping or
    duplicating each other, does not create a duplicitous charge.  A single incident may give rise to multiple
    charges.

[22]

However,
    even if the trial judge used the word duplicitous to try to express his view
    that the counts were repetitive, he erred in dismissing counts 1, 2 and 4 on
    that basis, as I will explain below.

(ii)
The counts
    disclose an offence in clear terms and with sufficient particulars

[23]

The
    trial judge was obviously concerned, from the way the charges were drafted,
    that Fuller and Black & McDonald would not know the case against them.  However, each count is drafted precisely in
    the wording of the relevant sections of the Act and s. 31(1)(a) of the
    Regulation.  Offences drafted in the words
    of a statute or a regulation are presumed to be valid.  For example, in
R. v. Rowley
(1972), 7 C.C.C. (2d) 230, at p. 232, a majority of
    this court upheld the validity of an information [h]aving regard to the fact
    that the information does charge an offence and charges that offence in the
    exact wording of the section of the Code under which it was laid.  See also
R.
    v. Milberg
(1987), 35 C.C.C. (3d) 45 (Ont. C.A.), at pp. 49-50.

[24]

A
    defendant is entitled to sufficient particulars of each charge.  Section 25(6) of the
Provincial Offences Act
states:

A count
    shall contain sufficient detail of the circumstances of the alleged offence to
    give to the defendant reasonable information with respect to the act or
    omission to be proved against the defendant and to identify the transaction
    referred to.

[25]

The
    five counts in the information complied with s. 25(6).  Some particulars were given.  Neither Fuller nor Black & McDonald asked
    for more particulars.  Neither claimed
    that it did not know what it was charged with or that any of the charges failed
    to disclose an offence.  The trial judge
    dismissed counts 1, 2, and 4 on his own initiative, and he was wrong to do so.

(b)
Reasons of the Appeal Court

[26]

The
    provincial offences appeal court judge exacerbated the trial judges
    errors.  He gave two reasons of his own
    for upholding the dismissal of counts 1, 2 and 4.  First, he said, there is definitely
    duplication and/or overlapping between all five counts.  Second, he said that the trial judge had
    exercised his discretion reasonably in reducing the number of counts to one
    against each defendant.  I do not agree
    with either reason.

(i)
The counts can overlap

[27]

I
    accept that some of these counts overlap with others; however, that does not
    make any of the counts objectionable.  A
    single incident may give rise to more than one charge.  As Cory J.A. said in
Milberg
at p. 49, It is manifest that many offences are capable of
    being committed in more ways than one under the provisions of the Code.

[28]

The
    trial judge should have adjudicated on all five counts and made findings on
    each of them.  If he convicted either or
    both defendants on all charges, he could then decide whether to conditionally
    stay one or more charges under the rule against multiple convictions:  see
R.
    v. Kienapple
, [1975] 1 S.C.R. 729;
R.
    v. Provo
, [1989] 2 S.C.R. 3.

(ii)
The appeal court judge erred in holding that
    the trial judge could collapse a valid information

[29]

The appeal court judge was wrong to say that the trial
    judge had discretion to reduce the number of counts to one count against each
    defendant.  No such discretion
    exists.  A trial judge cannot collapse an
    information by dismissing some of the counts simply because those counts may
    overlap with other counts arising out of the same incident.  To give a trial judge that discretion would
    improperly interfere with the Crowns discretion to lay the charges it deems
    appropriate.  The appeal court judge
    therefore erred in upholding the dismissals on counts 1, 2, and 4.

[30]

In this court, Fuller and Black & McDonald put
    forward two other bases to dismiss the appeal.  First, they argue that the trial ought to have applied
Kienapple
to counts 1, 2 and 4 because
    they were subsumed in the two more general counts, 3 and 5.  Second, they argue that their due diligence
    defence, which succeeded on counts 3 and 5 before the appeal court judge, is
    bound to succeed on counts 1, 2, and 4.  I do not accept either argument.

[31]

As the Supreme Court of Canada made clear in
Provo,
the application of the rule in
Kienapple
against multiple convictions
    does not result in an acquittal; it results in a conditional stay.  Therefore, assuming the trial judge had made
    findings of guilt on all five counts, even if he had applied
Kienapple
to counts 1, 2 and 4, at most
    he could have ordered a conditional stay.  He could not have acquitted the defendants or dismissed the charges
    against them.  And once the appeal court
    judge overturned the findings of guilt on counts 3 and 5, the conditional stays
    on counts 1, 2 and 4 would have been set aside and the findings of guilt on
    these counts restored.

[32]

The defendants due diligence defence succeeded on
    counts 3 and 5.  That does not necessarily
    mean a due diligence defence would succeed on counts 1, 2 and 4.  As I said earlier, counts 3 and 5 are aimed
    at different conduct from counts 1, 2 and 4.  The two sets of counts may overlap each other but they do not duplicate
    each other.  Counts 3 and 5 address the
    alleged failure of Fuller and Black & McDonald to take reasonable
    precautions at the construction site to protect Mr. Blondin.  Counts 1, 2, and 4 address alleged design and
    construction deficiencies in the pipe and wooden framework.  If Fuller and Black & McDonald have a due
    diligence defence to counts 1, 2 and 4, they must establish that defence at
    trial.

E.
Conclusion

[33]

The
    trial judge erred in law in dismissing counts 1, 2 and 4.  The appeal court judge erred in upholding the
    dismissals.  I would allow the Crowns
    appeal, set aside the dismissals and order a new trial on counts 1, 2 and 4.

John Laskin J.A.

I agree M. Rosenberg J.A.

I agree Gloria Epstein J.A.

RELEASED:  June 09,
    2011


CITATION:
Ortolan
v. Hotel-
Dieu
Grace Hospital, 2011 ONCA 456

DATE: 20110616

DOCKET: C51612

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Simmons and Armstrong JJ.A.

BETWEEN

Regina Ortolan, Valerie Ferraro and Alida Demarco

Plaintiffs (Respondents)

and

Hotel-Dieu Grace Hospital and
Estate of R.R.
          Anderson

Defendants (
Appellant
)

Ronald G. Slaght and Dena Varah, for the appellant, Estate of R.R.
          Anderson

Claudio Martini, for the respondents

Heard: June 2, 2011

On appeal from the judgment of Justice Joseph G. Quinn of the
          Superior Court of Justice dated January 8, 2010.

By The Court:

[1]

The appellant appeals from a judgment awarding
    damages to the respondents on account of medical malpractice arising from
    stomach surgery performed by Dr. Anderson on Mr. Francesco Ortolan on November
    26, 1999.

[2]

Following the November 26, 1999 surgery, a feeding
    tube inserted during the surgery became dislodged with the result that Mr.
    Ortolans abdominal cavity became infected, leading to his untimely death.

[3]

The narrow factual issue the trial judge had to
    determine was whether or not Dr. Anderson sutured the jejunum (small intestine)
    to the abdominal wall, one of three sutures required to be performed to meet
    the standard of care for insertion of a feeding tube.

[4]

Dr. Anderson died in 2002 before examinations for
    discovery were held.

Accordingly,
    the only direct evidence before the trial judge concerning what happened during
    the November 26, 1999 surgery was two operative notes prepared by Dr. Anderson
     one relating to the November 26, 1999 surgery and the other relating to a
    second surgery performed on December 2, 1999 after Mr. Ortolans condition
    deteriorated.

[5]

The initial operative note dated November 26, 1999
    makes no reference to any of the three necessary sutures required to meet the
    standard of care.

[6]

The trial judge seized upon this omission and
    also:

·

relied upon the evidence of the respondents expert
    to the effect that a statement by Dr. Anderson in a second operative report
    relating to a subsequent December 2, 1999 surgery  that the jejunum was attached did not mean
    sutured;

·

rejected the appellant's experts opinion that the
    December 2, 1999 reference to attached did mean sutured;

·

relied on the fact that neither expert witness had
    experienced a situation in which a properly secured feeding tube had become
    dislodged;

to
conclude that that
    the jejunum had not been sutured to the abdominal wall and that the standard of
    care had therefore been breached.

[7]

In our view, in analyzing the evidence in this way,
    the trial judge fell into error.
[8]            In the
    December 2, 1999 operative report, Dr. Anderson made the observation that the
    feeding tube had recoiled into the abdominal wall and that feed had leaked a
    little bit through
right where the
    jejunum was attached
(emphasis added).
[9]

Considered
    in context, the reasonable and obvious meaning of attached as it appears in
    the December 2, 1999 operative report is sutured.
[10]

In describing
    the
jejunum
as attached,
    Dr. Anderson was not describing a step taken during the December 2, 1999
    surgery. Rather, he was describing the situation he encountered when he re-opened
    the patient on that date. As was explained by the appellants expert, Dr.
    Anderson would have been able to make this observation by taking down the
    sutures he originally made.
The concessions made by the respondents
    expert, Dr. Colapinto, in cross-examination that when something is sutured it
    is attached and that at least one of the other two sutures necessary to meet
    the standard of care for inserting a feeding tube were performed, even though
    not referred to in the November 26, 1999 operative report, support this
    conclusion.
[11]

In all the circumstances, in our view, it was
    simply not open to the trial judge to prefer Dr. Colapintos opinion evidence
    over the only direct evidence at trial concerning the steps taken during the
    November 26, 1999 surgery.
[12]

The evidence of the experts who testified at trial
    concerning whether Dr. Anderson sutured the jejunum to the abdominal wall was
    neither direct evidence nor fact evidence; rather, it was opinion evidence
    premised largely on a review of the two operative reports.
[13]

Further, there was no physical evidence that
    supported the opinion of Dr. Colapinto that the word attached as it appears
    in the December 2, 1999 operative report does not mean sutured. In particular,
    there was no physical evidence to support the conclusion that Mr. Ortolans
    stomach cavity was infected with jejunum contents as well as feed.
[14]

Finally, as
    was noted by the respondents expert, the possibility that the jejunum could
    have attached naturally at the exact location on the abdominal wall where the
    feeding tube was located was remote in the extreme.
[15]

Moreover,
    contrary to the trial judges line of reasoning, the fact that the feeding tube
    became dislodged did not support the conclusion that Dr. Anderson failed to
    suture the
jejunum to the abdominal wall.
[16]

As noted above, in his December 2, 1999 operative
    report, Dr. Anderson observed that the feeding tube had recoiled into the
    abdominal wall. Although perhaps rare, there was no dispute that this is a
    known complication arising from insertion of a feeding tube. The fact that this
    complication occurred could not assist in determining whether Dr. Anderson
    sutured the jejunum to the abdominal wall.
[17]

Considered
    in context, in our opinion, it is unreasonable to conclude that attached as
    it appears in the December 2, 1999 operative report means anything other than sutured.
This is
    particularly so when the respondents expert, Dr.
Colapinto
,
    conceded in cross-examination that sutured and attached mean the same
    thing.
[18]

In his December 2, 1999 operative report, Dr.
    Anderson described exactly what happened in clear terms:
I realized then that [the feeding tube] had
    recoiled and gone right into the abdominal wall .
and
there was a collection the size of my fist in the abdominal wall that had
    leaked a little bit through right where the jejunum was attached
This is disappointing because the #8 feeding tube
    was sutured with
an
0
Ethibond
which is almost as big as the tube and yet even this would not hold it.
[19]

In lay
    terms, what Dr. Anderson was saying was that the outer suture attaching the
    feeding tube to the skin came undone with the result that the feeding tube slid
    into the abdominal wall and some of the feed, which was being pumped through
    the abdominal wall under pressure, leaked out where the jejunum was attached to
    the abdomen. This was an unfortunate and tragic accident that resulted in the
    untimely death of Mr.
Ortolan
, but it was not caused
    by any negligence on the part of Dr. Anderson.
[20]

In the result,
    we allow the appeal, set aside the trial judges order and substitute an order
    dismissing the action.
[21]

Costs of
    the appeal are to the appellant in the amount of $15,000 inclusive of
    disbursements and all applicable taxes as agreed upon by the parties.

Signed:           Winkler C.J.O.
Janet Simmons J.A.
Robert P. Armstrong J.A.
RELEASED: WW June 16, 2011


CITATION:
R. v. Akalu, 2011 ONCA 438

DATE: 20110607

DOCKET: C51535

COURT OF APPEAL FOR ONTARIO

Laskin, Gillese, Karakatsanis JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Toni Akalu

Appellant

Christopher Biscoe, for the appellant

Andrea Baiasu, for the respondent

Heard: June 6, 2011

On appeal from the judgment of Justice Bonnie Wein of the
          Superior Court of Justice dated January 19, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction on the basis that the verdict is
    unreasonable.  He relies on Mr. Lees unreliable bookkeeping.  However, as the
    Crowns factum makes clear, Mr. Lees bookkeeping is irrelevant to the finding
    of fraud.  In convicting the appellant, the trial judge was entitled to rely on
    the evidence of Ms. Nicoletti.  In the light of her evidence and the defences
    admission that the appellant received the money in question from the joint
    venture, the verdict of guilt is amply supported by the evidence.

[2]

The appeal is dismissed.


CITATION: R. v. Anantharajah, 2011
      ONCA 450

DATE:  20110610

DOCKET: C52723

COURT OF APPEAL FOR ONTARIO

Doherty, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Premananth Anantharajah

Appellant

Gordon Cudjoe, for appellant

Gavin MacDonald, for the respondent

Heard:  June 10, 2011

On appeal from the conviction entered by Justice D. Hackett,
          of the Ontario Court of Justice dated July 29, 2010 and the sentence imposed
          dated September 20, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The admissibility of the statement turned on credibility assessment and
    findings of fact.  The law is not in dispute.  The trial judges findings are
    reasonable and reveal no misapprehension of the material evidence.  We cannot
    interfere.  The conviction appeal must be dismissed.

[2]

The sentence imposed was not unfit.  Given the nature of the offence, a
    jail term was appropriate.  Nine months was within the range.

[3]

The appeal is dismissed.


CITATION: R. v. Beausoleil, 2011 ONCA 471

DATE: 20110622

DOCKET: C48999

COURT OF APPEAL FOR ONTARIO

Simmons,

Rouleau
and
Karakatsanis
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher

Beausoleil

Appellant

Philip Campbell and
Vanora
Simpson, for
          the appellant

Gillian Roberts, for the respondent

Heard: March 9, 2011

On appeal from the conviction entered by Justice Paul U.
Rivard
of the Superior Court of Justice, sitting with a
          jury, on November 26, 2007.

By the Court
:

[1]

The appellant appeals from his conviction for second
    degree murder.

[2]

During the late evening of February 27, 2006 and just
    into the early morning of February 28, 2006, the appellant and five friends
    were drinking in an apartment in Toronto. The appellant and his close friend,
    Ryan
Horlock
, became involved in an argument. The
    argument became physical  involving at least pushing and shoving  and others
    intervened to separate the two young men on more than one occasion. The
    appellant was described as being angry. When Mr.
Horlock
left the apartment, the appellant followed him down the hall to the 8
th
floor elevator lobby and stabbed him once in the chest with a kitchen knife. The
    single stab wound
transected
Mr.
Horlocks
heart. Although he was able to take the elevator downstairs and walk outside
    before collapsing, he died on the operating table a few hours later.

[3]

There was no dispute at trial that it was the appellant
    who stabbed Mr.
Horlock
. The only issue was whether
    the appellant had the requisite intent for murder. The appellants four other
    friends testified at trial; the appellant did not.

[4]

The evidence at trial indicated that the six young men
    consumed about 44 bottles of beer and close to 50 ounces of rum between about
    10:15 p.m. on February 27, 2006 and just before 1 a.m. on February 28, 2006.
    All agreed that the appellant was one of the heavier drinkers during the
    evening  meaning that he likely consumed more than 16 drinks in
under
three hours.

[5]

The defence theory at trial was that the appellant and
    the victim were extremely close friends and that whatever issues they may have
    been arguing about would not have prompted the appellant to want to kill his
    friend. The defence contended that the appellant stabbed Mr.
Horlock
because he was drunk  so drunk he could not
    foresee the likelihood of death ensuing as a consequence of his actions. The
    defence also pointed to the relatively minimal force of the blow and the
    absence of follow-up blows as demonstrating the absence of
an
    intent
to kill.

[6]

The Crowns theory was that the appellant was so angry
    at the victim immediately prior to the stabbing that he was literally frothing
    at the mouth  and shouting words along the lines of you shouldnt have fucked
    with me or you shouldnt have messed with me.  According to the Crown, the appellants
    conduct in immediately cleaning the knife following the stabbing and in
    crafting lies about who he was and what he was doing when he later encountered
    the police demonstrated that he was lucid enough to form the intent for murder.

[7]

The appellant raises two main issues on appeal:

i)

Did the trial judge err in failing to provide a
    limiting instruction concerning the use of bad character evidence?

ii)

Did the trial judge err in his instructions to the jury
    concerning

mens

rea
and intoxication?

[8]

For the reasons that follow, we would dismiss the
    appeal.

1. Did the trial judge err in failing to
    provide a limiting instruction concerning the use of bad character evidence?

(
i
) Background

[9]

The bad character evidence adduced at trial consisted
    of evidence relating to the appellants lifestyle (such as evidence of the
    appellants frequent and heavy consumption of alcohol and drugs and fraudulent
    receipt of welfare cheques at an address at which he did not reside) as well as
    evidence of other criminal activity on the part of the appellant. The latter
    evidence consisted largely of evidence arising from encounters between the
    appellant and the police shortly after the stabbing.

[10]

Within an hour of Mr.
Horlocks
death, a police officer encountered the appellant in the stairwell between the
    eighth and ninth floors of the apartment building. The appellant gave a false
    name and also claimed that he did not have any identification. After the
    officer noticed the appellants wallet in his pocket, the appellant admitted
    that he had lied about his name and acknowledged he should not have. He said he
    was going to an apartment on the eighth floor to buy marijuana.

[11]

The officer and his partner determined that the
    appellant was subject to a conditional sentence order and a bail order. Both
    orders prohibited the appellant from consuming alcohol and required that he
    abide by a curfew. The officers arrested the appellant for breaching the two
    orders.

[12]

According to the officers, once arrested, the appellant
    became aggressive and confrontational. He told the officers his lawyer would
    eat [them] alive. He claimed that he was 21 and one in court and that Judge
    Sheppard wont do anything to [him]. The appellant also called the officers
    offensive names, kicked one of them and, as a result, had to be restrained.

[13]

At the police station, the appellant boasted, 54
    Division has never made anything stick on me. As a result of kicking one of
    the officers while at the apartment building, the appellant was charged with
    assault police.

[14]

Defence counsel at trial did not object to the
    admissibility of any of the foregoing evidence, effectively acknowledging that
    it was admissible to permit an understanding of the unfolding of events on the
    night in question and of the appellants pattern of alcohol and drug
    consumption  and also to assist in assessing the appellants level of
    intoxication.

[15]

However, defence counsel did object when the Crown
    sought to call a witness to identify Judge Sheppard as the judge who had
    imposed the conditional sentence order on the appellant. Defence counsel submitted
    that this was inadmissible bad character evidence. The trial judge agreed. He
    ruled that the Crown could make its point that the appellant was lucid enough shortly
    after the stabbing to remember the name of a Toronto judge simply by adducing
    evidence that there is a Judge Sheppard who presides over criminal matters in
    Toronto. In this regard, the trial judge held that it was unnecessary for the
    Crown to emphasize that the appellant was subject to a conditional sentence
    order.

(ii) The appellants position on
    appeal

[16]

The appellant submits that the evidence indicating that
    he was subject to a conditional sentence order and therefore had a criminal
    record, together with the evidence of other criminal activity (breaching court
    orders, assaulting a police officer) and his claims of beating criminal
    charges, was highly prejudicial in that it solidified his image as a dissolute
    and criminal character.

[17]

According to the appellant, a limiting instruction concerning
    the permissible and impermissible uses of the bad character evidence was mandatory
    in this case to caution the jury against using such evidence to reason that the
    appellant was more likely to have intended to kill Mr.
Horlock
because he is a bad man. Such an instruction would also guard against the
    possibility that the jury would find the appellant guilty of second degree
    murder to punish him for other crimes he had committed but for which he had not
    been held accountable.

[18]

The appellant points out that this evidence was
    repeated over and over again, by the Crown in her closing and by the trial
    judge in his charge, as supporting the Crowns theory that the appellant was
    lucid. The appellant argues that, in the absence of a proper caution, the jury
    would have no way of knowing they could not resort to propensity reasoning to
    find the appellant guilty of second degree murder.

(iii) Discussion

[19]

Although we agree that the trial judge should have held
    a formal pre-charge conference at which he canvassed with counsel the need for
    a limiting instruction of any kind in the circumstances of this case
[1]
and that giving a standard bad character evidence limiting instruction would
    have been appropriate, we do not accept the appellants submission that the
    failure to give such an instruction constitutes reversible error on the facts
    of this case.

[20]

This court has held on other occasions that such an
    instruction is not necessary in every case:
R. v. C.B.
(2008), 237 O.A.C. 387 (C.A.) at
para
.
    35. The requirement for such an instruction will depend on a variety of
    circumstances, including the nature and extent of the bad character evidence in
    issue
[2]
;
    the issue(s) at the trial to which the bad character evidence is properly
    relevant
[3]
;
    the likelihood that such an instruction will confuse the jury
[4]
or unnecessarily draw attention to the discreditable conduct
[5]
;
    and other factors affecting the extent of the risk that such evidence will be
    used improperly
[6]
.

[21]

On the facts of this case, we see no realistic
    possibility that the evidence in issue would be used improperly by the jury to
    assist them in concluding that the appellant was guilty of second degree murder
    as opposed to manslaughter because he is a bad man.

[22]

The evidence in issue is not similar fact evidence and
    it was not being used to support directly an inference that the appellant
    committed the offence of second degree murder. In particular, the issue in this
    case was not whether the appellant stabbed the victim; rather, it was whether
    the appellant formed one of the requisite intents for second degree murder. The
    evidence of the appellants involvement in other discreditable conduct sheds no
    real light on that issue through propensity reasoning or otherwise.

[23]

In the circumstances of this case the fact of the
    appellants involvement in other discreditable conduct was essentially incidental
    to the purpose for which the evidence of such conduct was admitted  to
    demonstrate the appellants lucidity  or lack of lucidity

at
a time proximate
    to the stabbing. And neither the trial judge nor counsel suggested to the jury
    that it could be used for any purpose other than assessing the appellants
    lucidity.

[24]

Importantly, the evidence did not disclose the nature
    of the appellants past criminal conduct  if
anything,
the fact that the appellant did not receive an actual jail sentence for his
    past misdeed(s) would have led the jury to conclude that the past conduct was not
    nearly as serious as culpable homicide. And the evidence of the appellants
    current criminal conduct, consisting of drug use, possible welfare fraud, breaching
    a curfew, breaching an alcohol prohibition and kicking a police officer while
    drunk, was essentially trivial by comparison to the offence of second degree
    murder.

[25]

We acknowledge that the evidence concerning the
    appellants interactions with the police did portray him as a somewhat volatile
    and rather belligerent drunk. However, as we have said, those interactions were
    relatively benign by comparison to his conduct in stabbing his friend. Moreover,
    particularly in the light of the evidence of the altercation between the two
    young men immediately prior to the stabbing, we see no air of reality to the
    notion that the jury would have resorted to some form of propensity reasoning
    relating to the appellants character while drunk to determine his state of
    mind at the time of the killing.

[26]

In the circumstances, we see no realistic possibility
    that the fact of undisclosed prior criminal conduct that did not result in a
    jail sentence or of current relatively trivial criminal conduct would have led
    the jury to reason that the appellant formed one of the requisite intents for
    murder in relation to his good friend

[27]

As for the appellants drunken boast of being 21 and
    one in court, in our view, the jury would have seen it for what it was  a
    drunken boast. Once again, we see no realistic possibility that the jury would
    conclude based on that statement that there was a need to punish the appellant
    for past misdeeds by convicting him not just of manslaughter but of second
    degree murder.

[28]

Defence counsel at trial neither requested the
    instruction contended for on appeal nor objected to the failure to give such an
    instruction. In our view, this supports our conclusion that such an instruction
    was unnecessary in the circumstancesno one at this trial perceived a realistic
    possibility that the jury would use the discreditable conduct evidence
    improperly to assist it in finding the appellant guilty of second degree
    murder.

2. Did the trial judge err in his instructions
    to the jury concerning
mens

rea
and intoxication?

[29]

The appellant raises four issues under this heading:

i)

The trial judge erred by instructing the jury to
    consider the defence of intoxication after making a finding of
mens

rea
for
    second degree murder;

ii)

The trial judge failed to give a sufficient instruction
    concerning the impact of alcohol consumption on the permissible inference that
    a sane and sober person intends the predictable consequences of their acts;

iii)

The trial judge erred in his instructions on motive;
    and

iv)

The trial judge failed to adequately review the
    evidence and relate it to the issues of
mens

rea
and intoxication.

(
i
) The trial judge erred by instructing the
    jury to consider the defence of intoxication after making a finding of
mens

rea
for
    second degree murder.

[30]

We agree
    that the trial judge made an obvious error in dealing with the issue of
    intoxication. In particular, the trial judge failed to insert the standard
    instructions on intoxication into the standard instructions on intent for
    second degree murder in the location recommended in
Watt J.A.s
Ontario Specimen Jury Instructions
    (Criminal)
(Toronto: Thomson Carswell, 2002). Instead, the trial judge read
    the standard instructions on intoxication after reading the standard
    instructions on intent. Further, before reading the instructions on
    intoxication, the trial judge said the following, which does not form part of
    the specimen instructions:

If you are not satisfied beyond a reasonable doubt
    that [the appellant] had either state of mind required to make his unlawful
    killing of Ryan
Horlock
murder, you must find [the appellant]
    not guilty of second degree murder but guilty of manslaughter.
If you are satisfied beyond a reasonable
    doubt that [the appellant] had either state of mind to make his unlawful
    killing of Ryan
Horlock
murder, you must consider the
    defence of intoxication
. [Emphasis added.]

[31]

At first blush, the effect of this error appears to be
    that the trial judge invited the jury to consider the effect of the appellants
    alcohol and drug consumption on his state of mind after the jury reached the
    conclusion that the appellant possessed one of the requisite intents for
    murder. Such an instruction makes no sense, because the jury is required to
    take into account the effect of alcohol and drug consumption as part of
    determining whether an accused had one of the requisite intents for murder.

[32]

That said, taking account of the trial judges general instruction
    on intent, we are not persuaded that the trial judges error in the placement
    of the intoxication instructions constitutes reversible error in the
    circumstances.

[33]

In giving his general instructions on intent, which
    preceded the erroneous instruction set out above, the trial judge instructed
    the jury to consider the whole of the evidence and also specifically instructed
    them to consider the opinions of the experts who testified about the impact of
    alcohol on ones mental functioning.

[34]

In the face of these instructions, the jury must
    inevitably have considered all of the evidence relating to intoxication when
    determining the question of the appellants intent. Although these instructions
    did not capture all of the subsequent instructions on intoxication, in our
    view, they were sufficient to alert the jury to the fact that they were
    required to consider the evidence of intoxication before making a finding
    concerning the appellants intent.

(ii) The trial judge erred by failing to give a sufficient instruction
    concerning the impact of alcohol consumption on the permissible inference that
    a sane and sober person intends the predictable consequences of their acts

[35]

Both in the course of his general instructions on
    intent and his subsequent instructions on intoxication, the trial judge gave
    the jury a standard instruction concerning the permissible inference that a
    sane and sober person intends the consequences of their acts.

[36]

The first reference to the permissible inference
    appears in the general instructions on intent. In that instance, in addition to
    telling the jury it was not a conclusion that they must reach, the trial judge said:

It is a conclusion that you may only reach,
    however, after considering all of the evidence.

[37]

Later, when dealing with the permissible inference in
    the instructions on intoxication, the trial judge said:

It is a conclusion you may only draw after
    considering all of the evidence including evidence about [the appellants]
    consumption of alcohol and drugs.

[38]

Relying on
R. v.
    Seymour
, [1996] 2 S.C.R. 252 at
para
. 23, the
    appellant argues that the trial judge erred by failing to specifically instruct
    the jury that evidence of intoxication may rebut the permissible inference.

[39]

However, in its subsequent decision in
R. v. Daley
, [2007] 3 S.C.R. 523, the
    Supreme Court explained that the critical issue is not whether particular words
    were used in the charge, but rather whether the charge adequately conveyed to
    the jury that the central question is whether the
accuseds
degree of intoxication affected his ability to foresee the consequences of his
    actions.

[40]

In this case, in our view, it would have been clear to
    the jury that they had to consider the evidence of the appellants level of
    intoxication in assessing whether he possessed one of the requisite intents for
    murder at the time of the stabbing.

(iii) The trial judge erred in
    his instructions on motive

[41]

The appellant contends that the trial judge erred in
    his instructions on motive by focussing on the Crowns reliance on the
    disagreement between the appellant and the victim and by failing to allude to
    the defences reliance on the absence of a credible motive for the killing.

[42]

The trial judges instructions on motive read as
    follows:

In this case the Crown relies on the disagreement
    between [the appellant] and Ryan
Horlock
for [the
    appellant] to commit the offence alleged. It is for you to decide whether [the
    appellant] had such a
motive,
or any motive at all,
    and how much or little you will rely on it to help you decide the case. You
    have heard evidence that [the appellant] said you shouldnt have messed with
    me after walking up to Ryan
Horlock
at the elevator.
    You also heard that upon coming back into the apartment [the appellant] may
    have said fuck that guy, I stabbed him. What [the appellant] did or said
    might help you decide whether he is guilty or not guilty of the offence. The
    first thing for you to decide is whether [the appellant] did or said these
    things. If you find that he did not say these things, you must not consider
    this evidence in reaching your verdict. If you find that he did in fact say
    these things, you should consider next whether this was because he committed
    the offence charged. If so, you should consider this evidence, together with
    all of the other evidence, in reaching your verdict. If, however, you find that
    [the appellant] did or said these things for some other reason, you should not
    consider that as evidence of guilt.

[43]

We agree with the appellants submission that the trial
    judges instructions concerning the use the jury could make of the appellants
    statements at the time of and immediately after the stabbing were unhelpful. As
    the appellant notes, there was no issue at trial that the appellant stabbed the
    victim. Moreover, an instruction to the jury to consider
whether an accused made an
    after-the-fact statement
because
he committed the offence was not
    appropriate:
R. v. Hall
(2010), 269
    O.A.C. 199 (C.A.).

[44]

We also agree that it may have been preferable had the trial judge set
    out the defence position on motive at the time of addressing the subject of
    motive generally.
However, we note that the trial judge did set out the
    defence position that the appellant and the victim were best friends and that
    the appellant had no motive to kill his friend when reviewing the position of
    the defence. Although the trial judge did so in brief compass, this was a short
    trial that focussed on a single issue. We are satisfied that the defence
    position on motive would have been apparent to the jury.

(iv) The
trial judge failed to adequately review the
    evidence favouring the defence and relate it to the issues of
mens

rea
and
    intoxication

[45]

We agree that the trial judges references to the
    evidence during the course of his legal instructions were cursory and that his
    overall review of the evidence in a witness-by-witness format was less than
    ideal. Nonetheless, as we have said, this was a relatively brief trial that
    focussed on a single issue. We are not satisfied that the manner in which the
    trial judge reviewed the evidence and related it to the issues in the case
    constitutes reversible error. Accordingly, we would not give effect to this
    ground of appeal.

Disposition

[46]

Based on the foregoing reasons, the appeal is
    dismissed.

Signed:           Janet Simmons J.A.

Paul
    Rouleau J.A.

Karakatsanis
    J.A.

RELEASED:  JS June
    22, 2011

[1]

In some instances, rather than give the standard bad
    character evidence instruction, trial judges have instructed juries that, for
    example, an
accuseds
lifestyle should play no role
    in their deliberations: for example,
R. v. Henderson
(2001),
145 O.A.C. 150 (C.A.).

[2]

For example,

in
R. v. C.B.
, evidence was led that the
    accused was being investigated by the Catholic Childrens Aid Society (CCAS)
    for an unrelated matter when his niece made allegations against him and that
    it was necessary to include the nieces allegations in the file relating to the
    unrelated matter. This court held that the prejudicial effect of the bad
    character evidence was low as no information about the unrelated matter was
    disclosed. Moreover, a limiting instruction would have drawn attention to the
    fact that the appellant was involved with the CCAS on an unrelated matter.

[3]

For example, see
R.
    v.
Merz

(1999), 140 C.C.C. (3d) 259
at 278, in which the bad character evidence
    of threats was relevant to show motive, which, in turn, constituted
    circumstantial evidence of identity and intent. Doherty J.A. stated, I see no
    reason to warn the jury against using the evidence to infer propensity and
    hence to infer that the accused committed the crime when the more direct and
    powerful inference to be drawn from that evidence is that the accused had a
    motive to kill Ms. Murray.

[4]

For example, see
R. v.
Merz
.

[5]
For
    example, see
R. v. C.B.

[6]

For example, see
R. v. L.K.W.
(1999), 138 C.C.C. (3d) 449 (Ont. C.A.). In that
    case, the accused was charged with 20 counts of physical and sexual abuse
    against his children. Evidence was led of his criminal record, which included
    convictions for assault, possession of burglary tools and theft under $200.
    This court held that although at least one of the prior offences was relevant
    to assessing the
accuseds
credibility, in the
    overall scheme of things, the prior convictions were relatively trivial in
    comparison to the offences with which the accused was charged. Moreover, it
    would be fanciful to think that the jury would have used the prior convictions
    to infer that the appellant was the type of person likely to commit the
    offences in question.


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(1), (2), or (3) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.    (1)
Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may order the
    exclusion of all or any members of the public from the court room for all or
    part of the proceedings if the judge or justice is of the opinion that such an
    order is in the interest of public morals, the maintenance of order or the
    proper administration of justice or is necessary to prevent injury to
    international relations or national defence or national security.

(2)
For
    the purpose of subsection (1), the proper administration of justice includes
    ensuring that.

(a)
the
interests of the witnesses under the age of eighteen
    years   are safeguarded in all
    proceedings; and

(b)
justice
system participants who are involved in the
    proceedings are protected.

(3)
If
    an accused is charged with an offence under section 151, 152, 153, 153.1, 155
    or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212,
    271, 272 or 273 and the prosecutor or the accused applies for an order under
    subsection (1), the judge or justice shall, if no such order is made, state,
    reference to the circumstances of the case, the reason for not making an order.
     R.S., c. C-34, s. 442; 174-75-76, c. 93,
    s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd
    Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7;
    1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16,
    34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss.
    4 and 8(3)(a).

CITATION:
R. v. Chalmers, 2011
          ONCA 433

DATE: 20110606

DOCKET: C52891

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Feldman and
LaForme
JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Edward Chalmers

Appellant

Ian N. McLean, for the appellant

Deborah Calderwood, for the respondent

Heard and released orally: May 31, 2011

On appeal from conviction entered by Justice Jean-Gilles Lebel
          of the Superior Court of Justice dated July 29, 2010.

ENDORSEMENT

[1]

We have two concerns with the trial judges reasons for
    rejecting the appellants evidence. First, the trial judge attached significant,
    if not overwhelming weight, to the appellants answer when he was first asked
    in examination-in-chief if the intercourse occurred. The trial judge understood
    the appellants answer to be not to my knowledge.

[2]

The trial judge considered that to be an equivocal
    answer and commented that: the first answer is the best answer. In fact, the appellants
    answer was not as equivocal as the trial judge understood. The answer was not
    to my knowledge, no. Moreover, the appellant repeated the no part of the
    answer, unequivocally denying the occurrence several times, both in examination-in-chief
    and in cross-examination.

[3]

We are therefore concerned that the trial judges
    misapprehension of the appellants first answer may have played an unfair role
    in his assessment of the appellants evidence.

[4]

Second, and more importantly, after referring to his
    view of the appellants answer, the trial judge said the following: As a
    result of that I am unable to make a finding of fact on the basis of his
    evidence.

[5]

The appellant submits that the trial judge erred in law
    by, in effect, requiring himself to be able to make a finding of fact on the
    basis of the appellants evidence. To the contrary, the evidence of the
    appellant can also be effective if it raises a reasonable doubt. Although the
    trial judge is presumed to know the law on
W
.(
D
.
),
his
    reference to a finding of fact is a clear error in the articulation and
    application of that case and effectively reverses the onus of proof.

[6]

On the above bases the appeal is allowed, the
    conviction set aside and a new trial is ordered.

Signed:           D. OConnor
    A.C.J.O.

K.
    Feldman J.A.

H. S.
LaForme
J.A.