COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Peterkin, 2015 ONCA 8

DATE: 20150112

DOCKET: C57756

Feldman, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mackel Peterkin

Appellant

Gary J. Grill and James M. Stevenson, for the appellant

Gillian Roberts, for the respondent

Heard: June 20, 2014

On appeal from the conviction entered on January 16, 2013
    by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2013 ONSC 165, 295 C.C.C. (3d) 87.

Watt J.A.:

[1]

A dark backyard. A trespasser. A police search. A gun. Some ammunition.
    Drugs. Cellphones. Cash. Several charges. And convictions.

[2]

The appellant, Mackel Peterkin, says the police had no authority to
    search him early that August morning. The things they found on his person
    should not have been admitted in evidence at his trial. He should not have been
    convicted. He wants another trial.

[3]

As I will explain, Peterkins convictions rest on solid ground. The
    police search was lawful. The evidence it yielded, admissible. I would dismiss
    his appeal.

THE BACKGROUND FACTS

[4]

The circumstances that precede and accompany the search of Peterkin fall
    within narrow compass.

The 911 Call

[5]

Early in the morning on August 14, 2011, a 911 operator received a
    telephone call. No one spoke. The operator called back. The line was busy. The
    operator was able to determine the call had originated from unit 132 at 296
    Grandravine Drive in Toronto. The neighbourhood is one where police respond to
    a higher than usual number of violent radio calls, including reports of
    domestic disputes, gunshots, and shootings. Two police officers were dispatched
    to check on the well-being of the occupants and otherwise investigate the call.

The Arrival of the Police

[6]

Two uniformed police officers arrived at the scene. With their
    flashlights, they checked the front and back doors of the townhouse. The doors
    were locked. The unit was in darkness. No one answered the officers knocks. They
    heard no sounds from within the unit. They saw no signs typical of an actual or
    attempted forced entry.

[7]

The front door of the unit faced the interior of the housing complex.
    The rear yard was fenced and backed onto Grandravine Drive. The fence, about
    three feet high, had a gate that opened to a patio stone walkway. The gate was
    open when police arrived. The walkway led across a grassy boulevard to the
    sidewalk along Grandravine.

The Decision to Wait

[8]

The police were concerned about the state of anyone who might be inside
    unit 132 as a result of the truncated 911 call. They decided to have the police
    dispatcher contact the landlords security service to have a security guard
    sent to open the unit.

The Stranger in the Backyard

[9]

As the officers waited for a security guard to arrive to let them into
    the unit, they noticed a man  Mackel Peterkin  walking along the sidewalk on
    Grandravine. The man turned from the sidewalk, walked across the patio stones,
    and entered the fenced backyard through the open gate. A few feet into the
    backyard, the man turned around and used his cellphone.

The Police Approach

[10]

The
    police officers walked over to the man who had entered the backyard. They
    thought he might live in the unit or know something about the 911 call. If the
    man did not live there, the officers wanted to know what he was doing in the
    backyard of a house belonging to somebody else at three oclock in the morning.

The Discussion

[11]

In
    answer to the officers questions, the man explained he did not live in unit
    132. He said he was waiting for a ride and pointed to a vehicle driving along
    Grandravine towards the townhouse. The officers did not think his responses made
    sense. Why would anyone walk into a backyard to make a telephone call to get a
    ride, rather than stand on the street to be more visible to the driver?

[12]

The
    officers thought further investigation was warranted.

The Investigative Detention

[13]

At
    about 3:15 a.m., the officers told Peterkin he was under investigative
    detention in connection with the
Trespass to Property Act
, R.S.O.
    1990, c. T.21. They wanted to find out who the appellant was and his
    connection, if any, to the townhouse.

[14]

The
    evidence the officers gave at trial about the basis upon which they
    investigatively detained Peterkin differed from what they had said at the
    preliminary inquiry and recorded in their notes. Both made reference to the
    check address 911 call as the basis for the detention, but said nothing about
    the
Trespass to Property Act
.

The
Charter
Advice

[15]

The
    police officers confirmed with Peterkin that he understood what they meant by
    investigative detention and asked whether he wanted to speak to a lawyer. In
    providing the
Charter
advice, the officers made no mention of the toll-free
    number for duty counsel or the availability of immediate free legal advice.
    They did not explain why Peterkin might want to talk to a lawyer.

[16]

Peterkin
    produced a drivers licence to confirm his identity. He declined to speak to a
    lawyer.

Peterkins Conduct

[17]

As
    the police officers waited for a response to their query, they noticed Peterkin
    tapped his right hip at waist level twice. He held his wrist at waist level. For
    them, these movements are characteristic of a person who is armed. They
    described Peterkin as blading away from them. He moved his right foot back
    and turned to his right so his left shoulder was towards and perpendicular to
    the officers. Peterkin appeared nervous to one of the officers. The officers
    did not know where Peterkin had put his cellphone after he ended his call. They
    acknowledged he could have put the phone in a holster on his hip.

[18]

When
    the officers received confirmation that there were no hits for Peterkin on
    the police information system, one of the officers returned Peterkins drivers
    licence. The officer passed the document to Peterkins right side. Rather than
    reach out for the licence with his right hand, Peterkin kept his right elbow
    tucked tightly to his body and on his right hip. He turned his whole body and
    awkwardly extended only his right forearm to take the proffered licence.

The Safety Search

[19]

Both
    officers suspected Peterkin had a firearm. They advised him they were going to
    give him a pat-down for their safety before he could be on his way. As one
    officer reached out towards him, Peterkin backed up quickly, grabbed at his
    right waist area, and yelled something. He struggled to escape. The officers
    wrestled him to the ground. He continued to reach for his right waist area,
    first with his right arm, then with his left. One of the officers felt the butt
    of a gun on the right side of Peterkins waist and removed it. The struggle
    stopped.

The Arrest

[20]

The
    officers arrested Peterkin for unlawful possession of a firearm. Peterkin confirmed
    the firearm was loaded with a bullet in the chamber. When the officers searched
    Peterkin incident to his arrest, they recovered 40 rounds of ammunition, some
    cocaine and marijuana, two cellphones, and $275.00 in cash.

The Defence Evidence

[21]

Peterkin
    testified that at about 3:15 a.m. on August 14, 2011 he was walking along the
    sidewalk on Grandravine Drive towards Driftwood Avenue. He was talking on his
    cellphone and waiting for his girlfriend, Chereta Palmer, to pick him up and
    drive him home. Police stopped him on the patio stone walkway between the
    public sidewalk and the backyard of unit 132. He never reached the backyard. He
    said he was stopped regularly by the police; about two to four times each week.
    He surrendered his drivers licence because he thought he had no choice but to
    comply with their demand for identification.

[22]

Peterkin
    denied being told he was under investigative detention or advised of his right
    to counsel. When told he would be searched, he stepped away from the officers,
    probably into the backyard of the townhouse. As the officers reached for him,
    he struggled with them and all three men fell to the ground. The contraband
    belonged to a man, Mike, who had given Peterkin marijuana in return for
    delivering the contraband to another person.

[23]

Palmer
    confirmed she was on her way to pick Peterkin up when she saw him talking to
    two police officers on the sidewalk. She said Peterkin was nowhere near the
    back gate of the townhouse when he was taken down and arrested.

The Grounds of Appeal

[24]

Peterkin
    advances two grounds of appeal. He says that the trial judge erred:

i.

in holding the officers were lawfully entitled to conduct a safety
    search (i.e., a pat-down) incidental to his investigative detention; and

ii.

in failing to exclude the gun, cocaine, and trafficking paraphernalia
    under s. 24(2) of the
Charter
.

Ground #1: The Lawfulness of the Safety Search

[25]

On
    appeal, Peterkin no longer contests the lawfulness of his investigative
    detention in the backyard of unit 132. Peterkins focus is on whether the
    warrantless safety search which followed the investigative detention was
    lawful.

The Relevant Circumstances

[26]

A
    second recitation of the circumstances in which the safety search was conducted
    is unnecessary. Brief reference to some features of the encounter will suffice.

[27]

Peterkin
    walked into the backyard of an apparently unoccupied townhouse sometime after
    2:30 a.m. as officers were responding to a static line 911 call from the unit. Brief
    questions from the officers quickly established Peterkin had no connection to
    the townhouse. He properly identified himself, but explained his presence with
    a reason the officers considered implausible.

[28]

Several
    features of Peterkins behaviour caused the officers to be concerned about
    their safety. Peterkin appeared nervous. He avoided eye contact. He tapped his
    right hip twice and held his right wrist there. He bladed his body so only
    his left side was visible to the officers. When an officer proffered Peterkin
    his drivers licence on his right side, the appellant reached awkwardly for the
    document, holding his right elbow tight to his hip, turning his whole body and
    extending only his right forearm to take the licence. When the officers told Peterkin
    they were going to pat him down, he backed away and began to run.

The Findings of the Trial Judge

[29]

The
    trial judge was satisfied the police had a sufficient legal basis to
    investigatively detain Peterkin in the backyard of the townhouse unit.

[30]

The
    trial judge then considered whether the police had sufficient grounds to
    conduct a safety search incident to the lawful investigative detention. Three
    paragraphs of the trial judges reasons reflect his analysis and determination
    of this issue:

[92] While completing their investigation, the accused
    conducted himself in a way that caused the police to reasonably suspect that he
    was armed with a weapon.  In this regard, the observed conduct of the accused
    in relation to his right hip area  tapping his right wrist on this area of his
    hip, holding his right wrist on this location, and oddly maintaining his elbow
    on his right hip area when receiving his drivers licence  together with the
    blading of his body so as to turn the right side of his body away from the
    police, reasonably caused the police to suspect that the nervous accused might
    well be armed with a weapon.  All of this activity was strangely suspicious
    conduct by the accused that the police had been trained to observe and
    understand.  Constable ONeil interpreted this conduct by the accused  quite
    accurately as it turned out  as indicative of someone with a concealed weapon
    in the waistband of his pants.

[93] At this point, if not before, the police were lawfully
    entitled to conduct a brief pat-down search of the accused in order to ensure
    and preserve their own physical safety.  When the accused refused to permit
    this search and sought to escape their custody, the police officers were
    entitled to employ the necessary force to physically subdue the accused and
    conduct this search. Accordingly, the physical search of the accused, which
    resulted in the discovery of the loaded firearm, ammunition and illicit drugs,
    was not in violation of s. 8 of the
Charter
.

[95] Accordingly, as in
R. v. Amofa
, in my view, the
    proposed pat down search of the accused for weapons was fully justified as
    incidental to the investigative detention of the accused given that the reason
    for the search was officer safety, and the officers reasonably believed that
    their safety was at risk.  Of course, when the accused refused to permit this
    incidental pat down search for weapons and instead tried to flee, the police
    were entitled to use reasonable and proportional force to prevent the accuseds
    escape, and to conduct the necessary weapons search to protect themselves and
    the general public in the vicinity.  See:
R. v. Mann
, [2004] 3 S.C.R.
    59, at para. 36-45;
R. v. Clayton and Farmer
, [2007] 2 S.C.R. 725, at
    para. 40-49;
R. v. Dene
, 2010 ONCA 796, at para. 4-5;
R. v. Amofa
,
    at para.
8-10, 18-26;
R. v. Plummer
(2011), 272
    C.C.C. (3d) 172 (Ont. C.A.) at para.
44, 48-61;
R. v. Byfield
,
    [2012] O.J. No. 2440 (S.C.J.) at para. 78-81; 110-114.

The Positions of the Parties

[31]

For
    the appellant, Mr. Grill begins with a reminder that a warrantless safety
    search is presumptively unreasonable. This presumption is only rebuttable where
    the Crown establishes, on a balance of probabilities, that the police had
    reasonable and probable grounds to believe, at the time the search was
    conducted, their own or public safety was at risk. Reasonable belief is
    synonymous with reasonable and probable grounds.

[32]

Mr.
    Grill submits that a reasonable suspicion of the presence of a weapon is not
    sufficient to discharge this obligation. A reasonable suspicion standard for a safety
    search incidental to an investigative detention would not fulfil the purposes
    of the
Charter
. The safety risk must be identifiable, reasonably
    imminent, and relate to police or public safety. Reasonable suspicion of
    possession or even concealment of a weapon is insufficient. The evidence must
    give rise to a reasonable
belief
, reflective of a standard of
    probability, not just suspicion, which reflects a standard of possibility.

[33]

According
    to Mr. Grill, the evidence adduced at trial fails to satisfy even the more
    modest reasonable suspicion test. Neither officer said he felt his safety was
    at risk. Peterkins conduct  nervousness in the presence of the police
    officers, checking his waist area, and turning in a different direction  was essentially
    neutral. Peterkin had been cooperative throughout.

[34]

For
    the respondent, Ms. Roberts contends the relevant standard by which the
    lawfulness of a safety search incidental to an investigative detention is to be
    determined is that of
reasonable suspicion
, not reasonable belief.
    This standard requires demonstration of
reasonable grounds for a belief
that police or public safety is
at risk
. This standard relates to
    reasonable possibility of harm, not a reasonable probability.

[35]

Ms.
    Roberts says there is no logical reason why a concomitant power to conduct a
    limited safety search incidental to a lawful investigative detention should
    require a higher standard than for the detention itself. She also argues that
    even if the higher reasonable and probable grounds standard for which Peterkin
    contends applies, the evidence adduced at trial satisfied that standard.

[36]

Ms.
    Roberts also reminds us about the standard of review we are to apply to the
    decision of the trial judge on this issue. Our task, she says, is to determine
    whether the totality of the circumstances is capable of supporting the
    conclusion reached by the trial judge. His findings of fact are to be accorded deference.
    His legal conclusions are reviewed on a standard of correctness. Ms. Roberts
    submits that neither reflects error.

The Governing Principles

[37]

The
    principles that define the basis upon and scope within which police may conduct
    a safety search incidental to an investigative detention control our decision
    on this ground of appeal.

[38]

In
R. v. Waterfield
, [1964] 1 Q.B. 164, the English Court of Criminal
    Appeal articulated the test for whether a police officer has acted within his
    or her common law powers. Under the
Waterfield
analysis, to determine
    whether an officers
prima facie
unlawful interference with an
    individuals liberty or property falls within his or her common law powers, a
    court must engage in two steps of analysis:

1.

Does the police conduct in question fall within the general scope of any
    duty imposed on the officer by statute or common law?

2.

If so, in the circumstances of this case, did the execution of the
    police conduct in question involve a justifiable use of the powers associated
    with the engaged statutory or common law duty?

See
Waterfield,
at pp. 170-171;
R. v. Mann
,
    2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 24-26.

Investigative Detention

[39]

The
Waterfield
analysis has been applied to bestow on police officers a
    limited power to detain a person for investigative purposes:
Mann
, at
    paras. 23-24, 34.

[40]

The
    test for determining whether an investigative detention is justifiable under
    the second prong of
Waterfield
is one of reasonable
suspicion
.
    An investigative detention must be viewed as reasonably necessary on an
    objective view of all the circumstances informing the officers suspicion that
    there is a clear nexus between the prospective detainee and a recent or ongoing
    criminal offence:
Mann
, at para. 34. To conduct this analysis, we must
    assess the overall reasonableness of the detention decision, testing it against
    all the circumstances, most notably:

i.

the extent to which the interference with individual liberty is
    necessary to perform the officers duty;

ii.

the liberty that is the subject of the interference; and

iii.

the nature and extent of the interference.

See
Mann
, at para. 34.

[41]

To
    be justifiable, the investigative detention must also be executed in a
    reasonable manner. The investigative detention should be brief and does not
    impose an obligation on the detained individual to answer questions posed by
    the police:
Mann
, at para. 45.

Searches Incidental to
    Investigative Detention

[42]

The
Waterfield
analysis has also been applied to recognize a power of
    search incidental to investigative detention.

[43]

Under
    the first prong of
Waterfield
, the interference clearly falls within
    the general scope of the common law duty of police officers to protect life and
    property:
Mann
, at para. 38. However, the power to search incidental
    to an investigation does
not
exist as a matter of course:
Mann
,
    at para. 40. Nor can the power to conduct a safety search of an investigatively
    detained person be equated with the power to conduct a search incident to
    lawful arrest:
Mann
, at para. 45.

[44]

The
    main issue on this appeal is what test properly applies under the second prong
    of
Waterfield
to determine when a safety search incidental to an
    investigative detention is justifiable. The Supreme Court of Canada has held
    safety searches incidental to investigative detentions are justified where the
    officer
believes
on reasonable grounds that his or her own safety, or
    the safety of others, is
at risk
:
Mann
, at para. 40. The
    search must be grounded in objectively discernible facts to prevent fishing
    expeditions on the basis of irrelevant or discriminatory factors:
Mann
,
    at para. 43.

[45]

The
    Supreme Court articulated two further reasonableness criteria that must be
    established for a safety search incidental to an investigative detention to be
    justified. First, the officers decision to search must be reasonably necessary
    in light of the totality of the circumstances:
Mann
, at para. 40. It
    cannot be justified on the basis of a vague or non-existent concern for safety,
    nor can the search be premised upon hunches or mere intuition:
Mann
,
    at para. 40. Second, the safety search must be exercised in a reasonable manner:
Mann
, at para. 45.

[46]

In
R. v. Clayton
, 2007 SCC 32, 220 C.C.C. (3d) 449, the Supreme Court
    again addressed the issue of safety searches incidental to investigative
    detention. Police received an early morning 911 call reporting that four of
    approximately ten black guys in a parking lot in front of a strip club were
    openly displaying handguns. The caller described four vehicles in the parking
    lot. Police responded to the call. Among other things, two officers stopped a
    vehicle as it approached a rear exit. The vehicle did not fit the description
    of any of the four vehicles mentioned in the 911 call.

[47]

One
    officer asked the driver, Farmer, to step out of the car. Farmer protested
    twice before getting out. The officer, concerned for his safety in light of
    Farmers protests, told Farmer to put his hands on top of the car. When asked
    questions by another police officer, Clayton, a passenger in the car, gave
    strange and evasive answers and stared straight ahead. He was wearing gloves,
    which struck the officer as inappropriate given the weather conditions. The
    officer asked Clayton to step out and put his hands on the trunk of the car.
    Clayton blocked the officers view of the interior of the car and bolted when
    directed to the rear of the car. Other officers subdued Clayton, searched him,
    and found a loaded prohibited handgun in his pocket.

[48]

A
    majority of the Supreme Court concluded the police had acted within the scope
    of their common law powers when they investigatively detained Clayton and
    Farmer:
Clayton
, at paras. 22-23. The investigative detention was
    justified because they had a reasonable
suspicion
Farmer and Clayton
could
    be in possession of the handguns
reported in the 911 call and that, as a
    result, the lives of the officers and the public were
at risk
:
Clayton
,
    at para. 46.

[49]

Citing
Mann
, the Supreme Court unanimously held a safety search incident to
    an investigative detention is justified if the officer
believes
on
    reasonable grounds that his or her safety, or that of others, is
at risk
:
    at paras. 29, 104. Applying this test to the facts of
Clayton
, the
    court held that the
same safety concerns
that justified the
    investigation detention justified the incidental safety search: paras. 48-49.

[50]

More
    recently, the Supreme Court considered the authority for safety searches in
R.
    v. MacDonald
, 2014 SCC 3, 303 C.C.C. (3d) 113. However,
MacDonald
did not involve a safety search incidental to an investigative detention.

[51]

In
MacDonald
, police responded to a noise complaint. They knocked on
    MacDonalds door. MacDonald opened the door a short distance. The officers
    could see into the room but were unable to get a full view of the interior.
    Macdonald had something black and shiny in his hand, hidden behind his pant
    leg. The officer twice asked MacDonald what he had in his hand. MacDonald said
    nothing. To get a better look, the officer pushed the door open a few inches
    further. He saw the object was a gun. The officer quickly forced his way into
    the unit, disarmed MacDonald, and seized the loaded, restricted firearm.

[52]

The
    trial judge found no
Charter
breach. A majority of the Nova Scotia
    Court of Appeal agreed: the officer had validly exercised the authority to
    conduct a safety search. The Supreme Court concluded that pushing the door open
    amounted to a safety search, and went on to consider whether the search was
    justifiable.

[53]

Citing
Mann
at paragraphs 40 and 45, a majority of the court concluded safety
    searches are authorized by law only if the officer
believes
on
    reasonable grounds his or her safety is
at stake
and that, as a
    result, it was necessary to conduct a search:
MacDonald
, at para. 41.
[1]

[54]

A
    minority of the court concurred in the result (that the safety search was
    justified), but held the majority had been unfaithful to the teachings of
Mann
and the subsequent case law by positing a new standard of reasonable
    grounds to believe a person was armed and dangerous rather than reasonable
    grounds to suspect

such was the case:
MacDonald
, at paras.
    66, 77. The minority maintained that although
Mann
employed the
    language of reasonable grounds to believe, pairing this language with the
    concept of safety being at risk inherently built in the standard of a possibility:
MacDonald
, at para. 69. By using the language of reasonable grounds to
    believe a person is armed or dangerous (at paras. 39, 42), and reasonable
    belief in an imminent threat to safety (at paras. 40, 43-44), the majority
    replaced what was in essence a reasonable suspicion standard with one of
    reasonable belief:
MacDonald
, at paras. 66-71.

Other Related Applications of the
Waterfield
Analysis

[55]

The
    two-stage
Waterfield
test also governs an assessment of police conduct
    in response to a 911 call:
R. v. Godoy
, [1999] 1 S.C.R. 311, at para.
    16.

[56]

The
    principles governing investigative detention and the conduct of searches
    incidental to investigative detention set out in
Mann
have also been
    applied to investigative detentions and incidental searches under the
Trespass
    to Property Act
:
R. v. Amofa
, 2011 ONCA 368, 85 C.R. (6th) 265,
    at paras. 15-21.

The Principles Applied

[57]

I
    would not give effect to this ground of appeal.

[58]

It
    is worth remembering that the focus of Peterkins challenge at trial to the
    lawfulness of the police conduct was not that the safety search was not up to
    the
Waterfield
and
Mann
standards. His claim at trial was
    that he was arbitrarily detained. The detention was based on racial profiling. He
    argued the requisite reasonable grounds were lacking.

[59]

A
    second preliminary point concerns the decision in
MacDonald
. We need
    not decide whether, as the
MacDonald
minority argues, the majority,
    without overruling the prior decision in
Mann
, has recalibrated the
    standard to be applied in determining the lawfulness of a safety search. This
    is because the evidence in this case satisfies the test as articulated in
MacDonald
:
    reasonable belief an individuals safety is at stake.  Further, in my respectful
    view, we need not determine whether the decision in
MacDonald
is
    distinguishable because the safety search with which the court was concerned in
MacDonald
was not incidental to an investigative detention, but free-standing.

[60]

To
    be lawful, the investigative detention and safety search incidental to it must
    satisfy the two-stage
Waterfield
test. The conduct must fall within
    the general scope of a statutory or common law duty imposed on the officer, and
    must also involve a justifiable use of powers associated with that duty:
Mann
,
    at para. 24;
MacDonald
, at paras. 35-36.

[61]

When
    Peterkin entered the backyard of unit 132 at 296 Grandravine Drive, the
    officers were investigating a static line 911 call from the unit. In doing so,
    they were discharging their common law duty to preserve the peace, prevent
    crime, and protect life and property. Peterkins entry into the fenced rear
    yard also entitled the officers to detain him to investigate a potential breach
    of the
Trespass to Property Act
, an arrestable offence under s. 9(1)
    of that
Act
.

[62]

As
    the interaction with Peterkin continued, the officers noticed several movements
    they considered to signal possession of a gun. Taps to the waistband of the
    appellants pants. Blading to obstruct their view of the appellants right
    side. Awkward receipt of the drivers licence when the officers returned it to
    the appellant. An indication by the officers of a pat-down search for the officers
    safety. Resistance. An attempt to flee. Apprehension and only then a search.
    This accumulation of factors fully supported a reasonable belief on the part of
    the officers that their safety was at stake and justified the search.

Ground #2: Admissibility of the Evidence under s. 24(2)

[63]

Peterkin
    advances a second argument. He challenges the correctness of the trial judges
    ruling to admit the evidence obtained during the search after the attempt to
    flee.

The Reasons of the Trial Judge

[64]

Despite
    finding no violation of s. 8 of the
Charter
, the trial judge found two
    other
Charter
breaches preceded the search of Peterkin.

[65]

The
    first was a breach of s. 10(a). The police advised Peterkin he was being
    detained for investigation for breaching the
Trespass to Property Act
,
    but failed to tell him they were also investigating a 911 call in connection
    with the townhouse where he appeared.

[66]

The
    second was a breach of the informational component in s. 10(b). The officers
    failed to tell Peterkin about the availability of duty counsel for immediate
    legal advice and provide him with the toll-free number to call to receive that
    advice.

[67]

The
    trial judge followed the three lines of inquiry mandated by
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, in deciding whether to admit as evidence the
    items found in Peterkins possession on arrest: the seriousness of the
Charter
-infringing
    state conduct; the impact on the accuseds
Charter
-protected
    interests; and societys interest in the adjudication of the case on its
    merits.

[68]

The
    trial judge found the police had been negligent, but not wilful or deliberate
    in their failure to fully advise Peterkin of the reasons for his detention and
    his right to counsel. The trial judge was not prepared to characterize the
    officers omissions as having been made in good faith, but did not conclude
    their conduct reflected bad faith. The first line of inquiry under
Grant
favoured
    exclusion of the evidence.

[69]

Turning
    to the second line of inquiry, the trial judge concluded the infringements did
    not have a serious impact on Peterkins
Charter
-protected interests. Peterkin
    made no statement to police. Neither breach was directly linked or causally
    connected to the discovery of the evidence, which inevitably would have been
    discovered when the police searched Peterkin incident to his arrest. This line
    of inquiry favoured admission of the evidence.

[70]

The
    final line of inquiry also favoured admission of the evidence. Societys
    interest in the adjudication of charges on the merits was furthered by the
    admission of reliable real evidence, critical to proof of the Crowns case.
    Exclusion of the evidence would undermine societys justifiable expectation of
    an adjudication of the allegations on their merits.

[71]

The
    trial judge weighed the results of the three lines of inquiry and concluded the
    balance favoured admission of the evidence.

The Arguments on Appeal

[72]

Mr.
    Grill contests the correctness of the trial judges s. 24(2) analysis. He
    submits the trial judge undervalued the seriousness of the s. 10(a) and s.
    10(b)
Charter
violations and their impact on the Peterkins
Charter
-protected
    interests. These errors, he says, skewed the s. 24(2) analysis. The evidence
    should have been excluded.

[73]

For
    the respondent, Ms. Roberts says the trial judge got it right. No errors in
    principle. No reliance on irrelevant factors. A proper assessment of relevant
    considerations. Deference due.

The Governing Principles

[74]

For
    present purposes, two brief points about the
Grant
analysis will
    suffice.

[75]

First,
    where a trial judge has considered the proper factors and has not made any
    unreasonable finding, his or her determination is owed considerable deference
    on appellate review:
Grant
, at para.
86;
R. v.
    Beaulieu
, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5;
R. v. Côté
,
    2011 SCC 46, [2011] 3 S.C.R. 215, at para.
44.

[76]

Second,
    discoverability of the evidence sought to be excluded remains a relevant factor
    under the current s. 24(2) analysis. It weighs in favour of admissibility:
R.
    v. Nolet
, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 54;
Côté
, at
    para. 69. However, despite its relevance to the first two lines of inquiry
    under
Grant
, discoverability is not determinative:
Côté
, at
    para. 70.

The Principles Applied

[77]

I
    would not give effect to this ground of appeal.

[78]

The
    trial judge considered each line of inquiry as directed by
Grant
. His
    factual findings and analysis are entitled to deference in the absence of
    demonstrated error or unreasonable findings. Peterkin has established neither.

[79]

The
    infringements that occurred here, of both s. 10(a) and s. 10(b) of the
Charter
,
    were aptly characterized as the product of negligence, not the result of wilful
    or deliberate misconduct. The information the officers provided Peterkin about
    the reasons for the investigative detention and his right to counsel was
    incomplete. However, the information did alert Peterkin to the extent of his
    jeopardy. Nothing omitted yielded any response of evidentiary value. The items
    recovered would have been discovered in any event on a search incident to
    arrest under the
Trespass to Property Act
. They afforded reliable real
    evidence central to the demonstration of guilt.

CONCLUSION

[80]

For
    these reasons, I would dismiss the appeal.

Released: January 12, 2015 (KF)

David
    Watt J.A.

I
    agree K. Feldman J.A.

I
    agree K. van Rensburg J.A.

[1]
The paragraphs cited in
Mann
use the phrase at risk, not at stake.
    However, the French language versions of
Mann
and
MacDonald
use
    the same language. In
Mann
, the words at risk in paragraphs 40 and 45
    are translated as est menacée". In
MacDonald
, the words at stake
    in paragraph 41 are also translated as est menacée".


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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R. M.,
    2015 ONCA 9

DATE: 20150112

DOCKET: C55884

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. M.

Appellant

Tim Breen, for the appellant

Holly Loubert, for the respondent

Heard and released orally: January 7, 2015

On appeal from the conviction entered on June 6, 2012 and
    the sentence imposed on August 17, 2012 by Justice Jennifer A. Blishen of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions of sexual assault, invitation to
    sexual touching and sexual exploitation in respect to each of the two complainants
    who were foster children in the appellants home. He also seeks leave to appeal
    the sentence of nine years imposed by the trial judge.

[2]

The appellant advances four grounds of appeal against conviction. He
    submits that the trial judge erred in law:

i.

in admitting as evidence of similar acts the testimony of each
    complainant on the counts relating to the other complainants;

ii.

in failing to adequately caution the jury about the significance of one
    complainants knowledge of the prior complaints and investigation in relation
    to the other complainants as a factor the jury should consider in assessing the
    reliability of that complainants evidence; and

iii.

in failing to adequately respond to a jury question that revealed an
    evidentiary misstatement in the trial judges charge to the jury.

The fourth ground, added in oral argument is that the
    trial judge erred in failing to enter
Kienapple
stays on two of three
    counts in relation to each complainant.

[3]

We would not give effect to any ground of appeal, save and except for
    that relating to the rule against multiple convictions.

[4]

In her ruling on the cross-counts admissibility of the evidence of each
    complainant, the trial judge revealed her appreciation of the improbability of
    coincidence as the core of the probative value of evidence of similar acts. The
    trial judge carefully assessed the probative value and the prejudicial effect
    of the evidence and concluded that the former predominated over the latter.

[5]

As trial counsel acknowledged, there was no evidence of actual
    collusion. The trial judge grounded her admissibility ruling on the
    similarities in specific, almost unique, details among the complainants
    accounts. Knowledge of the fact of prior allegations by one complainant did not
    include disclosure of these specifics. In these circumstances, we are satisfied
    that the trial judges admissibility ruling does not reflect error.

[6]

The trial judge recognized the need to caution the jury on the effect of
    tainting on their assessment of and reliance upon the evidence of one of the
    complainants. While her instructions to the jury on this issue could have been
    more extensive, we are satisfied that they were adequate in the circumstances
    of this case to bring home to the jury that they had to consider that
    complainants knowledge of the prior abuse complaints in assessing the value of
    her evidence. Given that the evidence went no further than that one complainant
    knew that other complainants had made complaints, there was little more that
    could have been said that would have assisted the appellant. In this respect we
    note, as well, that trial counsel did not object to this instruction.

[7]

In connection with the trial judges response to the jurys question, we
    are satisfied that the response was correct, albeit less direct than it might
    have been. No objection was taken by trial counsel for the appellant to the
    judges response to this question.

[8]

On sentence, we are satisfied that, when imposed, the sentence reflected
    no error in principle. The trial judge was aware of health concerns with
    respect to the appellant. The fresh evidence reveals that the appellants
    condition has unfortunately deteriorated significantly since sentence was passed.
    As sympathetic as we are to his deteriorating condition, we are not persuaded
    that this provides a stand-alone basis on which to interfere with what we
    regard as an otherwise fit sentence.

[9]

In the result, the appeal from the convictions entered at trial are dismissed
    except to the extent that stays are entered on the counts charging sexual
    assault in relation to each complainant.

[10]

Leave
    to appeal sentence is granted, but the appeal from sentence is also dismissed.

Doherty
    J.A.

Paul
    Rouleau J.A.

David Watt
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Taylor, 2015 ONCA 35

DATE: 20150121

DOCKET: C54181

Laskin, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renardo Desmond Taylor

Appellant

Chelsea Moore, for the appellant

Michelle Campbell, for the respondent

Heard: January 16, 2015

On appeal from the conviction entered on April 13, 2011
    by Justice
Francesco Valente
of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant challenges his conviction for aggravated assault on the
    ground the trial judge failed to make a finding of causation  in other words,
    he did not make a finding on whether the appellants wounds were caused during
    the swarming in the parking lot or by the flying glass.

[2]

Although the trial judge did not make this specific finding the
    inescapable inference from his reasons is that the appellant was wounded in the
    parking lot assault. That was the Crown's theory and the trial judge accepted
    the Crowns theory. Moreover, the complainant testified that he was not wounded
    by the flying glass and the trial judge accepted his evidence.

[3]

Accordingly, the appeal is dismissed.


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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. W.L., 2015 ONCA 37

DATE: 20150123

DOCKET: C54693

Gillese and Lauwers JJ.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

W.L.

Appellant

Keith E. Wright, for the appellant

Greg Skerkowski, for the respondent

Heard: December 18, 2014

On appeal from the conviction entered on May 4, 2011 by
    Justice Gregory Mulligan of the Superior Court of Justice, sitting with a jury.

Speyer J. (
ad hoc
)

[1]

The appellant was
    convicted by a jury of sexual assault and sexual interference in relation to
    R.A., his step-daughter.  He seeks to set aside his convictions and has argued multiple
    grounds of appeal. One ground of appeal has merit. For the reasons that follow,
    I would allow the appeal and order a new trial on the basis that Crown
    counsels cross-examination of the appellant on his post-arrest silence
    exceeded permissible limits. Further, the absence of a clear jury instruction
    on this issue is fatal to upholding the jury verdict.

FACTS

THE ALLEGED INCIDENTS

[2]

R.A. was 9 years
    old when the final incident of sexual abuse is alleged to have occurred. The
    allegations of the appellants sexual misconduct were triggered by events that
    took place on the evening of June 23, 2009.  The complainant testified that she
    went to bed that evening around 9:30 p.m. Her mother, J.A., was at work, and
    her two brothers, C.A. and Z.A., were in other rooms of the family home. The
    appellant entered her bedroom and proceeded to put his hand down the
    complainants underwear touching her vagina. The appellant subsequently left
    the complainants bedroom but not before admonishing her not to tell anyone.

[3]

The complainant
    was unable to sleep: she went into her brother C.A.s bedroom and told him what
    had occurred. C.A. testified that when his sister came into the bedroom, she
    was crying. Initial attempts to make telephone contact with their mother were unsuccessful.
     J.A., being at work, was unable to answer her cell phone.

[4]

C.A. and the
    complainant enlisted the assistance of their older brother Z.A who was in
    another room of the house watching television. Eventually, Z.A. succeeded in contacting
    his mother, and told her of his sisters complaint.

[5]

J.A. received her
    sons call at work at about 12:30 a.m.  She returned home, woke up her daughter,
    and had a brief conversation with her. Without waking the appellant, she
    gathered up her children, left the family home, and phoned the police from her
    truck. She met briefly with the police in the parking lot of a No Frills store.
    Arrangements were made with the authorities for the complainant to come to the
    police station the following morning to provide a video-taped statement.  J.A.
    and her three children stayed at a motel for the remainder of the evening.

[6]

In addition to the
    events of the previous evening, the complainant disclosed additional acts of
    sexual abuse when she provided her video-taped statement.  The complainants
    evidence was that the appellants sexual misconduct started, albeit
    infrequently, in 2006 when the family lived in Woodbridge, and continued on a
    more frequent basis after the family moved from Woodbridge to their home in
    Richmond Hill.

THE

APPELLANTS

STATEMENT

[7]

On the same day
    that R.A. provided her video-taped statement, the appellant was formally
    arrested at his place of employment, advised of the precise charges he was
    facing and given his right to counsel. He was transported to a York Region
    police station and, again at the station, advised of the nature of the charges.
    What he was not told until later that evening was the identity of the
    complainant.

[8]

On the evening of
    his arrest, the appellant was interviewed for two and one half hours by the
    officer in charge of the investigation. The interview was video-taped. It was
    an agreed statement of fact at trial that no police officer involved in the
    investigation threatened or coerced the appellant in any manner, or offered any
    promises or inducements to provide a statement.

[9]

Prior to beginning
    the interview, the police attempted to telephone the appellants personal
    lawyer. Although a message was left on his answering service, there was no
    response. Accordingly, a call was placed to duty counsel. Duty counsel spoke with
    the appellant for about five minutes prior to the interview.

[10]

As a matter of
    strategy, the officer-in-charge conducted the interview with the appellant in a
    manner that did not immediately identify R.A. as the complainant. Near the
    conclusion of the interview, the officer advised the appellant that it was his
    step-daughter who was the complainant.  The appellant acknowledged touching his
    step-daughter on two or three occasion but denied that it was for a sexual
    purpose. He provided no further details of the touching or its purpose. The
    appellant specifically denied any acts of oral sex or sexual intercourse.

DID THE CROWNS CROSS-EXAMINATION
    RENDER THE TRIAL UNFAIR?

Context

[11]

A brief
    description of the appellants defence and a digest of the examination-in-chief
    and the cross-examination are necessary to flesh out this issue.

[12]

The appellant
    testified at trial. At the heart of his defence was a denial of touching his
    step-daughter for a sexual purpose. The appellant denied ever touching the
    complainants vagina: he testified that he touched the complainant in the
    rectal area of her body on three occasions.  The purpose of the touching, on
    each occasion, was to inspect and deal with a problem the complainant experienced
    with pinworms. The appellants evidence was that the complainants mother was
    aware of her daughters problem. He explained that he attended a pharmacy, at
    the complainants mothers direction, to purchase the necessary medication to
    address the problem. As noted, these details that provided an innocent
    explanation as to the nature of the touching were not provided to the
    investigating officer during the interrogation.

[13]

It is apparent
    from the record that, as a tactical matter, trial counsel decided to address
    the failure of the appellant to provide this fuller explanation to the police
    during the interview. At the beginning of the appellants examination-in-chief,
    defence counsel posed the following questions that elicited the following
    answers:

Q: Did you touch R.A.?

A: Yes.

Q: And was it sexual?

A: No.

Q: Okay, did you explain yourself
    in the video with respect to the touching?

A: No. I did not.

Q: And why is that the case. Why
    did you not do that?

A: Um, I was afraid at the time. I
    was trying to make sense of something that did not make sense.  I couldnt
    explain it at the time. I was- my mind was running.

Q: Okay, Well now is your chance. So please tell us about the
    touching of R.A.

A: The only time I touched R.A. was to check for pinworms.
    There was never any type of sexual touching.

[14]

The appellant
    proceeded to testify in detail as to the circumstances of each occasion when he
    touched his step-daughter with respect to pinworms. Defence counsel then
    returned to the issue of why the appellant did not provide the police with a
    fuller account of the innocent nature of the touching:

Q: And in your statement, you didnt explain any of this.
    Correct?

A: I was scared at the time. Um, it was very confusing. Um, It
    seemed that things were being put to me rather than asking me. Sort of, more
    like a suggestion than a question. And trying to process what was going on,
    like I did say I touched her and at the time and at the time when I was
    thinking of it, it was the only time I remembered touching R.A.-that would-that
    could be in that area. I didnt have the opportunity at that time. Things were,
    like I said, very confusing. In retrospect- if I could do it all over again I-
    I likely would have said a lot more but it just- I was caught off guard.

[15]

Crown counsels
    cross-examination challenged the appellants credibility and specifically honed
    in on the appellants testimony as to why he did not provide the police, at the
    time of the interview, with an innocent explanation. Moreover, Crown counsel questioned
    the appellant on why it took two years, from interrogation to trial, to provide
    for the first time a fuller account as to the non-sexual nature of the touching.
    Further, Crown counsel cross-examined the appellant on his failure to tell the
    investigating officer about matters extraneous to the pinworm issue.  The
    following are samples of the cross-examination:

Q: Sir, you are at the police station. Youre charged with very
    serious crimes?

A: Yes.

Q: You finally break down and tell the police you touched R.A.,
    correct?

A: Yes.

Q:
You dont explain it. Dont you think its a good time to
    be explaining it
?

A: If I would have been able to talk at the time. I was very
    upset.

.

Q: You were able to talk there. Werent you?

A: Yes. Some.

Q:
So, you werent able to give an innocent explanation
?

A: No. I was able to talk but not explain everything that was
    running through my mind at that moment. It was all over the place.

.

Q: Sir, police are asking you why. You could have explained
    the quote/unquote, non-sexual aspect, but you didnt
. You didnt because
    there was no innocent explanation sir. None at all.

A: Yes, there was.

Q:
You have had almost two years and now you are telling us
    about?  Did it take you this long to make it up?

A: No, I didnt make anything up.

Q: Sir, youre with- in front of a police officer, youve been
    arrested for very serious charges. Correct?

A: Yes.

Q: You may have an explanation. Correct?

A: At the time, no. I wasnt sure what was going on.

Q:

Well is it because you took two years to get an
    explanation. Is that why
?

A: No, That came- that was after the fact.

..

Q: So does he (referring to an aspect of C.A.s evidence) say it
    two year after it happened like you say two years after it happened about the
    pinworms? Is that the same thing?

A: No.

.

Q: Now, sir, even at this time,
you didnt mention to the
    officer anything about J.A. stealing money from Garda. Nothing like that. You
    didnt think to mention that
.

A: Not at the time. No.

..

Q: Well, sir, this was the time, this was your chance, Im
    going to put it to you sir, to give an innocent explanation if you wanted to.
To
    tell the police about anything. Any trouble you were having with R.A. or her
    family
.

A: Yes.

.

THE POSITION OF THE PARTIES

[16]

The appellant
    argues that Crown counsels cross-examination of the appellant on his failure
    to give an innocent explanation to the police, at the time of his
    interrogation, trespassed on his right to silence. Further, he says the cross-examination
    of the appellant regarding the delay in waiting two years to provide an
    explanation, from the date of the police interview to trial, was improper and
    highly prejudicial. Counsel also contends that even if it was legally
    permissible, given the tactical decisions made by defence counsel at trial, for
    Crown counsel to question the appellant as to why he did not give an
    explanation in respect to pinworms in his statement to the police, the breadth
    of the cross-examination was a serious error. Finally, it is submitted that it
    was incumbent upon the trial judge to give a clear instruction cautioning the
    jury that the appellant had a right to silence when interrogated by the police,
    and that his failure to provide a fuller account of his conduct could not be
    used to infer guilt.

[17]

The Crown concedes
    that as a general rule, Crown counsel is not permitted to impeach the testimony
    of an accused based on his choice to remain silent. However, the Crown submits
    that this is an exceptional case because the appellant made a tactical decision,
    in advance of cross-examination, to explain why he did not provide a fuller
    explanation as to the nature of the touching. That is, the appellant chose to
    put in issue the reason why he did not say more to the police at the time of
    his interrogation. This decision opened the door for Crown counsel to cross-examine
    the appellant on this aspect on his testimony and could be taken into account
    by the jury in assessing the appellants credibility.

LEGAL PRINCIPLES

[18]

Certain principles
    that govern the right of an accused to remain silent post-arrest are in play in
    this appeal. Deeply embedded in our law is the principle that an accused person
    has the right to remain silent at the investigative stage of a prosecution as
    well as at trial:
R. v. Chambers
, [1990] 2 S.C.R. 1293, 59 C.C.C. (3d)
    321, at para. 50. Accordingly, evidence of pre-trial silence cannot be used as
    positive evidence to infer guilt:
R. v. Crawford
, [1996] 1 S.C.R. 858,
    96 C.C.C. (3d) 481, at para. 38. While a trier of fact may reject an accuseds
    explanation as not being believable, and use that finding in assessing
    credibility, a trier of fact is prohibited from using the silence of an accused
    as a basis for drawing an adverse inference as to credibility:
R. v. Palmer
,
    2008 ONCA 797, at para. 9.

[19]

Further, the
    constitutional right to remain silent is not extinguished when an accused
    chooses to speak to an officer with respect to some matters, but not others.
    That is, an accused cannot be cross-examined on matters on which he has chosen
    to remain silent:
R. v. G.L.
, 2009 ONCA 501, 250 O.A.C. 266, at para.
    39.

[20]

An exception to
    the general rule prohibiting cross-examination on post-arrest silence occurs
    when an accused makes it an issue at trial:
R. v. McNeill
(2000), 48
    O.R. (3d) 212 (Ont. C.A.), 144 C.C.C. (3d) 551;
R. v. G.A.O.
(1997), 200
    A.R. 363 (Alta. C.A.), 119 C.C.C. (3d) 30;
R v. M.C.W.
, 2002 BCCA 341,
    165 C.C.C. (3d) 129. Importantly, however, it is incumbent upon the trial judge
    to instruct the jury as to the permissible and impermissible uses that can be
    made of such evidence. It is worth noting that even where the cross-examination
    was permitted as an exception to the general rule, a new trial was ordered in
    each of the three above cited cases, due to the failure of the trial judge to
    provide the jury with a proper limiting instruction.

[21]

Finally, another
    legal tenet is applicable in this appeal: there is no duty or obligation on any
    accused to assist the prosecution:
R. v. Stinchcombe
, [1991] 3 S.C.R.
    326, at p. 333;
R. v. M.B.P.
, [1994] 1 S.C.R. 555, at p. 578.

DISCUSSION

[22]

It is wrong to
    underestimate, and difficult to exaggerate, the importance of the right to
    cross-examine witnesses to demonstrate truth and test credibility in any
    criminal trial. From the perspective of an accused, the right to cross-examine
    witnesses for the prosecution, without significant and unwarranted
    constraint, is an essential component of the right to make full answer and
    defence:
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 2.
    Similarly, Crown counsel is entitled to conduct a vigorous cross-examination of
    a witness, including an accused, as part of the truth finding function of the
    trial. Nevertheless, because Crown counsel performs a unique, quasi-judicial
    function, there are well-established constraints that limit the type of
    questions that may be asked of an accused on cross-examination.
[1]
One well-known limitation is that Crown counsel cannot ask questions that
    diminish an accuseds constitutional right to silence by inviting the jury to
    draw impermissible inferences as to guilt or credibility based on the exercise
    of that right.

[23]

I accept that Crown
    counsel was justified in asking the appellant questions concerning his
    explanation of the reasons he did not give a fuller account of the pinworm
    occurrences to the investigating officer. The essence of the appellants
    evidence was that he did not amplify upon his assertion that his touching of
    the complainant was for a non-sexual purpose because he was afraid and
    confused. The appellants silence on this point during his interrogation became
    a fact-in-issue, one raised by the appellant in his examination-in-chief. As
    the appellant had opened the door on this issue, Crown counsel was entitled
    to cross-examine the appellant on it within reasonable limits:
McNeill
,
    at paras. 34-35. It became a matter which the jury was entitled to take into
    account in assessing the appellants credibility.

[24]

Regrettably, the
    scope of Crown counsels cross-examination went beyond permissible limits.
    Particularly troubling are the questions asked of the appellant about his two
    year silence, from the date of arrest until trial, and the reason, during that
    period, that he failed to explain what he meant when he denied that the
    touching of the complainant was for a sexual purpose. These questions clearly
    implied that the appellant was under a duty to provide an explanation. Moreover,
    this line of questioning also suggested that the appellants version of events
    was not credible on the basis it had not been proffered at an earlier date. It
    is the right of any accused to remain silent, and there is no duty or
    obligation to provide the authorities with any assistance either prior to or at
    trial.

[25]

In her all-out assault
    on the appellants post-arrest silence, Crown counsel did not limit her
    questioning to the failure to tell the police about the pinworm incidents. The scope
    of the cross-examination pertaining to the appellants silence was wide ranging.
    It included a failure of the appellant to tell the police about several collateral
    matters such as J.A.s alleged thefts from her employer.

[26]

While it is true
    that the appellants testimony opened the subject matter of his reason for not
    giving a fuller account of his pinworm explanation to the police, thereby
    opening the door to cross-examination on the issue, it is important that the
    scope of the cross-examination be confined to reasonable limits so as to
    minimize the potential for trial unfairness. I echo the wisdom of Moldaver J.A.
    (as he then was) in
McNeill
, where a similar situation arose, that it
    would have been preferable had Crown counsel not seized upon the appellants
    response to launch a full scale attack on his credibility: para. 35.

[27]

Even if it were
    determined that Crown counsels cross-examination fell within the boundaries of
    fairness, a proper instruction to the jury was of critical importance. There
    was no such instruction. The jury ought to have been told that they were
    entitled to take into account, in assessing the appellants credibility, all of
    his evidence, including his explanation of why he did not provide a fuller
    account of his conduct. The jury ought to have been cautioned, however, that the
    appellant had a right to remain silent, had a right to choose what to say and
    what not to say, and that his failure to provide a fuller explanation, from the
    time of his interrogation until trial, could not be used to assess his
    credibility at trial:
Palmer
, at para. 9. Further, the jury ought to
    have been told that the appellant was under no duty or obligation to disclose
    anything to the police and no adverse inference could be drawn against him from
    his failure to do so.

[28]

Because of the
    seriousness of the errors, it cannot be said the verdict would necessarily have
    been the same.  Thus, I am unable to invoke the curative proviso at s. 686(1)(b)(iii)
    of the
Criminal Code
, R.S.C. 1985, c. C-46.

[29]

Accordingly, I
    would allow the appeal and order a new trial.

Released:
    January 23, 2015 (E.E.G.)

C.M. Speyer J. (ad hoc)

I agree. E.E. Gillese J.A.

I agree. P. Lauwers J.A.

[1]
See: Robert J. Frater,
The
    Seven Deadly Prosecutorial Sins
 (2001) 7
Can. Crim. L. Rev.
209;
    Robert J. Frater,
Prosecutorial Misconduct
(2009) at pp. 141-161; Suhail
    Akhtar,
Improprieties in Cross-Examination
 (2004), 15 C.R. (6th) 236
.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ridel v. Cassin, 2015 ONCA 1

DATE: 20150105

DOCKET: C57081

Strathy C.J.O., Feldman and Lauwers JJ.A.

BETWEEN

Jean-Marc Ridel, Nadine Suzanne Josephine
    Ridel and Marc H. Ridel

Plaintiffs/Defendant
    by Counterclaim

(Respondents/Appellants
    by Cross-Appeal)

and

Armando Cassin and E3M Investments Inc.

Defendants/Plaintiffs
    by Counterclaim

(Appellants/Respondents
    by Cross-Appeal)

Paul Le Vay and Naomi Greckol-Herlich, for the
    appellants

Philip Anisman, for the respondents

Heard: By written submissions

COSTS ENDORSEMENT

[1]

After the release of our reasons, the parties agreed that in light of
    our disposition of the appeal, the costs award made by the trial judge should
    be set aside and replaced with an order that the appellants/respondents by
    cross-appeal shall pay to the respondents costs in the amount of $355,000, plus
    disbursements and applicable taxes. We so order.

G.R. Strathy C.J.O.

K. Feldman J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2015 ONCA 24

DATE: 20150116

DOCKET: C59229

Laskin, LaForme and Rouleau JJ.A.

IN THE MATTER OF:  Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Lorna Bolton, for the Attorney General of Ontario

Janice E. Blackburn, for the respondent St Josephs
    Health Care, Hamilton

Heard: January 16, 2015

On appeal against the disposition of the Ontario Review
    Board dated February 11, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was found not criminally responsible (NCR) in 2005 on
    account of a mental disorder on four counts of harassing telephone calls, three
    counts of fail to comply with recognizance and two counts of fail to comply
    with probation. She was also found NCR in 2006 on one count of criminal
    harassment. She has been under the jurisdiction of the Ontario Review Board
    (ORB) ever since.

[2]

The most recent disposition of the ORB is dated January 29, 2014. In
    their reasons, the ORB found that the appellant continued to present as a
    significant threat to the safety of the public. The ORB held that the least
    onerous, least restrictive disposition was the continuation of the terms of the
    current detention at the General forensic unit without change. It included the
    privilege of living in the community in approved accommodation.

[3]

However, due to poor behaviour, risk of elopement, and for refusal to
    take medication, she is currently restricted to only accompanied hospital
    grounds privilege.

[4]

She appeals and argues that she is entitled to an absolute discharge
    because the evidence before the ORB does not support the Boards findings.
    Although she concedes mental illness, she maintains that the evidence only
    establishes a risk of minimal harm, more in the nature of constituting a
    nuisance.

[5]

We disagree. We find no basis to conclude that the Boards disposition
    was unreasonable and not founded on the record before it. The accepted
    testimony of the treating psychiatrist and the report of the hospital amply
    supported the Boards finding.

[6]

This said, however, given the passage of the lengthy period of time and
    the particular circumstances of the appellants condition and behaviour as well
    as the record that discloses some progress in both her attitude and condition,
    due consideration ought to be given to commencing integration into the
    community.

[7]

We observe that her annual review is scheduled for Monday, January 19.
    We would encourage the Board to explore the possibility of initiating steps in
    that regard.

[8]

For these reasons, the appeal is dismissed. In the circumstances, there
    is no need to deal with the motion to admit fresh evidence.


COURT OF APPEAL FOR ONTARIO

CITATION: Tran (Re) 2015 ONCA 29

DATE: 20150121

DOCKET: M44396

(M44341)

Feldman, Simmons and Pardu JJ.A.

IN THE MATTER OF: Brian Tran

AN APPEAL UNDER PART XX.1 OF THE
CODE

Linda Choi, for the appellant

Jocelyn Speyer, for the respondent, Attorney General for
    Ontario

Gavin S. MacKenzie, for the respondent, Centre for Addiction
    and Mental Health

Heard and released orally: January 12, 2015

On a motion to review the order of Justice MacFarland
    dated, October 28, 2014, refusing to grant an extension of time to file a
    notice of appeal against the disposition of the Ontario Review Board dated, April
    4, 2014, and from the finding of not criminally responsible on account of a
    mental disorder dated, January 7, 2014 by Justice Nelson of the Ontario Court
    of Justice.

ENDORSEMENT

[1]

The applicant seeks an extension of time to appeal the first decision of
    the Ontario Review Board dated April 4, 2014 to detain him at CAMH following a
    Not Criminally Responsible (NCR) finding on the offence of criminal harassment.
    The applicant also seeks an extension of time to appeal the NCR verdict.  The
    application is before this panel for reconsideration of the decision of a single
    judge who dismissed the request for an extension of time, in large part because
    the applicant did not form the intent to appeal within the time permitted to
    appeal.

[2]

Dealing first with the proposed appeal of the NCR verdict, that is a summary
    conviction appeal to the Superior Court and the extension of time must be
    sought there.  Undoubtedly, if the application is brought there, the Superior
    Court judge hearing the application will take into account the applicants
    mental illness and the reason for his failure to appeal within the time limited
    for appeal.

[3]

On the other application, in
R.
    v. Shea
, 2010 SCC 26, the Supreme Court of
    Canada confirmed that there is a narrow circumstances jurisdiction for a
    panel of this court to reconsider a decision of a single judge on the issue of
    extension of time to appeal.

[4]

Crown counsel conceded that for the
    purpose of applying the test for an extension of time to appeal an Ontario
    Review Board decision, the first two factors relating to the intent to appeal
    within the time limited for appeal and the reasons for the delay should be relaxed
    in cases where the mentally ill applicant may not have been able to form the
    intent to appeal because of his illness.  This certainly appears to be one of
    these cases.

[5]

The relevant test factors therefore are
    the merits of any appeal and the justice of the case.  In this case, in our
    view, the Ontario Review Board made no error in its approach to the evidence
    and its decision to detain the applicant was a reasonable one on the record
    before it.

[6]

Having said that, the applicants next
    Ontario Review Board hearing is scheduled for February 25, 2015.  At that time
    the Board will reassess whether the applicant poses a significant threat to the
    safety of the public, and may hear from the applicants father (who made
    additional oral submission to the court) on whether releasing him to the
    parents care in order for them to administer his medication could reduce the risk
    sufficiently.

[7]

In the result, the motion to reconsider
    the refusal to grant the extension of time to appeal the Ontario Review Board
    decision of April 4, 2014, is dismissed.

K. Feldman J.A.

J. Simmons J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Trobradovic v. Izzo, 2015 ONCA 32

DATE: 20150121

DOCKET: C58884

Weiler, Feldman and
    Benotto JJ.A.

BETWEEN

Edin Trobradovic

Appellant (Defendant)

and

Alfonso Izzo and Elvira Izzo

Respondents (Plaintiffs)

Domenic Saverino, for the appellant

Gregory Gryguc, for the respondents

Heard and released orally: December 12, 2014

On appeal from the judgment of Justice Edward M. Morgan
    of the Superior Court of Justice, dated May 2, 2014.

ENDORSEMENT

[1]

The appellant mortgagor appeals the judgment granting the respondent
    mortgagees $876,797.55 for funds owed under a mortgage agreement.

[2]

The appellant alleges, that the motion judge erred by granting judgment
    instead of directing an accounting because the appellant contested the amounts
    owing.

[3]

The motion judge had evidence before him to substantiate the claims of
    the respondents. The appellant contested the amounts owing but did not file
    evidence to confirm what amounts were in fact owed. He now seeks to file fresh
    evidence which purports to establish, among other things, arithmetical errors
    in the accounting.

[4]

The motion judge concluded that the appellant had the information
    available to him to verify the amounts owing, and the failure to provide this
    represented a delay tactic instead of a substantive objection. Adjournments had
    been granted to the appellant on more than one occasion.

[5]

It is also significant that the motion judge was advised by prior
    counsel for the appellant that the matter had been resolved, subject to a final
    determination of the amount of the construction liens. These amounts are
    readily determined as a matter of public record.

[6]

We see no error in the approach of the motion judge. On the evidence, it
    was open to him to establish the amount owing. To the extent that there was an
    arithmetical error, if any, the proper approach would have been to return to
    the motion judge for directions.

[7]

For these reasons, the appeal is dismissed with costs to the respondents

fixed at $5,000, inclusive of disbursements and taxes.

K.M. Weiler J.A.

K.
    Feldman J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Waldman v. Thomson Reuters Canada Limited, 2015
    ONCA 53

DATE: 20150128

DOCKET: C58585

Simmons, MacFarland and Benotto JJ.A.

BETWEEN

Lorne Waldman

Plaintiff (Appellant)

and

Thomson Reuters Canada Limited

Defendant (Respondent)

Paul J. Pape and Shantona Chaudhury, for the appellant

Andrew E. Bernstein and Sarah Whitmore, for the
    respondent

Heard:  November 18, 2014

On
    appeal from the order of Justice Paul M. Perell of the Superior Court of
    Justice, dated March 4, 2014, with reasons reported at 2014 ONSC 1288.

MacFarland J.A.:

[1]

On October 3, 2013, the appellant and the respondent reached an
    agreement to settle a copyright infringement class action. By order dated March
    4, 2014, Perell J. refused to approve the settlement, as well as the retainer
    agreement and class counsel fees sought as part of that agreement. The
    appellant, supported by the respondent, appeals that refusal to this court.

[2]

Prior to the hearing of the appeal, this court, through its senior legal
    officer, raised with counsel the question of whether this court has
    jurisdiction to hear the appeal. Counsel were asked to address whether the
    appeal properly lay to this court or to the Divisional Court with leave.

[3]

It is of note that both the appellant and the respondent are allied in
    interest on this appeal and there is no party
contra
. Prior to the
    hearing on the issue of jurisdiction, counsel were informed that, should the
    court conclude the appeal was properly before this court, the hearing of the
    appeal on the merits would be adjourned to permit the appointment of
amicus
.

Background

[4]

The nature of the proceeding, the terms of the settlement
    agreement and the motion judges disposition are all succinctly set out in the
    first eight paragraphs of his reasons as follows:

[1]      In this certified class action under the
Class
    Proceedings Act, 1992
, S.O. 1992, c. 6 [(
CPA
)], the
    Representative Plaintiff, Lorne Waldman, moves for approval of a settlement of
    a copyright infringement class action against Thomson Reuters Canada Limited (Thomson).

[2]      The action was commenced because Thomson, through its
    legal publishing branch known as Carswell, makes available court documents
    authored by the lawyers who constitute the Class Members. Carswell copies
    documents from public court files, replicates them on an electronic database
    and search and retrieval service known as Litigator, and makes the copies
    available to subscribers. Documents authored by Mr. Waldman, who is a lawyer,
    were included in Litigator without his permission.

[3]      In the class action, Mr. Waldman alleges that Thomson
    infringes the copyright of the Class Members under the
Canadian Copyright
    Act
, R.S.C. 1985, c. C-42 by making available, without permission and for
    a fee, copies of court documents authored by Class Members and their law firms.

[4]      Subject to court approval, Mr. Waldman and Thomson
    have signed a Settlement Agreement. Under the Agreement, Thomson settles a
    $350,000 cy-près trust fund to support public interest litigation. Thomson also
    agrees to make changes to the copyright notices on Litigator and to the terms
    of its contract with subscribers. The individual Class Members, who may
    opt-out, receive no monetary award under the Settlement Agreement, and they
    sign a release and grant a non-exclusive license of their copyrights in the
    court documents to Thomson.

[5]      Class Counsel, Sack Goldblatt Mitchell LLP, which was
    assisted by Deeth Williams Wall LLP in regard to copyright law, moves for
    approval of its contingent fee agreement with Mr. Waldman and for court
    approval of counsel fees of $825,000, all inclusive. Class Counsels fee is
    paid as a term of the proposed Settlement Agreement.

[6]      The proposed settlement is supported by, among others,
    Mr. Waldman, Class Counsel, a blue-ribbon group of lawyers who are prepared to
    be trustees for the cy-près trust fund, several Canadian law schools, the
    Canadian Bar Association, the Canadian Civil Liberties Association, and the
    British Columbia Civil Liberties Association.

[7]      After a thorough notice program, the Settlement
    Agreement is opposed by seven Class Members.

[8]      For the reasons that follow, I conclude that the
    proposed Settlement is not fair, reasonable, and in the best interests of the
    Class Members. I, therefore, dismiss the motions for settlement and fee
    approval.

Analysis

[5]

Section 29(2) of the
Class Proceedings Act, 1992
, S.O. 1992, c. 6 (
CPA
)
provides that a settlement of a class
    proceeding is not binding unless approved by the court. The
CPA
does
    not address the appeal route from an order refusing to approve a settlement
    agreement. Accordingly, the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43

(
CJA
) governs the appeal route in this case: see
Locking
    v. Armtec Infrastructure Inc.
, 2012 ONCA 774, 299 O.A.C. 20, at para. 11.

[6]

Section 6(1)(b) of the
CJA
provides that:

An appeal lies to the Court of Appeal from  a final order of a
    judge of the Superior Court of Justice, except an order referred to in clause
    19(1)(a) or an order from which an appeal lies to the Divisional Court under
    another Act.

[7]

The preliminary issue in determining the jurisdiction of this court is
    therefore whether the order appealed from is final or interlocutory. If the
    order is final, this court has jurisdiction over the matter, subject to certain
    exceptions outlined in s. 19(1)(a) of the
CJA
or the provisions of
    another Act. If the order is interlocutory, then this court has no jurisdiction
    and an appeal lies to the Divisional Court with leave, pursuant to s. 19(1)(b)
    of the
CJA
.

[8]

The question of whether an order is final or interlocutory is one that
    has vexed courts for years. Courts asked to consider this issue often begin
    with the observation of Middleton J.A. in
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.), at p. 678:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the parties
    the very subject matter of the litigation, but only some matter collateral. It
    may be final in the sense that it determines the very question raised by the
    application, but it is interlocutory if the merits of the case remain to be
    determined.

[9]

The appellant asserts that the order which is the subject of this appeal
    dealt with three separate matters:

1. approval of the settlement agreement;

2. approval of the fee retainer agreement; and

3. approval of the fees sought.
[1]

[10]

The
    appellant submits that this court has the jurisdiction to hear the appeal from all
    three parts of the order. There are two prongs to the appellants argument.
    First, he submits that the motion judges refusal to approve the settlement
    agreement was a final order. Second, he submits that, even if the motion judges
    refusal to approve the settlement was an interlocutory order, his refusal to
    approve the fee agreements and the amount of fees sought was a final order, and
    this court therefore has jurisdiction to review the entire order pursuant to s.
    6(2) of the
CJA
.

[11]

Section
    6(2) of the
CJA
provides that
:

The Court of Appeal has jurisdiction to hear and determine an
    appeal that lies to the Divisional Court or the Superior Court of Justice if an
    appeal in the same proceeding lies to and is taken to the Court of Appeal.

[12]

I
    shall begin by addressing the second part of this argument.

[13]

The appellant submits that this court has previously determined
    that appeals in relation to the approval of fee retainer agreements and fees
    lie to this court. In this respect he relies on this courts decision in
Sutts,
    Strosberg LLP v. Atlas Cold Storage Holdings Inc.
, 2009 ONCA 690, 311
    D.L.R. (4th) 323
.

[14]

I
    cannot agree that
Sutts, Strosberg

stands for the proposition
    that all appeals from orders related to fee retainer agreements and fees lie to
    this court. In
Sutts, Strosberg
, this court did indeed refuse to quash
    an appeal from the order of a motion judge reducing the amount of fees payable
    pursuant to a settlement agreement. In
that
    case
, however, the motion judge had approved the settlement
    agreement but, in so doing, she reduced the amount of fees sought by class
    counsel. She ultimately approved both the settlement and the reduced quantum of
    fees. Her order finally determined the issues between the parties and, subject
    to an appeal, the litigation.

[15]

This
    case differs from
Sutts, Strosberg
because here there was no approval
    and therefore, in my view, no finality  here, the litigation continues.

[16]

I
    would therefore reject the appellants argument that the appeal from the
    portion of the motion judges order refusing to approve the fee agreement and the
    fees themselves is properly before this court on the basis of the
Sutts, Strosberg
decision.

[17]

Even
    if I had concluded otherwise, the appellants submission that this court would
    then have jurisdiction under s. 6(2) of the
CJA
to hear the appeal in
    respect of the entire order would still fail. An appeal from an interlocutory
    order only lies to the Divisional Court within the meaning of s. 6(2) once
    leave to appeal that order has been granted: see
Albert v. Spiegel
(1993), 17 C.P.C. (3d) 90 (Ont. C.A.), at p. 91;
Merling v. Southam Inc.
(2000), 128 O.A.C. 261, at para. 2;
Cole v. Hamilton
(2002), 60 O.R.
    (3d) 284 (C.A.), at paras. 6 and 15;
Diversitel Communications Inc. v.
    Glacier Bay Inc.

(2004), 181 O.A.C. 6 (C.A.), at para. 6. If the
    motion judges order refusing to approve the settlement agreement was interlocutory,
    then this court still would not have jurisdiction to hear the appeal from that
    order under s. 6(2) of the
CJA
unless and until the appellant obtained
    leave to appeal to the Divisional Court. Only then could the appellant bring a
    motion, under s. 6(3) of the
CJA
to transfer that appeal to this court.
    Section 6(3) of the
CJA
provides that:

The Court of Appeal may, on motion, transfer an appeal that has
    already been commenced in the Divisional Court or the Superior Court of Justice
    to the Court of Appeal for the purpose of subsection (2).

[18]

The
    appellant, supported by the respondent, argues that, in any event, an appeal
    lies to this court under s. 6(1)(b) of the
CJA
because the order
    refusing to approve the settlement agreement is a final order of a judge of the
    Superior Court. He argues that this is a final order because, although the
    litigation could continue, the settlement agreement has been finally dismissed.
    The appellant submits that, where the approval of a settlement has been
    determined, substantive rights are affected. He argues that this situation is
    therefore different from the dismissal of a motion for summary judgment, which
    typically neither finally determines an issue in the litigation nor affects substantive
    rights.

[19]

More
    specifically, the appellant argues that the settlement agreement is a contract that
    binds the parties, even if it is subject to court approval, and that the motion
    judges refusal to approve the settlement puts an end to these contractual
    rights. This, he submits, amounts to a final order. In this regard the
    appellant relies on this courts decision in
Wu Estate v. Zurich Insurance
    Co
. (2006), 211 O.A.C. 133, 268 D.L.R. (4th) 670.

[20]

In
    my view,
Wu Estate
gives no comfort to the parties. In that case, the
    order under appeal dismissed an application, brought by the deceased plaintiffs
    estate, her estate trustees, and her relatives, to enforce minutes of
    settlement. It was a final order because it finally ended the particular
    proceeding before the court: see
Buck Brothers Ltd. v. Frontenac Builders
    Ltd.
(1994), 19 O.R. (3d) 97, 73 O.A.C. 298 (C.A.). The same cannot be
    said of the motion judges order refusing to approve the settlement agreement
    in this case. That order did not end the class proceeding; rather, it requires
    the proceeding to continue.

[21]

Likewise,
    the jurisprudence dealing with appellate jurisdiction over orders made pursuant
    to rule 49.09 does not assist the parties in this case. When a judge concludes,
    on a motion under rule 49.09, that an action has not been settled, that factual
    issue is finally determined for the purposes of the litigation: see
Fusarelli
    v. Dube
, [2005] O.J. No. 4398, 2005 CanLII 37251 (C.A.);
Capital Gains
    Income Streams Corp. v. Merrill Lynch Canada Inc.
, 2007 ONCA 497, 87 O.R.
    (3d) 443, at paras. 30-31. The same cannot be said here, where court approval
    of any settlement agreement between the parties is statutorily required and a
    settlement is not binding unless and until court approval is obtained.

[22]

The
    appellants argument amounts to a claim that, because this particular settlement
    agreement cannot be reconsidered if the litigation goes forward, the order is a
    final order with respect to the agreement, and is therefore also a final order
    for the purposes of s. 6(1)(b) of the
CJA
. This submission presumes
    that, to be a final order, an order need only dispose finally of whatever issue
    was before the motion judge irrespective of whether the order terminates the action
    or resolves a substantive claim or defence of the parties. Were that so, the
    distinction between interlocutory and final orders would cease to exist. Some might
    say that would be a good thing. Still, I hearken back to the words of Middleton
    J.A. in
Hendrikson
:

... it may be final in the sense that it determines the very
    question raised by the application, but it is interlocutory if the merits of
    the case remain to be determined.

[23]

Here,
    although the settlement agreement was not approved, the litigation continues,
    and the parties cannot be said to have lost a substantive right relating to the
    merits of the litigation. The order is interlocutory and any appeal lies to the
    Divisional Court with leave.

[24]

I
    would therefore quash the appeal.

[25]

In
    the circumstances of the case where both the appellant and the respondent were
    allied in interest and argued in favour of this courts jurisdiction, I would
    order that there be no costs of the appeal.

Released: January 28, 2015
    JMacF                     J. MacFarland J.A.

I
    agree Janet Simmons J.A.

I
    agree M.L. Benotto J.A.

[1]
The order under appeal states:

1.

THIS COURT
    ORDERS that the settlement agreement dated October 3, 2013 is not approved.

2.

THIS COURT
    ORDERS that the class counsel fees sought are not approved.

3.

THIS COURT
    ORDERS that there shall be no order as to costs.

On the motion, the appellant sought approval of the
    fee retainer agreement and the approval of class counsel fees. I assume that,
    in refusing to approve the fees sought, the motion judge also effectively
    refused to approve the fee agreement. The appellant treated these two issues as
    distinct on appeal.