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), (2.1), (2.2), (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    information that could identify the victim or a witness shall not be published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, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

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    meaning of that section, shall not be published in any document or broadcast or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

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13,
    s. 18.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.R., 2022 ONCA 80

DATE: 20220127

DOCKET: C65961

Gillese, Rouleau and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.R.

Appellant

Neha Chugh, for the appellant

Katie Doherty, for the respondent

Heard: January 26, 2022 by
    video conference

On appeal from the sentence imposed on December
    1, 2017 by Justice Rommel G. Masse of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Over the course of seven years, the appellant
    inflicted a campaign of terror on five of the appellants six children,
    involving repeated acts of physical, sexual, and psychological abuse. After
    trial, the appellant was convicted of 30 offences and sentenced to 20 years in
    prison.

[2]

The appellants appeal from conviction was
    dismissed: see
R v. A.R.
, 2022 ONCA 33. The appellant now appeals
    against sentence. The appellant submits that the sentence is excessive and that
    the sentencing judge incorrectly applied the totality principle.

[3]

We accept neither submission. There is no basis
    for appellate interference with the sentence.

[4]

Far from being manifestly unfit, the sentence is
    proportionate and fit given the moral blameworthiness of the appellants
    extremely serious criminal conduct. And, it falls within the range of sentences
    imposed in cases of extensive child abuse involving a sexual abuse component.
    See, for example:
R. v. M.
(C.A.), [1996] 1 S.C.R. 500;
R. v. C.
(J.A.) (1995), 26 O.R. (3d) 462 (C.A.);
R. v. L.K.W.
(1999), 126
    O.A.C. 39 (C.A.); and
R. v. D.D.
, 2018 ONCA 134.

[5]

Nor did the sentencing judge err in his
    application of the totality principle. The sentencing judge identified the predominant
    sentencing principles for these offences: denunciation, deterrence, and the protection
    of the public, including these specific children. He determined that an overall
    sentence of 20 years was fit and then imposed individual sentences adding up
    the total. He took care to ensure that the total sentence was not
    disproportionate to the gravity of the offences and the appellants conduct.

[6]

There are different methods of applying the
    totality principle. The Supreme Court of Canada has expressly affirmed the
    validity of the approach used by the sentencing judge: see
R. v. Friesen
,
    2020 SCC 9, 444 D.L.R. (4th) 1, at para. 157.

[7]

In terms of credit for pre-sentence custody, we
    accept the Crown submission that, reading the record as a whole, the credit
    given was justified.

DISPOSITION

[8]

Accordingly, leave to appeal sentence is granted
    but the appeal is dismissed.

E.E.
    Gillese J.A.

Paul
    Rouleau J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Hoang v. Mann Engineering Ltd., 2022 ONCA 82

DATE: 20220126

DOCKET: M52935 (C68186)

Tulloch J.A. (Motion Judge)

BETWEEN

K.
    Matthew Hoang

Plaintiff

Appellant
    (Moving Party)

and

Mann
    Engineering Ltd., Aris Building Technologies, Cartwright Management, Mann
    Enterprises, Wu Ventures, Hay Solar Ltd. and Gigajoule Research and Development
    Ltd. (carrying on business as the Mann Group

Defendants

Respondents
    (Responding Parties)

K. Matthew Hoang, appearing in person

Ted Flett, for the responding parties

Heard: November 23, 2021 by video conference

REASONS
    FOR DECISION

[1]

The moving party, Matthew Hoang, brings this
    motion for leave to file a motion to, in essence, reverse two prior decisions
    of this court in these proceedings. The moving party argues that the panel that
    heard the appeal from the November 4, 2019 summary judgment decision of Glustein
    J. misapprehended the evidence, as well as failed to provide proper reasons
    substantiating its finding that there was no merit to the moving partys
    action. He further argues that the court erred in refusing to reconsider his
    appeal on the basis that it had no merit.

[2]

The genesis of the underlying litigation started
    in June 2011 when Mr. Hoangs employment was terminated. Mr. Hoang sued
    Mann Engineering for negligence arising from the termination of his employment.

[3]

This single incident has resulted in two
    separate sets of actions by the moving party and over ten years of litigation
    at all levels of court, ultimately resulting in the dismissal of both actions
    and costs awards against Mr. Hoang, none of which have been paid.

[4]

The first action was dismissed by virtue of a
    summary judgment motion in 2014, with costs awarded against Mr. Hoang. After
    this first dismissal, Mr. Hoang appealed various aspects of the decision to
    this court on four separate occasions, and then finally to the Supreme Court of
    Canada by way of motion for leave on two separate occasions, culminating in a
    dismissal on July 21, 2016, by the Registrar of the Supreme Court.

[5]

On December 8, 2017, Mr. Hoang commenced the
    current underlying action against the same defendants for tortious conduct,
    breach of duty of care, and negligence based on allegations arising out of the
    same termination of employment.

[6]

In the decision dated November 4, 2019, the
    motion judge, Glustein J. of the Superior Court of Justice allowed the responding
    parties motion for summary judgment and dismissed Mr. Hoangs action on the
    basis that there was no genuine issue requiring a trial. He found that the
    responding parties did not owe a duty of care to Mr. Hoang while pursuing
    garnishment proceedings against him. And even if there was a duty of care, Mr.
    Hoang had not established causation between the breach of that duty and the
    loss of his employment. Mr. Hoangs cross-motion for damages was dismissed.
    Costs were again awarded against Mr. Hoang.

[7]

Mr. Hoang appealed Glustein J.s order to this
    court and sought leave to appeal the costs order. In a decision dated December
    16, 2020, this court dismissed the appeal. This court held that the motion
    judge correctly determined there was no triable issue on the question of
    whether the responding parties owed Mr. Hoang a duty of care, as the
    relationship of the parties as a judgment creditor and debtor does not hold the
    requisite proximity to recognize such a duty. The court further held that it
    would be antithetical to the litigation process to find that such a duty
    arises. The court also noted that it was not reasonably foreseeable that the
    responding partys actions could lead to the termination of Mr. Hoangs
    employment.

[8]

Mr. Hoang then brought a motion to this court to
    set aside the December 16, 2020 decision and to allow him to amend
    his pleadings. This motion was dismissed by a panel of this court on October
    21, 2021 pursuant to r. 2.1.02 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, on the basis that it was an abuse of the courts process. The
    court ruled that while this court is empowered to set aside a prior decision
    under r. 61.16(6.1), the circumstances in which it would be appropriate to do
    so were not present. The court determined that Mr. Hoang sought simply to
    re-argue his appeal, which was without merit, and that this attempt formed part
    of a pattern of vexatious conduct. The court also ordered that Mr. Hoang
    be prohibited from filing any further motions without leave of the court.

[9]

Mr. Hoang now brings a motion for leave to file
    a motion seeking one of two forms of relief. He seeks either leave to amend his
    amended statement of claim to add a claim of abuse of process against the responding
    parties and to have Glustein J.s decision set aside and judgment granted in
    his favour; or, leave to amend his amended statement of claim, to set aside the
    decisions of this court, and to re-hear his appeal of Glustein J.s decision.

[10]

Where a court makes an order under r. 2.1.02(1)
    dismissing a motion as an abuse of process, it may also make an order under r.
    37.16 prohibiting a party from filing further motions without first obtaining
    leave:
Rules
, r. 2.1.02(3). Justice Pepall in
Huang v. Braga
,
    2020 ONCA 645 sets out helpful guidance for assessing whether to grant leave to
    file a motion to a party subject to a r. 37.16 order:

Consideration should first be given to the
    strength of the grounds advanced by the moving party. Put differently, are
    there reasonable grounds of appeal that merit granting the leave requested? Second,
    the context of the r. 37.16 order itself should be considered. Is the substance
    of the leave request a continuation of the frivolous and vexatious or abusive
    process that had generated the r. 37.16 order in the first place? The r. 37.16
    order is of course not a bar, but as stated in
Evans v. Snieg
, 2019 ONSC
    7270, at para. 30, such an order should not be lightly disregarded or blithely
    treated. Lastly, the overriding consideration is whether the granting or
    refusal of leave is in the interests of justice.

[11]

I am of the view that this is not one of those
    cases where leave should be granted. First, I find the proposed appeal lacks
    merit and does not put forth any reasonable gronds of appeal. It is essentially
    an attempt to re-argue issues that the moving party has already advanced and
    that were rejected at trial and on appeal in the first action.

[12]

Second, the request for leave to file a motion
    is in fact a continuation of the abusive conduct that made the moving party
    subject to the order in the first place. With the present motion and proposed appeal,
    as in the October 21, 2021 motion, the motion is part of a pattern of conduct
    by which Mr. Hoang has repeatedly challenged the correctness of decisions made
    by this court by way of meritless motions brought in this court after the
    appeal had been decided:
Hoang v. Mann Engineering Ltd
., 2021 ONCA
    742, at para. 9.

[13]

In my view, it is not in the interests of
    justice to grant the motion. Mr. Hoang is unrelenting in his litigation
    efforts. He has exhausted all rights of appeal or revocation for each time he
    has received an adverse judgment. As further pointed out by the respondents, over
    a period of seven years, Mr. Hoang has appeared before this court in the first
    action, in writing or in person, on five separate occasions, and before the
    Supreme Court of Canada on four separate occasions. The second action has been
    active for an additional four years. The finality of this litigation must at
    some point be enforced.

[14]

Accordingly, the moving partys motion is
    denied.

M.
    Tulloch J.A.


WARNING

The Motion Judge 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), (2.1), (2.2), (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 victim 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, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

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

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.B., 2022 ONCA 83

DATE: 20220127

DOCKET: M53067 (C70153)

Lauwers
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent (Responding Party)

and

A.B.

Appellant (Applicant)

James Coulter, for the applicant

Nicolas de Montigny, for the responding
    party

Heard: January 14, 2022 by video conference

REASONS
    FOR DECISION

[1]

The applicant was convicted of two counts of
child luring contrary to s. 172.1(1)(b) of the
Criminal Code
,
    R.S.C., c. C-46 for the purpose of facilitating the commission of an offence
    of sexual assault, and one count of making child pornography contrary to s.
    163.1(2). The applicant was sentenced to 36 months concurrent for child luring
    and 5 months consecutive for child pornography, based on the totality principle.
    This sentence included a 30-day credit for restricted bail conditions, which
    was subtracted from the child pornography sentence. The total sentence is 41
    months.

[2]

The applicant is appealing his conviction and is
    seeking leave to appeal his sentence. He seeks judicial interim release pending
    his appeal. For the reasons that follow, I dismiss the application for bail
    pending appeal.

A.

THE GOVERNING PRINCIPLES

[3]

Applications for bail pending conviction appeal
    are governed by s. 679(3) of the
Criminal Code
. The applicant must satisfy
    the court, on a balance of probabilities, that: (a) the appeal or application
    for leave to appeal is not frivolous; (b) he will surrender himself into
    custody in accordance with the terms of the order; and (c) his detention is not
    necessary in the public interest.

[4]

The Crown opposes release on the ground that the
    applicants detention is necessary in the public interest, on the basis of
    maintaining public confidence in the administration of justice.

[5]

In
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R.
    250, at paras. 23-26, the Supreme Court endorsed the framework for evaluating
    the public interest criterion set out in
R. v. Farinacci
(1993), 86
    C.C.C. (3d) 32 (Ont. C.A.), [1993] O.J. No. 2627. The public interest
    criterion has two components: public safety and public confidence in the
    administration of justice. With respect to the publics confidence in the
    administration of justice, the competing interests of enforceability and
    reviewability must be balanced. As Arbour J.A. said in
Farinacci
, at
    paras. 41-43:

The public interest criterion in s.
    679(3)(c) of the
Code
requires a judicial assessment of the need to
    review the conviction leading to imprisonment, in which case execution of the
    sentence may have to be temporarily suspended, and the need to respect the
    general rule of immediate enforceability of judgments.

Public confidence in the administration of
    justice requires that judgments be enforced. The public interest may require
    that a person convicted of a very serious offence, particularly a repeat
    offender who is advancing grounds of appeal that are arguable but weak, be
    denied bail. In such a case, the grounds favouring enforceability need not
    yield to the grounds favouring reviewability.

On the other hand, public confidence in the
    administration of justice requires that judgments be reviewed and that errors,
    if any, be corrected. This is particularly so in the criminal field where
    liberty is at stake. Public confidence would be shaken, in my view, if a
    youthful first offender, sentenced to a few months imprisonment for a property
    offence, was compelled to serve his or her entire sentence before having an
    opportunity to challenge the conviction on appeal.

[6]

In
Oland
, Moldaver J. elaborated on
Farinacci
s
    approach to the public interest criterion. He noted, at paras. 31-32, that an
    appeal judge hearing an application for bail pending appeal should consider the
    factors stipulated for bail pending trial under s. 515(10)(c) of the
Criminal
    Code
, with necessary modifications to account for the fact that the
    conviction has displaced the presumption of innocence. In the pre-trial context
    the onus is on the Crown to establish that an accused should be detained in
    custody, but the onus rests on the applicant to establish that he should be
    granted bail pending appeal: at para. 35. The factors to be considered are: the
    apparent strength of the prosecutions case; the gravity of the offence; the
    circumstances surrounding the commission of the offence; and the fact that the
    accused is liable, on conviction, for a potentially lengthy term of
    imprisonment.

[7]

Moldaver J. explained how, with appropriate
    modifications, the public confidence factors listed in s. 515(10)(c) are to be
    taken into account by the appeal judge in identifying the factors that make up
    the public confidence component in s. 679(3)(c).

[8]

First, when considering the public confidence
    component under s. 679(3)(c), the seriousness of the crime for which a person
    has been convicted should play an equal role in assessing the enforceability
    interest:
Oland
, at para. 37. An appeal judge should have regard to
    the sentencing judges reasons, and not repeat that evaluation afresh:
Oland
,
    at para. 38.

[9]

Second, Moldaver J. considered the reviewability
    interest, which he identified as the strength of the prosecutions case (s.
    515(10)(c)(i)):
Oland
, at para. 40. In the appellate context, this
    translates into an evaluation of the strength of the grounds of appeal. In
    assessing the reviewability interest, an appeals strength plays a central
    role. Specifically, Moldaver J. endorsed the view expressed by Trotter J.A. in
    his article entitled, Bail Pending Appeal: The Strength of the Appeal and the
    Public Interest Criterion (2001) 45 C.R. (5th) 267, at p. 270, where he
    explained:

[R]ealistically, most cases do not raise
    strong claims regarding the public interest, at least not beyond the general
    concern that all criminal judgments ought to be enforced.... However, when an
    offence is serious, as with murder cases, such that public concern about
    enforceability is ignited, there should be a more probing inquiry into the
    chances of success on appeal. It is in this context that the balancing required
    by
Farinacci
requires some assessment of the merits, separate from the
    question of whether the appeal is frivolous or not. [Footnotes omitted.]

[10]

Moldaver J. added that judges should examine
    the grounds identified in the notice of appeal with an eye to their general
    legal plausibility and their foundation in the record and consider whether those
    grounds clearly surpass the minimal standard required to meet the not
    frivolous criterion:
Oland,
at para. 44.

[11]

After assessing the enforceability and
    reviewability factors, the appeal judge must balance them, keeping in mind
    that public confidence is to be measured through the eyes of a reasonable
    member of the public:
Oland
, at para. 47. This reasonable member of
    the public is someone who is thoughtful, dispassionate, informed of the
    circumstances of the case and respectful of societys fundamental values. There
    is no precise formula, but a qualitative and contextual assessment is required:
    at para. 49. However, Moldaver J. observed that where the conviction is for murder
    or some other very serious crime, the public interest in enforceability will be
    high and will often outweigh the reviewability interest, particularly where
    there are lingering public safety or flight concerns and/or the grounds of
    appeal appear to be weak: at para. 50.

B.

THE PRINCIPLES APPLIED

[12]

As discussed, the applicant must satisfy the
    court that his appeal is not frivolous, that he will surrender himself into
    custody in accordance with the terms of the order, and that his detention is
    not necessary in the public interest.

(1)

Not Frivolous

[13]

The applicant raised five grounds of appeal. The
    primary ground of appeal, which was argued at length, concerns the proper
    interpretation of s. 172.1(1)(b). This section provides:

172.1(1) Every person commits an offence who,
    by a means of telecommunication, communicates with

(b) a person who is, or who the accused
    believes is, under the age of 16 years, for the purpose of facilitating the
    commission of an offence under section 151 or 152, subsection 160(3) or 173(2)
    or section 271, 272, 273 or 280 with respect to that person;

[14]

The offence alleged to have been facilitated in
    this case is sexual assault under s. 271. The applicant argues that the trial
    judge erred in treating the offence of child luring pursuant to section
    172.1(1)(b) in this circumstance as luring for the purpose of any of the
    enumerated offences, rather than the specific offence of sexual assault as pleaded
    in counts 1 and 2 of the Information. I will elaborate on the applicants
    argument below.

[15]

The second ground of appeal is that the trial
    judge erred in law by convicting the applicant on the standard of
recklessness
when assessing whether the essential element of
knowledge
of the
    individuals age was proven beyond a reasonable doubt, while
recklessness
cannot
    be a substitute for knowledge in these particular offences (emphasis in
    original).

[16]

The third ground is that the trial judge erred
    in law by constructively treating the failure to take reasonable steps to
    determine the age of the complainant as an independent pathway to conviction.

[17]

The fourth ground is that the trial judge failed
    to actively engage with the steps and perceptions of someone acting in [the
Daddy-Dom-Little-Girl

    online] community, with its distinctive set of rules and roles, as providing a
    defence regarding the complainants age.

[18]

The fifth ground is that the trial judge erred
    by improperly taking subjective notice of the complainants age by using his
    own independent observations of her in court and the exhibit evidence to
    conclude that a reasonable observer would only view this individual as a
    prepubescent child, and treating the
mens rea
of these offences as
    being objective in nature.

[19]

In my view, the strongest ground of appeal is
    the first one, and I will focus on it in these reasons. The other grounds are
    much weaker, and their cumulative force adds little. That said, the not
    frivolous test is widely recognized as being a very low bar:
Oland
,
    at para. 20. I am satisfied that the appeal is not frivolous.

(2)

Surrender into Custody in Accordance with the
    Terms of the Order

[20]

Before his conviction, the applicant was on bail
    for several years, and compliance was not an issue. The Crown does not oppose
    the bail provisions.

[21]

I am satisfied that the applicant would surrender
    into custody in accordance with the terms of his release.

(3)

The Public Interest

[22]

There are two components to consider under s.
    679(3)(c): public safety and public confidence in the administration of
    justice.

(a)

Public Safety

[23]

While the offences are undoubtedly serious, I
    find the public safety concern to be negligible. The applicant has a strong
    incentive to abide by the terms of any release, as he did in complying with his
    pre-trial bail, given the appeal. I am satisfied that the applicant has
    demonstrated on a balance of probabilities that he is not a public safety
    threat and will not likely commit further offences if released on bail pending
    his appeal.

(b)

Public Confidence in the Administration of
    Justice

[24]

As outlined above, the public confidence
    component requires courts to strike a balance between enforceability and
    reviewability.

Enforceability

[25]

With respect to enforceability, [p]ublic
    confidence in the administration of justice requires that judgments be enforced:
Farinacci
, at para. 42. Several factors in this case weigh heavily in
    favour of enforceability and against the release of the applicant. The
    seriousness of the crime, as noted in
Oland
, figures in the assessment
    of the enforceability interest.

[26]

The applicant was convicted
of
egregious child luring under s.
    172.1(1)(b) on two counts, for the purpose of facilitating the commission of
    an offence of sexual assault, and on one count of making child pornography
    contrary to s. 163.1(2). At sentencing, the trial judge found:
In this particular case, the child luring
    committed by [the applicant] was particularly serious and involves a high level
    of moral blameworthiness. However, he added: While the communications were
    graphic and continued, I did not find the offender was grooming the child to
    eventually meet. He was using her for online sexual gratification.

[27]

The trial judge pointed out several aggravating
    factors, including the length of time the luring went on, the existence of an
    actual 13 year old victim, which was expressly conveyed to [the applicant] by
    the girl and the officer posing as the girl and yet he failed to desist, and
    the transmission of sexually explicit material, including a video of himself
    masturbating to a real 13 year old child. He concluded: in the circumstances,
    the sentence, even for a first offender, must be a penitentiary term, even if it
    is imposed in the period of the Covid pandemic.

[28]

The trial judge also referred to mitigating
    factors, noting the absence of a prior record, a positive pre-sentence report, the
    applicants history of secure employment, and a supportive family who are
    aware of the offences. He considered positively that the applicant has
    undertaken some counselling and is prepared to continue with counselling. The
    trial judge noted: There appears to be genuine remorse for the consequence of
    his actions. Despite these mitigating factors, the trial judge saw fit to impose
    a significant penitentiary sentence of 41 months.

[29]

To conclude, in my view the enforceability
    interests weigh heavily against release. The offences were very serious, there
    were aggravating factors, and the applicant was sentenced to a lengthy term of
    imprisonment.

Reviewability

[30]

Moldaver J. noted in
Oland
, at para.
    40, that the strength of the appeal plays a central role in assessing the
    reviewability interest. In my view, while a preliminary assessment of the
    strength of the appeal reveals that the grounds of appeal are arguable, they do
    not
clearly surpass
the minimal standard required
    to meet the not frivolous criterion (emphasis added):
Oland
, at
    para. 44.

The Strength of the Appeal

[31]

As noted above, the applicants main argument is
    that the trial judge erred in treating the offence of child luring pursuant to
    section 172.1(1)(b) in this circumstance as luring for the purpose of any of the
    enumerated offences, rather than the specific offence of sexual assault as pleaded
    in counts 1 and 2 of the Information.

[32]

In other words, the applicant takes the position
    that the Crown was obliged to prove the mental element or
mens rea
attached to sexual assault in order to get a conviction. The applicant asserts
    that because the trial judge found that he had intended never to meet with the
    complainant because he valued his anonymity, it was therefore impossible [for
    him] to have facilitated the offence of a sexual assault. Putting it in
    other words: The purpose of the communications could never have been intended
    to facilitate the commission of the offence of sexual assault, if there was
    never an intention to meet in person. The applicant cites the Supreme Court
    for the proposition that: the accused must be shown to have engage[d] in the
    prohibited communication with the
specific intent
of facilitating the commission of one of the designated offences with respect
    to the underage person who was the intended recipient of communication
    (emphasis in original):
R. v. Legare
, 2009 SCC 56, [2009] 3
    S.C.R. 551, at para. 32, citing
R. v. Alicandro
, 2009 ONCA 133,
    95 O.R. (3d) 173.

[33]

First, in my view the applicant overstates the
    trial judges finding. Second, he misconstrues
Legare
.

[34]

In
    his reasons, the trial judge found a reasonable doubt that the applicant was
    working towards a meeting with the 13-year-old complainant. He said:

The prospect of a meeting is not the
sine
    qua non
of the offence as contemplated by s. 172.1 of the
Code
.
    Even when no meeting is arranged, an

accused can facilitate a sexual
    offence with a

young person.

The accused may have spoken about a meeting in
    Kingston to continue the narrative and he may have ultimately arranged to meet
    the young person if the communications had continued, but I accept his
    communications with the young person at that stage were part of the narrative
    only and he wanted this to be an online anonymous relationship. In his
    conversation with Detective Wohlert, it was the Detective who was driving the
    meeting discussions. The accused did not terminate that discussion and, as I
    said,
he may have ultimately wished to meet the young
    person, but he has raised a doubt that he had intentions at that time to meet
    the young person
.

[35]

Contrary to the applicants assertion, the trial
    judge did not find that the applicant intended to
never
meet with the complainant.

[36]

The applicant highlights para. 32 of Fish J.s
    reasons in
Legare
, which I more fully quote here:

[T]he intention of the accused must be
    determined
subjectively
.... As Doherty J.A. stated in
Alicandro
, at para. 31, the accused must be shown to have engage[d] in the
    prohibited communication with the
specific intent
of facilitating the
    commission of one of the designated offences with respect to the underage
    person who was the intended recipient of communication. [Italics and
    underlining in original.]

[37]

However, these words must be taken in context
    with para. 25, which initiates and conditions the ensuing discussion, including
    para. 32:

[38]

It will immediately be seen that s. 172.1(1)(c)

creates an incipient or inchoate offence, that is, a preparatory crime
    that captures otherwise legal conduct meant to culminate in the commission of a
    completed crime. It criminalizes conduct that
precedes
the commission
    of the sexual offences to which it refers, and even an attempt to commit them.
    Nor, indeed, must the offender meet or intend to meet the victim with a view to
    committing any of the specified secondary offences. This is in keeping with
    Parliaments objective to close the cyberspace door before the predator gets in
    to prey. [Emphasis in original.]

[39]

I note that in
R. v.

Morrison
,
    2019 SCC 15, [2019] 2 S.C.R. 3, Moldaver J. cited
Legare
and affirmed,
    at para. 40, that [t]here is no requirement that the accused meet or even
    intend to meet with the other person with a view to committing any of the
    designated offences. See also Professor Hamish Stewarts article,
Legare
:
Mens Rea
Matters (2010) 70 C.R. (6th) 12. Both counsel agree that
    they were unable to find any cases that take the approach the applicant proposes.

[40]

I would not say the applicants case is
    frivolous. But it is weak in view of Fish J.s clear language in para. 25
    of
Legare
. It is not the
mens rea
of the specified offence
    sought to be facilitated  in this case sexual assault  that the Crown must
    prove. It is sufficient for the Crown to prove facilitation itself, which includes
helping to bring about and making easier or more probable
 for example,
    by luring or grooming young persons to commit or participate in the
    prohibited conduct; by reducing their inhibitions; or by prurient discourse
    that exploits a young persons curiosity, immaturity or precocious sexuality
    (emphasis in original):
Legare
, at para. 28.

Discussion

[41]

I turn to the factors to be balanced. I see the
    Crowns position in the appeal as strong, and the applicants as weak. These
    vile crimes are grave, and the applicant has been sentenced to a lengthy term
    of imprisonment.

[42]

While it is relatively rare for a bail pending
    appeal application to be resolved on public confidence considerations, this is
    one of the difficult cases ... in which the public confidence component is
    raised:
Oland
, at para. 30. The interest in enforceability is very
    strong. The interest in reviewability is not.

[43]

Ultimately, although the reviewability interest
    still supports release, the applicants conviction on three serious counts
    mitigates the strength of the reviewability interest. In short, the
    enforceability interest outweighs the reviewability interest in this case. Were
    the applicant to be released pending appeal, I have no hesitation in concluding
    that a reasonable member of the public, informed of the egregious
    circumstances, would lose confidence in the administration of justice.

[44]

I find that the detention of the applicant is
    necessary in the public interest and dismiss the application for bail pending
    appeal.

[45]

I am mindful of Arbour J.A.s comments in
Farinacci
,
    at para. 43, that the court must keep in mind a situation in which denial of
    bail would render the appeal nugatory, for all practical purposes because the
    sentence will have been largely served before the appeal is resolved. I therefore
    order that the appeal be expedited, pursuant to s. 679(10) of the
Criminal
    Code
.

P.
    Lauwers J.A.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (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 victim 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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
        286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
        it read at any time before the day on which this subparagraph comes into force,
        if the conduct alleged involves a violation of the complainants sexual
        integrity and that conduct would be an offence referred to in subparagraph (i)
        if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
        s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right
    to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18.

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.
    Marshall, 2022 ONCA 84

DATE: 20220201

DOCKET: C68029

Pardu, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Richard Marshall

Appellant

Vanessa Carew, for the appellant

Caitlin Sharawy, for the respondent

Heard: January 20, 2022 by video conference

On appeal from the conviction entered on April 5, 2019
    and the sentence imposed on November 21, 2019 by Justice Michelle OBonsawin of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions for sexual assault, common assault,
    and mischief. He also seeks leave to appeal his global sentence of four years.

[2]

The complainant and the appellant were long-time acquaintances who
    reconnected on Facebook. They made plans to get together at the appellants
    apartment on the evening of October 19, 2019 to watch videos, drink, and smoke
    pot.

[3]

The appellant met the complainant at a nearby bus stop around 10 p.m. and
    they walked to his apartment. Once at the apartment, the two sat together on
    the living room couch, watched videos, drank, and smoked. On the complainants
    evidence, at one point the appellant kissed her. She did not reciprocate, and
    told him that was not what the evening was about. Later, on three or four
    occasions when she had to lean over the back of the couch to plug in her phone,
    he touched her rear. Each time she reproved him, but did not make a big deal of
    it.

[4]

At some point the evening began to sour and the appellant left the couch
    and went to his room. The complainant was unsure whether he would return. The
    appellants roommate testified that the complainant came to her room and told
    her that the appellant had ditched her. They commiserated, and the roommate
    gave the complainant a cigarette. The complainant returned to the living room
    couch and occupied herself by taking selfies, the last of which was timestamped
    1:02 a.m. The complainant surmised the appellant had gone to his room to sleep
    it off and would not be coming back. As it was late and she was unsure of how
    to get home at that time of night, she decided to sleep on the couch.

[5]

Shortly after she took the last selfie, however, the appellant returned.
    The trial judge accepted the complainants evidence that the appellant suddenly
    approached her and choked her for about 5 seconds, using one hand. She fought
    him off and fell to the floor. He told her to get out. She told him that she
    needed time to sort out how to get home. Her phone only worked with Wi-Fi, and
    the battery would not hold a charge for very long and needed to be frequently
    plugged in.

[6]

She again reached over the back of the couch to reach the electrical
    outlet and plug her phone charger in. The trial judge accepted the
    complainants evidence that the appellant came behind the complainant, pulled
    her sweatpants down, inserted his penis in her butt, and thrust three or four
    times until she was able to push him off, and found that the appellant had anally
    penetrated the complainant. The trial judge also found that the appellant
    pulled the necklace from the complainants neck, causing its pendant to fall
    off.

[7]

The complainant quickly gathered her things and fled. She inadvertently
    took a photo with her phone immediately outside the apartment door. It was
    timestamped shortly after 2 a.m. and showed her to be distraught. She fled the
    building, got lost, and collapsed on the sidewalk where she was found by a
    stranger who took her in and helped her place a 911 call. The claimant went to
    the hospital, where a sexual assault kit was administered. DNA matching the
    appellant was found on her external genitalia and left breast. An anal swab was
    inconclusive for presence of DNA matching the appellant.

[8]

On the appellants account of events, they had engaged in consensual
    kissing with increasing intensity, but never any form of sexual intercourse. He
    denied choking the complainant, breaking her necklace, or sexually assaulting
    her. He claimed that the complainant was upset that he had ditched her, and she
    began trashing the apartment before he had to physically eject her.

[9]

The only other witness to what transpired was the appellants roommate,
    who stayed in her room for the most part. She testified that the complainant
    had knocked on her door looking for the appellant after the appellant had
    withdrawn to his room. She was later awakened by hearing the complainant yelling
    how could you do this and get off me.

Issues:

[10]

The
    appellant argues that the trial judge erred in four respects:

1.

Misapprehending the DNA evidence and finding that it corroborated the
    claim that the appellant had sexually assaulted the complainant;

2.

Failing to resolve material inconsistencies in the Crowns evidence;

3.

Ignoring contradictory post-offence conduct by the complainant;

4.

Convicting the appellant of mischief in the absence of evidence capable
    of supporting a conviction.

[11]

With
    respect to the sentence appeal, the trial judge is said to have made three
    errors:

1.

Failing to account for custody served between sentencing submissions and
    the date of sentence;

2.

Taking into account aggravating factors that had not been proven; and

3.

Effectively sentencing the appellant for aggravated assault rather than
    common assault.

Analysis

[12]

With
    respect to the appeal against conviction, as we explain below, we do not agree
    that the trial judge made the errors alleged except with respect to the
    conviction for mischief, which we set aside. We also dismiss the appeal against
    sentence, with the exception of the failure to give credit for time served
    between the sentencing submissions and imposition of sentence, which is
    conceded by the Crown.

(1)

The DNA evidence

[13]

The
    trial judge found that the DNA evidence corroborated the complainants
    testimony. The appellant argues that the DNA evidence was neutral, and not
    capable of corroborating that an assault took place, as opposed to consensual
    activity.

[14]

We
    disagree. We understand the trial judge to have come to the conclusion that the
    evidence of the appellants DNA on the complainants external genitalia was to
    some degree confirmatory of the complainants testimony that the appellant had anally
    penetrated her, which it was. The appellant suggested that perhaps his DNA had
    transferred from his hand to hers, and then from her hand to her genitalia.
    This theory of transfer was not supported by the expert evidence and the trial
    judge made no error in rejecting it. It would have been better for the trial
    judge to have stated that the DNA evidence was confirmatory of an element of
    the offence  that some sexual activity had taken place  rather than corroborative
    of an offence having been committed. Her wording could be misinterpreted as suggesting
    she believed the presence of DNA was conclusive that the appellant had
    committed a sexual assault, but the reasons as a whole do not support such a
    reading, and we do not agree that she erred.

(2)

Failure to resolve material consistencies

[15]

The
    appellant argued that the trial judge engaged in differential scrutiny of
    evidence throughout, faulting the appellant for all inconsistencies in his
    evidence while ignoring or failing to resolve material consistencies in the
    Crowns evidence.

[16]

One
    example is the trial judges treatment of the evidence of the registered nurse
    who examined the complainant. The trial judge found that some of her evidence corroborated
    the complainants version of events. The appellant argues that the trial judge
    should have treated all of it as neutral, except for evidence that was
    inconsistent with the complainant suffering injury, which the trial judge
    should have treated as corroborating the appellants version of events. The
    complainant had said she had bleeding cuts on her fingers, but the nurse did
    not record any bleeding. There was no apparent rectal injury. The complainant
    ticked a box on an intake form indicating the appellant had ejaculated inside
    her, but there was no evidence of spermatozoa found.

[17]

The
    trial judge did not err in her characterization of this evidence. Whether the complainant
    was bleeding at the hospital is not dispositive of whether she was bleeding
    when she left the apartment. The observation about the absence of visible
    rectal injury was not a matter of bolstering the credibility of the complainant,
    but of negating the appellants allegation that anal penetration could not have
    happened without causing injury. The absence of evidence of spermatozoa was
    neutral  the rectal swab was inconclusive, and the complainant was not
    cross-examined on this issue.

[18]

Similarly,
    with respect to the timing of events, the trial judge made no error in finding
    it immaterial that the complainant could not account with perfect detail what
    occurred in the hour between taking the last selfie and exiting the apartment. The
    complainant explained the assault and sexual assault, verbal exchanges with the
    appellant, and attempts made to charge and use her phone to try to arrange for
    someone to come and pick her up. It is not implausible that all of these events
    could have occurred over the course of an hour.

[19]

The
    appellants testimony was in many respects unbelievable, including his police
    statement that he could not remember who the complainant was. The roommate did
    not corroborate his evidence that the complainant had trashed the apartment. It
    was immaterial that the complainant did not remember knocking on the roommates
    door and looking for the appellant.

(3)

Post-offence conduct

[20]

Of
    the many other inconsistencies raised by the appellant  such as whether the
    complainant was able to use her phone or not, whether she knew where she was or
    not  the trial judge considered and rejected them. She gave reasons for doing
    so. There was no error.

(4)

Mischief charge

[21]

The
    appellant argues that there was insufficient evidence to ground a conviction
    for mischief, and the trial judges conclusion that the appellant intentionally
    broke the complainants necklace and caused the pendant to be lost was
    unsupported and conclusory.

[22]

We
    agree that the trial judge did not engage in any analysis of this issue that
    allows for meaningful appellate review. The appellants evidence was that the
    necklace broke, and that he found the pendant on the floor, but on his account
    the necklace came off when it got caught in the complainants jacket when she
    went to leave. The conflicting evidence was not resolved by the trial judge and
    the conviction on this count cannot stand.

Sentence appeal

(1)

Presentence custody

[23]

The
    Crown concedes that the trial judge failed to account for 8 days of
    pre-sentence custody, which would amount to a deduction of 12 days from the
    global sentence.

(2)

Aggravating factors not proven

[24]

The
    appellant argues that in sentencing the trial judge relied on aggravating
    factors that were not proven: for example, that the complainant suffered
    physical and emotional harm, and that the complainant was vulnerable. The
    appellant argues there was no evidence of physical injury, the complainant did
    not provide a victim impact statement, and the trial judge appears to have
    relied overmuch on the complainants demeanour in giving testimony to conclude
    she had been traumatized.

[25]

We
    do not agree. Although the trial judge wrote at length about the complainants
    demeanour, and it would be dangerous to base findings of harm on demeanour in
    giving evidence, there was much else in the reasons for sentence to explain the
    trial judges conclusion. The nature of the offence itself  an anal rape  is
    an inherently degrading act of violence that one would not expect a victim to
    easily set aside:
R. v. McCraw
, [1991] 3 S.C.R. 72, at p. 73. The
    photo the complainant inadvertently took of herself while she was leaving and
    the 911 call also demonstrate that the complainant had been shaken by what she
    had just experienced.

[26]

With
    respect to the complainant being in a position of vulnerability, there was
    ample evidence to support that conclusion. She had been a guest in the home of a
    man who was much larger than she, who had suddenly and violently assaulted her.
    It was late at night. She did not know precisely where she was. She had no
    money. Her phone was unreliable. It was not immediately obvious to her how to
    get home, or whether she had the resources to get home. When she fled the
    apartment, she ended up collapsed on a sidewalk, and had to rely on the
    kindness of a stranger  itself a dangerous situation  to find shelter and phone
    for help.

(3)

Assault versus assault causing bodily harm

[27]

The
    trial judge made an initial error in her draft reasons in stating she was
    sentencing the appellant for the offence of assault causing bodily harm, rather
    than the offence of assault, for which he was actually convicted. When defence
    counsel pointed out the error, the trial judge corrected it, and stated that
    the sentence imposed nevertheless remained appropriate. The appellant argues
    that the trial judges error demonstrates that she imposed her sentence while
    believing, erroneously, that the appellant had been convicted for assault
    causing bodily harm, and imposed a sentence  one year in custody  befitting
    an assault causing bodily harm. We do not agree. The trial judge referred to
    the appropriate offence throughout the substance of the reasons for sentence and
    accurately described the evidence related to the assault. Although one year
    might be considered a heavy sentence for an assault, it is within the
    appropriate range, particularly given that the appellant is a violent recidivist
    and was on parole at the time of the commission of the offences.

DISPOSITION

[28]

The
    appeal against conviction is allowed with respect to the conviction for
    mischief. The appellants conviction for mischief is quashed. In all other
    respects, the appeal against conviction is dismissed. Leave to appeal sentence
    is allowed, and the appeal against sentence is dismissed, except with respect
    to the failure to give credit for 8 days served between the sentencing
    submissions and imposition of sentence, which amounts to a deduction of 12 days
    from the appellants global sentence.

G. Pardu J.A.

L.B. Roberts J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Durant (Re), 2022 ONCA 86

DATE: 202202
01

DOCKET: C69605

Strathy C.J.O.,
    Harvison Young and Zarnett JJ.A.

IN THE MATTER OF: Bernard Durant

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

Jeff Marshman, for the appellant

Jacob Millns, for the Attorney General of Ontario

Gavin S. MacKenzie, for Ontario Shores Centre for Mental
    Health Sciences

Heard: January 19, 2022 by video conference

On appeal against the disposition of the Ontario Review
    Board, dated June 23, 2021.

REASONS FOR DECISION

Overview

[1]

This is an appeal from the disposition of the
    Ontario Review Board [the Board] dated June 2, 2021, ordering the appellant
    Bernard Durants continued detention in forensic custody at the Ontario Shores
    Centre for Mental Health Services [the Hospital]. The only disputed issue
    between the parties before the Board was whether Mr. Durants detention order
    should include the possibility that community living privileges could be
    extended to him in the course of the 2021-2022 reporting year at the discretion
    of the Hospital.

[2]

The appellant argues that the Boards refusal to
    include such a provision was unreasonable and a reversible error because it
    resulted in a disposition that was neither the least onerous nor the least
    restrictive one available. The respondent, on the other hand, submits that given
    the record before the Board and the recommendations of the treatment team, the
    disposition was reasonable and is owed significant deference. For the reasons
    that follow, we are of the view that the Boards decision was reasonable, and
    the appeal should be dismissed.

[3]

Bernard Durant was 31 years old at the time of
    the subject hearing. He has been under the jurisdiction of the Board since
    being found not criminally responsible on account of mental disorder (NCR) on
    May 27, 2013, of a number of charges. These charges all arose as a result of a
    series of incidents over about 6 hours, including the robbery of a convenience
    store while threatening to kill the attendant, stealing a car after threatening
    the driver, driving erratically and colliding with a parked car, and evading
    the police and ramming a number of police vehicles when he was boxed in. He was
    finally apprehended after being shot in the leg.

[4]

The appellant has been diagnosed with schizophrenia and a polysubstance
    abuse disorder, including cocaine, marijuana and alcohol. In early 2020, he was
    also diagnosed with borderline personality disorder. Although he has been under
    the jurisdiction of the board since 2013 when he was found NCR in relation to the
    index offences, he has not been continuously subject to a detention order.

[5]

After he began taking medication to manage his schizophrenia, his
    condition rapidly improved. He began living in the community in May 2015, first
    in a group home, and later in an independent Canadian Mental Health Association
    (CMHA) apartment. He was conditionally discharged in 2016, but after a period
    of decompensation the Board ordered his detention in November 2018. He was
    charged with assault and assault with a weapon after he had engaged in an altercation
    with a friend, hitting him over the head with a television. He has remained in detention
    at the Hospital since. It is clear from both the Hospital report and the Board
    decision that the appellants treatment team has, and continues to, work with him
    toward the goal of community reintegration.

[6]

The last reporting year was not a good one for Mr. Durant. In October
    2020, he eloped from a sleep clinic while alone in his room. He called the police
    and was returned to the institution a number of hours later, having consumed
    both cocaine and alcohol in the meantime. In April 2021, he eloped a second
    time, this time barging through the unit door, attempting to steal a vehicle,
    stealing a bicycle and assaulting a security guard who was trying to stop him after
    he rode it to the nearby GO station. Mr Durant continued to hit the guard,
    having pinned him against a car with the bicycle, until he was tasered by
    police.

[7]

The appellant acknowledges that he presents a significant risk to the safety
    of the public and needs to remain detained at this point at the Hospital. The
    sole dispute is whether the Board erred by failing to include a provision in
    the detention order permitting the Hospital to grant the appellant community
    living privileges over the current reporting period if it becomes feasible.

[8]

On his behalf, Mr. Marshman argues that such a disposition would have
    had the benefit of rendering it possible during the 2021-2022 reporting year
    that in the event of dramatic improvement, the appellant could be granted some
    community living privileges. This would be entirely within the discretion of
    the Hospital. He also argues that this would have been beneficial because a
    community living provision would have provided the appellant with some hope as
    well as an incentive to work toward this goal. This would alleviate the
    appellants sense of frustration, which has, he submits, contributed to his elopement
    attempts. He submits that because of the failure to include the possibility of
    community living, the Board failed in its duty to make the least onerous and
    least restrictive disposition possible.

[9]

We disagree. The Board carefully reviewed the appellants personal,
    psychiatric and criminal history, considering the incidents occurring within that
    context. It began by accepting the undisputed position of all parties that the
    appellant remained a significant risk to the safety of the public, going on the
    state that the risk flows from his diagnosis of a major mental illness (schizophrenia),
    substance use disorder, and his personality disorder. When he decompensates, he
    is prone to environmental aggression as the incidents occurring in the previous
    year illustrated.

[10]

The
    Board relied on the uncontroverted and expert medical opinion of Dr. Chapman, whose
    opinion was that the appellant requires an inpatient admission at this time and
    that a conditional discharge would be premature. The Board accepted the Hospitals
    view that his ongoing elopement risk required his continuing detention within the
    forensic program.

[11]

In
    addition, the Board credited the appellant with the positive steps he has been
    taking recently, noting his willingness to participate in and contribute to
    various therapy programs. It also commended him for his insight into his illness
    and his recognition of the fact that his illness requires that he take his
    medication in perpetuity.

[12]

In
    considering the appellants request for a community living provision, and in view
    of the record before it, the Board found no air of reality to the possibility that
    the appellant could be an appropriate candidate for community living within the
    current reporting year. That was because of the ongoing elopement risk and
    associated risks of substance abuse and decompensation. It noted that if his
    clinical presentation were to improve significantly, an early hearing could,
    and should, be convened. His next annual hearing has been scheduled to take place
    in June 2022.

[13]

Moreover,
    there was no evidence to support the appellants argument that a community
    living provision would help alleviate his ongoing frustration and provide an incentive
    for him in the course of the current reporting year. Rather, the only evidence on
    the point was specifically provided by Dr. Chapman at the hearing in which he
    disagreed with the appellants submission on this point:

[A] committee recommendation,
    (indiscernible) thats not going to happen, will only increase his frustration,
    and therefore also increase the tendency to take advantage of a situation where
    he can elope.

[14]

In
    short, the Boards refusal to include a community living privilege provision in
    its disposition was amply grounded in the record before it, as was its conclusion
    that its disposition was the least onerous and least restrictive appropriate at
    this time. The decision was reasonable, and the appeal is therefore dismissed.

G.R. Strathy C.J.O.

A. Harvison Young J.A.

B. Zarnett J.A.