COURT OF APPEAL FOR ONTARIO

CITATION: Orion Interiors Inc. v. State Farm Fire and
    Casualty Company, 2016 ONCA 164

DATE: 20160229

DOCKET: C59989

Simmons, Pepall and van Rensburg JJ.A.

BETWEEN

Orion Interiors Inc.

Plaintiff (Appellant)

and

State
    Farm Fire and Casualty Company a.k.a. State Farm,

Rhyl Realty Inc.
,
    John Doe1, John Doe2, and John Doe3

Defendants (
Respondent
)

Stephen Panzer, for the appellant

Christopher R. Dunn and Joanna F. Reznick, for the
    respondent

Michael Unea, for the third party Metal Craft Mechanical
    Inc.

Heard: February 12, 2016

On appeal from the judgment of Justice Victoria R. Chiappetta
    of the Superior Court of Justice, dated January 6, 2015, with reasons reported
    at 2015 ONSC 248.

ENDORSEMENT

[1]

The appellant, Orion Interiors Inc., is the tenant of commercial
    premises owned by the respondent landlord, Rhyl Realty Inc. (the Leased
    Premises). The parties signed a lease in August 2005 with a term that ended in
    October 2010. The appellant continued to occupy the Leased Premises and to pay
    rent. Although there were negotiations, the parties never signed a lease
    extension or renewal.

[2]

The original lease required the tenant to obtain various types of insurance,
    including all risks insurance in an amount equal to the full replacement
    costs of all improvements, equipment and chattels in or serving the Leased
    Premises. The tenant was required to include the landlord as a named insured
    and the insurance policies were to contain a waiver of any subrogation rights
    by the tenants insurers against the landlord. These provisions are found in
    section 7.01 of the lease.

[3]

The lease also provided, in section 7.04, that the landlord was not
    liable for, among other things, damage to the tenants property, whether or not
    resulting from (a) the negligence of the landlord or those for whom it may in
    law be responsible; or (b) by the landlords failure to supply any services or
    utilities required by the lease where the failure was beyond the landlords
    reasonable control. It also provided that [t]he intent of this Section is that
    the Tenant  is to look solely to its insurers to satisfy any claim which may
    arise on account of  loss or damage, irrespective of its cause.

[4]

The tenant purchased all-risks property insurance from State Farm Fire
    and Casualty Company (State Farm), with the landlord as a named insured (the
    all-risks policy).

[5]

In July 2012, there was a flood that resulted in damage to the Leased
    Premises and its contents, after a rubber drain plug in a drain line from the
    roof of the building dislodged. The plug had been installed by Metal Craft
    Mechanical Inc. (Metal Craft), a company contracted by the landlord to
    perform work on the roof.
[1]

[6]

The appellant made a claim under the all-risks policy and State Farm
    paid the limits thereunder. The appellant was under-insured and commenced an
    action against the landlord claiming the balance of its loss.

[7]

The landlord third partied Metal Craft in the appellants action. The appellant
    also commenced a separate action against Metal Craft which in turn third
    partied the landlord.

[8]

The decision under appeal is the summary dismissal of the appellants action
    against the landlord. The motion judge concluded that this was an appropriate
    case for summary judgment. The main issue involved contract interpretation and
    the basic application of the law to the contract. She found that the terms of
    the lease governed the parties at the time of the flood notwithstanding that
    the term had expired. Interpreting the provisions of the lease in light of
    relevant case law, she found that the tenants covenant to maintain all-risks insurance
    in its name and the name of the landlord in an amount equal to the replacement
    cost of its property in the Leased Premises, and the provision that the
    landlord was not liable for damage to the tenants property, operated as an
    assumption by the tenant of the risks associated with the insured loss, and
    barred the tenant from claiming damages against the landlord, irrespective of
    the cause of the loss.

[9]

The respondent landlord was awarded costs of the proceedings in the sum
    of $28,000, inclusive of disbursements and taxes.

[10]

The
    appellant appeals the summary judgment and seeks to appeal the award of costs.

[11]

The
    appellant asserts that the motion judge made three errors in dismissing its
    claim against the respondent.

[12]

First,
    the appellant says that this was not an appropriate case for summary judgment,
    essentially because there were facts in dispute, and there is a risk of an
    inconsistent verdict in its separate action against Metal Craft.

[13]

There is no merit to this argument. At issue was the
    interpretation of the lease between the parties and the application of settled
    law to that lease. This court has determined that summary judgment is
    appropriate for deciding landlord/tenant waiver of subrogation cases: see
Amexon
    Realty Inc. v. Comcheq Services Ltd.
(1998), 37 O.R. (3d) 573, 1998 (C.A.).

[14]

Further,
    there is no risk of inconsistent verdicts. The summary judgment decision
    determined that, irrespective of why the flooding occurred  including whether
    it resulted from an act or omission of the landlord, or of its contractor  the
    risk of damage to its property was assumed by the tenant without the right by
    its insurer to subrogate, and without the tenants right to sue the landlord.
    The issues in the appellants action against Metal Craft  whether any act or omission
    of Metal Craft caused or contributed to the tenants loss, and whether the appellant
    has a claim against Metal Craft  are issues that have not been determined by
    the summary judgment decision.

[15]

We
    do not give effect therefore to the appellants argument that the case was
    unsuitable for summary judgment.

[16]

Second,
    the appellant argues that the terms of the lease, including the provisions
    relating to insurance, do not govern where the lease expired and was never
    renewed. In our view, s. 14.03 of the lease provides a complete answer: the
    appellant was an overholding tenant that remained in the Leased Premises
    subject to the terms, covenants and conditions set forth in the lease. The fact
    that the landlord did not exercise its option to double the base rent does not
    take the parties continuing relationship outside of this provision. See also:
AIM
    Health Group Inc. v. 40 Finchgate Limited Partnership
, 2012 ONCA 795, 113
    O.R. (3d) 187.

[17]

Third,
    the appellant asserts that, to the extent that the flooding resulted from the
    landlords failure to fulfill its obligations under the lease to keep the
    Leased Premises in good repair, it retains the right to sue the landlord,
    notwithstanding its obligation to insure and the related lease provisions. In
    this regard, the appellant relies on the landlords obligation under the lease
    to maintain and repair the roof drain system, and the wording of s. 7.04 of the
    lease. The appellant asserts that the landlord was to retain liability for
    breaches of the lease within its reasonable control. The appellant argues that
    the motion judge failed to make the necessary findings of fact about the cause
    of the flooding and whether the landlord had violated the covenant to repair,
    and failed to interpret the lease as a whole.

[18]

We
    disagree. The line of authority including
Madison Developments Ltd. v. Plan
    Electric Co.
(1997), 36 O.R. (3d) 80, 1997 (C.A.), leave to appeal
    refused, [1997] S.C.C.A. No. 659 and the Supreme Court of Canadas trilogy of
    decisions in
Agnew-Surpass v. Cummer-Yonge
,

[1976] 2 S.C.R.
    221,
Ross Southward Tire v. Pyrotech Products
, [1976] 2 S.C.R. 35, and
T. Eaton Co. v. Smith et al.,
[1978] 2 S.C.R. 749 applies. See also
    this courts recent decision in
D.L.G. & Associates Ltd. v. Minto
    Properties Inc.
, 2015 ONCA 705, at para. 19. The terms of the lease
    respecting insurance had the effect of shifting to the appellant the risk of
    damage to its property from an insured peril, in this case, flooding. This is
    so regardless of whether the landlords conduct in relation to the flooding is
    characterized as a breach of the lease or, as the appellant argues in the
    alternative, a fundamental breach or gross negligence. The tenant had a
    contractual obligation to insure its property against such a risk to its full
    replacement cost value and failed to do so. As the motion judge noted at para.
    23 of her decision, the assumption of risk that was bargained for cannot be
    transferred simply because the appellant failed to properly insure itself.

[19]

As
    for its appeal of the costs award, the appellant did not seek leave to appeal.
    In any event, the appellant would not have met the test for leave to appeal the
    motion judges discretionary costs award.

[20]

Accordingly, the appeal is dismissed. Costs to the respondent
    on a partial indemnity basis, in the amount agreed between the parties: $10,000
    inclusive of HST, plus disbursements of $1,000.

Janet Simmons J.A.

S.E. Pepall J.A.

K. van Rensburg J.A.

[1]
Although Metal Crafts counsel attended the hearing of the appeal, Metal Craft
    took no part in the appeal. The motion judges endorsement incorrectly shows
    Metal Crafts counsel as attending the summary judgment motion. Metal Craft was
    not a party to the summary judgment motion and took no part in the motion.


COURT OF APPEAL FOR ONTARIO

CITATION: Pickering (City) v. Slade, 2016 ONCA 133

DATE: 20160216

DOCKET: C60716

Simmons, van Rensburg and Roberts JJ.A.

BETWEEN

The
    Corporation of the City of Pickering and

Kyle
    Bentley as the Chief Building Official of the City of Pickering

Respondents

and

James Slade and Nancy Slade

Applicants/Appellants

James Slade and Nancy Slade, in person

N. Cameron Murkar, for the respondents

Heard and released orally: February 10, 2016

On appeal from the judgment of Justice H.K. OConnell of
    the Superior Court of Justice, dated March 10, 2015.

ENDORSEMENT

[1]

The appellants appeal from a judgment prohibiting them from depositing
    additional fill on their property; requiring them to remove deposited fill such
    that the grade and elevation of their property complies with a drainage and
    grading drawing approved when their building permit was issued; and granting
    certain ancillary relief.

[2]

The appellants raise multiple grounds of appeal challenging the
    procedures adopted in hearing the application, the timeliness of the
    application, the interpretation of the bylaw underpinning the application and
    the application of the bylaw in the face of the
Farming and Food Production
    Protection Act, 1998
, S.O. 1998, c. 1.  They also seek to file fresh
    evidence on appeal.

[3]

We see no merit in this appeal.  The appellants have not established
    procedural unfairness or violation of an applicable limitation period.  The
    bylaw underpinning the Citys injunction application prohibits the deposit of
    fill without a permit.  Fill is broadly defined and includes soil.  We see no
    basis on which to interfere with the application judges conclusions that the
    appellants have deposited, or permitted the deposit of, fill beyond that
    allowed under their building permit and that, as of the date of the hearing,
    the appellants operations did not resemble a normal farming operation that
    might have engaged any applicable exemption.

[4]

Further, with respect to the appellants assertion that they intended to
    commence farming operations, as the application judge noted, as of the date of
    the hearing, there was no evidence that had been done.  Nor had the appellants
    applied for an order under s. 6(2) of the
Farming and Food Production
    Protection Act
.  The mandatory order granted by the application judge is
    authorized under s. 38 of the
Building Code Act, 1992
, S.O. 1992,
    c. 23.

[5]

Based on the record before us, we are not satisfied the application
    judge erred in not addressing any minor amount of fill that may have been
    deposited on the appellants land by the City.

[6]

The appellants application to file fresh evidence is dismissed.  Apart from
    any other considerations, we see no possibility that the evidence adduced would
    have affected the decision under appeal.

[7]

The appeal is therefore dismissed.

[8]

Following questions from the panel during the oral hearing, the City
    withdrew its request that we make an order under s. 140 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43.

[9]

Costs of the appeal are to the respondent on a partial indemnity scale
    fixed in the amount of $7,500 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Popack v. Lipszyc, 2016 ONCA 135

DATE: 20160218

DOCKET: C60656

Doherty, Pardu and Benotto JJ.A.

BETWEEN

Joseph Popack, United Burlington Retail Portfolio
    Inc. and United Northeastern Retail Portfolio Inc.

Applicants (Appellants)

and

Moshe Lipszyc and Sara Lipszyc

Respondents (Respondents)

Marlys A. Edwardh and Daniel Sheppard, for the
    appellants

Colin P. Stevenson and Neil G. Wilson, for the respondents

Heard:  January 20, 2016

On appeal from the order of Justice Matheson of the Superior
    Court of Justice, dated June 1, 2015, with reasons reported at 2015 ONSC 3460.

Doherty J.A.:

I

overview

[1]

The appellant, Joseph Popack, and the respondent, Moshe Lipszyc, agreed
    to submit their dispute concerning certain properties in Ontario to arbitration
    by a New York Rabbinical Court (the panel).  Under the arbitration agreement,
    the panel was free to choose the appropriate procedures by which to conduct the
    arbitration, no record was to be kept of the evidence or the submissions, and
    no reasons for decision were required from the panel.  The arbitration agreement
    did, however, stipulate that the parties had a right to appear before the panel
    at all scheduled hearings of the panel.

[2]

During the hearing, Mr. Lipszycs representative suggested that the
    panel should hear from the arbitrator in a previous attempted arbitration, Rabbi
    Schwei.  Mr. Popacks representative advised the panel that Mr. Popack did not
    object to the panel hearing from Rabbi Schwei.  It would appear that nothing
    more was said by the parties or the panel about the possibility of Rabbi Schwei
    giving evidence.

[3]

Without notice to either Mr. Lipszyc or Mr. Popack, the panel met
ex
    parte
with Rabbi Schwei on July 8, 2013.  There is no record of this
    meeting.

[4]

The panel issued its award in August 2013.

[5]

Mr. Popack brought an application pursuant to the
International
    Commercial Arbitration Act
, R.S.O. 1990, c. I.9 (the
ICAA
), to
    set aside the award on the ground that the panel, by conducting the
ex
    parte
meeting with Rabbi Schwei without notice to the appellant, had
    breached the procedure agreed upon by the parties.  Mr. Popack argued that the
    failure to follow the procedure agreed upon by the parties necessitated the
    setting aside of the award under Article 34(2)(a)(iv) of the UNCITRAL Model Law
    on International Commercial Arbitration (a schedule to the
ICAA
).

[6]

The application judge found that the
ex parte
meeting with
    Rabbi Schwei without notice to the parties breached the procedure the parties
    had agreed upon.  She also accepted that the breach provided a ground upon
    which she could set aside the award under Article 34(2)(a)(iv) of the Model
    Law.  The application judge went on, however, to hold that under Article
    34(2)(a)(iv) she had a discretion as to whether to set the award aside.  After
    referring to several factors relevant to the exercise of that discretion, the
    application judge concluded she would not set aside the award despite the
    procedural error by the panel.  She dismissed Mr. Popacks application.  He
    appeals.

[7]

On the appeal, the parties accept that Article 34(2)(a)(iv) applies and
    that the application judge correctly determined that the
ex parte
meeting with Rabbi Schwei without notice to the parties breached the procedure agreed
    upon by the parties.  The appeal focuses exclusively on the application judges
    decision not to set aside the award despite the failure to comply with the
    agreed upon procedure.

[8]

Mr. Popack acknowledges that Article 34(2)(a)(iv) gave the trial judge a
    discretion as to whether the award should be set aside.  He contends, however,
    that the application judge drew the boundaries of that discretion far too
    widely and, in any event, considered immaterial factors in arriving at her decision.
    Mr. Popack argues that the application judge having determined that the
    procedural breach was significant (para. 73), and that there was a
    possibility of prejudice to Mr. Popack (para. 69), should have set aside the
    award.

[9]

Mr. Lipszyc contends that all of the factors identified by the
    application judge were properly considered by her in the exercise of her
    discretion.  He further submits that the application judges exercise of her
    discretion, particularly in the context of a review of a private arbitral
    award, attracts the highest degree of deference in this court.  Mr. Lipszyc
    argues that, viewed through the deference lens, the application judges order
    should stand.

II

the two letters

(a)

Mr. Popacks letter to the panel

[10]

Before
    examining the application judges reasons, it is necessary to describe two
    documents that were part of the record before her.  The first is a letter dated
    July 15, 2013 from Mr. Popacks representative to the arbitration panel.  This
    letter was sent to the panel about a week after its meeting with Rabbi Schwei
    and while the arbitration was still ongoing.  The letter was sent to the panel without
    any notice to Mr. Lipszyc or his representative.  Mr. Lipszyc became aware of both
    the
ex parte
meeting with Rabbi Schwei and the
ex parte
communication with the panel by Mr. Popacks representative sometime after this
    application was commenced.

[11]

In
    the July 15, 2013 letter, Mr. Popacks representative began by setting out his position
    as to the terms of the award that the panel should make.  He then turned to the
    meeting with Rabbi Schwei.  That part of the letter began: we heard a rumor
    that the Rabbinical Court went to Rabbi Schwei to discuss a
certain release
, etc. (emphasis in original).

[12]

Mr.
    Popacks representative went on to set out Mr. Popacks version of the events
    relevant to the release and Rabbi Schweis involvement in those events.  This
    part of the letter concluded:

We do not know what Rabbi Schwei recalls or does not recall;
    however, his testimony against a contract written and signed between the
    parties is worthless.

In light of the above, it does not diminish Popacks right,
    because had Rabbi Schwei testified in his presence, he would have shown him the
    signed agreement that was written at the time; perhaps Rabbi Schweis
    recollection would have been different than that which he said, (especially
    since Rabbi Schwei already told the Rabbinical Court many years ago at the
    beginning of the Rabbinical Court arbitration, saying that he does not recall
    anything).

[13]

Having
    set out Mr. Popacks position in respect of Rabbi Schweis involvement in this
ex
    parte
communication with the panel, Mr. Popacks representative made the
    following request:

It is therefore our request that
if the
    Rabbinical Court considers Rabbi Schweis testimony (which was without our
    knowledge) we request a Rabbinical Court hearing about this, in the defendants
    presence
,
and the Rabbinical Court should consider this as well.
    [Emphasis added.]

[14]

The
    letter concluded with an indication that Mr. Popacks representative had
    further arguments to make about the release.  He added please let me know
    about this, because we are not prepared to lose many millions based on
ex
    parte
testimony; therefore, we want a Rabbinical Court hearing about this.

[15]

Counsel
    for Mr. Popack reads the July 15, 2013 letter as an unqualified objection by
    Mr. Popack to the
ex parte
proceeding and a declaration that he would
    have exercised his right to be present and question Rabbi Schwei had he been
    aware of the hearing.  Counsel for Mr. Lipszyc reads this letter as a waiver of
    any complaint about the
ex parte
proceeding and a demand for a hearing
    before the panel only if the panel was of the view that it considered Rabbi
    Schweis testimony relevant to the award it would make.

[16]

The
    application judge referred to the July 15, 2013 letter in the course of listing
    the factors relevant to the exercise of her discretion (para. 71).  She treated
    the letter as a qualified request for a hearing if the panel regarded Rabbi
    Schweis evidence as relevant and as an improper
ex parte
communication made on Mr. Popacks behalf to the panel without Mr. Lipszycs
    knowledge.

(b)

The panels letter

[17]

The
    second document is a letter from the panel prepared in response to inquiries
    made by counsel for Mr. Lipszyc after this application was commenced.  In their
    letter, the panel indicated that Mr. Lipszycs representative had requested
    that Rabbi Schwei give evidence and the panel had granted the request.  The
    letter indicated that neither party objected to our decision, or requested the
    opportunity to be present at the meeting.  The panel further indicated in the
    letter that had either party wanted to attend the meeting with Rabbi Schwei,
    they would have been allowed to do so.

[18]

The
    panel stated in the letter that the information provided by Rabbi Schwei had no
    impact on their award.  The panel referred to Mr. Popacks request in his letter
    that the panel conduct a hearing if it viewed Rabbi Schweis evidence as
    germane.  The panel indicated that it did not hold a hearing as it was
    satisfied that Rabbi Schweis evidence didnt make any change in our ruling.

[19]

Counsel
    for Mr. Popack argued that the letter from the panel should be given no weight by
    the application judge for three reasons.  First, as acknowledged by counsel for
    Mr. Lipszyc, the letter did not accurately describe the events that occurred
    when Mr. Lipszyc raised the possibility of Rabbi Schwei testifying before the
    panel.  Second, the letter was a self-serving attempt by the panel to justify its
    failure to follow the procedure the parties had agreed upon.  Third, the
    contents of the letter breached the panels obligation to maintain the secrecy
    of its deliberations.

[20]

The
    application judge appreciated Mr. Popacks arguments that the letter should be
    given no weight.  She ultimately indicated she would take the letter into
    account in exercising her discretion (para. 68).  The application judge,
    however, did not accept the contents of the letter as an accurate account of
    the dialogue between the parties and the panel when the possibility of Rabbi
    Schwei testifying arose.  She also did not accept as determinative the panels
    indication that Rabbi Schweis testimony had no impact on the award.

III

the application judges reasons

[21]

The
    parties agree that the
ICAA
applies to the award of the panel.  That
    Act brings the Model Law into Ontario domestic law.  Pursuant to Article
    34(2)(a)(iv), a court may set aside an award if the arbitral procedure was
    not in accordance with the agreement of the parties.

[22]

Under
    the terms of the arbitration agreement, the parties were entitled to be
    informed by the arbitrators of the scheduled hearing(s).  Neither Mr. Popack,
    nor Mr. Lipszyc was informed of the panels meeting with Rabbi Schwei.  This
ex
    parte
without notice meeting meant that the procedure followed by the
    panel was not in accordance with the agreement of the parties and triggered
    the power under Article 34(2)(a)(iv) to set aside the award.

[23]

In
    concluding that the award should not be set aside, the application judge considered
    several factors:

i.

The panel did not meet with Rabbi Schwei on its own initiative, but only
    after Mr. Lipszyc had requested that Rabbi Schweis evidence be heard and Mr.
    Popack agreed that the panel could hear Rabbi Schweis evidence (para. 66);

ii.

While the absence of a transcript of the proceedings before the panel
    made it difficult to know exactly what had happened, based on the material
    filed on the application, the panel could well have been under an honest
    misapprehension that the parties were satisfied that it could take Rabbi
    Schweis evidence in their absence (para. 67);

iii.

Rabbi
    Schwei was not aligned with either party and had served as a neutral arbitrator
    in the earlier attempt at arbitration (para. 69);

iv.

Mr.
    Popack could not show actual prejudice, however, there was the possibility of
    prejudice for both sides flowing from the
ex parte
meeting with Rabbi
    Schwei (para. 69);

v.

Setting aside the award would mean added costs as the expenses
    associated with the eight-week arbitration would be lost and a new arbitration
    required.  The application judge referred to this as not especially
    significant (para. 70);

vi.

Mr.
    Popacks father had given evidence before the panel.  He had since died.  If
    the award were to be set aside, a new hearing would be required and Mr. Popack
    Sr.s evidence would not be available to the parties (para. 70);

vii.

When
    Mr. Popack became aware of the meeting with Rabbi Schwei, he made only a
    qualified objection to the procedure followed and requested a hearing only if
    the panel regarded Rabbi Schweis evidence as relevant to its decision (para.
    71); and

viii.

In communicating
ex parte
with the panel and without notice to Mr. Lipszyc, Mr. Popack
    had himself contravened procedural rules and raised fairness concerns (para.
    71).

[24]

The
    first two factors pertain to the seriousness of the procedural breach in the
    specific circumstances.  Factors three and four relate to the potential impact
    of the breach on the award made.  Factors five and six address the potential
    prejudice to the ultimate effective arbitration of the dispute should the award
    be set aside.  Factors seven and eight go to the conduct before the panel of
    the complaining party (Mr. Popack) after he became aware of the procedural
    error.

IV

should this court set aside the award?

[25]

The order under appeal is discretionary.  Virtually all discretionary
    orders involve the balancing of competing interests.  In most cases, the
    existence of a discretion implies that different judges can reasonably arrive
    at different results.  Consequently, appellate courts will defer to the
    exercise of discretion at first instance absent a clearly identifiable error in
    the application of the law, a material misapprehension of the relevant
    evidence, or a result that is clearly wrong in the sense that it is not
    defensible on an application of the relevant law to the facts:  see
Penner
    v. Regional Municipality of Niagara (Regional Police Services Board)
, 2013
    SCC 19, [2013] 2 S.C.R. 125, at para. 27.

[26]

In
    addition to the generally applicable principles that urge deference in the
    review of all discretionary decisions, the nature of the specific order under
    appeal can also enhance the deference rationale.  The application judge
    exercised her discretion in the context of a review of an award rendered in a
    private arbitration before a panel chosen by the parties to determine the
    dispute between them. The parties selection of their forum implies both a
    preference for the outcome arrived at in that forum and a limited role for
    judicial oversight of the award made in the arbitral forum:  see
Quintette
    Coal Ltd. v. Nippon Steel Corp.
(1990)
,
    [1991] 1 W.W.R. 219, at p. 229 (B.C.C.A.), leave to appeal refused, [1990]
    S.C.C.A. No. 431;
Rhé
aume v. Socié
té
dinvestissements
    lExcellence inc.
, 2010 QCCA 2269, at paras. 52-62, leave to appeal
    refused, [2011] S.C.C.A. No. 57.  The application judges decision to not set
    aside the award is consistent with the well-established preference in favour of
    maintaining arbitral awards rendered in consensual private arbitrations.

[27]

Counsel
    for the appellant accepts that deference is a central feature of appellate
    review of discretionary decisions.  He submits, however, that deference must
    end when the exercise of discretion is tainted by the application of an
    erroneous legal principle.  Counsel argues that the application judge erred in
    principle in failing to conform the exercise of her discretion under Article
    34(2) of the Model Law to the manner in which that discretion has been
    exercised by courts in other jurisdictions that also apply the Model Law.

[28]

Counsel
    submits that conformity with the case law from other jurisdictions rises to the
    level of a legal principle because the
ICAA
, and specifically the
    adoption of the Model Law, is a clear legislative signal to Ontario courts that
    they must recognize and enforce awards made in international arbitrations in a
    manner that is consistent with the way in which courts in other jurisdictions
    that apply the Model Law recognize and enforce awards:  see
Automatic
    Systems Inc. v. Bracknell Corp.
(1994), 18 O.R. (3d) 257, at p. 264 (C.A.).
    Counsel contends that the discretion captured in in Article 34(2) is an
    important feature of the enforcement and recognition scheme established under
    the Model Law.  As such, that discretion must be interpreted consistently among
    various jurisdictions that apply the Model Law if the desired consistency and
    predictability is to be achieved.  Counsel submits that the application judge,
    in declining to set aside the award despite the significant procedural error
    and the potential prejudice to Mr. Popack, failed to adhere to the broadly
    accepted approaches to Article 34(2) followed in other jurisdictions.

[29]

Counsel
    for both parties have helpfully put before the court several cases from many
    jurisdictions that have considered the discretion in Article 34(2).  Counsel
    for Mr. Popack submits that while the cases suggest three different approaches
    to the exercise of the discretion provided in Article 34(2), none would
    countenance the exercise of the discretion in favour of upholding the award in
    the circumstances of this case.

[30]

I
    do not find any bright line rule in the cases that address the nature of the
    discretion in Article 34(2).  Article 34(2) provides several grounds upon which
    awards may be set aside.  It is clear from the case law that the scope of the discretion
    under Article 34(2) is significantly affected by the ground upon which the
    award could be set aside.  For example, Article 34(2)(a)(i) provides that the
    award may be set aside if there is no valid arbitration agreement between the
    parties.  It seems self-evident that if a party establishes that there was no
    valid arbitration agreement, a judge would have considerably less discretion to
    uphold the award despite the absence of a valid arbitration agreement, than a
    judge would have if the error lay in the arbitration panels failure to comply
    with a specific procedural provision in the course of an otherwise proper arbitration:
    see
Carr v. Gallaway Cook Allan
, [2014] NZSC 75, at paras. 76-80, revg
    on other grounds [2013] NZCA 11;
Dallah Real Estate and Tourism Holding
    Company v. the Ministry of Religious Affairs, Government of Pakistan
,
    [2010] UKSC 46, at paras. 67-69.  In considering whether the application
    judges exercise of her discretion is out of step with decisions from other
    jurisdictions, it is important to focus on those cases in which courts have
    been asked to set aside arbitral awards on grounds involving procedural errors
    in the arbitration process.

[31]

The
    Canadian cases reveal an approach that looks both to the extent that the breach
    undermines the fairness or the appearance of the fairness of the arbitration
    and the effect of the breach on the award itself:  see
Rhéaume
, at
    paras. 50-61;
The United Mexican States v. Metalclad Corporation
, 2001
    BCSC 664, 14 B.L.R. (3d) 285, at paras. 127-29.  In
Rhéaume
, at para.
    61, after reviewing the Canadian case law, the court observed:

[I]t would be wholly inconsistent with the intention of the legislature
    and the current jurisprudential trend to treat every breach of the applicable
    procedure, however minor and however inconsequential, as requiring a court to
    refuse to homologate an award or to annul it if so requested.  A court called
    upon to adjudicate such a proceeding must balance the nature of the breach in
    the context of the arbitral process that was engaged, determine whether the
    breach is of such a nature to undermine the integrity of the process, and
    assess the extent to which the breach had any bearing on the award itself.

[32]

More
    recent decisions in other jurisdictions reflect the same kind of balancing as
    described in
Rhéaume
.
Kyburn Investments Limited v. Beca
    Corporate Holdings Limited
, [2015] NZCA 290 is instructive.  In
Kyburn
,
    the applicant moved to set aside an award on the basis that the arbitration
    panel had improperly met with a witness from one side in the absence of the
    other side while conducting a site inspection.  Not surprisingly, the application
    judge held that the panels conduct had breached the rules of natural justice
    and gave rise to an award that conflicted with the public policy of New Zealand.
    Conflict with public policy is a ground for setting aside an award under
    Article 34(2).  The application judge, however, exercised his discretion against
    setting aside the award.  The Court of Appeal upheld the exercise of that
    discretion.

[33]

The
    Court of Appeal described the discretion in Article 34(2) in broad terms, para.
    28:

[W]hile the discretion in [Article] 34 is of a wide and
    apparently unfettered nature, it must be exercised in accordance with the
    purposes and policy of the Act which emphasize the finality of arbitral awards
    and reduce the scope for curial intervention in accordance with the intentions
    of the parties to arbitration.

[34]

The
    court explained, at para. 47, that the exercise of the discretion under Article
    34(2) required an evaluation of the nature of the breach and its impact on the
    proceedings:

No single factor is decisive or necessary for an award to be
    set aside.  Sometimes, the breach will be sufficiently serious as to speak for
    itself.  In other cases, the Court will need to consider the materiality of the
    breach and evaluate whether it was likely to have affected the outcome.  Other
    factors may be relevant to the exercise of the discretion, such as the likely
    costs of holding a rehearing.

[35]

The
    Federal Court of Australia, in
TCL Air Conditioner (Zhongshan) Co. Ltd. v.
    Castel Electronics Pty. Ltd.
, [2014] FCAFC 83, also takes an approach that
    balances a broad array of factors in deciding whether to set aside an
    arbitration award on account of procedural errors at the arbitration.  The
    court, at para. 111, identified the purpose of the discretion in Article 34(2) as
    the prevention of real unfairness and real practical injustice flowing from the
    failure to conduct the proceedings in accordance with the proper procedure.
    The court went on, at para. 154:

[T]he notion of prejudice or unfairness does not involve re-running
    the arbitration and quantifying the causal effect of the breach of some rule.
    The task of the Court in assessing prejudice or unfairness or practical
    injustice is not to require proof of a different result. If a party has been denied
    a hearing on an issue, for instance, it is relevant to enquire whether, in a
    real and not fanciful way that could reasonably have made a difference. It
    should be recalled that the proper framework of analysis for the IAA is the
    setting aside or non-recognition or enforcement of an international commercial
    arbitration.  In that context, it is essential to demonstrate real unfairness
    or real practical injustice. [Citations omitted.]

[36]

In
    my view, all of the factors identified by the application judge as relevant to
    the exercise of her discretion (listed above, at para. 23) were properly
    considered in deciding whether the improper
ex parte
meeting with
    Rabbi Schwei produced real unfairness or real practical injustice.  The
    relevance of the seriousness of the breach (factors one and two) and the
    potential impact of that breach on the result (factors three and four) to the
    fairness of the arbitral proceedings are obvious.  The potential prejudice flowing
    from the need to redo the arbitration if the order is set aside can also be
    relevant in assessing real practical injustice (factors five and six).  I
    think Mr. Popacks conduct after learning of the procedural breach (factors
    seven and eight) is also significant in this case.

[37]

When
    Mr. Popack learned of the possibility that the panel had improperly interviewed
    Rabbi Schwei in the absence of the parties, he chose not to advise Mr. Lipszyc
    of any possible concern and he chose not to make any formal complaint about the
    procedure followed by the panel.  Instead, Mr. Popack chose to communicate
ex
    parte
with the panel. In that communication he put forward his position
    with respect to Rabbi Schweis involvement and a forceful argument that
    anything Rabbi Schwei might say was worthless.

[38]

Mr.
    Popack did not request a hearing at which he could raise his concerns about the
ex parte
meeting with Rabbi Schwei and share his view of Rabbi
    Schweis evidence with the other side.  Instead, he asked for a hearing only if
    the panel did not agree with his assessment that Rabbi Schweis evidence had no
    value.

[39]

Mr.
    Popack sought to gain an advantage in the arbitration proceedings when he
    learned of the
ex parte
meeting with Rabbi Schwei.  He was content to attempt
    to exploit that advantage by putting his position to the panel without any
    notice to Mr. Lipszyc.  His conduct strongly suggests a tactical decision whereby
    Mr. Popack was content to allow the panel to finish its adjudication and make
    its award despite the improper
ex parte
meeting with Rabbi Schwei.  Mr.
    Popack positioned himself so that he could decide to raise the issue formally
    and on notice to Mr. Lipszyc only if he was not satisfied with the award given
    by the panel.  To reward that tactic by setting aside the award would
    eviscerate the finality principle that drives judicial review of arbitral
    awards and would cause a real practical injustice.  Mr. Popacks conduct after
    he learned of the
ex parte
meeting speaks loudly against setting aside
    this award.

[40]

Mr.
    Popacks
ex parte
communication with the panel is also relevant to the
    consideration of the panels letter explaining its conduct (above, at paras.
    17-20).  Mr. Popack demanded a hearing in respect of Rabbi Schweis evidence
    only if it was going to affect the panels decision.  Having taken that position
    in an
ex parte
communication with the panel, only to subsequently
    challenge the panels award, it does not lay in Mr. Popacks mouth to argue
    that the panel could not provide insight as to the significance of Rabbi
    Schweis evidence.  The panels letter is in effect, at least in part, a
    response to the request made in the
ex parte
communication made on
    behalf of Mr. Popack.  The panels letter explains that it did not convene a
    hearing over Rabbi Schweis evidence because that evidence had no impact on its
    ruling.  Mr. Popack had made it clear that he did not want a hearing if the
    evidence had no impact on the panel. In these circumstances, I think the
    panels explanation for not convening a hearing after it received Mr. Popacks
ex
    parte
communication was relevant to the application judges exercise of
    her discretion.

[41]

One
    other factor referred to by the application judge in exercising her discretion
    deserves some comment.  The application judge considered the death of a
    material witness and thus his unavailability at any subsequent hearing as a
    significant consideration.  She did not do so on the basis that this witness
    helped one side or the other, but rather on the basis that the absence of this
    witness would inevitably detract from the effective and fair resolution of the
    dispute.

[42]

Concerns
    about the effect of procedural errors on the integrity of the process (
Rhéaume
)
    or the practical injustice of the proceeding (
TCL Air Conditioner
)
    will normally focus on the arbitration proceeding giving rise to the award.  In
    the context of private arbitrations, I think the ability of the parties to
    effectively and fairly redo the arbitration process should the award be set
    aside can also be a factor in the exercise of the Article 34(2) discretion, at
    least in cases where neither party bears any responsibility for the procedural
    error said to justify the setting aside of the initial order.  Neither Mr.
    Popack nor Mr. Lipszyc can be blamed in any way for the panels decision to
    take Rabbi Schweis evidence
ex parte
and without notice.

[43]

Counsel
    for the appellant also argued that the application judge should have considered
    Article 34(2)(a)(ii) and Article 34(2)(b)(ii).  The former addresses violations
    of the right of a party to be present at the arbitration process.  The latter
    is concerned with public policy violations.

[44]

Counsel
    submits that although a single procedural error underlies each of the three
    complaints, the appropriate exercise of discretion under Article 34(2) may be
    different depending upon the characterization of the procedural error.

[45]

I
    agree with the application judge that each of the different alleged violations
    comes down to the same conduct and the same balancing exercise.   I do not see
    how the outcome of that balancing exercise can depend on the specific label
    placed on the procedural error giving rise to the Article 34(2) complaint.  For
    example, characterizing the procedural failure as a breach of Ontario public
    policy if it could be so characterized, would not, in my view, automatically
    make the breach more serious or tip the scale in favour of setting aside the
    award.  Whatever label is placed on the procedural error, and whichever
    subsection of Article 34(2) is invoked, the essential question remains the same
     what did the procedural error do to the reliability of the result, or to the fairness,
    or the appearance of the fairness of the process?

[46]

The
    application judge made no error in choosing not to give separate consideration
    to each of the provisions of Article 34 advanced on behalf of Mr. Popack.

V

conclusion

[47]

I would dismiss the appeal.

[48]

I
    would award costs to the respondents in the amount of $25,000, inclusive of
    disbursements and relevant taxes.

Released: DD  FEB 18 2016

Doherty J.A.

I agree G. Pardu
    J.A.

I agree M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Argent, 2016 ONCA 129

DATE: 20160212

DOCKET: C61144

MacPherson, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryl Argent

Appellant

Daryl Argent, in person

Michael Dineen, duty counsel

Joanne Stuart, for the respondent

Heard: February 8, 2016

On appeal from the conviction entered on August 14, 2015
    by Justice Dale Parayeski of the Superior Court of Justice, sitting without a
    jury, and from the sentence imposed on September 18, 2015.

ENDORSEMENT

[1]

The appellant was convicted of luring a child to engage in sexual
    activity. He raises several grounds of appeal. With the assistance of duty
    counsel, he submits that the trial judge erred in dismissing his request for a
    stay of the conviction on the basis of entrapment. On his own, he raises other
    issues which we will address individually.

Facts of the Offence

[2]

The appellant posted two advertisements on Craigslist seeking someone interested
    in smoking marijuana and more. The ads included photos of the appellants
    genitals. He was also shown holding a marijuana bud. The ad specified that he
    was looking for a woman between the ages of 18 and 30.

[3]

Detective Brien Smith worked with the Child Pornography Unit of the
    Hamilton Police Service. Detective Smith learned in training that people who
    seek children will mention the age of 18. This is because Craigslist does not
    allow personal erotic ads to list ages less than 18. He spotted the appellants
    ads based on this training.

[4]

Detective Smith responded to the ad under the guise of a 14-year-old
    girl named Carlee. Carlees first message was:

Hey..cool pix! im not sure which is biggerthe bud in your hand
    or your bud! lol!smoked for first time at my gr8 grad a few weeks ago..yeah!
    lemme know when you r smokin again some timeluv to try again

[5]

Carlee and the appellant then exchanged emails and messages which
    indicated that she was 14 years old, a virgin, in grade 8, and inexperienced
    with drugs and sex. The appellant pursued the correspondence with talk of oral
    sex and condoms for vaginal sex.

Conviction

[6]

The trial judge rejected the appellants submission that he did not
    realize that Carlee was underage. He found that the appellant knew Carlee was
    14 and specifically pursued sexual activity.

[7]

The trial judge was then asked to stay the conviction on the grounds
    that the appellant was entrapped by the police. He denied the application for a
    stay of proceedings in
R. v. Argent
, 2014 ONSC 4270, [2014] O.J. No.
    3041. The trial judge found that, although the police provided the opportunity
    to commit the offence, the officer had reasonable grounds to suspect that the
    appellant was already engaged in criminal activity and provided the opportunity
    pursuant to a
bona fide
inquiry. Finally, he was satisfied that the
    police did not induce the crime.

The Entrapment Ground of Appeal

[8]

The Supreme Court of Canada summarized the proper approach to entrapment
    in
R. v. Mack
, [1988] 2 S.C.R. 903, at pp. 964-965. Entrapment occurs
    when:

a) The authorities provide a person with an opportunity
    to commit an offence without acting on a reasonable suspicion that this person
    is already engaged in criminal activity or pursuant to a bona fide inquiry; or

b) Although having such reasonable suspicion or acting
    in the course of a
bona fide
inquiry, they go beyond providing an opportunity and induce the commission of
    an offence.

[9]

The appellant submits that the officer did not have reasonable grounds
    from the outset to suspect that there was criminal activity going on. The ad
    specified a woman of at least 18 years of age and this, on its own, does not
    provide a sufficient basis for suspicion. The appellant submits further that it
    was the officer who sexualized the communication by referring to the bud in
    the first email. This response, it is argued, manufactured the criminal
    activity and induced the crime.

[10]

We
    do not agree.

[11]

The
    police had reasonable grounds to suspect criminal activity when they viewed the
    ad as posted and as the conversation with the appellant unfolded.

[12]

The
    ad included a photo of the appellants penis and requested a smoking partner
    and more. The polices consideration of the use of the age 18 as a flag for
    potential child abusers was reasonable. This was the lowest age that could be
    posted.

[13]

We
    do not agree that the officer manufactured the criminal activity by sexualizing
    the first communication. The photos had already done that. The communications
    from the officer made it clear from the outset that Carlee was 14, had just
    graduated from grade 8, was inexperienced sexually, and was under the watch of
    her mother. The questions posed by the officer were open-ended.  It was the
    appellant who pursued the discussion of sexual activity. These facts support
    the officers suspicion that criminal activity was underway.

Additional Grounds of Appeal

[14]

We
    do not accept the appellants additional grounds of appeal.

[15]

First,
    the appellant argues that the he was denied a trial by jury. There is nothing
    in the record to demonstrate that he requested and was denied a jury trial.

[16]

Second,
    he submits that his name was incorrect on the search warrant and the arrest
    warrant. It is common ground that the name Daryl Shipland was on the warrants. This
    is his mothers surname. She lived in the house associated with the IP address.
    We find that there could have been no confusion caused by this misnomer and that
    no one could have been misled. The appellants correct name appeared on the Information.

[17]

Third,
    he argues that his medical condition was not taken into account. We reject this
    argument as the trial judge referred to his medical condition extensively in
    the sentencing reasons.

[18]

Fourth,
    the appellant submits that there were errors in the methodology used in his psychological
    assessment. The assessment was requested by the appellants counsel and put
    into evidence by him. He cannot now complain about the methodology used.

[19]

Finally,
    the appellant argues that Detective Smith tampered with evidence. There is no
    evidence to substantiate this assertion.

Disposition

[20]

The
    appeal is dismissed. No submissions were made as to the sentence appeal. Leave
    to appeal sentence is dismissed.

J.C. MacPherson J.A.

M. Tulloch J.A.

M.L. Benotto 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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)     On application of a justice system
    participant who is involved in proceedings in respect of an offence referred to
    in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
    justice may make an order directing that any information that could identify
    the justice system participant shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is satisfied that
    the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary
    for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer significant
    harm if their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
    made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.W., 2016 ONCA 96

DATE: 20160202

DOCKET: C59172

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.W.

Appellant

Michael Davies and Meaghan McMahon, for the appellant

Joanne Stuart, for the respondent

Heard: January 22, 2016

On appeal from the conviction entered by Justice Jennifer
    Blishen of the Superior Court of Justice, sitting without a jury, on October
    11, 2013.

ENDORSEMENT

[1]

The appellant appeals his conviction on two counts of assault causing
    bodily harm in relation to his two-month-old infant. The infant suffered 12 rib
    fractures. The evidence was that the fractures were incurred on two separate occasions
    during the course of a hospital stay at the Childrens Hospital of Eastern
    Ontario (CHEO).

[2]

The appellant submits that the verdict on the first count was
    unreasonable or, in the alternative, the trial judge failed to properly apply the
    principles in
R. v. W. (D.)
,
    [1991] 1 S.C.R. 742
. With respect to the second count, the
    appellant submits that the trial judge erred in her application of
mens rea
for assault causing bodily harm and misapplied the test for implied consent in
    the context of a parent-child relationship.

[3]

We disagree for the following reasons.

The First Conviction

[4]

It is our view that the verdict in relation to the first set of
    fractures is reasonable. The scope of appellate review for unreasonable verdict
    is narrow. To determine the reasonableness of the verdict this court must
    decide, on the evidence as a whole, whether the verdict is one that a properly
    instructed trier of fact, acting judicially, could reasonably have rendered:
R.
    v. Pannu,
2015 ONCA 677
,
    127 O.R. (3d) 545, at paras. 161-163.

[5]

A trier of fact can accept some, none, or all of what a witness says. We
    see no error in the trial judges factual findings in this case.

[6]

First, she determined that the factures occurred sometime between
    January 25 and January 30, 2011. This conclusion was based on the expert
    evidence and the interpretation of the x-ray results.

[7]

Given the fact that the infant suffered a left anterior rib fracture and
    a right posterior rib fracture, and in light of the fact that there was no history
    of impact or accident, the trial judge accepted the expert evidence as to the
    potential causes of the injuries. The expert evidence supported that the
    fractures were non-accidental compression fractures from squeezing the front
    and back of the childs ribcage.

[8]

The trial judge also considered the appellants evidence and his
    admission that he grabbed the infant hard around the ribs in an effort to
    prevent a fall and that this might have caused fractures. The way the appellant
    described this fall was inconsistent with the expert evidence on the nature,
    location, and likely causes of the injuries. The trial judge therefore found
    the appellants story to not be credible.

[9]

The injuries were localized to the ribcage, just under the infants armpits.
    The expert evidence was corroborated by the observations of nurse Munro, who saw
    the appellant holding the baby under his armpits. As pointed out by the Crown,
    the trial judge was entitled to consider all of the evidence, including the observations
    by the two nurses of instances where the infant screamed out
    uncharacteristically. We agree that she was entitled to accept how the nurses
    professional experience informed their observations.

[10]

In
    all the circumstances, based on the evidence, the trial judge was entitled to
    find that the appellant had caused the fractures to his son, and in our view,
    her factual findings are reasonable and entitled to deference.

[11]

The
    appellant also submits that the trial judge erred in her application of the
    reasonable doubt standard pursuant to
W. (D.)
. We do not agree. While
    the trial judge did not recite the test as articulated in
W. (D.)
, she
    did consider all of the evidence and found that the appellants innocent
    explanation for the fractures was not credible or reliable. She rejected the
    appellants evidence in light of competing evidence, considered the Crowns
    case, and found his guilt was established beyond a reasonable doubt. Although
    she did not explicitly refer to the second step of the
W. (D.)
analysis, a precise articulation of the
W. (D.)
formula is not
    required:
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7.

[12]

As
    the Supreme Court of Canada recently reiterated in
R. v. Vuradin
,
[2013] 2 S.C.R. 639, at para. 27, when
    a trial judge rejects an accuseds testimony in a trial by a judge alone, it
    can generally be concluded that the testimony also failed to raise a reasonable
    doubt in the trial judges mind. In our opinion, that is the situation here.

[13]

The
    appeal in relation to count one is dismissed.

The Second Conviction

[14]

The
    trial judge found that the second set of rib fractures occurred between January
    30 and February 3, 2011. She also found that they occurred when the appellant
    squeezed or compressed the babys chest in an attempt to revive him during an
    apneic episode.

[15]

The
    appellant argues that where consent is at issue, the Crown must prove beyond a
    reasonable doubt that the appellant intended to cause bodily harm in order to
    secure a conviction. He relies on
R. v. McDonald
, 2012 ONCA 379, 284
    C.C.C. (3d) 470, and related cases.

[16]

The
    appellant further submits that the trial judge did not reject his evidence that
    he was attempting to administer CPR to the child because the childs life was
    in danger. He says it is reasonable to imply the childs consent for the
    appellant to have applied at least some force to save his life. The appellant
    submits that consent only becomes a nullity when the Crown proves that the
    appellant intentionally caused the bodily harm to the child.

[17]

Decisions
    like
McDonald
about adults engaged in consensual fights are
    fundamentally different than those involving children. As this court noted in
R.
    v. A.E.
(2000), 146 C.C.C. (3d) 449, at para. 28:

It was noted in
Jobidon
that policy based limits on
    consent are almost always the product of a balancing of individual autonomy and
    some larger societal interest. In the
Jobidon
situation, public policy
    vitiates the voluntary decision of the victim to consent. In this case, there
    is no concern about balancing an infants individual autonomy, or its freedom
    to choose to have force intentionally applied to itself. An infant is uniquely
    vulnerable to the quality of care and the decisions made on its behalf by its
    parents. The balancing exercise is therefore a different one.

[18]

The
    trial judge correctly recognized that even if she did accept the appellants
    evidence that he was attempting to administer CPR, the force applied must not
    be excessive for the defence of deemed consent to apply:
A.E.
, at
    para. 37.

[19]

A
    reasonable person would realize that the force applied to the infant, enough to
    cause ten anterior and posterior fractures, was excessive and outside the range
    of normal care even in these urgent circumstances. The defence of implied
    consent therefore does not arise on the circumstances of this case. In our
    opinion she did not err in law.

[20]

The
    appellant further submits that the trial judge was required to come to her own
    decision as to whether the appellant applied excessive force or acted outside
    what a reasonable parent would. She simply quoted the expert evidence as
    opposed to making her own finding.

[21]

The
    trial judges reference to the expert evidence was a shorthand way of accepting
    the expert evidence. Dr. Putnins explained that while it is possible to
    fracture ribs while performing CPR, this would occur after prolonged CPR. This
    is rare and the fractures would be anterior, not posterior, and would be fewer
    in number. Here the evidence was that the CPR was relatively brief and there
    were ten fractures. The submission that the expert evidence should be rejected
    because the studies in question related to persons trained to do CPR, raised
    for the first time on appeal, finds no support in the evidence.

[22]

Having
    regard to the whole of the evidence, as the trial judge did, we see no error.

[23]

The
    appeal on the second count is also dismissed.

K.M. Weiler J.A.

M. Tulloch J.A.

David Brown 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. Becks, 2016 ONCA 91

DATE: 20160202

DOCKET: C57799

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathaniel Becks

Appellant

Mark Halfyard, for the appellant

Joanne Stuart, for the respondent

Heard: January 20, 2016

On appeal from the convictions entered on April 5, 2013
    by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

OVERVIEW

[1]

The appellant, Nathaniel Becks, appeals his convictions for sexual
    assault, sexual interference, and invitation to sexual touching in respect of a
    seven-year-old girl.  The incidents at issue were alleged to have taken place
    over a six-month period in 2011 after the appellant moved in with the
    complainant, her mother, and her 11-year-old brother.  The allegations made by
    the complainant against the appellant involved vaginal touching, vaginal
    intercourse, the insertion of a blue sex toy into her vagina, oral sex, and
    showing her pornographic videos.

[2]

At trial, the complainant testified, adopting statements that she had
    given to the police; she was cross-examined.  The complainants mother
    testified.  The appellant also testified, denying all of the complainants
    allegations.

[3]

At trial, the appellant submitted that the complainants evidence was
    unreliable and as such should raise a reasonable doubt.  In his reasons, the
    trial judge reviewed the evidence in detail and specifically addressed three
    episodes in the complainants evidence referred to by defence counsel, after
    which he concluded that the Crown had proven the case against the appellant
    beyond a reasonable doubt. He convicted the appellant on all three counts.

[4]

On this appeal, the appellant argued that a key part of the defences
    case at trial was that the complainant could have accessed information about
    the sexual episodes she described from sources other than contact with the
    appellant, specifically from DVDs, videos and a book that were present in the
    home.  While appellants counsel acknowledged that the Crown had a case here,
    he submitted that the case had its warts.  The  appellant submitted that the
    Crowns case came down to an assessment of the complainants credibility and,
    in dealing with that issue, the trial judge committed three errors in his
    reasoning which alone, or cumulatively, amount to reversible error.  According
    to the appellant, those errors involved the application by the trial judge of
    stereotypical reasoning which tainted his assessment of credibility and
    consequent findings, necessitating a new trial.

FIRST ERROR

[5]

The first error the appellant points to concerns the trial judges
    treatment of evidence about a sex education book that the complainants mother
    had purchased.  The complainants mother testified that she had left the sex
    education book in the living room for her children to read.  One day, she saw
    the complainant and the appellant looking at the book together on the living
    room couch.  She did not overhear their conversation, but took the book out of
    the living room and put it in the bedroom used by herself and the appellant.

[6]

The appellant testified that on one occasion the complainant had asked
    him questions about the book when he was sitting on the living room couch, but
    he was not comfortable with the discussion and went outside.  On his return, he
    learned that the complainants mother had taken the book out of the living
    room.

[7]

In dealing with that evidence, the trial judge stated:

A description Mr. Becks gave of his relationship with [the
    complainant] is one that paints a picture of him tolerating her.  She was there
    but the reason he was there is because of his relationship with [the
    complainants mother].  [The mother] just happened to have two children.  There
    is no evidence of emotional interaction, any closeness between the two of
    them.  Im driven to a thought that a seven year old girl would more likely
    raise, generally speaking if she was curious, issues of a sexual nature about
    her body with her mother rather than a male not even her father, and one with
    whom according to Mr. Becks she was not very close.

Im driven to the conclusion that she must have asked him those
    questions because of their sexual connection regarding the acts that she had
    described.

[8]

The appellant submits that the trial judge engaged in impermissible
    stereotypical reasoning in reaching the conclusion that the complainants
    questions to the appellant about the book supported her allegations that he was
    abusing her.   The appellant submits that the evidence on this issue was thin,
    and the trial judge placed too much value on this evidence in reaching his
    conclusion that the events alleged took place.

[9]

Although the respondent agrees that a trier of fact is not entitled to
    speculate or apply stereotypes, the respondent submits that the comments of the
    trial judge about the sex education book incident were informed by the evidence
    about this specific complainant and the surrounding circumstances in this case.

[10]

We
    agree with the respondent that the trial judge referred to the specific
    evidence in the case to draw conclusions about the complainant and the nature
    of her relationship with the appellant. It was open to the trial judge to make
    the inference that he did on the evidence before him.

SECOND ERROR

[11]

The
    second error identified by the appellant concerns evidence of the complainant
    that the appellant showed her a video or movie depicting adults engaging in
    sex.

[12]

The
    complainants mother owned a camera.  It was not in dispute that the camera
    contained a video of the appellant and the complainants mother engaging in
    sexual acts.

[13]

In
    one statement to the police, the complainant stated that the appellant had
    shown her, on a small television screen in his bedroom, a sex video of old
    people having sex.  In another statement, the complainant stated that the
    appellant had shown her on a camera a video depicting her mother and the appellant
    doing the kinda stuff that he did to me. At trial, the complainant testified
    in cross-examination that the appellant had shown her a video on her mothers
    camera; on re-examination, she stated that the video on the camera showed old
    people having sex, but she did not recognize the old people.

[14]

The
    appellant denied showing any sex videos to the complainant.  He stated that on
    one occasion he had showed the complainant how to use the camera.  At the time,
    he was showing the complainant pictures of some of his children.  The
    complainant was breathing over my shoulder, which he did not like, so he
    explained to her how to use the camera and she flipped through the pictures.

[15]

At
    trial, the complainant testified that she did not know how to use the camera.
    In one of her statements to the police, the complainant stated that the
    appellant showed her five videos on the camera, but I just skipped them and
    went to the pictures.

[16]

A
    key component of the defence at trial was that the complainant had access to
    sexually explicit materials in her home, including DVDs and videos, through
    sources other than the appellant.  In dealing with the issue of the camera, the
    trial judge stated:

[The complainant] said that Mr. Becks showed her a video on
    that camera which showed Mr. Becks and her mother performing sex acts.  The
    evidence is that the camera was kept in her Moms room in a drawer, that [the
    complainant] respected Moms domain.  The door was kept closed and it was expected
    that she not enter and there is, in fact, no evidence that she entered on her
    own.  Again I ask myself, where would a seven year old get the mechanical, if
    mechanical is the right word, the where with all to access a video on a camera
    such as that on her own?

Mr. Becks stated that, well, she was looking over my shoulder
    while I one day was accessing photos of my children, thats probably where she
    learned of it.  Those are my words but thats the essence of his evidence with
    respect to that issue.  I accept the evidence that she watched a video of sex
    acts between Mr. Becks and her mother shown to her by Mr. Becks, and
I
    simply find it incredible that a seven year old would access such a video or
    would have the ability to access such a video on her own
. [Emphasis added.]

[17]

The
    appellant submits that the complainants evidence on her ability to use the
    camera was equivocal.  The trial judge, drawing impermissibly on his own
    experience, found that the complainant was incapable of operating the camera because
    of her age.  According to the appellant, this was a material error which
    prejudiced the defences position that the complainant could access the videos
    other than through the appellant.

[18]

While
    the trial judge should have avoided speculating about the technological
    capabilities of seven-year-old children, we accept the respondents submission
    that the evidence, taken as a whole, supported the trial judges ultimate
    conclusion that the complainant did not access the sex videos on her own.  Both
    in her statements to the police and in her evidence at trial, the complainant
    consistently stated that the appellant had shown her a video depicting adults
    engaged in sex acts.

THIRD ERROR

[19]

Finally,
    the appellant submits that while it was open to the trial judge to consider the
    absence of evidence of motive to fabricate in conducting his credibility
    determination, the trial judge erred in assessing the evidence of a child
    complainants motive to fabricate in the same manner as such evidence for an
    adult complainant. Specifically, the appellant takes issue with the trial
    judges use of the decision in
R. v. Batte
(2000), 49 O.R. (3d) 321
    (C.A.), where this court stated, at para. 123:

It was open to the trial judge
    to tell the jury that it was entitled to consider what motive, if any, the
    complainants had to falsely accuse the appellant of sexual abuse. It was
    further open to him to instruct the jury that if they concluded there was no
    such motive, it was open to them to consider why the complainants would make
    the allegation and expose themselves to the rigours of cross-examination on
    very personal matters. In doing so, the trial judge would be doing nothing more
    than telling the jury to use their common sense.

[20]

After
    referring to this passage, the trial judge stated:

The Ontario Court of Appeal has instructed me to use my common
    sense, and even without those instructions I will do so.  Disclosure was
    spontaneous.  Why would [the complainant] tell her mother of those incidents,
    not just one incident, not a fleeting one, but a repetitive series of acts over
    an extended period of several weeks and months if it did not occur?

Theres no evidence of any animosity in this relationship
    between Mr. Becks and [the complainants mother] except his evidence that shes
    said to be a jealous person.  Certainly there was no evidence that [the
    complainant] was an unhappy seven year old who would want Mr. Becks out of her
    life.  It was, after all, [the complainant] who volunteered this disclosure to
    her mother on October the 5
th
, and I find that there is no motive
    for [the complainant] to have fabricated a tale of sexual abuse.

[21]

The
    appellant submits that the principles stated in
Batte
about the
    assessment of evidence of motive to fabricate allegations of sexual abuse do
    not apply in the same manner when the witness is a child.  The respondent
    disagrees, arguing that the appellants position stands at odds with the
    approach to assessing the evidence of child witnesses described by the Supreme
    Court of Canada in
R. v. W. (R.)
, [1992] 2 S.C.R. 122.

[22]

We
    accept the respondents submission.  In
W. (R.)
, the Supreme Court of
    Canada stated that the evidence of children should not be approached from the
    perspective of rigid stereotypes, but on a common sense basis, taking into
    account the strengths and weaknesses which characterize the evidence offered in
    the particular case: at p. 134.  As his reasons disclose, the trial judge
    applied that approach, and his finding that there was no motive for the
    complainant to fabricate her allegations against the appellant was grounded in
    the evidence of the specific case before him.

DISPOSITION

[23]

For
    the reasons given above, we see no basis to interfere with the convictions
    entered by the trial judge.  We therefore dismiss the appeal.

K.M.
    Weiler J.A.

M.
    Tulloch J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chen, 2016 ONCA 132

DATE: 20160211

DOCKET: M46049

Huscroft J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Fang Chen

Applicant

Erika Chozik, for the moving party Chen

Jeanette Gevikoglu, for the respondent

Heard:  February 9, 2016

ENDORSEMENT

[1]

Fang Chen (the Applicant) has been a permanent resident of Canada
    since 2007. On January 15, 2010, she plead guilty and was convicted of
    conspiracy to produce marijuana; failure to comply with recognizance; theft of
    gas/electricity; theft over $5,000; and possession of marijuana for purposes of
    trafficking.

[2]

The applicant spent 135 days in pre-trial custody and received a
    six-month conditional sentence concurrent on all of the charges followed by one
    year of probation. She was made subject to a ten year weapons prohibition
    pursuant to s. 109 of the Criminal Code and a DNA Order. In addition, she forfeited
    all of her real property and personal property at her home, her car, and
    $25,000 cash bail.

[3]

The applicants husband received a conditional sentence of one year
    after having served 45 days. The applicant says that he was the subject of a
    removal order but, in 2012, was permitted to remain in Canada following an
    appeal to the Immigration Appeal Division.

[4]

The applicant applies for an extension of time to file notice of appeal.
    She does so because of immigration consequences that have arisen.

[5]

Following completion of her conditional sentence and probation, the
    applicant travelled to China. On her return to Canada in June 2012, she was
    detained and advised that she may be referred for an inadmissibility hearing.
    In December 2013, the applicant received a Notice to attend for an interview.
    She retained an immigration lawyer and attended the interview in January 2014.
    In December 2015 she was informed that a report had been made against her for
    serious criminality and organized criminality, and that her case had been
    referred for an admissibility hearing. That hearing is set to take place April
    15 and 17, 2016, and it is a prelude to the issuance of a removal order.

[6]

The decision to grant an extension of time to file notice of appeal is
    discretionary in nature. A number of relevant considerations were canvassed by
    this court in
R. v. Ansari
, 2015 ONCA 891 at paras. 22-27 and I will
    not repeat them here. The overarching consideration, as set out in this courts
    decision in
R. v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont. C.A.), is
    whether the applicant can demonstrate that the interests of justice require the
    grant of an extension of time.

[7]

The applicant raises several arguments concerning the merits of her
    proposed appeal.

[8]

She says that she plead guilty in ignorance of any possible immigration
    consequences and would not have done so had she been aware. She says that she
    does not speak English; that she met with her lawyer on only one occasion, on
    the day of her guilty plea; that she was not informed by her lawyer of possible
    immigration consequences; and that the trial judge was unaware of the
    possibility that she might be subject to immigration consequences as a result
    of her conviction and sentence. The applicant says that had she known of the
    possible collateral consequences, she would have appealed both conviction and
    sentence right away.

[9]

If her motion is granted, the applicant proposes to argue on appeal that
    she was not properly advised by her lawyer (against whom she is considering to make
    a claim of ineffective assistance of counsel); that her guilty plea was not
    valid because the facts as read in by the Crown failed to establish the
    necessary factual foundation for a finding of guilt for any of the offences; and
    that her lawyer was in a position of conflict of interest because he
    represented her husband as well as her, amongst other grounds.

[10]

In
    my view, the unique circumstances of this case justify the exercise of the
    courts discretion to extend time to file notice of appeal.

[11]

There
    is no doubt that the applicant did not form the intention to appeal conviction
    or sentence within 30 days of pronouncement. However, the applicant cannot
    reasonably be faulted for failing to take action before now. Although she was
    informed in 2012 of the possibility that the government may commence proceedings
    to remove her, she was not interviewed for approximately 18 months. She
    retained an immigration lawyer at that time. A further 23 months elapsed before
    she was informed that her case had been referred for an admissibility hearing. Upon
    receipt of the Notice to Appear for an admissibility hearing in December 2015,
    she acted promptly in retaining criminal defence counsel.

[12]

I
    need not get into the merits of the proposed appeal. For present purposes it is
    enough to conclude that, in all of the circumstances, there are arguable
    grounds of appeal and it is appropriate to exercise the courts discretion to extend
    the time despite the considerable passage of time since conviction and
    sentence.

[13]

The
    motion is granted. The applicant has until February 18 to file Notice of
    Appeal.

[14]

If
    the applicant is to pursue an ineffective assistance of counsel claim, she
    should contact the appeal scheduling coordinator after Notice is filed.

Grant
    Huscroft 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. D.R., 2016 ONCA 162

DATE: 20160229

DOCKET: C59247

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.R.

Appellant

W. John McCulligh, for the appellant

Eric Siebenmorgen, for the respondent

Heard: February 23, 2016

On appeal from the conviction entered on May 2, 2014 by
    Justice S.R. Clark of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual offences in relation to two young
    boys. He was found guilty of two counts of sexual assault, two counts of sexual
    interference, and one count of invitation to sexual touching. The boys were
    approximately seven and nine years old when the offences were said to have
    occurred. The appellant appeals the convictions on the ground that the trial
    judge misapprehended the evidence.

[2]

The two boys are brothers who were living with their grandmother. The
    appellant began renting a room in her home in early 2010. The brothers alleged
    that the appellant touched their genitals and buttocks and, on one occasion,
    showed them pornography. The older brother said the appellant once told him to
    perform oral sex on him. When the complainant refused, the appellant
    masturbated next to him. Although there was a confrontation in the home about
    these issues in the spring of 2011, the grandmother took no action and the
    appellant was allowed to stay in the house. No disclosure was made to the
    authorities until 2013.

[3]

The trial took place in the Ontario Court of Justice sporadically over a
    number of days in 2014. The boys, then ages 11 and 13, testified. Their grandmother
    and the appellant did as well.

[4]

The main issue before the trial judge was credibility. The trial judge
    recognized this. He concluded that, although the appellant was not
    unimpressive as a witness, he did not believe him. He found that the
    appellants blanket denial of each event, simply cannot be true. The trial
    judge relied on one specific example to ground his finding. The example related
    to the appellants evidence about watching movies on a sofa with the boys and
    their grandmother. The appellant testified that the boys would lie on the sofa,
    one next to his grandmother and the other with his head on a cushion on the
    appellants lap. The trial judge fastened on this and concluded that the appellant
    changed his evidence during cross-examination to add that there was a cushion between
    him and the boy that had not been previously mentioned.

[5]

In fact, the appellant did not change his evidence during
    cross-examination. He mentioned the cushion in his examination-in-chief:

Q.      Do you recall  that everybody would watch a movie?

A.       I would sit at the end of one  like the long couch [the
    complainant] would lay on the long couch with his head in my lap

Q.      Would [the complainant] be next to you?

A.      Yes, prostrate  with his head on a pillow in my lap.

[6]

By the time the appellant was cross-examined, the parties had received
    transcripts of the appellants examination-in-chief. When the appellant
    referred to the cushion on his lap, the Crown suggested to him that he had not
    mentioned this in his examination-in-chief:

Q.      So now youre saying there was a cushion.

A.      Yes. He always had the couch cushion under his head.

[7]

The Crown pursued this line of questioning suggesting that he had not
    mentioned the cushion before.

[8]

This mischaracterization became the trial judges main articulated
    reason for rejecting the appellants testimony. At para. 94(7) of his reasons,
    he discussed the inconsistencies in the appellants testimony:

The most obvious [inconsistency] relates to that part of his
    evidence where he stated that when they were all sitting on the couch watching
    movies, [the complainant] would lay with his head in [the appellants] lap. He
    said nothing in his examinationin-chief about his head being on a cushion, but
    on cross-examination, he then must have realized that having a cushion covering
    his lap would somehow make it less suggestive of some form of intimacy. His
    explanation of not mentioning the cushion because he merely assumed that it
    would somehow be understood that this was the situation, is an absurdity. This
    is the start of many parts of his evidence which exposes and undermines his
    credibility and reliability, leaving the Court with the impression that he was
    making it up as he was going along, or as the Crown characterized it, he was a
    moving target.

[9]

The trial judge was mistaken when he said that the appellant said
    nothing about the cushion in his examination-in-chief.

[10]

A
    misapprehension of evidence must be material to justify this courts intervention:
R. v. Hemsworth
, 2016 ONCA 85, [2016] O.J. No. 505, at para. 40;
R.
    v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. In
R. v.
    Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, LeBel J. explained
    that an error in the assessment of the evidence will amount to a miscarriage
    of justice only if striking it from the judgment would leave the trial judges
    reasoning on which the conviction is based on unsteady ground. This stringent
    standard is met in this case.

[11]

The
    trial judge concluded, based primarily on the misapprehension of the evidence
    about the cushion, that the credibility and reliability of the appellants
    testimony was undermined. He noted that [s]ome of the inconsistencies in his
    evidence were rather glaring. Yet he only referred to the cushion incident.
    During oral submissions, the Crown referred to other inconsistencies. We find
    none of them significant or glaring.

[12]

The
    main issue for the trial judge was credibility. His conclusion as to the
    credibility of the appellant was tainted by an error of fact. The error
    infected the core of his reasoning on the credibility of the appellant.
    Consequently, the convictions cannot stand.

[13]

The
    appeal is allowed, the convictions are quashed, and a new trial is ordered at
    the discretion of the Crown.

Robert J. Sharpe J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.