COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sciascia, 2016 ONCA 411

DATE: 20160530

DOCKET: C60301 & C60514

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Sciascia

Appellant

Owen Wigderson, for the appellant

Chris Chorney, for the respondent

Heard: January 14, 2016

On appeal from the decision of Justice
Johanne
    N. Morissette
of the Superior Court of Justice, sitting as a summary conviction
    appeal court, dated March 24, 2015, with reasons reported at 2015 ONSC 1885, dismissing
    an appeal from the convictions entered on June 7, 2013 by Justice A. Thomas
    McKay of the Ontario Court of Justice.

Watt J.A.:

[1]

St. Patricks Day, 2012. Parties in a college town. Four offences. Two criminal.
    Two provincial. Charged in separate informations.

[2]

Another day. This time in a courtroom. A single trial. A fair trial.
    Some offences proven. Others not. Convictions entered. Acquittals registered.
    Sentences imposed.

[3]

But there is more. Now we are told that these fair proceedings were
    flawed from the outset. Even though everybody agreed on a single trial on two informations,
    it is as though the proceedings never occurred. At least according to the
    person who had that fair trial.

[4]

Our task is to determine whether what occurred was a jurisdictional
    catastrophe beyond salvage or a procedural misadventure awaiting rescue.

[5]

Preferring substance to form, I would dismiss the appeals.

THE BACKGROUND FACTS

[6]

The circumstances underlying the offences with which Joseph Sciascia
    (the appellant) was charged are immaterial to the issues raised on appeal. Of
    greater significance is the procedural course followed in the prosecution.

The Offences Charged

[7]

The appellant was charged in an information laid under the
Criminal
    Code
, R.S.C. 1985, c. C-46,
with assaulting a peace officer with a weapon  a motor vehicle  and dangerous
    operation of a motor vehicle. Both are hybrid offences that permit the Crown to
    choose whether to proceed summarily or by indictment.

[8]

In an information laid under s. 23 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33 (
POA
), the appellant was charged with failing to
    stop for police and failing to report property damage caused by his operation
    of a motor vehicle, both offences under the
Highway Traffic Act
, R.S.O
    1990, c. H.8 (
HTA
).

The Crown Election

[9]

The Crown elected to proceed by summary conviction on both charges
    contained in the
Criminal Code

information.

The Trial Proceedings

[10]

Both informations were scheduled for trial before the same judge, on the
    same day, in the same courtroom.

[11]

As proceedings were about to begin, the Crown (not Mr. Chorney)
    suggested that pleas be entered on everything. Defence counsel (not Mr.
    Wigderson) indicated that he wanted the appellant arraigned on all charges. The
    appellant was arraigned on both informations and pleaded not guilty to all
    charges.

[12]

Defence counsel told the presiding judge that time, jurisdiction and
    identity were not in dispute. The single contested issue, according to defence
    counsel, was whether the events that occurred are sufficient to prove the
    charges.

The Findings of the Trial Judge

[13]

The trial judge found the appellant guilty of dangerous operation of a
    motor vehicle under the
Criminal Code
and of failure to stop for
    police under the
HTA
. The judge found the appellant not guilty of the
Criminal
    Code
offence of assaulting a police officer with a weapon and of the
HTA
offence of failing to report property damage.

The Summary Conviction Appeal

[14]

The appellant changed counsel after trial. He appealed the dangerous
    operation conviction and the sentence imposed under s. 813 of the
Criminal
    Code
and appealed the provincial offence conviction under s. 116 of the
POA
.
    He raised the same primary ground of appeal in each notice. He asserted that
    his trial was a nullity because he was simultaneously tried for
Criminal
    Code
and
Highway Traffic Act
charges.

The Decision of the
    Summary Conviction Appeal Court

[15]

Both appeals were heard together by a judge of the Superior Court of
    Justice sitting as a summary conviction appeal court. The appeal judge
    dismissed the conviction appeals but allowed the appeal from the sentence on
    the dangerous operation conviction and substituted an absolute discharge.

[16]

In her written reasons, the appeal judge referred to the decision in
R.
    v. Clunas,
[1992] 1 S.C.R. 595, which permitted the joint trial of an
    accused on separate informations that charged indictable and summary conviction
Criminal Code
offences with the consent of the parties. The essence of
    her reasons for rejecting the appellants claim that the trial was a nullity is
    found in paras. 17-20 of her judgment:

A judge of the Ontario Court of Justice has the jurisdiction to
    hear both the
C.C.
and
P.O.A.
informations separately and is
    empowered to try provincial offences matters as well as summary conviction
    offences.

The
P.O.A.
provides for its own procedure and
    specifically in section 2 thereof highlights that there are differences between
    the procedures in the
C.C
and in provincial prosecutions. However, as
    in this case, the appellant is charged under Part III of the
P.O.A.
Proceedings were commenced by information. The rules of evidence at the
    criminal trial, including proof beyond a reasonable doubt, etc., would be
    essentially the same, whether in the summary conviction criminal proceeding or
    in the provincial proceedings.

The appellant raises the issue of the difference between the
    federal and provincial rules of evidence that govern the contradicting of ones
    own witness. In my view, the slight difference between section 9(2) of the
Canada
    Evidence Act,
R.S.C. E-10 and section 23 of the
Ontario Evidence Act,
R.S.O.
    1990, c. E. 23 did not affect the outcome of the trial in this case. The
    appellant was not prejudiced by it.

For these reasons, I find that the decision in
Clunas
supports
    the permissibility of a more efficient and effective trial process unencumbered
    by artificial rules that serve no useful purpose and rest on no sound
    principle.

The Application for Leave to Appeal

[17]

The appellant sought and was granted leave to appeal under s. 839(1)(a)
    of the
Criminal Code
and special leave to appeal under s. 131 of the
POA
.
    He advances here the same claim of jurisdictional error as he first put forward
    before the summary conviction appeal judge.

THE GROUNDS OF APPEAL

[18]

The single ground of appeal contests the authority of the trial court to
    try, at the same time, summary conviction
Criminal Code
offences and
    provincial offences under the
POA
contained in separate informations. For
    discussion purposes, I will subdivide the ground into two issues:

i.

the authority to conduct a joint trial; and

ii.

the effect of any lack of authority on the validity of the proceedings.

GROUND #1: THE AUTHORITY TO CONDUCT A JOINT
    TRIAL

[19]

A brief recapture of the positions advanced by counsel in oral argument
    will provide the background essential to an understanding of the first ground
    of appeal.

The Arguments on Appeal

[20]

The appellant submits that no authority permits the joint trial of
    separate informations, one charging provincial offences, the other summary
    conviction
Criminal Code
offences. He says several reasons support
    this conclusion.

[21]

First, provincial offences and summary conviction
Criminal Code
offences cannot be joined together in a single information.
Clunas

requires
    that offences charged in separate informations be capable of being joined in a
    single information
before a single trial on
    those separate informations may be conducted.  This is not possible
here. Each information is laid under a different statute. Section 504 of the
Criminal
    Code
permits joinder of
Criminal Code
offences in the same
    information but not provincial offences. And
Criminal Code
offences
    cannot be included in an information laid under the
POA
because they are
    not offences created by an Act of the Legislature as s. 25(5) of the
POA
requires.

[22]

Second, the joint trial of provincial offences and summary conviction
Criminal
    Code
offences would not be permitted following
Clunas

because
    different procedural and evidentiary rules exist under the
POA
and the
Criminal Code
. Typical examples include:

·

change of venue;

·

the competence of witnesses under 14;

·

the admissibility of videotaped statements;

·

the admissibility of business records; and

·

the number of expert witnesses who may testify without leave.

[23]

Third, joinder would contravene the intent of the provincial legislature
    to create a system for the trial of
POA
offences that separates them
    from the system for the trial of criminal offences created by Parliament.

[24]

Fourth, joinder would violate the principles expressed by the Supreme
    Court of Canada in
R. v. S.J.L.
, 2009 SCC 14, [2009] 1 S.C.R. 426,
    that barred a joint trial of offences that required trial by a youth court under
    the
Youth Criminal Justice Act
(
YCJA
)
with offences tried under the
Criminal
    Code
.

[25]

As an alternative, the appellant says, the jurisdictional bar to joint
    trials can be avoided by an agreement to proceed with the criminal trial first.
    When the evidence has concluded, the defendant can be arraigned and enter a
    plea on the provincial offences. Section 47(1) of the
POA
can then be
    invoked to permit the evidence adduced at the criminal trial to apply to
    proceedings for the provincial offence. Submissions and decision in both
    prosecutions can follow. The efficiency of a joint trial is preserved without
    jurisdictional compromise.

[26]

The respondent says that it is open to this court to decide that, with
    the consent of the parties, a provincial court judge can simultaneously preside
    over the trial of a summary conviction
Criminal Code
offence and of a
    provincial offence. A combination of the
Criminal Code
,
POA
,
and the
Courts of Justice Act
,
    R.S.O. 1990 c. C.43, provides the provincial court judge with the jurisdiction
    to try both offences.

[27]

The respondent does not agree that the decision in
Clunas
prohibits
    the joint trial of provincial offences and summary conviction
Criminal Code
offences charged in separate informations. After all,
Clunas
involved
    only
Criminal Code
offences charged in separate informations and had
    nothing to say, either expressly or by necessary implication, about joint
    trials involving provincial and summary conviction
Criminal Code
offences. The decision in
Clunas
did not bar the joint trial of any
    combination of charges. The
Clunas
court could have forged such an
    all-encompassing prohibition but declined to do so.

[28]

Allowing such a joint trial is not inconsistent with the defendants
    right to any evidentiary or procedural advantages available under either the
Criminal
    Code
or
POA
. While procedural differences do exist,
they are slight and, in most cases, work no great
    mischief.
And, if the defendant has any concerns about the
    advantage or benefit that may be lost in a joint trial, she or he need only
    refuse to consent to the joint trial.

[29]

Further, the respondent says, the
    alternative advanced by the appellant  using s. 47(1) of the
POA
to incorporate by reference the evidence given at
    the criminal trial  would suffer from the same rule differential. Yet the
    appellant advances such a procedure as a jurisdictionally sound alternative.
    The appellant cannot have it both ways.

The Governing Principles

[30]

The principles that
    control our decision in this case are an amalgam of statutory enactments that
    permit and limit joinder of offences and decisions that control the
    circumstances in which a single trial may be held on more than one information
    or indictment.

(1)

The
    Commencement of Proceedings and Joinder of Counts

[31]

Criminal Code
proceedings are commenced by laying an
    information under oath alleging the commission of an offence. The same
    procedure applies whether the offence charged is an indictable or hybrid
    offence (s. 504) or a summary conviction offence (s. 788(1)).

[32]

In a
Criminal Code
information that charges indictable offences,
    subject to an exception that has no place here, any number of indictable
    offences may be included, provided each is contained in a separate count: s.
    591(1).
Likewise, s. 789(1)(b) expressly permits the inclusion of
    several summary conviction offences in separate counts in a single information.

[33]

The
Criminal Code
contains no provision that expressly permits
    or prohibits joinder of indictable and summary conviction offences as separate
    counts in the same information.

[34]

For proceedings governed by the
POA
, an information laid under
    s. 23(1) of the Act may allege, as separate counts, several offences. Section
    1(1) defines the term offence exhaustively as an offence under an Act of the
    Legislature or under a regulation or by-law made under the authority of an Act
    of the Legislature. Section 25(5) of the
POA
authorizes joinder of
    any number of counts for any number of offences in the same information. Each
    offence charged in an information must be an offence within s. 1(1) of the
POA
.

(2)

The
    Trial Court

[35]

Summary conviction offences under the
Criminal Code
are tried
    in accordance with Part XXVII by a summary conviction court as defined in s.
    785. In Ontario, a summary conviction court includes a provincial court judge,
    a member of the Ontario Court of Justice.

[36]

Provincial offences are tried in provincial offences court, a court
    created by the
Provincial Courts Amendment Act
, 1979
, S.O.
    1979, c.5. This legislation, enacted contemporaneously with the
POA
,
    conferred exclusive jurisdiction over the trial of provincial offences on the provincial
    offences court. Judges of the Ontario Court of Justice are judges of the provincial
    offences court.

(3)

Joint
    Trials on Separate Informations

[37]

In 1983, the Supreme Court of Canada held that the overwhelming weight
    of authority was against the joint trial of more than one indictment or
    information:
Phillips and Phillips v. The Queen
, [1983] 2 S.C.R. 161,
    at p. 164.

[38]

In
Phillips
, three members of the Phillips family agreed to a
    joint trial on three separate informations. Each information charged one person
    with an offence. Two charged offences under provincial law, the third a hybrid
Criminal
    Code
offence on which the Crown elected to proceed summarily. The court,
    relying on the decision of the House of Lords in
Crane v. Public Prosecutor
,
    [1921] 2 A.C. 299, and of the Court of Criminal Appeal in
R. v. Dennis
;
R. v. Parker
, [1924] 1 K.B. 867, held that a single trial could not be
    held on more than one indictment, even with the consent of the parties. Consent
    cannot confer jurisdiction:
Phillips
, at p. 164.

[39]

The
Phillips
court did not follow this courts decision in
R.
    v. Kennedy
;
R. v. Dowdall
, [1971] 2 O.R. 445 which upheld the convictions
    of two accused jointly tried on two separate informations with their consent.
    This court had considered such a joint trial at best an irregularity curable in
    the absence of prejudice under what is now s. 686(1)(b)(iii) of the
Criminal
    Code
.

[40]

The
Phillips
court rejected the reasoning in
Kennedy
and
Dowdall
for four reasons:

i.

the elaborate procedure for joint trials contained in the
Criminal
    Code
was not replicated for the joinder of (separate) informations or
    indictments;

ii.

the joint trial of separate indictments against two accused would permit
    the Crown to call one accused as a Crown witness against the other;

iii.

an accused would be deprived of the opportunity to testify and answer to
    the charge contained in one indictment but not the other (the same would hold
    true if all the counts were included in the same indictment); and

iv.

the
Criminal Code
refers to the information and the
    indictment as the document on which an accused is tried, rendering the joinder
    and severance provisions unnecessary if a joint trial could be held on more
    than one information or indictment.

[41]

In
Phillips
, the court said nothing about the appellants claim
    that
Criminal Code
and provincial offences charged in separate
    informations could not be tried together.

[42]

Almost a decade later, the Supreme Court of Canada welcomed the
    opportunity to reconsider
Phillips
in light of Lord Roskills opinion
    in
In

re Clayton
, [1983] 2 W.L.R. 555 (H.L.), at pp. 562-63:

Any rule of practice or procedure which makes their task more
    difficult or demands subservience to technicalities is to be deprecated and
    your Lordships may think that this House should now encourage the adoption of
    rules of procedure and practice which encourage the better attainment of
    justice, which includes the interests of the prosecution as well as of
    defendants, so long as the necessary safeguards are maintained to prevent any
    risk of injustice to defendants.

See
Clunas
, at p.
    599.

[43]

In
Clunas
, a single accused was charged in two separate
    informations with two offences under the
Criminal Code
. One offence
    was an indictable offence in which Clunas elected trial by provincial court
    judge. The second was a dual procedure offence on which the Crown elected to
    proceed summarily.
Clunas

agreed
    to have the two informations tried together.

[44]

The joinder issues in
Clunas
were twofold. The first was
    whether a single accused could be tried (with consent) at the same time on two
    separate informations. And the second was whether an accused could be tried (on
    consent) in a single trial on two separate informations, one charging an
    indictable offence and the other a summary conviction offence.

[45]

The
Clunas
court rejected the reasoning in
Phillips
, based not only on
Crane
being overtaken by
Clayton,
but also on the courts conclusion that the problems
    contemplated in
Phillips
and summarized above

would
    not arise.
. Lamer C.J. expressed the unanimous conclusion of the
Clunas
court in these terms, at p. 610:

To conclude this portion of the judgment, I would say that when
    joinder of offences, or of accuseds for that matter, is being considered, the
    court should seek the consent of both the accused and the prosecution. If
    consent is withheld, the reasons should be explored. Whether the accused
    consents or not, joinder should only occur when, in the opinion of the court,
    it is in the interests of justice and the offences or accuseds could initially
    have been jointly charged.

[46]

As a result of the decision in
Clunas
, a joint trial on
    separate informations may be held, even in the absence of an accuseds consent,
    where the trial court concludes that a joint trial is in the interests of
    justice and that the offences or accuseds could initially have been jointly
    charged:
Clunas
, at p. 610.

[47]

The joint trial on separate informations in
Clunas
involved only
Criminal Code
offences. The trial took place before a provincial court
    judge who simultaneously exercised the authority of:

i.

a court of criminal jurisdiction for the trial of an indictable offence
    under Part XIX; and

ii.

a summary conviction court for the trial of a summary conviction offence
    under Part XXVII.

(4)

Joint
    Trials for Offences under Different Statutory Schemes

[48]

In
S.J.L.
, the Supreme Court was required to decide whether
    young persons could be tried together with adults. Two young persons and
    several adults were charged following a major police investigation into the
    drug trafficking activities of a criminal organization. After an unsuccessful
    motion for a preliminary inquiry for all accused, the Crown preferred a direct
    indictment against all accused. A judge of the Superior Court quashed the
    direct indictment against the young persons. A preliminary inquiry followed.
    The Qu
é
bec Court of Appeal upheld the decision of the Superior Court concluding
    that young persons and adults could not be tried together.

[49]

The Supreme Court was unanimous in concluding that young persons could
    not be tried together with adults. The court acknowledged the common law rule
    that persons charged on separate informations or indictments may be tried
    together if they committed an offence together:
S.J.L.
, at para. 48.
    Nothing in the common law or the
Criminal Code
barred either the
    joinder of young persons and adults in the same indictment or a request for a
    joint trial:
S.J.L.
, at para. 52. The court did not consider the
    simultaneous exercise by the presiding judicial officer of two different
    jurisdictions an impediment to joinder:
S.J.L.
, at para. 60.

[50]

What prohibited the joinder in
S.J.L
.,
and distinguished
    it from
Clunas
, was that in
S.J.L.
the joinder would have combined
    in a single proceeding two criminal justice systems that Parliament had made it
    clear were to be kept separate. Parliament created a separate criminal justice
    system for young offenders. It did so for the express purpose of keeping them
    and their trials separate from the adult criminal justice system. To permit the
    joint trial sought in
S.J.L.
would flout the will of Parliament to
    keep the systems separate.

[51]

The court expressed its conclusion in these terms, at para. 76:

In conclusion, the history of the separate youth criminal
    justice system, the abolition of the transfer to adult court, the content of s.
    67(5) and (7.1)
YCJA
, and the fact that neither the
YCJA
nor
    the
Criminal Code
contains specific provisions authorizing joint
    trials of adults and young persons are indications that Parliament intended to
    prohibit such trials. What is more, the adoption of this solution will make it
    easier for the youth justice court to perform its special role and will avert
    the practical difficulties inherent in a joint trial of young persons and
    adults. On this point, I therefore agree with the Court of Appeal that
    co-accused young persons and adults cannot be tried together.

The Principles Applied

[52]

As I will explain, binding authority requires us to give effect to this
    ground of appeal.

[53]

First, under
Clunas
the joint trial of separate informations
    can only occur when it is in the interests of justice and the offences could
    initially have been jointly charged:
Clunas
, at p. 610.

[54]

In this case, the appellant consented to the joint trial of the two
    informations. It was manifestly in the interests of justice that the
    allegations, all of which arose out of the same series of events, be tried at
    the same time. But the sticking point is the requirement that the
    offencescould initially have been jointly charged:
Clunas
, at p.
    610.

[55]

A
Criminal Code
information can include, as separate counts, several
    offences. It is of no moment whether those offences are exclusively indictable
    offences, exclusively summary conviction offences, or offences triable either
    way at the option of the Crown. Although the term offence is not defined in
    or for the purposes of the
Criminal Code
, it is self-evident that the
    term, as used in the joinder provisions of ss. 591(1) and 789(1)(b), refers to
    offences created and punished by the
Criminal Code
.

[56]

Section 34(2) of the
Interpretation Act
, R.S.C. 1985, c. I-21,
    as amended, makes it clear that the
Criminal Code
applies to the trial
    of all indictable and summary conviction offences created by an enactment.
    Section 2(1) of the Act defines an enactment as an Act and an Act as an
    Act of Parliament.

[57]

In combination, the joinder provisions of the
Criminal Code
and
    s. 34(2) of the
Interpretation Act
make it clear that a
Criminal
    Code

information cannot
    include a count charging a provincial offence to which the
POA
applies.

[58]

The
POA
also permits joinder of several offences in a single
    information. Unlike the
Criminal Code
, however, the

POA
,
in its s. 1(1), defines offence as an offence under an
    Act of the Legislature. From this definition it follows that a

POA

information cannot include counts charging

Criminal Code

offences.

[59]

The Supreme Courts decision in

S.J.L.
erects an additional roadblock to what occurred here.

[60]

The circumstances in

S.J.L.
are analogous, but not identical, to those of this case. Each involved a trial
    that combined the trial of a

Criminal
    Code
offence with the trial of an offence or offender for which or for
    whom a scheme separate from that used to try
Criminal Code

offences
    was specifically created. In

S.J.L.
,
the youth court had exclusive
    jurisdiction over the trial of offences committed by young persons. In this
    case, the provincial offences court has exclusive jurisdiction over the trial
    of the provincial offences with which the appellant was charged.

[61]

The procedural flaw the Supreme Court identified in
S.J.L.

    the joint trial of offences within the exclusive jurisdiction of one court with
    those in the exclusive jurisdiction of another  also occurred here. There is,
    however, one difference. In
S.J.L.,
the presiding judge was not a youth
    justice court or a youth justice court judge under the
YCJA
. In
    this case, the provincial court judge was not only a summary conviction court
    under Part XXVII of the
Criminal Code
but also a provincial offences
    court for the purposes of the
POA
. I am not persuaded, however, that
    this distinction warrants a different conclusion, at this stage of the analysis.

[62]

In the result, I am satisfied that the application of the principles
    laid down in
Clunas
and
S.J.
L.
barred the joint trial
    of the separate
Criminal Code
and
POA
informations. What
    remains is to consider the impact of that unauthorized joinder.

GROUND #2: THE IMPACT OF THE IMPROPER JOINT
    TRIAL

[63]

Nothing further need be said about the circumstances in which the joint
    trial was held. It is enough to say that the joint trial went ahead on consent
    and that nothing occurred that caused the appellant any substantive prejudice.

The Arguments on Appeal

[64]

The appellant acknowledges that not every error made in the conduct of a
    trial warrants appellate reversal. Legal errors may be saved by the application
    of the proviso in s. 686(1)(b)(iii) because they have not caused the appellant
    any substantial wrong or a miscarriage of justice. Procedural irregularities
    may be saved by the proviso in s. 686(1)(b)(iv) if the trial court had
    jurisdiction over the class of offence of which the appellant was convicted and
    the appellant suffered no prejudice as a result of the irregularity.

[65]

The appellant says that neither proviso can salvage the verdicts
    recorded at trial in this case.

[66]

The proviso s. 686(1)(b)(iii), the appellant contends, cannot render harmless
    the verdict because the error of law that occurred here was jurisdictional in
    nature and thus beyond the reach of that proviso.

[67]

The appellant concedes that the proviso of s. 686(1)(b)(iv) can be
    applied to procedural irregularities that are jurisdictional in nature but says
    that it cannot be invoked for every such error. The proviso can sustain
    verdicts where jurisdiction is lost during the proceedings, but it cannot
    underpin a decision rendered in proceedings where jurisdiction failed or was
    not established at the outset. And it is the latter that occurred here: the
    trial court was never properly constituted.

[68]

Under the
POA
, there is no curative proviso like s.
    686(1)(b)(iv) of the
Criminal Code
to remedy jurisdictional errors.

[69]

The respondent says that if the joint trial of a
Criminal Code
summary
    conviction offence and a provincial offence is characterized as an error of law,
    the verdict rendered can be preserved by the application of the proviso in s.
    686(1)(b)(iii) of the
Criminal Code
and its equivalent, s.
    120(1)(b)(iii) under the
POA
. The joinder caused the appellant no
    prejudice.

[70]

If the error is categorized as a procedural irregularity, the respondent
    says that s. 686(1)(b)(iv) should be invoked to sustain the
Criminal Code
conviction.
    The
POA
conviction would fall, however, because the
POA
has
    no equivalent to s. 686(1)(b)(iv).

[71]

In the alternative, the respondent invites us to consider whether the
    appellant waived the requirement put in place by
Clunas
that permits
    joinder only where the offences can be joined together in the same information.

The Governing Principles

[72]

To determine the impact of the improper joint trial of the
Criminal
    Code
and
POA
informations, an essential first step is to
    determine the character of the misjoinder. A procedural irregularity? An error
    of law? A procedural irregularity based on an error of law? Or something else?
    The characterization of the nature of the error, as we shall see, has
    implications for the availability of a proviso to hold harmless the verdict
    rendered at trial.

(1)

Characterizing the Error

[73]

The
Criminal Code
contains both substantive and procedural
    provisions. Among other things, the
Criminal Code
creates offences, as
    well as justifications, excuses, and defences. These provisions are substantive
    law. The procedural provisions of the
Criminal Code
regulate the
    manner in which the parties conduct proceedings, for example, the conduct of
    trials to determine whether the offences with which a person has been charged
    have been proven beyond a reasonable doubt:
R. v. Cloutier
(1988), 43
    C.C.C. (3d) 35 (Ont. C.A.), at pp. 48-49, leave to appeal refused, [1989] 2
    S.C.R. vi.

[74]

Criminal Code
provisions relating to joinder of offences and
    offenders, as for example, ss. 591(1) and 789(1)(b), have to do with the manner
    in which the trials of several offences and offenders are conducted. These
    provisions are procedural in nature: see
Kennedy
and
Dowdall
,
    at pp. 447-49, 457; and 70;
R. v. Pottinger
(1990), 54 C.C.C. (3d) 246
    (Ont. C.A.), at pp. 251-52, leave to appeal refused (1990), 58 C.C.C. (3d) vii
    (note).

(2)

The Scope of the Proviso

[75]

The
Criminal Code
contains two provisos. Each authorizes and
    defines the circumstances in which an appellate court may sustain a verdict
    rendered at trial despite errors or irregularities in the conduct of that
    trial. Each describes the nature of the error to which it applies and the
    standard to be met to preserve the disposition rendered at trial.

[76]

Section 686(1)(b)(iv), sometimes described as the procedural proviso, is
    in these terms:

686 (1) On the hearing of an appeal against a conviction or
    against a verdict that the appellant is unfit to stand trial or not criminally
    responsible on account of mental disorder, the court of appeal

(b) may dismiss the appeal where

(iv) notwithstanding any procedural irregularity at trial, the
    trial court had jurisdiction over the class of offence of which the appellant
    was convicted and the court of appeal is of the opinion that the appellant
    suffered no prejudice thereby

[77]

Section 686(1)(b)(iv) consists of three components or elements. The
    first relates to the nature of the error that occurred at trial. The second has
    to do with the jurisdiction of the trial court. And the third concerns the
    assessment of the error by the appellate court. In summary form, the elements
    are as follows:

·

procedural irregularity;

·

offence jurisdiction; and

·

absence of prejudice.

[78]

This proviso expands the remedial power of courts of appeal. It permits
    the court to dismiss appeals despite procedural irregularities that were
    previously seen as having caused a loss of jurisdiction at trial:
R. v. Khan
,
    2001 SCC 86, [2001] 3 S.C.R. 823, at para. 11. But this remedial power has its
    limits. And those limits involve both the jurisdiction of the trial court and
    the assessment of prejudice by the court of appeal. The trial court must have
    maintained its jurisdiction over the class of offence charged. And the court of
    appeal must be persuaded that the appellant has suffered no prejudice as a
    result of the procedural irregularity:
Khan
, at para. 11.

[79]

The first precondition that must be met to engage the discretion of a
    court of appeal to invoke its remedial power under s. 686(1)(b)(iv) has to do
    with the jurisdiction of the trial court. The trial court must have had
    jurisdiction over the class of offence of which the appellant was convicted.

[80]

The
Criminal Code
creates two classes of offences  indictable
    and summary conviction  and confers jurisdiction on various courts to try
    persons charged with those offences. A summary conviction court, as defined
    in s. 785, has jurisdiction to try summary conviction offences. In Ontario, a
    summary conviction court includes a provincial court judge, a judge of the
    Ontario Court of Justice.

[81]

In some cases, procedural requirements must be met in order for a trial
    court to have jurisdiction over the class of offence with which an accused is
    to be tried. For example, a failure to adhere to the statutory requirements for
    selection of a jury, where the trial is to be held in a court composed of a
    judge and jury, has been held to be a procedural irregularity that is beyond
    the remedial authority of s. 686(1)(b)(iv): see, for example,
R. v. Bain
(1989), 47 C.C.C. (3d) 250 (Ont. C.A.), at pp. 253-54, reversed on other
    grounds, [1992] 1 S.C.R. 91;
R. v. W.V.
,
2007 ONCA 546, at
    paras. 12-13, and 26-27, leave to appeal refused (2008), 397 O.A.C. 397 (note);
    and
R. v. Noureddine
, 2015 ONCA 770, 128 O.R. (3d) 23, at paras.
    49-50.

[82]

In a similar way, where a courts authority to try an accused depends on
    that accuseds election of mode of trial, a failure to follow the
Criminal
    Code
requirements on elections or re-elections of mode of trial is a
    procedural irregularity that lies beyond the remedial authority of s.
    686(1)(b)(iv):
Noureddine
, at para. 56;
R. v. Varcoe
, 2007
    ONCA 194, 219 C.C.C. (3d) 397, at paras. 14-22;
R. v. Mitchell
(1997),
    36 O.R. (3d) 643 (C.A.), at pp. 651-52; and
R. v. Shia
, 2015 ONCA 190,
    320 C.C.C. (3d) 111, at paras. 26-27 and 33.

[83]

These authorities and others make it clear that procedural
    irregularities that compromise the composition or selection of the trial court
    deprive that court of jurisdiction over the class of offence charged and are
    beyond the reach of s. 686(1)(b)(iv).

[84]

The second precondition that must be met to engage the discretion of a
    court of appeal to invoke its remedial power under s. 686(1)(b)(iv) focuses on
    the court of appeals assessment of the impact of the procedural irregularity.
    The court is required to assess whether the procedural irregularity caused the
    appellant prejudice.

[85]

The prejudice inquiry under s. 686(1)(b)(iv) examines not only actual
    prejudice to the appellant,  but also any prejudice to the due administration
    of justice caused by the procedural irregularity:
Noureddine,
at para.
    62. An appellate court may infer prejudice from the procedural irregularity,
    but the Crown may rebut that inference:
Khan,
at para. 16;
Noureddine
,
    at para. 62.

[86]

Where a procedural error or irregularity has occurred at trial, it
    becomes necessary to determine its origin. Procedural irregularities that
    amount to, or are based on, an error of law are considered under s.
    686(1)(a)(ii) and their effect assessed under the proviso of s. 686(1)(b)(iii):
Khan
,
at para. 18. If the procedural irregularity was
    classified prior to the enactment of s. 686(1)(b)(iv) as one that caused a loss
    of jurisdiction, s. 686(1)(b)(iv) provides that such an error is no longer
    fatal to the conviction. Prejudice is analysed in accordance with the
    principles in s. 686(1)(b)(iii):
Khan
, at para. 18.

The Principles Applied

[87]

As I will explain, I would reject this ground of appeal.

[88]

The procedural irregularity that occurred here was twofold. The joint
    trial of the
Criminal Code
summary conviction information and the
POA

information fell outside what
Clunas
permitted because the counts
    could not be included in the same information. The joint trial also ran afoul
    of
S.J.L.

because the joinder mixed offences to be tried in
    discrete court systems, one of which was created for the very purpose of maintaining
    separation of trials.

[89]

Each procedural irregularity originated in an error of law which, had it
    occurred prior to the enactment of s. 686(1)(b)(iv), would have caused a loss
    of jurisdiction in the trial court.

[90]

In this case, unlike in
S.J.L.
, however, the trial court had
    jurisdiction over the class of offences of which the appellant was convicted.

[91]

In
S.J.L.
,

the court in which the direct indictment was
    preferred  the Québec Superior Court  was not a youth justice court. The
    judge presiding in that court was not a youth justice court judge within s.
    2(1) of the
YCJA
. As a result, the court and judge lacked jurisdiction
    over the class of offence charged  an offence under the
YCJA
.

[92]

In this case, the presiding judge was a summary conviction court under
    s. 785 of the
Criminal Code
. As a summary conviction court, the
    provincial court judge had jurisdiction to try the class of offence charged
    under the
Criminal Code
: a summary conviction offence. In a similar
    way, the judge was a  provincial offences court under provincial law and thus
    had jurisdiction to try the class of offence charged  a provincial offence.
    That the joint trial required concurrent exercise of two discrete jurisdictions
    with some procedural differences is of no moment:
S.J.L.
, at para. 59.

[93]

Turning to the question of prejudice arising from the procedural
    irregularity, I am satisfied that the appellant suffered no actual prejudice
    and am equally satisfied that no prejudice was occasioned to the due
    administration of justice.

[94]

The inference of prejudice arising from the procedural irregularity here
    falls away on a fundamental level. All the charges related to a single incident:
    a series of events that took place within minutes, if not seconds, of one
    another. The appellant, who was represented by counsel, sought and got what he
    wanted: a single trial. He advances no ground of appeal that asserts error in
    the conduct of the trial that occurred because of its joint nature. He lost no
    substantive or procedural advantage. The prosecution gained neither.

[95]

Likewise, the record is barren of any suggestion of prejudice to the due
    administration of justice. The joint trial coincided with the positions
    advanced by counsel on both sides of the case. Joinder avoided unnecessary
    duplication and depletion of judicial resources, inconvenience to witnesses,
    and the prospect of inconsistent verdicts.

[96]

In the end, I am satisfied that this is an appropriate case to apply the
    provisos in s. 686(1)(b)(iv) of the
Criminal Code

and s.
    120(1)(b)(iii) of the
POA
to sustain the verdicts rendered at trial.
    Although the
POA
contains no provision comparable to s. 686(1)(b)(iv),
    the legal nature of the error is sufficient to bring it within the reach of s.
    120(1)(b)(iii).

CONCLUSION

[97]

I would dismiss the appeals.

Released: JCM May 30, 2016

David
    Watt J.A.

I
    agree J.C. MacPherson J.A.

I
    agree B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Siddiqui, 2016 ONCA 376

DATE: 20160518

DOCKET: C60692

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Siddiqui

Appellant

Richard Litkowski, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: May 13, 2016

On appeal from the conviction entered on December 15,
    2014 and the sentence imposed on July 6, 2015 by Justice
Roselyn
    Zisman
of the Ontario Court of Justice.

ENDORSEMENT

[1]

Early in the morning of March 3, 2013, the appellant was driving his
    Honda with three passengers, along the Queen Elizabeth Way (QEW). Ali Shahid,
    the passenger in the front seat, noticed a Nissan, driven by Ahmed Manzoor,
    beside them. Both cars increased their speed. The cars changed lanes several
    times. The Honda spun out of control and crashed. Mr. Shahid was ejected from
    the car and suffered serious injuries.

[2]

The appellant was charged with three counts of dangerous driving causing
    bodily harm. Mr. Manzoor was charged with dangerous driving.

[3]

The trial judge, citing
R. v. Roy,
[2012]
2 S.C.R. 60, correctly noted that to establish the
    offence of dangerous driving, the Crown had to prove that the appellant was
    driving in a manner that amounted to a marked departure from the standard of
    care that a reasonable person would observe in the particular situation.

[4]

With respect to Mr. Manzoor, the trial judge found that the
actus
    reus
was established, but not the
mens rea
. The trial judge had
    no doubt that Mr. Manzoors driving was negligent but was left with a
    reasonable doubt that it was a marked departure from the standard of care. The
    trial judge acquitted Mr. Manzoor.

[5]

The trial judge found the evidence to be much stronger as it pertained
    to the appellant. Mr. Shahid testified that just prior to the accident the
    appellant was driving around 170-180 km/h. He asked the appellant to slow down,
    but the appellant did not. Mr. Shahid testified that once again, he asked the
    appellant to slow down. Once again, the appellant did not heed Mr. Shahids
    warning. On this evidence, the trial judge found that at the time of the
    accident, the appellant was driving at a very high speed, refused to slow down
    when twice asked to do so and was tailgating the Nissan.

[6]

The trial judge found the appellant guilty of the charge relating to Mr.
    Shahid and acquitted him of the charges in relation to the other two
    passengers. The trial judge imposed a sentence of five months in jail and a five
    year driving suspension.

[7]

The appellant appeals both conviction and sentence.

[8]

Concerning the conviction appeal, the appellant submits that the trial
    judge misapprehended the evidence relating to causation. The appellant contends
    that even if the evidence supported a finding that the appellant was driving in
    a manner that represented a marked departure, there was insufficient evidence
    to support the conclusion that such driving was the cause of Mr. Shahids
    injuries. Specifically, while there was evidence that the appellant was
    speeding and made a lane change before the accident, there was no evidence of
    the manner of driving at the time of the accident. Furthermore, argues the
    appellant, the evidence that the Crown relied on as to the appellants driving
    at the time of the accident was unreliable.

[9]

We do not agree with this submission.

[10]

The trial judge made specific factual findings available to her on the
    evidence. Based on Mr. Shahids testimony, the appellant was speeding just
    prior to the accident and, significantly, he ignored repeated warnings to slow
    down. The trial judge explained why she accepted this evidence, Further, the
    trial judge accepted the evidence of a witness, Karen Johnson, who saw the two
    cars pass her a minute or so before the accident at a speed Ms. Johnson
    estimated to be approximately 150 km/h. The trial judge was not required to
    address each and every inconsistency in the evidence relevant to this issue.

[11]

The appellant also submits that in convicting him and acquitting Mr.
    Manzoor, the trial judge arrived at inconsistent verdicts. Based on the trial
    judges findings, Mr. Manzoors driving was the same as that of the appellant.

[12]

Again, we cannot accept this argument.

[13]

For a verdict to be inconsistent there must be no realistic view of the
    evidence or any rational logical basis upon which the verdicts may be
    reconciled.
R. v. Pittiman
, [2006] 1 S.C.R. 381.

[14]

The trial judge pointed to two key pieces of evidence that she felt made
    the case against the appellant stronger than that against Mr. Manzoor - Mr.
    Shahids evidence about the appellants speed and his ignored warnings about
    the speed. This evidence provided insight, not only as to the appellants
    driving, but also as to his state of mind at the time of the accident  that he
    had repeatedly been made aware of the dangerousness of his manner of driving,
    and repeatedly chose to ignore the warnings. Such evidence was not available in
    the case of Mr. Manzoor.

[15]

Based on the evidence that was available in relation to the appellants
    driving and state of mind, that was not available in relation to Mr. Manzoor,
    the high threshold for establishing an inconsistent verdict has not been met in
    this case.

[16]

Concerning the sentence appeal, the appellant argues that having
    determined that a custodial sentence was required, the trial judge erred in
    principle in failing to thoroughly consider the appellants request for an
    intermittent sentence.

[17]

We disagree.  The trial judge expressly addressed the appellants
    request for an intermittent sentence and was of the view that a five month
    custodial sentence was necessary.

[18]

We find no reason to interfere with the sentence imposed by the trial
    judge. The trial judge clearly showed she was mindful of the principle of
    restraint, particularly in the light of appellants status as a youthful first
    offender. The five month sentence imposed was fit in all of the circumstances
    of this offence and this offender.

[19]

The appeal as to conviction is therefore dismissed. Leave to appeal
    sentence is granted. The sentence appeal is dismissed.

Gloria
    Epstein J.A.

S.E. Pepall J.A.

K.M. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Staples, 2016 ONCA 362

DATE: 20160511

DOCKET: M46146 (C59710)

Gillese J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Staples

Applicant

Michael Lacy and Marco Sciarra, for the applicant

Lorna Bolton, for the respondent

Heard: April 12, 2016

ENDORSEMENT

[1]

This is the application of Mark Staples (Mr. Staples or the
    Applicant) for appointment of counsel pursuant to s. 684(1) of the
Criminal
    Code
.

OVERVIEW

[2]

On November 28, 2014, Mr. Staples was convicted of two counts of
    first-degree murder in relation to the deaths of his father, William Staples,
    and his sister, Rhonda Borelli.  He was sentenced to life imprisonment with
    parole ineligibility of 25 years.  He appeals against conviction.

[3]

Mr. Staples application to Legal Aid Ontario (LAO) to fund his appeal was
    refused on the basis that he failed to make complete financial disclosure.  He
    now applies to this court for the appointment of counsel under s. 684(1).  The
    Crown opposes the application.

[4]

The Applicant has not been clear and transparent in disclosing his
    financial circumstances or in the conduct of his personal financial affairs.
    Consequently, in my view, he has failed to meet his burden under s. 684(1) and
    the application is dismissed.

BACKGROUND IN BRIEF

Events Leading to the Convictions

[5]

The victims were last seen on January 16, 1998. Their bodies were
    located inside William Staples truck at a parking lot near Pearson
    International Airport in Mississauga on June 8, 1998. Because of the advanced
    state of decomposition of the bodies, a precise cause of death could not be
    determined for Rhonda Borelli.  William Staples died from blunt force trauma.
    An autopsy revealed that he had sustained 140 skull fractures.

[6]

The Applicant was arrested in June 2010, some twelve years after the
    murders.

[7]

On May 9, 2011, he was released on a recognizance of bail in the amount
    of $170,000, with four sureties. The Applicant pledged $100,000 under the terms
    of that recognizance.  Paul Mazza acted as a surety in the amount of $50,000.

[8]

Under the terms of the recognizance, the Applicant was prohibited from
    communicating with any witnesses at trial, with the exception of Mr. Mazza and
    Nella Bradt, whom the Applicant described as his common law spouse.

[9]

The Applicants trial before a judge and jury took place in the fall of
    2014.  The Applicant did not testify at trial.

[10]

The Crowns theory was that the murders were motivated by a combination
    of anger and greed. At the time of the victims deaths, the Applicant was seriously
    in debt and his father was refusing to give him any more money. By murdering
    both his father and sister, the Applicant became the sole beneficiary of his
    fathers sizeable estate.

[11]

Mr. Mazza, who had acted as legal advisor to the executor of William
    Staples estate, was called as a Crown witness. Mr. Mazza testified that the
    Applicant received approximately $1.4 million from his fathers estate.

[12]

During his trial testimony, Mr. Mazza was asked about his relationship
    to the Applicant. He conceded that he was the Applicants surety and long-time
    friend, and that he had acted as the Applicants lawyer in civil matters in the
    past.

[13]

The defence theory at trial was that the alleged motive to kill was
    weak.  Although the Applicant had been suffering financial difficulties at the
    time of the murder, he could have dealt with them by declaring bankruptcy,
    which he did ten days after the victims disappeared.  The defence suggested
    that the victims had been kidnapped by unknown assailants from the farm where
    they lived, at 11:30 p.m. on January 16th (when the Applicant was at work),
    murdered elsewhere, and their bodies had then been taken to the airport parking
    lot in William Staples truck.

The Applicants Property

[14]

In 2006, the Applicant bought a house located at 96 Creighton Road in
    Dundas, Ontario (the Property) for $329,000.  The Royal Bank registered a
    mortgage against it for just over $320,000.

[15]

On September 25, 2012, the Applicant placed a second mortgage on the
    Property in favour of Mr. Mazza in the amount of $75,000.  The mortgage had an
    interest rate of 0%. The sole term of the mortgage was that it was payable upon
    demand and, once demand was made, interest would accrue at a rate of 10% per
    annum.

Funding for Legal Counsel at
    Trial

[16]

The Applicants application to LAO for the funding of his defence at
    trial was denied on financial grounds.

[17]

In April 2013, after being denied legal aid, the Applicant filed a
Rowbotham
application. The documents filed in support of that application showed the
    assessed value of the Property at that time to be between $425,000 and $450,000
    and, given the location and lot size, the price likely fell at the higher end
    of that range. The market value assessment was performed by one of the
    Applicants other sureties, Nils Foss.

[18]

The Applicant withdrew his
Rowbotham
application after he reached
    an agreement, effective October 19, 2012, with the Ministry of the Attorney
    General (the Attorney General) for the funding of his defence (the
    Agreement).

[19]

The Attorney General did not recognize the Applicant as indigent and
    never agreed to fund his legal representation.  Rather, under the terms of the
    Agreement, the Attorney General agreed to compensate the Applicants trial
    lawyers on the same basis as if there were a legal aid certificate in place and
    the Applicant agreed to repay the Attorney General over time.

[20]

The terms of the Agreement obligated the Applicant to promptly advise
    the Attorney General of all changes to his financial circumstances.  The
    Applicant also agreed to

contribute the full and actual cost of legal services paid by
    the [Attorney General] pursuant to this Funding Agreement towards the cost of
    his defence, estimated by Victor Giourgas and Marco Sciarra at up to $500,000,
    payable to Legal Aid Ontario in a one-time initial payment of twenty-five
    thousand dollars ($25,000.00) made on or before June 1, 2013 and monthly
    instalments of two thousand dollars ($2,000.00) per month, on the first of
    every month beginning May 2013.

[21]

The Applicant further agreed that as security for the debt, he would place
    a charge on the Property, in the amount of $300,000, in favour of Her Majesty
    the Queen in Right of Ontario.  That charge was never registered.

[22]

The parties to the Agreement agreed that its terms should remain
    confidential and not be disclosed by any party except as required by law.

Disposition of the Property

[23]

The Applicant was convicted at the end of November 2014.

[24]

By March 2015, Mr. Mazza had obtained a default judgment from the
    Superior Court allowing him to foreclose on the Property.  The Applicant did
    not contest the foreclosure proceedings and made no request for sale of the Property.

[25]

As a result, Mr. Mazza obtained title to the Property for the equivalent
    of $322,000  slightly less than the Applicant had paid for the Property when
    he purchased it 9 years earlier and over $100,000 less than the assessment
    value of the Property in April 2013. (According to the application to the Land
    Registrar made following the default judgment, Mr. Mazza assumed the remaining
    sum owed to the Royal Bank on the first mortgage, which by then was $247,000).

[26]

The Attorney General was not notified of the foreclosure proceedings.

[27]

Ms. Bradt appears to have continued to live on the Property, notwithstanding
    the foreclosure.

Efforts at Funding for the Appeal

[28]

In January 2015, the Applicant applied to LAO for funding for his
    appeal. He failed to disclose Ms. Bradts existence to LAO. He told LAO that
    his home had been foreclosed, although the foreclosure order had not been
    granted at that time. The Applicant was asked to supply the foreclosure
    documents and to provide his 2013 and 2014 tax returns and solicitors
    accounts. He provided his 2014 return, foreclosure documents and solicitors
    accounts, but failed to produce his 2013 Notice of Assessment from Revenue
    Canada.

[29]

LAO obtained a copy of the Applicants recognizance of bail, at which
    time it learned of Ms. Bradts existence. LAO contacted Ms. Bradt in April 2015.
    She confirmed that she was residing at the Property.  Ms. Bradt initially
    agreed to provide LAO with copies of her 2014 T4, current pay stubs and bank
    account records, and to sign a consent and release permitting LAO to make other
    inquiries into her finances. However, shortly thereafter she told LAO that
    after speaking with counsel, she refused to sign the releases necessary for a
    full financial assessment.

[30]

After the Applicant was denied Legal Aid by the Area Committee, he
    produced some of the documents requested by LAO pertaining to Ms. Bradts
    finances.  However, LAO deemed the information provided to be insufficient.

THE APPLICABLE LEGAL PRINCIPLES

[31]

Section 684 (1) of the
Criminal Code
reads as follows:

A court of appeal or a judge of that court may, at
    any time, assign counsel to act on behalf of an accused who is a party to an
    appeal or to proceedings preliminary or incidental to an appeal where, in the
    opinion of the court or judge, it appears desirable in the interests of justice
    that the accused should have legal assistance and where it appears that the
    accused has not sufficient means to obtain that assistance.

[32]

Thus, pursuant to s. 684, this court has the authority to assign counsel
    to act on Mr. Staples behalf if, in its opinion, (1) it is desirable in the
    interests of justice that he should have legal assistance,  and (2) it appears
    that he does not have sufficient means to obtain that assistance.

[33]

Mr. Staples, as the applicant, bears the burden of proof on this
    application:
R. v. Abbey
, 2013 ONCA 206, 115 O.R. (3d) 13, at para.
    31.

[34]

In deciding an application under s. 684(1), the court must consider three
    general questions:

1.  Does the applicant
    have the means to hire counsel privately?

2.  Has the
    applicant advanced arguable grounds of appeal?

3.  Does the
    applicant have the ability to effectively advance his or her appeal without the
    assistance of counsel?  In answering this question, the court should examine such
    matters as the complexity of the legal arguments to be advanced on appeal and the
    applicants ability to make legal argument in support of the grounds of appeal:
Abbey
, at para. 33.

[35]

The decision on this application turns on a consideration of the Applicants
    financial means.

THE APPLICANTS FINANCIAL MEANS

[36]

The Applicant says that he does not have the means to hire counsel.  He
    submits that even if Ms. Bradt is part of his family unit and changes her mind
    and agrees to contribute to the costs of his appeal, together their income and
    assets are insufficient to fund an appeal of this magnitude.  He points to the
    Agreement as evidence of his lack of financial means.  He says that the
    Agreement shows that the Attorney General was content to fund the costs of his
    defence at trial and now his financial situation is even worse.  When facing
    trial, he was working and receiving income.  Now he is incarcerated and his
    house has been foreclosed.

[37]

The Crown contends that the Applicant cannot claim that he has exhausted
    all opportunities to obtain legal aid when the reason that legal aid funding was
    refused was his own incomplete financial disclosure.  It further says that an
    applicant cannot dispose of his assets recklessly and then plead an inability
    to retain counsel.  Finally, it argues that it is contrary to the interests of
    justice to grant the application as to do so would enable the Applicant to
    abuse the process by which criminal appeals are publicly funded.

[38]

I accept the Crowns position on this matter.

[39]

As a preliminary matter, I reject the Applicants characterization of
    the Agreement.  The terms of the Agreement make it clear that the Attorney
    General did not fund the costs of the Applicants legal defence at trial.  To
    the contrary.  The Agreement was clearly designed to ensure that the Applicant
    would repay the costs of his defence.  However, because it might have posed a
    hardship if the Applicant were required to pay the legal costs of his defence
    all at once, the Agreement gave the Applicant time in which to repay his legal
    costs.

[40]

To obtain the exceptional relief of government funded counsel, the Applicant
    must satisfy the court that he has exhausted all other means of paying for
    counsel.  He must also be clear and transparent in disclosing his financial
    affairs.  In my view, the Applicant has done neither.

[41]

On the record, the Applicant failed to make full and complete financial
    disclosure in the legal aid process.  He initially failed to disclose the
    existence of Ms. Bradt.  He told LAO that the Property had been foreclosed on
    when that had not yet happened.  He did not provide all the documentation that
    LAO requested in respect of his income.  Ultimately, legal aid was denied
    because LAO was not satisfied that the Applicant had provided complete and
    credible financial information.

[42]

The Applicant cannot satisfy his burden of showing that he has exhausted
    the legal aid process when his rejection was due to his own incomplete
    financial disclosure.

[43]

Moreover and very significantly, the circumstances surrounding the
    foreclosure of the Property raise real questions about the Applicants conduct
    of his financial affairs.

[44]

Mr. Mazza is the Applicants long-time friend.  He obtained title to the
    Property based on foreclosure proceedings that the Applicant did not contest.
    On the record, it appears that as a result of failing to contest those
    proceedings, the Applicant forfeited over $100,000 in excess value on the
    Property beyond what was owing on the two mortgages.

[45]

Furthermore, in contravention of his obligations under the Agreement,
    the Applicant did not notify the Attorney General of the foreclosure
    proceedings.  Effectively, this deprived the Attorney General of the
    opportunity to recover $100,000 of the amount the Applicant owes under the
    terms of the Agreement.  In light of the Applicants complicity in the
    disposition of the underlying security for repayment, it is difficult to see
    how public funding of his appeal is justifiable.

[46]

Moreover, there is a lack of transparency about the foreclosure
    proceedings that calls into question its arms-length nature.  In this regard I
    would point to, among other things, the fact that the Applicants common law
    spouse continues to reside on the Property, despite title having gone into Mr.
    Mazzas name.

[47]

In these circumstances, the Applicant has not satisfied his burden in
    terms of financial need.

DISPOSITION

[48]

For these reasons, the application is dismissed.

[49]

In my view, disclosure of the terms of the Agreement was necessary for
    the Crown to answer the present application.  I order that the application
    record be placed under seal by this Court so that the Agreement remains
    confidential.

E.E. Gillese 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.

6.

(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

7.

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

8.

(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. Williams, 2016 ONCA 373

DATE: 20160517

Watt J.A.

DOCKET: C59491

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Williams

Appellant

DOCKET: C59502

BETWEEN

Her Majesty the Queen

Respondent

and

Gay Overland

Appellant

DOCKET: C60278

BETWEEN

Her Majesty the Queen

Respondent

and

Weston Pickering

Appellant

DOCKET: C60820

BETWEEN

Her Majesty the Queen

Respondent

and

Headley Moore

Appellant

Lou Strezos, Duty Counsel

Holly Loubert, for the Provincial Crown

Yale Pressman, for the Federal Crown

Heard: May 10, 2016

ENDORSEMENT

[1]

Amicus
appointed to vet ineffective assistance of counsel
    claims in the appeals of
Pickering
,
Overland
,
Moore
and
Williams
. The vetting shall include an assessment of the
    specificity of the grounds alleged and whether, if established, the claims are
    capable of constituting ineffective assistance of counsel. In making that
    determination, to the extent possible,
amicus
shall consider any
    transcripts and other materials contained in the current record before this
    court. In each case,
amicus
shall report back to the court on or
    before July 11, 2016 the results of this vetting process. This procedure is not
    to be taken as anything more than an attempt to deal with these specific
    appeals to move them forward.

David Watt
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zekaria, 2016 ONCA 335

DATE: 20160504

DOCKET: C60158

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hamza Zekaria

Appellant

Hamza Zekaria, in person

Brian Snell, duty counsel

Howard Leibovich, for the respondent

Heard and released orally: April 6, 2016

On appeal from the conviction entered on February 9, 2015
    by Justice J. D. Nadelle of the Ontario Court of Justice.

ENDORSEMENT

[1]

This was a circumstantial case and the trial judge was prepared to draw
    an inference that the appellant had the requisite knowledge.  Duty counsel
    argues that this inference was not the only rational inference available on the
    record.

[2]

We disagree.

[3]

The circumstances only pointed to one conclusion.

[4]

We are also not persuaded that the trial judge reversed the onus of
    proof.  At page 2 of his reasons, the trial judge was not commenting on the
    accuseds failure to testify but on the fact that the evidence did not disclose
    any reasonable explanation other than guilt.

[5]

We decline to receive the fresh evidence the appellant sought to tender
    on appeal.  Apart from the absence of any motion seeking to admit fresh
    evidence, we fail to see any relevance in the proposed evidence.

[6]

The appeal is dismissed.

K. Feldman J.A.

Janet Simmons
    J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rana v. Ontario (Training Colleges and Universities),
    2016

ONCA 398

DATE: 20160526

DOCKET: C56816

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Kris Rana

Appellant

and

Her
    Majesty the Queen in Right of the Province of Ontario

(Ministry
    of Training Colleges and Universities Student Support Branch)

Respondent

Kris Rana, on her own behalf

Abel Fok, for the respondent

Heard:  May 19, 2016

On appeal from the order of Justice
Andra
    Pollak
of the Superior Court of Justice, dated February 27, 2013.

ENDORSEMENT

[1]

In 2008, the appellant enrolled in the law clerk program at Canadian
    Business College (the College), which is a private career college registered
    under the
Private Career Colleges Act
, 2005, S.O. 2005, c. 28, Sched.
    L (the
PCCA
). The College found that the appellant had plagiarized
    an assignment. She denied having done so and, in 2009, launched a complaint
    against the College with the Superintendent of Private Career Colleges (the
    Superintendent), alleging that the College was discriminating against her.
    That same year, she left the College and then, shortly thereafter, attempted to
    return to her program, but the College refused to allow her to do so.

[2]

The appellant corresponded with staff at the Ministry of Training,
    Colleges and Universities (the MTCU) regarding her complaint, who informed
    her via email that the MTCU did not have the jurisdiction to force the College
    to allow her back into the program and that there had been no breach of the
PCCA
or its regulations.

[3]

The appellant then issued a statement of claim alleging that Ontario,
    through the Superintendent and staff at the MTCU, was negligent in its
    investigation of and response to her complaint with respect to the Colleges
    finding that she had plagiarized an assignment, as well as the Colleges
    refusal to allow her back into her program.

[4]

Ontario brought a motion pursuant to r. 21.01(1)(b) of the of the
Rules
    of Civil Procedure
to strike the statement of claim for failing to
    disclose a reasonable cause of action. The motion judge concluded that Ontario
    does not owe a private law duty of care to an individual student of a private
    career college. Consequently, the motion was granted and the appellants statement
    of claim was struck.

[5]

On appeal, the appellant submits that once an individual complains to
    the MTCU about a colleges misconduct, a private law duty of care arises. She
    submits that the duty of care was breached by the MTCU employees and the Superintendent
    because they failed to perform a diligent investigation into her complaint.

[6]

We are not persuaded that the motion judge erred in striking the
    statement of claim.

[7]

In our view, the motion judge correctly applied the test in
Anns v.
    Merton London Borough Council,
[1978]
    AC 728 (HL)

to find that the Superintendent cannot owe a
    private law duty of care toward an individual student complainant, as the
PCCA
does not expressly or by implication establish a relationship of proximity
    between the Superintendent and a student complainant. Rather, the
    Superintendents role in reviewing student complaints is limited to ensuring
    that private colleges comply with the
PCCA
. The Superintendent does
    not act as an advocate for student complainants.

[8]

In addition, the appellant did not plead any material facts that, if
    assumed to be true, would create a special relationship between her and the
    staff at the MTCU or the Superintendent.  The fact that the appellant wrote a
    number of letters to MTCU staff complaining about the Colleges alleged
    discrimination does not create a close and direct relationship. No Crown
    servant undertook or represented to her to expect any particular outcome as a
    result of her complaint.

[9]

In any event, the MTCU did conduct an investigation pursuant to its
    powers under s. 36(2) of O. Reg. 415/06 and determined that there was no basis
    to intervene.

[10]

The appeal is dismissed. In the circumstances, we make no order as to
    costs.

J.C. MacPherson J.A.

P. Lauwers J.A.

C.W. Hourigan J.A


COURT OF APPEAL FOR ONTARIO

CITATION: Read Jones Christoffersen Ltd. v. Neilas Inc., 2016
    ONCA 321

DATE: 20160502

DOCKET: C60909

Laskin, Pepall and Brown JJ.A.

BETWEEN

Read Jones Christoffersen Ltd.

Plaintiff (Respondent)

and

Neilas Inc., 54 Shepherd Road Inc., 60
    Shepherd Road Inc., Hi-Rise Capital Ltd.
and Duca Financial Services Credit
    Union Ltd.

Defendants (
Appellants
)

M. Scott Martin and Kayla Kwinter, for the appellants

Robert G. Tanner, for the respondent

Heard and released orally: April 28, 2016

On appeal from the judgment of Justice
Michael
    R. Gibson
of the Superior Court of Justice, dated July 22, 2015.

Brown J.A.:

[1]

The appellants, Neilas Inc., 54 Shepherd Road
    Inc., 60 Shepherd Road Inc., and Hi-Rise Capital Ltd., appeal from the summary
    judgment dated July 22, 2015 granted by the motion judge. Judgment in favour of
    the respondent, Read Jones Christoffersen Ltd., in the amount of $52,605.17 was
    granted, and the appellants counterclaim for $172,000 was dismissed. The
    dispute between the parties involves the liability for basic structural
    consulting services provided by the respondent to the appellants.

[2]

The appellants primary ground of appeal is
    that the reasons of the motion judge are so deficient as to not permit
    meaningful appellate review and failed to explain why the appellants were
    unsuccessful in their defence and counterclaim.

[3]

I agree with their submission. Indeed, the
    motion judge gave no meaningful reasons for his decision. His handwritten
    endorsement opened by stating: After hearing the submissions of counsel and
    reading the evidence, I am persuaded that there is no genuine issue for trial,
    and that the Plaintiffs motion for summary judgment under Rule 20 should be
    granted. The endorsement then ended by specifying the relief granted by the
    court.

[4]

Since the release of the decision of the
    Supreme Court of Canada in
Hryniak v. Mauldin
,
    2014 SCC 7, resort increasingly has been made to summary judgment motions under
    Rule 20. In many cases, including the present one, a summary judgment motion
    results in the final disposition of the dispute between the parties. Judges
    hearing summary judgment motions must provide meaningful reasons explaining
    their disposition of summary judgment motions.

[5]

The minimum standards summary judgment motion
    judges must meet were set out by this court in
Barbieri v. Matronardi
,
    2014 ONCA 416, at para. 22:

In order to allow for meaningful
    appellate review, the decision of the court must, at a minimum, provide some
    insight into how the legal conclusion was reached and what facts were relied
    upon in reaching that conclusion.

[6]

The endorsement of the motion judge in the
    present case failed to meet these minimum standards; it amounted to a failure by
    the motion judge to give any reasons. As was the case in
Barbieri
,
    in the present case
[t]he motion
    judges endorsement does not contain necessary findings of fact and is so
    lacking in analysis that it impedes meaningful appellate review: at para. 23.
    Where the appellate court cannot understand the legal basis for the decision or
    the factual findings made in support thereof, the decision of the summary
    motion judge is not entitled to any deference.

[7]

Since this court cannot conduct a meaningful
    review of the endorsement of the motion judge given its inadequacy, there is no
    alternative but to grant the appeal and set aside the judgment.

[8]

The respondent submits that this is a simple
    case and a full record is before us. Accordingly, the respondent asks the court
    to exercise its powers under s. 134(1)(a) of the
Courts of Justice Act
, R.S.O.
    1990, c. C-43,
and decide the summary judgment motion.
    In my view, this is not an appropriate case to do so. There is a factual
    dispute about the scope of the work which the motion judge did not resolve. As
    well, late notice was given by the respondent of its intention to seek a
    dismissal of the counterclaim on the return of its motion for summary judgment
    on its claim. As a result, I am not persuaded that it would be fair to decide
    the claim and counterclaim on the record before us.

[9]

However, I am strongly of the view that the
    parties should move this simple case ahead with expedition. I would encourage
    the Superior Court of Justice in Milton to accommodate any request by a party
    for an expedited hearing on the merits of this proceeding, including placing
    the proceeding on any expedited trial list, if requested.

[10]

As
    to costs, this appeal resulted from the failure of the motion judge to provide
    adequate reasons for his judgment. Under those circumstances, it would be unfair
    to visit the costs of that failure on either party at this stage of the
    proceeding. Instead, the costs of this appeal are fixed at $7,500, inclusive of
    HST and disbursements, and those costs shall be payable in the ultimate
    disposition of the cause below.

Released: May 2, 2016 (J.L.)

David
    Brown J.A.

I
    agree John Laskin J.A.

I
    agree
S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Robertson v. Robertson, 2016 ONCA 356

DATE: 20160509

DOCKET: M46373

MacPherson J.A. (In Chambers)

BETWEEN

Amy Florence Robertson

Applicant (Moving Party)

and

Stephen James Robertson

Respondent (Responding Party)

William H. Fysh, for the moving party

Philip Viater, for the responding party

Heard: May 6, 2016

MacPherson J.A.:

[1]

The applicant Amy Robertson brings this motion seeking an order
    extending the time for commencement of an appeal from the Order of Jarvis J. of
    the Superior Court of Justice dated April 24, 2015. In that order, the
    application judge dealt with several matters in the matrimonial proceedings
    involving the appellant and her former husband, the respondent Stephen
    Robertson. The application judge ordered the sale of the matrimonial home at
    116 Willow Park Lane in Aurora. It is this component of the application judges
    Order that the applicant seeks leave to appeal. If leave is granted, the
    applicant also seeks an order staying Jarvis J.s Order and related orders by
    Rogers J. dated March 31, 2016 and Jarvis J. dated April 19, 2016, pending the
    disposition of the appeal by this court.

[2]

Justice Jarvis held a Case Conference in the matrimonial proceedings.
    The parties and their counsel were present; all spoke at various times
    throughout the case conference.

[3]

At the conclusion of the Case Conference, the application judge
    delivered an endorsement. He said: Both parties are agreed that the matrimonial
    and commercial property be sold. The applicant says that she did not consent
    to the sale of the matrimonial home. She wants to appeal this component of the
    Order.

[4]

The date of the Order the applicant seeks to appeal is April 24, 2015.
    The appeal should have been commenced within 30 days of that date. The
    applicant filed this motion on April 15, 2016. Accordingly, she is about 11
    months late in taking an appropriate step in this court.

[5]

In
Rizzi v. Mavros
(2007), 85 O.R. (3d) 40 (C.A.), at para. 16,
    Gillese J.A. set out the factors to consider on a motion for leave to extend
    time to file an appeal:

(1)

whether the appellant formed
    an intention to appeal within the relevant period;

(2)

the length of the delay and
    explanation for the delay;

(3)

any prejudice to the
    respondent;

(4)

the merits of the appeal;
    and

(5)

whether the justice of the
    case requires it.

[6]

I will consider these factors in turn.

[7]

On the first factor, the applicant retained counsel to appeal Jarvis
    J.s Order on May 7, 2015. A motion for leave to appeal to the Divisional Court
    was delivered on May 8, 2015. Accordingly, the appellant formed an intention to
    appeal and acted on it within two weeks of the Order, well within the relevant
    30 day period.

[8]

With respect to the second factor, the applicants original leave motion
    was filed in the wrong court. She only filed materials in the right court (this
    court) on April 15, 2016. The applicant has an 11 month delay to explain. Her
    explanation is a simple one  I thought that I was in the right court for
    almost all of this period.

[9]

I do not accept this explanation for two reasons. First, the applicant
    was warned by opposing counsel and by one superior court judge (on October 15,
    2015) that she might be in the wrong court. Yet she did not resolve this issue
    until, at a motion before Bale J. of the Superior Court on February 16, 2016,
    she concluded that she was in the wrong court. Second, during the 10 months
    that the appeal was lodged in the Divisional Court, the applicant took
    virtually no steps to move it forward. She was constantly faced with motions to
    dismiss for delay. My conclusion on the second factor is, therefore, this: the
    applicants delay in commencing an appeal in this court is very long (11
    months) and her explanation for the delay is unpersuasive.

[10]

On the third factor, there will be prejudice to the respondent if leave
    to appeal is granted. If a stay were granted pending the appeal, the
bona
    fide
sale of the matrimonial home scheduled to close on July 5, 2016 would
    be placed in jeopardy with the risk of more legal proceedings by the purchaser
    and by a bank under power of sale proceedings. As well, the respondent incurred
    considerable legal expenses in the applicants misconceived and lengthy appeal
    proceedings in the Divisional Court. Accordingly, this factor favours the
    respondent.

[11]

The fourth factor  the merits of the proposed appeal  tells
    overwhelmingly in favour of the respondent. There is in the record a transcript
    of the entire hearing before the application judge on April 24, 2015. From
    start to finish, it is obvious that both parties agreed that the matrimonial
    home must be sold. Indeed, that is the principal topic of discussion throughout
    the hearing. I set out merely a few examples:

·

p. 4              THE COURT: I note as well that there seems to
    be some issue with respect to both parties wishing to have the matrimonial home
    sold.

·

P. 9              MS. BRUCE [the applicants counsel]: Well, the
    difficulty we have, Your Honour, is my client has been cashing in RRSPs to try
    to get the home in the best possible sale position Shell be doing the
    cleaning and maintenance to show the home.

·

P. 14            MR. VIATUR [the respondents counsel]: I can
    also advise you of my discussions with Ms. Bruce prior to appearing before Your
    Honour, when the parties were agreeing to list both properties for sale the
    agreement was Mom would select the agent for the matrimonial home, which she
    did, and Dad cooperated. In effect there is a listing agreement in place for
    the matrimonial home.

·

P. 16            MS. BRUCE: my client is working hard to try to
    maximize the value of the home.

·

pp. 41-42      MS. ROBERTSON: Well there was an agent that I
    involved, Susan Cowan.

·

THE COURT: So you have your choice of agent for the home.

[12]

After an afternoon recess, the application judge returned and said:

This is the endorsement that I have made and Im going to add
    to that after discussing its contents with counsel. Ill give each party an
    opportunity to discuss this with your respective clients. Well do it all in
    the courtroom right now.

Parties appearing with counsel. Both parties are agreed that
    matrimonial home, which Ive just said MH, and commercial property be sold.
    Applicant wife shall be entitled to choose the agent to sell the matrimonial
    home. Respondent husband shall be entitled to choose agent to sell the
    commercial property. Both parties shall instruct the agent chosen by them to
    cooperate fully with the other party. Each party shall be guided by the
    advice/recommendation of the agent involved with the sale of that property.
    Listing agreements to be signed by 1 May 2015. The net proceeds of the sale of
    each property shall be held in trust and not disbursed except by written
    agreement of the parties or further order of the court. Parties are cautioned
    that failure to cooperate in the expeditious listing and steps needed to effect
    a timely sale of either property may result in the court ordering that the
    parties consent to the sale be dispensed with.

[13]

The applicants counsels response to this draft was:

MS. BRUCE: I have no difficulty with what Your Honour has done
    so far today. My concern is that we didnt get an opportunity to discuss
    support but I dont know that we have time now.

[14]

In my view, the import of these passages is clear. The parties agreed
    that the matrimonial home needed to be sold. At the hearing, the discussion
    then focused on the mechanics of the sale.

[15]

I make a final point on this factor. My conclusion about the applicants
    consent at the hearing to the sale of the matrimonial home is supported by the
    applicants actions both before and after the hearing.

[16]

Before the hearing, the parties had listed the matrimonial home for sale
    as early as January 22, 2015. As well, in January and February, the applicant
    sent several emails to the respondent setting out what she was doing to prepare
    the home for sale.

[17]

Two weeks after the hearing, on May 8, 2015, acting pursuant to the
    component of the application judges order stating that the applicant could
    choose the real estate agent for the sale of the matrimonial home, the
    applicant sent a letter to the respondents counsel:

Dear Sir:

For many reasons I have decided to retain the services of a new
    listing agreement with regards to the sale of 116 Willow Farm Lane.

The new agent is Daniel Lehmkuhl.

I intend to cooperate with Mr. Lehmkuhl with regards to the
    sale of the property and expect to be able to show the home to prospective
    buyers commencing Wednesday, May 13, 2015.

[18]

My conclusion on the fourth factor is that the applicants position
    about the sale of the matrimonial home before, during and after the hearing
    amply justifies the application judges statement that [b]oth parties are
    agreed that matrimonial home  be sold. Accordingly, the proposed appeal
    contesting this finding is devoid of merit.

[19]

The fifth and final factor is whether the justice of the case requires
    granting an extension of time to file an appeal. Obviously, given what I have
    said about the second, third and, especially, fourth factors, the justice of
    the case requires that, at this juncture in long, acrimonious and expensive
    matrimonial proceedings, a meritless appeal not be permitted to proceed.

[20]

In light of this conclusion, it is not necessary to consider the three
    other orders challenged by the applicant on this motion.

[21]

The motion is dismissed. The respondent is entitled to his costs of the
    motion fixed at $4,700, inclusive of disbursements and HST.

Released: May 9, 2016 (J.C.M.)

J.C.
    MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Schoeler (Re), 2016 ONCA 328

DATE: 20160504

DOCKET: C61062

Weiler, Simmons and Epstein JJ.A.

IN THE MATTER OF: John Schoeler

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Janice E. Blackburn, for St. Josephs Healthcare

Chris Chorney, for the respondent Attorney General of
    Ontario

Heard: April 26, 2016

On appeal against the disposition of the Ontario Review Board dated June 29, 2015.

ENDORSEMENT

[1]

In 1967, the appellant, a 78
    year old man, was diagnosed with paranoid schizophrenia. Sadly, for several
    decades, the appellants mental disorder has caused him to be involved with the
    criminal justice and mental health systems.

[2]

In 2008, the appellant was
    found Not Criminally Responsible (NCR) on a charge of criminal harassment. The
    charges arose out of contact the appellant made with a woman with whom he had
    become infatuated. This woman had also been the victim in criminal harassment
    charges for which the appellant had been convicted in 1991.

[3]

Since the NCR verdict, the
    appellant has had annual hearings before the Ontario Review Board that have
    resulted in detention orders. In the most recent hearing in June 2015, the
    appellant sought an absolute discharge. The Board ordered a continuation of the
    detention order, then in place.

[4]

In this appeal, the
    appellant submits that the Board erred in maintaining its jurisdiction over
    him. Specifically, the appellant argues that the Board erred in law in equating
    the harm contemplated in the offence of criminal harassment with the harm
    contemplated in s. 672.5401 of the
Criminal Code
, the section that
    defines significant threat to the safety of the public, for the purposes of
    s. 672.54.

[5]

We disagree that the Board
    committed this error.

[6]

The appellants submission
    is based on the following sentence in the Boards reasons:

We are unanimous in finding there is a foreseeable and
    substantial likelihood that Mr. Schoeler would cause serious psychological harm
    to members of the public resulting from conduct that is criminal in nature,
similar
    to the index offence
, if not under the jurisdiction of the Board. [Emphasis
    added.]

[7]

The appellant submits that although
    causing the complainant to fear for his or her safety is an element of the
    offence of criminal harassment, absent evidence of harm experienced by the
    complainant in the index offence, it was not open to the Board to conclude that
    the index offence resulted in serious psychological harm  which is required to
    meet the threshold of significant threat to the safety of the public  or that
    the risk of the appellants engaging in conduct similar to the index offence
    would meet that threshold.

[8]

Reading the reasons as a
    whole, the Board did not focus only on the index offence in coming to its
    conclusion that the appellant continued to pose a significant threat to the
    safety of the public. Immediately following the sentence set out above, the
    Board stated:

Upon consideration of all the evidence, our findings and the
    submissions of the parties
, we are unanimous in finding that Mr. Schoeler
    continues to pose a significant threat to the safety of the public as codified
    in s. 672.5401. [Emphasis added.]

[9]

The evidence before the Board
    supported a finding that, if granted an absolute discharge, the appellant would
    discontinue his medication leading to a rapid deterioration in his mental
    health to active psychosis. This would create a serious risk that he would likely
    engage not only in behaviours similar to the index offence but also in physical
    and aggressive behaviour. He had done so in the past.

[10]

The Boards conclusion that the appellant continues to pose a
    significant threat to the safety of the public was reasonable on the record before
    it. The appeal is therefore dismissed.

K.M. Weiler J.A.

J. Simmons J.A.

Gloria Epstein
    J.A.