COURT OF APPEAL FOR ONTARIO

CITATION: McCreight v. Canada (Attorney
    General), 2013 ONCA 483

DATE: 20130716

DOCKET: C55540

Epstein, Pepall and Tulloch JJ.A.

BETWEEN

Michael McCreight, Kim
    McCreight, John Gregory Skinner, Joan Skinner
and BDO Dunwoody LLP

Plaintiffs (
Appellants
)

and

The Attorney General of
    Canada Representing Her Majesty the Queen in Right of Canada, Canada Revenue
    Agency, formerly The Canada Customs and Revenue Agency
, Henry George
    Kehl, William Carter a.k.a. Bill Carter, Gregory Mee a.k.a. Greg Mee, Ed Hooft,
Anne Kamp, Ian McGuffin
, Rod Mercer, Stephane
    Marinier, Morris Pistyner, Elaine Krivel,
Bruck Easton
,
    Stephen Harvey and
Damien Frost

Defendants (
Respondents
)

Paul J. Pape and Nicolas M. Rouleau, for the appellants

Wendy J. Linden
    and P. Tamara Sugunasiri, for the respondents

Heard: January 23, 2013

On appeal from the order of Justice Terrence L.J.
    Patterson of the Superior Court of Justice, dated April 27, 2012, with reasons
    reported at 2012 ONSC 1983.

Pepall J.A.:

A.

Introduction

[1]

The motion judge struck out
    all of the causes of action in the appellants amended statement of claim,
    except for the claim of misfeasance in public office, for failing to disclose a
    reasonable cause of action pursuant to rule 21.01(1)(b) of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194
.
    He also denied the appellants leave to amend their amended statement of claim.

[2]

The appellants appeal from
    this decision and ask this court to set aside the order and dismiss the
    respondents motion to strike the causes of action of malicious prosecution,
    abuse of process, negligence, and derivative claims made pursuant to s. 61 of
    the
Family Law Act
,

R.S.O. 1990, c. F.3 (
FLA
).

B.

Background Facts

(1)

The CRA Investigation

[3]

In 1998, the audit
    department of the respondent,
Canada Revenue Agency, (the CRA),
conducted an
    investigation into the use of research and development tax credits by several
    corporate taxpayers. The CRAs investigation extended to a team of tax advisors
    at the national accounting firm BDO Dunwoody LLP (BDO), which included the
    appellants, Michael McCreight (McCreight) and John Gregory Skinner
    (Skinner). McCreight was a chartered accountant and a BDO partner, and Skinner
    was a senior R&D consultant and claims preparer at BDO. The CRAs concern
    was that, with the help of BDO, the corporate taxpayers were applying for
    fraudulent preferential research and development tax credits in the 1996, 1997,
    and 1998 tax years.

[4]

The respondent, Anne Kamp,
    was the lead CRA investigator. Between July 1998 and May 1999, she applied for
    and obtained three search warrants to search the homes and businesses of the
    corporate taxpayers, as well as those of their lawyers and accountants,
    including McCreight. Pursuant to these search warrants, approximately 60 boxes
    of materials and at least three hard drives were seized. The CRA was authorized
    to retain these materials until July 1999.

[5]

The CRA had not completed
    its investigation by July 1999. It applied to the Superior Court of Justice and
    requested a nine-month extension to complete its investigation. This extension would
    also have given the suspects an opportunity to make exculpatory representations,
    in accordance with the provisions of CRAs Tax Operations Manual. On October
    27, 1999, Daudlin J. rejected the CRAs application for an extension of time to
    complete its investigation. Recognizing the volume of materials and the
    potential need to copy at least some of them, Daudlin J. implicitly authorized
    the CRA to copy the materials seized but ordered it to return the original documents
    by 4:30 p.m. on November 9, 1999.

(2)

The Charges and Their
    Resolution

[6]

On November 3, 1999, Kamp
    sought formal approval from the Windsor CRA office and the Department of
    Justice (the DOJ) to lay an information charging various taxpayers and tax
    advisors, including McCreight and Skinner, with fraud and conspiracy under the
Income
    Tax Act
, R.S.C. 1985, c. 1 (5th Supp.) (
ITA
), and the
Criminal
    Code
, R.S.C. 1985, c. C-46. The DOJ provided its approval and on November
    9, 1999, charges were laid. As a result, the CRA was entitled to retain all of
    the seized materials. Neither McCreight nor Skinner had had the opportunity to
    make any exculpatory submissions to the CRA. In subsequent court proceedings,
    Quinn J. found that Kamp had sworn the information in support of the charges
    primarily to retain possession of the seized documents.

[7]

On October 23, 2000, Kamp
    swore another information that alleged 23 additional offences. On November 16,
    2000, all counts against McCreight that were contained in the first information
    were withdrawn at the Crowns request.

[8]

The preliminary inquiry
    commenced in 2001 and ended in 2005. In 2006, Momotiuk J. discharged both McCreight
    and Skinner. Quinn J. subsequently stayed the charges against the corporate
    taxpayers on the basis of unreasonable delay pursuant to s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
.

(3)

Appellants Lawsuit

[9]

The appellants then
    commenced proceedings against the Attorney General of Canada, the CRA, and ten
    employees or agents of the DOJ or the CRA. In their statement of claim, the
    appellants pleaded that the CRA investigation had been mishandled and had
    resulted in the laying of false charges against McCreight and Skinner. They
    alleged that they were charged so that the CRA could keep the seized documents.
    McCreight and Skinner pleaded conspiracy, fraudulent and negligent
    misrepresentation, negligence, malicious prosecution, misfeasance in public
    office, breach of fiduciary duty and abuse of process, as well as breaches of
    the
Charter
. Their spouses, Kim McCreight and Joan Skinner, advanced claims
    under s. 61(1) of the
FLA
.

(4)

Respondents Motion
    to Strike

[10]

The
    respondents moved to strike all of the appellants causes of action, except
    misfeasance in public office, pursuant to rule 21.01(1)(b) of the
Rules of Civil
    Procedure
.

(a)

Documents

[11]

The
    parties disagreed as to the documents that could be relied upon at the hearing
    of the motion to strike.

[12]

The
    body of the statement of claim referred to: the October 27, 1999 order of
    Daudlin J. (at paras. 13 and 187); the discharge of McCreight and Skinner by
    Momotiuk J. and his finding that there was no evidence to support a conviction
    or inference of guilt (at paras. 16 and 196); the February 12, 2007 order of
    Quinn J. staying all of the remaining charges that were committed to trial based
    on a breach of s. 11(b) of the
Charter
and the adoption by the
    plaintiffs of the reasons in support of the ruling (at paras. 17 and 201); and the
    75-page decision of Momotiuk J. discharging both McCreight and Skinner (at para.
    226).

[13]

At
    the end of their 110-page statement of claim, the appellants also listed numerous
    documents that they plead[ed] and rel[ied] upon.

[14]

Prior
    to the return of the motion to strike before the motion judge, counsel attended
    before Cusinato J. and asked him to address their documentary dispute. He
    released his reasons on May 19, 2010 and released supplementary reasons on June
    17, 2011. He noted that the respondents objected to an examination of the
    documents that did not form an integral part of the pleading. He concluded that
    the listed documents did not form an integral part of the pleading. He wrote as
    follows, at paras. 22 and 23 of his reasons:

[T]he listing of the Statutes, Code of Professional Conduct
    Report, Manuals, Guidelines, and Federal Prosecutions Service Desk books for
    the most part do not appear to comply with the essence of rule 25.06(7) [of the
Rules of Civil Procedure
]
.

Save for those paragraphs which specifically incorporate the
    document in reference to the material facts within the pleading, they should be
    excluded from examination by the court on a motion to strike the pleading.

[15]

In
    his supplementary reasons, at para. 17, Cusinato J. wrote that documents
    properly referenced to the material facts pleaded on which the party relies in
    its statement of claim may be viewed by the court, otherwise they are to be
    excluded from examination. It is clear from paras. 6 and 7 of his first reasons
    that Cusinato J. focused on the documents listed by the appellants at the end
    of their statement of claim. He decided that it was for the motion judge to determine
    what documents, if any, were sufficiently incorporated into the pleading as
    material facts and could therefore be relied upon for the purposes of the
    motion to strike.

[16]

Following
    the release of Cusinato J.s first reasons, the appellants amended their pleading
    to refer to specific paragraphs of the CRAs Tax Operations Manual (at paras.
    284 and 292).

(b)

The
    Motion Judges Decision

[17]

The
    motion judge treated the amended statement of claim that resulted from Cusinato
    J.s order as the pleading in issue. He commenced by correctly identifying the
    test to be applied on a rule 21.01(1)(b) motion as that set out in
Hunt v.
    Carey Canada Inc.
, [1990] 2 S.C.R. 959, at p. 980: assuming that the facts
    as stated in the statement of claim can be proved, is it plain and obvious that
    the statement of claim discloses no reasonable cause of action.

[18]

As
    the appellants only seek to reinstate certain causes of action struck by the
    motion judge from the statement of claim, I shall only summarize the portions
    of the motion judges reasons pertaining to those causes of action.

[19]

With
    regards to malicious prosecution, the motion judge addressed the requirements
    for such a claim in some detail; he particularly focused on the fourth element
    of the cause of action, malice. The motion judge noted that an improper
    collateral purpose must be identified in the pleading, together with supporting
    material facts, in order to maintain the cause of action. He determined that, in
    essence, the pleading amounted to an allegation that the respondents wanted to
    injure McCreight and Skinner for the purpose of obtaining a conviction. He
    determined that this pleading was a bald allegation and insufficient to support
    a claim of malicious prosecution.

[20]

He
    further struck the plaintiffs claim for damages for abuse of process on the
    basis that it is not a stand-alone cause of action.

[21]

The
    motion judge also found the claims of negligence against the CRA investigators
    to consist of bald allegations. He further determined that CRA officers do not
    owe a duty of care to the subjects of an investigation; and, in any event,
    policy considerations would negate any private law duty of care. Accordingly,
    he struck this claim from the amended statement of claim.

[22]

He
    also struck out the appellant spouses s. 61(1)
FLA
claims because the
    type of injury alleged here  namely, anxiety surrounding involvement in a
    criminal investigation and prosecution  was not the type of injury
    contemplated by that statute. He further struck Ms. McCreight and Ms. Skinner
    as plaintiffs.

[23]

The
    motion judge did not grant the appellants leave to amend their pleading. The
    statement of claim had been issued for three years and had already been amended
    on three occasions. He concluded that the appellants had had ample opportunity
    to amend their pleading to address any deficiencies. A further opportunity was
    not justified.

[24]

The
    motion judge did not make any express ruling as to which documents were incorporated
    into the pleading by reference but in his reasons, he referred to the orders of
    Justices Daudlin, Momotiuk, and Quinn and to the CRAs Tax Operations Manual. He
    therefore implicitly considered these documents to have been properly incorporated
    into the appellants pleading.

C.

Grounds of Appeal

[25]

The
    appellants appeal the motion judges decision to strike the causes of action of
    malicious prosecution, abuse of process, negligence, the
FLA
claims, and
    his refusal to grant leave to amend the statement of claim. They do not
    challenge the striking of numerous other elements of the statement of claim. These
    include the pleading of negligence against the Attorney General and the Crown
    prosecutors, the claim for breach of fiduciary duty by the Crown prosecutors
    and the CRA investigators, the
Charter
claims, the claims of fraudulent
    and negligent misrepresentation, the claim for conspiracy, and the personal
    claims asserted against the section head of the criminal litigation branch at
    the Toronto Regional Office of the DOJ, the regional director of the Public
    Prosecution Service of Canada, and the senior counsel of criminal prosecutions
    assigned to the Ontario Regional Office of the DOJ, all of which were struck
    out.

D.

Issues

[26]

The
    issues to be addressed are as follows:

(1) What documents are properly considered as being
    incorporated into the amended statement of claim for the purposes of this
    appeal?

(2) Did the motion judge err in striking out the claims
    for malicious prosecution, abuse of process, negligence, and the s. 61(1)
FLA
claims?

(3) Did the motion judge err in refusing to grant the
    appellants leave to amend their pleading?

E.

Analysis

(1)

Documents Referred to
    in the Pleading

[27]

On
    this appeal, the appellants seek to rely on five documents. They submit that
    these documents form part of their pleading. The documents consist of: a transcript
    from the criminal proceedings; the three decisions of Justices Daudlin, Momotiuk,
    and Quinn; and the CRAs Tax Operations Manual. The appellants do not seek to
    rely on the other documents listed at the end of their pleading.

[28]

The
    respondents argue that these five documents should be disregarded because they
    were not included in the motion record before the motion judge; there was no
    argument before the motion judge that they formed part of the appellants pleading;
    the documents were not considered by the motion judge, who made no ruling on this
    issue; and, based on the authority of
Montreal Trust Co. of Canada v.
    Toronto Dominion Bank
(1992), 40
    C.P.C. (3d) 389

(Ont. C.J.
    (Gen. Div.)),
Leadbeater v. Ontario
(2001), 16 C.P.C. (5th) 119 (Ont. S.C.),

and
Bird v. Public Guardian and Trustee
, [2002] O.J. No. 408 (S.C.),
    they ought not to form part of the amended statement of claim.

[29]

No
    evidence is admissible on a rule 21.01(1)(b) motion to strike out a pleading on
    the basis that it discloses no reasonable cause of action. On such a motion,
    the allegations in the statement of claim are taken as being proven, unless
    they are patently ridiculous or incapable of proof:
Nash v. Ontario
(1995), 27 O.R. (3d) 1 (C.A.), at p. 6. Therefore, no evidence is either
    necessary or permissible on such a motion.

[30]

Rule
    25.06(7) of the
Rules of Civil Procedure
provides that:

The effect of a document or the purport of a
    conversation, if material, shall be pleaded as briefly as possible, but the
    precise words of the document or conversation need not be pleaded unless those
    words are themselves material.

[31]

The
    issue is whether the documents the appellants seek to rely upon are sufficiently
    pleaded and therefore form part of the amended statement of claim upon which
    the motion judge could make his decision.

[32]

As
    noted by Borins J. (as he then was) in
Montreal Trust Co.,
at para. 4,

a statement of claim is deemed to include any
    documents incorporated by reference into the pleading and that form an integral
    part of the plaintiffs claim. Among other things, this enables the court to
    assess the substantive adequacy of the claim. In contrast, the inclusion of evidence
    necessary to prove a fact pleaded is impermissible. A motion to strike is
    unlike a motion for summary judgment, where the aim is to ascertain whether
    there is a genuine issue requiring a trial. On a motion to strike, a judge simply
    examines the pleading; as mentioned, evidence is neither necessary nor allowed.
    If the document is incorporated by reference into the pleading and forms an
    integral part of the factual matrix of the statement of claim, it may properly
    be considered as forming part of the pleading and a judge may refer to it on a
    motion to strike.

[33]

Turning
    to the application of these principles to this case, the motion judge made no
    express ruling on the issue of documents incorporated into the pleading but in
    my view, very little turns on this issue on this appeal.

[34]

Firstly,
    while the documents were not referred to in the record before the motion judge,
    this is unsurprising given that the motion record was that of the respondents. The
    appellants did provide the motion judge with a Document Book that contained
    the documents in issue.

[35]

Secondly,
    the three orders of Justices Daudlin, Momotiuk, and Quinn are expressly pleaded
    in the amended statement of claim. In my view, these documents have been incorporated
    into the appellants pleading and the motion judge appropriately relied upon them
    in deciding the rule 21 motion. In contrast, the entire reasons for decision of
    the three judges and a transcript of the criminal proceeding constitute
    evidence and are not properly considered as forming an integral part of the
    amended statement of claim. That said, for the most part, the requisite facts
    that emanated from these documents have been pleaded and the motion judge was
    therefore at liberty to rely on those elements of the pleading in reaching his
    decision.

[36]

On
    two occasions, the motion judge did refer to the contents of certain documents
    that had not been incorporated into the amended statement of claim. At para. 59
    of his reasons, the motion judge referred to Daudlin J.s statement that under
    s. 490(2) of the
Criminal Code
, the government has a right to keep items
    seized when proceedings are instituted in which the thing detained may be
    required. This was not mentioned in the amended statement of claim. That said,
    the appellants take no issue with the motion judges reliance on this element
    of Daudlin J.s reasons and it only accrued to the respondents benefit. That
    said, nothing in this appeal turns on the admission of the statement by the
    motion judge.

[37]

Also
    at para. 59 of his reasons, the motion judge referred to the Tax Operations
    Manual of the CRA in considering whether a duty of care was owed to McCreight
    and Skinner. Specifically, the Manual provides that a taxpayer would be given
    an opportunity to make exculpatory submissions. Such an opportunity had not
    been accorded to McCreight and Skinner. The underlying facts associated with
    this allegation were included in the amended statement of claim and the Manual
    could be relied upon by the motion judge for that purpose. In contrast, at
    para. 69 of his reasons, the motion judge reviewed the contents of the Manual
    to ascertain whether a fiduciary relationship was created between the CRA and
    the appellants. This constituted an improper use of the Manual because the
    appellants had not pleaded the factual underpinning for such reference. That
    said, in my view this error is immaterial in the context of this appeal as the motion
    judge struck out the appellants claim for damages for a breach of fiduciary
    duty and they have not appealed that element of the motion judges order.

(2)

Causes of Action

[38]

The
    standard of review on a rule 21.01(1)(b) motion to strike is correctness:
Attis
    v. Canada (Minister of Health)
, 2008 ONCA 660, 93 O.R. (3d) 35, at para. 23,
    leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 491.

[39]

As
    mentioned, on a rule 21.01(1)(b) motion, a claim will only be struck if it is
    plain and obvious, assuming the facts pleaded to be true, that the pleading
    discloses no reasonable cause of action:
R. v. Imperial Tobacco Canada Ltd.
,

2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17. The principles that may be
    extracted from this and other cases, some of which I have already mentioned,
    are as follows:

- In the interests of
    efficiency and correct results, there is a need to weed out hopeless claims
    this housekeeping dimension underlies rule 21:
Imperial Tobacco
, at
    paras. 19-20.

- If the cause of action pleaded
    has been recognized, all of its essential elements must be pleaded:
Aristocrat
    Restaurants Ltd. (c.o.b. Tonys East) v. Ontario,
[2003] O.J. No. 5331
    (S.C.), at para. 19.

- If the cause of action has
    not been recognized, this is not necessarily fatal. One must ask whether there
    is a reasonable prospect that the claim will succeed:
Imperial Tobacco
,
    at para. 21.

- The claim should not be
    struck merely because it is novel:
Imperial Tobacco
, at para. 21.

- Unless manifestly incapable
    of being proven, the facts pleaded are accepted as being true for the purposes
    of the motion:
Imperial Tobacco
, at para. 22.

- The pleading forms the basis
    of the motion; possible future facts that have not been pleaded may not
    supplement the pleading:
Imperial Tobacco
, at para. 23.

- No evidence is admissible on
    such a motion:
Imperial Tobacco
, at para. 22.

- The pleading must be read
    generously in favour of the plaintiff, with allowances for drafting
    deficiencies:
Wellington v. Ontario
, 2011 ONCA 274, 105 O.R. (3d) 81, at
    para. 14, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 258.

- A motion to strike should
    not be confused with a summary judgment motion which has a different test, a
    different purpose, and different rules relating to evidence:
Leadbeater
,
    at para. 14.

[40]

Having
    considered the applicable principles, I will now turn to the causes of action
    in issue on this appeal.

(a)

Malicious
    Prosecution

[41]

The
    appellants submit that the cause of action of malicious prosecution asserted
    against the Attorney General, the CRA, the CRA investigators Anne Kamp and Ian
    McGuffin, as well as the agents of the DOJ Bruck Easton and Damien Frost, ought
    not to have been struck. They submit that the motion judge erred in concluding
    that the material facts pleaded in support of the fourth element of the test
    for malicious prosecution, namely, that the respondents were actuated by
    malice, were bald and insufficient. The appellants argue that they pleaded as
    follows: the prosecution was launched for the purpose of retaining documents
    belonging to the appellants that were otherwise to be returned pursuant to
    statute and a court order. This purpose was improper and therefore malicious.
    As such, the appellants submit that it was not plain and obvious that a claim
    for malicious prosecution would not succeed at trial.

[42]

In
    my view, the motion judge was correct in striking out this claim.

[43]

Firstly,
    in
Miazga v. Kvello Estate
, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras.
    53ff., the Supreme Court stated that in order to succeed in an action for
    malicious prosecution, a plaintiff must prove that the prosecution was: (i)
    initiated by the defendant; (ii) terminated in favour of the plaintiff; (iii) commenced
    or continued without reasonable and probable cause, and; (iv) motivated by
    malice or a primary purpose other than that of carrying the law into effect.  In
    this case, the fourth element of the claim is in issue.

[44]

In
    my view, the pleading does not identify a collateral or improper purpose that
    motivated the respondents.
Retention of the
    appellants seized documents was in furtherance of the prosecution
,
not collateral to it. Although the charges may have been laid in order to
    retain the documents, those documents were sought to be kept to pursue a prosecution
    of
ITA
and
Criminal Code
offences.  Even read generously, a claim
    of mishandling a prosecution does not amount to a plea of malice.

[45]

Secondly,
    rule 25.06(8) provides that where malice is alleged, the pleading shall contain
    full particulars. Here, the motion judge correctly concluded that the pleading contained
    merely bald allegations.

[46]

In
    my view, the claim for malicious prosecution was properly struck.

(b)

Abuse
    of Process

[47]

The
    appellants argue that para. 293 of the amended statement of claim, which claims
    among other things, damages for abuse of process, ought not to have been struck
    by the motion judge. They assert that the respondents did not request such
    relief in their notice of motion and the motion judge did not address it. Furthermore,
    the test for abuse of process is similar to that for malicious prosecution and
    the appropriate factual basis for each claim was pleaded
.

[48]

The
    respondents submit that abuse of process was not expressly pleaded in the
    amended statement of claim, nor were the requisite elements or material facts
    in support of such a claim. Furthermore, the CRA officers are not parties to a
    proceeding, and therefore such a claim does not lie against them. They argue
    that the motion judge was correct in striking this claim.

[49]

The
    reference to abuse of process in the amended statement of claim is scant. Page
    100 of the claim contains the heading Fiduciary Duty, Legitimate Expectation
    and Abuse of Process, and para. 293 of the pleading also refers to a claim for
    damages for abuse of process. As noted by the motion judge, both references to
    abuse of process were made within the section of the pleading that claimed damages
    for breach of fiduciary duty. As noted above, the motion judge struck out the
    appellants claim for damages for abuse of process on the basis that it is not
    a stand-alone cause of action for civil damages.

[50]

That
    said, even though the respondents served and filed an extremely detailed notice
    of motion in support of their motion to strike, they did not seek to strike the
    claim for abuse of process. In keeping with principles of practice and
    fairness, they should have done so. I am of the view that in the circumstances,
    it was inappropriate for the motion judge to strike that claim when such relief
    was not requested.

[51]

I
    would allow the appeal on this ground.

(c)

Negligence

[52]

The
    appellants do not contest the motion judges finding that negligence is not a
    recognized cause of action against Crown prosecutors.

[53]

However,
    the appellants do submit that the motion judge erred in law by finding that it
    was plain and obvious that CRA investigators do not owe a duty of care to
    suspects under investigation. It was on this basis that the motion judge struck
    the appellants pleading. The appellants pleaded that the CRA and its
    investigators, Kamp and McGuffin, owed a duty of care to McCreight and Skinner
    and that they breached that duty by failing to investigate the matter properly,
    failing to comply with Daudlin J.s order, rushing to lay charges against the
    appellants before the investigation was complete, and by particularly targeting
    McCreight and Skinner for criminal prosecution without cause.

[54]

The
    appellants argue that Canadian case law supports the recognition of a duty of
    care towards suspects on the part of CRA investigators. Firstly, they assert that
    the relationship between a CRA investigator and his or her suspect is analogous
    to that between a police officer and the subject of his or her investigation. In
Hill v. Hamilton-Wentworth Regional Police Services Board,
2007 SCC
    41, [2007] 3 S.C.R. 129, the Supreme Court confirmed that the police may owe a
    duty of care to a suspect under investigation. Secondly, they also argue that
    in
Neumann v. Canada (Attorney General)
, 2011 BCCA 313, 338 D.L.R. (4th)
    348, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 422, the British
    Columbia Court of Appeal was prepared to assume that the CRA owed a duty of
    care to a third party whose documents they seized during an investigation. The
    appellants say that there is greater proximity between the CRA and the subjects
    of its investigations than third parties. Thirdly, in
Leroux v. Canada
    Revenue Agency
, 2012 BCCA 63, 347 D.L.R. (4th) 122, that same court refused
    to strike a negligence claim against the CRA and recognized that it is at
least arguable
that the CRA owes a duty
    of care to individual taxpayers in the administration or enforcement of taxing
    statutes. The appellants therefore argue that this cause of action should not
    have been struck as plainly and obviously having no reasonable prospect of
    success. They also ask this court to establish the existence of such a duty of
    care on the part of the CRA, thus obviating the need for a trial of the issue.

[55]

The
    respondents answer by submitting that such a duty of care has not been
    previously recognized and the CRA investigator-suspect relationship is not
    analogous to the police-suspect relationship from which the decision in
Hamilton-Wentworth
arose. The motion judge was correct in finding no proximity between the
    parties. Proximity between the Crown and an individual member of the public may
    arise from a statutory scheme or from specific interactions. Neither gave rise
    to proximity in this case. Even if proximity were established, the motion judge
    was
correct in determining that it was
    negated for policy reasons
, specifically

the
ITA
s
    statutory scheme, the availability of alternative remedies, and the fact that
    CRA investigators owe a duty to the public and the Crown, rather than to
    individuals.

[56]

To
    ground a claim in negligence, CRA investigators must be found to owe a duty of
    care to suspects. As no precedent for such a duty was advanced, one must therefore
    consider whether this duty of care could be recognized.

[57]

As
    described by McLachlin C.J. in
Hamilton-Wentworth
, at para. 20
, the test for determining
    whether a person owes a duty of care involves two questions:

(i)

Does the relationship between the plaintiff and the defendant disclose
    sufficient foreseeability and proximity to establish a
prima facie
duty of care; and

(ii)

If so, are there any residual policy considerations which ought to
    negate or limit that duty of care?

This is a reformulation of the
Cooper-Anns
test
    that originated in
Cooper v. Hobart
, 2001 SCC 79, [2001] 3 S.C.R. 537,
    and
Anns v. Merton London Borough Council
, [1978] A.C. 728 (H.L.).

[58]

Foreseeability
    is conceded by the respondents in this case.

[59]

The
    factors to be considered in an analysis of whether the plaintiff and defendant
    are in a relationship of proximity are diverse and depend on the circumstances
    of the case. The categories of proximate relationships are not closed. In
    looking at the relationship between the parties, the focus is on whether the
    acts of the alleged wrongdoer have a close or direct effect on the victim, such
    that the wrongdoer ought to have had the victim in mind as a person potentially
    harmed:
Hamilton-Wentworth
,

at para. 29.

[60]

In
    my view, in this case, the motion judge erred in concluding that it was plain
    and obvious that the respondent CRA investigators did not owe a duty of care to
    McCreight and Skinner, policy considerations would foreclose such a duty in any
    event and, therefore, the negligence claim had no reasonable prospect of success
    and should be struck.

[61]

Firstly,
    given the Supreme Courts ruling in
Hamilton-Wentworth
that, in
    certain circumstances, police officers may owe a duty of care to their
    suspects, surely it is not plain and obvious that a CRA investigator owes no
    such duty when operating under
ITA
provisions that attract criminal
    sanction and under the
Criminal Code
. The same analogical reasoning applies
    to any residual policy rationale that could negate such a duty.

[62]

Secondly,
    I see no relevant distinction between the above-cited case of
Leroux
and this case. That
case that involved a
    claim of negligence against CRA employees as well and the British Columbia
    Court of Appeal dismissed an appeal of an order permitting the cause of action
    to proceed to trial. The Court was not persuaded that the claim should be
    struck because it was at least arguable that such a cause of action could
    succeed and the issue was to be considered at trial.

[63]

The
    action for negligence against the CRA investigators should be permitted to
    proceed to trial along with the causes of action for misfeasance in public
    office and abuse of process, and thereby benefit from a full factual record.

(d)

Section
    61(1) of the
Family Law Act

[64]

The
    appellants further submit that their s. 61(1)
FLA
claims should not
    have been struck, as their claims were arguable. Contrary to what the motion
    judge found, McCreight and Skinner pleaded that they suffered from post-traumatic
    stress disorder, which is a recognized psychiatric illness.

[65]

The
    respondents answer that under s. 61(1)
FLA
, in the absence of a physical
    injury to McCreight and Skinner, the spousal appellants must show that
    McCreight and Skinner suffer or have suffered from a recognizable psychiatric illness
    that was caused by the respondents negligence. Furthermore, that psychiatric
    illness must have been reasonably foreseeable to the respondents. The
    respondents note that the injuries alleged in this case by the appellants arose
    solely from having been subjected to the legal process, which was not foreseeable
    and is not recoverable in law even by a primary plaintiff. This application of
    s. 61(1) of the
FLA
would far expand its intended reach. In addition,
    the
FLA
claim is derivative of the negligence claim and, consistent
    with the respondents position on that assertion, this claim should also fail.

[66]

Section
    61(1) of the
FLA

states:

If a person is injured or killed by the fault or
    neglect of another under circumstances where the person is entitled to recover
    damages, or would have been entitled if not killed, the spouse, as defined in
    Part III (Support Obligations), children, grandchildren, parents, grandparents,
    brothers and sisters of the person are entitled to recover their pecuniary loss
    resulting from the injury or death from the person from whom the person injured
    or killed is entitled to recover or would have been entitled if not killed, and
    to maintain an action for the purpose in a court of competent jurisdiction.

[67]

In
    my view, the spousal claims brought by the appellants pursuant to this section were
    properly struck out.

[68]

Paragraph
    304 of the amended statement of claim pleads that McCreights and Skinners
    physical, emotional, and psychological well-being have been damaged and that
    they suffer from post-traumatic stress. Paragraphs 311, 312, and 313 address
    the
FLA
claims of their spouses, Kim McCreight and Joan Skinner. Those
    paragraphs allege that the two spouses suffered loss and damage and were
    without the care and companionship of their husbands due to their injuries.

[69]

Firstly,
    as held by this court in
Healey v. Lakeridge Health Corp.
, 2011 ONCA 55,
    103 O.R. (3d) 401, at paras. 60-66, in the absence of physical injury, plaintiffs
    must establish that they have suffered a recognized psychiatric illness caused
    by the negligence of the defendants in order to recover. As Ms. McCreights and
    Ms. Skinners claims for damages pursuant to s. 61
FLA
are derivative of
    their husbands primary claims, such an illness  caused by the respondents
    negligence  must have been pleaded in the amended statement of claim in order
    for those paragraphs not to be struck. Post-traumatic stress was the injury
    alleged in the appellants pleading and this does not qualify as a recognized
    psychiatric illness. While a pleading should be read generously for the
    purposes of a rule 21.01(1)(b) motion, no mention is made of any disorder or
    syndrome that would constitute a recognized psychiatric illness.

[70]

Secondly,
    even if one were to accept that on a generous reading of the amended statement
    of claim, a recognized psychiatric illness had been pleaded, the stress alleged
    arises from being subject to a tax investigation and the criminal process. In
Healey,
at para. 40, this court stated that the plaintiff must satisfy the court
    that the psychological injury was caused by the negligence of the defendant.
    This involves asking whether psychological damage was a reasonably foreseeable
    consequence of the defendants negligence. There is no pleading of the
    requirement of
foreseeability. Moreover,
    the expected type of stress or upset caused by participation in the criminal
    process does not attract any recoverable damages:
Scott v.
    Ontario
, [2002] O.J. No. 4111 (S.C.),
    at para. 31, affd [2003] O.J. No. 4407 (C.A.); see also
Healey
, at para. 65
.

[71]

As
    a result, I would not give effect to this ground of appeal.

(3)

Leave to Amend

[72]

The
    appellants ask this court to strike the existing amended statement of claim and
    grant them leave to file the fresh statement of claim appended to their factum.
    The fresh pleading is premised on the appellants being fully successful on
    their appeal. As they have only been successful with respect to the claims of
    abuse of process and negligence against the CRA investigators, it would be
    inappropriate to grant leave to file the appended pleading. Furthermore, the statement
    of claim has already been amended on three prior occasions. Absent consent, a
    further amendment cannot be justified.

F.

Costs

[73]

Counsel
    agreed that $33,100 should be awarded to the successful party on the appeal. The
    appellants were only partially successful. In my view, in the circumstances, an
    award of $17,500, inclusive of disbursements and applicable taxes, in favour of
    the appellants is fair and reasonable. In addition, I would order the
    respondents to pay the appellants $5,000, inclusive of disbursements and applicable
    taxes, on account of costs below.

G.

Disposition

[74]

Accordingly,
    I would allow the appeal in part and both reinstate the claim for abuse of
    process and set aside para. 4 of the order under appeal, insofar as it strikes
    the appellants claims in negligence against the CRA respondents.

S. E. Pepall J.A.

I agree Gloria Epstein J.A.

Released: July 16, 2013  MT                               I
    agree M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario v. Imperial Tobacco Canada
    Ltd., 2013 ONCA 481

DATE: 20130716

DOCKET: C56568 & C56569

Hoy A.C.J.O., Feldman and Simmons JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario

Applicant (Respondent)

and

Imperial Tobacco Canada Limited

Respondent (Appellant)

and

The Ontario Flue-Cured Tobacco Growers Marketing
    Board

Respondent (Respondent)

Orestes Pasparakis and Rahool P. Agarwal, for the appellant

John Kelly, Lise G. Favreau and Kristin Smith, for the
    respondent Her Majesty the Queen in Right of Ontario

William V. Sasso, for the respondent The Ontario
    Flue-Cured Tobacco Growers Marketing Board

Peter J. Osborne, for the intervener Her Majesty the
    Queen in Right of Canada

Brian H. Greenspan, for the intervener Rothmans, Benson
    & Hedges

Heard: July 3, 2013

On appeal from the order of Justice Helen A. Rady of the Superior
    Court of Justice, dated January 2, 2013, with reasons reported at 2012 ONSC
    6027.

ENDORSEMENT

[1]

The issue to be decided on this application and therefore on this appeal
    was set out in this courts Order dated July 20, 2011, para. 2 as follows:

2. THIS COURT ORDERS that the appeal be allowed in part and the
    stay of this Application be lifted to allow the Application to proceed, to seek
    a declaration that the claim of the Tobacco Board in Court file no. 6475CP is
    not a Released Claim for the purposes of s. 15 of the Comprehensive Agreement
    dated July 31, 2008.

[2]

The Comprehensive Agreement dated July 31, 2008 (the 2008 Agreement)
    was entered into between the appellant, Imperial Tobacco Canada Limited, Her
    Majesty the Queen in Right of Canada, Her Majesty the Queen in Right of Ontario
    and the nine other provinces, to settle claims arising out of a course of
    conduct by Imperial between 1985 and 1996 whereby Imperial smuggled tobacco out
    of Canada then back in without paying required duties and taxes. A number of
    other tobacco companies, including the intervener, Rothmans, Benson &
    Hedges Inc. (Rothmans), entered into similar agreements to settle similar
    claims with the same government entities.

[3]

The claim of the Tobacco Board referred to in the 2011 Order is
    contained in a class action brought in December 2009 against Imperial and other
    tobacco companies by the respondent, The Ontario Flue-Cured Tobacco Growers
    Marketing Board and four individual tobacco farmers, as representative
    plaintiffs.

[4]

In the proposed class action, the Board and the farmers seek damages for
    breach of contract on behalf of a proposed class comprised of growers and
    producers in Ontario who sold tobacco through the Board pursuant to contracts
    between the Board and tobacco companies, including Imperial, during the period from
    January 1, 1986 and December 31, 1996.

[5]

The alleged breaches arose out of lmperials underpayment to the Board
    for tobacco that was being sold illegally in Canada. As described in the
    statement of claim, Imperial purchased tobacco from the producers through the
    Board at the lower price applicable to tobacco intended for export and sale
    outside Canada, even though the tobacco was ultimately smuggled back into
    Canada and sold domestically.

[6]

Section 15 of the 2008 Agreement releases Imperial from certain claims
    and reads as follows:

15. The Releasing Entities hereby, without any further action
    on the part of such Releasing Entities, absolutely and unconditionally fully
    release and forever discharge, the Released Entities from the Released Claims.
    Without in any way limiting the generality of the foregoing, the Releasing
    Entities further agree that:

(a) in the event that a proceeding, claim, action, suit or
    complaint with respect to a Released Claim is brought by Releasing Entity
    against a Released Entity, this release may be pleaded as a complete defence
    and reply, and may be relied upon in such a proceeding as a complete estoppel
    to dismiss the said proceeding; and

(b) in the event of (a), the Releasing Entity that initiated
    the proceeding shall be liable for all reasonable costs, legal fees,
    disbursements and expenses incurred by the Released Entity as a result of such
    proceeding.

In other words, if the claims the Board seeks to
    advance in the class action against Imperial are Released Claims by a
    Releasing Entity, then the release in s. 15 constitutes a complete defence
    for Imperial to those claims and to the class action.

[7]

The terms Released Claims, Releasing Entities and Released
    Entities are all defined terms in the 2008 Agreement. Section 1 provides that
    Releasing Entities means Her Majesty in Right of Canada and in right of the
    Provinces and includes for greater certainty the Canada Revenue Agency and the
    Canada Border Services Agency.

[8]

The Board was established in 1957 on vote of Ontarios tobacco
    producers. It is a corporation without share capital established by regulation
    under the
Farm Products Marketing Act
, R.S.O. 1990, c. F.9. The
    Ontario Farm Products Marketing Commission delegated broad supply management
    powers to the Board. The Commission is a statutory body whose members are
    appointed by the Lieutenant Governor and whose employees are public servants. The
    Commission deposits moneys it receives into the Consolidated Revenue Fund.

[9]

The Boards primary role during the class period and at the time the
    2008 Agreement was signed was to regulate and control the production and
    marketing of Ontario-grown tobacco. During this period, the Board operated
    autonomously. Its board of directors consisted of directors elected by the
    tobacco producers representing each of the tobacco growing districts in
    Ontario, plus an additional member appointed by the elected members.

[10]

Among
    other things, the Board had the power to, and did require that producers only
    market their tobacco through the Board. The Board entered into annual contracts
    on behalf of the producers for the sale of the producers tobacco, including
    those annual contracts at issue in the proposed class proceedings.

[11]

When
    the 2008 Agreement was signed, and during the class period, the Board had the
    sole authority to enforce the rights of the producers to recover payments owed
    by tobacco companies under the annual contracts. Significantly, while the
    tobacco producers were the beneficiaries of those contracts, they were not
    parties to the contracts. Counsel for Imperial (and counsel for the intervener
    Rothmans) fairly advised the court that they do not concede that the tobacco
    producers can bring class actions like the current one, without the involvement
    of the Board.

[12]

On
    the question of whether the claims are Released Claims within the meaning of
    the 2008 Agreement, s. 1 provides:

Released Claims means (excepting only the obligations under
    this Agreement); all manner of civil, administrative and regulatory
    proceedings, actions, causes of action, suits, duties, debts, dues, accounts,
    bond, covenants, contracts, complaints, claims, charges, and demands of
    whatsoever nature for damages, liabilities, monies, losses, indemnity,
    restitution, disgorgement, forfeiture, punitive damages, penalties, fines,
    interest, taxes, assessments, duties, remittances, costs, legal fees and
    disbursements, expenses, interest in loss, or injuries howsoever arising, known
    or unknown, including without limitation any claims arising at common law or in
    equity, by any federal or provincial statute or regulation and including all
    civil claims that may be allowable to the Releasing Entities within criminal or
    other proceedings in the form of restitution, disgorgement, forfeiture,
    punitive damages, penalties, fines or interest or otherwise, which hereto may
    have been or may hereafter arise in any way relating to, arising out of or in
    connection with:

(a) any exportation transhipment or shipment out of Canada,
    smuggling, reimportation or transhipment into Canada or any of the provinces
    thereof of tobacco products manufactured, distributed or sold by the Released
    Entities (including aiding or participating in such activities), smuggling or
    any conduct in any way relating to smuggling, contraband tobacco products, the
    exportation, reimportation, transhipment or shipment of tobacco products
    manufactured, distributed or sold by Released Entities that were otherwise
    contraband, during the Relevant Period;

(b) any failure by the Released Entities to pay taxes,
    duties, excise, customs or excise taxes or duties or other amounts payable on
    account of smuggled and/or reimported and/or transhipped (including
    inter-provincial transhipments) and/or otherwise contraband tobacco products
    manufactured, distributed, sold by the Released Entities and/or sold, delivered
    or consumed in Canada, or any expenditures relating to enforcing or recovering
    any such tax, duty, excise or other amounts alleged to be payable, or any
    failure to file a return, form, account or any other required documentation in
    respect of such amounts (including aiding or participating in such activities)
    in relation to the Relevant Period; and

(c) any after-the-fact conduct including any oral or written
    statements, representations or omissions related to the matters referred to in
    (a) and/or (b) whether during the Relevant Period or afterward or during the
    negotiation of this Agreement.

(d) for avoidance of doubt, Released Claims shall not
    include any claims

(1) whether already commenced or
    that may be commenced, related to the recovery of alleged health care costs,
    unless such claims arise from (a), (b) or (c) above. This paragraph is not
    intended to limit the ability of a Releasing Entity to claim, in any health
    care cost recovery litigation, damages on an aggregated basis based on the
    actual incidence of smoking. For greater certainty, this Agreement does not
    limit the Releasing Entities' ability to introduce and rely on evidence of
    smoking incidence, even if such incidence may arise out of or is related to
    (a), (b) or (c) above, and a Released Entity shall not raise as a defence or
    lead any evidence that the actual incidence of smoking or the health care costs
    caused or contributed to by smoking should be reduced by reason of (a), (b) or
    (c) above;

(2) in proceedings bearing Court
    File Nos. 04-CL-5530 and O3-CV-253858 CMI, in the Ontario Superior Court of
    Justice (the Actions). For the avoidance of doubt, this exclusion shall not
    include any claims made against the Released Entities; or

(3) against the CTMC.

[13]

The
    dispute between the parties on what is included under this definition turns on
    whether the word and should be implied between clauses (a) and (b), having
    the effect of limiting the general words in clause (a) to the types of tax and
    penalty claims described in clause (b), or whether the word or should be read
    in, having the effect that each clause is given a separate meaning and that
    clause (b) does not modify or limit the claims described in clause (a).

[14]

The
    respondent, Her Majesty the Queen in Right of Ontario, argues that clause (a)
    sets out the transactions that could have given rise to the payment of taxes
    and duties while clause (b) addresses the failure to pay those taxes and
    duties. As a result, the respondents submit that clause (b) modifies and limits
    the claims as described in clause (a).

[15]

Imperials
    position is that clause (a) and clause (b) should be read disjunctively.
    According to Imperial, the reference in clause (c) to after-the-fact conduct
    related to the matters referred to in (a)
and/or
(b) (emphasis added)
    means that after-the-fact conduct related to either clause (a) or clause (b) is
    a released claim. It would not make sense, Imperial argues, that after-the-fact
    conduct related to clause (a) alone be released, but not the actual conduct
    referred to in clause (a) alone. Imperial also relies on clause (d) which
    exempts certain claims by government for the recovery of health care costs
    unless such claims arise from (a), (b) or (c) above. Again, if the claims in
    the three clauses are individually treated in the exempt claims provision, they
    must be individually released when they are not exempt.

[16]

We
    accept the interpretation suggested by Imperial based on the use of the word
    or as described. Furthermore, it would not be necessary to exempt government
    health care claims against the tobacco companies  which are not limited to
    taxes and duties - from the definition of Released Claims, if such health care
    claims could not otherwise be included as Released Claims.

[17]

However,
    although the claims asserted in the class action may come within the words of
    the definition of Released Claims, they are only released under s. 15 of the
    2008 Agreement if they are released by a Releasing Entity. In this way, the
    2008 Agreement ensures that only claims within the definition of Released
    Claims that belong beneficially to a Releasing Entity are released.

[18]

It
    is clear that in bringing the proposed class action, the Board is acting only
    as agent for the producers to enforce the annual contracts entered into by the
    Board on their behalf, and not as an agent on behalf of the Crown or for the
    benefit of the Crown. Accordingly, in bringing the proposed class action, the
    Board is not asserting a Released Claim belonging beneficially to the Crown
    and is not acting as a Releasing Entity within the meaning of the 2008
    Agreement.

[19]

The
    appeal is therefore dismissed with costs payable by Imperial to the respondent
    Board in the amount of $15,000, and payable by Imperial and Rothmans to the
    respondent Her Majesty the Queen in Right of Ontario in the amount of $18,500,
    all inclusive of disbursements and HST.

A.
    Hoy A.C.J.O.

K.
    Feldman J.A.

J. M. Simmons J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Palmer (Re), 2013
    ONCA 475

DATE: 20130711

DOCKET: C56301 and C56325

Rosenberg, Watt and Pepall JJ.A.

IN THE MATTER OF:  Adam Sean Palmer

AN APPEAL UNDER PART XX.1 OF THE
CODE

Adam Sean Palmer, in person

Michelle OBonsawin, for the Royal Ottawa Health Care
    Group, Brockville Mental Health Centre

Suzan E. Fraser, for Adam Sean Palmer

Janice E. Blackburn, for the Person in charge of Waypoint
    Centre for Mental Health Care

Suhail A. Q. Akhtar, for the Ministry of the Attorney
    General

Heard: April 25, 2013

On appeal from the disposition of the Ontario Review
    Board dated, October 16, 2012, with reasons dated October 29, 2012.

Rosenberg J.A.:

[1]

The appellant, Adam Sean Palmer, was found not criminally responsible on
    account of mental disorder on a charge of second degree murder in July 2005. He
    has been subject to dispositions of the Ontario Review Board since that time. The
    psychosis that was the basis for the NCR finding was soon brought under control,
    and Mr. Palmer was progressing well through the system, eventually moving to
    the General Forensic Unit at St. Josephs Health Centre in Hamilton. By October
    of 2010, he had achieved community living privileges, and had, in previous
    years, lived on a co-ed unit with no issues with female co-patients.

[2]

His progress through the system stalled, however, in November of 2010,
    when he was charged with the sexual assault of an 18 year old female patient. Mr.
    Palmer was held at the Hamilton Wentworth Detention Centre until his trial in
    2012. He was acquitted of the charge of sexual assault and transferred to
    Waypoint Centre for Mental Health Care (Waypoint). He remained there until
    his annual review hearing in September 20, 2012. Following this hearing, the
    Ontario Review Board ordered that he be transferred to a medium secure all-male
    unit at the Brockville Mental Health Centre (Brockville). Both he and
    Brockville appeal from this disposition.

[3]

The appellant Palmer argues that the Board misused the sexual assault
    allegation, and that there was no need for him to be transferred to an all-male
    unit. He submits that he should be transferred to Providence Care, Mental
    Health Services  Forensic Site in Kingston. The appellant Brockville submits
    that the Board did not make sufficient inquiries about the suitability of
    transferring the appellant to its all-male unit. For several reasons, it
    submits that that unit is inappropriate for the appellant and that a placement
    at the all-male unit is not the least onerous and least restrictive
    disposition. Brockville has filed fresh evidence in support of its position.

[4]

For the following reasons, I would dismiss both appeals.

THE FACTS

[5]

Some elaboration of the facts surrounding the 2010 sexual assault
    allegation is necessary to understand the grounds of appeal. The appellant
    claimed that his sexual activity with the 18 year old complainant was
    consensual. There was, however, little dispute about the surrounding facts. The
    appellant was complying with his medication regime and was not displaying any
    signs of psychosis. However, while on an unaccompanied day pass, he purchased
    alcohol and he and the complainant drank together. Drinking alcohol was a
    breach of a condition imposed by the Board. The appellant engaged in sexual
    acts with the complainant. According to the appellant, the complainant then
    fell down, striking her head, at which point he and another patient carried the
    complainant back to the hospital and left her outside the hospital security
    office. A medical examination showed that the complainant had haemorrhaging in
    the vagina, soreness in her anal area and lower back, and bruising to her right
    eye.

[6]

Following his acquittal and his transfer to Waypoint, the appellant did
    well, and there were no issues with his behaviour. The treatment team was of
    the view that the appellant did not require the maximum security setting at
    Waypoint. It recommended a cautious progression and a placement at the secure
    forensic programme at Brockville.

[7]

At the hearing, there was no dispute that the appellant remained a
    significant threat to the safety of the public given his history of violence,
    substance abuse, and breach of both court orders and orders of the Board. Dr.
    Jeff Van Impe, the appellants former treating psychiatrist, testified that the
    appellant could be managed in a medium secure setting, and that the best next
    step was admission to an all-male forensic unit. In his opinion, a medium
    security unit that also had female patients would not be adequate to control
    the risk posed by the appellant. This would make the Providence facility
    inappropriate at this time.

[8]

The evidence before the Board was that there are two medium security
    all-male units in Ontario, one at the Centre for Addiction and Mental Health
    (CAMH) in Toronto and one at Brockville. Dr. Van Impe noted that CAMH would
    not be appropriate for the appellant. As he explained:

[M]y preference would be for Brockville  Mr. Palmer has been
    candid with me that there may be some  in centers such as Toronto there may be
    some influences, you know, some bad influences on him and he actually discussed
    that with me this morning, so I believe he  I dont know for sure, but I
    believe hed probably prefer Brockville to CAMH as well.

The Notice Issue

[9]

As required by Rule 13 of the Board's Rules of Procedure, Waypoint
    advised Brockville of its intention to recommend to the Board that the
    appellant be transferred to, and detained in, the Secure Forensic Program at
    Brockville. Brockville had recently established an all-male unit in its medium
    secure forensic programme. The notice did not specify detention at the all-male
    unit. The notice included copies of Waypoints Hospital Report to the Board as
    well as copies of the most recent Disposition and Reasons for Disposition. The
    Hospital Report clearly set out the allegations surrounding the sexual assault
    charge. On August 13, 2012, Brockville responded to the Notice by letter, which
    included the following: we have limited bed availability for forensic
    rehabilitation in the near future while we provide care for longer stay
    patients. Our waiting list has grown to over one year. The letter then
    continued as follows:

We are unable to comment whether we can take the individual as
    his mental status would not be known at the time a bed becomes available. We
    would be pleased to reconsider in the future if this individual is referred at
    that time.

[10]

It
    went on to recommend that the appellant explore options in North Bay or
    Kingston due to its limited bed availability in the near future. Brockville did
    not seek party status at the appellants up-coming hearing.

[11]

Dr.
    Van Impe was asked about the letter from Brockville. He testified that it was
    the first time he had seen a letter like that from Brockville. As he said:

Im a little confused by the  []we are unable to comment
    whether we can take this individual as his mental status would not be known at
    the time[]  well you could say that about any person here. No one -- no one
    can predict the future of what theyre going to be like tomorrow let alone six
    months from now so,  that seems to be unusual wording to me. I would suggest
    that perhaps [they] are attempting to avoid giving a definitive yes or no with
    regards to Mr. Palmer.  I dont know what theyre saying.

[12]

On
    September 5, 2012, Waypoint gave Rule 13 notice to the all-male secure unit at
    CAMH. CAMH responded that its waiting list was well in excess of a year. It
    also noted that Brockville had recently established an all-male unit that
    specialized in treatment of people with primary Axis II pathology. The letter
    continued as follows:

The hospital report indicates that much of Mr. Palmers risk
    arises from his antisocial personality disorder.  It is striking that he has
    had to be detained at Waypoint on 2 occasions, most recently following an
    allegation of sexual assault at Hamilton while he was detained on a general
    forensic unit.  The hospital report is clear that, particularly when less
    structure and entertainment is provided, Mr. Palmer engages in a number of
    antisocial activities and makes management extremely difficult.

[13]

The
    appellant, through his then counsel, provided Rule 13 notice to three other
    medium secure facilities including Providence. Providence responded that it
    would accept the appellants transfer to its facilities.  The two other
    facilities, North Bay Regional Health Centre and Ontario Shores Centre for
    Mental Health Services were unwilling to accept the transfer because they did
    not have secure all-male units. They were concerned about the risk to
    vulnerable female patients.

The Fresh Evidence

[14]

Brockville
    applied to adduce fresh evidence in the form of an affidavit from Dr. A.G.
    Ahmed, the Associate Chief of Psychiatry at the Integrated Forensic Program of
    the Royal Ottawa Health Care Group, which manages Brockville. The affidavit and
    accompanying exhibit describes the All-Male Unit. The unit was officially
    created in May 2012. It contains 15 beds for patients detained under the Board.
    A patient is first admitted to the Assessment and Stabilization Unit.  Once
    stabilized, the patient is transferred to the All Male Unit. Most of the
    patients detained on the All Male Unit remain there for at least two years. Due
    to the existing waiting list, it is unlikely that an accused will be admitted
    in one years time. The greatest liberty granted to patients on the all-male
    unit is escorted privileges.

The Reasons of the Board

[15]

In
    its review of the facts, the Board referred to the facts of the 2010 sexual
    assault allegation but also noted that the appellant had been acquitted of this
    charge. The Board summarized the appellants position at the hearing as being
    that he believed he should be returned to a minimum secure unit with all of the
    privileges that he had before the incident, including living in the community.

[16]

The
    Board found that the appellant continued to constitute a significant threat to
    the safety of the public, and observed that this was not disputed. The Board
    noted the appellant's history of violence, his antisocial personality and substance
    abuse disorder, and that he had shown no remorse for the incident involving a
    vulnerable young female which resulted in the sex assault charges.

[17]

The
    Board went on to find as follows:

The Board, however, unanimously agrees with Mr. Palmers treatment
    team that in view of his behaviour since he has arrived at this facility about
    five months ago, his risk can be contained in a medium secure all male unit. He
    will therefore be ordered transferred to a medium secure all male unit at the
    Brockville Mental Health Centre

[18]

The
    Board set out a number of conditions, such as abstaining from alcohol. It went
    on to provide, in anticipation of a waiting period before the transfer to
    Brockville, that Waypoint detain the appellant with certain privileges and conditions.

ANALYSIS

Standard of Review

[19]

A
    reviewing court may only set aside an order of the review board where it is of
    the opinion that the decision is unreasonable or unsupported by the evidence;
    the decision is based on a wrong decision on a question of law, unless no
    substantial wrong or miscarriage of justice occurred; or there was a
    miscarriage of justice: see
Criminal Code
, R.S.C. 1985, c. C-46, s.
    672.78;
R. v. Owen
, [2003] 1 S.C.R. 779, at para. 31.

Brockvilles Appeal

[20]

Brockville
    submits that the Board failed to properly exercise its inquisitorial role. It
    submits that the Board had a positive duty to seek out further evidence
    concerning the suitability of Brockville as a placement. In particular, it
    submits that the Board had a duty to seek out a further explanation of
    Brockvilles August 13 letter, especially in light of the apparent confusion as
    to what the letter meant, as testified to by Dr. Van Impe. It submits that the
    Board should have adjourned the hearing to subpoena a witness from Brockville
    to clarify its position. Such a witness would have been able to evaluate the
    appellant's suitability for the All Male Unit.

[21]

Brockville
    also submits that the Boards disposition is unsupported by the evidence and
    that the Board did not provide sufficient explanation for its disposition. In
    particular, the Board did not explain why the appellant could not be
    transferred to the CAMH all-male unit.

[22]

I
    would not give effect to Brockvilles submissions. Brockville received notice
    that complied with the Boards rules. It had the opportunity to respond. It did
    not suggest that the appellant was not a suitable patient for its facility,
    only that it had limited bed availability and a waiting list that had grown to
    over one year. I have considered the fresh evidence. That evidence does not
    undermine the Boards disposition. There is nothing in the affidavit that shows
    that the appellant would be an unsuitable candidate for the All-Male Unit. The
    fact that there is a waiting list cannot give Brockville a veto over dispositions
    the Board can make. As counsel for Waypoint pointed out, it is the Board that
    must decide on the appropriate disposition applying the criteria set out in s.
    627.54 of the
Criminal Code
.

[23]

In
    my view, the Board did not fail to exercise its duty to inquire. The Boards duty
    to inquire arises when additional information is necessary, in the Boards view:
    see
Winko v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2
    S.C.R. 625, at para. 62.

[24]

Here,
    the Board had sufficient information upon which to make its disposition. It had
    the information about Brockvilles waiting list. But, it also had information
    from other medium secure forensic units. The information from CAMH was
    particularly helpful since it not only disclosed the waiting list for its all-male
    unit but explained that Brockville, in any event, was the more suitable
    placement for this appellant. Other information at the hearing and from the
    other facilities supported the view that if the appellant were to be
    transferred to a medium secure unit, it would have to be to an all-male unit.
    That narrowed the possible dispositions to either CAMH or Brockville. Given the
    evidence, Brockville was obviously the more suitable placement, despite the
    waiting list. There is no merit to Brockvilles suggestion that the Board
    should have provided reasons for not ordering the appellants placement at
    CAMH. The reasons are apparent from the record: in CAMHs response to the Rule
    12 notice, the submissions, and Dr. Van Impes testimony.

[25]

I
    am also satisfied that Dr. Van Impes alleged confusion about Brockvilles
    response did not require further inquiry. It was open to the Board to accept
    Dr. Van Impes opinion that Brockville was simply attempting to avoid giving a
    yes or no answer. Regrettably, as the evidence in this case shows, waiting
    lists are a feature of many of the forensic units in Ontario, especially two as
    specialized as the all-male units at CAMH and Brockville. The alleged
    uncertainty about the appellants mental status when a bed finally became available
    cannot, on its own, be a reason not to order the transfer in the appellants
    case. The fact was that, aside from the 2010 incident, the appellant had been
    remarkably stable; his psychosis was under control with medication, he had
    performed well in the structured setting at Waypoint, and could likewise be
    expected to do well in a medium secure unit.

[26]

Finally,
    I would note that Brockvilles counsel concedes that if this court were to set
    aside the Board decision and order a new hearing, the appellant would lose his
    place on the Brockville waiting list.

[27]

I
    would dismiss Brockvilles appeal.

The Appellant Palmers Appeal

[28]

This appellant submits that the Board misapprehended the evidence, failed
    to give adequate reasons, and erred in its treatment of the sexual assault
    allegation. He submits that the appeal should be allowed and that there should
    be a new disposition with a placement at Providence or, in the alternative,
    that there should be a new hearing.

[29]

The
    submission concerning misapprehension of evidence is based on the Boards summary
    of the appellants position in its reasons. The Board described the appellants
    position as being that he should be returned to a minimum security facility
    with all of his privileges restored. In my view, the Boards statement
    concerning the appellants position was not significant. The source of this
    alleged misapprehension is in the report from the hospital to the Board and in statements
    the appellant made to Dr. Van Impe. By the time of the hearing, the appellants
    counsel had stated the appellants position to be his desire to go to
    Providence, a medium secure placement. However, it was open to the Board to
    take into account that the appellants real desire was a fast cascade through
    the system back to where he had been in 2010.

[30]

The
    Boards reasons are extremely sparse. But, as in other types of cases, the
    court must take a functional, substantive approach and have regard to the
    evidentiary record when it is reviewing the adequacy of the Boards reasons:
R.
    v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16 and 35. A reading
    of the record, including the Hospital report, Dr. Van Impes testimony and the
    submissions, shows that the issues facing the Board were very narrow. First,
    there was no dispute that the appellant continued to represent a significant
    threat to the safety of the public. There was also no dispute that the
    appellant no longer required the maximum secure setting at Waypoint. Further,
    despite the appellants wish, as recorded in the hospital report to the Board,
    that he be returned to minimum security with all of the privileges he had
    before 2010, all parties agreed at the hearing that he should be transferred to
    a medium secure facility. The only real issue at the hearing, therefore, was
    which medium secure facility was appropriate. While it would have been
    preferable for the Board to have expressly dealt with the appellants
    submission that he be transferred to Providence, an examination of the
    evidentiary record clearly demonstrates why that placement was inappropriate.
    Providence does not have an all-male unit.

[31]

The
    more serious concern is the Boards failure to expressly explain why transfer
    to an all-male unit was required and whether, in reaching that conclusion, the
    Board misused the sexual assault allegation.

[32]

The
    Board was entitled to use the facts surrounding the sexual assault allegation
    in deciding on the least onerous and least restrictive disposition compatible
    with the appellant Palmers situation, despite his acquittal of the criminal
    charge. There was no formal bar to the Board making use of the underlying facts:
R. v. Mahalingan
, [2008] 3 S.C.R. 316, at para. 56 and
Toronto
    (City) v. C.U.P.E., Local 79
, [2003] 3 S.C.R. 77, 2003 SCC 63.

[33]

In
    this case, the Board noted the appellants acquittal of the criminal charge.
    That acquittal did not prevent it from using the undisputed information that
    the appellant purchased and used alcohol to excess in violation of his
    conditions and engaged in several sexual acts with a vulnerable 18 year old
    patient. Given those facts, the Board was justified in moving cautiously before
    returning the appellant to a setting where he would once more be in contact
    with female patients. The statement that the appellant showed no remorse for
    this incident was simply one factor justifying the finding that there remained
    a significant threat to the safety of the public. The statement was based on
    the record. Dr. Van Impe testified to his concern that the appellant believed
    that since he was acquitted everything should go back to the way it was. The
    appellant didnt really take into account much the alcohol, the vulnerability
    of the  female, that sort of thing.

[34]

I
    would not give effect to the appellants grounds of appeal.

DISPOSITION

[35]

Accordingly,
    I would dismiss both appeals.

Released:

MR                                                  M.
    Rosengerg J.A.

JUL 11 2013                                    I agree
    David Watt J.A.

I
    agree S.E Pepall 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), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

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

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

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.A., 2013 ONCA 466

DATE: 20130709

DOCKET: C56083

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. A.

Applicant/Appellant

Richard Litkowski, for the appellant

Matthew Asma, for the respondent

Heard:  July 4, 2013

On appeal from the conviction entered by Justice Bonnie
    J. Wein of the Superior Court of Justice, dated March 12, 2002 and from the
    sentence imposed by Justice Wein dated May 3, 2012.

ENDORSEMENT

[1]

On March 12, 2012, at a trial in the Superior Court of Justice in
    Brampton presided over by Wein J., a jury found the appellant guilty of
    trafficking a person and of receiving a financial benefit therefrom, contrary
    to ss. 279.01 and 279.02 of the
Criminal Code
. The appellant was
    acquitted of procuring a person to become a prostitute and of exercising
    control over a person to compel that person to engage in prostitution contrary
    to sections 212(1)(d) and 212(1)(h) of the
Code
. The trial judge
    sentenced the appellant to 27 months less one day imprisonment cumulatively on
    the two charges of which he was convicted.

[2]

The appellant appeals against his convictions on two grounds.

[3]

First, the appellant contends that the trial judge failed to give an
    appropriate
Vetrovec
warning to the jury respecting the complainant
    (and only witness).

[4]

We disagree. A trial judges decision on whether to deliver an unsavoury
    witness warning to a jury, and the contents of such a warning, are entitled to
    substantial defence; there is no particular formula: see
R. v. Smith
,
    2009 SCC 5, at para. 16.

[5]

At the appellants trial, the trial judge raised this issue in her
    pre-charge discussion with counsel. It was discussed both before and after
    counsels closing addresses. Ultimately, the language of the caution about the
    complainants evidence was accepted by both counsel. Importantly, the trial
    judge accepted and incorporated a suggestion made by defence counsel. Although
    the trial judge erred in her formulation of one of the
Vetrovec
factors  If you do not find her evidence trustworthy, you should be cautious
    in basing a conviction on it  in our view, the language chosen by the trial
    judge, in co-operation with counsel, on the
Vetrovec
component of her
    charge, viewed in light of the charge as a whole, fulfilled its necessary
    functional purposes.

[6]

Second, the appellant submits that the trial judge failed to identify
    the position of the defence on issues that needed to be resolved by the jury,
    and failed to relate the evidence to those issues in her jury charge.

[7]

We do not accept this submission. This was a very short one-witness
    trial. The trial judge asked for and received written Crown and defence
    positions which she would consider for incorporation into her jury charge. Just
    before she commenced the jury charge, the trial judge said:

Good morning, counsel. I received from both of you or each of
    you separately your position summaries. I think thats the first time theyve
    ever actually fit on one page each, and they were both very good. I have
    changed a word or two but theyre essentially as written. Thank you.

The trial judge incorporated the Crown and defence
    positions into the jury charge.

[8]

The defence position was straightforward. It was that the complainant
    lied and offered examples. This was the defence position and the evidence
    relating to the position.

[9]

The appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2013 ONCA 473

DATE: 20130719

DOCKET: C56551

Rosenberg, Sharpe & Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Ahmed

Applicant / Appellant

Jonathan Dawe, for the Appellant

Matthew Asma, for the Respondent

Heard and released orally: June 21, 2013

On appeal from the conviction entered on April 15, 2013
    by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

In our view this appeal must be allowed because of the inadequacy of the
    reasons. First, the trial judge failed to take into account Ms. Catos
    evidence. The trial judge gave no reasons for not considering this evidence
    from which an inference could be drawn that the appellant did not come out of
    the wrong door contrary to the evidence of the police. Second, the trial judge
    failed to consider the unlikelihood that the appellant would have been able to
    take off two winter coats and put one of the coats back on, all within seconds
    and while seated in the car.

[2]

Third, the trial judge erred in failing to consider the statement of the
    driver showing knowledge of the presence of the gun. The trial judge erred in
    holding it was inadmissible hearsay. It was admissible for the non hearsay
    purpose of showing the drivers state of mind. In fairness to the trial judge
    defence counsel at trial, not Mr. Dawe, did not expressly point out that the
    utterance had this non- hearsay purpose.

[3]

Finally the trial judge erred in failing to consider the impact of the
    destruction of the TTC video, particularly given the efforts made by the
    defence to obtain the video at a time that they did not know it had been
    destroyed. Even absent a s.7 violation this was a factor to be considered. As
    was said in
R. v. Bero
, in some circumstances the absence of evidence
    can give rise to reasonable doubt. While in the course of submissions the trial
    judge referred to the use of the video respecting the clothing, he did not
    consider the impact of the destruction of the video on Ms. Catos evidence and
    what exit the appellant came out of.

[4]

Accordingly, the appeal is allowed, the convictions are set aside and a
    new trial is ordered.

M. Rosenberg J.A.

R.J. Sharpe J.A.

E.E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allison, 2013
    ONCA 461

DATE: 20130704

DOCKET: C53618

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dalbert Bryan Allison

Appellant

Mark Halfyard, for the appellant

Susan G. Ficek, for the respondent

Heard and released orally: June 25, 2013

On appeal from the conviction entered on February 7, 2011
    by Justice Julie Alexandra Thorburn of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

The appellant, Dalbert Allison, was convicted of several weapons
    offences.  The case turned on a
Charter
application in which the
    appellant sought to exclude the gun that the police had seized.  The trial
    judge found that the appellant had been arbitrarily detained contrary to s. 9
    of the
Charter
but that the evidence seized was admissible under s.
    24(2) of the
Charter
.

[2]

On appeal, the appellant contends that the trial judge erred in her s.
    24(2) ruling.  The Crown contends that the trial judge erred in her s. 9
    ruling.  The Crown argues that the police were justified in detaining the
    appellant for investigative purposes.  Alternatively, the Crown asks that we
    uphold the trial judges s. 24(2) ruling.

[3]

We do not need to decide whether the trial judge erred in finding a
    breach of s. 9.  Assuming her finding was correct, we are all of the view that
    she did not err in holding that the evidence was admissible under s. 24(2) of
    the
Charter
.

[4]

The third prong of
Grant
obviously favours admissibility.  The
    gun was reliable evidence.  Assuming the second prong of
Grant
favours
    exclusion, the s. 24(2) ruling turns on the first prong of
Grant
.  The
    trial judge found that the polices conduct was neither egregious nor abusive
    and that the police acted in good faith.  Mr. Halfyard, in his typically candid
    submission, acknowledges that to succeed on this appeal, he has to overturn
    this finding and show that the polices
Charter
infringing conduct was
    serious.

[5]

In our view, the trial judges finding on the polices conduct was
    reasonably supported by the following considerations taken together.

·

The context: The police were patrolling a high crime area where
    there had been a fatal shooting two days earlier.

·

The change in the appellants demeanor: The appellant looked
    shocked when he first saw the police.

·

The polices perception: The police believed, albeit apparently
    mistakenly, that on seeing the officers the appellant put his hand to his
    waist.

·

The appellants flight: The appellant fled by bike immediately on
    seeing the police.

·

The polices questioning: The trial judge found that the polices
    question of the appellant Why did you run? was innocuous.

·

The period of detention:  The appellant was detained only briefly
    before telling the police that he had a gun.

[6]

In the light of these considerations, we see no error in the trial
    judges s. 24(2) ruling.

[7]

Accordingly, the appeal is dismissed.

John Laskin J.A.

M.H. Tulloch J.A.

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.L., 2013 ONCA 488

DATE: 20130718

DOCKET: C54363

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.L.

Appellant

Timothy E. Breen for the appellant

Megan Stephens for the respondent

Heard: July 16, 2013

Onappeal  from the conviction entered on June 22, 2011 by Justice David Salmers of the Superior  Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellants principal attack on the trial judges reasons focuses on
    the trial judges assessment of the credibility of the main complainant and of
    the accused. We see no error in the trial judges credibility assessment. He
    applied the principles in
W.D.
and he gave specific reasons why he
    accepted the evidence of the complainant and rejected the evidence of the
    appellant. In doing so, he dealt with the defences argument on the
    complainants alleged motive to fabricate and on the alleged inconsistencies in
    her evidence. These were proper matters for the trial judge to consider in his
    credibility assessment. In considering them, the trial judge did not shift the
    burden of proof or use the complainants previous statements to confirm her
    trial testimony. Accordingly, we decline to give effect to the appellants
    principal ground of appeal.

[2]

The appellants related different standards of scrutiny argument also
    fails. We see nothing in the trial judges reasons that show he clearly applied
    different standards of scrutiny to the evidence of the complainant and the
    evidence led by the defence.

[3]

Finally, we do not agree with the appellants argument that the trial
    judge erred by admitting discredible conduct evidence of the appellants
    extramarital affair, and then further erred by improperly using this evidence
    to reject the appellants testimony. The evidence of the appellants
    extramarital affair came out as part of the narrative and was largely elicited
    by the defence. The trial judge did not use this evidence to engage in
    impermissible propensity reasoning. Rather, he used it as one example of an
    inconsistency casting doubt on the credibility of the appellants testimony.

[4]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Babinski, 2013 ONCA 490

DATE: 20130719

DOCKET: C52756

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl Babinski

Appellant

Graham T. Clark for the appellant

Andreea Baiasu for the respondent

Heard and released orally: July 15, 2013

On appeal from the conviction entered on November 17,
    2008 and the sentence imposed on June 10, 2010 by Justice Paul Rivard of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

After a trial before Justice Rivard and a jury, the appellant Darryl
    Babinski was convicted of robbery, attempt to obstruct justice, breaking and
    enter, uttering a threat and mischief to property. He was sentenced to nine
    years imprisonment less four years credit for pre-trial custody and was
    designated a long-term offender. He appeals both his conviction and sentence.
    On the sentence appeal he seeks leave to introduce fresh evidence

A.      THE CONVICTION APPEAL

[2]

The appellant makes two submissions: 1) the trial judge erred in his
    instructions to the jury on the in-dock identification of the appellant by the
    three neighbours; 2) the trial judge erred in failing to disqualify a juror who
    acknowledged being acquainted with one of the police officers who testified.

[3]

We did not call on the Crown on the second ground. The trial judge did
    not err in exercising his discretion not to disqualify the juror. We then turn
    to the trial judges instructions on the eye witness identification.

[4]

The appellants defence at trial was that he was not the perpetrator.
    Thus, identity was an issue for the jury. The appellant has two branches to his
    argument. First, he submits that the trial judge ought to have instructed the
    jury that the absence of a photographic lineup was unfair, or at least the
    trial judge ought to have instructed the jury that the in-dock identification
    was of no weight. Second, he submits that the trial judge ought to have
    instructed the jury that the in-dock identification could not be used to
    confirm Ms. Geggies identification evidence.

[5]

As is invariably the case, context is important. In this case, the trial
    judges instructions must be looked at in the light of three contextual
    factors:

i.

the appellant was not a stranger to the complainant. Ms. Geggie knew the
    appellant and identified him as the intruder from the very beginning;

ii.

her eye witness identification was confirmed by the evidence of Mr. Guy,
    who also knew the appellant and was party to the phone calls that gave rise to
    the obstruct justice conviction; and

iii.

Ms. Geggie was not a classic
Vetrovec
witness. She was 18, had
    no criminal record and was the victim.

[6]

Having regard to these contextual factors, we are satisfied that the
    trial judges instructions on the in-dock identification were adequate. On the
    first branch of the appellants argument, we note that some of the trial
    judges language was taken directly from the Supreme Court of Canadas decision
    in
Hibbert
. Further, the trial judge expressly told the jury about the
    dangers of relying on in-dock identification. In the context of this case,
    these instructions were adequate.

[7]

On the second branch of the appellants argument, we are satisfied that
    the trial judges instructions to consider whether there was any evidence to
    confirm Ms. Geggies eye witness identification did not prejudice the
    appellant. The further instructions sought by the appellant would have
    highlighted the several parts of the evidence that confirmed Ms. Geggies
    testimony.

[8]

Accordingly, the conviction appeal is dismissed.

B.      THE SENTENCE APPEAL

[9]

The sentence was fit when it was imposed. And, we do not think that the
    fresh evidence alters the fitness of the sentence. If anything, the fresh
    evidence confirms that the appellant remains a high risk to reoffend, and thus
    confirms the wisdom of a long term supervision order. Although the evidence
    shows that the appellant does not have access to one of the aboriginal healing
    centres, there is no evidence that other centres are unavailable to him. Rather,
    the appellant appears to have taken little or no interest in developing a
    release plan.

[10]

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

John Laskin J.A.

E.E. Gillese J.A.

G.R. Strathy J.A.