WARNING

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

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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    the complainant or a witness shall not be published in any document or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

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williamson, 2014 ONCA 598

DATE: 20140819

DOCKET: C55167

Rosenberg, MacPherson and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Gavin Williamson

Appellant

John H. Hale, for the appellant

Jamie C. Klukach, for the respondent

Heard:  May 28, 2014

On appeal from the decision of Justice Gary W. Tranmer,
    released October 7, 2011, dismissing an application for a stay of the
    proceedings pursuant to ss. 11(b) and 24(1) of the
Canadian Charter of
    Rights and Freedoms
, with reasons reported at 2011 ONSC 5930, and from the
    judgment of Justice Tranmer, sitting with a jury, dated December 20, 2011.

Lauwers J.A.:

[1]

The appellant was found guilty after a trial with a jury of buggery,
    indecent assault and gross indecency under ss. 155, 156 and 157 of the
Criminal
Code
, R.S.C. 1970, Chap. C-34, for numerous sexual acts he committed on a
    boy over 30 years ago. He was sentenced to a total of four years imprisonment.

[2]

The appellant advanced two grounds of appeal in oral argument: first,
    that the trial judge erred in refusing to grant a stay of the proceedings based
    on unreasonable delay in the case coming to trial, under ss. 11(b) and 24(1) of
    the
Canadian Charter of Rights and Freedoms
; and second, that the
    trial judge erred in not excising segments of the video recorded interview the
    appellant had with the police, or, alternatively, by not providing a caution to
    the jury on the use to which they might put those segments.

[3]

The appellant did not pursue in oral argument two other grounds of
    appeal raised in his factum: that the appellants statement to police was not
    voluntary and should have been excluded; and that the Crown Attorneys manner
    of cross-examining the appellant was prejudicial to his fair trial interests.

A.

Background Facts

[4]

In 1979, when the complainant was 12 years old, he met the appellant,
    who was then 26 years old, through a juvenile diversion program. The appellant
    was in a one-year program at Queens University, studying to become a teacher, and
    was assigned to be the complainants mentor/advocate, in what was described as a
    big brother type of relationship. The appellant and complainant would meet
    often for various activities, and the complainant would often visit the
    appellant at his university dormitory. On one such visit, the complainant
    missed his bus home and stayed overnight in the appellants room.

[5]

The complainant testified that when he went to bed, the appellant joined
    him in the bed, and began to rub up against him and then engaged in anal
    intercourse with him. The complainant did not want this to occur.

[6]

The complainant testified that after this incident he continued to visit
    the appellant a few times per week, and the appellant continued to engage him
    in similar sexual activity, usually involving anal sex. Occasionally, the
    appellant forced the complainant to perform oral sex on him, and there were occasions
    of genital touching. The following summer, the complainant began to visit the appellant
    at his family home in Ottawa. The complainant testified that on each visit at
    the family home, the appellant would engage in anal intercourse with him.

[7]

The complainant confirmed that the appellant never threatened, hit or
    struck him in any way. The complainant testified that he did not disclose these
    incidents to anyone during the course of his contact with the appellant because
    he was embarrassed. The complainant first disclosed the abuse to his first wife
    years later, and later to his current wife, his therapist and his doctor. In
    2008, he told his probation officer about the abuse, and then reported it to police.

[8]

On January 6, 2009, Detective Cahill of the Kingston Police arrested the
    appellant at the school where he worked as a teacher. On arrest, he told the
    appellant that he was being arrested for historical sexual assault. He advised
    the appellant of his right to counsel. The appellant chose not to exercise this
    right.

[9]

After being taken to the police station, the appellant was interviewed by
    Detective Cahill, which was video recorded. The appellant initially stated that
    he had no idea why he was arrested. He then repeatedly denied any sexual
    contact with the complainant. Detective Cahill advised the appellant that his
    friends and family would have to be contacted. The appellant eventually
    admitted to Detective Cahill that sexual activity had occurred with the complainant.
    He described an account of sexual activity which he claimed was initiated by
    the complainant, but denied that anal intercourse had ever occurred, and denied
    that the complainant had ever performed oral sex on him. The appellants
    account differed markedly from the complainants.

[10]

The
    trial judge found the appellants statements in the video recorded interview to
    be voluntary. The video was admitted into evidence and played for the jury at
    the trial.

[11]

At
    trial, the appellant denied any sexual activity with the complainant. He
    testified that the complainant stayed overnight in his dormitory on one
    occasion, when they realized that the complainant had missed the bus. The
    complainant went to bed first. When the appellant returned to his room, he
    found that the complainant was in his bed rather than on the air mattress he
    had set up for him. The appellant therefore slept on the air mattress himself. According
    to the appellant, the complainant visited him in Ottawa three times. There was
    no sexual activity and the two did not share a room.

[12]

At
    trial, the appellant attempted to explain his statement to police. The
    appellant testified that he thought Detective Cahill had already made up his
    mind about the allegations, and sensed that he was in a lose-lose situation. He
    felt that he needed to satisfy Detective Cahill to avoid remaining in jail for
    violent sexual offences and, out of desperation, fabricated an account of
    sexual activity that would support lesser charges.

[13]

The
    jurys verdicts show they did not accept the appellants exculpatory evidence,
    it did not raise a reasonable doubt, and they were persuaded beyond a
    reasonable doubt that the sexual acts did occur. In his reasons for sentence,
    in accordance with the jurys verdicts, the trial judge found that from the
    fall of 1979 until August of 1980 the appellant committed in excess of 50
    incidents of anal intercourse with the complainant, nine or ten incidents in which
    he forced the complainant to perform oral sex on him, a couple of occasions
    when the appellant touched the complainants penis and several occasions when
    the complainant touched the appellants penis.

B.

IssueS

(1)

Did the trial judge err by refusing a stay of proceedings under ss. 11(b)
    and 24(1) of the
Charter
?

(a)

Procedural History

[14]

The
    appellant was arrested and interviewed on January 6, 2009. The Information,
    charging the appellant, was sworn the following day. He was held in custody
    until January 12, 2009, when he was released on bail.

[15]

The
    appellant elected to have a preliminary inquiry and to be tried by a judge and
    jury in the Superior Court of Justice (SCJ). The preliminary inquiry was
    adjourned twice in the Ontario Court of Justice (OCJ), before it commenced and
    the appellant was committed for trial the same day. The undisputed events surrounding
    those adjournments can be summarized as follows:

·

On April 28, 2009, in the OCJ, the date of November 23, 2009, was
    set for the preliminary inquiry. The Crown later learned that another matter
    was scheduled to continue on that date which would proceed first. On November
    20, 2009, the Crown learned that the assigned judge would be unavailable on
    November 23. As such, the Crown cancelled their witnesses. Defence counsel was
    not informed of this and attended in court on November 23 expecting to proceed
    with the preliminary inquiry. The assigned judge was, in fact, present, but the
    witnesses had already been cancelled.

·

The preliminary inquiry was rescheduled for the full day of
    February 22, 2010. The appellant and his counsel attended in court on that day and
    were informed that the assigned judge and investigating police officer were not
    available. The record indicates, however, that the assigned judge was present
    and available to conduct the inquiry.

·

The preliminary inquiry was rescheduled a second time for May 7,
    2010, and proceeded on that date. The complainant testified for most of the
    day.  Although the Defence and Crown had agreed the police officers would be
    available for cross-examination at the preliminary inquiry, the Defence agreed
    to proceed by way of discovery with regard to these officers on a later date. The
    appellant was committed to trial. Earlier dates were offered, but the pre-trial
    in the SCJ was scheduled for August 4, 2010, to accommodate discovery and a
    family matter the appellant needed to attend.

[16]

Although
    he ultimately refused to grant a stay, the trial judge was troubled by the fact
    that the first two preliminary inquiry dates were lost, and noted in his
    Decision on the s.11(b) Application, reported at 2011 ONSC 5930:

The accused and his lawyer travelled from Ottawa on both of
    these dates without prior notice that the proceedings would be adjourned. This
    is most unfortunate and of concern to this court and relevant to the 11(b)
    application.

[17]

On
    August 4, 2010, the judicial pre-trial conference in the SCJ was adjourned
    because the assigned Crown counsel was not present. Although earlier dates were
    available, there was no evidence about whether Crown counsel was available
    earlier than September 29, 2010, when Crown counsel attended and the pre-trial
    conference took place. The matter was then adjourned to the assignment court on
    October 22, 2010, when the pre-trial applications and jury trial were scheduled.

[18]

A
    number of pre-trial applications were brought by both the Crown and defence. The
    jury trial began on December 12, 2011 and ended on December 20, 2011.

[19]

Prior
    to the trial, on July 21, 2011, the appellant filed his Notice of Application
    for a stay under ss. 11(b) and 24(1) of the
Charter
. The application was
    heard on September 7 and 15, 2011, and dismissed on October 7, 2011.

[20]

The
    appellants primary complaints in his s. 11(b) application were that: (1) the
    preliminary hearing was rescheduled twice and took place almost five months
    after it was originally scheduled; and (2) the trial took place over a year
    after it was scheduled.

(b)

The Decision under Appeal

[21]

The
    trial judges decision correctly set out the analytical framework to be applied
    in an application under s. 11(b) of the
Charter
,
taken from
R. v. Morin
, [1992]
    1 S.C.R. 771,
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, and a
    number of other decisions, including the decision of this court in
R. v.
    Tran
, 2012 ONCA 18, 288 C.C.C. (3d) 177, which approved the approach Code
    J. took in
R. v. Lahiry
, 2011 ONSC 6780, 109 O.R. (3d) 187.

[22]

The
    factors to be assessed are: (1) the overall length of delay from the laying of
    charges until the trial concludes; (2) the waiver of any individual time
    periods; (3) the reasons for the various periods of delay; and (4) the prejudice
    to the particular interests of the accused that are protected by s. 11(b). The
    court is then obliged to consider whether the delay is unreasonable, and in
    doing so, to balance the interests of the accused and the societal interest in
    a trial on the merits: see
Lahiry,
at para. 9;
Tran,
at para. 24;
Morin
, at pp. 786-803.

[23]

On
    the first factor, the length of delay, the trial judge found that the relevant
    time frame to be assessed was between January 7, 2009, when the Information was
    sworn, and December 23, 2011, when the trial was set to end. This was a period
    of 35 months and 16 days. He found that [s]uch a time frame warrants judicial
    scrutiny. I agree.

[24]

It
    is common ground that the second factor did not apply in this case, as the
    appellant did not waive any periods of delay. The two factors in serious
    dispute were the third and fourth factors, the reasons for delay and the
    prejudice to the accused.

[25]

The
    trial judges characterization of the various periods of delay can be
    summarized as follows:

1.

From
    January 7, 2009, when the information was sworn, to April 28, 2009, when the
    preliminary inquiry was set, was 3 months, 21 days. The trial judge
    characterized this period as inherent intake, except for 1 month, 4 days, which
    he attributed to the Crown for delay in providing disclosure.

2.

From
    April 28, 2009, when the preliminary inquiry was set, to November 23, 2009,
    when the first preliminary inquiry was scheduled, but did not proceed, was 6
    months, 26 days. In accordance with counsels agreement, the trial judge
    characterized this period as institutional delay.

3.

From
    November 23, 2009, when the first preliminary inquiry did not proceed, to
    February 22, 2010, when the second preliminary inquiry was scheduled, but also
    did not proceed, was 3 months. The trial judge characterized this delay as
    institutional.

4.

From
    February 22, 2010,  when the second preliminary inquiry did not proceed, to May
    7, 2010, when the third preliminary inquiry proceeded and the appellant was
    committed for trial, was 2 months, 15 days. The trial judge characterized this
    delay as institutional.

5.

From
    May 7, 2010 when the appellant was committed for trial, to August 4, 2010, the
    first appearance in SCJ, was 3 months. In accordance with counsels agreement,
    the trial judge characterized this delay as inherent intake in the SCJ,
    although he commented that two months of this delay could well have been
    attributed to the defence, because earlier dates in the SCJ were offered but
    declined.

6.

From
    August 4, 2010, the first appearance in the SCJ, to October 22, 2010, when the
    pre-trial motions and trial were set, was 2 months, 18 days. The trial judge
    characterized this delay as inherent and noted that the original judicial
    pre-trial conference was adjourned from August 4 to September 29 because the
    assigned Crown was not available.

7.

From
    October 22, 2010, when the pre-trial motions and jury trial were scheduled, to
    December 12, 2011, when the trial began, was 13 months, 20 days. The trial
    judge characterized this delay as institutional, noting that the applications
    were serious and substantive, and scheduling of the pre-trial applications in
    advance of a jury trial is good practice.

[26]

The
    trial judges total allocation can be summarized:

Category of Delay

Trial Judges Totals

Intake/Inherent

8 months

(2 months, 17 days in OCJ, and

5 months, 15 days in SCJ)

Defence Delay

None

Institutional

26 months

(12 months, 11 days in OCJ, and

13 months, 20 days in SCJ)

Crown Delay

1 month, 4 days

[27]

The
Morin
guidelines for the suggested
    periods of institutional delay are eight to ten months in the provincial
    courts, and six to eight months in the superior courts: see
Morin
, p. 799. The trial judge acknowledged that the
    institutional delay in this case was well beyond the guidelines.
However,
    he concluded that the appellant had not established the actual prejudice that he
    claimed to have suffered, and that although the court could infer prejudice,
    the inferred prejudice to the appellant was not significant. The trial judge
    also found a very high societal interest in trying the appellant on the merits,
    and dismissed the application.

(c)

Analysis

[28]

The
    appellant argues that the delay in this case beyond the
Morin
guidelines
    is excessive and that a stay was warranted under ss. 11(b) and 24(1) of the
Charter.
The Crown takes issue with certain aspects of the trial judges
    attribution of the delays in this case.

i.

Standard of Review

[29]

As
    this court noted in
R. v. Konstantakos
, 2014 ONCA 21, 298 C.R.R. (2d)
    310, at para. 5:

The characterization of periods of delay, and the ultimate
    decision concerning the reasonableness of a period of delay, is reviewable on a
    standard of correctness:
R. v. Tran
, 2012 ONCA 18, 288 C.C.C. (3d)
    177, at para. 19. The underlying findings of fact are reviewable on a standard
    of palpable and overriding error:
R. v. Schertzer
, 2009 ONCA 742, 248
    C.C.C. (3d) 270, at para. 71.

ii.

The Attribution of Delays

From committal to first appearance in the SCJ

[30]

The
    Crown urges this court to attribute two months of the delay between May 7,
    2010, the date of committal, and August 4, 2010, the date of the appellants
    first appearance in the SCJ, to the defence. The trial judge noted that the
    Crown and defence agreed that this timeframe was SCJ intake delay. However, because
    two earlier dates were available in the SCJ, but declined by the defence, the
    trial judge commented that: two months could well be attributed to the defence.
    As this court held in
Tran
, at para. 31: [T]he court is not bound by
    erroneous concessions by the Crown in allocating periods of delay [cit. omit.].
    In my view, the trial judges comment was correct and, despite counsels
    agreement in the application before the trial judge, I would attribute two
    months of this delay to the defence.

From the first appearance in the
    SCJ to setting dates for pre-trial applications and trial

[31]

On
    August 4, 2010, the first date set for pre-trial in the SCJ, the defence sought
    an adjournment of the pre-trial conference because Crown counsel assigned to
    the case was not available. The trial judge indicated:

I think the defences position of seeking the presence of
    assigned Crown was reasonable. In my view, to ensure a full and effective
    pre-trial hearing, it is necessary that counsel with carriage of the matter
    attend at pre-trial.

[32]

September
    29, 2010, was the second scheduled judicial pre-trial date and the assigned
    Crown appeared. The matter was then put over to assignment court on October 22,
    2010. The trial judge categorized this entire period of delay as inherent.

[33]

Before
    this court, the Crown argues that it is not the practice of the Kingston
    Crowns office to ensure that the assigned trial Crown is present at the pre-trial.
    Nevertheless, I agree with the trial judges concern about the importance and utility
    of judicial pre-trial conferences, and agree with him that in this case the
    delay in this timeframe is therefore inherent.

From setting dates to trial

[34]

At
    the assignment court on October 22, 2010, dates were set for pre-trial applications
    and the jury trial. December 12, 2011, was the first date scheduled for trial. The
    trial judge categorized this entire period as institutional delay.

[35]

The
    Crown argues that the trial judge made two errors in characterizing this entire
    period as institutional delay. First, the Crown submits that the significant pre-trial
    motions proposed by the defence required preparation time which should be
    classified as inherent delay, not institutional. The Crown proposed that three
    to five months be attributed to preparation.

[36]

The
    attribution of delay for preparation purposes was addressed by this court in
Tran
,
    at para. 32:

[P]arties should not be deemed automatically to be ready to
    conduct a hearing as of the date a hearing date is set. Counsel require time to
    clear their schedule so they can be available for the hearing as well as time
    to prepare for the hearing. These time frames are part of the inherent time
    requirements of the case. Institutional delay begins to run only when counsel
    are ready to proceed but the court is unable to accommodate them. [Internal
    citations omitted.]

[37]

Although
Tran
was released after the 11(b) decision in this case, in my view,
    given the scope of the motions, preparation time of one month would appear
    reasonable to be reclassified as inherent rather than institutional delay: see
R.
    v. Florence
2014 ONCA 443, at para. 63;
R. v. Ralph
2014 ONCA 3, 299
    C.R.R. (2d) 1, at para. 12.

[38]

Second,
    the Crown relies on the language in
Morin
, at pp. 799-800,
in which the Supreme Court indicated,
    with respect to the guidelines for institutional delay:

These suggested time periods are intended for the guidance of
    trial courts generally. These periods will no doubt require adjustment by trial
    courts in the various regions of the country to take into account local conditions
    and they will need to be adjusted from time to time to reflect changing
    circumstances. The court of appeal in each province will play a supervisory
    role in seeking to achieve uniformity subject to the necessity of taking into
    account the special conditions and problems of different regions in the
    province.

[39]

The
    Crown submits that this court ought to take into account the fact that the
    defence decided to elect trial by jury in Kingston, where there are only two
    courtrooms able to accommodate jury trials, one of which was already dedicated
    to a murder trial involving multiple murders and accused, which demanded
    significant institutional resources. The trial judge considered this issue at
    para. 47 of his reasons. However, the Crown did not have any explanation for
    why no one approached the Regional Senior Justice to see what other
    arrangements could be made to accommodate this trial under those circumstances,
    such as utilizing other venues in the Eastern Region of the Superior Court of
    Justice.

[40]

Further,
    the Crown argues that this court should account for the fact that the accused chose
    to bring complex
Charter
motions. I reject this argument. As Rosenberg
    J.A. noted in
Ralph,
at para. 14: [T]he appellant was not required to
    give up his
Charter
right to a jury trial to vindicate his
Charter
right to a trial within a reasonable time. Likewise, this appellant was not
    required to give up his pre-trial
Charter
applications, which the trial
    judge characterized as serious and substantive, to vindicate his
Charter
right to a trial within a reasonable time.

[41]

The
    appellant argues that the trial judge ought to have taken the Supreme Courts
    approach in
Godin.
There, the court restored the trial judges stay of
    charges for sexual assault, unlawful confinement and threatening death. As
    Cromwell J. noted, at para. 39:

This was not a complex case. A delay of 30 months in bringing
    it to trial is striking, given that the delay was virtually entirely
    attributable to the Crown or institutional delay and was largely unexplained.

[42]

The
    Crown submits that the Supreme Courts reasoning in
Godin
is not
    applicable. The Crown submits that in
Godin
the Crown failed to explain
    the multiple delays, but in this case the Crown has provided explanations. That,
    in my view, is an insufficient basis on which to distinguish
Godin
. It
    is the substance of the explanations that counts. In the present case, the trial
    Crown and the court were both well aware when the trial date was set that the
    defence intended to bring a stay application based on delay and that the trial
    of the case was in jeopardy. In these circumstances, I do not find the Crowns
    explanations to be sufficient. The Eastern Region of the Superior Court has
    plenty of locations and judges; the trial could have been accommodated earlier.

[43]

Lastly,
    the trial judge treated this entire period as institutional. This is arguably not
    consistent with this courts approach in
Tran,
at para. 32, to account
    for preparation time. As noted,
Tran
was released after the 11(b)
    decision in this case. The further difficulty in this case is that there is no
    evidence as to any earlier availability of defence counsel during that long
    delay. There was no fresh evidence tendered to this court on these issues. It
    is therefore difficult to establish the date on which counsel were ready to
    proceed, but the court was unable to accommodate them.

[44]

That
    said, in this relatively simple case in which counsel had prepared three times
    for the preliminary inquiry, I would attribute virtually no time to trial
    preparation. As the real driving force behind this period of delay was the
    other more complex murder trial the trial judge noted, which was limiting the institutional
    resources in the jurisdiction, I am not persuaded to attribute notional credit
    for preparation time to counsel. I would not reduce the trial judges attribution
    of the delay as institutional any further.

[45]

Based
    on the foregoing, I would adjust the trial judges allocation of delays to the
    following:

Category of Delay

Totals

Intake/Inherent

7 months

(2 months, 17 days in OCJ and

4 months, 15 days in SCJ)

Defence Delay

2 months

Institutional

25 months

(12 months, 11 days in OCJ and

12 months, 20 days in SCJ)

Crown Delay

1 month, 4 days

[46]

The
    institutional delays as I would attribute them in this case exceed the
Morin
guidelines by more than two months in the OCJ, and by more than four months in the
    SCJ. The added Crown delay, of one month and four days, results in an overall
    excess of about eight months. The total institutional and Crown delay is about
    26 months.

[47]

In
Ralph,
Rosenberg J.A. made the following comments, at para. 16:

On the trial judge's findings a substantial amount of that
    time, some 26 months, was either Crown or institutional delay. If that finding
    held and given the failure to give the case priority when it was adjourned in
    October, I might well have found a violation of s. 11(b) requiring a stay of
    proceedings.

[48]

In
Ralph
, the delay was ultimately found to be not 26 months of
    institutional and Crown delay, but 19 months. Rosenberg J.A. noted, at para 17:
    While this is still a significant delay, it is a delay that only slightly
    exceeds the upper range of the
Morin
guidelines, of 14 to 18 months of
    institutional delay. The excess delay in this case is considerably more, at
    more than eight months. As Sopinka J. stated in
Morin
, at p. 807,
    deviations of several months in either direction can be justified by the
    presence or absence of prejudice.

iii.

Prejudice

[49]

In
Godin
, Cromwell J. considered three forms of prejudice, at para. 30:

Prejudice in this context is concerned with the three interests
    of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody
    or bail conditions; security of the person, in the sense of being free from the
    stress and cloud of suspicion that accompanies a criminal charge; and the right
    to make full answer and defence, insofar as delay can prejudice the ability of
    the defendant to lead evidence, cross-examine witnesses, or otherwise to raise
    a defence.

[50]

He
    went on to say that both actual prejudice and prejudice inferred from the length
    of the delay were relevant, noting, at para. 31:

As Sopinka J. wrote in
Morin
, at p. 801, even in the
    absence of specific evidence of prejudice, prejudice may be inferred from the length
    of the delay.  The longer the delay the more likely that such an inference will
    be drawn.  Here, the delay exceeded the ordinary guidelines by a year or more,
    even though the case was straightforward.  Furthermore, there was some evidence
    of actual prejudice and a reasonable inference of a risk of prejudice.

Actual Prejudice

[51]

The
    trial judge found, on the evidence, that the appellant had not established
    actual prejudice.  He based this conclusion on factual findings set out in his
    reasons. The terms of the appellants release were not onerous, and his concept
    of house arrest was self-imposed. His inability to associate with persons of
    a certain age could have been overcome on a motion. The appellants move from
    Kingston to Ottawa was not related to the charges, but was based on his desire
    to help his elderly parents. The media scrutiny that he experienced was the
    result of the fact that he was charged and did not flow from any delay. The
    same would be true of the professional scrutiny that he was under and the fact
    that he was unable to work as a teacher, although he continued to be paid.
    Further, the trial judge found that the appellants professional colleagues
    continued to support him. The appellant submitted no medical evidence of
    prejudice. There was no difficulty preserving evidence. None of these findings
    were challenged on appeal, let alone proven to suffer from any palpable and
    overriding error.

[52]

The
    Crown relied on the same points as mitigating any prejudice to the appellant.

[53]

Given
    these facts, I agree with the trial judge that the appellant did not make out
    actual prejudice on the evidence.

Inferred Prejudice

[54]

As
    the trial judge noted, [P]roof of actual prejudice is not invariably required
    to establish a s. 11(b) violation. He referred to
Godin,
and noted
    that a 35-month delay from the date of the charge to the commencement of the
    trial is a basis from which to infer prejudice. Ultimately, however, he
    found, that the inferred prejudice to the appellant was not significant.

[55]

The
    appellant argues that the trial judge gave insufficient weight to inferred
    prejudice. A similar issue arose in
Ralph,
where

Rosenberg J.A.
    made the following comments, at para. 16:

The appellant adduced no evidence of actual prejudice. The
    trial judge accepted that inferred prejudice had to be taken into account but
    he described the inferred prejudice as a "modest amount of inferred
    prejudice". When an accused has had to wait almost three years for trial,
    even a trial as relatively complex as the appellant's, it is proper to infer
    significant prejudice: see
Godin
, [cit.omit.].

[56]

In
R. v. Steele,
2012 ONCA 383, 288
    C.C.C. (3d) 255, this court substituted a stay of proceedings, largely because
    the trial judge failed to appropriately weigh the inferred prejudice that the
    accused suffered as a result of the 35 month delay in bringing him to trial. Of
    that delay, 26 months were attributable to institutional and Crown delay.
    Rosenberg J.A. held that, despite the seriousness of the offences and societys
    interest in a trial on the merits, the length of the delay and the
    unsatisfactory explanation for it were simply inexcusable. The delay in
Steele
was nearly identical to that in the present case.
    Also see:
R. v. H.(B.),
2009
    ONCA 731, 200 C.R.R. (2d) 262.

[57]

Based
    on such cases having very similar delays, in my view, it must be inferred that the
    appellant has experienced significant prejudice. The trial judge erred in
    deeming it to be not significant. As Cory J. observed in
R. v. Askov
[1990]
    2 S.C.R. 1199, at p. 1219, the time awaiting trial can be exquisite agony.
    The stigma of being under a public cloud should not be lightly dismissed.

iv.

Balancing the Interests

[58]

The
    next step in the analysis is to balance the interests of the appellant and the
    societal interest in a trial on the merits. The appellant argues that the
    balance in this case is in favour of granting a stay because the cumulative delay
    is just too long.

[59]

The
    trial judge held:

There is a very high societal interest in having Mr. Williamson
    tried on the merits for these very serious charges. Society's interest in
    protecting vulnerable children is very high.

He relied on the decision in
R. v. G.A.G.,
(2006)
    206 O.A.C. 131, in which this court, in an endorsement, upheld the trial judges
    decision to refuse a stay, and the accused was found guilty; and
R. v. S.H.,
[2008] O.J. No. 5736, at para. 74. In
S.H.,
Boswell J. refused a stay,
finding that
    there were several mitigating factors, similar to those in this case, that
    reduced the actual prejudice experienced by the accused.

[60]

The
    Crown argues that the trial judge did not err, citing
R. v. Seegmiller
,
    (2004) 191 C.C.C. (3d) 347 (Ont. C.A.), and
R. v. Hussey
, 2008 ONCA
    86, 168 C.R.R. (2d) 252, both involving sexual assaults.  In both cases, the trial
    judges decision to impose a stay was reversed by this court.

[61]

The
    role of the societal interest in the balancing effort was set out by Cronk J.A.
    in
Seegmiller
, at para. 25:

Where the nature of the allegation establishes a heightened
    societal interest in a trial on the merits, the absence of prejudice
    (particularly to the accused's fair trial interests) takes on added
    significance in the s. 11(b) calculus. The applications judge found that the
    suggested prejudice to Seegmiller was deserving of little weight, but failed to
    appreciate the significance of that assessment in a case like this one, where
    the societal interest in a trial on the merits is high. The applications judge
    also observed that the degree of prejudice to the accused is not such as to
    require that the period of acceptable delay be shortened. This observation
    correctly recognizes that real prejudice can shorten the period of acceptable
    delay in a proper case; however, it fails to also recognize that the absence of
    meaningful prejudice can lengthen the period of delay that is constitutionally
    tolerable.

[62]

On
    the other hand, society's interests should not permit the accused's constitutional
    rights to be eviscerated: see
S.H.
,
    at para. 74.

[63]

This
    point was discussed in
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494,
    in a different context, where the Supreme Court was dealing with the possible exclusion
    of illegally obtained evidence, under section 24(2) of the
Charter
. At
    para. 40, the Court endorsed the reasoning of Cronk J. A., who was in dissent
    in this court:

As Cronk J.A. put it, allowing the seriousness of the offence
    and the reliability of the evidence to overwhelm the s. 24(2) analysis would
    deprive those charged with serious crimes of the protection of the individual
    freedoms afforded to all Canadians under the
Charter
and, in effect,
    declare that in the administration of the criminal law the ends justify the
    means (para. 150).
Charter
protections must be construed so as to
    apply to everyone, even those alleged to have committed the most serious
    criminal offences.

[64]

This
    is a very difficult case.

[65]

As the Supreme Court
    said in
Morin
and
Godin,
the approach to assessing the
    reasonableness of delay is not mathematical, but requires balancing of the
    appellants
Charter
protected
    interests with societys interest in prosecution of the offences on the merits.
The difficulty in appeals of cases where no stay was granted by the
    trial judge is that, while the motion is heard and determined before the trial,
    when the presumption of innocence applies, the appeal is heard and determined
    after a fair trial on the merits in which the appellant was found guilty, often
    by a jury of peers. Would the judicial imposition of a stay be more publicly
    disreputable for the administration of justice by letting a plainly guilty
    person like the appellant go free, than tolerating an inordinate trial delay?

[66]

The
    crimes committed by the appellant are serious; indeed, they are especially
    despicable.
Certain factors militate
    against the appropriateness of a stay.
There is no actual prejudice.
    There are mitigating factors. The appellant was out on bail and was not subject
    to particularly onerous restrictions. He was being paid his salary. The digital
    evidence was preserved and, given that the abuse took place over 30 years ago,
    an additional eight months did not materially impact the appellants ability to
    cross-examine the complainant.

[67]

Despite
    these factors, in my view, the trial judge erred in refusing a stay. While
    there is no actual prejudice, the inferred prejudice is significant.
There is no doubt that
26 months of
    institutional and Crown delay is significant and exceeds the
Morin
guidelines by eight months.
The excessive
    delay is explained but not justified. In anticipation of an application under
    s. 11(b) of the
Charter,
neither the Crown nor the Superior Court took
    seriously the obligation to bring this relatively straightforward case to trial
    in a reasonable time. By contrast, the defence was diligent in attempting to
    move the matter along, and attended prepared for preliminary hearing dates not
    once, but twice, only to be turned away because of scheduling errors, even
    though the Crown was apparently aware of these issues in advance and failed to
    inform defence counsel.

[68]

Applying
    the Supreme Courts words in
Harrison
,
Charter
protections
    must be construed so as to apply to everyone, even those alleged to have
    committed the most serious criminal offences, I conclude, with great
    reluctance, that the balance weighs in favour of the appellants interests in a
    trial within a reasonable time, over the societal interest in a trial on the
    merits. A stay should have been ordered in this case.

(2)

Did the trial judge err by not excising segments of the appellants
    recorded police interview, or by not providing a caution to the jury on the use
    to which they might put those segments?

[69]

Although
    it is not necessary given my conclusion on the 11(b) issue, I address the
    second issue the appellant advanced in oral argument. The appellant makes three
    complaints about questions asked by the police in the video recorded interview
    with the appellant. First, he objects to questions the investigating officer asked,
    inquiring why the complainant would have fabricated his allegations. Second,
    the appellant challenges the propriety of questions by the investigating
    officer that refer to previous occasions the complainant had disclosed the
    abuse to other parties. Third, the appellant challenges the officers
    questioning referring to an incident when the complainant indicated that, while
    staying at the appellants family home, the appellants mother had noticed
    blood in the complainants underpants.

[70]

The
    appellant argues the trial judge erred in law by not excising these
    inadmissible portions of the appellants video recorded interview by the
    police, or in the alternative the trial judge erred by not providing a caution
    to the jury about those portions. In my view, for the following reasons, there
    is no merit to these arguments.

(a)

Questions about the complainants motive to fabricate

[71]

It
    is common ground that an accused has no burden to prove that the complainant
    had a motive to fabricate.  Consequently, at trial the Crown is not permitted
    to ask an accused person to give a reason why the complainant would fabricate
    allegations. The defence asserts, and I agree, that asking that form of
    question risks reversing the burden of proof, by suggesting that it is the accuseds
    responsibility to explain why the complainant would lie: see
R. v. R.
    (A.J.)
, (1995) 20 O.R. (3d) 405 (C.A.), at p. 414;
R. v. F.(A.)
, (1997)
    30 O.R. (3d) 470 (C.A.), at p. 471:

More importantly, these questions suggested that there was some
    onus on the appellant and his witness to provide a motive for the complainants
    testimony. This kind of examination undermines a fundamental principal of the
    presumption of innocence. This court has repeatedly held that this type of
    cross-examination is improper.

See also
R. v. W.J.M.
, (1995) 82 O.A.C. 130
    (C.A.), at para. 9.

[72]

The
    appellant argues that if the Crown cannot ask such questions in
    cross-examination, then it ought not to be permitted to adduce the same kind of
    questions and answers as evidence, by proxy, in a video statement in which the investigating
    officers questions take the same objectionable form. The appellant further asserts
    that it is no answer that, at trial, the Crown did not cross-examine the
    appellant on the complainants motive to fabricate the allegations. Alternatively,
    the appellant argues that if these questions and answers were left to be seen or
    read by the jury, then it was incumbent on the trial judge to provide a limiting
    instruction on the use to which they may be put.

[73]

The
    Crown argues that the appellant was represented by competent and experienced
    trial counsel who would have been alert to the principles involved. He did not
    object to the introduction of the entire video recorded statement, nor did he
    seek a limiting instruction around the questions and answers to which appeal counsel
    now objects. The issue is raised for the first time on appeal.

[74]

I
    note that, in his charge, the trial judge instructed the jury on the issue of
    the complainants possible motive to fabricate, stating:

There is no requirement for Mr. Williamson to prove that [the
    complainant] had a motive to fabricate evidence.  There is no requirement on
    Mr. Williamson to prove anything.  The presence or absence of a motive to
    fabricate is only one factor to be considered in assessing how much of or how
    little of a witnesss evidence that you find to have been proven.

[75]

And
    in any event, during his closing address to the jury, defence counsel focussed,
    albeit briefly, on the complainants motive to fabricate.

[76]

In
    my view, defence counsel at trial made a deliberate strategic choice not to
    pursue either an edit of the video statement or a limiting instruction to the
    jury. The defence strategy was plain in counsels cross-examination of the
    investigating officer and in his closing address to the jury. The defence
    theory was that the investigating officers interrogation forced a false admission
    out of the appellant. The defence wanted the jury to see the investigating
    officers minute-by-minute interrogation strategy, to demonstrate how he
    cornered the appellant into a false confession.

[77]

No
    limiting instruction was sought, in my view, largely because that would have
    defeated the defence strategy. Further, there was full cross-examination of the
    complainant, the appellant and the investigating officer. There were also a
    number of related instructions to the jury in the charge which served to ensure
    that it was fair.

(b)

Questions about disclosure of abuse to other people

[78]

The
    appellant complains about questions put to the appellant in the police interview
    about the complainant disclosing the abuse to other people, who did not testify.
    The appellant argues that this creates the risk of smuggling in hearsay evidence
    that would otherwise be inadmissible.

[79]

There
    is no merit to this argument. None of the facts put to the appellant in the interview
    about the complainants disclosures to others were ever disputed. Those facts
    were also elicited from the complainant in his testimony in the trial. There is
    no hearsay mischief associated with the jurys review of those facts in the
    statement.

[80]

In
    any event, the trial judge dealt with hearsay dangers in his instructions,  and
    specifically warned the jury not to treat the investigating officers questions
    or comments as evidence, but only the responses and the statements of the
    appellant:

In watching and listening to this tape, be careful to
    distinguish between what Mr. Williamson says and what Detective Cahill is
    saying.

What Detective Cahill says may help you figure out what Mr.
    Williamson says and what his words mean.  But Mr. Williamson can be held
    responsible only for what he actually says, not for what Detective Cahill says.

What Detective Cahill says may provide a context for
    understanding what Mr. Williamson says; but only Mr. Williamsons words,
    as understood in that context, are evidence of what Mr. Williamson has done,
    said or intended to do.

(c)

Questions about the appellants mother noticing blood

[81]

Finally,
    the appellant complains about the investigating officers suggestion, during the
    video recorded interview of the appellant that was left with the jury, that during
    one of the complainants visits to the appellants family home in Ottawa the
    appellants mother noticed blood on the complainants underpants.

[82]

In
    the trial, the complainant testified about a conversation with the appellants
    mother in which she said that she noticed blood on the complainants underwear.
    While the complainant testified about the conversation, he was unable to be
    specific. His testimony dispelled the risk that there would be hearsay misuse
    of the investigating officers assertion.

[83]

But
    for my conclusion on the first issue, I would dismiss the appeal on the second
    issue advanced in oral argument. In light of my conclusion on the first issue,
    it is not necessary for me to address the other issues raised in the
    appellants factum, but not pursued in oral argument.

C.

Disposition

[84]

Accordingly,
    I would allow the appeal, set aside the convictions, and enter a stay of the
    proceedings, pursuant to ss. 11(b) and 24(1) of the
Charter
.

Released: August 19, 2014 (PL)

P.
    Lauwers J.A.

I
    agree M. Rosenberg J.A.

I
    agree J.C. MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Reisman v. Reisman, 2014 ONCA 607

DATE: 20140822

DOCKET: C55669

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

BETWEEN

Linda Joy Reisman

Applicant (Appellant)

and

Howard Jonathan Reisman

Respondent (Respondent in Appeal)

Gary S. Joseph and Serena Lein, for the appellant

Nancy Iadeluca, for the respondent

Heard in writing

On appeal from the order of Justice Darla A. Wilson of
    the Superior Court of Justice, dated May 31, 2012, with reasons reported at
    2012 ONSC 3148, 22 R.F.L. (7th) 423.

ENDORSEMENT

[1]

The parties cannot agree on the wording of paragraph one of the order of
    this court dated February 11, 2014.

[2]

In our reasons we dismissed Mrs. Reismans appeal from the trial
    judgment of Darla Wilson J. except on the issue of spousal support.  The trial
    judge ordered spousal support until the earlier of ten years or the occurrence
    of a change in circumstances justifying a reduction or variation in support.
    The trial judge specified that
the remarriage of the
    applicant or cohabitation for a period of not less than three years shall
    constitute a material change in circumstances
. (Our emphasis.)

[3]

This court removed the ten-year cap on spousal support and ordered that
    spousal support be paid for an indefinite period subject to variation or
    termination on a material change in circumstances.  Our reasons did not deem
    that remarriage or co-habitation for three years constituted a material change
    in circumstances.

[4]

Mr. Reisman now asks that this deeming provision be included in the
    courts order as it was in the trial judges order.  He contends that if it is
    not included, he would be prejudiced as he was not given any opportunity to
    address it during argument.  Mrs. Resiman opposes inclusion of the deeming
    provision.  She contends that the courts order should be consistent with its
    reasons.

[5]

We approve the order drafted by Mrs. Reisman.  It may well be  indeed
    one may say it is likely  that remarriage or three years cohabitation would
    constitute a material change in circumstances warranting a variation or
    termination of spousal support.  However, we do not wish to fetter the
    discretion of a trial judge on a future application to vary or terminate
    support.  We do not agree that Mr. Reisman is prejudiced because the issue was
    not expressly dealt with in oral argument.  Spousal support was obviously in
    dispute and either party was free to make any submissions on it.

[6]

Accordingly we decline to include the deeming provision in paragraph one
    of the courts order.

Alexandra Hoy
    A.C.J.O.

John Laskin J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rogers v. Rogers, 2014 ONCA 590

DATE: 20140820

DOCKET: C56964

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Jennifer Leslie Rogers

Applicant (Respondent)

and

Kevin Lindsay Rogers

Respondent (Appellant)

Ted R. Laan, for the respondent (appellant)

Laura E. Oliver, for the applicant (respondent)

Heard and released orally:  August 11, 2014

On appeal from the orders of Justice Snowie of the Superior
    Court of Justice, dated March 28, 2013 and April 23, 2013.

ENDORSEMENT

Issue #1  The Excluded Property Issue

[1]

This argument on this issue arises primarily, if not exclusively, from
    the trial judges findings of fact.  Those findings were very much influenced
    by the strong credibility findings made by the trial judge against the
    appellant, his witnesses and the documents those witnesses relied on in
    advancing their claim.  The trial judge gave reasons for her findings.  She
    also, at para. 19, identified the three significant factual questions to be
    addressed on this issue.

[2]

Deference sounds the keynote in this courts review of the trial judges
    findings of fact.  In our view, her credibility assessment and the findings of
    fact that flowed primarily from that assessment are supported by the record and
    her reasons reveal no misapprehension of the evidence.  We cannot say that her
    assessment is unreasonable.  Consequently, we cannot interfere with that
    finding.

[3]

In a related submission, counsel argued that the trial judge misapplied
    the test for tracing by requiring that the asset in issue be kept separate from
    other assets as a precondition to tracing.  We do not agree that the trial
    judge imposed that requirement.  The trial judge simply found on the totality
    of the evidence that the appellant could not trace the excluded assets into an
    asset he owned as of the date of separation.

Issue #2  The Value of the Shares

[4]

This was also a fact-driven issue.  The trial judge was entitled to reject
    the evidence of the appellants expert.  She gave reasons for doing so and, in
    our view, those reasons are not unreasonable or unsupported by the evidence.  The
    trial judge, importantly, also relied on certain correspondence from the
    appellant to his wife (Exhibit 15).  That correspondence was inconsistent with
    the evidence advanced at trial by the appellant and inconsistent with the premise
    of the appellants expert testimony.

[5]

We would not interfere with the trial judges assessment of the expert
    evidence.  Consequently, there is no basis to interfere with her finding as to
    the value of the shares at the time of marriage.

[6]

The appeal is dismissed.

[7]

Counsel have very helpfully agreed that if the appeal were to be
    dismissed, as we have concluded it must be, that an order in terms of the draft
    order submitted by counsel for the respondent should issue.  We so order.

[8]

The respondent is entitled to costs in the amount of $11,000, inclusive
    of disbursements and relevant taxes.

Doherty J.A.

John Laskin J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sistem Mühendislik A.S. v. Kyrgyz Republic, 2014
    ONCA 576

DATE: 20140807

DOCKET: M43792 (C58711)

Juriansz J.A. (In Chambers)

BETWEEN

Sistem
    Mühendislik Inșaat Sanayi ve Ticaret Anomic

Sirketi

Respondent

and

Kyrgyz Republic and
Kyrgyzaltyn JSC

Appellant, Kyrgyzaltyn JSC

J.B. Casey, for the appellant

S. Frankel, for the respondent

Heard: July 31, 2014

On motion regarding stay pending appeal.

Juriansz J.A.:

[1]

This dispute arises out of the enforcement of a foreign arbitral award.
    On January 5, 2011, Justice Echlin of the Superior Court ordered the Kyrgyz
    Republic (the Republic) to pay Sistem Mühendislik Inșaat Sanayi Ve Ticaret
    Anomic Sirketi (Sistem) an amount in Canadian currency sufficient to purchase
    US$9,147,470 to satisfy an award of the International Center for Settlement of
    Investment Disputes, an organ of the World Bank. Sistem obtained a writ of
    seizure and sale issued February 11, 2011 in respect of the property of the
    Republic.

[2]

Kyrgyzaltyn JSC (the Company) is an entity that is wholly owned by the
    Republic. The Company holds shares in Centerra Gold, a Canadian public
    corporation with its head office in Toronto. Centerra Gold resisted Sistem
    enforcement initiatives by taking the position that the Republic was not the
    owner of any of its shares and that it was the Company that was the registered
    and beneficial owner of some of its shares. Sistem obtained an order adding the
    Company as a party respondent and also obtained an interim order and Mareva
    injunction that has resulted in Centerra Gold holding in trust more than $11
    million in dividend monies to the credit of Sistems proceeding.

[3]

That is the background.

[4]

The order under appeal, that of Thorburn J. dated April 15, 2014,
    declared that the Republic has an equitable interest in the Centerra Gold
    shares issued in the name of the Company and ordered that the Sheriff could
    seize monies held in trust by Centerra Gold to satisfy the award.

[5]

In the motion before me, the Company seeks a declaration that the
    Thorburn order is subject to the automatic stay provided by rule 63.01(1), and
    in the alternative seeks an order staying the order.

Is there an automatic stay?

[6]

Rule 63.01(1) provides as follows:

The delivery of a notice of appeal from an
    interlocutory or final orders stays, until the disposition of the appeal, any
    provision of the order for the payment of money, except a provision that awards
    support or enforces a support order.

[7]

In submitting that the order is subject to the automatic stay, counsel
    for the Company places reliance on
Debora v. Debora
, [2005] O.J. No.
    6378, a decision of MacFarland J.A. in chambers. The order under appeal in that
    case declared the wife to be the owner of certain monies the husband had
    removed from the bank and ordered the husband to repay the monies to the wife.
    Counsel for the Company submits that the order in this case is analogous: the
    order declared that the Republic was the owner of the Centerra Gold shares and
    ordered that the Sheriff could seize them and their proceeds.

[8]

In my view the
Debora
case is very different. In
Debora
,
    MacFarland J.A. said I am of the view that the term of the judgment requiring
    the husband to repay the funds is a term requiring the payment of money
    referenced in the Rules. There is no order of repayment in this case. The
    only order that requires the payment of any money is the order of Echlin J.,
    which ordered the Republic to pay money to Sistem. Echlin J.s order was not
    appealed. The order under appeal does not order the Company to pay or repay
    any monies to anyone.

[9]

I conclude that the order under appeal is not automatically stayed.

Should a stay be imposed?

[10]

It
    is conceded that the appeal raises a serious issue to be decided.

[11]

If
    the order is not stayed the Company will clearly suffer irreparable harm.
    Sistem has no business and no assets in Canada. If the Company is successful on
    appeal it will be unable to recover any monies that the Sheriff pays out to
    Sistem.

[12]

On
    the other hand, if the order is stayed, Sistem faces harm. There is the
    prospect that other international arbitration creditors will also seek to
    enforce their awards against the Republic in Canada as Sistem has done. Sistem
    submits it will be prejudiced if any monies seized by the Sheriff must be
    shared proportionately among several execution creditors.

[13]

Counsel
    for the Company responds that the prospect of the proportionate sharing of
    execution monies is not legally cognizable harm. That is, he submits, because proportionate
    sharing of the monies obtained by the sheriff among execution creditors is part
    of the public policy and law of the province. He submits that any negative
    consequences to Sistem that result from the implementation of the law cannot
    constitute legally cognizable harm.

[14]

The
    law in question, s. 4 of the
Creditors Relief Act
, S.O. 2010, C. 16,
    provides that monies received by the sheriff shall be shared proportionately
    among those execution creditors whose executions are filed with the sheriff at
    the time the sheriff received the monies or
within a one-month period
after the date the sheriff receives the monies. At the time of the order under
    appeal and at the present, Sistem is the only execution creditor of the
    Republic. From the information provided to the court, I gather it is unlikely
    that there will be any other judgment creditor who will file an execution with
    the sheriff within a one-month period should the sheriff execute the writ of
    seizure now. I am satisfied that the harm Sistem faces if the order is not
    stayed is legally cognizable.

[15]

I
    conclude that the balance of convenience in this case would be best served by
    staying the order under appeal on the term that the company file a letter of
    credit in the amount of the outstanding judgment against the Republic. Should
    the company fail to file the letter of credit in 15 days of this decision,
    Sistem may proceed to enforce the order under appeal.

[16]

Costs
    of the motion are reserved to the panel hearing the appeal.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Strudwick v.
    Applied Consumer & Clinical Evaluations Inc., 2014 ONCA 588

DATE: 20140815

DOCKET: C58588

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Vicky Karen Strudwick

Plaintiff (Respondent in Appeal)

and

Applied Consumer & Clinical Evaluations Inc.

Defendant (Appellant)

Peter M. Callahan, for the defendant (appellant)

C. Du Vernet and Carlin McGoogan, for the plaintiff (respondent)

Heard:  August 14, 2014

On appeal from the order of Justice Spence of the Superior
    Court of Justice, dated March 10, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The appeal turns on whether the motion judges finding that the conduct
    of the defendant reveal a litigant who has no real interest in going to trial
    but simply wishes to delay for as long as possible can be set aside as
    unreasonable.

[2]

In our view, the finding is justified on the record.  Counsel does not
    take issue with the motion judges characterization of the specific complaints
    raised on the motion about the pleadings as an exercise in clutching at trivialities.
    In our view, that characterization speaks volumes about the overall conduct of
    the defence.

[3]

The finding of the motion judge was not unreasonable.  That finding was
    central to his refusal to set aside the noting in default.  We not interfere
    with his order.

[4]

The appeal is dismissed.

[5]

Costs are awarded on a partial indemnity basis fixed at $8,000,
    inclusive of taxes and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION: Sutton Group-All Pro Realty Inc. v. Kim, 2014 ONCA
    583

DATE:  20140814

DOCKET: C58470

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Sutton Group-All Pro Realty Inc.

Plaintiff (Respondent)

and

Yevgeniy Kim

Defendant (Appellant)

Michael J. Panacci, for the defendant (appellant)

Howard L. Shankman, for the plaintiff (respondent)

Heard:  August 11, 2014

On appeal from the judgment of Justice Mew of the Superior
    Court of Justice, dated February 26, 2014.

APPEAL BOOK ENDORSEMENT

[1]

This case turns on the expanded fact-finding powers available on a
    summary judgment motion under the revised Rule 20.  Having regard to the
    language of the rule as interpreted in
Hryniak v. Mauldin
, [2014]
    S.C.J. No. 7, we cannot say that the motion judge erred in making the findings
    necessary to determine the claim.

[2]

In our view, the primary finding in dispute (whether the broker showed
    the property to the purchaser) was a purely factual one attracting the strong
    deference referred to in para. 81 of
Hryniak
.

[3]

The appeal is dismissed.  Costs in the amount of $5,790.00, including
    taxes and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION:
Teskey v. Canada (Attorney General), 2014 ONCA 612

DATE: 20140826

DOCKET: C57588

Blair, Pepall and Hourigan JJ.A.

BETWEEN

Bryan Teskey

Applicant (Appellant)

and

Attorney General of Canada

Respondent (Respondent in Appeal)

Bryan Teskey, in person

J. Sanderson Graham and David Aaron, for the respondent

Heard and released orally: August 22, 2014

On appeal from the order of Regional Chief Judge C.T.
    Hackland of the Superior Court of Justice, dated August 9, 2013.

ENDORSEMENT

[1]

Mr. Teskey is a Roman Catholic. He objects to Canadas participation in
    the development of a Commonwealth consensus assenting to changes proposed by
    the Government of the United Kingdom in the royal succession rules.

[2]

The consensus was forged at a meeting of the First Ministers of 16
    Commonwealth countries that recognize the Queen as their head of state in
    Perth, Australia in 2011 (the Perth Agreement). The United Kingdom Government
    introduced a Bill to effect the changes and Canada formally provided its assent
    in the form of legislation that has been passed but not yet proclaimed in
    force.

[3]

The changes to the succession rules abolish the system of male
    preference primogeniture and remove the provision that anyone who marries a
    Roman Catholic is ineligible to succeed to the monarchy. However, they do not
    go far enough, in Mr. Teskeys view, because they continue to preclude any
    person who is a Roman Catholic from succeeding to the throne. This prohibition
    is discriminatory and contravenes his rights and the rights of other Canadian
    Roman Catholics, under s. 15 of the
Canadian Charter of Rights and Freedoms
,
    he submits.

[4]

Mr. Teskey therefore commenced an application seeking various
    declaratory relief, including:

a)

that
The Canada Act
, 1982, prevents Canada from consenting to
    the application in Canada of legislation passed by the Parliament of the United
    Kingdom;

b)

that changes to the succession to the Crown of Canada require
    substantive Canadian legislation;

c)

that the Government of Canada lacked the legal capacity of consent to
    the Perth Agreement;

d)

that all legislative provisions or rules which prohibit Catholics from
    ascending to the Crown of Canada are of no force and effect; and

e)

that the United Kingdoms
Succession to the Crown Bill
violates
    s. 15 of the
Charter
.

[5]

On August 9, 2013, Regional Senior Justice Hackland dismissed the
    application: 2013 ONSC 5046. He did so on two grounds: (1) that the application
    did not raise a justiciable issue; and (2) that the appellant did not have
    standing to bring the application. He relied heavily on the decision of Rouleau
    J. (as he then was) in
ODonohue v. Canada
, [2003] O.J.  No. 2764
    (Ont. S.C.), which was affirmed by this Court: [2005] O.J. No. 965. In
ODonohue
,
    the same succession rule was challenged on the basis that it was discriminatory
    and therefore violated s. 15. The application there was dismissed on the same
    two bases, namely, justiciability and standing.

[6]

We agree with Hackland R.S.J. that Mr. Teskeys application does not
    raise justiciable issues and that Mr. Teskey lacked standing to bring the
    application. The rules of succession are a part of the fabric of the
    constitution of Canada and incorporated into it and therefore cannot be trumped
    or amended by the
Charter
, and Mr. Teskey does not have any personal interest
    in the issue raised (other than being a member of the Roman Catholic faith) and
    does not meet the test for public interest standing.

[7]

In spite of Mr. Teskeys submissions, we are not persuaded that the
    Crown was deemed to have admitted that he had standing because of a failure to
    respond to a Notice to Admit.

[8]

The appeal is therefore dismissed for the reasons articulated by
    Hackland R.S.J., buttressed as they are by the decision of the Superior Court
    and this Court in
ODonohue
. While leave to appeal costs is granted,
    the appeal as to costs is also dismissed. Costs of the appeal to the respondent
    fixed in the amount of $10,000 all inclusive.

R.A. Blair J.A.

S.E. Pepall J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Timleck v.
    Beltrano, 2014 ONCA 585

DATE: 20140814

DOCKET: M44028

Pardu J.A. (In Chambers)

BETWEEN

April Timleck

Appellant/Moving Party

and

Robert Beltrano and Kally Beltrano

Respondents/Responding Parties

Susan W. Garfin, for the moving party

Robert Beltrano, appearing in person

Kally Beltrano, appearing in person

Heard: August 5, 2014

On motion for directions and on motions for extending
    time for the appeal.

ENDORSEMENT

[1]

The appellant mother moves for directions regarding the conduct of this
    appeal, as well as for a third order extending the time for this appeal, and an
    order extending the time to appeal from two other orders made between the
    parties, one in the Superior Court of Justice on December 5, 2013, and the
    other in the Divisional Court on September 20, 2013.

[2]

There is a lengthy history to this matter. The parties were married in
    1986 and separated in 1991. There were two children of the marriage, born in
    1987 and 1988.

[3]

A consent order in the Ontario Court (Provincial Division) in 1993 fixed
    the terms of access to the two children, and required the father to pay child
    support of $125 per month per child. There was no provision for spousal
    support.

[4]

Some twelve years later, the mother claimed spousal support and arrears
    of child support, alleging that the father had concealed his income and ought
    to have paid more child support. The father responded with a claim for child
    support for his son Andrew from the mother for the time that Andrew lived with
    him.

[5]

On April 27, 2012, the trial judge dismissed the mothers claim and
    found in favour of the father. After a nine day trial, he found that the fathers
    income was as stated, and that no income had been concealed. He found that the
    father had for many years been unable to work due to illness, and had not had
    the ability to pay spousal support. The trial judge also rejected the mothers
    contention that the father had misappropriated the sons own earnings during
    the time Andrew lived with him. The mother had argued that the amount
    misappropriated should be set off against her obligation to pay support for her
    son. The trial judge ordered the mother to pay child support for the time
    Andrew lived with his father in the sum of $12,488 and ordered the mother to
    reimburse the father for overpayment of child support in the sum of $15,930. He
    granted costs to the father in the sum of $45,000.

[6]

The mother filed a Notice of Appeal on May 30, 2012.

[7]

The mother alleges that the father deliberately tricked her when he
    served her with the Respondents Certificate Respecting Evidence on June 8,
    2012. In preparation for the appeal, the mother had ordered partial transcripts
    of the trial. She claims that when the father served her with the Respondents
    Certificate wherein he requested the entire trial transcript  he faxed her
    the reverse side of the document so that she only received blank pages, and
    that consequently she did not receive notice of his request for the complete
    transcripts. She alleges that she had no reason to believe that partial
    transcripts of the trial she had ordered would not suffice, and that she has
    been unable to perfect her appeal because she did not know that the complete transcripts
    were required. The father denies engaging in any such deceptive practice.

[8]

On October 17, 2012 the mothers appeal was dismissed for delay by the Registrar,
    with costs to the father fixed at $750.

[9]

On November 15, 2012 the appeal was restored pursuant to the order of
    Weiler J.A. The time to perfect the appeal was extended to January 30, 2013.
    During the course of her motion to set aside the dismissal of the appeal, the
    mother indicated that she wished to bring a motion before the trial judge to
    set aside the trial judgment. She alleged that the father had failed to make
    full disclosure at trial and had committed a fraud on the court. The appeal
    court endorsement notes, The applicant advises that she wishes to bring a
    motion before Paisley J. to set aside the trial judgment and the earliest such
    a motion could be heard is December 11, 2012. If she is successful at that time
    she would not need to pursue this appeal.

[10]

The
    mother moved to have the trial judgment set aside on the grounds of fraud,
    based on rule 59.06 of the
Rules of Civil Procedure
. On January 8,
    2013 the parties appeared on the motion before the trial judge who gave them
    procedural directions and adjourned the matter to January 15, 2013.

[11]

On
    January 8, 2013, the fathers counsel wrote to counsel for the mother,
    confirming that the entire transcript was required for both the motion to set
    aside the trial judgment and the appeal. This letter specifically notes that
    the Respondents Certificate Respecting Evidence had requested the complete
    transcript. Whatever the origin of the miscommunication regarding the Respondents
    Certificate Respecting Evidence, this letter makes the fathers position clear.

[12]

On
    February 5, 2013, the trial judge ordered the mother to file the complete
    transcripts of the trial, including the submissions of counsel, for use on the
    motion, factums as previously directed, and to ensure that the endorsement
    record was complete. He indicated that the motion could not be heard on its
    merits as it was apparent that relevant portions of the transcripts of the
    trial have not been ordered. As a result he adjourned the mothers motion and
    ordered costs of $5000 payable by the mother in favour of the father.

[13]

On
    February 21, 2013 Sharpe J.A. made an order on consent extending the time to
    appeal from the original judgment of April 27, 2012 to 50 days following the
    determination of the rule 59.06 motion before the trial judge.

[14]

On
    September 20, 2013, Aston J. of the Divisional Court dismissed the mothers
    motion for leave to appeal from the order of February 5, 2013. He indicated
    that the trial judges reasons for making the order were compelling. He ordered
    the mother to pay further costs fixed at $5000.00.

[15]

On
    December 5, 2013, the parties appeared again before the trial judge on the rule
    59.06 motion. The mother had still not obtained the transcripts she had been
    ordered to obtain. She asked the motion judge to stay her own motion to set
    aside the trial judgment. In the result, the trial judge refused her request
    for a stay, and instead dismissed the motion to set aside the trial judgment
    for want of prosecution. He ordered the costs of February 5, 2013, payable
    forthwith, and a further sum of $500 for the costs of December 5, 2013.

[16]

The
    appellant took no steps to appeal either the order of the Divisional Court or
    the trial judges order of December 5, 2013.

[17]

On
    July 3, 2014 the Registrar of the Court of Appeal notified the mother that her
    appeal would be dismissed for delay if not perfected by July 17, 2014.

[18]

This
    motion for an extension of time to perfect the appeal from the original trial
    judgment; to extend the time to appeal from the Divisional Court order, and the
    order of December 5, 2013; and for directions as to the conduct of the appeal
    was served on July 14, 2014.

[19]

According
    to the order of this court of February 21, 2013 the appeal from the original
    trial judgment ought to have been perfected within 50 days of the December 5,
    2013 order, or by January 25, 2014. The mother has not adequately explained why
    she failed to perfect her appeal by that time. She has known, at the very least
    since January 8, 2013, that the father required transcripts of the entire trial
    for the purposes of the appeal. She still has not ordered the transcripts of the
    trial for use on the appeal.

[20]

She
    did nothing until prompted by the Registrars notice of pending dismissal for
    delay. Given that this appeal was already dismissed once for delay, and that
    two further extensions of time to perfect have previously been given, it was
    incumbent upon the mother to make all reasonable efforts to comply with the
    last deadline, but she did nothing for about five months.

[21]

The
    mother initially delayed perfecting this appeal on the ground that she was
    pursuing a motion to set aside the trial judgment, but then asked that her own
    motion for that relief be stayed. (See paragraph 15 of respondents affidavit,
    and exhibit at page 43 of respondents record)

[22]

Prior
    to bringing this motion, the mother has not indicated any intention to appeal
    the orders of September 20, 2013 or December 5, 2013. Aston J. heard the motion
    for leave to appeal the procedural order made by the trial judge as a single
    judge sitting in the Divisional Court. Rather than proceeding to the Court of
    Appeal with leave, the appeal of such an order lies to a full panel of the
    Divisional Court by way of motion to set aside or vary. Sections 21(3) and (5)
    of the
Courts of Justice Act
(CJA) state:

21(3) A motion in the Divisional Court shall be heard
    and determined by one judge, unless otherwise provided by the rules of the
    court.

(5) A panel of the Divisional Court may, on motion,
    set aside or vary the decision of a judge who hears and determines a motion.

[23]

Rule
    61.16 (6) provides that motions to set aside or vary made under s. 21(5)
    of the
CJA
shall be made by notice of motion served within four days
    after the order is made.

[24]

The
    order of December 5, 2013 was a final order. It appears that the proposed
    appeal from that order relates only to the costs ordered. Leave to bring such
    an appeal is required by s. 133(b) of the
CJA
. Rule 61.03.1(3)
    requires that notice of a motion for leave to appeal be served within 15 days
    of the making of the order from which leave to appeal is sought.

[25]

The
    mother has not adequately explained why she has not perfected this appeal
    within the time allowed by the last extension. She has not explained why she
    has not taken timely steps to pursue her proposed appeals from the orders of
    December 5, 2013 or September 20, 2013. There is no evidence that any document
    initiating an appeal has ever been delivered in respect of either of the last
    two orders.

[26]

The
    father has now accumulated numerous costs orders in his favour, with little
    prospect of recovery. I am not satisfied that the justice of the case requires
    a further extension of time to appeal. The trial judges original conclusions
    were based on findings of credibility. I am not satisfied that the entire WSIB
    file upon which the mother now wishes to rely could not have been obtained at
    trial with the exercise of reasonable diligence, and I am not satisfied that it
    would make any difference to the result. The evidence submitted to me on this
    motion, though voluminous, does not establish with precision an arguable case
    that the conclusions drawn by the trial judge were unwarranted or would be
    altered by new evidence.

[27]

Weighing
    in the balance the delays, the previous extensions, the failures to indicate an
    intention to appeal, the absence of any explanation for the delays, and the
    justice of the case, I am not persuaded that any further extension of time
    should be granted, and the motion is dismissed.

[28]

Following
    argument of this motion, counsel for the mother twice delivered a letter to me
    making further submissions. This was improper. Rule 1.09 provides that when a
    proceeding is pending before the court, no party to the proceeding and no
    partys lawyer shall communicate about the proceeding with a judge, directly or
    indirectly unless all the parties consent in advance to the out of court
    communication or the court directs otherwise. I have disregarded the further
    submissions in coming to my decision in this matter.

[29]

Costs
    should follow the result. Costs to the respondent on the motion fixed at
    $1000.00.

G. Pardu J.A.