CITATION:
Padda v. 2074874
          Ontario Inc., 2011 ONCA 235

DATE: 20110325

DOCKET: C52338

COURT OF APPEAL FOR ONTARIO

Armstrong, Juriansz and Watt JJ.A.

BETWEEN

Faqir Padda

Plaintiff (Respondent)

and

2074874
          Ontario Inc., 1579240 Ontario Inc.

Satnam Khakh
and
Onkar
          Taggar

Defendants (Appellants)

James S.G. Macdonald, for the appellants

William R. Gilmour, for the respondent

Heard & released orally:
March 21, 2011

On appeal from the order of Justice S.S. Seppi of the Superior
          Court of Justice dated June 7, 2010.

ENDORSEMENT

[1]

The issue raised by this appeal is whether the offer to
    settle made by the defendants remained open for acceptance after the court appointed
    a supervisor over the corporate defendants and after the transfer of the
    plaintiffs interest in a shareholder loan.

[2]

In the offer made pursuant to Rule 49, the defendants
    offered to settle the proceeding by paying $1.8 million to the plaintiff.  Other terms of the offer provided that the
    plaintiff would transfer his shares in the corporation to the defendants and that
    the parties would exchange mutual releases.  The offer did not expressly refer to the plaintiffs claim for repayment
    of the shareholder loan of some $600,000.

[3]

The supervision order had a stay provision.  Paragraph 18 of the order provided that all
    rights and remedies against the corporations or affecting the property are
    hereby stayed and suspended except with the written consent of the supervisor
    or leave of the court.  The plaintiffs
    right to accept the settlement offer was a right or remedy against the
    corporations and so, in our view, was subject to the stay provision of the
    supervision order.

[4]

In addition, fresh evidence, which we would admit,
    establishes that the plaintiff transferred his interest in the shareholder loan
    to his daughter by way of gift the day before he purported to accept the offer
    of settlement.  As he claimed repayment
    of that loan in the proceeding, Rule 11 applied to his transfer of his interest
    in that loan.  Thus, the proceeding was
    doubly stayed, at least in respect of the claim for repayment of the
    shareholder loan.  While the offer to
    settle was never withdrawn, its acceptance constituted a step in the
    proceeding.  Rule 49.07 reflects this.  For the offer to settle to be effective leave
    of the court was necessary.

[5]

Finally, the motion to enforce the settlement was
    another step in the proceeding.  It, too,
    was also taken without obtaining the leave of the court.

[6]

In the result, the appeal is allowed and the order of
    the motion judge is set aside.  The
    appellants shall have their costs of the appeal and the motion in this court fixed
    in the amount of $17,500 inclusive of disbursements and applicable taxes, as
    well as the costs of the motion below in the amount of $2,500 inclusive of
    disbursement and applicable taxes.

R.P. Armstrong J.A.

R.G. Juriansz J.A.

David Watt J.A.


CITATION: Pierre v. McRae, 2011
          ONCA 187

DATE: 20110310

DOCKET: C51589 and C51590

COURT OF APPEAL FOR ONTARIO

Weiler, Laskin and Sharpe JJ.A.

BETWEEN

Elizabeth Pierre and Marlene Pierre

Applicants (Appellants)

and

Dr. Shelagh McRae, Coroner

Respondent (Respondent)

AND BETWEEN

Nishnawbe
          Aski Nation, Rhoda King and Berenson King

Applicants (Appellants)

and

Dr. David
          Eden, Coroner

Respondent (Respondent)

Jonathan Rudin, for the appellants, Elizabeth Pierre, Marlene
          Pierre, Rhoda King and Berenson King

Julian N. Falconer and Julian K. Roy, for the appellant
          Nishnawbe Aski Nation

Kim Twohig and Michael E. Burke, for the respondents

Suzan E. Fraser, for the intervener Provincial
          Advocate for Children and Youth

Heard: September 21, 2010

On appeal from the orders of the
          Divisional Court (Wilson, Lederman and Swinton JJ.), dated July 22, 2009,
          with reasons by Swinton J. and reported at (2009), 259 O.A.C. 1.

Laskin J.A.:

A.

INTRODUCTION

[1]

In late October 2007, Jacy Pierre, a 27-year-old First
    Nations person, died of a drug overdose in the Thunder Bay District Jail.  At about the same time, Reggie Bushie, a
    15-year-old First Nations youth, drowned in the McIntyre River near Thunder
    Bay.  Inquests into their deaths were
    ordered.

[2]

Before each inquest
began,
the
    families of the deceased raised concerns about whether the jury roll from which coroners juries are
    selected was representative.  The
    families produced compelling affidavit evidence showing that in the
    neighbouring District of Kenora the jury roll had excluded nearly all First
    Nations persons living on a reserve.  Each family

and
    on the Bushie inquest, Nishnawbe Aski Nation (NAN)
[1]

asked the presiding
    coroner to issue a summons to the Director of Court Operations so they could
    find out how the jury roll in the District of Thunder Bay was established.  Both coroners refused to issue a summons.

[3]

The Pierre family and NAN applied for judicial review
    of each coroners decision and a stay of the inquests pending the hearing of
    their applications.  Karakatsanis J.
    refused to stay the Pierre inquest but granted a stay of the Bushie
    inquest.  The Pierre inquest was
    completed in February 2009; the Bushie inquest has yet to be held.  In July 2009, the Divisional Court dismissed
    the applications for judicial review.

[4]

In January 2010, leave to appeal was granted.  The appeals raise three issues.  The critical first issue is whether a coroner
    has jurisdiction to inquire into the representativeness of a jury roll.  Assuming a coroner has this jurisdiction, the
    second issue is whether the families of the deceased and NAN have put forward
    sufficient evidence to warrant the issuance of a summons to the Director of
    Court Operations. Assuming a summons is warranted, the final issue is whether
    this court should order a second inquest into the death of Jacy Pierre.

B.

BACKGROUND

(a)
The inquest into the death of Jacy Pierre

[5]

Jacy
    Pierre was a member of the Fort William First Nation.  In late October 2007, he was being held on
    remand at the Thunder Bay District Jail.  He died there after obtaining and ingesting powdered methadone.

[6]

The
    coroner ordered an inquest into Jacy Pierres death under s. 10(4) of the
Coroners Act
, R.S.O. 1990, c. C 37,
    which directs a coroner to hold an inquest whenever a person dies while an
    inmate at a correctional institution.  Elizabeth and Marlene Pierre (the Pierre family) are the mother and
    grandmother of Jacy Pierre.  They were
    granted standing at the inquest under s. 41(1) of the
Coroners Act
.

[7]

Weeks
    before the inquest started, the Pierre family told the presiding coroner Dr.
Shelagh
    McRae that they had concerns and questions about the jury roll in the District
    of Thunder Bay.  They asked for
    information confirming that First Nations individuals living on reserves were
    included on the jury roll.  The coroners
    counsel told them to get this information from the Attorney Generals office.

[8]

The Pierre family then wrote to a representative
    of the Attorney Generals office, Robert Gordon, the Director of Court
    Operations for the North West Region.  The family asked Mr. Gordon four questions about the jury roll in
    Thunder Bay:

i.

What
    efforts were made by the Sheriff to select names of eligible persons for the
    jury roll that reside on Indian reserves in the Thunder Bay district?

ii.

What
    records were used by the Sheriff to obtain the names of the residents of the
    Indian reserves that exist in the Thunder Bay district?

iii.

How
    many jury questionnaires/notices were sent to First Nation on-reserve
    residents?

iv.

How
    many First Nation individuals from Indian reserves are on the current jury
    roll?

Instead of
    answering these questions, Mr. Gordon told the Pierre family to raise any
    questions or concerns about the Coroners jury with the Coroner or [her] counsel.

[9]

Faced
    with the unwillingness of either the office of the coroner or the Attorney
    General to answer their concerns, the Pierre family asked Dr. McRae to issue a
    summons to Mr. Gordon to attend the inquest before the jury was sworn and speak
    to the validity of the jury roll.  Dr.
    McRae refused to issue a summons.  She said
    that Mr. Gordons evidence was not vital to the purpose of the inquest.

[10]

The
    Pierre family sought to judicially review Dr. McRaes refusal to issue a
    summons and a stay of the inquest until their judicial review application was
    decided.  Although the motion judge found
    that the application raised a serious issue, she nonetheless dismissed the
    motion for a stay because the inquest had already begun by the time the motion
    was argued.

[11]

After
    their stay was denied, the Pierre family withdrew from the inquest and did not
    participate further.  They cited as a
    reason for their withdrawal the failure of the coroner to ensure that
    Aboriginal persons would be represented on the jury.  The inquest began on February 23, 2009 and
    was completed on February 25, 2009.

(b)
The inquest into the death of Reggie Bushie

[12]

Reggie Bushie was from the remote fly-in community of
    Poplar Hill.  He went to Thunder Bay for
    high school because his own community did not have a high school.  While in Thunder Bay, he lived with a family.

[13]

On October 26, 2007, Reggie Bushie went missing.  On November 1, 2007, his body was found in
    the McIntyre River, where he had apparently drowned.  The coroner ordered an inquest into Reggie
    Bushies death under s. 20 of the
Coroners
    Act
, which authorizes the holding of an inquest where doing so would serve
    the public interest.  The inquest will
    examine the circumstances surrounding Reggie Bushies death and how First
    Nations youths are affected when going to school far away from their home
    communities.

[14]

Rhoda and Berenson King (the King family) are the
    mother and step-father of Reggie Bushie.  In December 2008, they wrote to the coroners counsel and questioned whether
    the
Juries Act
,
R.S.O. 1990, c. J.3
had been complied
    with.  The coroners counsel replied,
    expressing her belief that the practices in the District of Thunder Bay
    complied with the
Juries Act
, and her
    confidence that the inquest jury would be representative and impartial.

[15]

In early January 2009, the King family asked the
    coroners counsel to clarify the basis of her belief.  The response was that the coroners counsel
    had obtained information about the jury roll from Mr. Gordon.  The King family was told to contact Mr.
    Gordon directly for any further information about compliance issues.  They did so, but Mr. Gordon refused to
    provide any further information without a summons.

[16]

The King family, supported by NAN, then brought a
    motion asking the coroner, Dr. David Eden, to issue a summons for Mr.
    Gordon.  They wanted Mr. Gordon to testify
    about the preparation of the jury roll.  In support of their motion, they filed an affidavit from a supervisor of
    court operations for the Ministry of the Attorney General in the district of
    Kenora.  The affidavit showed that the
    2008 district of Kenora jury roll was unrepresentative because it had almost
    wholly excluded First Nations persons living on reserves.

[17]

Despite this evidence, Dr. Eden denied the motion, and
    refused to issue a summons.  In his
    ruling, he held that the King family and NAN had not established a reasonably
    held concern about the representativeness and impartiality of the jury.  He also said, I do not believe that a jury
    roll from another judicial district at another time is adequately probative to
    impugn the 2009 Thunder Bay jury roll.

[18]

NAN applied for judicial review of Dr. Edens refusal
    to issue a summons to Mr. Gordon and for a stay pending the determination of
    its application.  On May 29, 2009
    Karakatsanis J. ordered a stay of the inquest proceedings.

(c)       The
    decision of the Divisional Court

[19]

The Divisional Court unanimously held that neither
    coroner erred in refusing to issue a summons to Mr. Gordon.  The court gave three reasons:  first, the coroner had no statutory power to
    review the process for the selection of the jury roll; second, the coroner
    would have had no authority to remedy any problems with the jury roll, should
    they be present; and third, each coroners decision that the evidence
    submitted by the applicants was insufficient to warrant further inquiry was
    deserving of deference.

C.

ANALYSIS

[20]

To
    put the issues in context, I will review briefly the function of a coroners
    inquest, the process for selecting a coroners jury and the importance of a
    representative jury, which lies at the heart of these appeals.

(a)

The function of a coroners inquest

[21]

A
    coroners inquest has two functions:  a
    narrow investigative function and a broader public interest function.  The inquests investigative function is to
    inquire into the circumstances of the death, including answering the five questions
    set out in s. 31(1) of the
Coroners Act
 who the deceased was, and how, when, where and by what means the deceased
    came to his or her death.  The inquests
    public interest function, which is found in s. 31(3) of the Act, is to make
    recommendations directed at avoiding a death in similar circumstances or on any
    matter arising out of the inquest.

[22]

Although
    an inquest jury cannot make findings of legal responsibility, recent case law
    has emphasized the importance of the inquests public interest function in
    exposing systemic failings that cause death.  In
People First of Ontario v.
    Porter, Regional Coroner Niagara
(1991), 5 O.R. (3d) 609 (Div. Ct.),
    reversed on other grounds (1992), 6 O.R. (3d) 289 (C.A.), the Divisional Court
    wrote about this public interest function:

A
    separate and wider function is becoming increasingly significant; the
    vindication of the public interest in the prevention of death by the public
    exposure of conditions that threaten life.  The separate role of the jury in recommending systemic changes to
    prevent death has become more and more important.  The social and preventive function of the
    inquest which focuses on the public interest has become, in some cases, just as
    important as the distinctly separate function of investigating the individual
    facts of individual deaths and the personal roles of individuals involved in
    the death.

(b)

The process for selecting a coroners jury

[23]

Every
    coroners inquest has a jury of five people.  The procedures for selecting a jury are found in the
Juries Act
and the
Coroners Act
, which incorporates by reference specific provisions
    of the
Juries Act
.  In a nutshell, the coroners jury is chosen
    from a list of jurors taken from a jury roll.

[24]

Under
    the
Juries Act
, the sheriff in a
    county or district prepares a jury roll each year.  The jury roll consists of a randomly selected
    group of Canadian citizens resident in the province, who have been sent and who
    have returned a jury service notice.  The
    persons randomly selected to receive jury service notices are taken from
    municipal assessment lists.

[25]

The
    names of First Nations persons living on reserves, however, are not found on
    municipal assessment lists.  Thus, the
Juries Act
prescribes a separate
    procedure for ensuring that First Nations persons on reserves are included on a
    jury roll.  Section 6(8) of the
Juries Act
states:

In
    the selecting of persons for entry in the jury roll in a county or district in
    which an Indian reserve is situate, the sheriff shall select names of eligible
    persons inhabiting the reserve in the same manner as if the reserve were a
    municipality and, for the purpose, the sheriff may obtain the names of
    inhabitants of the reserve from
any
    record available
. [Emphasis added.]

For First
    Nations persons, compliance with s. 6(8) is crucial if they are to be included
    in a jury roll and therefore eligible to serve on an inquest jury.

[26]

Under
    s. 34 of the
Coroners Act
, the
    coroner has the authority to direct the sheriff to provide a list of jurors
    taken from the jury roll.

(1) A coroner may by his or her warrant require the sheriff
    for the area in which an inquest is to be held to provide a list of the names
    of such number of persons as the coroner specifies in the warrant taken from
    the jury roll prepared under the Juries Act.

(2) Upon receipt of the warrant, the sheriff shall
    provide the list containing names of persons in the number specified by the
    coroner, taken from the jury roll prepared under the Juries Act, together with
    their ages, places of residence and occupations.

[27]

Under s. 33(2) of the Act, the coroner directs a
    constable to choose five persons from that list to serve as jurors at an
    inquest:

The coroner shall direct a constable to select from
    the list of names of persons provided under subsection 34(2) five persons who
    in his or her opinion are suitable to serve as jurors at an inquest and the
    constable shall summon them to attend the inquest at the time and place
    appointed

(c)       The
    importance of a representative jury

[28]

To
    function properly, a jury must have two key characteristics:  representativeness and impartiality.  A representative jury is one that corresponds,
    as much as possible, to a cross-section of the larger community.  And a representative jury enhances the
    impartiality of a jury.  In
R. v. Gayle
(2001), 54 O.R. (3d) 36
    (C.A.) at para. 56, Sharpe J.A. discussed the importance of a representative
    jury:

C
anadian law recognizes the importance of a
    representative jury.  The importance of representativeness, along with
    impartiality, was discussed in
R. v. Sherratt
, at p. 525 S.C.R., p. 204
C.C.C.
per LHeureux-Dubé J.: [W]ithout the two
    characteristics of impartiality and representativeness, a jury would be unable
    to perform properly many of the functions that make its existence desirable in
    the first place.  Representativeness was described at p. 525 S.C.R., p.
    204
C.C.C.
as a crucial
    characteristic of juries to which little if any objection can be made.
    Representativeness was also accepted as an important characteristic of the jury
    in
R. v. Bain
, [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481 at pp. 159-60
    S.C.R., p. 530 C.C.C., per Stevenson J.  Gonthier J., dissenting in the
    result but not on this point, stated at
p.
    115 S.C.R.,
p. 494
C.C.C.
that [t]he well-informed observer certainly
    knows that a jury should be impartial, representative and competent.  In
Williams
at p. 500
C.C.C.
, McLachlin J.
    described a representative jury pool as one of the safeguards included in the
    s. 11(d) right to a fair trial and impartial jury.  Securing a
    representative jury enhances impartiality and, as this Court stated in
R. v.
    Church of Scientology of Toronto
(1997), 33 O.R. (3d) 65, 116 C.C.C. (3d) 1
    at p. 119 O.R., p. 61 C.C.C. [t]he representative character of the jury also
    furthers important societal or community interests by instilling confidence in
    the criminal justice system and acting as a check against oppression.

[29]

Of
    course, a party with standing at an inquest has no right to insist on a juror that
    is representative of a particular racial, ethnic or linguistic group.  Nonetheless, representativeness in the
    preparation of a jury roll is important, not only for ensuring a properly
    constituted jury, but also for maintaining the publics confidence in a
    coroners inquest and preserving its integrity.  A coroners power to inquire into the impartiality of an individual
    juror  a power the coroner undoubtedly possesses  cannot remedy the
    unrepresentativeness of a roll from which the jurors are chosen.  The representativeness of a jury roll depends
    on compliance with the
Juries Act
,
    and in the present case, on compliance with s. 6(8) of that Act.

First Issue: Does a coroner have jurisdiction
    to inquire into the representativeness of a jury role?

[30]

This
    is the principal issue on these appeals.  The Divisional Court concluded that a coroner has no jurisdiction to
    inquire into how a jury roll is established and, even if a coroner does have
    this jurisdiction, coroners are powerless to grant a remedy for an
    unrepresentative jury roll.  The Attorney
    General supports the Divisional Courts conclusions and
adds
a third prong to its argument:  both s.
    36 of the
Coroners Act
and s. 44 of
    the
Juries Act
cure any failure to
    comply with any statutory requirement concerning the selection of inquest
    jurors.

[31]

I
    do not accept the Attorney Generals position.  Admittedly, a coroners jurisdiction is derived from the
Coroners Act
and the common law rules of
    natural justice.  And while both s. 34(6)
    of the Act and the rules of natural justice give the coroner jurisdiction to
    exclude a potential juror for partiality, there is no express statutory or
    common law authority entitling a coroner to question the representativeness of
    a jury roll.

[32]

The
    legislatures silence, however, does not automatically mean the coroner lacks
    the power to inquire into the representativeness of a jury roll.  The court must examine the
Coroners Act
to determine whether the
    legislature intended the coroner to have this power by necessary
    implication.  A statutory tribunal, such
    as the office of the coroner, has not only those powers expressly granted by its
    enabling statute, but as well, by implication, all the powers needed to
    accomplish its statutory mandate.  Bastarache
    J. affirmed this proposition in
ATCO Gas
    & Pipelines Ltd. v. Alberta (Energy & Utilities Board)
, [2006] 1
    S.C.R. 140 at para. 51:

The
    powers conferred by an enabling statute are construed to include not only those
    expressly granted but also, by implication, all powers which are practically
    necessary for the accomplishment of the object intended to be served by the
    statutory regime created by the legislature.

[33]

The Supreme Court of Canada recently
    re-affirmed this principle in
R. v.
    Cunningham
, [2010] 1 S.C.R. 331. Rothstein J., writing for a unanimous
    court stated at para. 19 that a doctrine of jurisdiction by necessary implication
    [applies] when determining the powers of a statutory tribunal.

[34]

In
ATCO
, the Supreme Court of Canada
    enumerated the circumstances in which the doctrine of jurisdiction by necessary
    implication may be applied:

i.

when the jurisdiction sought is necessary to accomplish
    the objects of the legislative scheme and is essential to the statutory body
    fulfilling its mandate;

ii.

when the enabling act fails to explicitly grant the
    power to accomplish the legislative objective;

iii.

when the mandate of the statutory body is sufficiently
    broad to suggest a legislative intention to implicitly confer jurisdiction;

iv.

when the jurisdiction sought is not one which the statutory
    body has dealt with through use of expressly granted powers, thereby showing an
    absence of necessity; and

v.

when
the legislature did not
    address its mind to the issue and decide against conferring the power to the statutory
    body.

[35]

Here,
    the first circumstance listed in
ATCO
applies.  Coroners have jurisdiction to
    inquire into the representativeness of a jury roll by necessary implication, in
    order to fulfill their statutory mandate.

[36]

I
    agree with the appellants that this necessarily implied jurisdiction rests both
    in ss. 34(1) and 33(2), and in s. 50(1) of the
Coroners Act
.  That it does
    so is evident from examining the coroners statutory mandate and the purpose of
    these provisions.

[37]

The
Coroners Act
confers on a coroner the
    statutory mandate to preside over an inquest.  This mandate includes the legal duty to arrange for an inquest
    jury.  Sections 34(1) and 33(2) of the
    Act give the coroner the power to satisfy this part of the coroners
    mandate.  Section 34(1) gives the coroner
    the power, by warrant, to require the sheriff to produce a list of potential
    jurors taken from the jury roll prepared under the
Juries Act
.  Section 33(2)
    gives the coroner the power to direct a constable to choose from that list five
    persons suitable to serve as jurors at an inquest.

[38]

The
    coroners mandate to arrange for an inquest jury must necessarily include the
    power to ensure that the jury is lawfully constituted.  A lawfully constituted jury is one that is
    representative and impartial.  To be
    representative and impartial the jurors must initially be chosen from a jury
    roll that complies with the
Juries Act
 in other words, from a jury roll that is representative.  Thus, to fulfill the mandate conferred by the
    Act, a coroner has the necessarily implied jurisdiction to inquire into the
    representativeness of a jury roll from which an inquest jury is chosen.

[39]

Section
    50(1) of the
Coroners Act
give a
    coroner the authority to prevent abuse of an inquests processes:

A coroner may make such orders or give such
    directions at an inquest as the coroner considers proper to prevent abuse of
    its processes.

[40]

A
    coroners jurisdiction to control an inquest to prevent an abuse of process is
    not open ended.  It must be exercised
    within the limits and objects of the
Coroners
    Act
.  Still, it is a broad and
    flexible jurisdiction.  It can be
    exercised to prevent an inquest that is unfair or unjust, or an inquest in
    which the public would lose confidence:  see,
    for example,
Toronto (City) v. C.U.P.E.,
    Local 79
, [2003] 3 S.C.R. 77 at para. 37; and
Booth v. Huxter
(1994), 16 O.R. (3d) 528 (Div. Ct.) per Moldaver J.
    stating at p. 542 that, in circumstances which could undermine the public
    confidence in the administration of justice and the integrity of the process,
    the coroner should be able to act under s. 50(1) [of the
Coroners Act
] to cure the defect.

[41]

An
    inquest into the death of a First Nations person that is adjudicated by a jury
    chosen from a jury roll that excludes First Nations persons on reserves would
    not, in my view, be seen as a fair and just inquest or an inquest in which the
    public would have confidence.  It would
    amount to an abuse of process within s. 50(1) of the Act.

[42]

Again,
    therefore, in order to fulfill the coroners statutory mandate to prevent an
    abuse of process at an inquest, the coroner, by necessary implication, has the
    jurisdiction to inquire into the representativeness of a jury roll.

[43]

That
    brings me to the question of remedy.  Both the Divisional Court and the Attorney General maintain that, even
    if the coroner has jurisdiction to inquire into the representativeness of a
    jury roll and even if, for example, evidence were presented to the coroner
    showing that the jury roll was likely unrepresentative, there is nothing the
    coroner can do about it.

[44]

The
    Divisional Court suggested that the appellants could challenge the jury roll by
    an application under the
Charter
.  In oral argument, the Attorney General
    suggested that the appellants could seek declaratory relief in the Superior
    Court.  Both suggestions are unattractive
    because they would require the appellants to go outside of the inquest.  The question remains, however, whether a
    coroner has the jurisdiction to make an order remedying a juror list drawn from
    an unrepresentative jury roll.

[45]

In
    one sense, as the appellants argue, the question is premature.  All the appellants have asked for is an order
    requiring each coroner to issue a summons to Mr. Gordon.  If the summons is issued, then depending on
    Mr. Gordons evidence, a further remedial order may be unnecessary.

[46]

In
    another sense, however, the question of a remedy is a live question.  To ask the coroner to inquire into the
    representativeness of the jury roll when the coroner can do nothing about an
    unrepresentative roll would delay the inquest with arguably little
    corresponding benefit.

[47]

Yet,
    it seems to me that a coroner does have remedial authority to address concerns
    about an unrepresentative jury roll.  For
    example, suppose the list of jurors the sheriff is required to produce under s.
    34(1) of the
Coroners Act
reflects a
    jury roll that does not comply with s. 6(8) of the
Juries Act
.  In that case,
    the coroner could say that the list has not been taken from a jury roll that
    complies with s. 6(8) and could order the sheriff to produce a list of jurors
    from a proper jury roll.  At least to
    that extent, a remedy is available to rectify an unrepresentative jury roll.

[48]

That
    takes me to the curative provisions of the statutes, s. 36 of the
Coroners Act
and s. 44 of the
Juries Act
on which the Attorney General
    relies:

36.  The
    omission to observe any of the provisions of this Act or the regulations
    respecting the eligibility and selection of jurors is not a ground for
    impeaching or quashing a verdict.

44. (1) The omission to observe any of the
    provisions of this Act respecting the eligibility, selection, balloting and
    distribution of jurors, the preparation of the jury roll or the drafting of panels
    from the jury roll is not a ground for impeaching or quashing a verdict or
    judgment in any action.

44. (2) Subject to sections 32 and 34, a jury panel
    returned by the sheriff for the purposes of this Act shall be deemed to be
    properly selected for the purposes of the service of the jurors in any matter
    or proceeding.
[2]

[49]

The
    Attorney General submits that these provisions entitle a coroner to accept as
    properly selected the list of jurors taken from a jury roll.  In short, these provisions would cure any
    list that is defective because it was drawn from an unrepresentative jury
    roll.

[50]

I
    do not accept this submission.  These
    curative provisions are designed to relieve against minor or technical
    deficiencies, or procedural irregularities in the selection of jurors.  They are not intended to relieve against something
    as fundamental as an unrepresentative jury roll.

[51]

Representativeness
    is a key characteristic of a jury, a characteristic that enhances the
    likelihood of the other key characteristic of a jury, its impartiality.  It is a substantive and not merely a
    technical requirement for the proper functioning of a jury.  Thus, neither s. 44 of the
Juries Act
nor s. 36 of the
Coroners Act
can cure an
    unrepresentative jury roll.  And they certainly
    cannot be used to cure a roll that reflects the systemic discrimination or
    exclusion of First Nations persons.

[52]

The
    Supreme Court of Canadas judgment in
R.
    v. Barrow
, [1987] 2 S.C.R. 694, supports this position.  There, the Supreme Court dealt with the curative
    provisions in the
Criminal Code
relating
    to deficiencies in the jury selection process. Section 598(a), now s. 670(a), read
    as follows:

Judgment
    shall not be stayed or reversed after verdict upon an indictment

(a)
by
reason of any irregularity in the summoning or
    empanelling of the jury

Section 599, now
    s. 671, included language as broad as that of s. 44(1) of the
Juries Act
:

599.
    No omission to observe the directions contained in any Act with respect to the
    qualification, selection, balloting or distribution of jurors, the preparation
    of the jurors book, the selecting of jury lists, or the drafting of panels
    from the jury lists, is a ground for impeaching or quashing a verdict rendered
    in criminal proceedings.

[53]

According
    to the majority in
Barrow
, at paras.
    37-38, [t]he import of these two provisions is that an irregularity of form
    which does not affect the substance of a trial cannot be used to challenge the
    result.  In the case before the court,
    these provisions were of no assistance and did not apply because the omission complained
    of was not an irregularity of form. It [cast] into doubt two of the most basic
    aspects of a fair trial, the impartiality of the jury and the appearance of
    justice.

[54]

Likewise
    in this case, an unrepresentative jury is not an irregularity of form it is a
    matter of substance.  An
    unrepresentative jury roll casts into doubt the publics confidence in the
    impartiality of the jury and the fairness of the inquest.  It compromises the very appearance of
    justice.  The words of Dickson C.J.C. in
Barrow
, at para. 33, are apt:

The
    argument of the Crown in this appeal does not address what may be the most
    important aspect of the case, namely, the appearance of justice.  Even if the two-stage analysis of the
    empanelling process is a legally accurate description of the interplay of the
Criminal Code
and the Nova Scotia
Juries Act
, it leaves out of account the
    effect of the proceedings in this case as they would appear to the average
    citizen

Consistent
    with
Barrow
, neither s. 36 of the
Coroners Act
nor s. 44 of the
Juries Act
can cure a list drawn from a
    jury roll that almost wholly excludes First Nations persons.

[55]

I
    add that, historically, curative provisions such as the ones considered by the
    court in
Barrow
have been construed
    narrowly: see e.g.
R. v. Butler
(1984), 63 C.C.C. (3d) 243 (B.C.C.A.), at p. 261;
R. v. Varga
(1985), 18 C.C.C. (3d) 281 (Ont. C.A.), at pp. 287-288
    and
R. v. Rowbotham
(1988), 41 C.C.C.
    (3d) 1 (Ont. C.A.), at p. 33. This court has also construed s. 44(1) of the
Juries Act
narrowly:
Hrup v. Cipollone
(1994), 19 O.R. (3d)
    715 (C.A.), at pp. 718-719.

[56]

Thus,
    s. 36 of the
Coroners Act
and s. 44
    of the
Juries Act
must be interpreted
    to apply only to technical or procedural irregularities in the eligibility and
    selection of jurors, the preparation of the jury roll and the drafting of
    panels from the jury roll, and not to a requirement as fundamental as the
    representativeness of an inquest jury.  I
    conclude that the coroner has the jurisdiction to inquire into the representativeness
    of the jury roll and to remedy a list drawn from an unrepresentative roll.

Second Issue: Have the appellants put forward
    sufficient evidence to warrant the issuance of a summons?

[57]

Section
    40(1) of the
Coroners Act
give a
    coroner authority to issue a summons:

A coroner may require any person by summons,

(a)
to
give
    evidence on oath or affirmation at an inquest; and

(b)
to
produce
    in evidence at an inquest documents and things specified by the coroner,

relevant
to the
    subject-matter of the inquest and admissible.

[58]

To obtain an order requiring each coroner to issue a
    summons to Mr. Gordon, the appellants must show two things:  first, a nexus between the expected evidence
    of Mr. Gordon and the purpose of the inquest:  see
Reid v. Wigle
(1980), 29
    O.R. (2d) 633 (Div. Ct.); and second, sufficient evidence to justify a further
    inquiry into the alleged lack of representativeness of the jury roll in the
    District of Thunder Bay.

[59]

The appellants meet the first requirement.  The Attorney General accepts that Mr. Gordon was
    the most knowledgeable person within the Ministry to testify about the
    establishment of the jury roll in the District of Thunder Bay.  Moreover, on my view of the coroners
    jurisdiction, an inquiry into the representativeness of the jury roll is
    relevant to the purpose of the inquest.

[60]

The purpose of the inquest  to examine the
    circumstances of the death and make recommendations to avoid similar deaths in
    the future  cannot be satisfied with a jury selected from a jury roll that was
    not established in accordance with the requirements of the
Juries Act
.  With an
    unrepresentative jury roll, the inquest jury cannot be seen to represent  as
    far as possible and appropriate  the larger community, and its impartiality is
    undermined.

[61]

In short, without the two characteristics of
    representativeness and the impartiality, a jury cannot perform, in an
    acceptable way, the functions that make  juries desirable in the first place:  see
R.
    v. Sherratt
[1991], 1 S.C.R. 509 at 525.  The appellants have thus shown a nexus between the evidence of Mr.
    Gordon and the purpose of the inquest.

[62]

The important question on this branch of the appeals is
    whether the appellants have met the second requirement.  Have they put forward sufficient evidence to
    justify an inquiry into the representativeness of the jury roll?  Each coroner found that the families of the deceased
    and NAN had not put forward adequate evidence.  The Divisional Court held that their findings were entitled to
    deference.

[63]

I agree that the coroners findings are entitled to
    deference.  If those findings were
    reasonable, I would not interfere with them.  However, respectfully, I consider each finding to be unreasonable.  In saying that, I do not think it is
    necessary to specify the evidentiary threshold needed to justify a further
    inquiry.  Even if strong evidence were
    needed, as I view the record, the appellants have put forward a strong case for
    further inquiry into the representativeness of the jury roll in the District of
    Thunder Bay.

[64]

The appellants case consists principally of three
    items of evidence:  the decision of the
    Federal Department of Indian and Northern Affairs (INAC), taken a decade ago,
    to cease providing band electoral lists to the Provincial Jury Centre; the
    state of the jury roll in the District of Kenora in the aftermath of INACs
    decision; and the unwillingness of either Mr. Gordon or coroners counsel to be
    forthcoming about whether First Nations persons living on reserves were
    included on the jury roll from which the inquest juries were to be chosen.

[65]

Up until 2000, INAC provided the names of First Nations
    persons living on reserves by sending band electoral lists to the Provincial Jury
    Centre.  The Centre is responsible for
    sending jury questionnaires to all Ontario residents, including First Nations
    persons.  Thus, the band electoral lists played
    a central role in ensuring that First Nations persons on reserves were included
    in the County or District jury rolls.  They enabled sheriffs to fulfill their statutory obligation under s.
    6(8) of the
Juries Act
to select
    names of eligible persons inhabiting the reserve in the same manner as if the
    reserve were a municipality.

[66]

In 2000, however, INAC stopped sending these band
    electoral lists to the Centre.  The
    material before us does not disclose why the federal department stopped this
    practice.  Whatever the reason, without
    these lists, the Centre did not have an accurate, up-to-date record of the
    names of on-reserve First Nations persons.  Therefore, to meet their obligation under s. 6(8) of the
Juries Act
to create representative jury
    rolls that included First Nations persons, court officials had to find the
    names of persons on reserves form other available records.

[67]

The families of Jacy Pierre and Reggie Bushie together
    with NAN expressed to the coroners their concerns that court officials had not sought
    other available records to ensure a representative jury roll.  Their concerns were entirely reasonable in
    the light of what had happened in the neighbouring District of Kenora.  There, in 2006, a First Nations person from the
    Kashechewan community died and an inquest was ordered into his death.  Rolanda Peacock, Mr. Gordons counterpart in
    the District of Kenora, filed an affidavit in connection with that inquest.  Her affidavit is included in the record for
    the two appeals before us.

[68]

Ms. Peacocks affidavit shows that court officials did
    very little to obtain other records and, as a result, the District of Kenora
    jury roll was manifestly unrepresentative.  Her affidavit documents the following:

·

As INAC no longer supplied up to date band
    electoral lists, court officials tried to obtain band lists directly from First
    Nations reserves within the district.  In
    August 2006, they faxed a letter to the chiefs of 42 of the 45 First Nations
    communities in the District of Kenora, requesting up to date band lists.  Only four of the 42 communities
    responded.

·

In 2007, court officials traveled to 14 remote
    First Nations communities in the District of Kenora.  Their efforts produced only eight more band
    electoral lists.

·

In 2006 and 2007 the District of Kenora jury
    roll was based on jury questionnaires sent to 1,200 persons living in
    municipalities and 484 First Nations persons living on reserves.  The rate of return from persons living in
    municipalities was 66 per cent in 2006 and 56 per cent in 2007.  The corresponding rate of return from First
    Nations persons on reserves was 10.72 per cent and 7.83 per cent.

·

Of a population of over 12,000 First Nations
    persons living on reserves in the District of Kenora, only 44 were listed on
    the 2007 jury roll.

·

Although the inquest concerned the death of a
    First Nations person from Kashechewan, not a single person from that community
    was included on the District of Kenora jury roll.

[69]

Ms. Peacocks affidavit shows that much more needed to
    be done to produce a representative jury roll in the District of Kenora.  The annual roll in the years after INAC
    stopped sending band electoral lists to the Provincial Jury Centre almost
    entirely excluded First Nations persons living on reserves.

[70]

Nonetheless, Dr. Eden took the position that what
    occurred in the District of Kenora was not adequately probative of the
    representativeness of the jury roll in the District of Thunder Bay.  I cannot agree with his assessment.  Nor do I find reassuring the bald assertion
    of the coroners counsel in the Bushie inquest that the practices in the
    District of Thunder Bay complied with the
Juries
    Act
.

[71]

There is no reason to think that the
    unrepresentativeness of the jury roll in the District of Kenora is unique.  After 2000, the Provincial Jury Centre no
    longer received band electoral lists for the reserves in the District of
    Thunder Bay.  No evidence was produced in
    connection with either inquest that court officials in the District of Thunder
    Bay had made any greater efforts than their counterparts in the District of
    Kenora to obtain up-to-date band lists.

[72]

My concern about the representativeness of the jury
    roll in the District of Thunder Bay is fuelled by the unwillingness of either
    the coroners or Mr. Gordon to be forthcoming about how the roll was
    established.  The Pierre family and the
    King family requested information about the records used to obtain the names of
    First Nations persons on reserves, the number of jury questionnaire sent to
    on-reserve residents, and the number of First Nations persons on the jury roll
    from which inquest jurors are chosen (see for example the letter reproduced at
    para. 8 of these reasons).  Their request
    for this information was quite reasonable.  But they did not get any answers.  Instead, they got the run around.  A lot of time and money might have been saved had the Ministry and the
    coroners simply provided this information.

[73]

INACs decision to stop sending band electoral lists to
    the Provincial Jury Centre, the unrepresentativeness of the recent jury rolls
    in the District of Kenora and the unwillingness of Mr. Gordon and the coroners
    to provide information about the jury roll in the District of Thunder Bay make
    out a strong case for summonsing Mr. Gordon.  I would order that a summons be issued to him (or the current occupant
    of his position) to appear at the Bushie inquest and testify about the
    establishment of the jury roll in the District of Thunder Bay, and especially
    about the efforts to comply with s. 6(8) of the
Juries Act
, as well as the result of those efforts.

[74]

As will be evident, since I would order a new inquest
    into the death of Jacy Pierre, I would also order Mr. Gordon (or his successor)
    to appear before that inquest and similarly testify about the establishment of
    the jury roll in the District of Thunder Bay.

Third Issue:  Should this court order a second inquest into the death of Jacy Pierre?

[75]

I would order a new inquest into the death of Jacy
    Pierre.  I would do so for two reasons.

[76]

First, although Karakatsanis J. denied a stay of the
    inquest, she noted at para. 21 of her reasons, that [i]f the application for
    judicial review is successful, a new Inquest may be held.  Indeed, she found that counsel for the Pierre
    family was diligent in pursuing her concerns relating to whether the jury roll
    was representative of the community that includes First Nations.  Only the tight timeframes prevented that
    concern from being resolved before the Jacy Pierre inquest began.  Otherwise, undoubtedly, Karakatsanis J. would
    have stayed this inquest as she did the Reggie Bushie inquest.

[77]

Second, a new inquest is needed to restore the publics
    confidence in the inquiry into the circumstances of Jacy Pierres death.  The first inquest was marred by the
    legitimate concern about the unrepresentativeness of the jury roll and the
    consequent withdrawal of the Pierre family.  The First Nations community, and by extension the public, could have
    little confidence in the impartiality of the jury at that inquest.  Those memorable, even if well-worn, words
    apply here; justice must not only be done, it must be seen to be done.  A new inquest, where the alleged lack of representativeness
    of the jury roll may be fairly considered, is thus necessary.

D.

CONCLUSION

[78]

A coroner has jurisdiction by necessary implication to
    inquire into the representativeness of a jury roll.  The appellants have put forward sufficient
    evidence to justify an inquiry into the representativeness of the jury roll in
    the District of Thunder Bay.

[79]

Therefore, I would allow both appeals, and would grant
    the applications for judicial review.  I
    would also order a new inquest into the death of Jacy Pierre.

[80]

I would order that a summons be issued to Mr. Gordon
    (or his successor) to appear at the Reggie Bushie inquest and the Jacy Pierre
    inquest, and give evidence about the establishment of the jury roll in the
    District of Thunder Bay, and especially about the efforts to comply with s.
    6(8) of the
Juries Act
and the
    results of those efforts.

[81]

The parties may
    make brief written submissions on costs within 15 days of the release of these
    reasons.

RELEASED:  Mar 10,
    2011

JL                                                                                John
    Laskin J.A.

I
    agree K.M. Weiler J.A.

I
    agree Robert J. Sharpe J.A.

[1]

NAN is
    a political organization representing 49 First Nations communities in Ontario,
    including the community where Reggie Bushie lived.

[2]
Sections
    32 and 34 of the
Juries Act
deal with
    juror challenges.


CITATION:
Pietrangelo
v. Gore Mutual Insurance
          Company, 2011 ONCA 162

DATE: 20110302

DOCKET: C51854

COURT OF APPEAL FOR ONTARIO

Laskin, MacPherson and LaForme JJ.A.

BETWEEN

Valentino Pietrangelo and Antoinette Pietrangelo

Appellants

and

Gore Mutual Insurance Company

Respondents

Edward
Posliff
, for the appellants

Pino Cianfarani, for the respondent

Heard: February 23, 2011

On appeal from the judgment of
          Justice E.W. Ducharme of the Superior Court of Justice, dated February 22,
          2010.

ENDORSEMENT

[1]

The appellants owned four residential properties
    in the Windsor area, three of which they used as rental properties.  The Mickle property was one of them.  Michael Arquette, along with his mother, rented
    this property from 2005 until the date of loss, January 30, 2006.  On this date, Arquette caused an explosion in
    the property resulting in total destruction of the house.

[2]

As a consequence of the explosion, Arquette
    subsequently pleaded guilty to: (i) intentionally or recklessly causing damage
    to a dwelling house; and, (ii) unlawfully producing cannabis resin contrary to
    the
Controlled Drugs and Substances Act
.

[3]

After the explosion, the appellants filed a
    proof of loss claim, under their policy of residential insurance.  The insurer, Gore Mutual Insurance Company,
    investigated the claim and denied the loss based on an exclusion clause in the
    policy.  The appellants commenced an
    action to enforce the fire loss claim under the policy.

[4]

The trial judge dismissed the appellants
    action.  He held that Gore Mutual was
    entitled to rely on the exclusion clause in the insurance policy, which reads:

We
    do not insure  nor do we insure direct or indirect loss or damage
.
to
dwellings
used
in  processing [or] manufacture
     of marijuana.  (Emphasis added)

[5]

The appellants appeal.

[6]

The appellants do not contest that the policy
    was subject to an exclusion clause, nor do they dispute that the explosion was
    caused by the illegal activities of Arquette.  However, they submit that the trial judges interpretation of the exclusion
    clause was in error in three respects:

1.      The word use in the clause is ambiguous
    and it should not apply to exclude the claim.  In part, they say it was an error to hold that the exclusion clause was
    intended to apply regardless of any knowledge or involvement of the
    insured.

2.      The exclusion clause was unjust or
    unreasonable and s. 151 of the
Insurance
    Act
should apply.  They say this for
    several reasons including: an insured should not be expected to pay for
    wreckage caused by the criminal acts of a third party; and the clause exacts a
    penalty on the innocent insureds.

3.      By accepting evidence of the draftsperson
    as to his intent; the trial judge ignored the clear language of the insurers
    Notice that the clause was in relation to marijuana grow houses.

[7]

We would reject each of these submissions.

[8]

First, the trial judge applied the correct law
    in the interpretation of the exclusion clause, namely,
Consolidated Bathurst Export Ltd. v. Mutual Boiler and Machinery
    Insurance Co
. [1980] 1 S.C.R. 888.  He rejected the appellants argument to define used through the
    technical approach; rather, he interpreted it in accordance with its ordinary,
    commonly understood, and literal meaning.  He committed no error in doing so.

[9]

Second, the appellants fundamental argument
    here is that the exclusion clause is unjust and that it operates to create
an unfairness
on them primarily because of their innocence,
    or their inability to prevent the events that caused the loss.  However, the trial judge correctly observed
    that the issue in this regard is not whether the clause creates unfairness to
    the insured, but whether there is a rational basis for its existence.

[10]

Indeed, it is in respect of this issue that the
    trial judge relied on the evidence of the draftsperson.  That is, the draftspersons evidence did not
    go to the interpretation of the clause; rather, it was in relation to the
    reason for the existence of such a clause.

[11]

The trial judge was of the view that s. 151 of
    the
Insurance Act
has no application
    in this case because the exclusion clause was neither unjust nor unreasonable
    and that its purpose was valid and legitimate.  Thus, whether or not s. 151 applied in the circumstances of this case,
    it has no impact on the critical finding of the trial judge that the clause was
    not unjust or unreasonable.

[12]

We agree with the trial judge, the exclusion
    clause in the circumstances of this case is neither "unjust or unreasonable".  There are certain
    risks, which insurers are entitled not to cover for legitimate business reasons
    relating to the ability to assess risk and set premiums.

[13]

For these reasons, the appeal must be dismissed.

John
    Laskin J.A.

J.C.
    MacPherson J.A.

H.S. LaForme J.A.


CITATION:
Print N' Promotion
          (Canada) Ltd. v.
Kovachis
, 2011
          ONCA 204

DATE: 20110315

DOCKET: C51368

COURT OF APPEAL FOR ONTARIO

Cronk, Armstrong and Epstein JJ.A.

BETWEEN

Print N
          Promotion (Canada) Ltd.,

carrying on
          business as megaposter.ca

Respondent

and

Norman
          Kovachis, Alexander N. Kovachis, Zoe Kovachis,

Tommy
          Kovachis, William Kovachis, and Alexandra Lorraine Leyland

Appellants

Andrew M. Robinson and Megan Mackey, for the appellant
          Alexander N. Kovachis

Jayson W. Thomas, for the remaining appellants

Chris Dockrill, for the respondent

Heard: December 17, 2010

On appeal from the judgment of Justice Lois B. Roberts of
          the Superior Court of Justice, dated November 13 and December 14, 2009.

COSTS ENDORSEMENT

[1]

Our reasons in this appeal were released on January 12,
    2011.  In those reasons, we requested
    written submissions from the parties on the issue of the costs of the
    trial.  We have now received and reviewed
    those submissions.

[2]

In its written costs submissions, the respondent
    requests that we reconsider our disposition in this appeal based on information
    contained in the time dockets of the appellants trial counsel (produced for
    the purpose of the costs submissions that we requested).  The respondent submits that this new
    information, viewed with other information on the record, contradicts an
    observation made by this court in our reasons for judgment.

[3]

We decline this reconsideration request.  Contrary to the respondents contention,
    there are various possible meanings and explanations for the docket entry in
    question.  Moreover, the other information
    relied on by the respondent in this regard was before this court when the
    appeal was heard.  That information and
    the fresh information contained in the relevant docket entry do not alter our
    conclusion that the trial judge misapprehended the evidence that she relied on
    as establishing knowledge by the Landlord (the Kovachis family) of the
    Subtenant (the respondent) sufficient to make out the tort alleged.

[4]

With respect to the issue of the costs of the trial, we
    have considered the parties written submissions and supporting materials,
    including the detailed dockets of the appellants trial counsel.  In light of all those materials, we conclude
    that an award of trial costs in favour of Alexander N. Kovachis is appropriate,
    fixed in the amount of $50,000, inclusive of outstanding costs awarded on
    motions determined in his favour, disbursements and all applicable taxes, and
    we so order.

E.A. Cronk J.A.

Robert P. Armstrong J.A.

Gloria Epstein J.A.


CITATION:
R. v. Ade-
Ajayi
, 2011 ONCA 192

DATE: 20110310

DOCKET: C53225

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Doherty and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Alex Ade-Ajayi

Appellant

Alex Ade-Ajayi, in person

Joanne Stuart, for the Crown

In-Writing appeal heard the week of March 7, 2011.

On appeal from the order of Justice B. Cavion of the Ontario
          Court of Justice, dated October 28, 2010, dismissing an appeal from the fine imposed
          by Justice of the Peace C. Flaherty on February 18, 2004 following a guilty
          plea for driving without insurance.

By the Court:

Overview

[1]

The appellant seeks an order suspending the $5,000 fine
    imposed on him by Justice of the Peace C. Flaherty on February 18, 2004, following
    a guilty plea for driving without insurance, the appellant being the owner or
    lessee of the vehicle in question.  On
    October 28, 2010, Justice B. Cavion of the Ontario Court of Justice dismissed
    his sentence appeal.  With the consent of
    the Crown, leave to appeal from that decision was granted by Sharpe J.A. on
    January 21, 2011.

[2]

A $5000 fine is the minimum fine for a first offence by
    an owner operating a motor vehicle while uninsured:
Compulsory Automobile

Insurance
    Act
, R.S.O. 1990, c. C.25,
s
. 2(3).

[3]

The court has jurisdiction, however, to reduce or
    suspend a fine imposed in such circumstances pursuant to s. 59(2) of the
Provincial Offences Act
, R.S.O. 1990, c.
    P.33, which reads as follows:

Although the provision
    that creates the penalty for an offence prescribes a minimum fine, where in the
    opinion of the court exceptional circumstances exist so that to impose the
    minimum fine would be unduly oppressive or otherwise not in the interests of
    justice, the court may impose a fine that is less than the minimum or suspend the
    sentence.

Background

[4]

The appellant arrives in this Court, on this appeal,
    after a circuitous voyage.

[5]

In 2002 he was charged, as a result of two separate
    instances, with operating a motor vehicle while uninsured, being the owner or
    lessee of the vehicle.  The appellant was
    relatively newly-arrived in Canada at the time.

[6]

He pleaded not guilty to the first of these charges on
    the basis that the vehicle ownership had been transferred to his
    girlfriend.  He was not able to provide
    evidence to that effect, however and was convicted and fined.  It is important to the sequence of events
    that followed that this conviction was subsequently overturned on appeal, in May
    2007, on the basis that the appellant was not, in fact, the owner of the
    vehicle at the relevant time.

[7]

In the meantime, the appellant had pleaded guilty to
    the second charge referred to above.  He
    was sentenced to pay a fine of $5000.  The
    Crown accepts that this plea was treated as a second offence, because the
    appellants first conviction had not, at that stage, been overturned.  A second offence calls for a minimum fine of
    $10,000.  In the circumstances, the Crown
    sought a fine of $7500.  The Justice of
    the Peace imposed a fine of $5000.

[8]

The appellant appealed this second fine, but his appeal
    was dismissed at the first level.  He
    then appealed to this Court, alleging that he had not received a fair hearing
    and that he had been sentenced on the basis of the now-overturned prior
    conviction.  In February 2009, with the
    Crowns consent, this Court allowed the appeal and sent the matter back to the
    Ontario Court of Justice to have the sentence appeal heard anew.

[9]

Cavion J. presided over the re-hearing of the sentence
    appeal on October 28, 2010.  He dismissed
    it on the basis that the appellant had made no payments towards the fine in the
    intervening 6 years and that the amount of the fine was appropriate in the
    circumstances (there had been an accident, in which the appellant was at fault,
    and it was important to uphold the importance of motor vehicles being insured
    while on the roads).  However, he did not
    address the point on which the matter had been sent back for re-hearing,
    namely, the significance, if any, of the now-overturned prior conviction.  This left the appellant with the impression again
    that he had not received a fair hearing.  He appealed once more to this Court.  However, in consultation with duty counsel
    during that process, he realized that he had, in fact, not been sentenced as a
    second offender, but that the $5000 fine was the minimum imposed by statute for
    a first offence for driving while uninsured.

[10]

The appellant now pursues the appeal on the basis that
    this Court should exercise its discretion to reduce the fine, or suspend it, in
    light of his financial situation and the hardships caused to him by the various
    convoluted turns in his appeal process (which, among other things, cost him $2,600
    in paralegal fees).

Disposition

[11]

Given the history of the matter, the Crown, as noted,
    consented to the granting of leave to appeal and now consents to the appeal
    being allowed.  It is the Crowns
    position, however, that the fine should not be suspended, but rather reduced to
    $2500.

[12]

In the particularly unusual circumstances of this saga,
    we accept the Crowns submission.

[13]

The fines imposed under s. 2(3) of the
Compulsory Automobile Insurance Act
are
    designed to underscore the importance of every vehicle operated on the public
    roadways of Ontario being insured:
Regina
    v. Zwicker
(1994), 17 O.R. (3d) 171 (C.A.).  The idea behind the high level of minimum fines is to make it more
    financially onerous to offend the legislation than to bear the required cost of
    insurance premiums: see
R. v. Baritz
(2006), 37 M.V.R. (5th) 121, at para. 31 (Ont. C.J.).  A reduction in the minimum fine should not
    lightly be imposed, therefore.  The court
    may reduce or suspend a minimum fine, however, where it is of the opinion that
    exceptional circumstances exist so that to impose the minimum fine would be
    unduly oppressive or otherwise not in the interests of justice:
Provincial Offences Act
, s. 59(2).

[14]

Here, the appellants financial resources are limited,
    at best.  While he has been employed in
    the past as a welder and forklift driver, he suffered a welding injury to his
    eye in 2008 and can no longer work in that capacity.  He is seeking disability support from the
    Ontario Disability Support Program, and is currently enrolled in an aviation
    management program at Georgian College in an effort to retrain himself.  He is married  although he and his wife are
    in the process of obtaining a divorce  and has two small children to
    support.  Currently, student loans are
    his only source of income.  Nevertheless,
    his retraining prospects create the potential for an ability to pay the fine,
    or some portion of it, over time.

[15]

Appeals to this Court on matters under the
Provincial Offences Act
are very much
    the exceptions, and particularly so with respect to sentence.  Trial judges must decide whether the
    circumstances of a particular case call for something less than the minimum
    fine.  This Court will not second guess
    that assessment absent factors that meet the leave to appeal criteria set out
    in s. 139 of the
Provincial Offences Act
.

[16]

However, in this case, as the Crown points out, it
    appears that the original sentencing judge, dealing with what was then thought
    to be a second offence, intended to impose a fine that was half the minimum,
    namely $5000 instead of $10,000.  We
    agree with the Crown that, given the present landscape, a reduction to $2500
    strikes an appropriate balance between the individual circumstances of the
    appellant and the legislative purpose behind the significant minimum fines
    called for in the
Compulsory Automobile
    Insurance Act
.  In the particularly
    unusual circumstances of this case a reduction to $2500 is in the interests of
    justice.

Disposition

[17]

We accordingly allow the appeal and reduce the penalty
    imposed to a fine of $2500.  As the
    Justice of the Peace did, we accord the appellant a period of one year from
    this date to make the payment.

D. OConnor A.C.J.O.

D. Doherty J.A.

“R.A. Blair J.A.”

RELEASED:  March 10,
    2011


CITATION: R. v. Barnswell, 2011
      ONCA 159

DATE:  20110301

DOCKET: C51486

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Doherty and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Barnswell

Applicant (Appellant)

Delmar Doucette, for the applicant (appellant)

Benita Wassenaar, for the respondent

Heard: February 28, 2011

On appeal from the conviction entered by Justice M.L. Lack of
          the Superior Court of Justice dated August 19, 2009 and the sentence imposed
          on October 19, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The conviction appeal was abandoned.

[2]

The appellant concedes that the sentence imposed was in the appropriate
    range for this very serious offence of aggravated assault.  The appellant
    stabbed the victim four times and one stab wound came perilously close to the
    victims jugular vein.

[3]

We do not accept the appellants argument that the trial judge erred in
    the way she approached the issue of rehabilitation.  In our view, it was open
    to the trial judge to take into account the appellants failure to perceive the
    connection between his lifestyle, which involved the extensive use of alcohol and
    marijuana, and the offence.

[4]

In the result, the application for leave to appeal the sentence is
    granted but the appeal against sentence is dismissed.


CITATION: R. v. Bastien, 2011
      ONCA 240

DATE: 20110328

DOCKET: C52080

COURT OF APPEAL FOR ONTARIO

Gillese, Lang and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Randy Bastien

Appellant

Daniel Medd, for the appellant

Susan Magotiaux, for the respondent

Heard: March 28, 2011

On appeal from the convictions entered and sentence imposed on
          March 2, 2010, by Justice William F. Fitzgerald of the Ontario Court of
          Justice.

APPEAL BOOK ENDORSEMENT

[1]

Counsel for the appellant confirms that the conviction appeal has been
    abandoned. That appeal is dismissed as abandoned.

[2]

The appellant was convicted of break and enter and theft. He was on
    parole for a 3 year sentence for 6 counts of break and enter at the time of the
    offences in question. He had served a previous 3 year sentence for forcible
    confinement and weapons charges. He had more than 30 prior convictions,
    including 7 for break and enter.

[3]

The appellant was sentenced to 3 years for the offences in question. He
    has served just over a year of that sentence. He seeks leave to appeal
    sentence.

[4]

Counsel for the appellant acknowledges that the sentence is not outside
    the range. However, he submits that the sentencing judge failed to give
    adequate reasons and failed to consider, as a mitigating factor, the
    appellants expressions of remorse.

[5]

We do not accept either submission. While the reasons are extremely
    brief, it is clear that the sentencing judge adopted the Crowns submissions.
    Those submissions, in addition to the sentencing judges explicit reference to
    the importance of public protection, mean that the sentence is sufficiently
    explained.

[6]

We accept the Crowns submission that the appellant cannot rely on
    remorse as a mitigating factor when, even at sentencing, he was disputing
    factual findings and denying the break and enter. To this we would add that the
    appellant sought to place the blame on the victims for his commission of the
    offence, an act not consistent with genuine remorse.

[7]

As for the fresh evidence, the appellants progress while in custody is
    commendable but that is a matter for the parole board.

[8]

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

E. E.
    Gillese J.A.


WARNING

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

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (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.

CITATION:
R. v. Bergen, 2011
          ONCA 210

DATE: 20110316

DOCKET: C50610

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Mark Bergen

Appellant

Diana Lumba, for the appellant

Susan Magotiaux, for the respondent

Heard and released orally: March 11, 2011

On appeal from convictions entered by Justice James Ramsay
          of the Superior Court of Justice on October 21, 2008 and from the sentence
          imposed on November 21, 2008.

ENDORSEMENT

[1]

The appellant appeals from convictions for two counts
    of sexual assault involving two different complainants, S.P. and J.P. The
    appellant was tried by Ramsay J., sitting alone. The trial judge dismissed a
    charge of assault causing bodily harm involving J.P.

The S.P. Conviction
    Appeal

[2]

[3]

Criminal Code
[4]

Criminal Code
[5]

[6]

First, the appellant asserts that the trial
    judge erred by failed to turn his mind to S.Ps subjective state of mind in
    relation to consent and, if he did, his finding on that issue was unreasonable.
[7]

We disagree.  The trial judge turned his mind specifically to the question of whether
    the complainant was induced to engage in sexual activity by the appellants
    abuse of his position.  Relying on
    several aspects of the evidence adduced at trial, including the evidence of an
    expert who testified about the nature of a therapist-patient relationship, the
    trial judge concluded that the complainant was in fact induced by the appellants
    abuse of his position as her therapist. In our view, this finding was amply
    supported by the evidence, including evidence concerning how the relationship
    progressed and the complainants own testimony about the appellant and the
    nature of their relationship.
[8]

Second, the appellant claims that the trial
    judge erred in relying on the evidence that S.P.s parents trusted the
    appellant and that he deceived them as constituting evidence that the appellant
    induced the complainant to engage in sexual activity by abusing his
    position.  We do not accept this
    submission. The trial judge referred to the appellant deceiving the complainants
    parents as evidence of the appellants manipulative conduct. That was but one
    aspect of the evidence that permitted the trial judge to assess the extent of
    the appellants controlling behaviour and to draw inferences about its impact.

[9]

Third, the appellant argues that the trial
    judges interventions compromised the fairness of the trial. We do not accept
    this submission. We agree some of the trial judges comments were unfortunate
    and should have been avoided. However, assessing the record as a whole, we are
    not satisfied that they raise a concern that the trial judge prejudged the evidence,
    nor do we accept that they deprived the appellant of a fair opportunity to
    present his case.
The J.P. Conviction Appeal

[10]

This charge arose out of an incident that
    allegedly occurred at the appellants home when J.P., a neighbour and former
    patient, visited the appellant to provide support to the appellant following
    S.P.s termination of their relationship.

[11]

The appellant raises three grounds on the
    conviction appeal relating to J.P.  The
    first is the issue of interventions by the trial judge. We have already
    disposed of that ground of appeal.

[12]

Second, the appellant argues that the trial
    judge made improper use of a prior consistent statement made by J.P. when she
    confronted the appellant on the day after the alleged assault. We do not accept
    this submission.  In our view, the trial
    judges reference to the consistency of this statement was merely a response to
    a defence attack on the improbability of J.P. returning to the appellants
    home. We are not satisfied that the trial judge used this evidence to improperly
    bolster J.P.s credibility.
[13]

[14]

The appeals are therefore dismissed.
Signed:        Janet Simmons J.A.
Paul Rouleau J.A.
Karakatsanis J.A.