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COURT OF APPEAL FOR ONTARIO
CITATION:
R. v. Asphall, 2022 ONCA 1
DATE: 20220107
DOCKET: C69050
Miller, Zarnett and Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Demaine Asphall
Appellant
Ben ElzingaCheng, for the appellant
Molly Flanagan, for the respondent
Heard: in writing
On appeal from the convictions entered and
the sentence imposed on March 11, 2015 by Justice Malcolm McLeod of the Ontario
Court of Justice.
REASONS FOR DECISION
[1]
The appellant, who is a permanent resident of
Canada and has been in Canada for 30 years, seeks to set aside guilty pleas on
the basis that he was uninformed of the immigration consequences of them. The
Crown now concedes the appeal.
[2]
The appellant pleaded guilty to possession of a
restricted firearm with ammunition, carrying a concealed weapon, and breach of
weapons prohibition. He was convicted and sentenced to two years less a day for
possession, 90 days consecutive for carrying a concealed weapon, and 60 days
consecutive for breach of the weapons prohibition. He has served his sentence.
[3]
After serving his sentence, the appellant was
arrested by the CBSA and advised he was ineligible for admission to Canada as a
consequence of his convictions, and that removal proceedings had been commenced
against him.
[4]
The appellant swore in an affidavit in support
of this appeal that he had been unaware of the immigration consequences of his
convictions, and if he had been aware he would not have pleaded guilty but
would have proceeded to trial. He was cross-examined on that affidavit, and the
Crown now concedes that there is no basis in the evidence to challenge the
appellants assertion that he was unaware of the immigration consequences of
his guilty plea: there was no plea inquiry at trial, and trial counsel had no
notes, no specific recollection, and did not have a uniform practice of
advising clients of immigration consequences. Furthermore, the appellant provided
evidence that he faced prejudice from removal from Canada: he has lived in
Canada since he was 9 years old and removal would disrupt his family life: he has
8 children and has been living with his wife and 6 of those children for the
past 12 years.
DISPOSITION
[5]
Given the Crowns concession, we allow the
appeal, set aside the guilty pleas and convictions, and order a new trial.
B.W. Miller J.A.
B. Zarnett J.A.
S. Coroza J.A.
|
WARNING
The President of the panel
hearing this appeal directs that the following should be attached to the file:
An order restricting
publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
(4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These
sections of the
Criminal Code
provide:
486.4(1) Subject
to subsection (2), the presiding judge or justice may make an order directing
that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in
proceedings in respect of
(a) any of the
following offences;
(i) an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence
under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C.
2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt
with in the same proceeding, at least one of which is an offence referred to in
paragraph (a).
(2) In proceedings
in respect of the offences referred to in paragraph (1)(a) or (b), the
presiding judge or justice shall
(a) at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the victim of the right to make an application for the order; and
(b) on application
made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to
subsection (2.2), in proceedings in respect of an offence other than an offence
referred to in subsection (1), if the victim is under the age of 18 years, the
presiding judge or justice may make an order directing that any information
that could identify the victim shall not be published in any document or
broadcast or transmitted in any way.
(2.2) In proceedings in
respect of an offence other than an offence referred to in subsection (1), if
the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible,
inform the victim of their right to make an application for the order; and
(b) on application of
the victim or the prosecutor, make the order.
(3) In proceedings
in respect of an offence under section 163.1, a judge or justice shall make an
order directing that any information that could identify a witness who is under
the age of eighteen years, or any person who is the subject of a
representation, written material or a recording that constitutes child
pornography within the meaning of that section, shall not be published in any
document or broadcast or transmitted in any way.
(4) An order made
under this section does not apply in respect of the disclosure of information
in the course of the administration of justice when it is not the purpose of
the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
18.
486.6(1) Every
person who fails to comply with an order made under subsection 486.4(1), (2) or
(3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater
certainty, an order referred to in subsection (1) applies to prohibit, in
relation to proceedings taken against any person who fails to comply with the
order, the publication in any document or the broadcasting or transmission in any
way of information that could identify a victim, witness or justice system
participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. G.M.C., 2022 ONCA 2
DATE: 20220107
DOCKET: C66972
Strathy C.J.O., Hourigan and
Paciocco JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
G.M.C.
Appellant
Scott Hutchison and Carly Peddle, for
the appellant
Sunil Mathai, for the respondent
Heard: November 23, 2021
On appeal from the conviction entered on
January 31, 2019 by Justice Gregory A. Pockele of the Ontario Court of Justice.
Strathy C.J.O.:
I.
BACKGROUND
[1]
After a 12-day trial in the Ontario Court of
Justice, the appellant was convicted of three counts of assault contrary to s.
266 of the
Criminal Code
, R.S.C., 1985, c. C-46, one count of assault
with a weapon contrary to s. 267(a), one count of failure to comply with an
undertaking contrary to s. 145(5.1), and one count of failure to comply with a
recognizance contrary to s. 145(3). He pled guilty to one count of failure to
comply with a court order. He was acquitted of sexual assault, criminal
harassment, three additional counts of assault, and one additional count of
breaching a recognizance.
[2]
The appellant was a police officer with the
Waterloo Regional Police and the complainant had been a legal assistant for a
criminal defence lawyer. They began a romantic relationship in 2011. Shortly
thereafter, the complainant moved into the appellants home, where they lived
with C., the appellants son from a previous relationship. The appellant and
the complainant subsequently purchased their own home and had a child of their
own, J., born in April 2015.
[3]
The complainant alleged that the appellant
assaulted her seven times between 2013 and 2015 and that he sexually assaulted
her in 2014. The complainant did not report her allegations to police until
October 2016. By then, the parties had separated, but were locked in
acrimonious family law proceedings relating to custody of and access to their
son. The appellant had been subject to a family court order prohibiting him
from communicating with the complainant.
[4]
The Crown theory was that the appellant was
extremely jealous, had a quick and occasionally violent temper, and had vented
his rage on the complainant.
[5]
The defence theory was that the complainant had
a motive to fabricate in relation to the ongoing legal dispute concerning J.,
that she had friends in various police agencies, and that she had manipulated the
police to achieve her objectives.
[6]
As the trial judge noted, the credibility and
reliability of the complainant and the appellant was a central issue at trial.
II.
THE OFFENCES AND THE TRIAL JUDGES REASONS
[7]
The following brief overview of the offences for
which the appellant was convicted will provide context for the analysis that
follows. Additional details will be added as necessary for the analysis.
(1)
Count 1 May 25, 2013 The 911 call
[8]
The complainant alleged that the appellant
assaulted her when she returned home one evening after meeting her sister,
instead of having dinner at home. Upon her return, the appellant allegedly
called the complainant demeaning names and questioned her about her whereabouts
that evening. When the complainant allegedly removed her engagement ring, the
appellant threw it at her and told her to pack her belongings and leave the
house. She testified that, when she entered the basement to retrieve one of her
two cats, the appellant pushed her into the washing machine, causing injuries
to her chest, head, and knee. The complainant said she then went to retrieve
her car keys, at which point the appellant pushed her again, causing her hip to
hit the kitchen counter. The appellant then made an unsuccessful attempt to
push her down the stairs as she went to retrieve the cat.
[9]
The complainant retrieved the nearby phone, ran
upstairs, and called 911, but the appellant took the phone from her and hung
up. The complainant ran back downstairs, and the appellant threw what the
complainant thought was a bin of clothing at her. The dispatcher called back
multiple times and eventually got the complainant on the line.
[10]
The complainant did not mention an assault to the 911 dispatcher
during the call. However, she told the dispatcher that she was trying to leave
the house, and the appellant was not letting her take her cats. She was
overheard telling the appellant not to be mad at her. The police attended the house
and helped the complainant leave. The complainant testified that she told her
brother and sister about the assault the evening it transpired, her friend and
colleague Ms. D. on the following Monday, and a doctor several months later.
Ms. D. testified that she observed bruising on the complainant sometime in the
spring of 2013.
[11]
The appellant acknowledged that he had an argument with the
complainant, but he denied shoving or pushing her. He recalled trying to keep
the cat in the basement, but denied that the complainant went downstairs near
the washer and dryer to retrieve it.
[12]
With respect to this count, the trial judge recognized that the
complainants evidence had been shaped to some degree, but concluded that
there was no material inconsistency between the complainants testimony that
she had been assaulted and the 911 call in which she made no mention of
assault.
(2)
Counts 2 and 3 October 6, 2013 Common assault and assault with a
weapon
[13]
The appellant and the complainant had an argument after the appellant
received a message from a female colleague. The complainant wanted to end her
relationship with the appellant. The complainant testified that the appellant
threw a bin of clothing at her while she was descending the stairs, hitting her
in the back of her head and causing her to fall to the floor. She testified
that, when she tried to retrieve a phone to call the police, the appellant
choked her and said, I could fucking kill you. She then ran out of the house
and drove away. The complainant testified that after the assault she had
trouble breathing and swallowing, her neck was sore and bruised, and she
concealed the bruising with makeup and clothing. A doctors report stated that
there was no obvious bruising on the complainants neck, but that she was
wearing makeup over the area. Ms. D. recalled seeing bruising on the
complainants neck in the fall of 2013 and observed that she was having
difficulty speaking.
[14]
The appellant testified that he pushed the complainant in response
to her hitting him. He also testified that he said I could fucking kill you
because he was angry that she had hit him. The appellant denied throwing a bin
at her or choking her. He acknowledged that the complainant had complained of
soreness in her neck, which he attributed to the push.
[15]
The trial judge found that this was one of the stronger cases the
Crown advanced and accepted the evidence of the complainant and the evidence
of Ms. D., who observed the bruising and the symptoms of a sore neck. He also
accepted evidence of the complainant having attended a doctors office as
rebutting the allegation of recent fabrication. He rejected the appellants
evidence as incredible and as insufficient to raise a reasonable doubt. He also
found corroborative evidence in emails sent by the appellant after the
incident, in which he expressed responsibility and remorse.
(3)
Count 7 November 2014 Assault (Kneeling)
[16]
The complainant testified that the appellant assaulted her after she
refused to accompany him on a visit to his friend. She said that he pushed her
onto the bed and put his knees on either side of her, pinning her forearms with
his knees. The complainant said that she freed herself by striking his genitals
and then ran to the basement, where she locked herself in the bathroom and attempted
to call a friend, Ms. W. The complainant texted photos of bruises on her arm to
Ms. W. and also told Ms. D. about the incident.
[17]
The appellant admitted he had an argument with the complainant but
denied assaulting her.
[18]
The trial judge convicted the appellant on this count, accepting the
evidence of the complainant and the two independent witnesses, whose evidence
refuted recent fabrication and provided some corroboration of the complainants
allegations and injuries. He found that the appellants evidence did not
undermine the credibility of the prosecution witnesses and did not raise a
reasonable doubt.
(4)
Compliance Charges
[19]
In the course of an access visit, the appellant delivered a diaper
bag to the complainant, containing a communications book and various cards,
documents, and pictures. By doing so, it was alleged, the appellant
communicated with the complainant contrary to the family court order. It was
also alleged that the appellant sent the complainant an e-mail in breach of his
recognizance.
[20]
In finding the appellant guilty of breaching an undertaking, the
trial judge found that the appellants own evidence established that he had
communicated with the complainant. In finding the appellant guilty of breaching
his recognizance, the trial judge relied on the appellants guilty plea for
another offence, in which he conceded that his e-mail communications with the
complainant exceeded the scope of the family court order.
III.
ISSUES
[21]
The appellant raises three grounds of appeal:
1.
Judicial notice: whether the trial judge took
judicial notice of matters that fall within memory science, relying on his
own understanding of how memories operate and, if so, whether he made improper
use of memory science to support his findings of fact.
2.
Uneven scrutiny of the evidence: whether the
trial judge applied uneven scrutiny to the Crown and defence evidence by (a)
forgiving inconsistencies in the Crowns case; (b) making improper use of the
appellants demeanour and imposing a higher standard on the appellant because
he was a police officer; and (c) relying on evidence of the appellants
discreditable conduct to discredit him and infer guilt.
3.
Reasonable apprehension of bias: whether
statements and interventions made by the trial judge compromised the appearance
of trial fairness and gave rise to a reasonable apprehension of bias.
[22]
The appellant submits that all three errors impacted the trial
judges findings on the central issue of credibility and that a new trial is
required.
IV.
ANALYSIS
(1)
First Issue: Judicial Notice
[23]
Counsel for the appellant argued that the trial judges commentary
on memory went beyond the usual knowledge that judges apply as lay persons.
They maintained that the trial judges discussions of how memories are formed,
short- and long-term memory, and the capacity to recall memories all suggested
he was applying memory science theory. Counsel submitted that if the trial
judge was going to rely on this theory, he should have informed the parties and
permitted them to make submissions on it.
[24]
At the outset of his lengthy reasons for judgment, the trial judge
made some general observations about the most basic and important principles
in our criminal law, including the presumption of innocence, the burden of
proof on the Crown, the need for proof beyond a reasonable doubt, and the
principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. He then discussed
some of the principles applicable to the weighing and assessment of evidence
and the means of testing the credibility and reliability of witnesses. He
concluded:
In addition to these principles courts often
refer to the [appellate] decisions, [
R. v. White
, [1947] S.C.R. 268]
and [
R. v. Colbert
, 2006 CarswellNfld 72]. Reading these cases, there
are 11 different elements of demeanour evidence discussed, including whether
the witness exhibited intelligence, clarity, reluctance to testify,
evasiveness, reticence, and other similar factors in their testimony. More
importantly, these cases provide clear direction that a witness ought not to be
disbelieved unless the evidence was illogical or unreasonable, unless there is
contradictory evidence and unless there is something in the evidence that
brings discredit to the witness. These last three considerations were brought
into play in the arguments of the defence and of the Crown and in the manner
the witnesses were cross-examined.
[25]
After these observations, which are not impugned, the trial judge
made some comments about memory:
Each judge is left to his or her own devices
in making these assessments. Judges are expected to integrate our life
experiences with the reality of the world to come to conclusions as to what is
logical and reasonable.
Similarly, we are left on our own
to determine the theory for whether a memory is good or bad. Judges rarely hear
expert evidence concerning memories. The exception is when expert witnesses are
called with respect to the memories of children, repressed memories, memories
of post-traumatic stress victims, other unique and vulnerable witnesses
.
Judges are frequently presented with different
contrasting memory theories with no evidence or scientific support for the
point being argued. The most frequent point being [that] the witness should
have remembered [
] a particular fact, and having not done so, should not be
believed.
In these arguments that are made to a judge to
support whether a witness is credible or incredible, contrasting memory
theories are suggested. For example it will often be suggested that memories
are a record of an individual's experience of events, or, alternatively, that a
memory should be like a record of the event, like a video or audio recording.
Arguments are made that we should expect memories of experienced events to be
complete and other arguments would be made that a normal memory necessarily features
forgotten details and gaps, and those gaps ought not to be an indicator of
accuracy.
It is sometimes argued
that memories typically contain only a few highly specific details. It will be
argued that a witness should, and sometimes it is argued that [a witness]
should not be able to have specific detail and long-term memories. This was an
important argument with respect to the assessment of [the complainants]
evidence
.
So, really, in the
absence of expert evidence a judge is left alone to sort through the sorts of
arguments that are presented in assessing the evidence based on memories
.
Finally, a judge is left
with questioning whether a witness has a good memory versus a bad memory as an
over-generalization. Is there a rating skill for memories? I wonder whether the
real test is our ability to access a memory at the time of testifying
. [Emphasis added to identify portions challenged by the appellant.]
[26]
On several occasions during his reasons, the trial judge returned to
the theme of memory. For example, in commenting on the complainants evidence
concerning the 911 call, the judge observed that although she had a remarkable
memory for detail, she had been challenged in cross-examination concerning her
memory of whether [the appellant] took the cat to the basement or whether the
cat ran to the basement. In discounting inconsistencies in her evidence on
this issue, the trial judge observed:
I cant ignore that this evidence is being
given in 2018 regarding an incident in 2013, reported in 2016. I dont find it
logical or reasonable that any witness would be expected to have an exact
memory of such a relatively minor and subordinate element in such an upsetting
and traumatic overall event in which she was told to leave home, pack up her
things, and the police arrived in response to a 9-1-1 call.
[27]
He added:
For the most part, cross-examination here
focussed on details that were too minor to be considered as material
inconsistencies and the omissions failed to rise to a level of significance
over which a reasonably honest witness should be expected to consistently
recall.
[28]
The appellant refers to the trial judges assessment of the evidence
of C. as an example of the trial judges improper use of memory science. C. was
interviewed by police in 2017 concerning events that had taken place in 2013
and 2014, when he was 12 to 14 years of age. The trial judge noted that on
cross-examination, C. had conceded that there was no reason for him to access
his memory of these events until he was asked to do so in his 2017 police
interview.
[29]
In assessing the credibility and reliability of C.s evidence, the
trial judge observed that there was a significant element [of] self-interest
in C.s testimony in support of his father and that C. had not been present for
many of the assaults. He observed:
With respect to capacity, his ability to make
observations, fix those observations in his short-term memories. He wasnt
immediately present for the 9-1-1 incident or other subsequent assaults. [The
complainant] testified he was present immediately after one assault and was
part of the conversation between them.
I am not impressed that he had any distinct
memories about any event that occurred at approximately the same time as these
allegations of assault. I dont know whether he observed things but had [no]
reason to enter them in his short-term memory. I do not know whether a 12 or
13-year-old caught up on the edge of conflict between his father and his
fathers spouse would choose to harbour these memories or try to forget them. I
dont know how long he would try to hold onto these.
His trial testimony, his evidence does not
necessarily undermine the evidence of [the complainant] on these points. I
prefer to think that the witness has limited long-term memories which can be accessed
accurately.
[30]
The appellants second concern relates to the trial judges
assessment of the reliability and credibility of the complainants evidence.
The trial judge observed:
I feel it is necessary to address the many
inconsistencies [in the complainants evidence] raised by the defence. I
earlier indicated I hold no expectation that trial testimony, a review of
long-term memories related to the incident will be as accurate as an
audio-video recording. I dont know if observations are reduced to short-term
memory. Its human nature to make sense out of what is chaotic. It doesnt mean
that it is an accurate memory. Observations made in stressful situations of
trauma are difficult to move into accurate short-term memories. When short-term
memories are stored as long-term memories there are questions of accessing
those.
With respect to the 9-1-1 incident we know it
happened in May of 2013, reported in 2016, trial in 2018. Memories were reduced
to a video statement in 2016, into a statement then a video statement in 2016,
testified to 2 years later.
As to the core events, I find that her
statements are a version of her experience that took place years earlier. They
have been shaped to some degree, but not on the main points.
[31]
Counsel for the appellant asserted that the trial judge used his
theories of memory to discount inconsistencies in the complainants testimony
and C.s lack of memory related to the 911 call assault and the assault
comprising Count 7. The trial judge dismissed inconsistencies in the complainants
evidence before trial and during trial by noting the difficulty of recalling
memories of stressful and traumatic events. Counsel highlighted some of the
trial judges comments about accessing memory while testifying, and noted the
significance of the fact that C. did not remember the relevant incidents when
testifying. For example, the complainant testified that C. witnessed the
aftermath of the Count 7 assault and spoke to her about it, but C. denied any
memory of the incident. The trial judge dismissed this lack of memory as an
issue of short-term versus long-term memory storage during a traumatic event.
The trial judge also found that C.s lack of memory relating to the 911 call
did not impact either partys testimony.
[32]
Counsel for the respondent argued that the trial judges comments
regarding memory were meant to convey only that memory fails with the passage
of time. He submitted that the inconsistencies were peripheral and concerned
minor incidents that took place some years earlier during more significant,
upsetting events. He maintained that trial judges are able to take judicial
notice of common sense matters like memory fails over time. Even if the trial
judges comments constituted an improper use of judicial notice, respondents counsel
maintained that the curative proviso would apply and that this error was
harmless and had no impact on the ultimate decision.
[33]
I would not give effect to this ground of appeal.
[34]
The principles of judicial notice were recently explained by Brown
J.A. in
R. v. J.M.
, 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 31-38.
For the purposes of this appeal, only the following principles need be stated.
First, courts may only take judicial notice of facts that are (1) so notorious
or accepted, either generally or within a particular community, as not to be
the subject of dispute among reasonable persons, or (2) capable of immediate
and accurate demonstration by resorting to readily accessible sources of
indisputable accuracy:
J.M.
, at para. 31.
[35]
Second, as Brown J.A. observed in
J.M.
, there are different
forms of judicial notice. The form that arises in this case has been referred
to as tacit or informal judicial notice. This involves the trier of fact
drawing on common experience, common sense or common knowledge to interpret
and understand the formal evidence presented at trial:
J.M.
, at para.
32. One issue on this appeal is whether the trial judge applied common sense
or common knowledge, or a specialized field of memory science, which should
have been the subject of expert evidence.
[36]
Third, judicial notice has a procedural dimension. As a matter of
transparency and trial fairness, there may be occasions when a trial judge has
an obligation to advise the parties that they are contemplating taking judicial
notice of a fact and to invite them to make submissions. As Brown J.A. stated
in
J.M.
, at paras. 37-38:
More problematic are the occasions on which
judges take judicial notice without the benefit of submissions from the
parties. Such conduct by a judge lacks transparency, thereby risking the
perception of the fairness of the hearing. It also risks crossing the boundary
separating the notorious and readily demonstrable from the disputed and
controversial, again risking the perception of procedural fairness. As put by
[Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst,
Sopinka,
Lederman & Bryant: The Law of Evidence in Canada
, 5th ed. (Toronto:
LexisNexis Canada, 2018)]: "Judges should not conduct their own research
and come to the conclusion that facts are notorious, for, there is no
opportunity for the parties to respond:" at §19.61.
Where a judge, on his or her own initiative,
wishes to take judicial notice of a fact or state of affairs that bears on a
key issue in a proceeding, the adversarial process requires that the court
ensure that the parties are given an opportunity to deal with the new
information by making further submissions, oral or written, and allowing, if
requested, fresh material in response: [David M. Paciocco, Palma Paciocco &
Lee Stuesser,
The Law of Evidence
, 8th ed. (Toronto: Irwin Law,
2020)], at p. 582.
[37]
The trial judge identified some of the principles that judges are
required to apply in the assessment of the reliability and credibility of
evidence. He correctly observed that memory is rarely the subject of expert
evidence, but in spite of this, trial judges frequently observe the frailties
of memory and routinely caution themselves about the risks associated with
memory.
[38]
After his general observations with respect to the assessment of
evidence, the trial judge simply expressed some propositions, grounded in
common experience, that are familiar to every trial judge and lawyer and to lay
people. Although he used different language, I would express these as:
·
observations made by witnesses in the course of
traumatic events can be difficult to recall and to describe accurately at a
later date;
·
a witness cannot be expected to have a faithful
memory of minor incidents that occurred during a traumatic event and the
inability to recall a minor or insignificant event does not detract from the
witnesss overall reliability or credibility;
·
it is human nature to try to make sense out of
bits and pieces of memories about an event, and this may impact the accuracy of
a witnesss testimony concerning events; and
·
a child caught up in a conflict between his
father and his fathers partner is likely to have conflicting loyalties and a
judge should be cautious of accepting the childs recollection, recounted
several years later, about events that may not have been particularly
significant to the child at the time.
[39]
Although dressed up in unnecessarily scientific jargon, the trial
judges application of these common experiences does not reflect error in his
assessment of the evidence.
[40]
I would dismiss this ground of appeal.
(2)
Second Issue: Uneven Scrutiny of the Evidence
[41]
The uneven scrutiny submission has three branches. First, the
appellant asserts that the trial judge overlooked inconsistencies in the
Crowns evidence, improperly treating evidence called to refute recent
fabrication as corroborative of the evidence of the complainant. Second, he
submits that the trial judge made improper use of his observations of
witnesses demeanour, including holding the appellant to a higher standard
because he was a police officer. Finally, he submits that the trial judge erred
by placing undue weight on the appellants discreditable conduct, particularly
the vulgar, demeaning, and abusive language he directed at the complainant.
[42]
Before turning to the specifics of this ground, and the parties
submissions, I make a few observations on the law with respect to uneven
scrutiny.
[43]
The principles underlying uneven scrutiny as a ground of appeal were
set out by Watt J.A. in
R. v. Radcliffe
, 2017 ONCA 176, 347 C.C.C.
(3d) 3, at paras. 23-26, leave to appeal refused, [2017] S.C.C.A. No. 274:
First, as the appellant recognizes, this is a
difficult argument to make successfully. The reasons are twofold. Credibility
findings are the province of the trial judge. They attract significant
appellate deference. And appellate courts invariably view this argument with
skepticism, seeing it as little more and nothing less than a thinly-veneered
invitation to re-assess the trial judge's credibility determinations and to re-try
the case on an arid, printed record:
R. v. Howe
(2005), 192 C.C.C.
(3d) 480 (Ont. C.A.), at para. 59;
R. v. George
, 2016 ONCA 464, 349
O.A.C. 347, at para. 35.
Second, to succeed on an uneven scrutiny
argument, an appellant must do more than show that a different trial judge
assigned the same task on the same evidence could have assessed credibility
differently. Nor is it enough to show that the trial judge failed to say
something she or he could have said in assessing credibility or gauging the
reliability of evidence:
Howe
, at para. 59.
Third, to succeed on the argument advanced
here, the appellant must point to something, whether in the reasons of the
trial judge or elsewhere in the trial record, that makes it clear that the
trial judge
actually
applied different standards of scrutiny in
assessing the evidence of the appellant and complainant:
Howe
, at
para. 59;
George
, at para. 36.
Fourth, in the absence of palpable and
overriding error, there being no claim of unreasonable verdict, we are
disentitled to reassess and reweigh evidence:
George
, at para. 35;
R.
v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.
[44]
As Doherty J.A. observed in relation to an uneven scrutiny ground of
appeal in
Howe
, it is not enough to show that the trial judge failed
to say something they could have said in assessing credibility or expressly set
out the legal principles relevant to that credibility assessment, or that a
different trial judge could have reached a different conclusion on credibility.
The appellant must point to something in the reasons or the record that makes
it clear that the trial judge applied different standards in assessing the
evidence of the appellant and the complainant: at para. 59.
[45]
This observation was recently referred to by Karakatsanis J. in
R.
v. G.F.
, 2021 SCC 20, 404 C.C.C. (3d) 1, who observed that the Supreme
Court has never ruled on the issue of whether uneven scrutiny is an independent
ground of appeal. She noted that various provincial appellate courts have
stressed that it is a notoriously difficult argument to prove and that
[c]redibility findings are the province of the trial judge and attract
significant deference on appeal: at para. 99. She expressed serious
reservations about whether uneven scrutiny is a helpful analytical tool to
demonstrate error in credibility findings. She continued, at para. 100:
As reflected in the submissions here, it
appears to focus on methodology and presumes that the testimony of different
witnesses necessarily deserves parallel or symmetrical analysis. In my view,
the focus must always be on whether there is reversible error in the trial
judge's credibility findings. Even in
Howe
, Doherty J.A. ultimately
chose to frame the uneven scrutiny argument slightly differently: para. 64.
Rather than say that the appellant had demonstrated uneven scrutiny of the
evidence, Doherty J.A. explained that the essential problem in the trial
judge's reasons was that he had "failed to factor into his assessment of
[the complainant's] credibility his finding that she deliberately lied on
important matters in the course of testifying in reply": para. 64. In
appellate cases that have accepted an uneven scrutiny argument, there was some
specific error in the credibility assessments: see, e.g., [
R. v. Kiss
,
2018 ONCA 184], at paras. 88-106;
R. v. Gravesande
, 2015 ONCA 774, 128
O.R. (3d) 111, at paras. 37-43;
R. v. Willis
, 2019 NSCA 64, 379 C.C.C.
(3d) 30, at paras. 55-62;
R. v. Roth
, 2020 BCCA 240, 66 C.R. (7th)
107, at para. 54. As shown in
Howe
, uneven scrutiny easily overlaps
with other arguments for why a trial judge's credibility findings are
problematic. It is therefore unsurprising to see uneven scrutiny tacked on to
arguments like insufficiency of reasons, misapprehension of evidence, reversing
the burden of proof, palpable and overriding error, or unreasonable verdict.
[46]
With those principles in mind, I turn to the first branch of the
appellants uneven scrutiny ground that the trial judge erred in his
treatment of inconsistencies in the Crowns case. I do so while keeping in mind
that the ultimate question is whether the appellant has demonstrated something
in the record that shows that the trial judge applied different levels of
scrutiny in assessing the evidence of the appellant and the complainant, or
whether there is some reversible error in the trial judges credibility
findings.
[47]
The appellants submission in relation to this issue largely
concerns the trial judges treatment of the evidence of three witnesses called
by the Crown to refute the allegation that the complainant had fabricated the
assaults to gain advantage in ongoing family law proceedings concerning custody
and access of the child of the marriage. The witnesses were the complainants
older sister, the complainants co-worker, Ms. D., and the complainants
friend, Ms. W. Much of their evidence, to which the defence did not object,
consisted of communications the complainant made to them concerning the
appellants conduct, including the alleged assaults. Two of the witnesses
testified that they had seen bruises or injuries on the complainant, which she
had attributed to the appellants abuse.
[48]
With respect to the evidence of the complainants older sister, the
defence argued that inconsistencies between her evidence and the complainants
was due to the complainants subsequent fabrication of her allegations. The
trial judge found that the discrepancies were immaterial and insignificant. He
added that the sisters evidence did corroborate several significant traumatic
events relied upon as part of the prosecutions case.
[49]
The trial judge accepted Ms. W.s evidence, finding that she was
quite integral as far as supporting witnesses and was vigorously
cross-examined. The trial judge observed that the cross-examination made no
inroads that the evidence of [Ms. W.] was intentionally false or had been
molded by collaboration with [the complainant]. He added that [i]t does
provide some corroboration of an incident where [the complainants] arm was
hurt and that she made some complaint about locking herself in the bathroom
while pregnant. The trial judge concluded that the manner in which [Ms. W.]
answered questions and her demeanour was consistent with a truthful witness.
Any apparent inconsistencies were effectively rehabilitated, particularly
inconsistencies on minor omissions or a lack of concordance between that and
her oral statement.
[50]
Finally, the trial judge found that the evidence of Ms. D., who
testified that she saw bruises on the complainants neck, was supportive of the
complainants evidence. He found that the defence allegation of recent
fabrication in relation to this count was effectively countered by the
evidence of the [complainants] attendance at the doctors office.
[51]
The appellant submits that the trial judge ignored or glossed over
inconsistencies between the complainants evidence and the evidence of these
witnesses. He also submits that the trial judge improperly used the
complainants statements to the witnesses to corroborate the complainants
accounts of events, instead of using them for the purpose they were tendered
to rebut recent fabrication. Finally, the appellant argues that the trial judge
found corroboration in some evidence that was not corroborative.
[52]
Counsel for the appellant acknowledges that the trial judges use of
the complainants prior statements is not a free-standing ground of appeal,
based on an improper inference of corroboration from a prior consistent
statement. It is simply part of the submission that the trial judge applied
uneven scrutiny to the evidence.
[53]
Counsel for the respondent noted that the Supreme Court cast doubt
on uneven scrutiny as an independent ground of appeal in
G.F.
Here, he
submits that the trial judge did not convict on all counts and only convicted
where the evidence supported the complainants allegations or where there was
independent verification of injuries.
[54]
With respect to the complainants sisters evidence, respondents
counsel argued that the trial judge did not rely on her evidence at all to
convict the only evidence relied upon in convicting on the count relating to
the 911 call was the complainants evidence and the 911 call itself. The trial
judges use of the language of corroboration when discussing the sisters
evidence was a misnomer. The evidence was in fact being used to rebut recent
fabrication, and not for the truth of its contents. Like the sisters evidence,
Ms. W.s evidence was used to rebut the recent fabrication claim and was not
integral to the conviction on the 911 call count.
[55]
I would not give effect to this first branch of the appellants
uneven scrutiny submission, either standing alone or buttressed by the trial
judges use of demeanour or bad character evidence. The appellant has not
identified any palpable and overriding error in the trial judges assessment of
the evidence or anything in the reasons or the record that
actually
demonstrates the application of different
standards in the assessment of the evidence of the appellant and the
complainant.
[56]
It bears noting that the trial judge acquitted the appellant on
three counts of assault and one count of sexual assault. On Counts 4 and 5, the
alleged moving day assaults in July 2014, the trial judge found that there was
no supporting evidence and he was unable to reconcile the conflicting
evidence. On Count 8, the alleged assault involving a door in March 2015, the
trial judge was left in reasonable doubt because the complainant acknowledged
that it could have been an accident. On Count 6, the alleged sexual assault in
July 2014, the trial judge stated that the appellants evidence had left him in
reasonable doubt, and he had limited supporting evidence.
[57]
In contrast, the trial judge convicted the appellant on counts where
he not only accepted the complainants evidence and disbelieved the appellant,
but also where there was corroborative evidence.
[58]
With respect to Count 1, the complainants evidence was supported to
some extent by the 911 call itself. The trial judge accepted the complainants
explanation of why she did not report the assault during the 911 call itself or
when the police came in response to the call, and why she waited until 2016 to
disclose the incident to police. The trial judge also noted in his reasons that
the evidence of Ms. D. was supportive of the complainants evidence on this
count, not only to rebut recent fabrication but also to corroborate physical
injury, because Ms. D. observed a red mark on the complainants wrist and a
bruise where the appellant allegedly grabbed her.
[59]
With respect to Counts 2 and 3 on October 6, 2013, the trial judge
identified supporting evidence, including a doctors report, the observations
of the independent witness Ms. D. concerning the complainants injuries, and
the appellants apologetic email after the event.
[60]
Finally, with respect to Count 7, the November 2014 assault, the
trial judge found independent corroboration of the complainants allegations in
the call she made to Ms. W. while she had locked herself in the bathroom to
escape the appellant, and the text message she sent to Ms. W. showing bruises
on her arms. He found that the evidence of Ms. W. and Ms. D. served to refute recent
fabrication. Considering the evidence of the complainant and these two
witnesses, the evidence of the appellant was insufficient to raise a reasonable
doubt.
[61]
I do not accept the submission that the trial judge made improper
use of the appellants prior consistent statements. He correctly noted that
contemporaneous statements to independent witnesses could be admitted to rebut
the defence argument of recent fabrication. He was also entitled to rely upon
the observations made by independent witnesses of the complainants injuries as
corroborative of those injuries having been suffered.
[62]
I would therefore reject this submission.
[63]
In the second branch of his uneven scrutiny argument, the appellant
submits that the trial judge relied excessively on demeanour in assessing
credibility, and held the appellant to a higher standard because he was a
police officer.
[64]
The trial judge acknowledged that credibility was an important issue
at the trial. He observed:
Demeanour evidence is a significant part of
the overall assessment in weighing of evidence. On its own, it should never be
determinative of whether a witness should be believed or not believed. In this
trial, the demeanour of the primary prosecution witness and the accused is
significant in this assessment. There were instances of evasiveness, inability,
refusal to answer direct questions, and insistence on making argument rather
than presenting evidence. There was evidence of extreme animosity,
prevarication, hostility, self-interest. This was a dysfunctional toxic
relationship.
[65]
In commenting specifically on demeanour, and contrasting the
demeanour of the appellant and the complainant, the trial judge stated the
following with respect to the complainant:
I made earlier reference to demeanour
evidence, For the most part [the complainant] testified without reluctance,
without hesitation, responding to the questions put to her. She was respectful
of the Court and the process. She had intelligence and education to communicate
well. There were matters that were raised in cross-examination and if necessary
to correct her evidence, she did. She was not easily led. When she was
cross-examined and provided with more information and memory cues she provided
more and better answers. A couple of times in her evidence it appears she
either had no memory and she had periods of convenient forgetfulness. She
wasnt a perfect witness.
[66]
In contrast, the trial judge said the following concerning the
appellants demeanour:
While no Court should ever make a
determination of reliability and credibility on demeanour evidence, [the
appellant] exhibited poor demeanour and this becomes a negative factor in
assessing evidence, He didnt respond directly to questions. He often provided
excessive detail on minute points as if was a failed attempt to impress the
Court about his memory for detail, while not appreciating that detail had
nothing to do with the case was tangential and virtually impossible to subject
to cross-examination. Having regard to his experience in the Waterloo Police
Services, I expected him to have some experience testifying in court, perhaps
having received some training on how to present himself. He presented poorly.
He was argumentative.
In cross-examination when answering questions
he frequently used it as an opportunity to make legal argument, to attack the
character of [the complainant], to attack the investigation and to impress the
Court that [the complainant] was an unreliable witness. He had more than
competent counsel to do that for him. For example, on many occasions he told
the Court unprompted that [the complainant] was insanely jealous, manipulative,
and had engaged in conniving behaviour since the day he first met her.
[67]
I do not accept the appellants submission that the trial judge made
inappropriate use of demeanour evidence in his evaluation of credibility.
[68]
As we observed in
R. v. Hemsworth
, 2016 ONCA 85, 334 C.C.C.
(3d) 534, at paras. 44-45, reliance on demeanour must be approached cautiously
and it is of limited value in the assessment of credibility:
This court has repeatedly cautioned against
giving undue weight to demeanour evidence because of its fallibility as a
predictor of the accuracy of a witness's testimony:
Law Society of Upper
Canada v. Neinstein
, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66;
R. v.
Rhayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in
Rhayel
,
at para. 85, "[i]t is now acknowledged that demeanour is of limited value
because it can be affected by many factors including the culture of the
witness, stereotypical attitudes, and the artificiality of and pressures
associated with a courtroom."
Although the law is well settled that a trial
judge is entitled to consider demeanour in assessing the credibility of
witnesses, reliance on demeanour must be approached cautiously: see
R. v.
S. (N.)
, 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of
significance in this case is the further principle that a witness's demeanour
cannot become the exclusive determinant of his or her credibility or of the
reliability of his or her evidence:
R. v. A. (A.)
, 2015 ONCA 558, 327
C.C.C. (3d) 377, at para. 131;
R. v. Norman
(1993), 16 O.R. (3d) 295
(C.A.), at pp. 313-14.
[69]
As I have noted above, the trial judge specifically instructed
himself about the limited use to be made of demeanour. Although an appellate
court does not have the advantages of a trial judge in relation to the
assessment of demeanour, a review of the record supports the trial judges
observation that the appellants testimony often provided excessive detail on
minute points and that during cross-examination, he took the opportunity to
make legal argument, to attack the character of [the complainant], to attack
the investigation and to impress the Court that [the complainant] was an
unreliable witness. Appendix C to the respondents factum includes extracts
from the appellants cross-examination containing numerous examples of the
appellant refusing to answer questions directly, making argument, providing
information not relevant to the question, and using the opportunity to gratuitously
attack the complainant.
[70]
The trial judge was entitled to take this behaviour into account
when assessing the appellants credibility. While I question the validity or
utility of the trial judges comment that he would have expected a police officer
to have had training about how to present himself in court, this comment was
followed by an observation that the appellant presented poorly and was
argumentative the latter comment is supported by the record.
[71]
For these reasons, I would reject the submission that the trial
judge made inappropriate use of the appellants testimonial demeanour.
[72]
The final branch of the uneven scrutiny ground is the appellants
submission that the trial judge erred in his treatment and use of bad character
evidence, and applied an unbalanced approach to his analysis of the evidence of
the conduct of the complainant and the appellant. The complainant had brought
an
ex parte
application against the appellant in family court, without
disclosing that he had offered to settle the issues of custody and access. She
was ordered to pay the appellant $35,000 in costs, presumably as a sanction for
her conduct. In assessing this evidence, the trial judge stated:
It is argued that [the complainant is]
vengeful, blaming him for the breakup of the relationship.
In a small way some of her conduct bring discredit to her under
the issue of bias
. She brought an ex parte application against him in
family court without revealing that he had offered to negotiate the issues of
custody and access in a letter sent by his lawyer. It was argued that her
testimony was crafted only to show [the appellant] in the worse light. I am
asked to hold that she only regards [the appellant] with an entirely negative
attitude. [Emphasis added.]
[73]
The appellant asserts that the trial judge all too easily forgave
the complainants attempt to deceive the court in the family law proceedings,
while applying a stricter standard to his conduct.
[74]
In contrast, the appellant submits that the trial judge used
evidence of his bad character specifically, his crude, demeaning, and abusive
language directed towards the complainant to infer guilt. He submits that the
trial judges conclusion that his conduct was discreditable, and that the
complainants conduct only brought discredit to her in a small way, was
indicative of an unbalanced approach to the assessment of evidence.
[75]
There are many examples in the trial judges reasons of the
appellants language. The appellant points to six occasions in the reasons. I
will refer to one, contained in a text message, which the trial judge quoted as
follows:
I hate your fucking guts you no good fucking
whore. I let you in my childs life and I knew I never should have trusted you,
especially when you want me to choose between you and him. Youre a selfish
cunt, I fucking hate you. I hate you.
[1]
[76]
The trial judge observed:
Within the evidence there are many, many
examples of the manner in which [the appellant] spoke to [the complainant]
directly, electronically. His choice of nouns, verbs and adjectives used in
addressing [the complainant] were inconsistent with appropriate inter-spousal
language. One would expect a police sergeant in his 40s speaking to a much
younger wife to be more temperate. Instead, he was vulgar, profane, frequently
referring to parts of the female anatomy. He was bullying in tone and
frequently appears to be out of control. It was demeaning language, it was
disrespectful.
[W]e must remember that the vocabulary used by
[the appellant] towards [the complainant] continues in a vile, profane, vulgar
and demeaning tone. Its difficult to imagine why a man would use such language
directed to another man let alone a woman, let alone a woman in a domestic relationship,
particularly in the voice of a trained police officer. It speaks to rage and a
loss of control.
[77]
The limits on the use of bad character evidence were set out in
R.
v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 64:
As the majority of the Court of Appeal noted,
the evidence of Mr. Calnen's after-the-fact conduct was admissible on the
question of his credibility. Evidence of extrinsic discreditable conduct that
is otherwise relevant and admissible with respect to an issue in the case may
be used to assess the accused's overall credibility. In
R. v. G. (S.G.)
,
[1997] 2 S.C.R. 716, at para. 70, Cory J. laid to rest any doubt about this
common sense proposition:
To require a jury to compartmentalize its
thinking even further than this would be artificial and unnecessarily
convoluted. It is a matter of common sense that evidence of bad character may
reflect badly on the accused's credibility, and that the jury can use it as a
factor in determining if the accused is likely to be telling the truth. This is
not the same thing as suggesting that the accused is guilty because she is a
bad person, or may have a disposition to commit the type of crime for which she
is charged.
[78]
I do not accept the submission that the trial judge used the
appellants bad conduct to infer guilt. He referred to the appellants specific
behaviour, not his character. The trial judge was entitled to find that the
appellants abusive language, directed towards the complainant on many
occasions relating to the charged events, speaks to rage and a loss of
control. It also speaks to jealousy and therefore
animus
. He was also
entitled to consider the complainants misconduct in the family law proceedings
as of little relevance to her credibility in relation to the four counts on
which the appellant was convicted.
[79]
I would dismiss this ground of appeal.
(3)
Third Issue: Reasonable Apprehension of Bias
[80]
The appellant points to three interventions by the trial judge,
which he asserts give rise to a reasonable apprehension of bias, thereby compromising
trial fairness. While he acknowledges that, collectively, they do not warrant a
new trial, he submits they may be relevant when assessing the other grounds.
[81]
The respondent submits that the appellants failure to raise the
issue of bias before the trial judge should be a complete answer to this ground
of appeal.
[82]
For the reasons that follow, I see no merit to this ground of appeal
and it has no effect on the other grounds, which I reject in any event.
[83]
Before examining the incidents identified by the appellant, I will
briefly set out the applicable principles, which are not in dispute.
[84]
Public confidence in the legal system is grounded in the perception
that those who adjudicate in law must always do so without bias or prejudice
and must be perceived to do so:
Wewaykum Indian Band v. Canada
,
[2003] 2 S.C.R. 259, at para. 57;
Yukon Francophone School Board, Education
Area #23 v. Yukon (Attorney General)
, 2015 SCC 25, [2015] 2 S.C.R. 282, at
para. 23.
[85]
In determining the existence of a reasonable apprehension of bias,
the test is: what would an informed person conclude, having viewed the matter
realistically and practically and having thought the matter through? Would the
person think that it is more likely than not that the decision-maker, whether
consciously or unconsciously, would not decide the matter fairly?:
Committee
for Justice and Liberty v. National Energy Board
, [1978] 1 S.C.R. 369, at
p. 394,
per
de Grandpré J. (dissenting);
Yukon Francophone School
Board
, at paras. 20-21;
R. v. Ibrahim
, 2019 ONCA 631, 147 O.R.
(3d) 272, at para. 83.
[86]
There is a presumption of judicial impartiality. That presumption
may be displaced where the party establishes a real likelihood or probability
of bias:
Yukon Francophone School Board
, at para. 25; see also
Ibrahim
,
at para. 84.
[87]
A judges comments during a trial cannot be considered in isolation.
The inquiry is inherently contextual and fact-specific, and there is a
correspondingly high burden on the party alleging bias:
Yukon Francophone
School Board
, at paras. 25-26;
Ibrahim
, at para. 85.
[88]
As a general rule, allegations of bias or a reasonable apprehension
of bias should be advanced as soon as it is reasonably possible to do so. This
can serve to alert the trial judge to the possible need to modify their
behaviour or for a corrective jury instruction. It may also serve to create an
evidentiary record and a ruling for the purpose of an appeal, if necessary:
R.
v. Mills
, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 227.
[89]
The appellants first submission on this issue concerns an incident
that occurred after the trial judge made a ruling unfavourable to the defence.
It arose in the following manner.
[90]
The defence had challenged the complainants delay in reporting the
alleged assaults to police, pointing out that she knew a number of officers and
was familiar with the criminal justice system. During her cross-examination,
defence counsel asked whether she was, at that time, in a relationship with a
police officer whom she described as a roommate. The Crown objected to the question
based on s. 276 of the
Criminal Code
. Defence counsel responded that
he was simply trying to establish that this woman is well connected across a
number of police services in order to rebut her evidence that she was so lost
that she could never report any of this.
[91]
The trial judge indicated that defence counsel could ask the witness
whether she had a relationship with the individual
prior
to making her complaint, but that her relationship with the individual in the
present could not be relevant. There followed a brief and evidently somewhat
heated dialogue between the trial judge and defence counsel over the questions
the latter proposed to ask the witness. The trial judge said, Now, this line
of questioning stops right here. Its just totally irrelevant and immaterial.
You cant link it to anything that would be of any assistance to me in
determining the issues so
. The discussion continued, and after a few
moments, the following exchange occurred:
Defence Counsel: Your Honour, I dont think
have to telegraph [the import of the question to the complainant] according to
[
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193].
The Court: You do if you have to establish
relevance and materiality and since you choose not to do so, the ruling
Defence Counsel: Well
The Court: The ruling stands, [defence
counsel]. Were moving on.
Defence Counsel: Not that I
The Court: Were moving on, [defence counsel].
Defence Counsel: Respectfully, we will then
have
The Court: Get a court officer in here,
please.
Defence Counsel: Can we take a break, please?
The Court: We will.
Defence Counsel: If that may I just put
something on the record, please?
The Court: Yes.
Defence Counsel: Okay. Again, may I file [
Lyttle
]?
The Court: You may file [
Lyttle
].
Defence Counsel: Because I take it that the
reason may I ask why a court officer has to attend?
The Court: I like to have security in the
courtroom when Im hearing criminal matters and I think it enforces the need
for proper decorum in the courtroom and thats what I think I would like to
have henceforth in this matter.
Defence Counsel: All right. And may I address
that?
The Court: You may.
Defence Counsel: All right. Because really,
with great respect, what youre suggesting is that Im bordering on contempt,
which I disagree with and, according to [
Lyttle
], I have Im
duty-bound professionally to jealously protect my clients interests. And to
sort of to impugn my my credit, Your Honour, with great respect, I dont
think is necessary and therefore Id like a break to consider my options and
whether or not I need to bring a motion
The Court: We will take a break but I want to
answer you. Youre not bordering on contempt but when I have counsel not
accepting my decision, then Im thinking that counsel is beginning to go down a
path that I dont want to have take place in this courtroom. And it is a
criminal matter and Im going to have security in this courtroom from now on.
Defence Counsel: And again, so that I can
state what my concern is in view of what youve raised, the difficulty of
course with your ruling is that it creates a [
Browne v. Dunn
(1893), 6
R. 67 (U.K. H.L.)] situation because then I cant establish what Ive been
prohibited from doing so
The Court: Youve asked for a break. Im
giving you that break.
[92]
After the break, the Crown withdrew its objection to what had
appeared to be a question raising s. 276 concerns. The trial judge told defence
counsel that he could ask the questions, but added that wide latitude to
cross-examine did not mean unbridled licence and that cross-examination is
subject to the requirements of good faith and other limitations. Defence
counsel responded, I have always conducted myself with good faith, with all
due respect. I think Ill stand on my reputation. The trial judge said, Im
not talking about your reputation. Im talking about good faith in this trial.
To which defence counsel replied, Theres good faith in this trial.
[93]
The appellants second submission on the issue of bias arose during
the cross-examination and re-examination of the appellants mother, whom the
defence called as a witness. Her evidence was brief and almost exclusively
confined to one of the compliance charges. The Crown cross-examined her, also
briefly, asking whether she saw anything in the relationship between her son
and the complainant that caused her concern. She replied:
A: A couple of things that happened that did -
did disturb me and - and - and bother me and it had to do with [J.].
Q: Okay. Because we're not dealing with [J.]
in this case I'm gonna just let that go, okay.
A: Yes, all right.
[94]
In re-examination, defence counsel asked about the witnesss answer
with respect to J. The Crown objected on the basis that it was not a proper
subject of re-examination. The trial judge asked defence counsel how the
question was material and relevant. Defence counsel replied that he did not
know, but asserted that he was entitled to an answer. The following dialogue
ensued:
The Court: You're not unless it is material
and relevant and I'm giving you that opportunity to to argue and present that
her answer on this point is material and relevant in this proceeding. It may be
interesting but it's not material and relevant in a criminal process as it
stands now. Make your argument and satisfy me.
Defence Counsel: How can I make an argument
when I don't know the answer?
The Court: Well then that's the end of it
isn't it.
Defence Counsel: Well that's your ruling.
The Court: That's my ruling.
Defence counsel: Thank you. Thank you for
coming today ma'am. I know you spent the whole day here and it's a hard long
day but I thank you for coming. All right.
The Witness: I spent nine days here sir.
[95]
The third and final complaint regarding bias is an allegation that
the trial judge unfairly pressured defence counsel to abbreviate or end his
cross-examination of the complainant, who testified over five days in mid-May
and mid-June of 2018. Her evidence in chief was conducted on May 15 and 16 and
her cross-examination took place on June 11, 12 and 13.
[96]
On the afternoon of June 12, the trial judge granted an adjournment
to the following day because the complainant had a breakdown and was unable to
compose herself after what the trial judge described as a long and withering
cross-examination.
[97]
The appellant takes issue with comments made by the trial judge when
the complainants cross-examination resumed the following day, June 13, 2018.
He submits the trial judge made several comments encouraging defence counsel to
take shortcuts in the cross-examination and urging him to get it done today,
in spite of counsels objections that he did not want to be rushed.
[98]
In the course of these exchanges, the Crown raised a concern that
the evidence should be completed that day because if that did not happen, there
would be a break for several months over the summer before the trial resumed.
The trial judge said, Well, you can waive those concerns. If the staff is
onside Ill cut lunch back to half an hour today and well go late until shes
done. We have to do what we have to do.
[99]
Defence counsel pointed out that he had personal and family
responsibilities and was tired at the end of the day. The trial judge stated:
Well, lets see where were at. Well take the
bite out of lunch and if we have to Im not going to sit until 6:00 or 7:00
or anything like that, but we might have to go to 5:00. Thats about it. Ive got
to be have considerations for the staff. They may have childcare
responsibilities. Ill have to talk to them about that. Lets start off by
taking a bite out of lunch today and seeing where we go.
[100]
Later that morning, as defence counsel was about to cross-examine
the witness on a prior statement, the Crown rose to provide a copy to the trial
judge. There was a discussion about whether that was necessary, at which point
the judge observed:
The Court: Im just concerned of getting
things moving because Im seriously considering finishing your
cross-examination today so any shortcuts we can take to get matters
(unintelligible) would be appreciated.
Defence Counsel: Well, I just with all due
respect, I cant be rushed. I trust thats
The Court: Im not going to rush you. Im not
going to rush you but were going to stay late. So lets get on with it so we
can cover this material.
Defence Counsel: Well, I am. If it needs to be
said, I havent been dragging. Its been
The Court: [Defence counsel], nobody is
picking on you. I havent said anything. Ive got to get this done. Ive got a
witness here whos had a breakdown yesterday. We lost half a day. Im going to
sit late. If we have to order dinner in so everybody can be refreshed, well do
it, but were all going to share the pain and were going to get it done.
Defence Counsel: Right. And I have commitments
and I cant stay beyond a reasonable time as we discussed before the witness
came in.
[101]
Just before the lunch break, defence counsel asked the complainant
about having witnessed assaults committed by the appellant on his son, C. This
issue had not previously been raised in the complainants evidence and the
Crown rose to state that if the defence raised it, the Crown would re-examine
the complainant about it. The trial judge observed to defence counsel:
The Court: The Crown is indicating that if you
want to open the door, they intend to try to walk through it. Do you want that
lunch [break] to two oclock right now and [defence counsel], itll give you a chance
to get your thoughts consolidated?
Defence counsel: Yeah. Id appreciate it. I
think we could both have a little longer because it could well be that I
The Court: Ive got to pick up the time here.
I have this matter coming back in September and Im not Im going to tell you
right now, this is a cross-examination where youve been accessing everything
that this witness has said and answered and Im not going to have
cross-examination in September/October on what she said today based on a transcript
today on matters that arent overwhelmingly material so I think its got to be
done today and I think the witness is fragile and I dont like the idea of
working late. Im well past the age when Im in my prime after 4;30. Weve got
to get it done today. Lets take the break. By the time we walk out of here
lets just come back at two oclock. Well be starting at two oclock. Well
have picked up at least half an hour on this and well go from there. You know,
the two of you, if youve got some issues you want to get into, talk about it
so we can get to the heart of whats being asked. Okay?
[102]
At this point, defence counsel indicated that a somewhat longer
lunch break might be helpful so that he could review his notes, because his
cross-examination might be almost finished. The trial judge acknowledged that
he could take more time, if required.
[103]
As matters transpired, both cross-examination and re-examination
were completed that afternoon.
[104]
In addition to the foregoing incidents, the appellants factum identifies
several interchanges between the trial judge and counsel, which he submits were
critical, disparaging, or interruptive. I do not find it necessary to recount
them in full for the purpose of evaluating this ground of appeal.
[105]
In my view, the record in this case does not come close to
displacing the presumption of judicial impartiality.
[106]
First, I acknowledge that the trial judges call for security was
demeaning of counsel, inappropriate, and very unfortunate. That said, it was
triggered by counsel continuing to dispute a ruling made by the trial judge.
That, too, was improper and regrettable. However, on a full review of the
record, including the proceedings after the exchange and the entire course of
the trial, this was an isolated incident in what was clearly a hotly contested
and somewhat lengthy trial. Having regard to the entirety of record, it does
not reflect bias.
[107]
Nor do I see unfairness in relation to the re-examination of the
appellants mother. She gave a non-responsive answer to a question during
examination-in-chief, an answer that the Crown did not pursue. That did not
open the door to re-examination. In any event, the trial judges ruling does
not reflect bias.
[108]
Finally, I do not accept the submission that the trial judge
demonstrated bias or acted improperly in urging counsel to complete the
complainants cross-examination to avoid having to continue her evidence
several months later. That submission must be understood in the context of a
witness whose evidence had occupied five days, three of them in
cross-examination, and who had become emotionally distraught the previous day
during a vigorous cross-examination. Looking at the issue in context and not in
isolation, the record discloses that the trial judge recognized the challenges
defence counsel was facing and made reasonable efforts to accommodate them.
[109]
It is a bedrock principle of our criminal justice system that an
accused person has a constitutional right to a fair trial. But that does not
mean a trial without limits. While giving paramount consideration to the right
of an accused to make full answer and defence, a trial judge has a public
responsibility to ensure appropriate use of valuable public resources
(courtroom and court staff time) and to ensure that other participants in the justice
system (including witnesses and jurors) are not unnecessarily burdened. Given
the circumstances identified by the trial judge, it was entirely appropriate
for him to encourage counsel to seek ways to simplify and expedite the
completion of the complainants evidence.
V.
DISPOSITION
[110]
For these reasons, I would dismiss the appeal.
Released: January 7, 2022 G.R.S.
George
R. Strathy C.J.O.
I
agree. C.W. Hourigan J.A.
I
agree. David M. Paciocco J.A.
[1]
The actual language of the text message was: I fucking hate ur
fucking guts u no good fucking whore! I let u in my childs life and I knew I
shud have never trusted u! Especially when u want me to choose btw u and him! U
r a selfish fucking cunt! I fucking hate u! I hate u!
|
HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN"
COURT OF APPEAL FOR ONTARIO
CITATION: Extreme Venture Partners Fund I LP
v. Varma, 2022 ONCA 5
DATE: 20220106
DOCKET: C67057, C67062, C67364, C67376
Hourigan, Huscroft and Coroza
JJ.A.
BETWEEN
DOCKET: C67057
Extreme
Venture Partners Fund I LP, EVP GP Inc.,
Ravinder
Kumar Sharma, Imran Bashir, and Kenneth Teslia
Plaintiffs/Defendants by
Counterclaim
(Respondents)
and
Amar
Varma, Sundeep Madra, Varma Holdco Inc.
,
Madra
Holdco Inc.
,
Chamath Palihapitiya, El Investco I
Inc.
,
Extreme
Venture Partners Annex Fund I LP, and EVP GP Annex Fund I Inc.
Defendants/
Plaintiffs by
Counterclaim
(
Appellants
/
Respondents
)
AND BETWEEN
DOCKET: C67062
Extreme
Venture Partners Fund I LP, EVP GP Inc.,
Ravinder
Kumar Sharma, Imran Bashir, and Kenneth Teslia
Plaintiffs/Defendants by
Counterclaim
(Respondents/Appellants by
Cross-Appeal)
and
Amar
Varma, Sundeep Madra, Varma Holdco Inc.
,
Madra
Holdco Inc.
, Chamath Palihapitiya, El Investco I
Inc.,
Extreme
Venture Partners Annex Fund I LP,
EVP GP Annex
Fund I Inc., Cassels Brock & Blackwell LLP, and
Seven
Hills Group LLC
Defendants/Plaintiffs by
Counterclaim
(
Appellants/Respondents by Cross-Appeal
)
AND BETWEEN
DOCKET: C67364
Extreme
Venture Partners Fund I LP, EVP GP Inc.,
Ravinder
Kumar Sharma, Imran Bashir, and Kenneth Teslia
Plaintiffs/Defendants by
Counterclaim
(Respondents)
and
Amar
Varma, Sundeep Madra, Varma Holdco Inc.
,
Madra
Holdco Inc.
, Chamath Palihapitiya, El Investco I
Inc.,
Extreme
Venture Partners Annex Fund I LP,
EVP GP Annex
Fund I Inc., Cassels Brock & Blackwell LLP, and
Seven
Hills Group LLC
Defendants/Plaintiffs by
Counterclaim
(
Appellants
)
AND BETWEEN
DOCKET: C67376
Extreme
Venture Partners Fund I LP, EVP GP Inc.,
Ravinder
Kumar Sharma, Imran Bashir And Kenneth Teslia
Plaintiffs (Respondents)
and
Amar Varma,
Sundeep Madra, Varma Holdco Inc.,
Madra Holdco
Inc.,
Chamath Palihapitiya, El Investco I Inc.
,
Extreme
Venture Partners Annex Fund I LP,
EVP GP Annex
Fund I Inc., Cassels Brock & Blackwell LLP, and
Seven
Hills Group LLC
Defendants (
Appellants
)
Jonathan Lisus, Crawford Smith, Nadia
Campion, Vlad Calina and John Carlo Mastrangelo, for the appellants Amar Varma,
Sundeep Mandra, Varma Holdco Inc. and Madra Holdco Inc.
Andrew Brodkin, David E. Lederman and
Daniel Cappe, for the appellants Chamath Palihapitiya and El Investco 1 Inc.
Won J. Kim, Megan B. McPhee, Aris
Gyamfi and Rachael Sider, for the respondents
Heard: in writing
On appeal from the orders of Justice
Barbara A. Conway of the Superior Court of Justice, dated May 14, 2019, July
24, 2019, and February 4, 2020, and the judgment of Justice Barbara A. Conway
of the Superior Court of Justice, dated May 14, 2019.
COSTS ENDORSEMENT
[1]
The Respondents − Extreme Venture Partners
Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir, and Kenneth Teslia
− were successful in resisting an appeal commenced by Amar Varma and
Sundeep Madra, along with their respective holding companies, Varma Holdco Inc.
(Varma Holdco) and Madra Holdco Inc (Madra Holdco), collectively the
"Varma/Madra Appellants." They were also successful on the appeal
commenced by Chamath Palihapitiya and his holding company, El Investco 1 Inc., collectively
the Palihapitiya Appellants. In addition, the Respondents succeeded on their
cross-appeal.
[2]
As the successful parties, the Respondents are
entitled to their costs. They seek their costs of the appeals and cross-appeal
on a substantial indemnity basis. However, in our view, there was nothing in
the way this matter proceeded in this court that would justify an award of
costs on a higher scale.
[3]
We fix the total costs of the appeals and cross-appeal
on a partial-indemnity basis in the all-inclusive amount of $300,000. The Palihapitiya
Appellants shall pay $150,000 of the total costs award and the Varma/Madra
Appellants shall also pay $150,000 of the total costs award. Order to go
accordingly.
C.W.
Hourigan J.A.
Grant
Huscroft J.A.
S.
Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Biddersingh, 2022 ONCA 6
DATE: 20220110
DOCKET: C63052 & C63064
Strathy C.J.O., Hourigan and
Paciocco JJ.A.
DOCKET: C63052
BETWEEN
Her Majesty the Queen
Appellant
and
Elaine Biddersingh
Respondent
DOCKET: C63064
AND BETWEEN
Her Majesty the Queen
Respondent
and
Elaine Biddersingh
Appellant
Alexander Alvaro, for the appellant
(C63052) and respondent (C63064)
Paula A. Rochman,
amicus
, for
the respondent (C63052) and appellant (C63064)
Heard: November 25, 2021
On appeal from the conviction entered on
June 20, 2016, by Justice Ian A. MacDonnell of the Superior Court of Justice,
sitting with a jury.
Hourigan
J.A.:
Part I: Overview
[1]
In 1991, Melonie Biddersingh came to Canada as a
13-year-old with her brother, 12-year-old Dwayne, and stepbrother, 17-year-old
Cleon. She left Jamaica to live with her father, Everton Biddersingh, and her
stepmother, the appellant, in hope of a better life with more opportunities. Instead,
from the moment she arrived in Canada she endured horrendous abuse.
[2]
On September 1, 1994, a York Regional Police
officer discovered a fire burning beside a garbage bin in an industrial area of
Vaughan. After the fire department was called to extinguish the blaze, the body
of what appeared to be a child, or a small adult was located in the ashes
inside the remnants of a suitcase. A forensic pathologist determined that the
body was that of a severely malnourished female with 21 fractures and a broken
pelvis, and that the cause of death or a major contributing factor was
drowning. Unfortunately, at the time, the police were unable to identify the
victim. As a result, the case remained unsolved for almost two decades. The
body was later positively identified as Melonie.
[1]
[3]
In December 2011, the appellant disclosed to her
church pastor the circumstances of Melonies death. She advised that her
husband had abused Melonie and that her dead body had been put into a suitcase.
The appellant admitted that she, Cleon, and Everton had been involved in the
disposal of Melonies remains. In addition, the appellant disclosed details of
Everton abusing her, both around the time of Melonie's death and at the time of
the discussion. The pastor then provided this information to the Niagara
Regional Police. As a result, the appellant was eventually interviewed by the Toronto
police on January 23, 2012, at which point she provided information about the
circumstances of Melonie's death and her own safety concerns with respect to
Everton.
[4]
On March 5, 2012, Toronto police charged Everton
and the appellant with
failing to provide the
necessaries of life (two counts), criminal negligence causing bodily harm, aggravated
assault, forcible confinement, and offering an indignity to a dead human body
all in relation to their alleged mistreatment of Melonie. They were
subsequently charged with first degree murder.
[5]
The two accused were tried separately, with
Everton's trial proceeding first. The appellant was called as a witness. Prior
to the commencement of Everton's trial, the appellant unsuccessfully applied
for an order temporarily banning publication of her evidence and the evidence
of other witnesses as to what she was alleged to have said or done. The
appellant testified at Everton's trial over a period of four days. The position
of Everton's counsel was that she was responsible for Melonie's mistreatment
and death.
[6]
The trial received extensive negative media
coverage. On January 7, 2016, Everton was found guilty of first degree murder.
Subsequent media coverage outlined some of the evidence that had been ruled
inadmissible at trial, including information detailing Dwayne's suspicious
death in 1992.
[7]
The appellants trial for first degree murder
arising from Melonies death began on April 11, 2016.
Before
the trial, defence counsel contacted Crown counsel and sought its consent to
proceed without a jury, as required under s. 473(1) of the
Criminal
Code
, R.S.C. 1985, c. C-46, in light of the negative publicity surrounding
Elaine's evidence at Everton's trial. The Crown refused to consent to proceed
without a jury.
[8]
Defence counsel then brought an application to
permit the appellant to be tried without a jury based on negative pretrial
publicity, pointing to several media articles in relation to evidence adduced
and not adduced before the jury in Everton's trial. She also relied on the
results of a public opinion survey her counsel had commissioned regarding her
case.
[9]
The trial judge dismissed the defences
application and the jury convicted the appellant of second degree murder. On
her conviction appeal, with the assistance of
amicus
, the appellant
raises the following grounds of appeal:
1.
The trial judge erred in dismissing the
defence's application for a judge alone trial based on negative pretrial
publicity and juror partiality.
2.
The trial judge erred in ruling that certain
statements made by the appellant were admissible because she was not a suspect
at the time they were made, and in ruling that the police did not mislead her
about her legal jeopardy.
3.
The trial judge erred in refusing to instruct
the jury on the intervening act of drowning.
[10]
The Crown cross-appeals
against
the appellants acquittal for first degree murder only if the appellant
succeeds on her appeal from her conviction for second degree murder. The Crown
raises only one ground of appeal: the trial judge erred in law by limiting the
route to first degree murder to death caused by drowning.
[11]
For the reasons that follow, I would dismiss the
appeal. Given this result, it is unnecessary to consider the Crowns
cross-appeal. In summary, I conclude as follows:
·
The trial judge was correct in finding that the
appellant did not meet her heavy onus of establishing why the Attorney
General's consent to a trial by judge alone should be dispensed with in the circumstances
of this case. He properly considered the evidence and the general protections
in place to ensure fair jury trials.
·
Regarding the impugned statements, even if the
trial judges voluntariness analysis was flawed, there was no prejudice to the
appellant. The impugned statements were not introduced into evidence, and the
trial judges admissibility decision could not have realistically played a role
in her decision not to testify.
·
Finally, in the circumstances of this case, the
trial judge correctly instructed the jury that to be a cause of death, an act
or omission by the appellant must be a significant contributing cause. Given
this instruction, there was no need for an intervening act instruction.
Part II: Analysis
(1)
Jury Trial
(a)
The Issue
[12]
The appellant brought an application to dispense
with the Attorney Generals consent for a trial by judge alone on the basis
that her right to a fair trial under s. 11(d) of the
Canadian Charter
of Rights and Freedoms
would be compromised if a judge and jury tried her.
In making this submission, she pointed to the negative pretrial publicity about
her evidence at Everton's trial and the evidence that came out after the trial
regarding Dwayne's death in 1992 that resulted from a fall from the balcony of
the familys apartment. She also relied on a public opinion poll regarding her
case, arguing that it showed that she could not impanel an impartial jury.
[13]
The trial judge found that the polling evidence
filed by the appellant did not support the suggestion that it would be impossible
to find 12 impartial jurors. Further, he determined that, contrary to the
submissions of defence counsel, the questions to prospective jurors could be
devised in a way that would not reveal prejudicial information. The trial judge
also noted that the possibility of prejudicial details coming to the jury's
attention after they have been selected could be mitigated by the usual
safeguards, including instructions to the jury to refrain from attempting to
find information about the case.
[14]
On appeal, the appellant does not argue that the
Crowns conduct in refusing to consent to a judge alone trial amounts to an
abuse of process. Instead, she submits that her right to a fair trial has been
violated. Specifically, she argues that there was a sufficient evidentiary
basis for the order sought. According to the appellant, the trial judge erred
in law by setting the test for an order for a judge alone trial at a level that
is impossible to meet.
(b)
The Law
[15]
There is no dispute between the parties
regarding the relevant process and test on an application for a judge alone
trial pursuant to s. 473(1) of the
Criminal Code
. An accused
charged with murder must be tried by judge and jury unless the accused and the
Attorney General consent to a trial by judge alone. Where the Attorney General
does not consent, the accused can bring an application for an order for a judge
alone trial.
[16]
The test on such an application is difficult to
meet. It was described this way in
R. v. Khan
, 2007 ONCA 779, 230
O.A.C. 174, at paras. 13 to 16:
In s. 473(1) of the
Criminal Code
,
Parliament has made its intention clear that a person charged with murder, the
most serious crime in the
Criminal Code
, is to be tried by a court
composed of a judge and jury absent the consent of both parties. While this
provision can be overridden in order to ensure an accuseds right to a fair
trial, it should not be interfered with lightly.
In our view, this courts decision in
R.
v. Henderson
(2001),145 O.A.C. 150, is dispositive of this ground of
appeal.
Henderson
makes it clear that an accused seeking a judge alone
trial in these circumstances must, at a minimum, meet the test required for a
change of venue a test the appellants concede is more stringent than the one
they propose. On our view of the record, the appellants fall well short of
meeting that test. We are satisfied that their right to a fair trial was
adequately protected through well-established procedures, including extensive
screening of prospective jurors and challenges for cause.
As
Henderson
provides a full answer
to this ground of appeal, we find it unnecessary to finally determine the test
that should be applied when an accused seeks to dispense with the mandatory
requirement of trial by jury under s. 473(1). That said, we are inclined to the
view that absent consent from the Crown, in order to avoid the requirement of
trial by jury under s. 473(1), an accused must show that, on balance, the
time-honoured statutory and common law procedures designed to preserve and
protect the right of every accused to a fair trial by an impartial tribunal are
insufficient in the particular circumstances of his or her case.
Whatever the precise test, it will not be an
easy one to meet. That accords with our view that s. 473(1) should only be
overridden in the clearest of cases. The test proposed by the appellants falls
well short of the mark. If adopted, it would effectively eviscerate s. 473(1).
[17]
Based on the foregoing, the issue is whether the
trial judge erred in finding that the appellant had not met her onus of
establishing that this is one of the clearest of cases where s. 473(1) should
be overridden.
(c)
The Appellants Position
[18]
The appellant submits that the publicity
surrounding Evertons trial was widespread. In support of that submission, she
notes that during the course of the trial a juror referenced the death of
Dwayne in a conversation with another juror. The appellant concedes, however,
that the juror receiving the information brought it to the trial judge's
attention and was discharged, as was the juror who conveyed the information,
albeit for other reasons. The argument regarding these jurors is not raised as
an independent ground of appeal. In my view, it is unfair and unhelpful to
consider what a juror might have said during the trial in assessing the trial
judge's decision regarding the application for a judge alone trial made before
the trial. I do not consider that information relevant in determining whether
the trial judge erred in refusing the application.
[19]
As noted, the appellant's principal argument
relates to the sufficiency of the evidence she adduced on the application. She
filed affidavits that affixed copies of articles written about her. In
addition, she relied on the results of a public opinion telephone survey
conducted by Forum Research. Dr. Lorne Bozinoff, the President and CEO of Forum
Research, also testified on the application to explain the survey results. Given
problems with Dr. Bozinoff's testimony, the appellant did not rely on his
expert evidence and instead relied solely on the raw data generated by the
survey.
[20]
The appellant focuses on a series of questions
designed to determine whether the respondents would be prepared to discharge
their duties faithfully and properly. The appellants view of the data is that
an inference could be drawn that some jurors would not follow a judges
instruction not to seek or receive outside information, that some jurors would
engage in their own Internet research about the case and obtain inadmissible
information, and that some who received that information would not be able to
disabuse themselves of it when performing their duties.
[21]
The trial judge rejected that argument, at para.
41 of his ruling, on the basis that it "is founded on an assumption that
members of a real jury in a real trial will behave in the same way as random
members of the public taking a telephone survey." He observed that even
though the survey respondents were asked to assume that a judge had instructed
them not to research any details on the case, they were not asked to assume
that a Superior Court judge explained to them the importance of the
instruction, how it could lead to a miscarriage of justice if they did not
follow the instruction, and that they had taken an oath or made a solemn
declaration to decide the case solely on the evidence led at trial. Further, the
trial judge relied on
R. v. Find
, 2001 SCC 32, [2001] 1 S.C.R. 863,
for the proposition that trial processes are effective in cleansing jurors of
influence from emotion, prejudice, or preconception.
[22]
The appellant argues that the error in the trial
judge's analysis is that if a court can always fall back on the general court
process to protect the interests of the accused to a fair trial, then an order
for a judge alone trial under s. 473(1) of the
Criminal Code
will
never be granted. In other words, the bar has been set too high.
(d)
Discussion
[23]
I would not give effect to this ground of appeal.
I accept that the impugned part of the trial judges analysis regarding the
safeguards in the criminal jury system could apply in any case. However, in my
view, this part of his analysis was directly responsive to the inferences that
the appellant was drawing from the survey data. She put forward the rather
general argument that there is a chance that jurors would not abide by a trial
judges instructions and might conduct their own research. Of course, the same
argument could be made in any case. The trial judge quite correctly responded
to that submission by observing that the safeguards developed over the
centuries have evolved to protect against those possibilities.
[24]
Second, the trial judge's analysis was not
limited to the general safeguards in the trial process. He considered the
circumstances of this case. For example, he noted that the survey results
showed that when asked whether they had heard or seen anything in media or the
Internet regarding "the death of Melonie Biddersingh [whose] body was
found in [a] burning suitcase in 1994 [and whose] remains weren't identified
until 2012 when her father and stepmother were charged with murder," 46%
of respondents answered no. In addition, he pointed to the result that 74% of
respondents had not heard or seen anything about the appellant. The trial judge
also placed the coverage of Everton's trial in context, noting that at the time
of the trial, there was another high profile case in the news that involved the
shooting by a police officer of a member of the public on a streetcar.
[25]
In my view, the trial judge properly considered
the evidence and the general protections in place to ensure fair jury trials
and reached a decision that was free from error. Consequently, I would not give
effect to this ground of appeal.
(2)
The Appellants Statements
[26]
The Crown brought a pretrial application for an
order that various statements made by the appellant to the police were
admissible for the purposes of cross-examining her if she chose to testify. At
issue on this ground of appeal is the trial judge's ruling regarding two of the
appellant's statements. The first statement was made on January 23, 2012, to
Detective Sergeant Steve Ryan of the Toronto Police Service in the course of an
interview at the office of the Homicide Squad. The second statement was made on
March 5, 2012, to Detective Sergeant Ryan in the course of an interview at 52
Division following her arrest.
[27]
Detective Sergeant Ryan testified on the
voir
dire
. The defence called no evidence. The trial judge found that, at the
time of the January 23, 2012 statements made to Detective Sergeant Ryan, a
reasonably competent investigator would have considered the appellant to be a
witness and not a suspect because the investigation was focused on the
mistreatment of Melonie and potentially the appellant, and not neglect or
inadequate parenting on the appellants part. As a result, the confessions rule
did not apply and the statement could be used for the purposes of
cross-examination.
[28]
In the alternative, the trial judge concluded
that even if the appellant was a suspect, her statements were nevertheless
voluntary. He noted that the statement was videotaped and affirmed and that the
officer provided the appellant with the primary and secondary caution. The
officer instructed the appellant regarding her right to counsel and gave her
the opportunity to speak to a lawyer when she asked. Further, he told the
appellant that she could be charged with offences including homicide and warned
her of the penalties for lying under oath. All of these steps were consistent
with what she would have been told had she been arrested and charged, except
that she was informed that she could leave at any time. Thus, the trial judge
found that the cautions and warnings given by the officer were more than
sufficient to advise the appellant of her right to remain silent. He also held
that there was no evidence that Detective Sergeant Ryan misled her.
[29]
In addition, the trial judge found that the
statement made to Detective Sergeant Ryan after the appellant's arrest during
the police interview on March 5, 2012 was voluntary as it was not tainted by references
to the January 23, 2012 statement.
[30]
Neither of the statements were tendered in
evidence at trial, as the appellant elected not to testify.
[31]
The appellant submits that the trial judge made
three errors in his analysis. First, she argues that he erred in finding that she
was not a suspect but a witness at the time of her January 23, 2012 statement.
Second, the trial judge is said to have erred in finding that Detective
Sergeant Ryan did not mislead her by providing incorrect legal advice regarding
her potential jeopardy if she had done nothing to stop the abuse of Melonie.
Finally, the appellant submits that her March 5, 2012 statement should also
have been ruled inadmissible because it was tainted by references to her
January 23, 2012 statement.
[32]
In support of her submission, the appellant
seeks to adduce fresh evidence on this appeal. The proffered evidence is a CTV
news article published on September 10, 2021, in which former Detective
Sergeant Ryan now CP24's Crime Analyst discussed taking a statement from
the appellant and his reaction to her interview. The story was based on a
podcast on which the officer appeared. The appellant maintains that the parts
of the article demonstrate that Detective Sergeant Ryan misled the court when
he testified that he did not believe the appellant to be a suspect.
[33]
I am not persuaded that the appellant suffered
any prejudice as a consequence of the trial judges voluntariness ruling.
The
impugned statements were not introduced into evidence, and the trial judges
admissibility decision could not realistically have played any role in her
decision not to testify, given that she had conceded the voluntariness of two
other statements and would be facing her testimony from Everetts trial. Further,
there is nothing in the impugned interviews that could realistically have
altered her testimony.
[34]
Given my conclusion that the appellant could
have suffered no prejudice from the trial judges admissibility ruling, it is
unnecessary to consider the fresh evidence application. For these reasons, I
would dismiss this ground of appeal.
(3)
Intervening Act
[35]
The appellant submits
that the trial judge erred in failing to instruct the jury on the intervening
act of drowning in the context of culpable homicide. The defence requested this
instruction in the pre-charge conference. Specifically, it sought an
instruction that the jury should consider whether the drowning was an
intervening act. The request
for an
intervening act instruction arose from the theory that Everett may have drowned
Melonie on his own, which, if true, could have been an intervening act that broke
the chain of causation
.
[36]
The trial judge
rejected that request.
Instead, he repeatedly
instructed the jury that
the
appellants conduct had to make a significant contribution to Melonies death
t
o be guilty of culpable homicide. He
charged the jury as follows:
[335] Proof that Elaine Biddersinghs failure
to intervene to protect Melonie was an unlawful act is not sufficient to make
her guilty of culpable homicide unless it was a cause of Melonie's death. As I
have said, to be a cause of death, an act or omission must be a significant
contributing cause. It is for you to say whether the defendants failure to
intervene played a significant role in permitting a course of conduct that led
to Melonie's death by drowning to continue. If you have a reasonable doubt concerning
whether it played a significant role, then her failure to intervene will not
make her guilty of culpable homicide.
[336] As I have said, one of the essential
elements that must be proved to make a failure to perform the legal duty to
protect Melonie from harm an unlawful act is the objective foreseeability of
endangerment of Melonie's life or the risk of permanent injury to her. Objective
foreseeability does not require that the specific mechanism of harm that was
ultimately inflicted on Melonie, drowning, have been foreseeable... What is
required, rather, is that a reasonable person would have foreseen that the
failure to protect Melonie from the ongoing course of assaultive behaviour
would lead to some further assaultive behaviour that would endanger her life or
create a risk of permanent injury. Accordingly, if you are satisfied beyond a
reasonable doubt that Elaine failed to intervene of protect Melonie, in
circumstances that make her failure an unlawful act, that that unlawful act
made a significant contribution to Melonie's death, and that it was objectively
foreseeable that a failure to intervene would expose Melonie to a danger to her
life or the risk of permanent injury, she is guilty of culpable homicide.
[37]
I am not persuaded that
the trial judge erred in declining to give the intervening act instruction. His
significant contribution instruction was entirely consistent with the decision
of the Supreme Court in
R. v. Maybin
,
2012 SCC 24, [2012]
2 S.C.R. 30, at para. 38.
[38]
In
my view, given the factual circumstances of this
case, the significant contribution instruction made an intervening cause
direction unnecessary. This can be seen by looking at the material factual
scenarios if Melonie drowned:
·
Scenario 1: The appellant caused the drowning
death of Melonie by actively participating in the drowning as a principal. No
intervening act is possible, and no direction is required.
·
Scenario 2: The appellant aided or abetted
Everett by encouraging him to drown Melonie or by assisting the drowning in
some way short of direct participation, with the intention of assisting him. If
she intentionally aided or abetted the very act, no intervening act is
possible, and no direction is required.
·
Scenario 3: The appellant failed to fulfil her
duty to protect Melonie from Everetts abuse in circumstances where it was
reasonably foreseeable that Everett would kill Melonie. For there to be
causation, the jury would be required to conclude that the appellants failure
to act was a significant contributing cause to Melonies death. The trial judge
not only repeatedly told the jury in general terms that to convict the
appellant, they had to find that she had to make a significant contribution to
Melonie's death, but also directed the jury specifically on this theory of
guilt, telling them that they had to find that the appellants failure to
discharge her duty by intervening had to play a significant role in permitting
the course of conduct that led to Melonies death. On that scenario, there is
no possibility of an intervening act.
·
Scenario 4: Everett drowned Melonie on his own,
without the appellants participation, either unforeseeably or without the
appellant having failed to discharge her duty. This would be an intervening act
on Everett's part, but if the jury had a reasonable doubt that this may have
happened, the judge's direction that to be guilty, the appellant had to make a
significant contribution to Melonie's death, would have prevented her
conviction.
[39]
Based on the preceding analysis, I
am of the view that the trial judge did not err in failing to give the
requested intervening act instruction. On the contrary,
the jury had a functional understanding of their
obligations as a consequence of the significant contribution instruction.
Therefore, I would dismiss this ground of appeal.
Part III: Disposition
[40]
I would dismiss the application for fresh
evidence and dismiss the appeal for the foregoing reasons. The cross-appeal was
only to proceed if the appellant succeeded in her appeal. Therefore, I would
dismiss the cross-appeal as abandoned.
Released: January 10, 2022 G.R.S.
C.W. Hourigan J.A.
I
agree. G.R. Strathy C.J.O.
I agree.
David
M. Paciocco J.A.
[1]
First names are used in these reasons for clarity and are not
intended to show any disrespect to the parties.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v. Jarvis, 2022 ONCA 7
DATE: 20220112
DOCKET: C67419
Miller, Zarnett and Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kristian Jarvis
Appellant
Myles Anevich, for the appellant
Jessica Smith Joy, for the respondent
Heard: January 4, 2022 by
video conference
On appeal from the sentence imposed on March
20, 2019 by Justice John McMahon of the Superior Court of Justice.
REASONS FOR DECISION
[1]
The appellant
was sentenced to 13 years
in custody, with credit for 3 years for time served, after pleading guilty to
four counts of robbery while using a firearm, four counts of recklessly
discharging a firearm, one count of aggravated assault, and one count of
failing to stop for police.
[2]
The appellant argues that the sentencing judge erred in four
respects:
1.
By imposing the sentence related to discharging a firearm at a police
officer consecutively rather than concurrently;
2.
By imposing a harsh, excessive, and crushing sentence;
3.
By failing to adhere to the principle of restraint; and
4.
By erring in principle by failing to properly weigh the aggravating and
mitigating factors.
[3]
At the hearing of the appeal, counsel for the
appellant focused his submissions on the first and fourth grounds.
[4]
As explained below, we do not agree that the
sentencing judge made any error.
[5]
The decision to impose sentences consecutively is
a discretionary decision. The sentencing judge carefully attended to the
circumstances of the case and concluded that the offences ought to be grouped
into three distinct phases: (1) firing a handgun at his brother, (2)
multiple attempted carjackings and assaults including shooting the occupant of
one of the vehicles, and (3) evading capture by firing at the police while
engaging them in a high speed chase up Highway 400. The appropriateness of sentencing
consecutively for offences related to flight from police is supported by the
authorities that stress the need for deterrence of highly dangerous behaviour in
flight from police:
R. v. Corcho
, [1993] O.J. No. 98 (C.A.);
R. v.
Mills
, 2014 ONSC 1134, at para. 110; and
R. v. McFarlane
, [2012]
O.J. No. 6566 (S.C.), at paras. 70-73. If sentences for such offences are not
consecutive, flight from police might seem well worth the risk:
R. v.
Sturge
(2001), 17 M.V.R. (4th) 272 (Ont. C.A.), at para. 6. The sentencing
judge made no error in this regard.
[6]
The 10-year sentence imposed for aggravated
assault involving gun violence and injury was within the range identified by
the parties of 7 11 years:
R. v. Bellissimo
, 2009 ONCA 49, at para.
3. With respect to firing at police during the chase on Highway 400, the
sentencing judge reduced the consecutive sentence for discharging a firearm
with intent to endanger the life of the police officers to 3 years from 7 out
of respect for the totality principle. The sentencing judge was entitled to
approach sentencing in this fashion, and the total sentence resulting was not harsh
and excessive given the circumstances of the offences.
[7]
With respect to the restraint principle, the sentencing
judge considered the facts relevant to restraint, including the appellants
lack of a prior criminal record and that the global sentence imposed should not
crush the appellants hope of rehabilitation and reintegration into society.
The sentencing judge did not err by prioritizing denunciation and deterrence in
the circumstances of these offences and this offender.
[8]
Finally, the appellants submission that the
trial judge erred in improperly weighing the aggravating and mitigating factors
is in reality an invitation to reweigh, something an appellate court is not
permitted to do. The sentencing judge took into account, as a mitigating
factor, that the appellant had committed the offences while in a drug induced
psychosis brought on by the voluntary ingestion of methamphetamines, but also
noted that this did not justify his criminal conduct and that the appellant had
made conscious and clear decisions demonstrating a high degree of culpability. The
sentencing judge did not make the error of using the elements of the offences
as aggravating factors. Carrying a handgun was an aggravating element, as was the
number of times the appellant fired the gun, and the infliction of gratuitous
violence, particularly with respect to the victim he shot.
DISPOSITION
[9]
Leave to appeal sentence is granted but the
appeal of sentence is dismissed.
B.W.
Miller J.A.
B.
Zarnett J.A.
S.
Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: UL Lawyers Professional
Corporation v. Notay, 2022 ONCA 8
DATE: 20220112
DOCKET: C69327
Doherty, Tulloch and Thorburn
JJ.A.
BETWEEN
UL Lawyers Professional
Corporation
Applicant (Appellant)
and
Jasbir Notay
Respondent (Respondent in Appeal)
Sunish R. Uppal and Vismay Merja, for
the appellant
Jamie Min, for the respondent
Heard: January 5, 2022 by
video conference
On appeal from the order of Justice
Thomas A. Bielby of the Superior Court of Justice, dated March 23, 2021.
REASONS FOR DECISION
[1]
The appellant law firm (UL) acted for the
respondent in motor vehicle litigation. The respondent discharged UL and
retained the Naimark Law firm (Naimark). UL sought an undertaking from
Naimark to protect ULs account for legal fees and disbursements arising out of
the retainer with Mr. Notay. Ultimately, no undertaking satisfactory to UL was
provided by Naimark. UL sought a solicitors lien in the amount of $73,195.75
against the proceeds of the settlement of the accident benefit claims arising
out of the motor vehicle litigation.
[2]
The application judge identified the three
criteria which must be satisfied to obtain a solicitors charging order. The
solicitor must show:
·
the fund or property over which the charging
order is sought is in existence at the time the order is sought;
·
the property must have been recovered or preserved
through the instrumentality of the solicitor; and
·
there must be some evidence that the client
cannot or will not pay the lawyers account: see
Bilek v. Salter Estate
,
2009 CanLII 58582 (ONSC).
[3]
The application judge was satisfied the first
two criteria were met. He concluded, however, that there was no evidence the
client would not or could not pay the fees. The application judge relied on
what he found to be a clear undertaking given by Naimark to protect ULs
account for fees and disbursements.
[4]
Counsel for UL submits the application judge
made a palpable and overriding error in concluding that a clear undertaking had
been given by Naimark. In addition to alleged errors in respect of the evidence
before the application judge, counsel also relies on the fact that after the
application judges decision, Mr. Notay commenced a $5,000,000 lawsuit against
UL. In that action, he claims that UL was negligent and in breach of its
fiduciary duty to him in the context of the tort litigation arising out of the
automobile accidents. UL argues that this lawsuit, on its own, constitutes
some evidence that the client cannot or will not pay ULs fees and
disbursements.
[5]
The evidentiary burden on a solicitor to show
the client cannot or will not pay the lawyers fees is a low one. There need
only be some evidence. The evidence before the application judge arguably
cleared that evidentiary hurdle. The undertaking relied on by Naimark was
arguably ambiguous. Naimarks refusal to provide an undertaking in the terms
requested by UL, and its delay in responding to ULs request for clarification,
along with disputes over the amounts of certain disbursements, provide reasons
to doubt that Mr. Notay would pay the fees and disbursements in issue.
Furthermore, after about four months of wrangling over the terms of the
undertaking to pay ULs fees and disbursements, Naimark appeared to further
qualify the undertaking to protect ULs fees by including the indication that
any undertaking would be subject to the clients approval. No approval was
forthcoming. Finally, the tone of the communications between UL and Naimark
took on a decidedly hostile tone, suggestive of the possibility of litigation
over ULs fees and disbursements.
[6]
Ultimately, it is unnecessary to decide whether
the application judge made a clear and palpable error in declining to make the
order sought by UL. The lawsuit commenced by Mr. Notay after the application
was heard, considered along with the factors identified by the application
judge, provides some evidence that Mr. Notay would not pay ULs account.
[7]
The appeal is allowed. UL is entitled to a
solicitors lien on the funds obtained through settlement of the accident
benefit claims in the litigation brought on Mr. Notays behalf in the amount of
$73,195.75.
[8]
The appellant, having successfully reversed the
result on the application, is entitled to costs on the application. We fix
those costs at $1,662 plus H.S.T., the amount the application judge had awarded
to Mr. Notay on the application. UL is also entitled to costs of the appeal. We
fix those costs in the amount of $4,867, inclusive of disbursements and H.S.T.
Doherty
J.A.
M.
Tulloch J.A.
J.A.
Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Amatuzio v. 650 Atwater Avenue
Ltd., 2022 ONCA 9
DATE: 20220112
DOCKET: C68798
Rouleau, van Rensburg and
Roberts JJ.A.
BETWEEN
Michele Amatuzio and Magdalena
Amatuzio
Applicants (Appellants)
and
650 Atwater Avenue Ltd.
Respondent (Respondent)
Obaidul Hoque, Zaheed Moral and Taheratul
Haque, for the appellants
Micheal Simaan, for the respondent
Heard: January 4, 2022 by
video conference
On appeal from the order of Justice Heather
A. McGee of the Superior Court of Justice, dated October 13, 2020.
REASONS FOR DECISION
[1]
The appellants contracted with the respondent to purchase a new
condominium unit in a residential development that the respondent was building
in Mississauga. After the respondent required a number of extensions, the
interim occupancy date was set for June 27, 2019. The appellants were concerned
that the unit was not in fact ready for occupancy, and there were
communications between legal counsel for the parties. Ultimately, the
appellants purchase was not completed and eventually the unit was sold to another
purchaser.
[2]
The appellants brought an application seeking a declaration that the
respondent had breached the agreement of purchase and sale (the APS) and for
a reference to determine damages.
[3]
The central issue in the application was whether the respondent complied
with its obligations under a Tarion Warranty Corporation Addendum that formed
part of the APS. Section 9(a) of the Tarion Addendum provides as follows:
9. Ontario Building Code Conditions of Occupancy
(a) On or before the Occupancy Date, the Vendor shall deliver
to the Purchaser:
(i) an Occupancy Permit (as defined in paragraph (d)) for the
home; or
(ii) if an Occupancy Permit is not required under the Building
Code, a signed written confirmation by the Vendor that all conditions of
occupancy under the Building Code have been fulfilled and Occupancy is
permitted under the Building Code.
Occupancy Permit is defined as any written or
electronic document, however styled, whether final, provisional or temporary,
provided by the chief building official (as defined in the
Building Code Act
) or a person designated by the chief
building official, that evidences that permission to occupy the home under the
Building Code
has been granted.
[4]
The application judge concluded that, notwithstanding that an Occupancy
Permit dated June 27, 2019 was in fact provided for the unit by the
respondents lawyer to the appellants lawyer on July 9, 2019, on a plain
reading of the
Building Code
,
an occupancy permit was not
required for the purchasers unit because a condominium development with
multiple floors does not fall within the definition of a residential building
that requires an occupancy permit. She concluded that the June 27, 2019 letter
from the builders representative was sufficient: at para. 28.
[5]
The appellants assert that there was no evidence to support the
application judges conclusion that no occupancy permit was required under s.
1.3.3.4 of Part C of the
Building Code
[1]
, which was based on
statements of the respondents counsel during oral argument, and that the
application judge erred in failing to consider s. 1.3.3.4 in the context of the
other provisions of s. 1.3.3. During oral argument on the appeal we asked the
respondents counsel to take us to the evidence that supported this conclusion.
He referred to photos of the buildings under construction and drawings in the
record to assert that no occupancy permit was required, but suggested at the
same time that the evidence was not as clear as the application judge
suggested.
[6]
It is unnecessary for the disposition of this appeal to determine
whether an occupancy permit was required. Even if the application judge was
correct in concluding that no occupancy permit was required, we agree with the
appellants that she made a palpable and overriding error in her conclusion that
the June 27 letter was delivered before closing, on June 26, along with the
pre-delivery inspection form, and that this satisfied the requirement under s.
9(a) of the Tarion Addendum.
[7]
There is no evidence that the letter was delivered to the purchasers
as required by the terms of the Tarion Addendum on June 26, or at any time
until the responding materials were delivered in these proceedings. Rather, the
evidence of the builders representative was that the letter, together with the
key to the appellants unit, was placed in an envelope that was available for
pick up on closing. The respondents counsel refers to an answer to an
undertaking with respect to evidence that the letter had been delivered, which simply
states that, according to the respondents real estate solicitor, all
purchasers solicitors were informed that the key and any final instructions
would be available upon receipt of all closing documents and funds. At no
time during the exchange between the parties counsel with respect to whether
an occupancy permit was required did the respondents counsel indicate that
such a letter existed or ensure that it was delivered. To the contrary, he took
the position that the unit was cleared for occupancy by the City and that the
appellants lawyer should satisfy himself that occupancy was permitted.
[8]
Accordingly, we allow the appeal. The respondent failed to comply with
s. 9(a) of the Tarion Addendum until July 9, 2019, and the appellants were
entitled to set a new date for the interim closing. The evidence is that they
attempted to do so, and had provided evidence that they were in funds and ready
to close once the occupancy permit was provided.
[9]
The order below and the order for costs against the appellants are set
aside. The appellants are entitled to an order declaring that the respondent
breached the APS by failing to close the interim purchase and sale of their
unit, with a reference to determine damages.
[10]
The
appellants are entitled to their costs of the appeal, which we fix at $7,500,
inclusive of HST and disbursements, and costs of the proceedings in the court
below fixed at $15,000 plus HST.
Paul Rouleau J.A.
K.
van Rensburg J.A.
L.B.
Roberts J.A.
[1]
The
application judge referred to s. 1.3.3.3, which the parties agree was in fact a
reference to s. 1.3.3.4, which was relied on by the respondent at the hearing
of the application.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Ho v. Ontario, 2022 ONCA 11
DATE: 20220112
DOCKET: C69369
Rouleau, van Rensburg and
Roberts JJ.A.
BETWEEN
Wendy Sin Ming Ho
Plaintiff (Appellant)
and
Her Majesty the Queen in Right
of Ontario
Defendant (Respondent)
Wendy Sin Ming Ho, acting in person
Adam Mortimer, for the respondent
Heard: January 7, 2021 by video conference
On
appeal from the order of Justice Frederick J. Myers of the Superior Court of
Justice, dated March 24, 2021, with reasons at 2021 ONSC 2249.
REASONS FOR DECISION
[1]
The appellant alleges that she suffered
significant psychological harm from harassment and criminal threats made
against her while employed at an Ontario hospital between 1999 and 2000.
[2]
Her efforts to obtain redress against her
employer were dismissed by the Ontario Labour Relations Board and the Workplace
Safety and Insurance Appeals Tribunal. The Ontario Human Rights Commission
refused to take up her case, and she obtained no satisfaction from a complaint
before the Health Professions Appeal and Review Board.
[3]
The appellant then sued the Crown and the four
tribunals for their failure to protect her from the alleged illegal acts of her
former supervisor and employer. Firestone J. found that the tribunals were not suable
entities and struck her claim against the Crown with leave to amend.
[4]
The present appeal is from the motion judges dismissal
of that amended pleading. There, the appellant argued that the Crown is responsible
for her employers alleged harassment and threats, as well as the subsequent
failure of the tribunals to support her claims, because the province is constitutionally
responsible for hospitals and provincial administrative tribunals. She also claimed
that these wrongs violate her security of the person and right to equal benefit
of the law as guaranteed by the
Canadian
Charter of Rights and Freedoms
.
Finally, the appellant sought a declaration and an injunction requiring the Royal
Canadian Mounted Police (RCMP) to investigate the alleged criminal conduct on
the part of her former employer.
[5]
The motion judge dismissed the appellants action
because her pleading could not possibly result in a judgment against the Crown.
The motion judge explained that the Crown is not vicariously liable for the
employment related issues of public hospitals, nor is it liable for the quasi-judicial
decisions of administrative tribunals. He also determined that the alleged
Charter
breaches were no more than the appellant disagreeing with the outcome of the
tribunal proceedings. Finally, the motion judge found no basis for a court
exercising civil jurisdiction to make a declaratory order compelling a criminal
investigation by the RCMP.
[6]
Before this court, the appellant has sought to
reframe the arguments she made below. She suggests there has been a fraud on
the court, and that the court must protect her rights and prevent abuses of
authority. In addition, she criticizes the way she has been treated by the
legal system, including the fact that she has not been provided with
appropriate assistance to advance her claim.
[7]
The appellant has also brought a motion seeking
leave to file fresh evidence. That fresh evidence consists principally of
material related to her dispute with her previous employer, as well as her
request for a declaratory order compelling the RCMP to carry out an
investigation.
[8]
In our view, the appellant has not demonstrated
any error on the part of the motion judge. Her arguments, although reframed,
are, in effect, the same as were made before the motion judge. There is simply
no viable cause of action pleaded against the Crown. As for the fresh evidence,
it does not, in our view, assist her in making out a potential claim.
[9]
For these reasons, the motion to file fresh
evidence and the appeal are dismissed. Costs to the respondent are fixed in the
amount of $2,500 inclusive of disbursements and applicable taxes.
Paul
Rouleau J.A.
K.
van Rensburg J.A.
L.B.
Roberts J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Meridian C C Intl Inc. v. 2745206
Ontario Inc., 2022 ONCA 12
DATE: 20220112
DOCKET: C69533
Rouleau, van Rensburg and Roberts
JJ.A.
BETWEEN
Meridian C C Intl Inc. and
Guiyan Xin
Plaintiffs/Defendants by Counterclaim
(Appellants)
and
2745206 Ontario Inc.
Defendant/Plaintiff by
Counterclaim
(Respondent)
Robert S. Choi and Gina P. Rhodes, for
the appellants
Michael A. Katzman, for the respondent
Heard: January 4, 2022 by
video conference
On appeal
from the judgment of Justice Frederick L. Myers of the Superior Court of Justice
dated May 3, 2021, with reasons reported at 2021 ONSC 3270.
REASONS FOR DECISION
[1]
This appeal concerns a termination provision in
a commercial lease. Paragraph 11(1) of the lease permits the landlord to terminate
the tenancy upon giving 180 clear days written notice where the landlord
desires to remodel or demolish any part of the rented premises to an extent
that renders continued possession by the tenant impracticable. It is the
interpretation and application of the quoted words that are in issue in this
case.
[2]
The respondent landlord gave the appellant
tenant the requisite 180 days written notice to terminate under para. 11(1) of
the lease so that it could remodel the premises. The remodeling plan proposed
the demolition of the garage, the remodelling of the main floor into two
separate units, the replacement of windows, wiring and plumbing throughout the
premises, and the use of part of the basement for building services and
utilities. The appellants (the tenant and its principal) resisted the termination.
They asserted, among other things, that the termination was in bad faith
because the respondent had sought to terminate the lease, which had been in
existence since 2013, shortly after purchasing the building in which the leased
premises were located. They also claimed that the proposed remodelling would
not interfere with the operation of the tenants business. The retail portion occupied
only one half of the main floor of the building, such that the remodelling
would not render the tenants continued possession impracticable.
[3]
In the litigation that followed, the respondent
moved for summary judgment seeking to enforce the termination. The motion judge
found that the planned renovations were
bona fide
and that the
premises as described under the lease would cease to exist because of the
planned renovations. As a result, he concluded that continued possession by the
tenant was impracticable. He rejected as irrelevant the issues surrounding the
evolution of the landlords plans and whether the tenant could possibly remain
in part of the premises during renovations because, as he explained, the
proposed remodeling and demolition deprive the tenant of substantial portions
of the Premises defined under the lease. He determined that the respondent
properly gave notice to terminate the lease in accordance with the parties
bargain. He dismissed the appellants action and allowed the respondents counterclaim
to terminate the lease, with costs to the respondent in the amount of $75,000.
[4]
The appellants raise several grounds of appeal.
To dispose of the appeal, it is necessary to resolve only the issue of whether
the motion judge erred in construing para. 11(1) of the lease too narrowly and
in isolation from the other provisions of the lease.
[5]
For the reasons that follow, we agree that the
motion judge made reversible errors of law in his interpretation of the lease, and
we allow the appeal.
[6]
It is helpful to begin our analysis with the
standard of review. The motion judges interpretation of the parties lease
agreement, including its factual matrix, would ordinarily attract a deferential
standard of appellate review:
Sattva Capital Corp. v. Creston Moly Corp.
,
2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52. Absent an extricable question
of law, which courts should be cautious in identifying, or palpable and
overriding error, appellate intervention is not warranted:
Sattva
, at
paras. 53-54.
[7]
An extricable question of law includes a legal
error made in the course of contractual interpretation such as the application
of an incorrect principle, the failure to consider a required element of a
legal test, or the failure to consider a relevant factor:
Sattva
, at
para. 53. Moreover, a failure to consider the contract as a whole, by focussing
on one provision without giving proper consideration to other relevant
provisions, can also be an error of law:
Fuller v. Aphria Inc.
, 2020
ONCA 403, 4 B.L.R. (6th) 161, at para. 50;
Resolute FP Canada Inc. v. Ontario
(Attorney General)
, 2019 SCC 60, 444 D.L.R. (4th) 77, at paras. 26-27, 30
and 32-34. Finally, in
Ventas, Inc. v. Sunrise Senior Living Real Estate
Investment Trust
, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24, this court
emphasized that a commercial contract should be interpreted as a whole, in a
manner that gives meaning to all of its terms and avoids an interpretation that
would render one or more of its terms ineffective. In our view, the motion
judge made these errors of law in his analysis of the lease.
[8]
The motion judge was required to consider whether
it was impracticable in this case for the landlord to carry out the proposed
remodelling while the tenant continued in possession. This was a fact-specific
exercise for the motion judge to undertake based on his interpretation of the
particular lease and the evidence in the record before him:
Kinglip
Holdings Inc. v. Novak Graphics Inc.
, [2000] O.J. No. 3723 (S.C.), at
para. 12.
[9]
However, the motion judge erred by focussing too
narrowly on the definition of the leased premises and the results of the proposed
renovations. This was a flawed approach. Instead of giving effect to para. 11(1)
in its entirety, the motion judges approach would give rise to the unintended
and commercially unreasonable result that any change which reduces the area of
the leased premises would allow the landlord to terminate the lease. The motion
judges approach further caused him to interpret para. 11(1) of the lease in a
manner that was inconsistent with the whole of the parties agreement. Most
notably, the motion judges narrow interpretation would untenably permit the
landlord to terminate the lease in order to make alterations, such as partitioning
the main floor, and lease parts of the leased premises to other tenants when,
with the approval of the landlord, the tenant is permitted to carry out the
same kinds of alterations and sublet parts of the premises under paras. 4 and 7
of the lease.
[10]
As a result of these errors, the motion judge
failed to determine the principal question that he had to decide, namely, the
question of whether the proposed renovations rendered continued possession by
the tenant impracticable. Accordingly, whether the tenant could remain in possession
and continue its operation in part of the premises during the renovations were
relevant questions, among others, that the motion judge should have determined.
[11]
It is not appropriate for this court, on the
available record, to make the factual findings to determine these issues. Accordingly,
we set aside the dismissal of the action and the judgment in the counterclaim, such
that the action will continue in the Superior Court.
[12]
While not strictly necessary to dispose of this
appeal, it will be of assistance to the parties going forward for us to address
the appellants argument concerning the motion judges treatment of the opinion
offered by the appellants construction witness, Tim Clarke. We see no error in
the motion judge declining to accept Mr. Clarkes opinion evidence. As the motion
judge rightly noted, the appellants did not seek to qualify him as an expert. Mr.
Clarke was not a fact witness but was proffered solely for the purpose of giving
opinion evidence. If the appellants wish to adduce Mr. Clarkes opinion
evidence in this action, they will have to comply with the requirements respecting
experts under the common law and the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194.
Disposition
[13]
Accordingly, we allow the appeal. The judgment
and the costs order are set aside.
[14]
The appellants are entitled to their partial
indemnity costs of the appeal in the amount of $15,000, inclusive of disbursements
and applicable taxes.
[15]
As this matter is not finally determined, it is
appropriate to reserve the disposition of the summary judgment motion costs to
the judge who finally disposes of this action.
Paul
Rouleau J.A.
K.
van Rensburg J.A.
L.B.
Roberts J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Kam v. Canadian Broadcasting Corporation, 2022 ONCA 13
DATE: 20220111
DOCKET: C69274
Huscroft, Trotter and Coroza
JJ.A.
BETWEEN
Michelle Kam
Plaintiff (Appellant)
and
Canadian Broadcasting
Corporation, Zach Dubinsky and Lisa Mayor
Defendants (Respondents)
Christopher Stienburg, for the
appellant
Andrea Gonsalves and Carlo Di Carlo,
for the respondents
Heard: January 10, 2022 by
video conference
On appeal from the order of Justice Eugenia
Papageorgiou of the Superior Court of Justice, dated March 3, 2021.
REASONS FOR DECISION
[1]
The appellant argues that the motion judge erred
in finding the photo of the appellant (Statement 6) in the second article was
not defamatory. We disagree. The motion judge applied the proper test and her
conclusion that the placement of the photo was not capable of bearing any of
the defamatory meanings claimed by the appellant is entitled to deference.
[2]
The appellants main argument is that the motion
judge erred in finding that she failed to demonstrate that the defence of
responsible communication did not tend to weigh more in favour of the respondents.
There is no merit to this argument.
[3]
The motion judge applied the proper legal
framework from
1704604 Ontario Ltd. v. Pointes Protection Association
,
2020 SCC 22, and
Grant v. Torstar
, 2009 SCC 61, [2009] 3 S.C.R. 640,
and her findings are amply supported by the record. It was reasonable for the
respondents to conclude that the appellant chose not to respond to the
allegations given her refusal to speak with the respondents concerning those
allegations on several occasions. The motion judge made no error in finding
that no material facts were omitted from the publication and again, her
decision is entitled to deference.
[4]
Finally, the motion judge addressed the public
interest balancing under s. 137.1(4)(b) only out of caution, in the event
that her decision concerning the responsible communication defence was found to
be erroneous. We have concluded the motion judge made no error in applying s.
137.1(4)(a). As a result, her findings concerning s. 137.1(4)(b) are irrelevant
and we are not to be taken as endorsing or rejecting them.
[5]
The appeal is dismissed.
[6]
The respondents are entitled to costs in the
agreed amount of $8,300, all inclusive.
Grant Huscroft J.A.
Gary Trotter J.A.
S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Idea Notion Development Inc. v.
CTO Boost Inc., 2022 ONCA 14
DATE: 20220113
DOCKET: C69205
Doherty, Tulloch and Thorburn
JJ.A.
BETWEEN
Idea Notion Development Inc.
Plaintiff (Respondent)
and
CTO Boost Inc., Gurminder
Kandola and Gursharnjit Kandola
Defendants (Appellant)
James R. Smith for the appellant, CTO
Boost Inc.
Aaron Boghossian, for the respondent
Heard: January 4, 2022 by
video conference
On appeal from the order of Justice
Papageorgiou of the Superior Court of Justice, dated February 12, 2021 and
reported at 2021 ONSC 289.
REASONS FOR DECISION
[1]
The appellant (CTO) hired the respondent
(Idea Notion) to provide software development services on various projects.
The work began in August 2018 and was completed about 10 months later. Idea Notion
submitted five invoices to CTO totalling about $219,000. CTO made no complaint
about the quality of the work, or the invoice amounts.
[2]
CTO provided Idea Notion with cheques for their
services, however, many of those cheques were returned NSF. As of June 2019, there
remained about $200,000 owing to Idea Notion, based on the invoices submitted
by it to CTO.
[3]
Negotiations in respect of the payment of the
outstanding invoices ensued over several months. CTO made two offers to settle.
Both were rejected by Idea Notion. On October 17, 2018, CTO made a third offer
to settle based on a lump sum payment of $85,000 by CTO, followed by 12 equal monthly
payments totalling $115,000, for a total payment of $200,000. On October 22,
2018, Idea Notion, through counsel, accepted CTOs October 17, 2018 offer.
[4]
Three days after accepting the offer, counsel
for Idea Notion provided CTO with draft Minutes of Settlement. Discussions
concerning those draft minutes occurred between October 25 and November 5,
2018. On November 5, 2018, CTO advised Idea Notion that CTO would not proceed
with the settlement, claiming the invoices were fraudulent and inflated.
[5]
On November 19, 2018, Idea Notion sued CTO on
the original contract. Idea Notion later amended its claim to include a claim
for enforcement of the settlement entered into in October 2018.
[6]
Idea Notion successfully moved for summary
judgment on the claim to enforce the settlement. CTO appeals from that judgment
and renews many of the arguments unsuccessfully advanced on the summary
judgment motion.
[7]
We are satisfied this appeal must fail. As we
are in substantial agreement with the motion judge, we need not repeat her
careful analysis and need only deal briefly with the grounds of appeal.
Ground #1: Did the motion judge err in
allowing Idea Notion to tender without prejudice documents relating to the
two rejected Offers to Settle made by CTO prior to October 2019?
[8]
Normally, without prejudice communications
made in the course of settlement discussions are inadmissible. They are,
however, admissible if disclosure is necessary to prove the existence or scope
of the settlement:
Union Carbide Inc. v. Bombardier Inc.
, 2014 SCC
35, at para. 35.
[9]
CTO denied that it entered into an enforceable
agreement to settle (Statement of Defence, at para. 35). Mr. Kandola, the
directing mind of CTO, repeated that assertion in his examination.
[10]
It was incumbent on Idea Notion to demonstrate
the existence of the agreement to settle. To do so, Idea Notion had to refute
CTOs claim that there was no agreement to settle because CTOs offer was conditional
upon CTO being satisfied that the amounts invoiced were correct. Idea Notion
also had to refute CTOs argument that there was no settlement because the
October offer did not deal with all of the terms essential to a settlement,
including the potential ongoing liability of the personal defendants.
[11]
In the course of considering and rejecting these
arguments, the motion judge took into account some of the without prejudice
communications between counsel for CTO and counsel for Idea Notion (e.g. see
Reasons, at paras. 46-49, 53-58). The motion judge was entitled to consider the
without prejudice documents to the extent those documents were relevant to the
existence of the alleged agreement to settle. CTOs arguments that the October
offer was conditional, and that it did not contain all essential terms, both
went to the existence of an agreement to settle. The contents of the without
prejudice documents, even though they related to prior offers, were also
relevant to whether the parties had reached an agreement in October.
Consequently, the without prejudice communications fell squarely within the
exception to the exclusionary rule described in
Union Carbide
. The
motion judge correctly held the documents to be admissible.
[12]
In a related argument, CTO submitted that the
without prejudice documents were submitted by way of an affidavit that was
filed in contravention of r. 39.02 of the
Rules of Civil Procedure
.
Even if there was non-compliance with r. 39.02, CTO was not prejudiced, given
our finding that the without prejudice documentation was admissible. There is
no suggestion that CTO was, in any way, taken by surprise by the documentation,
or unable to address the significance, if any, of the documents on the motion.
The real complaint is that the documents were inadmissible. We have held the
motion judge correctly determined they were admissible.
Ground #2: Did the motion judge err in her
analysis of the evidence presented on the summary judgment motion?
[13]
The motion judge was entitled to weigh the
evidence offered by the parties and make assessments of the credibility and
reliability of various aspects of that evidence. She gave several reasons for
giving little credence to CTOs evidence in respect of the
bona fides
of the invoices provided by Idea Notion. She also gave reasons for giving
little weight to the analysis of those invoices allegedly done by Mr. Kandolas
brother (Reasons, at paras. 68-82).
[14]
The motion judges observations with respect to
that evidence were available on the record. She was entitled to make those
assessments and we defer to her credibility and reliability findings. Based on
her assessment of the evidence, this was an appropriate case for summary
judgment.
Ground #3: Was there any basis upon which to
give effect to CTOs fraudulent misrepresentation defence?
[15]
The motion judge properly identified the
elements of the defence (Reasons, at para. 67). In concluding that the defence
provided no reason not to grant summary judgment, the motion judge said:
The most significant problem with CTOs
argument [i.e. that the settlement was procured by fraudulent misrepresentation],
however, is that even if the invoices contained errors or misrepresentations,
fraudulent or otherwise, Mr. Kandola admits that CTO believed there were
discrepancies, had access to all the information needed to audit them, and then
decided to proceed with settlement negotiations in any event.
CTO cannot show that any alleged misrepresentation in the
invoices caused it to enter into the settlement. It did so with its eyes wide
open as to the possibility of discrepancies for its own business reasons
.
[Emphasis added.]
[16]
The observations of the motion judge are
supported by the record. We are also satisfied that the without prejudice
documentation was admissible on the question of whether any misrepresentation
by Idea Notion with respect to the
bona fides
of the invoices
allegedly made during the negotiations had any impact on CTOs decision to make
the offer to settle in October 2018.
Ground #4: Should the motion judge have
exercised her discretion and declined to enforce the settlement by way of
summary judgment?
[17]
There is a discretion to decline to enforce
settlement agreements by way of summary judgment motions. This discretion is
guided by administration of justice concerns. If the enforcement of the agreement
would be unreasonable, result in an injustice, or for some other good reason,
not be in the interests of justice, the motion judge can decline to grant
summary judgment on the agreement, even though on the evidence an agreement was
reached.
[18]
The motion judge considered and rejected the arguments
that the interests of justice required that she not exercise her discretion in
favour of enforcing the agreement on a summary judgment motion (Reasons, at
paras. 84-94). As this involves an exercise of discretion, we must defer to the
motion judge, absent a determination that the motion judges decision is
unreasonable or tainted by legal error. In our view, the motion judges finding
is neither unreasonable, nor based on any legal error.
Conclusion
[19]
The appeal is dismissed. Idea Notion is entitled
to its costs against CTO, the only defendant involved in the summary judgment
motion. We fix those costs at $8,000, inclusive of disbursements and relevant
taxes.
Doherty
J.A.
M.
Tulloch J.A.
J.A.
Thorburn J.A.
|
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