Good evening,

Following are the summaries for this week’s civil decisions of the Court of Appeal for Ontario.

One of the substantive decisions this week involved an appeal from civil contempt findings. In Business Development Bank of Canada v Cavalon Inc., the Court of Appeal upheld the lower court’s finding of contempt and jail time for both the principal of a company and his former lawyer for violating a court order. The Court allowed the appeal in part, and reduced the custodial sentences from 90 days to 45. The decision contains a summary of the elements of contempt and sentencing principles.

For those interested in Charter issues, the decision in Ogiamien v. Ontario (Community Safety and Correctional Services) dealt with the issue of whether frequent lockdowns at Maplehurst Correctional Complex constituted a violation of section 12 (cruel and unusual punishment), in relation to two inmates who brought section 24 applications under the Charter.

Also, in Bracken v. Fort Erie (Town), the appellant successfully challenged a trespass notice issued by the Town of Fort Erie following a loud protest outside the Town Hall, as a violation of his rights to freedom of expression under section 2(b) of the Charter. The appellant was angered by the Town’s decision to introduce a by-law permitting a medical marijuana facility to be built across the street from his home. The Court held that while the protest was disruptive, the appellant’s actions were not violent in nature and that the application judge erred in characterizing the protest as outside the protection of s. 2(b) of the Charter. The appellant’s section 2(b) rights were engaged, and the Town could not justify the infringement under s. 1 of the Charter.

Have a great weekend.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416 593 2953
http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents

Civil Decisions

Arrow ECS Norway AS v. John Doe, 2017 ONCA 664

Keywords: Torts, Fraud, Bona Fide Purchasers For Value Without Notice, B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, Remedies, Tracing

Business Development Bank of Canada v Cavalon Inc., 2017 ONCA 663

Keywords: Debtor-Creditor, Oppression, Civil Procedure, Orders, Enforcement, Contempt, Rules of Civil Procedure, Rule 60.11(5), Carey v Laiken, 2015 SCC 17, Korea Data Systems Co. v Chiang, 2009 ONCA 3, Vidéotron Ltée v Industries Microlec produits électriques Inc., [1992] 2 SCR 1065, Sentencing, Boily v Carleton Condominum Corp 145, 2014 ONCA 574, College of Optometrists (Ontario) v SHS Optical Ltd., 2008 ONCA 685, Sussex Group Ltd v Sylvester (2002), 62 O.R. (3d) 123 (S.C.)., R v Pham, 2013 SCC 15

Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667

Keywords: Constitutional Law, Human Rights, Inmates, Cruel and Unusual Treatment, Canadian Charter of Rights and Freedoms, ss. 7 and 12

Bracken v. Fort Erie (Town), 2017 ONCA 668

Keywords: Constitutional Law, Municipal Law, Trespass Law, Mootness, Freedom of Speech, Canadian Charter of Rights and Freedoms, s. 2(b), R v Keegstra, [1990] 3 S.C.R. 697, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, The Municipal Act, s. 229, Occupational Health and Safety Act, s. 25(2)(h),, Judicial Review Procedure Act, Trespass to Property Act.

For Criminal Decisions, click here.

For Civil Endorsements, click here.

Civil Decisions

Arrow ECS Norway AS v. John Doe, 2017 ONCA 664

[Sharpe, Lauwers and Roberts JJ.A.]

Counsel:

  1. R. Wingfield and D. Robins, for the appellant
    R. Worsfold, for the respondent

Keywords: Torts, Fraud, Bona Fide Purchasers For Value Without Notice, B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, Remedies, Tracing

Facts:

The appellant was defrauded by Sunny Stable Ltd. (“Sunny Stable”) and HongKong JYC Limited (“JYC”) of over US$66 million in a much larger series of banking transactions. However, there were only two bank transfers in issue on this appeal. The first is the transfer of CDN$100,000 on January 20, 2016, to the respondent, Yiong Tian’s former employee, Hong Yao, to repay monies that he had borrowed from her in November 2015. The second is the transfer of US$300,000 on January 21, 2016 to the respondent’s US dollar bank account with the Royal Bank of Canada.

Both of these transfers were arranged through the respondent’s intermediary, Li Wang. The first transfer was from Sunny Stable’s HSBC account to the former employee’s RBC account. The second transfer was ordered to be transferred by JYC from the Sunny Stable’s HSBC account to the Royal Bank of Canada (“RBC”). RBC deposited the funds to the respondent’s US dollar account on January 25, 2016.

After receiving confirmation of the receipt of the Canadian and US dollar transfers, the respondent paid for the transfers by sending the equivalent in Chinese currency on January 21 and 22, 2016 to accounts with Agricultural Bank of China, as instructed by Li Wang. It was later discovered that these accounts were also held in the name of Sunny Stable. The Canadian and US dollar funds that had been transferred were stolen funds.

The respondent’s uncontroverted evidence is that he is a highly successful businessman who transferred monies to Canada to support his grandchildren’s education and to purchase real estate. He maintained in his affidavit and during his cross-examination that he had no knowledge of and did not participate in the defrauding of the appellant. He also stated that he was unaware of the source of the monies at the time that he had purchased them through his intermediary, Li Wang.

The motion judge held that the appellant had failed to trace its stolen monies to the respondent. Regardless, the motion judge was satisfied that the respondent was innocent and ignorant of the fraud perpetrated on the appellant, and that the respondent was a bona fide purchaser of the stolen funds and thereby entitled to the funds.

Issues:

(1) Did the motion judge err in failing to find that the appellant had traced the stolen funds to the respondent?
(2) Did the motion judge err in finding that the respondent was a bona fide purchaser for value of the funds stolen from the appellant?

Holding:

Appeal dismissed.

Reasoning:

(1) No regarding one of the transfers. Yes regarding the other transfer. There was no error with the motion judge’s conclusion that the appellant had not traced the CDN$100,000 funds. However, the motion judge made an overriding and palpable error in finding that the appellant had not traced the US$300,000 fund. In the latter case, the monies clearly traced from their withdrawal from the appellant’s account to their final deposit in the respondent’s account. The respondent’s submission that the commingling of the appellant’s funds with funds in the accounts of JYC or Sunny Stable prevents their tracing was rejected.

(2) No. The court applied the test adopted by the Supreme Court in B.M.P. Global Distribution Inc. v. Bank of Nova Scotia for monies paid under a mistake of fact. The test is that if a person pays money to another under a mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under a mistake of fact. However, there are three defences under which the claim may fail:

  1. The payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend;
  2. Payment is made for good consideration; and
  3. The payee has changed his position in good faith, or is deemed in law to have done so.

While the first defence does not apply in this case, the motion judge accepted the respondent’s evidence that he was innocent of any wrongdoing and unaware of the fraud perpetrated against the appellant. The motion judge also found that the respondent had paid valuable consideration for the funds that were deposited to his US bank account. Therefore, the second and third defence applied. The court added that B.M.P. does not stand for the proposition that the second and third defences only apply if the respondent no longer retains the stolen funds.

Finally, the court rejected the appellant’s submission that the motion judge erred in finding that the respondent was a bona fide purchaser because he had obtained access to all of the stolen funds through his knowing participation in an illegal underground currency exchange that engaged in money laundering. The motion judge determined that there was insufficient evidence to demonstrate that the underground currency exchange was illegal or commonly used for money laundering. More important, the motion judge found that there was no evidence that the respondent knew or had reasonable grounds to believe that the funds that he had purchased had an illicit source. These findings were available to the motion judge and contained no error. There is no basis to interfere.

Business Development Bank of Canada v Cavalon Inc., 2017 ONCA 663

[Weiler, van Rensburg and Huscroft JJ.A.]

Counsel:

D LaFramboise, for the Appellant Robert Francis Bortolon

A J Esterbauer, for the Appellant Robyrt Regan

B Frydenberg, for the Respondent Business Development Bank of Canada

Keywords: Debtor-Creditor, Oppression, Civil Procedure, Orders, Enforcement, Contempt, Rules of Civil Procedure, Rule 60.11(5), Carey v Laiken, 2015 SCC 17, Korea Data Systems Co. v Chiang, 2009 ONCA 3, Vidéotron Ltée v Industries Microlec produits électriques Inc., [1992] 2 SCR 1065, Sentencing, Boily v Carleton Condominum Corp 145, 2014 ONCA 574, College of Optometrists (Ontario) v SHS Optical Ltd., 2008 ONCA 685, Sussex Group Ltd v Sylvester (2002), 62 O.R. (3d) 123 (S.C.)., R v Pham, 2013 SCC 15

Facts:

The Respondent Business Development Bank (“BDC”) loaned Cavalon $100,000 which was secured by a General Security Agreement. Cavalon defaulted on the loan and BDC commenced an action for judgment in the amount of the indebtedness. Judgment was obtained in December 2011. The Appellant, Bortolon, was the principal of Cavalon as well as 2365222 Ontario Ltd. (“236”). The other Appellant, Regan, was formerly Bortolon’s lawyer. The solicitor-client relationship between the Appellants ended in February 2013 as a result of unpaid legal fees and a refusal by Bortolon to return Regan’s antique Cadillac.

A fire occurred on Cavalon’s premises in November 2013 in which $98,000 worth of assets were lost. 236 asserted that it owned these assets and was therefore entitled to the insurance proceeds. 236 alleged that the proceeds were not subject to the security agreement between Cavalon and BDC.

BDC alleged that Bartolon shifted assets from Cavalon to 236 in order to circumvent BDC’s judgment and security interest against Cavalon. BDC brought an application against 236 pursuant to the oppression provisions of the Ontario Business Corporations Act (“OBCA”).

In 2015 BDC applied for, and obtained, a declaration that Bortolon and his companies had waived solicitor-client privilege with respect to their relationship with Regan. BDC also obtained an order directing Regan to produce documents and attend examinations (the “Le May Order”). In light of this order, Regan sent a letter to Bortolon’s counsel (the “Regan Letter”) notifying the parties that some of the documents in his possession would reveal factual inconsistencies in Bortolon’s affidavit and would be highly prejudicial to their case. Regan indicated that he would be willing to return the documents to Bortolon (which amounted to 18 boxes worth) if he were to settle his account and return the Cadillac.

Several days later, Regan informed BDC that he was no longer in possession of any of Bortolon’s files. Bortolon turned over 5 boxes of the files in question to BDC with Regan producing an additional 4 (including the Regan Letter). The documents provided to BDC were largely irrelevant to the matter at issue. Regan stated that he returned the documents because Bortolon “had a higher right to the material”.

BDC brought a motion for contempt against both Regan and Bortolon. The motion judge found both Bortolon and Regan in contempt of the Le May order. They were each sentenced to 90 days imprisonment and ordered to pay costs on a substantial indemnity scale. The motion judge also found 236 in contempt and approved a request for a default judgment against it, on grounds that it was unlikely that BDC would ever be able to obtain a fair trial. Each party appealed the contempt order and the custodial penalty and Bortolon (but not 236) attempted to appeal the default judgment against 236.

Issues:

(1) Was 236 entitled to the insurance fund?

(2) Was Bortolon bound by the Le May Order?

(3) Did the motion judge err in holding Bortolon in contempt?

(4) Did the motion judge err in holding Regan in contempt?

(5) Did the motion judge err in concluding that the Appellants’ conduct warranted a jail sentence?

(6) Was the length of the custodial sentence proportionate?

Holding:

Appeal allowed, in part.

Reasoning:

The court started off by confirming the applicable and well-known standards of review. Questions of fact are subject to the standard of palpable and overriding error. Questions of law are subject to the correctness standard. Questions of mixed fact and law are subject to the same standard as questions of fact, unless the motion judge erred in principle with respect to the characterization of the standard or its application, in which case, the error will amount to an error of law.

(1) Not decided. The motion judge cited 236 in contempt. The penalty imposed was judgment for damages pursuant to the oppression provisions of the OBCA. The insurance funds were released to BDC. 236 did not appeal any of the orders against it and Bortolon has no standing to seek relief on behalf of 236. He must either bring a derivative action or the corporation must bring the action.

(2) Yes. As per the Supreme Court in Carey v Laiken, 2015 SCC 17, the elements of contempt are:

(a) The order alleged to have been breached must state clearly and unequivocally what      should and should not be done;

(b) the party alleged to have breached the order must have had actual knowledge of it;      and

(c) the party allegedly in breach must have intentionally done the act that the order            prohibits or intentionally failed to do as the order compels.

All elements must be proven beyond a reasonable doubt. Bortolon conceded that the first two elements were met. However, he argued that the third element cannot be met because only Regan, and not he, was bound by the order. The court cited numerous authorities that establish that a person can be found in contempt for aiding and abetting a contempt of court, and thus this ground of appeal was dismissed.

(3) No. It was open to the motion judge to disbelieve Bortolon’s evidence. Based on the evidence he accepted, he was entitled to find that Bortolon’s contempt had been proven beyond a reasonable doubt.

Bortolon also argued that he had no chance to purge his contempt. This was found to be factually untrue (he had three months between the contempt hearing and the imposition of the penalty). In any event, as per College of Optometrists (Ontario) v SHS Optical Ltd., 2008 ONCA 685, the ability to purge contempt is relevant only to penalty and not liability. Thus the finding of contempt was affirmed.

(4) No. Regan argued that a moving party in a contempt hearing should be obliged to cross-examine the alleged contemnor on his evidence if there is an intention to contradict it. No such obligation exists. Regan’s evidence was internally inconsistent and the motion judge was entitled to rely on these contradictions to reject it.

Regan also argued that BDC failed to establish contempt beyond a reasonable doubt. He argued that his evidence established that he did not have any materials that were the subject of the Le May Order, which he did not provide. The weight to be attached to evidence is a matter for the motion judge. It was open to the motion judge to find Regan in contempt beyond a reasonable doubt. The motion judge correctly applied the Carey framework. Based on his finding of fact, the three elements of contempt were established beyond a reasonable doubt and thus the appeal from the contempt order was rejected.

(5) No. At the penalty phase of a contempt hearing, courts have wide discretion. Rule 60.11(5) of the Rules of Civil Procedure (“RCP”) provides that the court may make such order as is just including:

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary.

A deliberate breach of a court order may constitute either a civil or criminal contempt. Criminal contempt requires an element of public defiance calculated to lessen societal respect for the courts. Citing Korea Data Systems Co. v Chiang, 2009 ONCA 3, the court noted that the purpose of a sentence for criminal contempt is primarily punishment, whereas the purpose of a sentence for civil contempt is primarily about coercion, as it is designed to protect the rights of private parties. However, courts have also recognized that, like criminal contempt, acts of civil contempt undermine the authority of the courts and diminish respect for the law.

The court cited the Supreme Court in Vidéotron Ltée v Industries Microlec produits électriques Inc., [1992] 2 SCR 1065, noting that the public law aspects of contempt have moved it beyond the realm of private law, and that the public law aspects of contempt should be reflected in the penalties imposed.

The court reviewed a myriad of jurisprudence on the proposition that the purpose of a contempt order is both to compel obedience and to punish the contemnor, including College of Optometrists. Further jurisprudence was examined, standing for the principle that jail sentences have been imposed for failure to produce documents, for example Sussex Group Ltd v Sylvester (2002), 62 O.R. (3d) 123 (S.C.), where the Court imposed a six month sentence.

The court reviewed the sentencing principles applicable to civil contempt outlined by Epstein J.A. in Boily. The factors can be summarized as follows:

  • Proportionality, the sentence must be proportionate to the gravity of the offence;
  • The presence or absence of mitigating factors;
  • Deterrence and denunciation, the sentence should denounce unlawful conduct and deter the contemnor and others from defying court orders;
  • The similarity of sentences in like circumstances; and
  • Reasonableness of a fine or incarceration.

The motion judge’s determination of the appropriate penalty is entitled to considerable deference. An appellate court should only interfere where there is an error in principle or the sentence is clearly unfit. Here, the motion judge noted the very serious nature of contempt. As the central aggravating factor the motion judge noted that the non-compliance with the order was for a personal advantage. Regan permanently altered the ability of BDC to obtain a fair trial. The disobedience of the Le May Order was knowing and deliberate. Bortolon offered no apology and the apology provided by Regan was found by the motion judge to be insincere. The motion judge concluded that the severe nature of the contempt amounted to an affront to the administration of justice that justified the penalty of incarceration. The Court of Appeal found no reason to interfere with this finding.

(6) No. The motion judge cited numerous cases where custodial sentences were imposed ranging from three to 18 months. He failed to provide any analysis of these cases or acknowledge important distinctions from the case at bar. The cases cited by the motion judge involved numerous breaches and persistent obstructions, whereas the present matter included only one such breach.  Further, the primary purpose of sentencing in civil contempt cases is to remedy the rights of private litigants. Here, BDC achieved the remedy it sought (the default judgment against 236 and obtaining the insurance proceeds belonging to 236).

The Law Society of Upper Canada had levied an interim suspension of Regan’s licence to practice law. This was a consequence that the motion judge was unable to take into account, as it occurred after the imposition of the penalty. This factor should be taken into account and warrants a reduction of the sentence, as per the Supreme Court in R v Pham, 2013 SCC 15. The court, however, noted that Regan was the instigator of the offence and thus maintained the parity of the sentences between the parties. Both parties’ sentences were thus reduced from 90 days to 45 days’ incarceration.

Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667

[Strathy, Laskin and Trotter JJA]

Counsel:

Ian Hicks and Nicholas Dodokin, for the appellant the Attorney General of Canada

Hart Schwartz, Michael Dunn and Savitri Gordian, for the appellant the Attorney General of Ontario

Barbara Jackman, appearing as amicus curiae

Jamil Ogiamien, acting in person

Huy Nguyen, acting in person

Keywords: Constitutional Law, Human Rights, Inmates, Cruel and Unusual Treatment, Canadian Charter of Rights and Freedoms, ss. 7 and 12

Facts:

Jamil Ogiamien and Huy Nguyen were remanded in custody at Maplehurst Correctional Complex in Milton, Ontario. Ogiamien was detained for three years while awaiting an immigration hearing. Nugyen was detained for one year while awaiting a trial on firearm charges. Throughout their detention, lockdowns were frequent. During lockdowns, inmates housed in remand units would remain locked in their cells without their typical access to dayrooms and programs.

Both Ogiamien and Nguyen brought applications under s. 24(1) of the Canadian Charter of Rights and Freedoms claiming that the lockdowns violated their rights under ss. 7, 9 and 12 of the Charter.

The application judge found that the frequent lockdowns subjected the applicants to cruel and unusual treatment contrary to s. 12 of the Charter. He found that most of the lockdowns were due to staff shortages. He further found that the frequency and duration of the lockdowns alone violated s. 12 of the Charter. Even though the applicants did not specifically seek damages, the application judge awarded Charter damages of $60,000 for Ogiamien and $25,000 for Nguyen. Neither the Attorney General of Ontario nor the Attorney General of Canada were given an opportunity to make submissions as to the appropriateness or fairness of Charter damages as a remedy for the s. 12 violations.

Issues:

(1) Did the application judge overstate the frequency, duration and impact of the lockdowns affecting Ogiamien and Nguyen?

(2) Was the treatment of Ogiamien and Nguyen under the lockdowns that affected them cruel and unusual and therefore contrary to s. 12 of the Charter?

(3) Did the application judge err in awarding Charter damages without giving the Attorneys General an opportunity to make submissions on whether damages were an appropriate and just remedy?

(4) If Ogiamien and Nguyen’s s. 12 rights were violated, were Charter damages an appropriate and just remedy?

(5) If the lockdowns did not violate Ogiamien and Nguyen’s s. 12 rights, did they violate their s. 7 rights?

(6) If no violation of s. 12 or s. 7 is found, is Nguyen entitled to the remedy of habeas corpus?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. Section 12 of the Charter guarantees that “[e]veryone has the right not to be subject to any cruel and unusual treatment or punishment”. This case specifically concerns treatment as the lockdowns are an exercise of state control over the applicants. The words “cruel” and “unusual” together express a standard or a norm. “Cruel and unusual” is a high bar to meet. The claimant must establish that the treatment they endured was grossly disproportionate through a two-step inquiry. The first step establishes a benchmark of treatment, specifically the treatment of Ogiamien and Nguyen under ordinary conditions in the remand units. Step two consists of an assessment of the extent of the departure from the benchmark. In this case, the court looked at the effects of the lockdowns on Ogiamien’s and Nguyen’s treatment.

Following this approach, the application judge concluded that the effect of the lockdowns resulted in treatment that was grossly disproportionate to their treatment under ordinary conditions. He took into account the reasons for most of the lockdowns and made extensive findings on the ordinary conditions in the remand units at Maplehurst. He also made findings on the treatment of inmates under lockdowns.

The Court of Appeal disagreed with the judge’s conclusion that the treatment of Ogiamien and Nguyen was grossly disproportionate. The court found that the application judge significantly overstated the frequency, duration and impact of the lockdowns affecting the applicants. The applicant judge relied on statistical evidence of the lockdowns of all remanded inmates at Maplehurst. The court rejected this approach, stating that the correct inquiry was narrower: whether Ogiamien and Nguyen specifically experienced grossly disproportionate treatment. The statistics as to when Ogiamine’s and Nguyen’s units were under a lockdown were significantly lower than those relied on by the application judge (about half as frequently as found by the application judge). The application judge’s statement that inmates were held in their cells for twenty-four hours per day was not supported by the record. Lockdowns are categorized as either full or partial which vary in duration. In some instances, the lockdowns were of a shorter duration and had less of an impact than found by the application judge.

The application judge further overstated the impact of the lockdowns on the applicants. Both Ogiamien and Nguyen acknowledged that staff did their best to maintain essential services and programs during lockdowns, including medical services, visits with lawyers and access to the shower program. Unit managers have discretion during a lockdown to minimize the disruption of normal operations and that essential programs are maintained where possible. The application judge mistakenly stated that inmates in the remand unit had to share cells with convicted inmates. He also erred in considering the conditions of detention during lockdown as tantamount to segregation or solitary confinements in the absence of expert evidence on this issue. The application judge’s finding that the periods of confinement were arbitrary was also in error, as the lockdowns were imposed for reasons of safety and security. In any event, arbitrariness is at most a minimal consideration in the s. 12 inquiry.

(2) No. The application judge’s conclusion that the lockdowns resulted in treatment that violated s. 12 was driven by three considerations:

(a) the frequency, duration and impact of the lockdowns;

(b) the reason for the majority of the lockdowns, ie. staff shortages; and

(c) the decision in R v. Jordan.

The amicus added a fourth consideration to support the application judge’s finding of a s. 12 violation:

(d) the conditions at Maplehurst among the remanded population were already so onerous that the added effect of the lockdowns amounted to cruel and unusual punishment.

The Court of Appeal did not find these considerations to amount to a violation of the applicants’ s. 12 rights for the following reasons:

(a) The application judge significantly overstated the extent of the lockdowns affecting Ogiamien and Nguyen.

(b) The court further held that lockdowns due to staff shortages were rationally connected to the security of the institution and the safety of staff and inmates. Without sufficient staff, Maplehurst cannot guarantee safety and security under ordinary living conditions in the remand units.

(c) The court held that the decision in R. v. Jordan did not support the application judge’s decision. In R. v. Jordan, the accused complained of cruel and unusual treatment while detained at the Toronto East Detention Centre. While Nordheimer J. in that case identified the problem of lockdowns due to staff shortages, he found no violation of s. 12 of the Charter. The conditions imposed by the applicant in R v. Jordan were significantly worse than at Maplehurst.

(d) No evidence was led that conditions in the remand units at Maplehurst were any worse or more onerous than at any other maximum security institution. No evidence was led about the impact of double bunking or of any other conditions of detention at Maplehurst.

(3) Yes. It was unnecessary to deal with the application judge’s damages award given that the court did not find the lockdowns to constitute a s. 12 violation. However, even if the court were to uphold the s. 12 violations, it would set aside the award of damages because of a denial of procedural fairness.

(4) It was unnecessary to address the application judge’s assessment of damages in light of the court’s conclusion that s. 12 was not violated.

(5) No. The amicus put forward the alternative submission that even if the lockdowns did not violate the s. 12 rights of Ogiamien and Nguyen, they violated their s. 7 rights. Ogiamien and Nguyen argued that the frequent lockdowns deprived them of their “residual” liberty, which is protected by s. 7. They argued that the arbitrary nature of the deprivation was not in accordance with the principles of fundamental justice. The court rejected both branches of this argument. The frequency, duration and impact of the lockdowns affecting the applicants caused a change in their conditions of incarceration at Maplehurst, but not a substantial change. During a lockdown, neither was singled out or dealt with more harshly than any other inmate in the remand units. Neither was placed in administrative segregation or transferred to a different and higher risk or higher security correctional institution.

Further, even if the lockdowns deprived the applicants of their residential liberty under s. 7, the deprivations were nonetheless in accordance with the principles of fundamental justice. The court emphasized that lockdowns are not arbitrary. Their primary purpose is to ensure the security of the institution and the safety of the staff, inmates and community. Even lockdowns imposed because of staff shortages have the underlying purposes of security and safety.

(6) No. In the alternative to a finding of a s. 12 or s. 7 violation, the amicus sought habeas corpus relief for Nguyen and an order for his release from Maplehurst, as he alone remained in detention. Habeas corpus relief was not available in this case, as Nguyen does not face physical confinement or a deprivation of liberty that is more restrictive than the confinement of other inmates.

Bracken v. Fort Erie (Town), 2017 ONCA 668

 

[Feldman, Lauwers and Miller JJ.A.]

Counsel:

Fredrick Bracken, acting in person, appellant

Christine Carter and Michael Krygier-Baum, for the respondent

Keywords: Constitutional Law, Municipal Law, Trespass Law, Mootness, Freedom of Speech, Canadian Charter of Rights and Freedoms, s. 2(b), R v Keegstra, [1990] 3 S.C.R. 697, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, The Municipal Act, s. 229, Occupational Health and Safety Act, s. 25(2)(h),, Judicial Review Procedure Act, Trespass to Property Act.

Facts:

The appellant disagreed with Town of Fort Erie’s decision to permit a marijuana grow farm near his residence. He attended the Town Hall on several occasions, and on one occasion he pounded his fist on the Town Hall counter and angrily demanded to meet with the city’s Chief Administrative Officer (CAO). On June 16, 2014, the appellant was outside the Town Hall protesting against approval of the by-law approving the marijuana facility. Before beginning his protest, the appellant entered the Town Hall and placed notices on the desk of each councillor. The protest involved yelling loudly into a megaphone and pacing back and forth in front of the building. The appellant acted in a way that was perceived by some employees of the Town Hall as aggressive. The CAO was alerted by alarmed employees, and the Town Hall was placed under lockdown, which resulted in the police being called.  Two officers from the Niagara Regional Police attended and requested that the appellant leave the premises. Police also provided the appellant with a trespass notice drafted by the Town, which he tore up. The notice banned the appellant from the Town Hall, the Municipal Campus, and the Public Works Yard for a year. Exceptions were made in the trespass notice for the appellant to make an appointment with the CAO to attend at Town Hall, and to use the drop box in the public parking area to pay his property taxes. The appellant refused to leave, and was subsequently arrested by police, placed in a police vehicle, and issued a provincial offences ticket for failure to leave the premises. The provincial offences ticket was later withdrawn. The appellant brought an application challenging the constitutionality of the trespass notice under s. 2(b) and s. 7 of the Charter.

Issues:

(1)Was the application moot, and should the application have been heard?

(2) Was the application brought in the correct form?

(3) Was the appellant’s protest violent, and did it take place in a location where s. 2(b) protection did not exist?

(4) Was issuing the trespass notice a violation of the appellant’s rights under s. 2(b) of the Charter?

(5) If the appellant’s rights under s. 2(b) of the Charter were violated, was the violation justified under s. 1 of the Charter?

Holding: Appeal allowed. Trespass notice quashed and a declaration made that the issuance of the trespass notice by the Town constituted a violation of the appellant’s rights under s. 2(b) of the Charter. Costs awarded to the appellant.

Reasoning:

(1) Yes, the application was moot as the trespass notice had expired, but the application judge was correct to hear it given the likelihood of continuing conflict between the parties.

(2) No, the application ought to have been framed as an application for judicial review under the Judicial Review Procedure Act. This would have removed the need for a Charter analysis, and focused the application on the limits of the common law authority of government actors to exclude individuals from public property.

(3) No. The application judge made an error of law in concluding that the appellant’s protest did not come within the ambit of s. 2(b) of the Charter.

Freedom of expression has received broad protection in Canadian law through the Charter, legislation, and the common law. Of particular significance to this appeal, acts of physical violence or threats of violence do not come within the ambit of s. 2(b). Once it is determined that an act is violent, further analysis is not necessary, as the act is clearly not afforded protection under s. 2(b). Acts of violence do not receive prima facie protection, so the government is not required to demonstrate that the restriction of rights was reasonable under s. 1. This is done in order to avoid creating the impression that self-expression through violence could be acceptable in some circumstances.

Freedom of expression does not extend to the same degree in every public location. Exercising freedom of speech in some locations will automatically preclude protection under s. 2(b). This turns on the historical or actual function of the space in question. Once it is determined that the claimant’s expression is not negated by the inherent limit of location or method, the next step is to ask whether the government action restricts expression in purpose or effect. If the government action in question does not purposefully limit the expression in question, and the limit is incidental to another purpose, then the claimant must also establish that the expression promotes one of the three purposes of s. 2(b) articulated in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. Specifically, these purposes are enabling democratic discourse, facilitating truth seeking, and contributing to personal fulfilment.

The application judge, in finding that the appellant had engaged in violence, relied primarily on the testimony of Town Hall employees. The affidavits provided were sparse on evidence concerning the appellant’s actions, and the Court found that under cross-examination the employees’ assertion of fear for their safety and the safety of others was unreasonable. The application judge also erred in considering irrelevant evidence, such as unsworn police statements about the appellant’s conduct after being arrested, which was not relevant to his conduct while protesting. In the Court’s view, the application judge erred by characterizing the appellant’s actions as violent on the basis that some employees claimed they felt “unsafe”. The fact that the protest was loud and angry did not mean that the protest was properly characterized as “violent”.

The Court also held that the application judge’s finding that the appellant “interfered with the public’s use of space at the Town” was unsupported. The appellant did not obstruct others from using the space and the area in front of the Town Hall is a traditional location for free expression, making it an ideal location for a public protest.

(4) Yes. Regardless of whether the trespass notice was issued for the purpose of protecting employees from the appellant, or preventing the appellant from conveying his message, the effect was to impair his participation in each of the grounds articulated in Irwin Toy, namely enabling democratic discourse, facilitating truth seeking, and contributing to personal fulfilment.

(5) No. Section 1 establishes that limits to Charter rights must be reasonable and “prescribed by law”. The Court rejected the Town’s reliance on s. 229 of The Municipal Act and s. 25(2)(h) of the Occupational Health and Safety Act. Although s. 299 of the Municipal Act grants authority to the CAO to exercise certain powers, it does not address what powers the Town has. While s.25(2)(h) of the Occupational Health and Safety Act imposes a duty on the Town to take reasonable precautions to protect workers, it does not confer any powers on the Town regarding the activities of someone who is not a co-worker. Similarly, the authority to exclude others from property is not provided by the Trespass to Property Act, which does not set out the preconditions for its use. Therefore, the source of the government’s legal authority to exclude persons from public property is derived solely from the common law.

The Town’s decision to issue the trespass notice was not proportional, as it would fail on the grounds of minimal impairment, and the balancing between the deleterious and salutary effects of the expulsion and trespass notice. As previously discussed, the Town’s decision to require the appellant to leave the premises and issuing a prospective trespass notice, were premised on factual errors. Therefore, the Town was not acting for a purpose that could satisfy its burden of justification under s.1. There were many options open to the Town will short of expulsion that could have achieved the same purpose as issuing the trespass notice, such as asking the appellant to lower the volume of the megaphone, or requesting that he keep a respectful distance from those entering the Town Hall. Further, the ban of one year was excessive given the nature of the appellant’s actions. The geographic ban was also overly broad, given that there was no evidence the appellant had even attended the other two properties, let alone caused a disturbance at them. For these reasons, the limits placed on the appellant’s s. 2(b) rights were not justified under s. 1 of the Charter.

Criminal Decisions:

R v. Badgerow, 2017 ONCA 670

[Trotter J.A. (In Chambers)]

Counsel:

Ingrid Grant, for the Applicant/Appellant

Jamie Klukach, for the Respondent

Keywords: Criminal Law, First Degree Murder, Bail Pending Appeal, Recognizance, Public Interest, Public Safety, Canadian Charter of Rights and Freedoms, s. 10 (b), Criminal Code, s. 145 (3), s. 523 (2) (a), s. 679 (3),  R. v. Badgerow (2008), 237 C.C.C. (3d) 107 (Ont. C.A.), R. v. Badgerow, 2010 ONCA 236, 260 O.A.C. 273, R. v. Badgerow (2012), ONSC 4829, [2012] O.J. No. 4262 (Ont. S.C.J.), R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, R. v. Oland, 2017 SCC 17, 347 C.C.C. (3d) 257

 R v. J.N.D. (Publication Ban), 2017 ONCA 666

[Doherty, LaForme and Rouleau JJ.A.]

Counsel:

Katherine Beaudoin, for Her Majesty the Queen

Michael W. Lacy and Bryan Badali, for J.N.D.

Keywords: Criminal Law, Aboriginal Communities, Sentencing, Evidence, Burden of Proof, R. v. Gladue, [1999] 1 S.C.R. 688

R v. Wilby (Appeal Book Endorsement), 2017 ONCA 662

[Doherty, Blair and Rouleau JJ.A.]

Counsel:

Frank Addario and Andrew Burgess, for the appellant

Roger Shallow, for the respondent

Keywords: Criminal Law, Uncontested Evidence, Dangerous Driving, Reaction Time

R v. Joseph (Publication Ban) (Appeal Book Endorsement), 2017 ONCA 661

[Doherty, LaForme and Rouleau JJ.A.]

Counsel:

Matthew R. Gourlay, for the appellant

Rachel Young, for the respondent

Keywords: Criminal Law, Evidence, Similar Fact Evidence, Sexual Assault

R v. Adeleke, 2017 ONCA 665

[Doherty, LaForme and Rouleau JJ.A.]

Counsel:

Janani Shanmuganathan, for the appellant

Sarah Shaikh, for the respondent

Keywords: Criminal Law, Sentencing, Importing Charge, Conspiracy Conviction, R. v. Pittiman, 2006 SCC 9

R v. Boukhalfa, 2017 ONCA 660

[Feldman, Watt and Huscroft JJ.A.]

Counsel:

Michael W. Lacy, for the appellant

Benita Wassenaar, for the respondent

Keywords: Criminal Law, Sentencing, Jury Instruction, Provocation, Judicial Correctness, Completeness, Right to Silence, Voluntariness, Second Degree Murder, Manslaughter, Criminal Code, s. 229(a)  R. v. Manchuk, [1938] S.C.R. 18, R. v. Hansford (1987), 33 C.C.C. (3d) 74, R. v. Pino, 2016 ONCA 389

Civil Endorsements

Burlington (City) v. Burlington Airpark Inc., 2017 ONCA 672

[Feldman, Sharpe and Roberts, JJ.A.]

Counsel:

John B. Laskin and Peter E.J. Wells, for the appellant
Ian Blue, Q.C. and Anna Husa, for the respondent

Keywords: Costs

 

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