Court and Parties

DATE: September 8, 2022 ONTARIO COURT OF JUSTICE Toronto Region

B E T W E E N:

HER MAJESTY THE QUEEN

v.

961557 ONTARIO LTD., OPERATING AS “THE CROOKED CUE”

REASONS: MOTION FOR NON-SUIT

Motion hearing date: August 10, 2022 Decision: September 8, 2022

Counsel: Ms. S. Kym, Prosecutor, City of Toronto Mr. A. Suboch, Defence counsel

M. ROSS HENDRIKS, J.P.:-

Background

[1] The defendant, 961557 Ontario Ltd., operating as “The Crooked Cue” (hereinafter the “defendant”), was charged on September 11, 2020, with failing to comply with an order made during a declared emergency, under s.7.0.11(1)(c) of the Emergency Management and Civil Protection Act, Order Under Subsection 7.0.2(4) of the Act - Stage 2 Closures, O.Reg. 263/20 (Exhibit 3).

[2] This Information was sworn remotely under s. 23 of the Provincial Offences Act, R.S.O. 1990, c.P.33, by Waheed Bazger, a Public Health Inspector with Toronto Public Health. Both this Information and Summons returnable on September 25, 2020 were confirmed by a Justice of the Peace. The jurat is proper, and the offence alleged is a strict liability offence.

[3] This matter commenced before a different justice of the peace, who considered a motion regarding redacted documents, by comparing them with the originals, and then who gave a decision. It is my information that because my colleague had viewed the unredacted documents, it was determined that a different justice of the peace should hear this matter. I asked the parties at the outset if they consented to me presiding, and they did so on the record.

[4] The defendant’s premises is located at 3056 Bloor St. West, Toronto, on the second floor, where it has pool tables and a bar at the back of the location, and a restaurant with a liquor licence (Exhibits 2(d) and (e)) facing the south side to Bloor Street West, Toronto.

[5] During the COVID-19 pandemic, the defendant submits that it closed off the pool table and bar area of the premises, which is covered by an intractable, solid roof, and operated the restaurant portion of its business, facing Bloor Street West, where it has a retractable roof, and what defence counsel terms as a “floor-to-ceiling” front window.

Prosecution’s Evidence

[6] The Prosecutor called two witnesses, Waheed Bazger and Sylvanus Thompson.

Officer Waheed Bazger

[7] Waheed Bazger testified that he is currently a supervisor overseeing vaccines for preventable diseases with Toronto Public Health. At the time he sworn to this Information, he was a Public Health Inspector and a Provincial Offences Officer, with Toronto Public Health.

[8] On June 27, 2020, Officer Bazger attended the defendant’s premises at 7:00 pm, along with Municipal Licensing and Standards officers for an inspection.

[9] Officer Bazger described the premises as being a restaurant that also has a pool table and bar area, and a restaurant with a dine-in option. He stated that patrons entered the premises through the street level on Bloor Street West, climbed a staircase which had a solid roof, and entered the premises on the second floor. He testified that the premises was divided into two sections, east and west, both used for food preparation and consumption as well as beverages.

[10] Officer Bazger testified that the restaurant area had a retractable roof covering a portion of the ceiling. He took a series of photographs at the time, which have been entered as Exhibits 2(a) to (g).

[11] In these photographs and from his testimony, it is clear that the defendant has a large window facing Bloor Street West, which was open at the time of his inspection, and a closed window on either side of it. He also confirmed that the retractable roof was open at the time of his inspection.

[12] He observed patrons being served food, at individual tables, and he stated that some patrons were under the roofed section of the premises, where there are three television sets. He did not measure the premises nor did he measure the retractable roof area. He described the area where the television sets were as having enough roof “to cover the seated area” of the televisions, and said that there were three or four patrons in this area.

[13] Officer Bazger testified that in photograph 2(f), he observed another table with patrons under the roofed section. He also observed a number of patrons under the area where the roof had been retracted, and that their tables had umbrellas on them. He confirmed that the roof was open in this area.

[14] Officer Bazger testified that he estimated that one-third of the establishment was under the retractable roof, and that two-thirds was covered by the hard roof, although he conceded that he did not take measurements, and only attended this premises once.

[15] Officer Bazger testified that the Regulation (Exhibit 3) was in effect on the date of the alleged offence, since it ran from June 26, 2020 to July 1, 2020. This Regulation refers to “Stage 2 Closures”. He read out the following passage from p. 3 of this Regulation at the request of the Prosecutor:

SCHEDULE 2

STAGE 2 BUSINESSES AND PLACES

Food and drink

Restaurants, bars etc.

1.(1) Restaurants, bars, food trucks and other food or drink establishments may open if they comply with the following conditions:

1. Patrons must be served,

i. through take-out, drive-through or delivery service, or

ii. at an outdoor dining area that is,

• in or adjacent to the place of business, and
• configured to ensure physical distancing of at least two metres between patrons seated at different tables.

2. Public access to any indoor portions of the business must be limited to food pickup, payment, washroom access, access required to get to the outdoor dining area or access that is otherwise required for the purposes of health and safety.

3. No dancing or singing may be permitted in the outdoor dining areas.

(2) For greater certainty, a restaurant, bar food truck or other food or drink establishment that is in compliance with the conditions set out in subsection (1) may open in any business or place that is otherwise permitted to open under this Order.

[16] Officer Bazger testified that he has conducted inspections in his role for about 10 years, including restaurants and a variety of premises, and he estimates that he has performed more than 5000 investigations and inspections. He estimates that about 10 percent of these inspections were of restaurants that had patios. In his experience, most patios are outside the premises. He has some limited experience with patios found on the roofs of the restaurants and testified that they are in the downtown core area.

[17] When asked if the Crooked Cue qualified as an outdoor dining place, he replied that, “based on my experience, I didn’t think it was.” Patios are usually outside and adjacent to the restaurant, typically, in front of it. Some patios are on the roof, especially in the downtown core, and he has encountered that, too.

[18] When he conducted his inspection on June 22, 2020 he did not think this premises qualified as an outdoor dining space, because the majority of patios are outside of the building, either on the street in front, or in the back, and the patios he did find on roofs did not have any roofed areas. Based on his observations, this premises was two-thirds covered by a non-retractable roof.

[19] The Prosecutor played the video of this premises (Exhibit 5), and asked him what this premises would have needed to qualify as an outdoor dining area on that date? He replied that the entire dining room should be outdoors to qualify as an outdoor dining area. In this case, at the time of his inspection, two-thirds of the dining area had a roof, and only one-third had a retractable roof area.

[20] Finally, the Prosecutor asked him if a patio licence had been provided to him? He replied that no one provided him with a patio licence.

[21] During cross-examination, Officer Bazger testified that he has not been trained in the physics of airborne droplet transmission of COVID-19. He also admitted that he has not been trained in sufficient free airflow.

[22] He also agreed that initially, all restaurants were not permitted to be open, whether or not they had an outdoor dining area, starting in April, 2020, and that the re-opening was graduated.

[23] He also admitted that he was not an expert in outdoor dining areas.

[24] He also agreed with defence counsel that the legislation does not mention “patio” within the Regulation.

[25] Officer Bazger agreed with defence counsel that he had determined this premises was not an outdoor dining area, but that it could be in or adjacent, as stated in the legislation.

[26] He also agreed with defence counsel that this premises could be an outdoor dining area surrounded by four walls with no roof.

[27] Officer Bazger also agreed with defence counsel that the premises didn't have to be a licensed patio to be open.

[28] Officer Bazger testified in cross-examination that he only attended at the Crooked Cue once inside, and that his second visit was to serve the Summons to Mr. Pappas, the owner, on the street level.

[29] When asked during cross-examination if he was aware of the seating estimation when he attended, he replied, yes. He knew it was thirty percent. He was also aware that the restaurant did not allow patrons past the area where the roof retracted, replying, “okay”, to this question.

[30] When asked if he only saw patrons where the roof retracted, he replied, “not entirely.” He said that some patrons were under the roof section, and he described the “slight overhang”. When asked if this meant in the area with the ability to retract the roof, he replied, “correct”.

[31] When asked if it was a reasonable assumption that the patrons sitting in the retractable roof area, at tables with umbrellas, had those umbrellas to protect them from sunlight, he agreed that this was a reasonable assumption.

[32] He also testified that airflow measurements were not taken during his inspection.

[33] When asked if he had received any guidance as to what was or was not an outdoor dining area? He replied, “not prior to the investigation itself, but before the decision to charge.” He consulted with his manager, Paul Di Salvo.

[34] He did not recall exactly what his manager said to him, but he said that before they lay charges, it is customary to present what you are charging with, “like a second opinion, to determine if I’m on the right trajectory.” He did not make notes of this conversation.

[35] When asked if he had discussed with his manager how many sides needed to be open to constitute an outdoor dining area, he could not recall it.

[36] Officer Bazger agreed that if the wind was blowing from the south, the large window facing Bloor Street West would have allowed more air into the premises.

[37] When asked if there is any definition of “outdoor dining area”, he replied there is not.

[38] When asked if an outdoor dining area could be something other than a patio, he responded, “the majority are patios”. He agreed it could be a non-patio, or something different from a patio, that requires a liquor licence.

[39] When asked if there is an outdoor dining licence, he replied, “no”.

[40] When asked if there is a patio licence, he replied, “yes”.

[41] When asked if what is an outdoor dining area is entirely subjective, he replied, “correct”.

[42] He agreed that the Crooked Cue’s retractable roof is “unique”, as described by defence counsel.

[43] He was asked if he agreed that it was not unreasonable to conclude that the Crooked Cue under the retractable roof and with its floor-to-ceiling window could be an outdoor dining area, that this was a reasonable possibility? He replied, “yes, correct.”

[44] Defence counsel showed Officer Bazger a City of Toronto document entitled, “Enclosed Public Places” (Exhibit 4). It states:

Enclosed Public Places

Smoking and vaping is not permitted in enclosed public places. An “enclosed public place” means the inside of any place, building, structure or vehicle (or any part of them) that is covered by a roof and where the public is ordinarily invited or has access, regardless of whether a fee is charged for entry.”

[45] Officer Bazger saw this definition, and was asked if the Crooked Cue was not an enclosed public place where its roof was open? He replied that parts of the Crooked Cue were covered by a roof.

[46] When asked if the Regulation contemplated some aspects of a building could be covered, he re-read it, and agreed that a portion can be covered for access. He added, “depending on where you are in the premises, it may be covered.”

[47] When Officer Bazger was asked if he knew Maria Schultz, he replied, “no”. Defence counsel cited the Rule in Browne v. Dunn, and asked if he was aware of a document produced June 17, 2020, which was her personal opinion of what constitutes an outdoor dining area. He replied that was “correct”, and said that he didn’t rely on this and he was not aware of her within Public Health.

[48] When asked if he knew Mike Major, he replied that he didn’t know him, either. He added, it was the first time hearing the name.

[49] When asked if Toronto Public Health decided to charge individuals or businesses, if it was a factor if they had received an immediate complaint, he replied, “not that I recall”.

[50] When asked if he knew Mary Campbell, he said it was the first time he had heard her name. He stated that he never consulted with her.

[51] When asked if the Crooked Cue was the first premises he had inspected a restaurant with a retractable roof, he agreed it was.

[52] When asked if no objective guidance had been given to him regarding what was an outdoor dining area, he said, “no”.

[53] He was shown photograph 2(a), which he had taken from the ground floor, looking at the premises. He was asked if he could see through the roof, and observe the trees in the background, and he confirmed he could see them.

[54] Officer Bazger confirmed in his testimony that he knew that the Crooked Cue was not serving patrons in the pool hall area, where the roof does not retract.

[55] Officer Bazger agreed that he was aware that the Regulation permitted the kitchen, bathroom and stairwell to be covered with a roof.

[56] He was asked if he had ever attended JOEY Sherway or The Keg at Sherway, and inspected their patios, he replied that he did not recall. Defence counsel submitted that they have fixed roofs and three sides closed, and Officer Bazger said he didn’t know how to respond to this question. Defence counsel said Mr. Pappas will testify that their premises is viewed as having patios.

[57] When asked about the significance of having a liquor licence for a patio, Officer Bazger replied that he doesn't enforce liquor licenses and agreed that it was irrelevant.

[58] When asked if he and the police officers and municipal inspectors were all wearing masks when they entered the premises for the inspection, he replied, “yes”, but later on in his testimony, he replied he couldn’t remember if the other officers wore masks. He was asked if failing to do so would contravene the legislation, and he replied, “yes”.

[59] When shown Exhibit 5, the video of the inspection, and asked if he was the man wearing the blue shirt, he replied that he didn’t know, and couldn’t tell. When advised that Mr. Pappas will identify you as the man in the blue shirt, he said, “I can’t recall.” He agreed that the officers were not wearing masks, nor was the man in the blue shirt. The servers were wearing masks. Ultimately, he agreed that the man in the blue shirt was himself.

[60] When asked if he didn’t wear a mask because he was uncertain when you were in or out of the outdoor dining area, he said, “that may have played a role in my decision.”

[61] Officer Bazger did not lay a charge when he left the Crooked Cue, and he discussed the matter with his supervisors.

[62] When asked if he would have laid the charge immediately if he saw rat excrement on the floor, he responded that many factors are involved in laying charges for a regular food safety violation, but that this situation was not like that, and agreed it was a novel situation.

Mr. Sylvanus Thompson

[63] Mr. Sylvanus Thompson was the second witness for the Prosecutor.

[64] He is currently the CEO of “Doctor T” Food Safety, his own consulting firm, and was previously the Associate Director with Toronto Public Health. He spent more than 20 years with the City of Toronto, and 10 years serving as Associate Director.

[65] In 2020, he testified that he was the Associate Director of Toronto Public Health, and in this role, he was responsible for the food safety program. He developed guidelines, standards, and was in charge of human resources.

[66] During the COVID-19 outbreak, many staff were transferred internally, but he was one of the ones left behind at Toronto Public Health to conduct visits and meetings with the food industry.

[67] He did a site visit himself at the Crooked Cue on Bloor Street, to see if it was in compliance with existing requirements for outdoor dining. He believes this took place on June 18, 2020, and then said, “I think it was in June.” He added, it was “just before outdoor dining commencing.”

[68] When asked how he conducted this site visit, he said that the establishment was closed, but he could see the patio from the back and from the front street level. He added, “I had a clear view of the patio itself.”

[69] During this site visit, he was asked if it qualified as an outdoor dining area, and he responded, “no”. He said that an outdoor dining area was a patio with a roof and two sides open, and that this patio only had one side open. At the time, if a premises had a roof, it must have at least two sides open.

[70] He described his visit as not being an inspection, just a site visit, to determine if the establishment met the requirements for outdoor dining.

[71] When asked if this determination had been communicated to the defendant, he replied yes, “I made a call”, and that he left a voice mail to say he did an inspection and in my opinion, the establishment didn’t meet the requirements for outdoor dining. The next morning, the Crooked Cue returned his call. He reiterated his comments, and he believed he was speaking to Sam Pappas.

[72] He said that the caller did not dispute the findings, it was clearly only open on one side, but didn’t agree with the requirement to have two open sides. After this call, he testified that he was copied on an email to the City of Toronto from Sam Pappas, dated June 19, 2020 (Exhibit 6).

[73] In this email, Mr. Pappas stated:

Sylvanus has just informed me that I do not meet the requirements because I do not not [sic] have two open walls in his opinion. This is classic government in action. My restaurant can achieve the conditions that are required to open. Lots of fresh air and loads of safe spacing. Someone has to explain to me why I will not be able to open. I have been totally compliant thus far. I am going BROKE!! I have people calling everyday asking me for payment. I walk into grocery stores, Ikea, Home depot Dollar stores. All inside, touch points everywhere, workers not wearing masks. People not social distancing but that’s all ok. I have come up with a safe plan to open. Cookie cutter rules do not work in this situation. I’m not asking for much. I want to open the front ½ of my place that is under the roof with limited seating. I have already been told that I can open by my BIA and that came from the city. I have operated my business for 30 years. Employed thousands of people, paid my taxes and been a positive contributor to the community. I have never complained in all years of business. If I’m going to be denied tell me now because I’m going to go nuts and use every means at my disposal to get open. I feel like this harassment with no base in science or fact. I would like an answer from someone by the end of the day.

[74] When asked, despite the public education, did owners of establishments communicate confusion to you? He replied, “I’m not sure about confusion, but many owners and even the public asked for clarification of the requirements.”

[75] Mr. Sylvanus testified that retractable roofs were not considered to be an open site, even if the roof was open.

[76] When he was asked on what authority they concluded that a site needed to have two open sides to be an outdoor dining area, he said that the Medical Officer of Health had the authority to give direction to the industry. The Medical Officer of Health can give directions and guidance, and that same must be adhered to.

[77] Defence counsel became irate, stating that he had asked for all documents in disclosure, and that nothing had been produced by the Chief Medical Officer of Health. This was the first time he had heard about it. At first, the Prosecutor said that the redacted version of this document, which had been determined to be appropriate by her colleague on the disclosure motion, had been provided to him. I asked the Prosecutor to confirm that the redacted document, previously given to defence counsel, was in fact the same document that had informed Mr. Thompson of the guidance given to the restaurant industry? She reviewed her notes, off the record for a few minutes, and responded to me that they are not the same document. When asked what document Mr. Thompson was referring to, she responded, “I don’t know.” Upon hearing this reply, I directed defence counsel to proceed with his question to Mr. Thompson about his conversations with the Chief Medical Officer of Health during cross-examination.

[78] Finally, the Prosecutor asked Mr. Thompson about the Regulation (Exhibit 3), s.4(2), on which states:

(2) The person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

[79] Mr. Thompson stated that he could rely on the directions given to him for industry to follow.

[80] In cross-examination, he testified that as part of his certified public inspector training, he had received training in airborne diseases, and how they are spread. He receives regular training.

[81] He was shown a document, dated June 19, 2020, that he sent to Alok Sharma (Exhibit 7). This email states as follows, verbatim:

Hi Alok

Just keeping you in the loop with this one.

In an effort to ensure a more consistent and objective approach in determining whether or not a patio meets the public health requirements and objective of facilitating free air flow, the following changes were made in the Guidance document:

Restaurants may have previously installed patio coverings such as canopies, tents, awnings, and umbrellas, but the following conditions must met:

• The entire patio must remain fully open to the air on at least two (2) sides to allow adequate air circulation.
• Except for umbrellas, the covering should be no less than a height of 3 meters/10 feet from ground level.

This change, which provides more flexibility, and others based on new evidence or provincial directives will be communicated to the industry through various channels.

A site visit was done to the Crooked Cue located at 3056 Bloor St West on June 18, 2020. The observation determined that the section being proposed for use is an enclosed area that does not meet the public health requirements for open dining. This decision was communicated to the owner today. His response is below.

Regards

Sylvanus

[82] In cross-examination, Mr. Thompson was asked to define “adequate air circulation”, as noted in this email, and he replied that, “I don’t have a specific definition.”

[83] When asked if a restaurant cannot know if it meets this standard, he disagreed, and said it would meet this requirement if it had two open sides, since this would be adequate.

[84] When then asked if two open sides could include one roof and one side, he responded, “…an open roof and an open side would not have met the requirement at the time...”.

[85] Mr. Thompson testified that the City of Toronto was authorized to make requirements for industry based on available evidence. When asked what the source was for this evidence, he responded the World Health Organization and the Center for Disease Control.

[86] He said that the potential for the spread of COVID-19 increases in enclosed spaces, and adequate ventilation is required. They acted in consultation with their other health units, and determined that two open sides provided sufficient ventilation. This standard was communicated to the industry.

[87] Mr. Thompson testified that they did not pursue standards based on calculations involving cubic metres of air divided by time, as posed by defence counsel, stating that, “we wanted something easily understood.”

[88] When asked if the Skydome, aka the Rogers Centre, with a retractable roof, would constitute an outdoor dining area, he responded that he is not familiar with it. When asked for his view of it when the roof is completely retracted, he said he has not been there.

[89] When asked if he was aware that about five days after the Crooked Cue was charged, what constituted an outdoor dining area was codified, he said, he was aware that a retractable roof was included as an open side when fully opened.

[90] When asked if the City of Toronto ever considered a quadangle courtyard, he said he did not recall looking at that scenario.

[91] Mr. Thompson was asked about a document sent on June 19, 2020, which he confirmed he sent to Mike Major (Exhibit 8). It states as follows:

Hi Mike

I just had a discussion with Dr Mowat and it was decided that based on further assessment of the risk a bit more flexibility can be exercised with respect to the number of open sides. Having two open sides, rather than three, should meet the desired objective of free air flow.

Even with this change, the Crooked Cue would not satisfy the public health requirements. It has a retractable roof, which is commendable, but that is not believed to be sufficient to ensure free air flow.

I informed Mr. Pappas that the establishment did not meet the public health requirements based on my observation and his description of facility.

Regards

Sylvanus

[92] When asked if Dr. Mowat was relied upon for the two sides is sufficient issue, he replied, no but he did give input. Dr. Mowat conducted a risk assessment literature review, but this list was not provided to the City of Toronto.

[93] Defence counsel was again irritated that no disclosure had been provided to him regarding Dr. Mowat’s role and asserted that this prejudiced the defence.

[94] When asked why Dr. Mowat was chosen, Mr. Thompson did not know the specific reason why he was chosen but stated that he was the former Chief Medical Officer of Health for the Province of Ontario.

[95] When asked why the City appeared to want three open sides, but then changed it to two open sides, Mr. Thompson said that after further assessment, the less restrictive measure was adopted, and that the three open sides suggestion was never implemented.

[96] Mr. Thompson testified that Dr. Mowat was aware of the retractable roof issue, and that every guidance document the City did was given to Dr. Mowat prior to its issuance.

[97] When Mr. Thompson was asked to show defence counsel any document shown to Dr. Mowat regarding retractable roofs, he replied that he wasn’t in Dr. Mowat's office.

[98] When asked about the charging document against Crooked Cue, and the fact that there is no reference to “patio”, he replied that he could not recall if the word “patio” was included in the legislation.

[99] When he was referred to the Regulation (Exhibit 3), Schedule 2, s.1.(1)(ii), while it refers to an “outdoor dining area”, he agreed that it makes no reference made to a “patio”.

[100] When he was asked if he was aware that the legislation was amended five days after the Crooked Cue was charged, to specifically allow it to be open, he replied, “no, I didn’t know that.”

[101] When asked if he agreed with defence counsel that it was not unreasonable if the space is uncovered that it could be considered to be an outdoor dining area, he responded that he did not agree, because the guidance documents described an outdoor dining area.

[102] When asked if it was not unreasonable that an area without a roof could be considered to be an outdoor dining area, he agreed that this was a reasonable possibility.

[103] When directed to an email dated June 19, 2020, at 10:56 pm, he confirmed that he sent this email to Amanda Sinclair, and the email chain that followed (Exhibit 9). In this chain, he has exchanged messages with Marcia Stoltz, “Manager, Vehicle for Hire”. He testified that Ms. Stoltz is not from Toronto Public Health. When asked why he wanted her to comment on a Toronto Public Health matter, he replied that she was at the meeting, and he wanted her thoughts based on her knowledge of the Crooked Cue.

[104] When asked if he knew of her professional qualifications, he responded that she would have been a lawyer from the City’s Legal Department.

[105] As noted in this email exchange, it was Ms. Stoltz’s personal opinion that the Crooked Cue was an indoor dining space, even though he denied seeking her personal opinion.

[106] When asked about the City of Toronto’s document, “Enclosed Public Places”, at Exhibit 4, Mr. Thompson disagreed that the Crooked Cue was a public place, since it was classified as a restaurant.

[107] No Redirect examination was sought.

Motion for Non-Suit

[108] Defence counsel brought a motion for non-suit at the end of the Prosecution’s evidence, arguing that they have not adduced evidence that could prove the essential elements of the charge.

[109] He submitted that the Crooked Cue was charged with violating the re-opening plan, and the crux of this charge is the allegation that the Crooked Cue was not an outdoor dining area. In order to prove this, he submits that the prosecution must prove three elements: (1) that the Crooked Cue was not, when charged, an outdoor dining area; (2) that it was not an outdoor dining area in or adjacent to the place of business; and (3) that the Crooked Cue was a place of business. He concedes that the Crooked Cue has been proven to be a place of business, but that the first two elements have not been established.

[110] In particular, he submits that the prosecution’s witnesses have confirmed that the Crooked Cue could be an outdoor dining area. The person who charged the Crooked Cue agreed with this premise, and he had never been inside of this establishment.

[111] While it is not the time to consider the credibility of the prosecution’s witnesses, their admissions are important at this stage.

[112] He referred me to R. v. Monteleone, [1987] 2 SCR 154, at para. 161, for the proposition that the jurist must be satisfied with evidence of each constituent element of the offence. As the trier of fact, when I examine the evidence, I must ask myself if there is any evidence adduced by the prosecutor to date that the Crooked Cue is not an outdoor dining area.

[113] Defence counsel argued that the Public Health inspector agreed with him that it could be considered an outdoor dining area.

[114] He also asked me to consider R. v. Arcuri, [2001] 2 SCR 828, 2001 SCC 54 at para. 1, where a limited weighing of the evidence needs to take place to support the inferences the trier of fact is asked to draw. In this instance, defence counsel submitted that many inferences are required in this matter, since there is no evidence that the Crooked Cue is not an outdoor dining area.

[115] Defence counsel also relies on R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27, for the direction from the Supreme Court of Canada to ensure speedy trials, its call that all participants work together, and the need to promote a more efficient justice system. If the only evidence offered “hangs by a thread”, and clearly cannot prove the matter beyond a reasonable doubt, then defence counsel submits that Jordan is the authority to be proactive and assess it at an early stage.

[116] Defence counsel also cites United States of America v. Shephard, [1977] 2 SCR 1067, as noted in R. v. Charemski, [1988] 1 SCR 679, which all pre-date Jordan by about 20 to 25 years. He argues that the old test, of any admissible evidence, since Jordan, is no longer good law, adding that, “times have changed”.

[117] The second element, whether or not it was “in or adjacent” has also not been proven, he argued. There was no consideration made by the City that the Crooked Cue could have had an outdoor dining area in the place of business, e.g. a courtyard. He referred me to the evidence of Mr. Thompson, and argued that he has a fixation about the roof, but there is no requirement to have an roof for an outdoor dining area. The Crooked Cue had a retractable roof, and its patrons were subject to the elements, e.g. rain, wind and sun.

[118] Based on the evidence heard, defence counsel argues that the second element cannot be proven, since there is no evidence that the Crooked Cue is not an outdoor dining area. He argues that both witnesses for the prosecution said it was an outdoor dining area.

[119] The argument that the outdoor dining area was in the place of business is supported by the wording of the provincial statute, which uses the word, “in”.

[120] Defence counsel asks for a directed verdict and an acquittal for the Crooked Cue.

Response of the Prosecutor

[121] The Prosecutor submits that the test to be used is found in Monteleone at para.8, which states:

Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.

[122] Once evidence is admissible, she submits that it is not open to the trier of fact to draw inferences. The test is whether there is some evidence that establishes each essential element of the case, at this stage, and that this is a low threshold for the Crown to meet.

[123] She referred to Arcuri regarding direct evidence, and said that the test is not based on weighing the evidence, not based on the quality of the evidence, and the trier of fact should not draw inferences.

[124] She maintains that on a motion for non-suit, there is a limited weighing of evidence if it is circumstantial, but that this is inappropriate for direct evidence.

[125] The evidence heard is that the Crooked Cue was operating as a restaurant, and that there were patrons dining on the date in question. Two-thirds of the establishment had a non-retractable roof. There was evidence of hosts serving patrons, and patrons sitting under roofed portions of this establishment. Some portions were not outdoor.

[126] The Regulation permits a mix, but it requires them to be served in the outdoor portion, and the fact that some portions were outdoor does not negate this requirement. The photographs are objective evidence that the patrons were sitting in some areas that were roofed.

[127] Ultimately, the prosecutor submits that this case is based on statutory interpretation, and that this is an issue for trial.

[128] At this juncture, evidence has been tendered that the establishment was licensed under its Liquor Licence as an indoor establishment. This is another objective measure. Its corporate profile is another objective measure to consider.

[129] The prosecutor also relies on Ontario v. Trinity Bible Chapel, 2022 ONSC 1344, at para. 6, for the proposition that the courts should not review COVID-19 legislation in hindsight, since the early stages of the pandemic required swift action based on what was reasonably known at the time, and this required the government to establish legislative requirements quickly. The courts should not import definitions from Smoke-Free Ontario legislation, which had a long history of development, into the Emergency Management and Civil Protection Act.

[130] As noted in Trinity Bible, at para. 6, the judge stated that her role was “not that of an armchair epidemiologist.”

[131] Again, the Prosecutor indicated that in her view, defence counsel had misconstrued the test. It is not appropriate to weigh the credibility of direct evidence at a motion for non-suit. The Jordan decision did not change the appropriate test for a motion for non-suit. That decision spoke to the issue of delay, but it did not create new principles for a motion for non-suit. If there is some evidence of each essential element, then the trial should proceed.

[132] In terms of his arguments, the Prosecutor submitted that there is some evidence that all or part of the establishment was not an outdoor dining area. Thus, if the Prosecution can prove that it was not an outdoor dining area, in or adjacent, that this is sufficient. The Prosecution does not need to prove it was detached from the establishment. The Prosecution can show that there was an indoor dining area within the premises, then this is sufficient to continue. This was demonstrated from the evidence of Officer Bazger.

[133] At the time of this offence, the premises was not configured for outdoor dining in conformity with the Regulation at the time. Referring to the photographs taken, if the entire roof area had been exposed, then the defendant could have met the test, but large sections of the premises were covered with a roof. There are photographs showing some patrons dining underneath a roofed area, and thus, the defendant cannot meet the test.

[134] The Prosecutor stressed that the crux of this case involves statutory interpretation, which requires significant arguments, and a trial. The direct evidence heard to date is admissible and should not be weighted at this motion for non-suit.

Reply

[135] Defence counsel submits that Jordan, particularly para. 25, is applicable, “Last but certainly not least, timely trials are important to maintaining overall public confidence in the administration of justice.” He also cited para. 44 of Jordan, echoing former Chief Justice Lamer’s call for justice system participants to “find ways to retain a fair process…that can achieve practical results in a reasonable time and at reasonable expense”.

[136] All the cases submitted by the Prosecutor, with the exception of Trinity Bible, predated Jordan, and the culture has changed since Jordan was decided.

[137] He submits that there is not an Iota of good evidence to buttress the Crown’s case, and that its two witnesses agreed that the Crooked Cue could be an outdoor dining area. A tiny piece of evidence, the liquor licence, should not outweigh the overwhelming evidence in favour of the defendant. Some evidence of an overhang of the roof does not mean that the Crown can prove its case.

Analysis

[138] A motion for non-suit is a common law remedy. Section 80 of the POA permits common law defences.

[139] In Jordan, the Supreme Court of Canada developed a new framework to focus the s.11(b) analysis, which included, inter alia, presumptive ceilings for time to trial and an analysis of exceptional circumstances, in order to ensure the constitutional right of an accused person to be tried within a reasonable time. This is a substantially different test from an analysis of whether the Crown’s case contains no evidence, which if believed, could form the basis of a conviction.

[140] In my view, it is an error of law to conflate the test for a motion for non-suit with the s.11(b) analysis in Jordan, despite the common goal of efficiency.

[141] There are several critical decisions that elucidate the proper test for non-suit, which are summarized below.

[142] In R. v. Litchfield, [1993] 4 SCR 333, at p. 13, Mr. Justice Iacobucci, writing for the majority, examined whether the trial judge had erred in granting a motion for non-suit. He held as follows:

4. Did the trial judge err in granting the respondent’s motion for a non-suit?

I am of the opinion that Hope J. erred in granting the respondent’s motion for a non-suit at the close of the Crown’s case. An application for a directed verdict or a non-suit is a matter of common law since there is no provision in the Code for such an application. This Court reviewed the test to be applied on such an application in R. v. Monteleone, [1987] 2 S.C.R. 154. In that case, McIntyre, J. wrote for the Court that the test to be applied is derived from the decision in United States of America v. Shephard, [1977] 2 S.C.R. 1067. That test (at p.161) is whether there is “any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction”. McIntyre, J. stated at p. 161:

It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.

The respondent elected to be tried without a jury, and therefore Hope J. was to fulfil the roles of both trial judge and trier of fact. It was in his role as trial judge, rather than as trier of fact, that he was to make a determination on the application for a non-suit. Hope J. was not to make determinations of weight and credibility prior to reaching a decision on the application for a non-suit.

[143] Mr. Justice Iacobucci identified at p. 14 the errors made by Hope J. First, proof beyond a reasonable doubt is not an element for a test of directed verdict, the proper test is some evidence. The second error was requiring the Crown to submit evidence proving that the procedures were not appropriate or necessary for diagnostic or treatment purposes. Rather, the Crown needed to lead evidence that the conduct of the respondent had a sexual character in addition to whatever medical character that conduct might have had. A key part of the test on a motion for non-suit was omitted, i.e. no evidence, which if believed, could form the basis for a conviction. As stated at p.14, a motion for non-suit is not the place for the jurist to direct a verdict “based on his disbelief of the evidence rather than on a neutral assessment.”

[144] In Arcuri, an accused was charged with first degree murder. At the preliminary inquiry, the Crown’s case was entirely circumstantial and defence counsel called two witnesses whose testimony was exculpatory. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence. Where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence, including any defence evidence, to determine whether a reasonable jury properly instructed could return a verdict of guilty.

[145] As noted by (then) Chief Justice McLachlin in Arcuri, at para. 1:

This appeal raises the question of whether a preliminary inquiry judge may “weigh the evidence” in assessing whether it [page 831] is sufficient to warrant committing an accused to trial. For the following reasons, I reaffirm the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. As this Court has consistently held, this task does not require the preliminary judge to draw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty.

[146] Chief Justice McLachlin, at para. 33, again stressed that the preliminary inquiry judge does not draw inferences from the evidence, does not assess the credibility of witnesses, and should not discharge an accused “simply on the grounds that the Crown’s evidence is ‘weak’.”

[147] In Charemski, Mr. Justice Bastarache writing for himself, Mr. Justice Cory and Mr. Justice Iacobucci, described the test at paras. 2 to 4 as follows:

The “No Evidence” Test

2 The leading case on the issue of directed verdicts is United States of America v. Shephard, [1977] 2 S.C.R. 1067, which sets out the test to determine whether a case should go to a jury in these terms, at p. 1080: “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”. See also R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160. In other words, a motion for a directed verdict should not be granted “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”. See Shephard, at p. 1080.

3 For there to be “evidence upon which a reasonable jury properly instructed could return a verdict of guilty” in accordance with the Shephard test (at p.1080), the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden. See Sopinka et al., The Law of Evidence in Canada (1992), at p. 136. Thus, in a murder prosecution, the Crown must adduce evidence on the issues of identity, causation, the death of the victim and the requisite mental state. If the Crown fails to adduce any evidence to discharge the evidential burden on any of these issues, the trial judge should direct a verdict of acquittal.

4 There was, at one time, some confusion about the applicability of this test where the Crown’s case with respect to any or all of the elements of the crime rested entirely on circumstantial evidence. In R. v. Comba, [1938] S.C.R. 396, at p. 397, it was suggested that where the Crown’s case rests on circumstantial evidence, the trial judge can himself apply the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, (i.e. that to convict on circumstantial evidence, the evidence must not permit any other rational conclusion but that the accused is guilty) and direct a verdict. Any confusion on this point was cleared up by this Court’s unanimous judgment (McIntyre J. writing for Dickson C.J. and Estey, Lamer (as he then was), Wilson, Le Dain, and La Forest, JJ.) in Monteleone, supra, at p. 161:

Where there is before the court any admissible evidence, whether direct or circumstantial, which if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury. [Emphasis added.]

Where the evidence is purely circumstantial, this Court made it quite clear, at p.161, that the issue of whether the standard set in Hodge’s Case has been met is a matter for the jury, and not the judge: “The question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge’s Case …is for the jury to determine. This was settled in Mezzo v. The Queen, [1986] 1 S.C.R. 802” (emphasis added). In other words, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is a question for the jury. To my mind, this view is dispositive of this case and the Court need go no further than to rely on this authority.

[148] A motion for a directed verdict was brought on a case under the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, which like the case before me, is a strict liability offence, in R. v. Timminco Ltd..

[149] In Timminco, the employer was charged with failing to ensure that a machine with an exposed moving part that may have endangered the safety of a person was fenced or guarded. The Crown did not have to establish that the employer had actual knowledge of the hazard, just the knowledge of the exposed moving part was sufficient to establish the actus reus of the offence. The employer’s lack of knowledge was only relevant to a due diligence defence. Thus, the directed verdict was set aside.

Application to the Crooked Cue

[150] There is clear photographic and video evidence before me that the Crooked Cue was operating as a restaurant on the date and time in question. It had a liquor licence marked, “indoor”. There is no dispute that the Regulation to the Emergency Management and Civil Protection Act, regarding Stage 2 Closures, was in place at this time.

[151] The issue is whether the Crooked Cue violated this Regulation, or if its configuration qualified it as an outdoor dining area.

[152] Despite Officer Bazger’s admission during cross-examination that it was not unreasonable to conclude that the Crooked Cue under its retractable roof and floor-to-ceiling window could be an outdoor dining area, Mr. Sylvanus testified that a site needed to have two open sides to be an outdoor dining area, even if the roof was open.

[153] Mr. Sylvanus testified that the Medical Officer of Health had the authority to give such directions, and that he had done so, in accordance with ss.4(2) of the Regulation.

[154] There appears to be an issue with the disclosure of this document, however.

[155] Mr. Sylvanus then clearly admitted during cross-examination that it was a reasonable possibility that an area without a roof could be considered an outdoor dining area.

[156] It is also clear from all of the evidence that the Crooked Cue was put on notice of the determination that it did not fall within the Regulation by Mr. Thompson. Mr. Pappas sent an email in response, dated June 19, 2020 (Exhibit 6), copying Mr. Thompson, which acknowledged that he had been advised and expressed his determination to challenge this decision.

[157] I have reviewed the test for non-suit carefully. I am not permitted at this stage to engage in any in-depth statutory interpretation, draw any inferences from the testimony of the prosecution’s witnesses, assess their credibility, or determine if full disclosure has been made.

[158] The evidence before me, on its face, could reasonably support a finding of guilt, and so the motion for non-suit is hereby dismissed.

Dated at Toronto, this 8th day of September, 2022. Mary Ross Hendriks