ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: M-1-220/13

DATE: 20131001

B E T W E E N:

HER MAJESTY THE QUEEN

Jason Miller, for the Crown/Respondent

Respondent

• and -

JULIAN ICHIM

Lorne Gershuny, for the Defendant/Applicant

Defendant/Applicant

HEARD: September 30, 2013,
at Toronto, Ontario

Michael G. Quigley J.

Reasons For Ruling

Re: Application to quash the indictment

1The applicant, Julian Ichim, is charged with two counts of disobeying a court order, contrary to section 127 of the Criminal Code (the Code). His trial was set to begin yesterday before a jury.

2These charges arose out of Mr. Ichim’s alleged violation of an order issued by Lapkin J. of the Ontario Court of Justice on September 16, 2011. It was issued at the preliminary inquiry held in the case of Joanna Adamiak and 16 others who were charged with conspiracy related offences arising from the G20 Summit held in Toronto in June, 2010.

3The order issued by Lapkin J. was an interim order prohibiting publication of the names or pseudonyms, that is, of “identifiers”, of the two undercover police officers who had testified at that preliminary inquiry in the case of the 17 alleged co-conspirators. The order stated on it face, in the recital contained in the first paragraph of the order, that it was being issued:

Upon application by the Crown for an interim order banning publication or broadcast (including internet postings) of information identifying the undercover officers in this case, and pursuant to the court's common law jurisdiction, as well as pursuant to the provisions of s. 486.5 and/or s. 537(1)(i) of the Criminal Code of Canada ...

4Having stipulated that the identifiers of the undercover officers were to be restricted from publication from the date of the order forward, the order goes on to provide specific detail of exactly what is prohibited from being published. While it contemplated that the names and pseudonyms of the officers may be said or spoken in open court, any subsequent broadcast or publication (including internet postings) was not to use those names.

5Instead, the order required that the undercover police officer witnesses be described only as "Undercover Officer A” to refer to the female undercover officer or "Undercover Officer B” to refer to the male undercover officer. No sketches or photographs of the undercover witnesses were to be taken at any time within the courthouse, nor were any physical descriptions of the appearance, speech or vocal patterns of the undercover officers, or any sketch or photograph of those witnesses that might otherwise be in existence, to be published or broadcast, including by way of internet postings. The transcripts of the preliminary inquiry proceedings were not to refer to the undercover officers by name, but rather by the identifiers indicated above. Any audio recordings of the undercover officers' voices or video or photographic images of their likenesses were to be sealed and excluded from public access pending the determination of an application to make the order permanent.

6The defendant is alleged to have violated Justice Lapkin’s interim order about two months later by posting one item on his personal internet blog site, “JULIANICHIM”, on November 14, 2011, and making two further postings on November 15, 2011. Those postings are alleged to have violated the order by disclosing the pseudonym of one of the undercover police officers. As a result of those alleged violations of that Order, Mr. Ichim was charged with offences of having disobeyed a court order under s. 127(1) of the Code. He remains charged with two offences, one relating to November 14 and one relating to November 15, 2011.

7At the commencement of this trial, Mr. Ichim has brought two applications in which he seeks to bring the prosecution to an end before any evidence is called. On this first application, Mr. Ichim asks me to quash the indictment that charges him with those two counts of disobeying a court order under s. 127(1) of the Code on the basis that the Crown has no jurisdiction to pursue this prosecution against him, having regard to the terms of the Order that was allegedly disobeyed, and the applicable provisions of the Code. He has a second application that will proceed should he be unsuccessful on the first, namely an application to have this prosecution against him stayed.

8At the root of both applications and underlying the legal arguments is Mr. Ichim’s contention that he is being prosecuted for essentially political reasons as a person affiliated with the G20 protest movement.

9The application to quash the indictment is premised on the argument that the Crown has improperly chosen to prosecute Mr. Ichim for disobeying Lapkin J.’s order with charges laid under s. 127 of the Code. Counsel for Mr. Ichim on the application contends that there is a less punitive penalty and procedure for prosecuting his alleged breach under s. 486.6(1) of the Code, a procedure and penalty that in his submission ousts the jurisdiction to bring these charges under s. 127.

10The application to stay the proceedings, should it need to proceed, is based on Mr. Ichim’s allegation that the prosecution has brought these charges against him in bad faith and has pursued the charges against him with an improper motive. Against that background, in the event that I decline to grant the defendant’s request to quash the indictment, he contends that this court should stay these proceedings against him on both counts as the appropriate remedy for a claimed abuse of process by the prosecution.

11Returning to this application to quash the indictment, the language of s. 127(1) of the Code bears repeating in full because it is the provision that is central to the issue before the court:

127 (1) Everyone who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years;

or

(b) an offence punishable on summary conviction. (my emphasis)

12As stated in paragraph 16 of his Factum, counsel for Mr. Ichim argues that Justice Lapkin’s order was a publication ban that was issued under the authority of section 486.5(1) of the Code. It is this contention that leads to the claim here that the prosecution is without jurisdiction. That section provides as follows:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

13The reason counsel claims that the prosecution is without jurisdiction is because section 486.6(1) of the Code expressly provides a mode of proceeding against anyone who disobeys a court order made under subsection that provision. It provides for enforcement by way of summary conviction. It provides as follows:

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

If this matter were prosecuted on summary conviction, the defendant would at most face a penalty of six months in jail for breach of Lapkin J.’s order. If the prosecution continues by way of indictment under s. 127 of the Code, the defendant faces a maximum penalty of two years imprisonment.

14As such, counsel for the defence claims that by its wording, subsection 127(1) of the Code cannot be used to prosecute the defendant in this case because there is another "mode of proceeding” that "is expressly provided by law." According to the defendant, that other mode of proceeding that is expressly provided by law is the mechanism that is set out in subsection 486.6(1). It is a proceeding by way of summary conviction, not on indictment. Accordingly, the defendant claims that the indictment is void for lack of jurisdiction.

15If the applicant was correct that the sole source of authority for Justice Lapkin’s order was section 486.5 of the Code, then plainly, he would be entitled to succeed on this application. The Crown actually agrees with the applicant on that point. The Crown concedes that the language of section 486.6 would provide a complete code, which would preclude the Crown from continuing to prosecute the defendant under section 127(1).

16Nevertheless, while the applicant states in his factum at paragraph 16 that the authority for the order was subsection 486.5(1) of the Code, the Crown contends that statement is only partially correct. It is only partially correct because the recital that precedes the order, as I have noted, itself makes plain that it is issued "pursuant to this Court's common-law jurisdiction and pursuant to the provisions of s. 486.5 and/or s. 537(1)(i) of the Criminal Code of Canada." Thus, the Crown asserts, and I agree, that it must be accepted on the face of the order that there are three sources to its authority – first the court’s common law jurisdiction, second s. 486.5 and third, s. 537(1)(i). It is not possible to go further behind the order to try to determine whether it was based more on one of those provisions than another because that would effectively amount to a collateral attack on Lapkin J.’s order.

17Section 537(1)(i) is found in Part XVIII of the Code dealing with preliminary inquiries. Section 537 sets out the powers of a justice acting as a preliminary inquiry judge. Subsections 537(1)(a), (h), (j) and (k) provide for specific orders that may be made during the course of a preliminary inquiry and relative to its process. Those provisions allow the preliminary inquiry judge (i) to adjourn the inquiry or change its venue if necessary where a witness is absent or too ill to attend, (ii) where the ends of justice require it, to order that the inquiry be held in camera with no persons present other than the prosecutor, the accused and their counsel, (iii) where the prosecutor and the accused agree, permit the accused to appear by counsel or by closed-circuit television or other means, or (iv) require an accused who is confined in prison to appear by closed circuit television or other suitable means.

18In contrast to those specific powers of a preliminary inquiry judge relative to the conduct of the inquiry, paragraph 537(1)(i) is general in nature and simply provides the authority to the preliminary inquiry justice to regulate the course and process of the inquiry in any way that he or she considers to be desirable, provided it is not inconsistent with other provisions of the Code. Paragraph (i) provides that the Justice may:

…regulate the course of the inquiry in any way that appears to the justice to be consistent with this Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) or agreement made under section 536.5.

19Plainly, however, s. 537 does not stipulate or expressly provide for a punishment or other mode of proceeding to deal with potential violations of a general order that might be issued by a Justice under subparagraph (1)(i) in the course of establishing the process to govern a preliminary inquiry. It permits a Justice to make orders to regulate the course of the preliminary inquiry, but it contains no specific mode of proceeding or punishment for breaches of those orders. Neither does any other provision of the Code provide a specific enforcement remedy or procedure to deal with violations of orders made under that provision. As such, the Crown contends that the provision that would apply in circumstances where an order made under section 537(1)(i) is disobeyed, is the penalty and procedure contemplated under section 127(1) of the Code.

20Turning to the applicable case law, there are two authorities that are relevant to this application: Kreiger v. Law Society of Alberta¹, and R. v. Gibbons².

21Effectively, on this application Mr. Ichim is asking this court to tell the Crown that if it wishes to prosecute him, it should do so under a different procedure. However, the decision of the Supreme Court of Canada in Kreiger establishes that it is not open to this court to tell the Crown how it ought to prosecute cases or to tell it what provisions it may rely upon, except in circumstances where abuse of process can be established. Decisions made by the Attorney General about how to go about prosecuting a case live within the authority delegated by our Sovereign, the Queen, to the Attorney under our law and history, and they are not subject to interference by other arms of government. As such, an exercise of prosecutorial discretion will be treated with deference by the courts as well as by other members of the executive and statutory bodies. Prosecutorial discretion is not reviewable except in cases of flagrant impropriety.

22More important in the context of this application, however, is the decision of the Supreme Court of Canada in R. v. Gibbons, and the Ontario Court of Appeal and Ontario Superior Court of Justice decisions that preceded it. In fact, counsel for the defendant claims to rely upon the Gibbons case in support of his position, stating that the “other mode of proceeding expressly provided by law” exception in section 127 will be triggered where Parliament intended to limit the application of section 127 by creating an express alternative statutory response to the failure to comply with a court order.

23Nevertheless, in my view, those decisions definitively show that while the Crown would be precluded in this case from prosecuting Mr. Ichim under section 127 for disobeying an order made under section 486.5 of the Code for the reasons previously indicated, it theoretically remains open to the Crown to proceed under section 127 relative to a breach of the order of Lapkin J. to the extent that it falls within the ambit of orders he was permitted to make relative to the preliminary inquiry process pursuant to section 537(1)(i) or at common law.

24In Gibbons, the appellant had been charged under section 127(1) of the Code with disobeying a court order that had been granted in 1994. That order enjoined her and others from displaying protest signs in the vicinity of specific abortion clinics. She brought a pretrial motion to quash the information on the ground that the exception in section 127(1), the same exception relied upon here by Mr. Ichim, applied because Rules 60.11 and 60.12 of the Ontario Rules of Civil Procedure dealing with contempt orders precluded the application of section 127(1). I specifically note and emphasize here that in Gibbons, the “other mode of proceeding expressly provided by law” was not contained within the Criminal Code itself, but rather under the Ontario Rules of Civil Procedure. The provisions that were claimed in that case to be an “other mode of proceeding expressly provided by law” which could ouster the application of s. 127 of the Code were the quasi-criminal provisions in Rules 60.11 and 60.12 permitting a judge to find and punish civil litigants by way of contempt orders, or to stay a parties proceeding, dismiss it, strike out a party’s defence or make such order as is just in response to a party’s failure to comply with an interlocutory order.

25In her original endorsement, Frank J. of this court concluded that the Crown was not prevented from proceeding against the appellant in that case for contempt of the prior order under section 127(1) of the Code, notwithstanding the provisions of Rules 60.11 and 60.12 of the Rules of Civil Procedure. She reached that conclusion based on the Supreme Court’s 1981 decision in R. v. Clement³. In that case the Supreme Court reversed a decision that upheld the quashing of an information in Manitoba under s. 116(1) of the Code, which was the predecessor section to section 127.

26In that case, the order had been made by a Manitoba Superior Court judge in a matrimonial dispute. Estey J. of the Supreme Court of Canada considered whether the Manitoba Rules of Court at that time expressly provided for a punishment or other mode of proceeding than what was contemplated in s. 116(1) of the Code, as it read at that time, so as to trigger the exception provided in that section, the same exception Mr. Ichim seeks to trigger here.

27In the opinion of Estey J., however, the fact that those rules provided another “avenue of process” did not operate to remove s. 116(1) “from the arsenal of criminal remedies available for use by the executive branch of government in the enforcement of the laws of the land.” As such, he held that the specific Manitoba rules did not expressly provide for a mode of proceeding, and that the provision in Rule 492 of the Manitoba Rules of Civil Procedure for the imposition of a fine for contempt of a court order in lieu of, or in addition to other punishments specifically provided there was insufficient to constitute an express penalty or punishment of the type contemplated by section 116(1).

28Frank J. noted in paragraph 13 of her reasons in Gibbons that with respect to the meaning of a “punishment expressly provided”, an example of what would qualify for the purposes of section 116(1), and also for section 127(1) as the section is now enumerated, would be a provision such as section 545 (then numbered as s. 472) of the Criminal Code which deals with witnesses who refuse to testify at a preliminary inquiry. That section expressly provides a punishment of the type contemplated in the exclusionary language in s. 127(1) because it goes beyond identifying types of punishment. It specifies a sentence of up to but not exceeding eight clear days of imprisonment or for the period during which the inquiry is adjourned due to the recalcitrance of the witness, whichever is the lesser.

29Frank J. concluded at paragraph 29 that the fact that the Rules of Civil Procedure allowed for case specific remedies such as a finding of contempt did not mean that those potential remedies for non-compliance met the exempting qualifications in section 127 of the Code. Those remedies did not meet those requirements because they did not expressly provide a punishment or mode of proceeding. Instead, both Rules 60.11 and 60.12 were the product of the inherent power of the court to control its own process by issuing contempt orders, but neither rule contained an expressly provided punishment as defined in and required by Clement.

30Frank J. concluded by indicating that prosecution under section 127 was the preferred mode of response to the alleged contempt of the respondent in the circumstances of the Gibbons case, where the accused had violated court orders prohibiting her from protesting in the vicinity of certain abortion clinics. It was the preferred mode of proceeding, in large measure because, as the case law shows, that section is intended to be used where the effect of the breach of a court order extends beyond the parties to the proceedings. Its use has been found to be particularly appropriate in the context of breaches of injunctions. That follows since the wilful disobeying of injunctions engages the issue of the public’s interest in ensuring that orders of its courts are obeyed by all of its members.

31Frank J.’s decision was upheld by the Ontario Court of Appeal⁴, and in turn by the Supreme Court of Canada. It will suffice to refer to paragraph 8 of the Supreme Court decision, where Deschamps J. summarized the law as follows:

On the basis of Clement, however, neither the specificity of the punishment nor the comprehensiveness of the procedure is determinative of whether a law satisfies the conditions for ousting the application of section 127 of the Cr. C. Rather, the determination must be based on a conclusion that Parliament or the legislature intended to limit the application of section 127 by creating an express alternative statutory response to acts amounting to contempt of court. The exception in section 127 will be triggered where Parliament or a legislature has provided a legal foundation for the court’s power to issue contempt orders, defined the circumstances in which a person will be found in contempt, and provided a specific punishment or mode of proceeding. Section 545 (then section 472) of the Cr. C. to which this court referred in Clement, is one example of such a provision. (my emphasis)

32If the Crown prosecuted Mr. Ichim in this case under subsection 127(1) in circumstances where Justice Lampkin’s order was solely sourced in the authority provided in section 486.5 of the Code, then there is no question, as the Crown concedes, that the defendant would be entitled to an order quashing the indictment for want of jurisdiction. However, that is not the case. The Crown claims that it is not proceeding against the accused for breach of an order made under section 486.5. Rather, it is plain on the record that was before the court on this application, that the Crown is proceeding against Mr. Ichim for breach of an order made either at common law or under s. 537(1)(i) of the Code.

33This is disclosed in the transcript of the preliminary inquiry in this matter held before the Shamai J. on Tuesday, September 18, 2012 in Toronto. It is plain from the interaction between Mr. Byrne, who appeared for the Crown on that preliminary inquiry, and Justice Shamai, that the Crown had narrowed its prosecution, to use Mr. Byrne’s words, to rely solely on an alleged breach of an order made pursuant to section 537(1)(i) of the Code. It is also now plain, 54 weeks later, that Mr. Ichim has been on notice of that fact since that time, some weeks over a year ago.

34On page 63 of the transcript at line 18 through page 65 line 8, the exchange between Mr. Byrne and Shamai J. went as follows:

Mr. Byrne: Yes, Your Honour, sorry, before I begin with the officer, there is something I should, it’s a point of clarification I want to make, not only for Mr. Ichim, but perhaps, for the Court as well. If you look at Exhibit 1B then, that is the actual, the order of Justice Lapkin, I want to direct your attention to the fact that in the introductory paragraph at the beginning, “Upon application of the Crown”?

The Court: Yes.

Mr. Byrne: Your Honour will note that the order was actually made under two provisions of the Code –

The Court: Right.

Mr. Byrne: -- 486, yes, 486.5 and/or s. 537(1)(i). That is significant, I think, because of the way Mr. Ichim was charged. Mr. Ichim is charged under section 127 of the Code. Your Honour will likely be aware that under 127, 127 can only apply where a section that justifies a publication ban or a Court order of any kind, 127 only applies where such a section does not include its own penalty section. So given the way he’s charged, the Crown wishes to make it clear to Mr. Ichim and to the court that because 486 contains its own penalty section, that is sort out of play with respect to these proceedings because of the way he’s charged. So the 127 offence can only apply to the violation of the order under 537(1)(i) because 537, I believe, does not contain a penalty section. That perhaps could have waited until later, but I didn’t wish to forget about it.

The Court: Thank you. So, in fact, you’re narrowing the ambit of your prosecution by saying to me that you are pursuing the breach of an order under 537(1)(i).

Mr. Byrne: Yes. Had we charged differently, we would’ve had alternative bases. It’s a bit theoretical because the order would have inviolate -- one act could’ve violated the order in two ways, but you’re quite right, Your Honour, we’re only -- the breach is being pursued in relation to 537(1)(i).

Mr. Byrne: Thank you Your Honour.

35This language makes it clear that to the extent that Justice Lapkin’s order is founded upon an alleged breach of section 486.5 of the Code, the Crown concedes that it has no right to proceed to prosecute such an offence on indictment under s. 127(1). While it would remain open to the Crown to prosecute Mr. Ichim under s. 486.6 on summary conviction, it would have no right to prosecute in on indictment, and at least in this Superior Court, has abandoned the prosecution to that extent. As such, and as Shamai J. observed in her exchange with Mr. Byrne, the indictment is now by definition narrower than it would have been if it relied upon disobeying orders issued under both sections 486.5 and 537(1)(i).

36I emphasize this point because it was a concession made by the Crown before the preliminary inquiry judge. It is an important concession because it means that the Crown can no longer be pursuing these charges to the extent that they are founded on an allegation that the accused violated an order that falls within the ambit of section 486.5 of the Code.

37Stated differently, it seems to me that the concession by Mr. Byrne to Shamai J. necessarily means that the Crown can only be pursuing these charges in this court on indictment to the extent that they are founded on allegations that the accused violated an order made under s. 537(1)(i) of the Code regulating “the course of the inquiry in any way that appears to the justice to be consistent” with the Code.

38And therein lies the problem for the Crown. Charges for offences do not exist in a vacuum. They relate to specific conduct that is alleged to be prohibited by law. They are necessarily founded on conduct. The actus reus of an offence is the conduct that is prohibited by law. The mens rea is the intention to so conduct oneself. Both elements are necessary before an offence is committed. So, one asks, what is the conduct here that is prohibited? Plainly it is the publication of identifiers relating to the two undercover police officers in contravention of the interim prohibition order issued by Lapkin J.

39Section 537(1)(i) of the Code does not deal with publication bans. It deals with the general power of a preliminary inquiry judge to make orders relating to the process of the inquiry. It is by definition a general provision. In contrast, s. 486.5 is a very specific provision intended to be of general application throughout the Code. Where it is invoked, it applies in any hearing, not just at a preliminary inquiry. By its terms it governs the ability of a judge at trial or a justice at a preliminary inquiry to make a specific order directing that any information that could identify a victim, or as in this case, a witness, shall not be published in any document or broadcast or transmitted in any way, including by internet posting as occurred in this case.

40It is a fundamental principle of our law and of statutory interpretation that when two statutory provisions conflict with one another, or if one of the provisions deals specifically with the matter in question while the other has a more general application, the specific section applies to the exclusion of the more general one.⁵ Moreover, the only principle or approach to statutory interpretation that applies in Canada today is that the words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament.⁶ Further, it is an overriding principle in the interpretation of penal statutes that they are to be construed in favor of the person whose liberty is at stake: see R. v. Pare.⁷ The principal was specifically articulated by Lamer C.J.C. in R. v. McIntosh⁸ as follows:

The Criminal Code is not a contract or labor agreement. For that matter, it is qualitatively different from most other legislative enactments because of its direct and potential profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach which is sensitive to liberty interests. Therefore, an ambiguous penal provision must be interpreted in the manner most favorable to accused persons, and in the manner most likely to provide clarity and certainty in the criminal law.

41So to the extent that the conduct that underlies the alleged offences in this case is founded on alleged violations of an order issued under section 486.5 and relating to the matters dealt with or addressed in that section, by definition those matters and that conduct are no longer being prosecuted in this case, because those matters and that conduct could only be prosecuted on summary conviction as stipulated by section 486.6(1). The Crown says that it is not proceeding under that provision, but rather under section 537(1)(i), but there is nothing specific to paragraph 537(1)(i) that could serve as a foundation for prosecution relative to an alleged violation of orders made under that provision, that is not already embraced within the more specific language of section 486.5 of the Code. It remains to observe the inevitable conclusion that an offence against a non-publication order made under section 486.5 of the Code cannot be prosecuted on indictment, but only on summary conviction having regard to the more specific provisions contained in section 486.6.

42I will conclude by returning to my earlier observation that at the root of both this application and the application to stay this proceeding as an abuse of process and underlying the legal arguments is Mr. Ichim’s contention that he is being prosecuted for essentially political reasons as a person affiliated with the G20 protest movement. First, I will note that this indictment is being quashed, not for any political reason or based on any political argument, of which there were none on this particular application, but based solely on principles of statutory construction and the application of the ancient interpretive rule that the specific overrides the general. As such, it is important that Mr. Ichim specifically understand that there is absolutely no finding being made here of improper motive or improper conduct by the Crown. Neither is there any finding of any abuse of process whatsoever, and any statement to the contrary, or any claim that there was any finding of bad faith on the part of the police or the Crown would be a misinterpretation of my decision and entirely without foundation in fact or law.

43The indictment is quashed. If the Crown wishes to continue to prosecute Mr. Ichim for having disobeyed the order of Lapkin J., it is entitled to do so, but it may not continue to proceed under s. 127 of the Code and will instead be constrained to proceed by way of summary conviction as stipulated in s. 486.6 of the Code.

Michael G. Quigley J.

Footnotes

1. 12002 SCC 65, [2002] 3 S.C.R. 372.
2. 22012 SCC 28, [2012] 2 S.C.R. 92.
3. 3(1981), 1981 212 (SCC), 61 C.C.C. (2d) 449 (S.C.C.).
4. 42010 ONCA 77, [2010] O.J. No. 342 (O.C.A.).
5. 5See Halsbury’s Laws of Canada (R. Sullivan, ed.), at s. HLG-116.
6. 6See Re Rizzo & Rizzo Shoes Ltd, 1998 837 (SCC), [1998] 1 S.C.R. 27.
7. 7(1987), 1987 23 (SCC), 37 C.C.C.(3d) 97 at 106 (S.C.C).
8. 81995 124 (SCC), at para. 39. See also R. v. Mac 2001 24177 (ON CA), at para. 25.