Court File and Parties

COURT FILE NO.: 14-30422 DATE: 2017-04-11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Crown/Respondent – and – JAMES CARROLL Defendant/Appellant

Counsel: Robert Zsigo, for the Crown/Respondent Michael Johnson and Matthew Day, for the Defendant/Appellant.

HEARD: April 5, 2017

On appeal from the decisions of the Honourable Justice Diane Lahaie of the Ontario Court of Justice at Ottawa, April 7, 2016, April 8, 2016, and May 10, 2016

Ray, J

Overview

[1] The defendant was convicted April 8, 2016 of an offence under s. 14(1) of the Lobbying Act by undertaking to communicate with a public officeholder for payment and failing to file a return with the Office of the Commissioner of Lobbying, contrary to s. 5(1) of the Lobbying Act. [1] He was sentenced May 10, 2016 to a fine in the amount of $20,000.

[2] The defendant appeals a pretrial decision dated April 7, 2016 in which the trial judge dismissed the defendant’s application challenging the legislation on the following grounds: firstly, that she erred in law in failing to find the “Offence and Punishment” provisions of the Lobbying Act conflict with rights granted in the English Bill of Rights, 1689, which guaranteed: “That it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are illegal”; secondly, that she erred in law in failing to find the applicable provisions of this legislation limit free political expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedom; and thirdly, that she erred in law by misapprehending the evidence of Parliament’s intention as disclosed in the Parliamentary Debates.

[3] The defendant also appeals his conviction dated April 8, 2016 on the ground that the trial judge erred in fact and law by misinterpreting and/or misapplying the filing provisions of the Lobbying Act so as to find that the 9-11 July 2012 letter constituted an ’undertaking” to lobby.

[4] The defendant appeals the sentence as being demonstrably unfit on the ground that the $20,000.00 fine is excessive.

[5] Extensive facta from the defendant and the Crown were filed before the trial judge both on the pretrial application and trial. This appeal is unusual in that the appeal book contains copies of all these facta totalling some 77 pages. The defendant’s factum on this appeal requires the reader to extensively reference his appeal book facta in order to follow the argument. As a result, while the 40 page factum on appeal required a judge’s order to permit an extended factum, that was only the beginning.

Trial Judge’s Decisions

A. Pretrial Application Decision

[6] The trial judge found and held as follows:

a) Even if the right conferred in the English Bill of Rights, 1689 has any application in Canadian law today, the requirements of s. 5 of the Lobbying Act cannot be said to impede that right. The right to petition or lobby the government is not prohibited by the legislation, and all persons retain the right to petition the government directly on their own behalf, without fear of penal consequences. There is no reporting requirement on individuals who petition public officials on their own behalf and these individuals do not face any potential sanctions within the legislation. In fact, the person whose petition is being advanced to the government suffers no penal consequences even where the paid lobbyist, acting on his or her behalf, fails to comply with s. 5 of the Act.

b) The right to lobby is not offended, even if the right is read as extending to the activities of paid lobbyists or consultants, acting on behalf of an individual. The Act merely requires that the paid lobbyist file information returns setting forth prescribed information as to the lobbying activities in certain prescribed circumstances. Access to government by paid lobbyists, the manner of lobbying and the content of the lobbying are not prohibited or regulated by the Lobbying Act. The intent and effect of the legislation, in regards to the requirement to file a return, are to prevent paid lobbyists from petitioning the government in secret.

c) The (defendant) concedes, for the purpose of the Application, that if he had signed the agreement letter as a consultant lobbyist, he would have been obligated to file a return setting out the information required by s. 5(2) of the Lobbying Act within the prescribed time.

d) Ms. Sannoufi (the client with whom the (defendant) exchanged an engagement letter) had no objections or concerns about the information that would have been required to be disclosed in the filing under the Act. At no time did the defendant or anyone at Tactix (the company associated with the defendant) file a return under the Lobbying Act. (The trial judge rejected) the argument that the (defendant) did not file a return out of concern for La Vie’s (Ms. Sannoufi’s company) intellectual property interests. There is overwhelming evidence before me that supports the conclusion that the (defendant) did not turn his mind to this issue as a basis for a conscious decision to avoid filing the prescribed return.

e) On the broader level, the (Crown) concedes that lobbying is an activity that conveys or attempts to convey a meaning and therefore is protected by the freedom of expression guarantees under s. 2(b) of the Charter. The (defendant) concedes that the purpose of the Lobbying Act is not to restrict freedom of expression. The challenge is on the effect of the legislation.

f) It is of paramount importance in my view that there exists no regulation, should a person decide to lobby on his or her own behalf. The impugned provisions also do not restrict or regulate the client’s ability to hire a paid lobbyist to communicate with the government, nor do they restrict or regulate the message sought to be conveyed, either by the client personally or by the lobbyist. The provisions do not impede or otherwise restrict access by the paid lobbyist to the government. Furthermore, should the lobbyist fail to file a return, there are no consequences under the Lobbying Act for the client. The penal sanctions for non-compliance with s. 5 can only be imposed upon the intermediary, that is, the paid consultant lobbyist. The imposition of consequences on the consultant lobbyist for failure to file a return does not have the effect of restricting the expression of those attempting to convey meaning, that is, the clients or originators of the communication.

g) The impugned provisions of the Lobbying Act do not affect the ability of the originator of communication to convey meaning to federal public office holders, nor do they affect the ability of the originators of such communications to use paid lobbyists to assist in their communications or the ability of paid lobbyists to convey the communication from their clients to federal public office holders. The reporting regime is intended to ensure transparency and openness, allowing the public to know the identity of the paid lobbyists who are communicating with public office holders and which interests these lobbyists represent. I find that the provisions of the Lobbying Act under review do not breach s. 2(b) of the Charter, either on the facts of this case or in the broader sense.

B. Trial Decision

[7] The trial judge considered the evidence that was contained in an agreed statement of fact, a “proposed statement of continuing work by Tactix”, and the affidavit evidence of Ms. Sannoufi; and made the following findings, and holdings in law:

a) The defendant was an employee of Tactix Government Relations and Public Affairs Inc., was paid a salary and, if warranted, a bonus.’ He did not have an ownership interest in Tactix, nor was he an officer of Tactix. The defendant reported to Mr. Howard Mains and Mr. Alan Young, owners and co-presidents of Tactix.

b) Generally, Tactix advised their clients and the clients advocated to the government. However, from time to time Tactix employees performed activities on behalf of the client, which constituted lobbying under s. 5 of the Lobbying Act. In these circumstances, it was the policy of Tactix that it was the personal responsibility of each employee to identify whether the activities in which he or she was engaged triggered an obligation to file a return and, if so, it was the employee’s personal responsibility to file the return. Tactix does not corporately file returns under s. 5 of the Lobbying Act. To assist the employees, Mr. Young, a lawyer, met with them when they joined the corporation to inform them of this policy and their obligations under the Lobbying Act.

c) Ms. Reham Sannoufi was a Director and co-owner, along with her husband, of La Vie Executive Health Centre (“La Vie”), located in Kanata. La Vie wanted to sell to government a health care technology it had developed.

d) An agreement dated July 11, 2012, was entered into between La Vie and Tactix, signed by the defendant identifying himself as principal. The agreement stipulated that, for a fee of $10,000 per month, Tactix would assist La Vie in selling its product to, among other parties, the government of Canada by, among other activities, communicating with federal public office holders to sell La Vie’s product. The goal was to sell the product and the Canadian federal government was seen as a potential buyer.

e) During the material time, Tactix sent invoices to La Vie in accordance with the terms of the agreement. While there were some disputes between La Vie and Tactix towards the end of the material time about the accounts in general, La Vie paid the in-voices in full and on time. The cheques were made payable to Tactix. The invoices, during the material time period, reflected expense claims for meals with DND and political stakeholders.

f) A memorandum dated April 12, 2013, from the defendant to Mr. Young setting out a summary of the work done by Tactix, included a chart which sets out the names and positions held by several public office holders who were consulted in relation to the La Vie account. The chart references personnel from the Department of National Defence to political staff at the Office of the Prime Minister. At the end of the memo, (the defendant) wrote: Before last week’s email we were in the process of looping back to some of these DND officials with the now-patented La Vie process.

g) In accordance with the criteria for the awarding of a “marketing bonus” as set forth on page 3 of the terms of his employment agreement, the (defendant) received a marketing bonus from Tactix of 12.5% out of a maximum of 15% over and above his salary for his work in bringing in the La Vie account.

h) On the issue of the interpretation of the word “individual”, s. 5 of the Lobbying Act reflects Parliament’s clear direction to individual consultant lobbyists that they must file a return in the prescribed form, in the circumstances set out in the legislation, once they have undertaken or agreed, for payment, to represent a client in communications with a public office holder for the purposes set out in s. 5(1). I find that the (defendant), on these facts, was an “individual” within the meaning of s. 5(1) of the Act.

i) I find that the letter of agreement, drafted and signed by the accused, constituted the (defendant’s) undertaking to communicate with public office holders on behalf of La Vie. Specifically, I find that the (defendant) provided his undertaking to either personally communicate with public office holders or arrange to have it done. Although the agreement was on Tactix letterhead, I find that the (defendant) intended to take the lead and did take the lead in advancing La Vie’s interests, intending as he wrote in the letter to “sell the plan; sell the product.” As the individual who drafted and signed the letter of agreement setting out the financial terms and activities to be performed, the (defendant) was the individual providing the requisite “undertaking.”

j) If a consultant lobbyist is employed by a corporation (for example, Tactix), the mere fact of receiving his salary from his employer, would suffice. There is no privity of contract requirement. Here, La Vie agreed to pay money to Tactix. The “payment to the (defendant’s) employer”, as opposed to him directly has no impact on this element of the offence. The fact that the defendant also received a bonus for his work in regards to the La Vie account merely strengthens the case for the Crown.

k) The (defendant) was not undertaking to perform these lobbying activities on the sole behalf of his employer. Section 5(6) does not apply. These activities were undertaken to be performed ultimately on behalf of the client, La Vie. I find that (section) 5(6) is intended to remove from the class of persons responsible for filing the return under s. 5, individuals who work as in-house lobbyists. In-house lobbyists lobby the government on behalf of their employer and it is the employer (and not a third party) who is to be the sole beneficiary of the lobbying activities. Parliament used language in s. 7 to capture the many possible “employment”’ situations. There is no mention of the third party “client.” Conversely, s. 5 creates the need to disclose information about the ultimate “client”, whether the said client is a person, corporation, coalition, government agency etc. The lobbyist/client relationship captured by s. 5 is distinct from the employer/employee situation covered by s. 7. In my view, there is no ambiguity on this issue.

l) I find that (the defendant) was an individual, required to file the return described in s. 5 of the Lobbying Act and that he did not do so within 10 days of his “undertaking” to communicate with a public office holder, for payment, on behalf of La Vie. The evidence reveals that he never filed the requisite return. This is a strict liability offence. I find that the Crown has established the actus reus of the offence beyond a reasonable doubt. Defence counsel is not proposing a defence of due diligence. The Crown has established all of the elements of this offence beyond a reasonable doubt.

C. Sentencing Decision

a) The defendant was 36 years of age with an 8 years old son. He had no prior criminal record, was employed and a contributing member of society. He had an impressive record having received recognition awards and sits on a number of boards. According to counsel the impact of the conviction is serious.

b) The defendant received a bonus for the La Vie client in the amount of $7,500. The fees earned by the La Vie account totalled $60,000. His total earnings during 2015 were $275,000.

c) The mitigating factors included that he did not have a criminal record. This was a first offence. The conviction made it difficult to for him to find employment. It was an aggravating factor that having made ten previous filings, he knew of his obligation to file. His failure to file meant that the client had no means of tracking the actual work done on her behalf, keeping in mind the filing was intended to record the work that was done by way of lobbying. No reasons were advanced by the defendant as to why the filing was not done in this case.

d) The report of the House of Commons Standing Committee on Elections, Privileges and Procedure, speaks of the requirements under the Lobbying Act as being essential for the survival of democracy. It is important that lobbying be open and transparent. The law is there. It must be respected.

e) The applicable sentencing provisions are denunciation and deterrence. Rehabilitation is also to be considered.

f) The conviction has impacted him ‘reputation-wise’ and financially.

g) A fine of $15,000, being twice the bonus would be appropriate but only on a plea of guilty. A fine of $20,000 is a reasonable one and is the lowest possible fine in these circumstances, which would adequately address the principles of denunciation and deterrence.

Standard of Review

[8] The standard of review on a summary conviction appeal requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result. [2] The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness. [3] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion. [4] The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact. [5]

[9] An appeal against sentence requires that deference be shown to the trial judge’s decision. The trial judge has the advantage of seeing and hearing witnesses, whereas the appellate court only has the written record. It is a profoundly subjective process, and an appellate court should not vary or modify sentence simply because it feels that a different sentence ought to have been imposed. A variation of a sentence should only be made if the court is convinced it is clearly unreasonable and therefore demonstrably unfit. [6]

Grounds of Appeal - Issues

A. The English Bill of Rights, 1689 and the Right to Petition

[10] The defendant’s position is that the relevant provisions of the English Bill of Rights, 1689, are invalid in the face of the Lobbying Act, which provides:

Right to Petition

That it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are illegall. (sic)

[11] He contends that the English Bill of Rights, 1689 is ‘quasi-constitutional legislation’ because it smacks of human rights legislation, that statutory provisions that violate the provisions of the English Bill of Rights, 1689, are constitutionally invalid unless expressly exempted by the statute. No such exemption is contained in the Lobbying Act. He contends that the word ʻpetitionʼ includes modern lobbying, the ‘King’ includes the Crown, and ‘subjects’ include ‘all human subjects of the Crown.’ He argues that while the Lobbyist Act requirements interfere with the right to petition and as a result those requirements, such as filing, are invalid.

[12] The Crown’s position is that the English Bill of Rights Act does not have constitutional status, that the trial judge was correct in her interpretation of the legislation, and that in any event the defendant has failed to demonstrate either in fact or in law how the right to petition is in any way prohibited, backed by a penal sanction.

[13] I accept the trial judge’s reasoning on this point. I do accept that the current state of our law rejects the notion that the English Bill of Rights, 1689, is part of our Constitution. [7] The defendant acknowledged that point, but argued it has quasi-constitutional status by reason of its focus on human rights. I do not consider it necessary to decide the constitutional status of the English Bill of Rights, 1689.

[14] It is important to note that the Lobbying Act in no way regulates or affects a citizen’s right to lobby or petition public office holders. Section 5 only relates to those that purport to be an intermediary for someone else. The requirements of the Act on those intermediaries are modest levels of disclosure, so that the public might be informed about the activities of paid lobbyists. By analogy to the ‘right to counsel’, that right belongs to the individual, not the individual lawyer. If the defendant’s argument were accepted, regulation of the legal profession might be arguably invalid. The Lobbying Act had as its purpose the requirement that lobbyists make public through filing, information concerning their lobbying activities, in order to ensure openness of communications with public office holders as a principle of the democratic process. The trial judge was correct: the reporting regime is intended to ensure transparency and openness, allowing the public to know the identity of the paid lobbyists who are communicating with public office holders and which interests these lobbyists represent.

[15] The trial judge made no error. I reject the defendant’s argument on this point.

B. Compulsory Registration Violates the Defendant’s Right to Free Expression Under the Charter S. 2 (b)

[16] The defendant’s position is that subsection 2(b) of the Charter stipulates that “everyone” has the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”; and that the trial judge erred in law by holding that the compulsory registration regime in the Lobbying Act did not violate the defendant’s right to free expression – specifically, the right to refrain from expression – as guaranteed by subsection 2(b). He argues that the trial judge’s analysis was flawed in failing to find that the required filing, in contravention of the Charter’s protection of freedom of expression, compels lobbyists to register and report their activities to the Commissioner – lobbyists can either remain silent and avoid the registration and reporting regime or they can register and report their communications with public officeholders. The defendant conceded before the trial judge that the purpose of the Lobbyist Act was not to restrict the defendant’s freedom of expression, but that that was the consequence.

[17] The Crown’s position is that the trial judge was correct in finding that the impugned provisions do not “regulate the message sought to be conveyed”; and correctly enabled the trial judge to distinguish the present case from the Elections Act line of authorities where campaign contributions (clearly a form of political expression) were being publicly disclosed.

[18] An applicant that asserts a violation of a Charter, s. 2(b), breach bears the burden to first make out that the form of expression is protected. I accept the trial judge’s analysis and finding that the ‘originator’ or client’s rights to freedom of expression are in no way infringed. I do not accept that the registration or filing requirements infringe the defendant’s rights to freedom of expression. It is only expression that “conveys or attempts to convey meaning” relating to “the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing” that is protected by s. 2(b) of the Charter. [8]

[19] I find the trial judge made no error.

C. Interpretation of Sections 5 and 7 of the Lobbying Act; and the Relevance of the Parliamentary Debates.

[20] The defendant’s position is that there is confusion in interpreting ss. 5 and 7 of the Lobbying Act, that the Parliamentary Debates discussion demonstrates the confusion, and that the trial judge erred in finding that s. 5 of the Act applied to the defendant without making reference to the Parliamentary Debates. He also contends that the agreement between La Vie and the defendant was an agreement to undertake, as opposed to an undertaking, as used in the Act. He relies on a memorandum from the defendant to Ms. Sannoufi in which he outlined his timeline that in the four to six month time line, contact would be made with government officials, as evidence that requiring the defendant to complete the filing within 10 days of the letter agreement made no sense.

[21] The Crown’s position is that it was open to the trial judge to interpret that Lobbying Act without referring to the Parliamentary Debates, and that she correctly decided that s. 5 was the correct applicable portion of the Act.

[22] While the defendant advised the court at the opening of argument that there were no findings of fact that were in issue – except for consideration of the Parliamentary Debates on the interpretation of the Lobbying Act, - it was a significant part of the defendant’s argument that the letter agreement between Tactix and La Vie was merely an agreement to file an undertaking, and not an undertaking that triggered the requirements of s. 5 of the Lobbying Act. That argument was rejected by the trial judge. I consider that to be a finding of fact as noted in para. 7 (i) above, and therefore deserving of deference.

[23] While she did not refer to the Parliamentary Debates in her reasons, I cannot see the error that is alleged. Leaving aside the reliability of the exchange as being relevant to an interpretation of the legislation, the portion of the exchange that is relied upon is actually a question by a Member of Parliament in Committee to the then Commissioner about where a ‘corporate lobbyist’ might be dealt with in the Act. The Commissioner’s response was: I would have thought we would have been able to capture all of those. As of the end of the last fiscal year, we had 357 organizations registered. The MP’s question addressed his concern about the influence of ‘corporate lobbyists’ on policy-making. I take the MP to be concerned about industry lobbyists advocating for the lumber, drug, automobile, or some such industry or interest group. I consider the Commissioner’s response to correctly address that query with reference to the number of ‘organizations registered’. There seems to be no doubt that s. 7 of the Act is intended to deal with those kinds of lobbying activities.

[24] The trial judge concluded that s. 5 was intended to cover individuals such as the defendant lobbying on behalf of an individual, group or corporate entity outside of the company he was employed by. A plain reading of ss. 5 and 7, make it clear that a lobbyist that is employed by a corporate entity to lobby on its own behalf is governed by s. 7 (requiring the corporate employer to file the return); while s. 5 governs all others, thereby requiring the individual lobbyist rather than his employer to file the return. The headings of each of the sections – “Consultant Lobbyists” for s. 5; and “In-house Lobbyists (Corporations and Organizations” for s. 7 – are consistent with that conclusion. The evidence before the trial judge was that the defendant’s employer had concluded it was governed by s. 5, and had so advised its employees when they were hired. The evidence was that the defendant had filed 10 returns before this offence. The defendant must have also concluded that s. 5 was the relevant provision. There was no evidence before the trial judge that somehow the defendant had failed to file a return on behalf of La Vie because he considered s. 7 rather than s. 5 was the relevant provision. In fact no reason was advanced before the trial judge.

[25] I see no error in the trial judge’s finding of fact that the letter agreement constituted an undertaking as described in the Act. “An undertaking to communicate on behalf of a client” and an agreement to undertake on behalf of a client are the same thing. Hers was a finding of fact. It is deserving of deference. A plain reading of the letter agreement is consistent with her finding.

[26] I see no error in the trial judge’s finding that the undertaking was made by the defendant. She rejected the defendant’s argument that it was made by Tactix. She had ample evidence before her to make that finding. There was no error.

[27] The defendant contends that s. 5 (6) of the Act which excludes employees from s. 5 who “undertake” solely on behalf of their employer, relieved the defendant of having to file a return since at all times he was working for his employer. I do not accept that argument. It is who the “undertaking” is on behalf of that is at the heart of the difference. The language of s. 5(6) clarifies that any person defined therein would find s. 7 governs, not s. 5:

Restriction on application

(6) This section does not apply in respect of anything that an employee undertakes to do on the sole behalf of their employer or, where their employer is a corporation, in respect of anything that the employee, at the direction of the employer, undertakes to do on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary.

[28] I find no error was made by the trial judge.

D. The Sentence Imposed was Unfit.

[29] The defendant’s position is that the sentence of a fine in the amount of $20,000 was so severe as to make it unfit. In his factum he contends that the trial judge’s failure to reference the Parliamentary Debates exchange undermined his argument that the uncertainty in the law, that he argued was evident in the exchange in the Parliamentary Debates, went to the issue of the defendant’s moral blameworthiness. He contends that there is no established range for this type of offence, and references R. v. Skaling who after a joint submission and a guilty plea, a $7,500 fine of was imposed. [9] By contrast he argued that the trial judge imposed a fine that was three times the fine in Skaling whereas the defendant only received twice what Skaling was paid. He contends that the trial judge mistakenly treated the defendant’s not guilty plea as an aggravating factor when she increased to penalty from $15,000 to $20,000. He also argues that the trial judge drew inferences from the defendant’s previous ten filings that improperly concluded that he knew his obligations under the Act rather than concluding that the defendant had been unsure about his obligation to file, given the difficulties between ss. 5 and 7 of the Act.

[30] The Crown’s position is that the trial judge made no error in principle; and the sentence is reasonable and therefore fit. He contends that Skaling is a single decision and does not create a range.

[31] Firstly, the defendant’s argument that the trial judge failed to draw an inference that the defendant had no moral blameworthiness because of the uncertainty of the legislation has no merit. There was not a scintilla of evidence before her to support the inference that the defendant was uncertain as to the requirements of the Act and his obligations. It was however open to her on the evidence to conclude that he was well aware of the requirements to file a return.

[32] The defendant’s reliance on Skaling is faulty. That was a joint submission after a plea of guilty. Nothing in the record in that case supports that there was any relationship between the money he was paid, and the amount of the penalty.

[33] While the trial judge used awkward language to describe how she reached her decision on the amount of the fine, I do not accept that the result was to treat the defendant’s plea of not guilty as an aggravating factor. I infer that she had in mind a comparison to the sentencing decision in Skaling where there was a guilty plea.

[34] The trial judge correctly concluded that denunciation and deterrence were the principal sentencing principles. It was open to the trial judge to consider the financial benefit enjoyed by the defendant as a result of his work on behalf of the client in order to at least settle on a fine that did constitute a licence to continue to breach his obligations under the Act. In other words, it had to be in excess of $7,500. It was open to the trial judge to conclude that the defendant purposefully and intentionally failed to file the return required by the Act – and not because he was unsure of the requirements of the Act. She considered the circumstances of the offender, the circumstances of the offence, and both the aggravating and mitigating factors.

[35] It is not for me to decide that since I might have imposed a lesser sentence, that therefore the sentence that was levied was unfit. I conclude that the fine she imposed of $20,000 was not so unreasonable as to be unfit. I find no error in principle in the judge’s sentencing decision.

[36] The defendant’s appeal is dismissed.

Honourable Justice Timothy Ray

Released: April 11, 2017

COURT FILE NO.: 14-30422 DATE: 2017-04-11 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – JAMES CARROLL Defendant/Appellant REASONS FOR JUDGMENT Honourable Justice Timothy Ray Released: April 11, 2017

[1] R.S.C., 1985, c. 44 (4th Supp.), s. 1; 2006, c. 9, s. 66. [2] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) [3] R. v. Shepherd, 2009 SCC 35, 2009 S.C.C. 35, para 20 (S.C.C.) [4] R. v. Burns, 1994 SCC 127, [1994] S.C.J. No. 30 (S.C.C.) [5] R. v. Gagnon 2006 SCC 17 at paras. 10 and 19 (SCC) [6] R. v. M. (C.A.), 1996 SCC 230, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327, [1996] 1 S.C.R. 500, at p. 565 (S.C.C); R. v. Shropshire 1995 SCC 47, [1995] S.C.J. No. 52, [1995] 4 S.C.R. 227 at 249 (S.C.C.). [7] R. v. Montague, 2010 ONCA 141, [2010] O.J. No. 710 (ONCA), at para 15. [8] Irwin Toy Ltd. v. Quebec (Attorney General), 1989 SCC 87, [1989] 1 S.C.R. 927, at para. 53 (SCC) [9] R. v. Skaling, Ontario Court of Justice, July 31, 2013, Justice Alder.