WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the

Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

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

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.M., 2022 ONCA 154

DATE: 20220223

DOCKET: C69973

van Rensburg, Nordheimer and
    George JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

A.M.

Respondent

Andrew Hotke, for the appellant

Wayne Cunningham, for the respondent

Heard: February 4, 2022 by video
    conference

On appeal from the judgment of Justice
    Kathleen E. Cullin of the Superior Court of Justice, dated May 13, 2021, with
    reasons reported at 2021 ONSC 3515, allowing an appeal from the conviction
    entered by Justice Vanessa V. Christie of the Ontario Court of Justice, dated May
    13, 2019.

Nordheimer J.A.:

[1]

The Crown appeals, with leave, from the judgment
    of the summary conviction appeal judge, who allowed an appeal and set aside a conviction
    on a single count of sexual assault. For the following reasons, I would allow
    the appeal, set aside the judgment below and restore the conviction.

A.

Background

[2]

The complainant was 22 years old at the time of
    the offence. She testified that the respondent, who was 54 years old at the time
    of the offence, was a close friend of her family and like an uncle to her. He
    attended her familys Christmas dinners and would speak to and visit her
    parents regularly. She first met him when she was 15 or 16 years old.

[3]

The complainant explained that on December 19,
    2017, she agreed to go to the respondents home to listen to music and help him
    decorate his Christmas tree for an upcoming Christmas party. The respondent
    picked her up around 1:30 p.m. They made a couple of stops on the way to his
    home, including at the LCBO where the respondent purchased vodka and rum. They
    arrived at the respondents home around 2:30 p.m. Soon after their arrival, the
    respondent began mixing drinks for the two of them. The complainant had not
    consumed any alcohol or drugs before arriving at the respondents home, save
    for a painkiller she had taken earlier that afternoon for her back pain.

[4]

The respondent continued to mix drinks for them
    throughout the evening. The complainant believed she had between six and eight
    drinks in total. She was not aware of how much alcohol was put in her drinks.
    She felt buzzed but  nothing out of the ordinary. Two visitors stopped in
    for short visits but largely the respondent and the complainant were alone. The
    complainant remembered these visitors stopping in, and remembered decorating
    the tree, listening to music and having drinks, but at some point, her memory
    of the evening stops. At trial, she could not say with precision when the gap
    began. She believed it was likely around 10 p.m. What she could recall
    distinctly, however, was her next memory, which was waking up from sleep around
    1:00 or 1:30 a.m. to find herself face down on the respondents bed, her pants
    and underwear removed, and the respondent touching her vagina with his mouth and
    fingers. He said to her that she was beautiful. The complainant was shocked and
    scared. She lay still for a moment, unsure what to do, then she moved his hand
    away, told him to stop, and got up.

[5]

After she got up, the complainant gathered her
    clothes from the floor and went to the bathroom to put them on. Then she went
    to the kitchen and collected her jacket and bag. The respondent asked her if
    she was mad at him, and she said that she was. He asked her to wait and said he
    would call a taxi, but she refused and left. She immediately called a friend and
    made her way to the friends house on foot. The friend convinced her to call
    her mother to tell her what had happened. The police were contacted. After
    attending the police station, the complainant was taken to Sudbury Hospital for
    the administration of a sexual assault kit.

[6]

The Crown called a forensic scientist from the
    Centre of Forensic Sciences to give expert opinion evidence about the presence
    of alcohol and drugs found in the complainants blood and urine samples taken
    the morning of December 20, 2017. With respect to alcohol, the expert testified
    that alcohol was detected in the complainants blood at a concentration of 59
    milligrams of alcohol in 100 millilitres of blood, and in her urine at a
    concentration of 92 milligrams of alcohol in 100 millilitres of blood. The
    expert was asked to calculate, based on these figures, what the estimated blood
    alcohol concentration (BAC) would have been at the time of the offence, between
    10 p.m. and 1:30 a.m. The expert testified that the complainants BAC would
    have been between 119 and 249 milligrams of alcohol in 100 millilitres of
    blood.

[7]

The expert provided a description of the
    possible effects of a BAC of 59 milligrams of alcohol in 100 millilitres of
    blood, and the possible effects of the projected BAC range at the time of the
    offence of 119-249 milligrams of alcohol per 100 millilitres of blood. She said
    that a BAC of 59 per 100 could have minimal effects, depending on tolerance. However,
    a BAC of between 119 and 249 per 100 could have dramatic effects. Effects at
    the lower end of the range could include slurred speech, motor incoordination,
    increased sociability and talkativeness. Toward the higher end of the range,
    effects would become more and more dramatic, including significant instability
    in ones ability to walk, vomiting, nausea and even unconsciousness. Again, a
    persons tolerance would have a bearing on the effects. A person with low
    tolerance could experience such dramatic effects at a lower BAC.

[8]

The complainant testified that she was an
    experienced drinker. While she said that she was not a heavy drinker, she also
    said that it was not unusual for her to have eight to ten drinks. The
    complainant also acknowledged that she had blacked out a handful of times since
    she turned 19 years old, and that these black outs came over her abruptly.

[9]

The expert also provided an opinion on the three
    substances that were detected in the complainants urine: codeine glucuronide,
    morphine metabolite and acetaminophen. The expert described the effects of
    these substances and offered the opinion that the effects of alcohol can be
    increased by codeine and/or morphine, leading to increased sedation, increased
    drowsiness, motor skill impairment and possible memory impairment.

[10]

The Crown also filed biology reports from the
    Centre of Forensic Sciences. The reports established overwhelmingly that the
    respondents DNA was found on the complainants genitals after the assault.

B.

The decisions below

(1)

The Trial

[11]

The trial judge acknowledged that the critical
    issue was consent. Sexual contact was admitted, and the DNA evidence left [n]o
    question that sexual activity occurred. On the issue of consent, the trial
    judge concluded, based on the whole of the evidence, that the complainant was
    both unable to consent to the sexual activity that occurred and did not in fact
    consent to the sexual activity that occurred.

[12]

The trial judge referred to certain principles
    that she drew from the decision of
R. v. J.R.
(2006), 40 C.R. (6th) 97
    (Ont. S.C.), affd 2008 ONCA 200, 59 C.R. (6th) 158, leave to appeal refused, [2008]
    S.C.C.A. No. 189 (
Daigle
), and [2008] S.C.C.A. No. 231 (
Roberts
).
    The trial judge went on to address the concepts of blacking out and passing
    out. The trial judge noted that while people often use the terms as being
    synonymous, they are not. She said:

Passing out is a deep state of sleep or
    unconsciousness, whereas a blackout is a conscious person, a somewhat conscious
    person who may still be doing and saying things, but afterwards have no memory.

[13]

The trial judge concluded that the complainant was
    unable to and did not consent to the sexual activity that occurred. The trial
    judge gave a number of reasons for that conclusion which largely turned on her
    review of the evidence. The trial judge also found that the complainant was an
    extremely credible witness. The trial judge ultimately concluded that the
    complainant was unconscious when the sexual activity occurred. She appeared to
    find some additional support for this conclusion from the fact that the
    respondent had asked the complainant, before she left his home, whether she was
    mad at him. The trial judge found that this indicated that the respondent knew
    that the complainant had not consented to the sexual activity.

(2)

The Summary Conviction Appeal

[14]

On appeal by the respondent, the summary
    conviction appeal judge (SCAJ) set aside the conviction and ordered a new
    trial. In reaching her conclusion, the SCAJ was critical of the trial judges
    reasons. In particular, the SCAJ said that the trial judge had failed to
    address, in her reasons, (i) when the complainant became unconscious and (ii)
    whether the complainant consented to the sexual activity before she became
    unconscious.

[15]

The SCAJ said that it was impossible to know with
    certainty what happened on the night in question. She said that it was possible
    that the respondent took liberties with the complainant while she was
    unconscious, but it was also possible that the complainant had consented to the
    sexual activity while she was blacked out and conscious. The SCAJ said that the
    trial judge had failed to grapple with both possibilities.

[16]

The SCAJ further criticized the trial judge for
    her failure to address the expert evidence of the toxicologist. The SCAJ said,
    at para. 36:

In short, the record disclosed no reliable lay
    witness evidence and no expert evidence establishing the complainants level of
    alcohol consumption or level of intoxication at any point during the evening.
    There was no foundation upon which to establish when or whether the complainant
    was rendered unconscious. There was no foundation upon which to establish the
    absence of consent or the [respondent]s knowledge of the absence of consent.
    If the trial judge observed a pathway in the evidence to reach these
    conclusions, she did not disclose it in her reasons.

[17]

The SCAJ then referred to this courts decision
    in
R. v. Garciacruz
, 2015 ONCA 27, 320 C.C.C. (3d) 414, and said that
    the trial judges reasons did not meet the functional needs of reasons for
    decision.

[18]

The SCAJ returned to the trial judges failure
    to mention the evidence of the toxicologist. She was especially critical of the
    trial judges failure to address the experts evidence that an experienced
    drinker may have demonstrated no visible effects of intoxication.

[19]

Having made that remark, the SCAJ then
    criticized Crown counsel for failing to provide the toxicologist with information
    that might have permitted the toxicologist to render a conclusive opinion. The
    SCAJ said, at para. 44:

The Crowns failure to fully arm their expert
    and the court with the facts suggests that those facts may not have supported
    the Crowns theory regarding the complainants capacity to consent or the [respondent]s
    knowledge of any lack of capacity.

[20]

The SCAJ continued on this point at para. 45:

Given the complainants memory lapse and the
    absence of other witnesses, evidence of the complainants level and appearance
    of intoxication between 10:00 p.m. and 1:30 a.m. was critical to understanding
    her capacity to consent, the [respondent]s knowledge regarding her capacity to
    consent, and the likelihood of her loss of consciousness due to alcohol
    consumption.

[21]

Finally, the SCAJ dealt with the issue of
    post-offence conduct, that is, the fact that the respondent had asked the
    complainant whether she was mad at him. The SCAJ said, at para. 50:

The trial judges perfunctory conclusion that
    the [respondent]s inquiry about whether the complainant was mad demonstrated
    his knowledge of her lack of consent flies in the face of all appellate court
    guidance about the treatment of post-effect conduct evidence.

[22]

The SCAJ found that this evidence was equivocal
    and did not demonstrate actions inconsistent with that of an innocent person.

[23]

The SCAJ concluded that the trial judges
    errors of law were fatal to her decision to convict. She allowed the appeal
    and ordered a new trial.

C.

Analysis

[24]

The appellant raises four grounds of appeal:

1)

Did the SCAJ err in finding the trial judges
    reasons insufficient?

2)

Did the SCAJ err in finding the trial judge had
    erred by failing to address perceived deficiencies in the expert evidence?

3)

Did the SCAJ err in holding that there was a
    basis for the trial judge to draw an adverse inference against the Crown for
    failing to elicit certain evidence from the complainant that was deemed by the SCAJ
    to be necessary to evaluate the expert evidence?

4)

Did the SCAJ err in finding that the trial judge
    had erred by not giving a reasoned explanation for her use of the post-offence
    conduct evidence?

[25]

In my view, there is merit to at least the first
    three of these grounds of appeal. I will deal with each of them in turn.

(1)

Sufficiency
    of reasons

[26]

In my view, the SCAJ was unduly critical of the
    trial judges reasons. This was largely a fact driven case. The trial judge
    reviewed the facts and reached certain conclusions regarding them. She also
    explained the reasons for her conclusions. The trial judges reasons permitted
    appellate review, as is evident from the review undertaken by the SCAJ. While
    there may be opposing views on the conclusions reached by the trial judge, that
    fact does not render the reasons insufficient. In approaching the trial judges
    reasons as she did, the SCAJ committed the error in appellate review described
    in
R. v G.F.
, 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 76, that is,
    a search for error arrived at by parsing imperfect or summary expression on the
    part of the trial judge.

[27]

One of the particular criticisms of the trial
    judges reasons offered by the SCAJ is her failure to mention the evidence of
    the toxicologist. I make two points in response to that criticism. First, a
    trial judge is not required to refer to every piece of evidence that is
    presented. This basic principle applies equally to expert evidence as it does
    to factual evidence. The evidence of the toxicologist was not definitive on the
    issue of consent, nor could it have been. It was up to the trial judge to
    decide whether it provided assistance to her. Because the expert evidence was
    not definitive, I can understand why the trial judge did not mention it. Second,
    I would note, on this point, that the trial judge said, at the outset of
    her reasons, that she had considered the totality of the evidence in coming
    to her conclusion. There is no reason, on the record, to conclude that she did
    not do so.

(2)

Deficiencies in the expert evidence

[28]

The SCAJ appears to be critical of the expert
    evidence, and Crown counsels presentation of it, on the basis that it did not
    provide a definitive explanation. I reject that criticism. Experts are often
    unable to provide definitive opinions or explanations because those definitive
    opinions require established facts and, as is often the case in a criminal
    prosecution, those facts are not established at the time when the expert
    renders their opinion.

[29]

The SCAJ is also wrong to criticize the trial
    judge for accepting the toxicologists most dire estimation of the
    complainants state of mind at the time of the incident. The trial judge did
    no such thing. I would also note that the SCAJs finding on this point is
    entirely inconsistent with the SCAJs criticism that the trial judge failed to
    refer to the evidence of the toxicologist.

[30]

The toxicologists evidence would have provided
    some support for the complainants account, including the reliability of her
    evidence that she lost consciousness and awoke to find the respondent
    performing sexual acts on her. To the degree that the trial judge may have
    found the toxicologists evidence of assistance to her in assessing the
    complainants evidence, she was entitled to rely on it in reaching her conclusions.
    However, as I have already mentioned, the trial judge was not required to rely
    on this evidence nor, if she did, was she required to enunciate the details of
    that reliance. The fact of the matter is that the expert evidence did not stand
    in the way of the conclusions that the trial judge reached. In fact, it
    provided some support for the complainants evidence that she had passed out as
    a result of her consumption of alcohol provided at the hands of the respondent.
    Had the expert evidence presented an obstacle to that conclusion, it would then
    have been necessary for the trial judge to explain why that evidence did not
    preclude her conclusions. That is not what occurred in this case, however.

[31]

I would add, on this point, that this case is
    entirely different from what was dealt with in
Garciacruz
. In that
    case, there were inconsistencies in the complainants evidence that the trial
    judge had not addressed or explained. There were no such inconsistencies here.
    Indeed, as I have noted, the trial judge found the complainant to be an
    extremely credible witness. The trial judge was entitled to accept the
    complainants evidence and to reach the conclusion that she did on the issue of
    consent.

(3)

Availability of an adverse inference

[32]

The SCAJ found that Crown counsel had failed to arm
    their expert and the court with certain facts. She went on to suggest that
    those facts may not have supported the Crowns theory regarding the
    complainants capacity to consent or the respondents knowledge of any lack of
    capacity. The SCAJ then said it would have been appropriate for the trial judge
    to draw an adverse inference against the Crown arising from its failure to
    elicit those facts.

[33]

The SCAJs conclusion on this point is
    unprecedented and it is wrong in law. It unnecessarily extends the principles
    underlying the law on when it is appropriate to draw an adverse inference. That
    extension, in this case, also treads heavily on prosecutorial discretion. Neither
    side has produced a single case where an adverse inference was properly drawn
    from the failure of a party to provide certain facts to an expert. Rather, the
    failure of an expert to be provided with relevant facts, or the failure of an
    expert to consider relevant facts, are normally matters that go to the
    reliability of the expert opinion and the weight to be given to it: see, e.g.,
R. v.
    Gibson
, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 203. The failure of an
    expert to advert to certain facts is very often fodder for effective
    cross-examination of the experts opinion.

[34]

Two principles relating to adverse inferences
    are important. First, the drawing of adverse inferences is to be approached
    with great caution:
R. v. Zehr
(1980), 54 C.C.C. 2d 65 (Ont. C.A.), at
    p. 68. Second, an adverse inference normally arises from either a failure to
    call a material witness or a failure to produce material evidence:
R. v.
    Ellis
, 2013 ONCA 9, 113 O.R. (3d) 641, at para. 45. The SCAJ does not
    appear to have considered or applied either of these principles before rendering
    her criticism of Crown counsel and of the trial judge.

[35]

I would also observe, on this point, that there
    are problems with the three deficiencies that the SCAJ identified in the
    information that she says was not given to the toxicologist. Those deficiencies
    were identified by the SCAJ as: (i) when or whether the complainant consumed
    any substances containing codeine or morphine in the 12 to 48 hours prior to
    her urine sample; (ii) whether the complainant consumed any substances containing
    codeine or morphine with a frequency that would have caused her to develop a
    tolerance to them; and (iii) how often the complainant consumed alcohol and how
    much she typically consumed.

[36]

The first two of these asserted deficiencies
    deal with any consumption of codeine or morphine. That was not the central
    issue in this case. The central issue was the consumption of alcohol. In any
    event, Crown counsel did ask the complainant about her consumption of drugs,
    both prescription and non‑prescription, during the complainants examination
    in chief. That information was before the court and, indeed, the toxicologist
    was asked about it. The third alleged deficiency dealt with alcohol but,
    contrary to the findings of the SCAJ, that evidence was also before the court.
    As noted in para. 8 above, the complainant gave evidence of her drinking habits
    during the course of her cross-examination. If either party wished to put that
    evidence to the expert, they could have. And, of course, if there was other
    evidence that the respondent considered relevant to the evaluation of the
    toxicologists evidence, he had full opportunity to elicit it.

[37]

A further concern with the SCAJs reasoning, on
    this point, is that it unfairly criticizes Crown counsel for the manner in
    which she decided to present her case. The Supreme Court has directed that courts
    should be careful before they attempt to second-guess the prosecutors
    motives when he or she makes a decision:
R. v. Power
, [1994] 1 S.C.R.
    601, at p. 616. Indeed, in this case, the SCAJ goes so far as to suggest that what
    she thought was missing evidence would, if it had been provided to the expert, have
    led to a different opinion, one that would have been contrary to the Crowns
    position and might have possibly undermined the complainants evidence.

[38]

There is no basis for such an assertion. While,
    contrary to the SCAJs conclusion, there was evidence on each of these three
    points, even if more evidence had been adduced  and it is hard to see how much
    more such evidence could have been adduced  there is no basis for finding that
    it would have impacted on the experts opinion. It must be kept in mind, in
    considering this issue, that there were at least three hours (10:00 p.m. to
    1:00 a.m.) during which there was no evidence of what had occurred. Only two
    people could have provided that evidence directly. One was the complainant, who
    had no memory of that time, and the other was the respondent, who did not give
    evidence as he was fully entitled not to do.

[39]

Given that gap in the evidence, the expert was
    never going to be in a position to provide a definitive opinion because the
    expert could not know what had happened during those three hours. The SCAJs
    finding that evidence of the complainants level, and appearance, of
    intoxication during these three hours was critical to understanding her
    capacity to consent ignores the reality that the evidence was unobtainable. It
    is also decidedly unfair to use the absence of that evidence as a justification
    for finding that there was a gaping hole in the trial judges reasons.

(4)

Post-offence conduct

[40]

As was observed by this court in
R. v. Hall
,
    2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 131, leave to appeal refused, [2010]
    S.C.C.A. No. 499: the problem with post-offence conduct evidence is that it is
    often at best equivocal. I accept that the question by the respondent to the
    complainant as to whether she was mad at him is equivocal on the question of
    consent. I do not accept the appellants position that the content of the question,
    and the fact that the respondent asked this question in the context that he did,
    can only reasonably support the inference that he knew that the complainant had
    not consented to the sexual activity. It is equally possible that the
    respondent was confused as to why the complainant had suddenly stopped what might
    have been consensual sexual activity and he wanted to know the reason.

[41]

However, the trial judges use of this
    post-offence conduct is not fatal in this case for at least two reasons. One is
    that it forms a very small part of the trial judges analysis. Indeed, it
    appears to be almost an
obiter
comment. It is addressed at the very
    end of her reasons where she simply says that the respondents question demonstrates
    to this court that he knew she was not conscious. The other reason is that
    this was a judge-alone trial. The concerns about the potential misuse of
    post-offence conduct evidence are greatly reduced from what they would be in a
    jury case: see
R. v. S.B.1
,

2018 ONCA 807, 143 O.R. (3d) 81,
    at paras. 118-120.

[42]

I would add that the trial judges handling of
    this evidence did not warrant the degree of criticism that was levelled by the
    SCAJ. In particular, it was unfair to say that the trial judges mentioning of
    the evidence flies in the face of all appellate court guidance. It does not.

(5)

Summary

[43]

The SCAJ did not take the proper approach to
    appellate review of the trial judges reasons. Rather, it is clear that the
    SCAJ decided to retry the case and to substitute her view of the evidence, and
    its cogency, for that of the trial judge. That is not the appellate role. Nor
    is it the appellate role to go on a hunt for error:
R. v. G.F.
, at
    para. 69.

[44]

The SCAJ herself fell into error in her analysis
    by not considering the principles enunciated in
R. v. J.A.
, 2011 SCC
    28, [2011] 2 S.C.R. 440. In considering the issue of consent in that case,
    the court made the following point, at para. 66, which is particularly apt to
    the facts of this case:

The definition of consent for sexual assault
    requires the complainant to provide actual active consent throughout every
    phase of the sexual activity.
It is not possible for an unconscious person
    to satisfy this requirement, even if she expresses her consent in advance.
Any sexual activity with an individual who is incapable of consciously
    evaluating whether she is consenting is therefore not consensual within the
    meaning of the
Criminal Code
. [Emphasis added.]

[45]

The respondent acknowledges that there is a
    period of at least three hours during which there is no evidence of what was
    occurring between the complainant and the respondent, especially on the issue
    of consent. Even if one was prepared to accept that the complainant initially
    consented to the sexual activity, but does not remember because she had
    blacked out, it is readily apparent that, at some later point, she became
    unconscious. The fact that she woke up, as the trial judge accepted, leaves
    no doubt about that fact.

[46]

The trial judge was entitled, on the evidence,
    to conclude that the complainant awoke from her unconscious state to find the
    respondent engaging in sexual activity with her. The trial judge was therefore
    also entitled to conclude that the Crown had proved an absence of consent at
    that time and in the time period immediately prior to that happening. On the
    principle established by
J.A.
, there could not be consent, given that
    the complainant was unconscious. The respondent must have known of that, as the
    trial judge found. A finding of guilt properly followed from those findings.

[47]

The SCAJ erred in setting aside the conviction.

D.

Conclusion

[48]

I would allow
    the appeal, set aside the judgment below, and reinstate the conviction and the
    sentence imposed on the respondent. If appropriate arrangements cannot be made
    for the surrender of the respondent, a warrant for his arrest may issue.

Released: February 23, 2022 K.M.v.R.

I.V.B.
    Nordheimer J.A.

I agree. K. van
    Rensburg J.A.

I agree. J.
    George J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doxtator, 2022 ONCA 155

DATE: 20220222

DOCKET: C66291 & C66431

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jasmine Doxtator

Appellant

and

AND BETWEEN

Her Majesty the Queen

Respondent

and

Richard Doxtator

Appellant

Richard Litkowski, for the appellant, Jasmine Doxtator

Jessica Zita, for the appellant, Richard Doxtator

Andreea Baiasu, for the respondent

Heard: September 27 and October 20, 2021 by
    video conference

On appeal from the convictions entered by Justice James A.
    Ramsay of the Superior Court of Justice, sitting with a jury, on September 21,
    2017.

L.B. Roberts J.A.:

A.

Overview

[1]

The appellants appeal their respective convictions for the first degree
    murder of Joseph Caputo, committed on June 19, 2015.

[2]

The appellants request a new trial. Their principal submission is that
    the trial judge erred in failing to leave for the jurys consideration for
    Jasmine Doxtator the included offences of second degree murder and
    manslaughter. Since their cases are intertwined, the appellants argue, if a new
    trial is ordered for Ms. Doxtator, Richard Doxtator should also have a new
    trial.

[3]

For the reasons that follow, I agree that the
    included offences of second degree murder and manslaughter should have been
    left with the jury for Ms. Doxtator and would order a new trial. As a
    result, I do not need to address Ms. Doxtators grounds of appeal
    concerning the trial judges instructions on party liability. I would also
    order a new trial for Mr. Doxtator.

B.

Factual Background

(a)

The death of Mr. Caputo

[4]

Except as otherwise indicated, the following is
    a summary taken from Ms. Doxtators testimony and concessions at trial, as
    well as the unchallenged forensic evidence. Mr. Doxtator did not testify at
    trial but relied on Ms. Doxtators testimony. As I would order a new trial, I
    make no findings regarding the ultimate credibility and reliability of this evidence.
    I take it at its most favourable for the appellants for the purposes of
    assessing whether, on the totality of the evidence, the jury could have had a
    reasonable doubt with respect to whether Mr. Caputos murder was planned and
    deliberate or whether Ms. Doxtator had murderous intent:
R. v.
    Ronald
, 2019 ONCA 971, at paras. 46-48, 59;
R.
    v. Tenthorey
, 2021 ONCA 324, at paras. 70-71, 75.

[5]

The appellants are cousins. They lived in
    Hamilton, Ontario. Mr. Caputo was Ms. Doxtators former drug dealer and friend whom
    she had known for many years before his death. She was familiar with Mr.
    Caputos apartment in Niagara Falls, where his death occurred, because she had visited
    him often. A day or two prior to Mr. Caputos death, Ms. Doxtator told Mr.
    Doxtator that the last time she saw Mr. Caputo he had drugged and raped her and
    that he was stalking her teenaged daughter. Up until that point, Ms. Doxtator
    had kept this information from Mr. Doxtator because she was concerned it
    would make him upset.

[6]

On June 18, 2015, the appellants borrowed Ms.
    Doxtators cousins Jeep and attended a drive-in movie theatre. There, Ms.
    Doxtator and Mr. Doxtator talked about the problems she was having with Mr.
    Caputo. Ms. Doxtator became very upset. The appellants left the theatre without
    seeing the movie. Ms. Doxtator called Mr. Caputo and arranged to meet him. The
    appellants then drove to Niagara Falls, Ontario, to confront Mr. Caputo about
    his behaviour and tell him to stay away from Ms. Doxtators daughter. Mr.
    Doxtator was to lend support and protection. Ms. Doxtator was concerned about
    going alone because of what had happened the last time she saw Mr. Caputo.

[7]

In cross-examination, the Crown suggested to Ms.
    Doxtator that her description of events made it sound like the appellants were
    going to threaten Mr. Caputo. Ms. Doxtator disagreed that it sounded like she
    was going to threaten him.

[8]

Once in Niagara Falls, Ms. Doxtator met up with Mr.
    Caputo at a McDonalds restaurant. They did not stay at the restaurant but went
    to Mr. Caputos apartment. While Ms. Doxtator initially testified the
    restaurant was closed, the parties later agreed it was open. Ms. Doxtators
    evidence was that Mr. Caputo drove back in his car and Mr. Doxtator and Ms.
    Doxtator drove in the borrowed Jeep. The Crown maintained Mr. Caputo drove Ms.
    Doxtator back to his apartment and Mr. Doxtator followed them, without Mr.
    Caputos knowledge, in the borrowed Jeep. The apartments security camera
    showed only Mr. Caputo and Ms. Doxtator passing together through the lobby at
    around 12:57 a.m. Mr. Caputos apartment was on the first floor and had a back
    door to a patio. Mr. Doxtator waited outside by the back door. Mr. Doxtator ultimately
    gained entrance into Mr. Caputos apartment through the back door. Ms. Doxtator
    maintained that Mr. Caputo opened the door when Mr. Doxtator knocked; the Crown
    contended that Mr. Doxtator hid on the patio and Ms. Doxtator unlocked the back
    door so Mr. Doxtator could enter.

[9]

Ms. Doxtator and Mr. Caputo argued in his apartment.
    A neighbour testified hearing what he thought sounded like a domestic dispute
    between a husband and wife. Ms. Doxtator and Mr. Caputo became upset when she
    confronted Mr. Caputo about his raping her and his harassment of her daughter. Mr.
    Doxtator told Mr. Caputo to let her speak. Mr. Caputo became enraged. He
    grabbed a kitchen knife, told them both to get the F out of his house, and started
    moving toward Mr. Doxtator. Mr. Doxtator held Mr. Caputo off with his hand on Mr.
    Caputos forehead but a struggle ensued. It was at this point that Ms. Doxtator
    left through the back door, closing her eyes and putting her hands over her
    ears. She did not see Mr. Doxtator stab Mr. Caputo but on re-entering the
    apartment, she saw blood everywhere and Mr. Doxtator cleaning his hands. Ms. Doxtator
    did not see or know if Mr. Doxtator brought a knife with him. The appellants
    conceded at trial that Mr. Doxtator caused Mr. Caputos death.

[10]

The appellants left the apartment and locked the
    front door with Mr. Caputos keys. At about 1:22 a.m., the apartments video
    footage showed Ms. Doxtator leaving the apartment building with Mr. Doxtator.
    The appellants began driving back to Hamilton. However, about an hour later
    they returned to Mr. Caputos apartment to retrieve Ms. Doxtators cup that she
    had left behind, as witnessed by a neighbour.

[11]

The Crown suggested Mr. Caputos apartment had
    been ransacked and that some money had been taken. Mr. Doxtators bloodied
    footprints were found throughout the apartment. Ms. Doxtator maintained they
    did not take any money or drugs from the apartment, although she testified that
    she knew where Mr. Caputo kept drugs. The police later found on the
    Niagara bound side of the highway items belonging to Mr. Caputo that may
    normally be kept in a wallet, including various pieces of Mr. Caputos
    identification, insurance cards, and his vehicle ownership card. Mr. Caputos cell
    phone was also found on the side of Valley Way Road in Niagara Falls.

[12]

On their return to Hamilton, the appellants threw
    away the kitchen knife used in the stabbing and Ms. Doxtators bloodied shoes
    into a grocery store garbage bin. The kitchen knife was never recovered. Video
    footage at Mr. Doxtators fathers apartment shows the appellants putting items
    into the dumpster at the rear of the building.

[13]

The appellants returned the Jeep to Ms.
    Doxtators cousin the following day and then spent the next several days moving
    around and living transiently until they were arrested by the police. One
    witness testified that prior to the appellants arrest, Mr. Doxtator had asked
    if he knew anyone who could forge documents and indicated that he was trying to
    go to Awkesasne, which borders New York State. Mr. Doxtator sent text messages
    that read, Im in a jam and I needed a place to recoup, gather my thoughts and
    figure shit out; I fucked up; and [c]an we set up our tent in house your
    backyard for a week til I figure out the next move. Me and my girl and her
    daughter need to leave Canada soon. Ms. Doxtator texted a friend that she was
    in big trouble and she was scared.

[14]

According to the forensic evidence, Mr. Caputos
    blood was found in the inside back door area of his apartment, which continued
    through the living room, along the corridor and into the hallway area where his
    body was found. Mr. Caputo had sustained 18 individual sharp force injuries,
    which were cutting and stabbing wounds, and had superficial defensive wounds on
    his hands and the back of his arms. Three of the stab wounds to his upper back
    area that punctured his lungs could have been fatal; one stab wound to the front
    of his chest pierced his heart and killed him. According to the expert forensic
    pathologist, Dr. John Fernandes, the stab wound to the heart required a good
    deal of force, as it cut a bone entirely in two. The defensive injuries that he
    found on Mr. Caputo were indicative of a struggle. He agreed that the injuries
    were caused in rapid succession and that Mr. Caputo could have continued
    to stagger for a very short period of time after the fatal wound was inflicted.

[15]

Traces of Mr. Caputos blood were found on and
    near the borrowed Jeeps gear lever and on a bag seized from the place where
    the appellants were staying on their arrest. The police seized from the
    borrowed Jeep a hunting knife belonging to Mr. Doxtator. Mr. Doxtators DNA was
    found on the knife. There was blood on Mr. Doxtators hunting knife that was in
    too small a quantity to analyze. According to Dr. Fernandes, the knife that
    killed Mr. Caputo would have had a cutting edge with no serrations. He opined
    that the hunting knife could be of the type of knife responsible for Mr.
    Caputos injuries or it could have been a larger knife, such as a chefs knife.

(b)

Trial proceedings

(i)

Parties Trial Positions

[16]

At trial, the Crowns primary theory was that
    the appellants carried out the planned and deliberated murder of Mr. Caputo in
    retaliation for his rape of Ms. Doxtator and to protect her daughter. The
    Crown argued that Ms. Doxtator planned and facilitated the murder with Mr.
    Doxtator who did not know Mr. Caputo or where he lived: she called Mr. Caputo
    to arrange a meeting, lured him back to his apartment, and then opened the door
    to Mr. Doxtator who immediately stabbed Mr. Caputo to death with the hunting
    knife he had brought for that purpose. The Crown argued that following the murder,
    the appellants stole Mr. Caputos wallet and ransacked the apartment for
    anything of value.

[17]

While not part of the Crowns final submissions,
    in his charge to the jury the trial judge also stated that another possible
    motive derived from the evidence was that the appellants planned to carry out a
    robbery of drugs and money that Ms. Doxtator knew Mr. Caputo kept at his apartment.

[18]

The appellants defence depended on Ms.
    Doxtators evidence that although they intended to confront Mr. Caputo, the
    appellants never intended or planned to kill or physically hurt him. The
    appellants position was that Mr. Doxtator stabbed Mr. Caputo in self-defense in
    response to Mr. Caputo attacking him with a kitchen knife. Alternatively, it
    was argued that Mr. Doxtator acted instinctively and so lacked the intent for
    murder and should therefore be found guilty of the lesser included offence of
    manslaughter.

(ii)

Pre-charge conference and rulings

[19]

At the pre-charge conference, the trial judge
    initially ruled that manslaughter would be left to the jury for Ms. Doxtator
    but that there was no air of reality to self-defense for Mr. Doxtator. His
    ruling was very brief:

I have decided that I do not think there is an
    air of reality to self-defence. I
have
also decided
    that I think there is an air of reality to manslaughter for Jasmine Doxtator. I
    have given you the bare bones of what I plan to tell the jury in law about
    these offences.

[20]

After hearing further submissions, defence
    counsel persuaded the trial judge that only first degree murder or acquittal
    would be the verdicts left with the jury for Ms. Doxtator, and that for Mr.
    Doxator, self-defense, along with the potential verdicts of second degree murder
    and manslaughter, would be left with the jury. He stated: Okay, it is all or
    nothing for Jasmine and I will leave self-defence for Richard. But do not spend
    too much time on that.

(iii)

Verdicts

[21]

The jury returned in under six hours, rendering
    verdicts of first degree murder for both appellants. Both appellants were
    sentenced to life imprisonment without eligibility of parole for 25 years.

C.

Issues and the Parties Positions on Appeal

[22]

The appellants submit that the trial judge erred
    in his jury instructions by failing to leave with the jury the included
    offences of second degree murder and manslaughter as potential verdicts for Ms.
    Doxtator, notwithstanding the insistence of her trial counsel that only first
    degree murder should be left with the jury. They assert that it was open to the
    jury on the evidence to have a reasonable doubt as to whether Ms. Doxtator had
    the requisite intent for murder or whether the murder was planned and
    deliberate. As a result, they argue, the jury was pushed into the stark binary
    choice between a first degree murder verdict or an acquittal for Ms. Doxtator
    and, by extension, for Mr. Doxtator. According to the appellants, the failure
    to leave second degree murder and manslaughter for Ms. Doxtator undermined Mr.
    Doxtators defence and tainted the verdict of first degree murder: having
    returned a first degree murder verdict for Ms. Doxtator, the jury would not have
    come to a verdict of less than first degree murder for Mr. Doxtator who stabbed
    Mr. Caputo.

[23]

The Crown submits that the trial judge did not
    err in acceding to defence counsels adamant request that only first degree
    murder should be left with the jury for Ms. Doxtator because there was no air
    of reality to the included offences. There is no reasonable view of the
    evidence, on the Crowns submission, on which a jury would have doubt of
    planning and deliberation but convict Ms. Doxtator of second degree murder or
    manslaughter. Moreover, the structure of the jury instructions ensured that the
    jury would consider a separate verdict for each accused and reach a verdict for
    Mr. Doxtator before turning to consider the charge against Ms. Doxtator. There
    was no complaint about the charge that left first degree murder, second degree
    murder and manslaughter for Mr. Doxtator. As a result, the Crown argues, the
    appellants suffered no prejudice and received a fair trial. The Crown submits
    that given the appellants plan to confront Mr. Caputo and the forensic
    evidence of the ferocity of the stabbings from the moment Mr. Doxtator was let
    into the apartment, a verdict of first degree murder was inevitable for both
    appellants. The Crown contends that if there was an error in the jury
    instructions, this court should apply the
curative proviso
.

D.

Analysis

(i)

General principles

[24]

There is no question that trial judges have a
    broad discretion in fashioning jury charges. Their decision about how much
    evidence to review, what structure to use and how to organize the charge falls
    within that discretion and, absent reversible error, is owed deference on
    appeal:
R. v. Newton
, 2017 ONCA 496, 349
    C.C.C. (3d) 508, at para. 11.

[25]

However, a failure to leave with the jury a
    possible verdict that arises on the evidence is an error of law to which no appellate
    deference is owed. It is well established that a trial judge has a duty to
    instruct the jury on all bases of liability that are available on the evidence:
R. v. Kostyk
, 2014 ONCA 447, 312 C.C.C. (3d)
    101, at para. 40.

[26]

In first degree murder cases, where there is any
    air of reality on the evidence, the included offences of manslaughter and
    second degree murder should be left with the jury:
Ronald
, at para. 41;
R. v. Romano
, 2017
    ONCA 837, 41 C.R. (7th) 305, at paras. 13-14;

R. v. Babinski
(2005), 193 C.C.C. (3d) 172 (Ont. C.A.), at para. 45, leave to
    appeal refused, [2005] S.C.C.A. No. 201;
R. v. Aalders
, [1993] 2 S.C.R. 482, at p. 504; and
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75.

[27]

In some cases, like here, the trial judges
    instructions will not accord with the position advanced by counsel for the
    Crown or the defence; however, this is not dispositive of the issue because it
    is the trial judges role to charge the jury on all relevant questions of law
    that arise from the evidence:
R. v. Pickton
, 2010
    SCC 32, [2010] 2 S.C.R. 198, at para. 27. As this court instructed in
R.
    v. Polimac
, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para.
    97, leave to appeal refused, [2010] S.C.C.A. No. 263:

Counsels position at trial is of course not determinative when
    misdirection or non-direction is raised as a ground of appeal. A legal error
    remains a legal error even if counsel does not object or even supports the
    erroneous instruction
. [Citations omitted.]

[28]

By the same token, the law is sensible: a
    trial judge should not leave verdict options that a reasonable jury, properly
    instructed, could not arrive at. This would create a breeding ground for
    confusion and compromise and give the jury the option to make an unreasonable
    decision:
Romano
, at paras. 14-16;
R.
    v. Wong
(2006), 211 O.A.C. 201 (C.A.), at para. 12.

[29]

As this court stated in
Ronald
, at para. 43, the purpose of the air of reality test is to focus
    the jurys attention on the live issues actually raised by the evidence. This
    reduces the risks of unreasonable verdicts, juror confusion, or improper
    compromise by jurors.

[30]

The overarching consideration for the trial
    judge in determining whether to leave included offences as verdict options for
    the jury is, as this court directed in
Ronald
,
    at para. 46, whether, on the totality of the evidence, the jury could
    reasonably be left in doubt with respect to an element of the main charge that
    distinguishes that charge from an included offence. This court reiterated in
Ronald
, at para. 42:

There should be no instruction on potential
    liability for an included offence
only when
, on a consideration of the totality
    of the evidence and having due regard to the position of the parties and the
    proper application of the burden of proof, there is no realistic possibility of
    an acquittal on the main charge and a conviction on an included offence. [Citations
    omitted; emphasis added.]

[31]

Importantly, unlike positive defences, there is
    no evidentiary burden placed on the defence or Crown to put the possibility of
    a conviction for the included offence  in play:
Ronald
, at para. 47. In other words, the appellants do not need point to
    evidence that supports inferences inconsistent with first degree murder. Rather,
    the trial judge must consider whether the jury could draw inferences, or not
    draw inferences from certain evidence, that could open the door to a doubt on
    an element such as planning and deliberation or murderous intent:
Ronald
, at para. 48.

(ii)

Did the trial judge err by not leaving the
    included offences of second degree murder and manslaughter to the jury?

[32]

In assessing whether the included offence of
    second degree murder should have been left to the jury, the question is whether
    on the totality of the evidence, a reasonable jury could be left unconvinced,
    beyond a reasonable doubt, that the murder was planned and deliberate:
Ronald
, at para. 47. Similarly, in assessing whether the included offence
    of manslaughter should have been left to the jury, the question is if on all
    of the evidence there is an air of reality to a finding that the Crown had not
    proved beyond a reasonable doubt that the killer had either of the requisite
    intents required for murder:
Babinski
, at
    paras. 45.

[33]

In my view, on the totality of the evidence, a
    reasonable jury could have been left in doubt on whether Mr. Caputos murder
    was planned and deliberate or whether Ms. Doxtator had the requisite intent
    required for murder.

[34]

In his charge to the jury, the trial judge set
    out the possible verdicts for Ms. Doxtator: guilty of first degree murder
    or not guilty of first degree murder. He reviewed the elements of the offence
    of first degree murder that the Crown was obliged to establish beyond a
    reasonable doubt. He related in detail circumstantial evidence that he
    instructed the jury might be relevant to planning and deliberation, as follows:

·

Jasmine and Richard Doxtator were in Joe
    Caputos apartment for twenty-five minutes, during which time blood was let
    from one end of the apartment to the other.

·

Jasmine had Joe pick her up at McDonalds
    instead of going straight to his apartment.

·

Jasmine wanted to speak to Joe at his apartment
    instead of in a public place like McDonalds. She testified that McDonalds was
    closed, but it was not.

·

Richard did not enter the apartment with
    Jasmine.

·

Richard entered through the back door rather
    than the front.

·

After Joe was dead or dying, Richard and Jasmine
    stayed in the apartment for a few minutes to remove some items, and they locked
    the front door behind them.

·

They took some items that one might find in a
    wallet and returned for Jasmines cup and Joes cell phone.

·

They threw away the items from Joes apartment.

·

Richard Doxtator did not know Joe Caputo.

·

They drove from Hamilton, not staying to watch
    the movie they told [Ms. Doxtators cousin] about, and drove to Niagara Falls
    at a time when Jasmine had a beef with Joe Caputo, which Richard knew about.
    Jasmine says that they left the movie because it turned out not to be the one
    they expected.

·

Jasmine seems to be talking to Joe in a normal
    manner as they enter the apartment, if that is what you think it looks like
    it is up to you of course.

[35]

The trial judge further instructed that another
    piece of circumstantial evidence related to planning and deliberation was the
    knife found in the borrowed Jeep and stated that if Richard brought a knife
    with him to Joes, that is a factor that could be used when deciding whether
    planning and deliberation took place. He went on to compare the size of the
    wound in Mr. Caputos heart to the width of the hunting knife found in the Jeep
    with Mr. Doxtators DNA on the handle. He referenced Dr. Fernandess testimony
    that it is not likely that a knife of this width would cause such an injury,
    but he could not rule it out. The chest is compressible. He noted that while
    the blood on the blade could not be profiled for DNA Joe Caputos blood was
    not far away, in the same vehicle near the gearshift.

[36]

The trial judges summary of the evidence
    contrary to planning and deliberation appears in the following short paragraph
    of the charge:

The evidence contrary to planning and
    deliberation is found in Jasmines testimony. She said that she and [Richard]
    went to Joes so that she could tell Joe to stay away from her daughter. There
    was no plan for [Richard] to come in and kill Joe. There was no plan for [Richard]
    even to come in. He just knocked at the gate after she had been in the
    apartment for 15 or 20 minutes and Joe let him in.

[37]

The jury was not obliged to accept the Crowns
    theory or the trial judges suggestions about the use that they could make of
    the circumstantial evidence to assess the elements of planning and deliberation.
    However, the jury was not instructed that it could also reasonably take the
    view that this evidence, considered with the rest of the evidence, in
    particular, Ms. Doxtators evidence, did not support the assertion that the
    murder was the product of a careful and considered scheme of the sort required
    to establish planning and deliberation. As this court reiterated in
Ronald
, at para. 50, Not every act indicative of some preparation prior
    to the murder, or some degree of planning, points only to a finding that the
    murder was planned and deliberate, as that phrase is defined in the case law. And
    there was the reasonable possibility that the jury would not draw any inference
    from some of the evidence that the trial judge suggested may be relevant to
    planning and deliberation:
Ronald
, at para.
    46.

[38]

Similarly, with respect to the included offence
    of manslaughter, a properly instructed jury could have reasonable doubt whether
    Ms. Doxtator had the requisite intent for murder. A person may be convicted of
    manslaughter who lacks the requisite
mens rea
for murder but aids and abets another person in the offence of murder, where a
    reasonable person in all the circumstances would have appreciated that bodily
    harm was the foreseeable consequence of the dangerous act which was being
    undertaken:
R. v. Jackson
, [1993] 4 S.C.R.
    573, at pp. 583. A reasonable view of the evidence could have led to the
    inference that while the appellants may have planned a violent physical
    encounter with Mr. Caputo, the appellants lacked murderous intent, and instead
    planned to assault or rob him.

[39]

Ms. Doxtators evidence, together with the
    forensic evidence, permitted the reasonable inferences that although the
    appellants previously did not plan and deliberate on killing Mr. Caputo, once
    in the apartment and embroiled in a conflict with him, Mr. Doxtator developed
    the intent to kill Mr. Caputo, which was shared by Ms. Doxtator, or that the
    planned physical confrontation escalated and led to his death.

[40]

Ms. Doxtators evidence was that she wanted to
    confront Mr. Caputo and tell him to stop stalking her daughter and that their
    friendship was over. She brought Mr. Doxtator along for security and support. A
    witness testified hearing a man raise his voice and something that reminded him
    of an argument between a husband and a wife. This is consistent with Ms.
    Doxtators evidence that she and Mr. Caputo became involved in a heated
    argument prior to the beginning of the physical altercation between Mr.
    Doxtator and Mr. Caputo. Ms. Doxtator said she left the apartment once the physical
    confrontation between Mr. Caputo and Mr. Doxtator began. There is no
    suggestion that she stabbed Mr. Caputo or that she provided the murder weapon. She
    testified she did not see Mr. Doxtator with the hunting knife. She said she ran
    out of the apartment with her hands over her ears and shutting her eyes.

[41]

The jury was entitled to accept some, none, or
    all of Ms. Doxtators evidence. The jury could have accepted Ms. Doxtators
    testimony that the appellants did not plan or deliberate on the murder of Mr.
    Caputo, while still rejecting Ms. Doxtators version of events of what happened
    once the appellants were at Mr. Caputos apartment or her claims that they were
    not planning to threaten him. As this court stated in
Tenthorey
, at para. 96: The air of reality test does not include
    consideration of the reasonableness of a jurys choices about what evidence to
    believe.

[42]

Furthermore, the following evidence, some of
    which was referenced by the trial judge as supportive of planning and
    deliberation, is equally consistent with a panicked and desperate reaction to
    an unexpected killing:

i.

The
    apparent ransacking and bloodied footsteps all over the apartment.

ii.

The appellants
    leaving behind Ms. Doxtators cup and then returning to Mr. Caputos apartment.

iii.

The clumsy disposition
    of clothing in dumpsters close to premises where the appellants had recently
    stayed.

iv.

Mr. Doxtators
    increasingly desperate text messages that suggested he was looking for places
    to hide and to eventually leave the country. In particular, his text to Matt
    that, I fucked up, and his text to Harvey, Im in a jam and I needed a place
    to recoup, gather my thoughts and figure shit out.. may be suggestive of
    someone who unintentionally committed a killing and are not suggestive only of
    someone who had committed a planned and deliberate killing.

[43]

The evidence related to the knife was also
    equivocal. While Dr. Fernandes did agree that the hunting knife could not be
    ruled out as the murder weapon, he recommended checking for other knives and
    agreed that the murder weapon could have been a larger kitchen knife, like a
    chefs knife. He only ruled out a serrated knife. I also note that the trial
    judge appears to have misstated Dr. Fernandess evidence about the dimensions
    of the murder weapon. The trial judge stated: According to Dr. Fernandes, it
    is not likely that a knife of this width would cause such an injury, but he
    could not rule it out. The chest is compressible. While the compression of the
    chest was relevant to the length of the knife, such that Dr. Fernandes
    could not rule out a knife of the length of the hunting knife, it was not
    relevant to its width. As the trial judge correctly stated, Dr. Fernandes was
    of the view that because of its width, it was unlikely the hunting knife caused
    the fatal injury.

[44]

As in
Ronald
,
    at para. 58, the nature, speed and ferocity of the attack on the victim could
    equally suggest that the killer acted in a frenzied rage consistent with second
    degree murder.

[45]

The evidence outlined above does not exclude the
    reasonable inference that Mr. Caputos murder was planned and deliberate. That
    inference was available on the evidence. However, the question is not whether
    the evidence points more strongly to second degree murder or manslaughter than
    planning and deliberation. As I have stated, the correct question is whether a
    reasonable jury, properly instructed, could have a doubt as to whether Ms.
    Doxtator had planned and deliberated the murder of Mr. Caputo or had the requisite
    murderous intent:
Ronald
, at para. 59.

[46]

If the jury had a reasonable doubt about planning
    and deliberation for Mr. Caputos murder and even the presence of a
    murderous intent for Ms. Doxtator, but had no doubt about her
    participation in an unlawful act  assault or robbery  they were faced with
    only one option: an outright acquittal. This left the jury with a stark choice.
    Given the defence concession that Mr. Doxtator stabbed Mr. Caputo, as the Nova
    Scotia Court of Appeal suggested in
R. v. MacLeod
, 2014 NSCA 63, 346 N.S.R. (2d) 222, at para. 89, affd 2014 SCC 76,
    [2014] 3 S.C.R. 619, the jury may have considered an outright acquittal not
    only quite unpalatable in the circumstances, but contrary to a considerable
    body of evidence suggesting that [the appellants knew they] had engaged in a
    blameworthy act.

[47]

To be fair to the trial judge, his initial
    instinct that there was an air of reality to manslaughter for Ms. Doxtator was
    correct. Ms. Doxtators defence counsel was adamant that the evidence did not
    support the verdicts of second degree murder or manslaughter. However, the insistence
    of defence counsel was not determinative in the circumstances of this case
    where the evidence gave rise to other reasonable inferences than planning and
    deliberation or murderous intent. As this court reiterated in
R. v.
    Chambers
, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 70,
    citing
Polimac
, at para. 97: A legal error
    remains a legal error irrespective of trial counsels position. See also
Kostyk
, at paras. 40 and 42.

[48]

This is not to say that defence counsels
    position at trial is irrelevant. As this court instructed in

R.
    v. Chalmers
, 2009 ONCA 268, 243 C.C.C. (3d) 338, at para.
    52, the question of whether included offences should have been left with the
    jury must be assessed in light of both the strength of the evidence relied on
and the concessions made and position taken by the defence
 at trial
    (emphasis added). However, the present case is not like

Chalmers
(and other similar cases), where this court, at para. 66, found the
    air of reality of the verdict of manslaughter to be marginal at best and did
    not permit the appellant to paddle downstream on appeal when one has paddled
    vigorously upstream at trial: at para. 51. In
Chalmers
, the position of the appellant, who was convicted of the second
    degree murder of his wife, was that he did not cause his wifes death but it
    was caused by accident or a third party. His counsel approved the charge that
    if the jury found Mr. Chalmers had caused his wifes death, murderous
    intent was conceded. In the present case, for the reasons stated above, there
    was an air of reality to the potential verdicts of manslaughter and second
    degree murder. Further, the appellants only conceded that Mr. Doxtator stabbed
    Mr. Caputo, causing his death. Importantly, there was no concession that if Ms.
    Doxtator was somehow involved in the killing of Mr. Caputo, it was a planned and
    deliberate murder.

[49]

In my view, on the totality of this evidence, a reasonable
    jury could have been left unconvinced, beyond a reasonable doubt, that the
    murder was planned and deliberate or that Ms. Doxtator had the requisite intent
    to kill Mr. Caputo. As a result of this potential uncertainty, in addition to
    an acquittal, the jury could have returned a verdict of not guilty of first degree
    murder, but guilty on the included offences of either manslaughter or second
    degree murder.

(iii)

Does the
curative proviso
apply?

[50]

The Crown submits that the
curative
    proviso

found in s. 686(1)(b)(iii) of the
Criminal
    Code
, R.S.C., 1985, c. C-46, should be applied to correct
    any errors the trial judge made. I do not agree.

[51]

This court in
Ronald
, at para. 65, recently explained the availability of the
proviso
in the context of an erroneous failure to leave with the jury a
    possible verdict that arises on the evidence:

Section 686(1)(b)(iii) of the
Criminal
    Code

provides that this court may dismiss an appeal
    despite an error in law if satisfied that the error caused no substantial wrong
    or miscarriage of justice. The burden is on the Crown to show either that the
    legal error was so minor as to be harmless, or the evidence was so overwhelming
    as to satisfy the court that the verdict would necessarily have been the same
    had the error not been committed. [Citations omitted.]

[52]

The
curative proviso
will generally not be available in cases where included offences
    (in this case, lesser offences) are not left with the jury and the jury
    convicts of a more serious offence. This is because a failure to leave included
    offences that have an air of reality can seldom be said to be harmless or to
    have caused no substantial wrong or miscarriage of justice. As this court in
Ronald
explained, a determination that the included offences should have
    been left with the jury because there was a realistic possibility of an
    acquittal on the full offence is incompatible with a determination that the
    evidence supporting the conviction on the full offence was overwhelming.
    Further, the verdict may have been different if the jury had been presented
    with the full menu of legally available verdicts:
Ronald
, at paras. 66-67. See also
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 31.

[53]

That is not to say that courts never apply the
curative
    proviso
to the erroneous failure to leave a possible
    verdict on an included offence. For example, in
Chalmers
, this court found there was no substantial wrong or miscarriage of
    justice when the trial judge did not leave the included offence of manslaughter
    with the jury and the jury convicted Mr. Chalmers of second degree murder.
    However, as the court noted, the argument that the trial judge made a reversible
    error is only as strong as the air of reality relating to the defence sought
    to be raised: at para. 58. The omission in
Chalmers
was found to be harmless in the circumstances of that case because
    the air of reality to manslaughter was marginal at best and the defence had
    conceded the issue of intent: at paras. 64-66. Those are not the circumstances
    of the present case.

[54]

I do not accept Crown counsels submission that
    this is an appropriate case where the court can take into account findings of fact
    implicit in the jurys verdict of first degree murder to cure any error to
    leave with the jury the possible verdicts of the lesser and included offences.
    Specifically, the Crown argues that the jurys verdict of first degree murder
    for the appellants demonstrates that the jury rejected Ms. Doxtators evidence
    that the appellants did not plan and deliberate to kill Mr. Caputo. As
    this court noted in
Ronald
, at para. 68,
    the court can account for findings of fact implicit in the verdict or verdicts
    returned by the jury
as long as those verdicts are
    not tainted by the legal error
, and those findings are unambiguously revealed by
    the verdict
 (emphasis added).The difficulty is
    that in this case the jurys verdict
is
tainted by the erroneous omission of the included offences for Ms.
    Doxtator. If the included offences had been left to the jury, the trial judge
    would have provided appropriate instructions about the evidence that could have
    given rise to reasonable doubt in the jurys minds about planning and deliberation.

[55]

Nor am I persuaded by Crown counsels submission
    that the structure of the charge made any difference. While the trial judge
    reviewed in his instructions the offences alleged against Mr. Doxtator first
    before turning to those charged against Ms. Doxtator, and the jury was properly
    instructed to consider and render separate verdicts for each appellant, the
    evidence in relation to the charges was the same for both of them. It would be
    artificial to suggest that the jury would not have reviewed the evidence as a
    whole in considering the respective verdicts for each accused.

[56]

In my view, the Crown cannot satisfy its burden
    in the circumstances of this case. The Crowns case on planning and
    deliberation and murderous intent was not overwhelming and, as I earlier
    explained, the supporting evidence was potentially equivocal. The failure to
    leave the other verdicts could not be said to be harmless. The jury
    instructions wrongly narrowed the proper scope of the jurys deliberations. Not
    all verdicts reasonably available on the evidence were left with the jury for
    its consideration.

[57]

There is a real likelihood that the jury, left
    only with the choice of convicting Ms. Doxtator of first degree murder or
    declaring her not guilty, would opt for the verdict that attributed some
    responsibility to her for Mr. Caputos death. It cannot be said that, had the
    jury been left with other possible verdicts that would have held her
    accountable, either manslaughter or second degree murder, the jury would
    necessarily have still convicted her of first degree murder:
Ronald
, at paras. 66-67;
R. v. Haughton
, [1994]
    3 S.C.R. 516, at pp. 516-17;
Sarrazin
, at
    para. 31.

[58]

As a result, I would not accede to Crowns
    counsel request that we apply the
curative proviso
found in s. 686(1)(b)(iii) of the
Criminal Code
. The trial judges failure in this case to leave the potential
    verdicts of second degree murder and manslaughter with the jury for Ms.
    Doxtator led to a substantial wrong or miscarriage of justice.

[59]

I would therefore order a new trial for Ms.
    Doxtator.

(iv)

Should Mr. Doxtator also be granted a new trial?

[60]

In my view, Mr. Doxtator should also have a new
    trial.

[61]

That there were no objections to, or errors
    identified in, the trial judges instructions to the jury with respect to the
    offences against Mr. Doxtator is not dispositive of this issue. As Crown
    counsel frankly acknowledged during oral argument, if the included offences of
    second degree murder and manslaughter had been left to the jury for Ms.
    Doxtator, the trial judges instructions would have been different with respect
    to Mr. Doxtator.

[62]

The Crowns case against the appellants for
    first degree murder was structured and presented to the jury as a package. There
    was no theory put forward that Mr. Doxtator planned and deliberated on the
    murder of Mr. Caputo without Ms. Doxtator or
vice versa
. Mr. Doxtators defence relied on Ms. Doxtators evidence and her
    acquittal. If she were convicted of first degree murder, his conviction for
    first degree murder would inevitably follow. The jury was not left with
    instructions to consider the alternative possibility that Mr. Doxtator killed
    Mr. Caputo in the heat of the moment rather than in self-defence. If the
    jury rejected self-defence for Mr. Doxtator, given the way the charge was left
    for Ms. Doxtator, there was only a straight line to first degree murder for him
    and no other pathways to the lesser and included offences of second degree
    murder and manslaughter.

[63]

If the trial judge had left to the jury the
    included offences of manslaughter and second degree murder for Ms. Doxtator,
    the charge for Mr. Doxtator would have been much broader than the focus on self-defence
    in terms of the possible routes to manslaughter or second degree murder. The
    charge could have included another view of the evidence that the appellants had
    planned a violent encounter with the purpose of assaulting or robbing Mr.
    Caputo that ended in his stabbing. With this broader instruction, at the very
    least, the jury could have had a reasonable doubt of Mr. Doxtators planning
    and deliberation of Mr. Caputos killing.

[64]

This situation is similar to that in
Ronald
, where this court found that the failure to leave second degree
    murder with the jury for one appellant tainted the verdict of the other. In
    that case, by not leaving second degree murder for the principal, the trial
    judge effectively removed a basis upon which the appellant alleged of aiding
    and abetting was asking the jury to find that the principal acted alone: at
    paras. 73-74. While the present appeal deals with the inverse factual scenario
    because all routes of liability were left with Mr. Doxtator, the person who
    caused Mr. Caputos death, the effect of the error in Ms. Doxtators
    instruction was similar. The failure to leave second degree murder and
    manslaughter for Ms. Doxtator narrowed the instructions for Mr. Doxtator and
    weakened his position that he was not guilty of first degree murder.

[65]

As a result, it cannot be said the verdict for
    Mr. Doxtator would have been the same. At the very least, a properly instructed
    jury could have reasonably returned a verdict of second degree murder for Mr.
    Doxtator. The interests of justice therefore dictate that Mr. Doxtator have a
    new trial.

Disposition

[66]

For
    these reasons, I would allow the appeals and order a new trial for both
    appellants.

L.B. Roberts J.A.

I agree. B.W. Miller
    J.A.

MacPherson J.A. (dissenting):

[67]

I
    have had the opportunity to review the reasons prepared by my colleague in this
    appeal. She would allow the appeal and order a new trial for both Mr. Doxtator
    and Ms. Doxtator on the basis that the trial judge erred by not putting second
    degree murder and manslaughter to the jury for Ms. Doxtator and that this
    failure affected Mr. Doxtators charge as well.

[68]

I
    will consider Mr. Doxtators appeal first and then will consider Ms. Doxtators
    appeal. I would dismiss Mr. Doxtators appeal and allow Ms. Doxtators
    appeal.

Mr. Doxtators appeal

[69]

With
    respect, I do not agree with my colleagues conclusion that the trial judges failure
    to put second degree murder and manslaughter to the jury for Ms. Doxtator
    negatively impacted Mr. Doxtators charge. My colleague states her conclusion
    for Mr. Doxtator as follows:

The failure to leave second degree murder and manslaughter for
    Ms. Doxtator narrowed the instructions for Mr. Doxtator and weakened his
    position that he was not guilty of first degree murder.

[70]

For
    two reasons, I do not agree with this conclusion.

[71]

First,
    the trial judge instructed the jury that Ms. Doxtators culpability should be
    considered separately from Ms. Doxtators and that the verdict for each need
    not be the same. He instructed that what Ms. Doxtator said to the police is
    evidence for and against her and is not evidence against Richard Doxtator. He
    instructed that Ms. Doxtators statement was not to be considered when deciding
    Mr. Doxtators case. He laid out the available verdicts for Mr. Doxtator
    and then separately laid out the available verdicts for Ms. Doxtator.

[72]

Second,
    and crucially, the charge in relation to Ms. Doxtator did not narrow the
    instructions for Mr. Doxtator or weaken his position because the trial judge
    instructed the jury to consider Mr. Doxtators charges of first degree murder,
    second degree murder and manslaughter before considering Ms. Doxtators charge
    of first degree murder.

[73]

The
    trial judge in his charge told the jury that they must consider each accused
    person separately and that in the charge he would deal with Richard and
    Jasmine Doxtator separately, starting with Richard. The trial judge instructed
    the jury on the available verdicts for Mr. Doxtator first, before saying that
    [i]f Jasmine Doxtator agreed with Richard Doxtator to go to Niagara Falls and
    kill Joe Caputo, and took time to deliberate on that plan and carried out her
    role  she, too, is guilty of first degree murder.

[74]

This
    language clearly indicates that Mr. Doxtators conviction was to be decided
    before Ms. Doxtators. For Ms. Doxtator to be convicted of first degree murder,
    the jury must have accepted that the Crown proved beyond a reasonable doubt
    that Mr. Doxtator caused Mr. Caputos death and that the death was unlawful.
    Only after making these determinations was the jury instructed to consider Ms.
    Doxtators involvement.

[75]

The
    factual scenario is similar to that in
R. v. Campbell
, 2020 ONCA 221,
    where this court found that a new trial need not be ordered because of errors
    in the jury charge because the jury would only have reached consideration of
    whether the shooting was planned and deliberate after concluding that the appellants
    caused [the] death and had the requisite intent for murder: at para. 52. In
    the case at bar, the jury would have reached consideration of whether Ms. Doxtator
    was guilty of first degree murder only after concluding that Mr. Doxtator
    was guilty of first degree murder. We know this because that is what the jury
    charge instructed.

[76]

Accordingly,
    my colleagues conclusion that if Ms. Doxtator was convicted of first degree
    murder, Mr. Doxtators conviction for first degree murder would inevitably
    follow is, in a word, backwards. The fact that the instruction required the
    jury to decide on Mr. Doxtators guilt before considering Ms. Doxtators means
    that Mr. Doxtators conviction could not have been influenced by Ms. Doxtators
    conviction.

[77]

The
    structure of my colleagues reasons is antithetical to the way the jury charge
    was structured at trial. Instead of considering Mr. Doxtators case first, as
    the trial judge instructed the jury, my colleague devotes 59 paragraphs to
    considering Ms. Doxtators case first. In very brief reasons (six paragraphs),
    she then allows those reasons to influence her assessment of Mr. Doxtators
    case. This is the inverse of how the trial judge instructed the jury.

[78]

My
    colleague does not take issue with any wording in Mr. Doxtators jury charge.
    While she says that Mr. Doxtators charge could have been broader and could
    have included another view of the evidence, there is no error identified.
    Indeed, there is no such error in Mr. Doxtators jury charge. Accused persons
    are entitled to a proper jury charge, not a perfect one:
R. v. Jacquard
,
    [1997] S.C.R. 134, at para. 2;
R. v. Alvarez
, 2021 ONCA 851, at para.
    80. This court has also held that appellate courts are not forensic
    pathologists dissecting the
corpus

of a charge in search of a
    disease process  [o]ur task is to administer justice, to deal with valid
    objections and to determine whether those claims have led to a miscarriage of
    justice:
R. v. Luciano
, 2011 ONCA 89, at para. 71. In this case, there
    was no miscarriage of justice. The jury was instructed to consider Mr. Doxtators
    charges and Ms. Doxtators charges separately. Ms. Doxtators instructions were
    not to play a role in Mr. Doxtators conviction. Mr. Doxtators conviction for
    first degree murder would not inevitably follow Ms. Doxtators conviction  and
    would not follow her conviction at all  because his conviction was to be
    considered before Ms. Doxtators and because there was no error in his charge.

[79]

Given
    the jury instruction was proper for Mr. Doxtator, it does not matter that Mr.
    Doxtator and Ms. Doxtator were tried as co-accused, even if the Crown presented
    the case against the appellants to the jury as a package. This court has held
    that [a]n accuseds right to a fair trial does not  entitle that accused to exactly
    the same trial when tried jointly as the accused would have had had he been
    tried alone so long as each joint accused is afforded the constitutional
    protections inherent in the right to a fair trial: see
R. v. Suzack
(2000), 128 O.A.C. 140 (C.A.), at para. 111. The Crown presenting the case as a
    package did not affect the co-accuseds fair trial rights, even if the case may
    have been presented differently were the co-accused tried separately. This is
    because the trial judge properly instructed the jury and did not present the
    co-accuseds case to the jury as a package in his instructions.

[80]

I
    do not agree that this situation is similar to that in
R. v. Ronald
,
    2019 ONCA 971. As my colleague notes, the present appeal deals with the inverse
    factual scenario because all routes to liability were left with Mr. Doxtator.
    In cases where a party to a crime has received a new trial, it is when there
    was an error in the jury charge of the co-accused who caused the death (the
    prime mover): see
Ronald
;
R. v. Nygaard
, [1989] 2 S.C.R.
    1074. In this case, Mr. Doxtator was the prime mover because he caused Mr.
    Caputos death. In
Ronald

and
Nygaard
, courts were
    avoiding an incongruous result: that the non-moving party, absent a new trial,
    would risk receiving a greater conviction than the moving party who was
    entitled to a new trial. Here, there was no issue with the prime mover, Mr.
    Doxtators, jury charge. There is no risk that Ms. Doxtator  even if she were
    to receive a new trial  would receive a greater conviction than Mr. Doxtator.
    Therefore, the principles in
Ronald
do not apply.

[81]

The
    assumption must be that the jury correctly followed the proper instruction
    absent evidence to the contrary. This court has instructed that courts must
    proceed on the basis that juries accept and follow the instructions given to
    them by the trial judge:
Suzack
, at para. 128. Given that the
    instruction properly indicated to the jury that Mr. Doxtators charge was to be
    considered before moving on to Ms. Doxtators charge, it must be assumed that
    the jury correctly followed the instructions and considered Mr. Doxtators
    charge first.

Ms. Doxtators appeal

[82]

I
    agree with my colleague that Ms. Doxtator deserves a new trial. As my colleague
    outlines, there is an air of reality that Ms. Doxtator committed second degree
    murder or manslaughter. The trial judge erred by failing to put this charge to
    the jury. I agree with my colleagues reasons on this issue.

Disposition

[83]

I
    would dismiss Mr. Doxtators appeal and allow Ms. Doxtators appeal. I would
    order a new trial for Ms. Doxtator.

Released: February 22, 2022 J.C.M.

J.C. MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Isaac, 2022 ONCA 156

DATE: 20220217

DOCKET: M53203 (C68663)

Paciocco
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Joshua Isaac

Applicant/Appellant

Margaret Bojanowska, for the applicant/appellant

Jennifer Conroy, for the respondent

Heard: February 16, 2022 by video conference

REASONS FOR DECISION

[1]

On February 28, 2017, Mr. Joshua Isaac was arrested and
    charged with offences arising from an investigation into narcotics trafficking.
He
was released pending trial and complied with the
    terms of his release.
On January 20, 2020, Mr. Isaac was convicted of
    two counts of possession of Schedule I narcotics for the purpose of
    trafficking, and one count of possession of the proceeds of crime, arising from
    the February 28, 2017 charges. The narcotics consisted of cocaine and a
    heroin/fentanyl mix. On October 2, 2020, Mr. Isaac was sentenced to 6 years
    imprisonment less three months pre-sentence custody for those offences, which
    for ease of reference I will call the drug trafficking charges. The Crown
    consented to Mr. Isaacs bail release pending his appeal of those convictions and
    he was released that day.

[2]

On June 24, 2021, the police searched an apartment, locating two
    firearms. On October 2, 2021, having been instructed by police to do so, Mr. Isaac
    surrendered into custody and was charged with three firearms offences relating
    to one of those firearms. He was also charged with possession of property
    obtained by an indictable offence over $5,000 and failing to comply with his
    bail release order described in paragraph 1. For ease of reference, I will
    describe these charges against Mr. Isaac as the firearms charges.

[3]

Mr. Isaac has now secured bail release in connection with the firearms
    charges. Due to the firearms charges, however, his bail release pending appeal
    on the drug trafficking charges was not renewed after it expired. He now
    applies for bail release pending appeal on the drug trafficking charges. He
    bears the onus on this application.

[4]

The Crown strongly contests Mr. Isaacs release. The Crown does not rely
    directly on the primary or secondary ground, but urges that lingering concerns
    relating to whether Mr. Isaac would attend court as required, and whether he
    would commit further offences if released, are relevant to the tertiary grounds
    which is the focus of the Crowns concern. The Crown does not suggest that the
    public safety leg of the tertiary ground requires his detention on its own, but
    argues that, in all the circumstances, Mr. Isaacs detention is necessary to
    maintain confidence in the administration of justice. It submits that the
    grounds of appeal Mr. Isaac offers are not strong enough for the reviewability
    interest to overcome the enforcement interest.

[5]

To assist in their submissions, both Mr. Isaac and the Crown have made
    liberal mention of a decision I rendered denying bail pending appeal to Mr. Jamal
    Daye. Mr. Daye was one of two men who was also convicted alongside Mr. Isaac of
    drug trafficking charges arising from the investigation that led to Mr. Isaacs
    drug trafficking convictions, which are the subject of the instant appeal:
R. v. Daye
, 2021 ONCA 671. There are parallels between
    the two bail pending appeal applications because Mr. Daye was also arrested and
    charged with firearms offences in connection with the June 24, 2021 search that
    led to the firearms charges against Mr. Isaac. Mr. Dayes bail pending appeal,
    which had also been initially granted on consent, was revoked as the result of
    Mr. Dayes firearms charges. When he applied again to be released pending
    appeal, I denied his application. The Crown argues that the decision in
Daye
resolves most of the issues raised by Mr. Isaac in
    his application to be released pending appeal and therefore points the way. Mr. Isaac
    submits that his case is materially different than Mr. Dayes case because his
    appeal relating to the drug trafficking charges is stronger than Mr. Dayes
    is, and the case against him on the firearms charges is weak, whereas the case
    against Mr. Daye on the firearms charges is overwhelming.

[6]

I want to make clear that there is only limited utility that arises from
    my decision in
Daye
. I will determine Mr.
    Isaacs bail application on its own right in its own circumstances, based on
    the legal considerations that apply.

[7]

With respect to the reviewability interest, Mr. Isaac raises grounds of
    appeal relating to the drug trafficking charge that clearly surpass the not
    frivolous criterion. His contention that the trial judge erred in failing to
    conduct a s. 24(2) analysis after finding a s.10(b) breach is certainly a
    credible ground of appeal, although Mr. Isaac does face the prospect that an
    appeal panel, even if persuaded that there has been an error, could find that
    the evidence was properly admitted. Mr. Isaac also presents credible grounds of
    appeal relating to s. 11(b), which could, if successful, require the drug
    trafficking charges against him to be stayed. His grounds of appeal relating to
    sentence clearly surpass the minimal standard of not frivolous. Once again,
    however, even if errors of law or principle or law are identified, the sentence
    imposed could still be affirmed. Put simply, Mr. Isaacs grounds of appeal are
    clearly not frivolous, but the success of those grounds of appeal is far from
    certain.

[8]

The parties agree that this appeal can be perfected promptly and heard
    without long delay. This reduces to some degree the risk that Mr. Isaac could
    languish in custody pending what could be a successful and dispositive appeal,
    but I must bear in mind that it is a matter of concern whenever any time is spent
    in custody before potentially successful grounds of appeal can be reviewed.

[9]

In terms of the enforceability interest, the drug trafficking charges
    are serious and generally carry a significant sentence. These factors can require
    that a premium be placed on the enforceability interest, but not always. A more
    subtle evaluation is required, lest bail pending appeal always be denied for
    serious charges. In
R. v. Oland
, [2017], 2017
    SCC 17, [2017] 1 S.C.R. 250, at para. 50, Moldaver J. noted that where crimes
    are serious the public interest in enforceability will often outweigh the reviewability
    interest, particularly where there are lingering public safety or flight
    concerns and/or the grounds of appeal appear to be weak. However, he observed,
    at para. 66, that where there are no public safety or flight concerns and the
    grounds of appeal clearly surpass the not frivolous criterion, a court may
    well conclude that the reviewability interest overshadows the enforceability interest
    such that detention will not be necessary in the public interest.

[10]

I
    have already made plain that Mr. Isaacs grounds of appeal are not weak, but
    nor are they strong. The factors requiring closer examination relating to the public
    confidence evaluation are concerned with whether there are lingering flight and
    public safety concerns, and if so, how intense those concerns are.

[11]

The
    Crown grounds its submissions about a lingering flight concern on Mr. Isaacs
    2016 fail to attend court conviction, and the delay that occurred when he was
    asked to surrender on the firearm charges. A fail to attend court conviction is
    always concerning, but it is evident that Mr. Isaacs conviction did not
    involve flight. He received one day in jail for the offence, consistent with a
    failure to attend on a set date. The impact of the failure by Mr. Isaac to
    surrender immediately on the firearms charges is blunted by the Crowns
    appropriate concession in accepting Mr. Isaacs counsels assurance that she
    was negotiating and arranging Mr. Isaacs terms of surrender during this period,
    hence the delay in surrendering. Moreover, the fact that Mr. Isaac did surrender
    materially reduces any concern I have that he might flee pending his appeal.
    Therefore, flight concerns play only a minimal role in my ultimate
    determination.

[12]

However,
    there are lingering public safety concerns. There is evidence of Mr. Isaacs
    readiness to engage in drug trafficking, based on his prior trafficking
    conviction in 2016 and the fact that he is no longer presumed innocent of the
    trafficking charges that are the subject of this appeal. Those public safety concerns
    are aggravated by the firearms charges Mr. Isaac now faces, which are alleged
    to have occurred in breach of this courts prior bail pending appeal order.

[13]

I
    agree with Mr. Isaac that the firearms charges against Mr. Isaac are
    circumstantial and not as strong as the firearms charges that Mr. Daye faces. But
    I do not share Mr. Isaacs contention that the firearms charges are weak. It is
    not my role to conduct a minitrial on those charges, but I must look
    realistically and in a broad way at the strength of the charges. In this case,
    there is real reason to be concerned that the alleged firearms offences may
    well have occurred. The Crown has evidence that Mr. Isaac was connected to the
    apartment where the firearm was found and that the firearm was discovered in a
    satchel that can be circumstantially tied to Mr. Isaac. Although Mr. Isaac is
    presumed to be innocent of the firearms charges, there is a rational and real
    basis for concern that he may well have committed a serious firearms offence
    while on bail pending appeal.

[14]

Moreover,
    although Mr. Isaacs surety is suitable and prepared to pledge her entire
    savings to assist Mr. Isaac, I have concerns about the position she will be put
    in if Mr. Isaac breaches his terms of release. The surety is Mr. Isaacs
    girlfriends mother. It is proposed that Mr. Isaac live in her residence, where
    his girlfriend also resides. This is the same residence he was required to live
    at under the terms of his previous bail pending appeal release order that he is
    alleged to have breached. Moreover, Mr. Isaacs girlfriend was a surety for Mr.
    Isaac on that previous bail pending appeal order, and there is evidence before
    me that when the police were seeking Mr. Isaac in September 2021 at a time of
    day when he was required to be at that residence, he was not there. This
    information not only provides additional evidence that Mr. Isaac breached the
    terms of  his prior release pending appeal, it is also evidence that his
    girlfriend, despite being a surety, refused to provide the police with contact information.
    I appreciate that the girlfriends mother  the proposed surety  bore no legal
    responsibility at the time for controlling Mr. Isaac, and I do not wish to be
    taken as suggesting that she did anything wrong. I do have concerns, however,
    that given the girlfriends demonstrated loyalty to Mr. Isaac and given her
    presence in the residence where Mr. Isaac will be supervised, the dynamic may
    not be conducive to effective supervision on the proposed suretys part.

[15]

I
    have considered the strict bail release terms that have been proposed,
    including the ankle monitoring plan, with both its strengths and limitations. However,
    the ultimate focus in this application is on the impact of my decision on public
    confidence in the administration of justice, in the eyes of a reasonable person
    who is thoughtful, dispassionate, informed of the circumstances of the case and
    respectful of societys fundamental values. In my view, the spectre of
    disrepute looms large when an appellant who has already been released on bail
    pending appeal and who is no longer presumed to be innocent of the charges
    under appeal, seeks to be re-released after being arrested based on credible
    evidence that he committed a serious offence despite being on conditions of
    bail.

[16]

In
    my view, a reasonable person would be seriously troubled by the re‑release
    of Mr. Isaac, a prior drug trafficking offender, pending appeal from conviction
    of a serious drug trafficking charge given the following circumstances: the
    appeal, though credible, is not particularly strong; there is reason to believe
    that Mr. Isaac violated the curfew condition of his prior terms of release; Mr.
    Isaac has been rearrested while on bail release on credible firearms charges;
    and Mr. Isaacs bail release plan depends on supervision by his
    girlfriends mother in a residence where his girlfriend resides, and his
    girlfriend has demonstrated greater loyalty to Mr. Isaac than she did to her oath
    as a surety. In my view, a reasonable person would conclude that re-release pending
    appeal in such circumstances is ill-advised. Mr. Isaac has not met his onus in
    the circumstances of showing that his release pending appeal would not diminish
    public confidence in the administration of justice.

[17]

Mr.
    Isaacs application for bail pending appeal is denied.

David M. Paciocco J.A.