COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cote, 2018 ONCA 870

DATE: 20181031

DOCKET: C62515

Benotto, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gaetan Cote

Appellant

Paul Calarco, for the appellant

Lisa Joyal, for the respondent

Heard: October 9, 2018

On appeal from the conviction entered on November 25,
    2015, and the sentence imposed on January 11, 2016, by Justice Irving W. André
    of the Superior Court of Justice, sitting with a jury, with reasons reported at
    2016 ONSC 226.

By the
    Court:

[1]

The appellant and his friend, James Jim McQuhae, were in a fight. The
    altercation began as a fist fight and became a knife fight; McQuhae was stabbed
    and died. The appellant admitted causing his death. The appellant was convicted
    by a jury of second-degree murder and sentenced to life imprisonment without
    parole eligibility for 12 years. He appeals the conviction and sentence.

[2]

The appellant submits that the trial judge made a series of errors
    regarding the admission of evidence and in his charge to the jury. He further
    submits that the trial judge erred on sentencing by considering, as an
    aggravating factor, the appellants attempt to blame McQuhae for his death.

FACTS

[3]

The appellant and McQuhae had known each other as neighbours since the
    appellant was a teenager. At the time of his death McQuhae was 65 and the
    appellant was 51.

[4]

In December 2007, the appellant developed heart problems. The following
    May, the appellant moved into McQuhaes home in Mississauga. His heart problems
    worsened, which affected his ability to work and pay his monthly rent. In April
    2012, McQuhae told the appellant to move out. By that time the appellant owed him
    approximately $14,000. The appellant stayed with different siblings and
    eventually began living on his brothers property in Waubaushene, Ontario.

[5]

Late in the evening of June 18, 2012, the appellant drove from Waubaushene
    to Mississauga to retrieve some items from McQuhaes garage. The appellant
    testified that he found a crate of garbage sitting on his possessions in the
    garage.

[6]

Feeling upset and angry that the garbage was sitting on his possessions,
    the appellant took the crate inside and confronted McQuhae. This quickly
    sparked an argument and the appellant testified that, before [he knew] it, McQuhae
    began punching him in the back of his head and in the face. The appellant
    responded by dumping the crate of garbage on McQuhae.

[7]

The appellant testified that McQuhae then came at him. The appellant put
    McQuhae in a headlock, and they wrestled and fell to the ground. The appellant
    released him from the headlock and the men briefly separated. The appellant
    testified that as he rested on his hands and knees, trying to catch his breath,
    McQuhae approached him holding a knife. The appellant grabbed McQuhaes hand
    and the two men wrestled for control over the knife. The appellant threw McQuhae
    off balance and pushed the knife into him. The appellant testified that the
    rest was a blur. During cross-examination the appellant admitted that he
    remembered stabbing McQuhae at least three times.

[8]

The appellant left McQuhaes house and drove north. After stopping for
    gas, the appellant pulled into a parking lot in Bolton and tried to commit
    suicide using a utility knife to slash his neck. The wound to his neck stopped
    bleeding and the appellant recovered sufficiently to drive himself to a police
    station in Barrie where he arrived at approximately 2:45 a.m. At the police
    station, the appellant advised Barrie police that he thought he had hurt his
    friend in a fight after his friend attacked him with a knife. Police were
    dispatched to McQuhaes home where they discovered his body at approximately
    3:30 a.m. on June 19, 2012.

[9]

Two forensic pathologists concluded that McQuhaes death was caused by
    some combination of stabbing and compression of the neck or strangulation. He had
    been stabbed five times: twice in the chest, once in the abdomen, and twice in
    the back. The deceaseds neck was bruised, his thyroid cartilage (larynx) was
    fractured, and there were very small hemorrhages on the surface of his eyelids.
    These injuries were consistent with considerable force being applied to his neck.
    McQuhaes severe heart disease may have also contributed to his death.

[10]

The
    appellant was charged with second-degree murder.

[11]

The
    appellant argues that the trial judge erred in allowing the Crown to admit: (1)
    ante-mortem statements purportedly made by McQuhae; (2) evidence of McQuhaes
    peaceful disposition; and (3) photographs of a model depicting the blood
    spatter on McQuhaes shirt.

[12]

The
    appellant also argues that the trial judge erred in the jury charge with
    respect to self-defence, provocation, the exculpatory value of the evidence led
    by the Crown, and the
W.(D.)
analysis.

ISSUES

[13]

The appellant raises the following issues:

1.

Did
    the trial judge err in law in admitting into evidence ante-mortem statements
    purportedly made by McQuhae?

2.

Did
    the trial judge err in law in admitting evidence of McQuhaes peaceful
    disposition?

3.

Did
    the trial judge err in law in admitting into evidence photographs depicting
    possible anatomical positions of the deceased at the time of the stabbing?

4.

Did
    the trial judge err in law in failing to properly charge the jury on the
    elements of self-defence?

5.

Did
    the trial judge err in law in failing to properly charge the jury on the issue
    of provocation?

6.

Did
    the trial judge err in law in failing to charge the jury on the exculpatory
    value of evidence led by the Crown?

7.

Did
    the trial judge err in law in the
W.(D.)
instruction by isolating the appellants
    evidence and character evidence in his charge to the jury?

8.

Did
    the trial judge err in increasing the period of parole ineligibility?

ANALYSIS

Issue 1: Did the trial judge err in law in
    admitting into evidence ante-mortem statements purportedly made by McQuhae?

[14]

In
    a pre-trial ruling, the trial judge held that the Crown could present hearsay
    evidence from Todd Starr, a long-time friend of McQuhae. Starr was permitted to
    testify that approximately two or three days before his death, McQuhae told Starr
    that he was concerned that he might be on the top of the appellants kill list
    and that he was thinking of changing the locks.

[15]

The
    Crown had argued that this testimony was admissible under the state of mind
    or present intentions exception to the hearsay rule recognized in
R. v.
    Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144,

or alternatively, pursuant
    to the principled exception described in
R. v. Khelawon
, 2006 SCC
    57, [2006] 2 S.C.R. 787. The trial judge relied on the latter exception to find
    this evidence admissible.

[16]

During
    trial, the evidence did not materialize precisely as expected. Instead, Starr
    testified that McQuhae was worried that [the appellant] was going to kill
    him. No evidence was offered about changing the locks.

[17]

When
    cross-examined,
Starr
adopted his earlier statement
    about McQuhae being concerned that he was at the top of the appellants kill
    list. Starr then testified that it was after McQuhae made this comment that he
    said he was worried that the appellant was going to kill him. Later in the
    cross-examination Starr said that McQuhaes concern about being at the top of the
    appellants kill list says the same thing as being worried about the
    appellant killing him.

[18]

The
    appellant argues that the trial judge erred in admitting this testimony. He
    challenges the sufficiency of the indicia of reliability of the statements to
    meet the threshold reliability required by the principled exception. He also
    urges that this evidence should not have been admitted because its probative
    value is outweighed by its prejudicial effect.

[19]

The
    appellant does not take issue with the jury directions relating to the proper
    use of the evidence. The appellant did argue, however, that the trial judge
    erred by not giving a sharp warning about credibility problems with Starrs
    testimony.

[20]

We
    would not give effect to these grounds of appeal.

(i)

The Threshold Reliability Challenge

[21]

Although
    the trial judge admitted the evidence under the principled exception to the
    hearsay rule, both the proposed evidence and the hearsay statements that were
    ultimately presented would satisfy the state of mind exception relied upon by
    the Crown. This is enough, in the circumstances, to demonstrate that the
    threshold indicia of reliability requirements of the principled exception
    were met. We will explain.

[22]

In
Starr,
at para. 168, Iacobucci J., for the majority, quoted
R. v.
    Smith,
[1992] 2 S.C.R. 915 at p. 925 stating that an exception to the
    hearsay rule arises when the declarants statement is adduced in order to
    demonstrate the intentions, or state of mind, of the declarant at the time when
    the statement was made. He endorsed the conditions for this exception
    expressed in J.H. Wigmore,
Evidence in trials at common law,
revised
    ed. by J.H. Chadbourn (Boston: Little Brown, 1976) vol. 6 at para. 1725, p. 129,
    that the statement must be of a
present existing state of mind,
and
    must appear to have been made in a natural manner and not under circumstances
    of suspicion (emphasis in original). Naturally, the present state of mind of
    the declarant must also be relevant to the proceedings:
R. v. C.(M.),
2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 63.

[23]

Each
    of these requirements is met in this case.

[24]

The
    statements attributed to McQuhae purport to narrate his present state of mind
    fear that he would be killed by the appellant, or fear because he was at the
    top of the appellants kill list.

[25]

The
    trial judge found that the proposed statements appeared to have been made
    without leading questions or improper influence, or in contemplation of any legal
    proceedings. In other words, the statements were made in a natural manner.

[26]

In
Starr
, at para. 178,

the
ante
    mortem
statement of the deceased that he intended to go to meet the
    accused was made in circumstances of suspicion, namely, the prospect that the
    deceased lied to his girlfriend about his present intention to cover up his
    actual intention to see another woman. No such circumstances of suspicion
    attend McQuhaes statements concerning his state of mind of fear.

[27]

And,
    as in
R. v. Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 63, the
    deceaseds fear of the appellant was relevant in that it showed that the
    relationship between the men was acrimonious or strained, which in turn is
    capable, along with other evidence, of supporting an inference that the
    appellant had an animus or intention to act against the deceased. Although the
    distinction is not without its subtlety, it was determined authoritatively in
Griffin
,
    at paras. 58-64,

that this line of reasoning does not offend the
    prohibition in
Starr
against treating a declarants hearsay statement
    about his own state of mind as proof of another persons state of mind.

[28]

Since
    Starrs testimony about McQuhaes statements satisfies the state of mind
    exception, it is sufficient to meet the threshold indicia of reliability
    criterion of the principled exception. This is clear because in
Starr
,
    at para. 168, Iacobucci J. adopted the foregoing requirements to the state of
    mind exception precisely because they satisfy the demands of reliability under
    the principled approach. Although the trial judge could properly have acceded
    to the Crowns request to use the fixed state of mind hearsay exception, his
    holding that the circumstances satisfied the threshold reliability requirement
    of the principled exception was not wrong. He took an alternative, and
    available, route to the same outcome.

[29]

The
    appellant argued that, in the circumstances of this case, there were important
    indicia of unreliability that should nonetheless have prevented Starr from
    offering McQuhaes statements. He focused specifically on Starrs unreliability
    as a witness. The appellant urged that the evidence showed Starr to be biased
    against the appellant, and that he may have fabricated his testimony to prevent
    the appellant from relying on self-defence.

[30]

This
    argument is misdirected. The credibility and reliability of a hearsay witness
    such as Starr is not relevant to the threshold reliability inquiry because the
    threshold reliability inquiry is meant to serve as a substitute for cross-examination
    of the declarant, and because the hearsay witness is fully available to be
    cross-examined at trial
: R. v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R.
    298, at paras. 47-52;
R. v. Humaid

(2006), 81 O.R. (3d) 456
    (C.A.), at paras. 50-51,
leave to appeal to
    S.C.C. refused
,
[2006] S.C.C.A. No. 232. The jury in this
    case was in a position to test fully the truthfulness and accuracy of Starrs
    claim that the hearsay statements were made and what was said. The threshold
    reliability inquiry focuses on the reliability of the hearsay statements
    themselves based on the circumstances in which the statements were made. As
    indicated, in this case the indicia of reliability were sufficient.

(ii)

Probative Value versus Prejudicial Effect

[31]

Even
    when hearsay evidence is technically admissible there is a discretion to
    exclude it where its potential probative value is exceeded by its potential
    prejudicial effect:
Blackman
, at para. 51
; R. v. Candir
, 2009
    ONCA 915, 250 C.C.C. (3d) 139, at para. 59,
leave
    to appeal to S.C.C. refused
, [2012] S.C.C.A. No. 8. In
Humaid,
at para. 57,

Doherty J.A. recognized that, in rare cases, the evidence
    of a hearsay witness can be incredible or unreliable enough to deprive the evidence
    of its probative value and necessitate discretionary exclusion.

[32]

The
    appellant asked the trial judge to exercise his discretion and exclude the
    hearsay evidence in this case. He pointed to the problems with Starrs
    credibility and reliability. He also argued that the hearsay evidence lacked
    probative value because the evidence, taken as a whole, showed that the
    appellants kill list was not serious. Further, in the circumstances, the jury
    would be prone to inflate its importance. He said that if the hearsay
    statements were to be admitted, he would have no choice but to show that he
    made threats of death lightly without any intention to carry them out, evidence
    that would cast him in a poor light before the jury. The trial judge declined
    to exercise his exclusionary discretion. The appellant argues that he erred in doing
    so.

[33]

We
    would not interfere. It is for trial judges to determine whether to exercise
    the exclusionary discretion. Appellate deference is owed to those decisions:
R.
    v. Moo,
2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 101;
R. v. S.(S.)
,
    2008 ONCA 140, 232 C.C.C. (3d) 158, at paras. 29-31. The appellant has been
    unable to identify any legal errors or errors in principle in the way that
    discretionary decision was made, or show any material misapprehension of the
    evidence. Nor was the trial judges balancing of factors unreasonable.

(iii)

The Jury Direction

[34]

Although
    not pressed during oral argument, the appellant contended in his written
    argument that the trial judge erred in not giving a sharp warning to the jury
    about Starrs evidence. We disagree. The trial judge gave extensive guidance to
    the jury on how to assess testimony, and fairly identified the problems with
    Starrs evidence when summarizing it. It was for the trial judge to decide
    whether more was required, and he was not asked by the appellant to give a
    sharp warning about Starrs evidence.

Issue 2:  Did the trial judge err in law in
    admitting evidence of McQuhaes peaceful disposition?

[35]

The
    Crown sought to lead the following evidence: (1) evidence of Starr that McQuhae
    was generally slow to anger; (2) evidence of John Eaton, McQuhaes neighbour,
    that McQuhae was not of an aggressive nature; and (3) evidence of Mike Cote,
    the appellants brother, that McQuhae was a nice guy and that he had never
    seen McQuhae upset or lose his temper.

[36]

The
    Crown argued that where an accused raised the issue of self-defence, and
    specifically alleged that McQuhae was the initial physical aggressor, evidence
    of McQuhaes peaceful disposition was relevant and probative towards
    potentially refuting the appellants claim and properly admissible.

[37]

The
    appellant submitted that evidence of McQuhaes peaceful disposition lacked
    relevance and probative value because, in raising the defence of self-defence,
    the appellant was not asserting that McQuhae had a violent disposition. Even if
    the character of the deceased was put in issue, evidence that a person is
    typically peaceful does not prove how such a person would react in extreme
    circumstances. Finally, trial counsel for the appellant argued that the
    appellant could be prejudiced by this evidence because it could be juxtaposed
    against evidence that the appellant had quick temper.

[38]

The
    trial judge admitted only the second part of Cotes evidence, that he had never
    seen McQuhae lose his temper, because it was evidence of McQuhaes peaceful
    disposition. For the same reason, the trial judge admitted the evidence of
    Starr to the effect that McQuhae was generally slow to anger, and the evidence
    of Eaton to the effect that McQuhae was not of an aggressive nature.

[39]

We
    do not agree that the trial judge erred in admitting the evidence. The evidence
    admitted was relevant because the appellant had raised and was relying on self-defence.
    This court has held that evidence of a deceaseds peaceful disposition is
    relevant to the issue of self-defence, because the jury has to determine if McQuhae
    acted in a way that caused the accused to fear that his life was in danger or
    that he would suffer grievous bodily harm:
R. v. Krasniqi,
2012 ONCA 561, 291 C.C.C. (3d) 236
, at para. 63. Such
    evidence is therefore admissible where its probative value outweighs its
    prejudicial effect:
R. v. Krasniqi,
at para. 63. The appellant has not
    persuaded us that, in this case, the prejudice caused by the character evidence
    required its exclusion.

[40]

The
    appellant also argues that the trial judge erred by not instructing the jury
    about the use of this evidence, a non-direction amounting to a misdirection. He
    claims that this error was made worse because the trial judge re-iterated the
    evidence of peaceable disposition in a prejudicial way. This court has stated
    that non-direction only becomes misdirection, when something left unsaid makes
    wrong something that was said, or where what was left unsaid is essential to an
    accurate instruction on the subject:
R. v. Bradey,
2015 ONCA 738, 127
    O.R. (3d) 721, at para. 131. A specific instruction regarding this evidence was
    not essential because the trial judge instructed the jury regarding the
    assessment of witness testimony, he reviewed the evidence including that of
    several witnesses to the effect that the appellant typically was not physically
    aggressive, and he repeatedly instructed the jury to consider all the evidence.
    Further, the appellant did not request that the trial judge provide a charge to
    the jury as he now submits. This could have been a strategic decision not to
    call attention to this evidence. The fact that counsel had a full opportunity
    to raise this issue with the trial judge but remained silent is a factor in
    assessing the adequacy of the instruction on appeal
: R. v. Minor
,

2013
    ONCA 557, 303 C.C.C. (3d) 382, at para. 89;
R. v. Royz
, 2009 SCC 13,
    [2009] 1 S.C.R. 423, at para. 3.

Issue 3: Did the trial judge err in law in
    admitting into evidence photographs depicting possible anatomical positions of the
    deceased at the time of the stabbing?

[41]

The
    trial judge admitted photographs depicting possible anatomical positions of the
    deceased at the time of the stabbing. He concluded that photographs of the
    deceaseds bloodstained shirt worn by a model demonstrating the possible
    anatomical positions of the deceased was necessary in order to explain the
    bloodstain pattern analysts conclusion that the only anatomical positions that
    accounted for the bloodstains on the deceaseds pants and shirt were either a
    prone position leaning over at the waist, or a prone position with hands and
    knees on the ground. The trial judge concluded that the photographs helped
    explain the expert opinions, would assist the jury in following the evidence,
    and were probative with respect to the issues of intention and self-defence.

[42]

The
    appellant submits that the trial judge erred because the photographs depicted
    anatomical positions that were merely possible, rather than probable. It was
    improper to admit photographs depicting how McQuhae may have been positioned
    without any testing of the accuracy of that depiction.

[43]

We
    do not agree that the evidence was speculative. The analyst testified during
    his examination-in-chief as follows:

So what position would the decedent have to be in in order to
    only get [blood] stains on the sleeves and on the inner part of the  the shirt
    and not basically anywhere else in the scene other than that pooling position?

I did some experimentation using a model that was the same
    height as our decedent and went through basic scenarios. So in order to expose
    both sleeves and the inner portion of both the left and right panels of the
    shirt,
the only way that would make sense
is if the shirt and wearer
    are in some sort of prone position; bent over.

[T]he theory was that the person
    was in this or a similar position for a period of time while bleeding. Its the
only
position that accounts for the staining were seeing at the scene
    and the staining were seeing on both the  the pants and shirt of the decedent
    [Emphasis added.]

[44]

The
    photographs were demonstrative evidence, helpful in understanding and evaluating
    this testimony. They illustrated the analysts observations and conclusions as
    to the position of the deceased when he was stabbed in a more effective way
    than a simple verbal description would have done.

[45]

The
    trial judges instructions to the jury appropriately guarded against
    prejudicial effect, to the extent there was any. He advised the jury that the
    photographs and reports filed as exhibits were only as good as the evidence on
    which they were based, and that in deciding how much or little to rely on them,
    the jury should consider not only how they were prepared, but also the evidence
    on which they were based. The trial judge did not err either in admitting the
    photographs, or in his instructions to the jury on how the photographs should
    be used.

Issue 4: Did the trial judge err in law in failing
    to properly charge the jury on the elements of self-defence?

[46]

The
    appellant submits that, even though both the Crown and defence requested a
    charge on both s. 34(1) and 34(2), the trial judge erred in charging on s.
    34(1). He submits that, because the appellant admitted to intentionally
    stabbing McQuhae as a proportionate response to a deadly situation, a
prima
    facie
case had been made out that the appellant likely intended to cause
    significant bodily harm. That should have disqualified s. 34(1).

[47]

He
    further submits that the s. 34(1) charge was wrong. He argues the jury should
    have been instructed that the appellant could have used force to repel McQuhaes
    attack if he did not intend to cause death or grievous bodily harm, so long as
    he used no more force than was necessary based upon the appellants
honest
    and reasonable
perception of the attack. The jury should have been told
    that s. 34(1) applies even if great bodily harm was inflicted and that the
    force used need not be measured to a nicety. These principles were either not
    explained or were not explained with sufficient detail. As a result, the trial
    judge failed to properly emphasize the
honesty

of the
    appellants belief and the
reasonableness

of that belief.
    Instead, the trial judge simply referred to a reasonable belief, rather than an
    honest belief reasonably held. In other words, the trial judge failed to tell
    the jury that the appellant could be mistaken.

[48]

The
    appellant also alleges that the charge on s. 34(2) was in error because the
    trial judge did not properly identify the actions of McQuhae that attracted s.
    34(2). More specifically, the trial judge should have drawn a sharp distinction
    between the initial argument and fight, and McQuhaes introduction of the
    knife. As a result, the jury was left with the impression that the original
    fight was a basis for measuring the force used by the appellant.

[49]

As
    with s. 34(1), the appellant submits that trial judge over-emphasized the
    objective elements of the defence under s. 34(2). The trial judge referred to
    reasonable belief rather than instructing the jury to ask whether the appellant
    honestly believed, even if he was mistaken, that he was being assaulted, and
    that his belief was reasonable in the circumstances.

[50]

We
    do not agree.

[51]

The
    trial judge did not err in charging the jury on s. 34(1). That part of the
    charge was expressly requested by appellant during the pre-charge conference.
    In addition, a charge on s. 34(1) was logical because the appellant testified
    that the first stab wound was not inflicted intentionally. Moreover, the
    appellants counsels closing address to the jury left it open to the jury to
    consider s. 34(1). Therefore, the instruction on s. 34(1) was correct.

[52]

The
    trial judge correctly charged the jury on both the subjective and objective
    elements of s. 34(1). In particular, the trial judge explicitly referred to the
    appellants belief and the fact that self-defence could be made out even if the
    appellant was honestly mistaken about the facts. When viewed as a whole, the
    charge also made clear that self-defence was available even when great bodily
    harm was caused so long as it was unintended. This aspect of the charge
    properly stressed the appellants intention rather than the consequences of his
    actions.

[53]

The
    trial judge correctly instructed the jury on s. 34(2) and properly explained both
    the subjective and objective components of the defence. The trial judges
    instructions clearly conveyed that the appellants belief that he was being
    assaulted could be mistaken, so long as it was honestly and reasonably held.
    Similarly, the instructions clearly conveyed that the appellant could be
    mistaken regarding whether he was in danger, so long as he honestly and
    reasonably believed that he was. The same is true of the trial judges
    instructions regarding whether the appellant honestly and reasonably believed
    that he had to use force to save himself.

[54]

We
    therefore would not give effect to these grounds of appeal.

Issue 5: Did the trial judge err in law in failing
    to properly charge the jury on the issue of provocation?

[55]

The
    appellant submits that the trial judge failed to relate the evidence that was
    capable of constituting provocation to the legal requirements of the defence.
    The appellant testified to an initial fight and then the introduction of a
    knife by McQuhae. However, the trial judge did not distinguish between the
    initial fight and the introduction of the knife. The introduction of the knife
    fundamentally altered the nature of the conflict by significantly escalating
    the danger faced by the appellant.

[56]

We
    do not agree.

[57]

The
    trial judges charge on provocation was requested by the appellant and modelled
    after the standard charge on provocation. The trial judges references to
    insult and McQuhaes initial attack on the appellant using fists followed the
    appellants own submissions at trial: that McQuhaes initial attack using fists
    was part of the wrongful act or insult.

[58]

In
    any event, the trial judge clearly communicated to the jury that there had to
    be either a wrongful act or an insult. Moreover, given the appellants
    testimony and closing address characterizing the altercation as a continuous
    event, the trial judge properly included the initial fight as part of the
    context leading up to the introduction of the knife.

Issue 6: Did the trial judge err in law in failing
    to charge the jury on the exculpatory value of evidence led by the Crown?

[59]

The
    Crown introduced the appellants statements made to police in Barrie when he
    admitted to killing McQuhae, but asserted self-defence. The appellant submits
    that, the trial judge did not explain to the jury that his statements to the
    police were exculpatory.

[60]

We
    do not agree. The trial judge clearly instructed the jury that
all
the
    appellants statements in evidence before them may be used for or against the
    appellant. Indeed, the trial judge specifically instructed the jury that they
    must consider remarks that may help the appellant. Further, the appellant did
    not object to this aspect of the charge at the time of trial: see
R. v.
    Polimac
, 2010 ONCA 346, 254 C.C.C. (3d) 359, at paras. 85-87.

Issue 7: Did the trial judge err in law in the
W.(D.)
instruction by isolating the appellants evidence and character evidence?

[61]

Mr.
    Cote testified in his defence. He also offered additional defence evidence
    through other witnesses. Yet when the trial judge charged the jury on the
W.(D.)

test the trial judge described the analysis the jury should give to Mr.
    Cotes evidence. The appellant submits that this charge was in error because
    the
W.(D.)

analysis should be applied to all of the defence
    evidence, and not simply Mr. Cotes testimony.

[62]

Again,
    we disagree that the trial judge erred. He did not isolate Mr. Cotes
    testimony. He spoke of Mr. Cotes evidence, an expression capable of
    including all of the evidence Mr. Cote called. In this case, the trial judges
    use of the word evidence would not have been misunderstood by the jury as
    being confined to the appellants testimony. Read as a whole, the charge instructs
    the jury, at many points, to consider all of the evidence, and clearly directs
    the jury to consider all evidence which assists the appellant. The jury could
    not have been under any misunderstanding about its duty to consider all of the
    evidence in determining whether it raised a reasonable doubt about the
    appellants guilt
: R. v. Fogah
, 2018 ONCA 564, 362 C.C.C. (3d) 4, at
    para. 73.

Issue 8: Did the trial judge err in increasing the
    period of parole ineligibility?

[63]

The
    appellant submits that the trial judge erred by considering the appellants
    rejected s. 34 defence to be an aggravating factor, characterizing it as an
    attempt to shift responsibility to McQuhae.

[64]

We
    agree with the appellant that the trial judge erred in finding that that the
    appellants attempt to lay blame on the deceased constituted an aggravating
    factor.  This was the essence of his assertion of self-defence. That said, we
    do not agree that the error had an impact on the sentence imposed, or that the
    sentence is unfit.

[65]

The
    period of 12 years is not demonstrably unfit. Nor does it constitute an
    unreasonable departure from the principle that a sentence must be
    proportionate to the gravity of the offence and the degree of responsibility
    of the offender:
R. v. Lacasse,
2015 SCC 64, [2015] 3 S.C.R. 1089
DISPOSITION
[66]

The appeal as to conviction is dismissed. Leave to appeal the sentence
    is granted but the appeal as to sentence is dismissed.
Released:
    DP OCT 31 2018
M.L. Benotto J.A.
L.B. Roberts J.A.
David M. Paciocco J.A.


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. Cubillan, 2018 ONCA 811

DATE: 20181010

DOCKET: C62901

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adonay Cubillan

Appellant

Margaret Bojanowska, for the appellant

Rebecca De Filippis, for the respondent

Heard: October 2, 2018

On appeal from the conviction entered on February 13,
    2015, by Justice Graeme Mew of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2015 ONSC 969.

van Rensburg J.A.:

[1]

The appellant appeals his conviction for sexual assault. He has served his
    custodial sentence of two years less a day. There is one ground of appeal: that
    the appellant was denied effective representation by his trial counsel,
    resulting in a miscarriage of justice. In particular, the appellant contends
    that trial counsel deprived him of the choice to testify, conducted an
    ineffective cross-examination of the complainant, and failed to introduce a
    toxicologists report that was included in the Crowns disclosure and that
    might have assisted in his defence. For the reasons that follow, I would allow
    the appeal.

The Trial Judges Reasons

[2]

The sole issue at trial was consent: whether the complainant, a
    self-described alcoholic who had consumed a great deal of alcohol in the 48
    hours preceding the events in question, had the capacity to consent, and
    whether she in fact consented to the sexual intercourse that was admitted to
    have occurred.

[3]

The appellant was convicted after a two day trial. The trial judge began
    his reasons by noting that his findings of fact were based on the evidence of
    the complainant and her mother, as well as on certain agreed facts, and that
    the appellant did not testify.

[4]

The complainant, who was 34 years old when she testified, was staying
    temporarily at her mothers apartment. Her mother was away for a few days. The
    complainant had been drinking heavily and steadily and had not slept in the
    previous two days. Two friends were with her in the apartment, drinking beer,
    when two of her mothers friends (a long-standing friend, F.X., and the
    appellant) arrived at the door with groceries. The complainant had only met the
    appellant once, when he and F.X. had come to the apartment for dinner one or
    two weeks earlier. When they were told the complainants mother was not there,
    F.X. left, and the complainant invited the appellant in to take his telephone
    number for her mother. He stayed and socialized with the complainant and her
    friends. After the two friends left, the complainant and the appellant watched
    videos and continued to talk. They discussed the complainants drinking
    problem, and her fiancés recent death. The complainant, who was sitting on a
    chair, became tired, so the appellant moved from the couch so that she could
    lie down. (I note that, until this point, the complainants account in most respects
    is consistent with the account provided by the appellant to the police upon his
    arrest and the handwritten account he provided to his trial counsel.)

[5]

According to the complainant, while she was on the couch, the appellant
    offered to get her food and went to McDonalds. She did not accompany him as
    she could not physically have walked anywhere. She thought she had fallen
    asleep while he was gone, but she recalled eating some of the food. There were
    gaps in the complainants memory after that. She recalled being on her mothers
    bed but did not know how she got there. The appellant was on top of her. He was
    trying to remove her tights. She remembered the appellant kissing her nipple,
    lying on top of her, and then being penetrated. Although she moved her head to
    avoid being kissed, she was unable to move the rest of her body. She had only
    intermittent memories of the incident. She did not recall saying anything while
    this was going on. Her next memory was waking up. The appellant was sitting on
    her bed, and was going to leave but asked if she wanted him to take the dog out
    first. She told him to leave, got up, and went to the bathroom. She realized
    she was only wearing a pair of shorts, and had no idea how the shorts got on
    her. She noticed discharge and concluded that the appellant had had unprotected
    sex with her. The complainant denied that there had been any flirting, touching,
    or physical intimacy leading up to the incident, and she denied consenting to
    the penetration or touching.

[6]

In the following days, the appellant showed up at the apartment twice and
    made multiple attempts to reach her on her cell phone, leaving messages calling
    her my love, and asking whether she was okay and needed food or money. She
    avoided him. After her mother got a call from the appellant asking about her
    trip, the complainant told her about the assault. Her mother had an altercation
    with F.X. and the appellant on the street. Soon afterwards, the complainant
    went to the police.

[7]

The trial judge concluded that the complainant was a credible witness.
    Notwithstanding trial counsels submission that the post-incident calls and
    messages were not the actions of someone who had done something wrong, the
    trial judge noted that there was no evidence that the complainant did anything
    that could reasonably have conveyed that she was consenting, and that on her
    uncontradicted evidence there was no flirting or sexual overtures at any time
    prior to the incident. He accepted that she had not initiated the sexual
    activity. He accepted that the complainant had passed out during the incident,
    and he rejected the assertion that the complainants lack of active resistance
    equated to consent. The trial judge also concluded that the complainant lacked
    capacity to consent, and that at best, she was intermittently conscious but not
    to a degree necessary to be able to consent. The trial judge noted that there
    was no evidence of the appellants state of mind before and during the event,
    and that the post-incident activities were not capable of raising a reasonable
    doubt.

Ineffective Assistance of Counsel

[8]

The test for ineffective assistance of counsel is set out in
R. v.
    Joanisse
(1995)
, 102
    C.C.C. (3d) 35 (Ont. C.A.), at pp. 59-61, leave to appeal refused, [1996]
    S.C.C.A. No. 347. The appellant must establish on a balance of probabilities
    that trial counsels conduct fell below the standard of reasonable professional
    assistance and that the ineffective representation resulted in a miscarriage of
    justice. A miscarriage of justice occurs when the ineffective representation undermine[s]
    the appearance of the fairness of the trial, or the reliability of the verdict:
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 120. The
    unreliability of a verdict is made out where the appellant can establish that
    there is a reasonable probability that the verdict would have been different
    had he received effective representation. A reasonable probability is one that
    is sufficiently strong to undermine the appellate courts confidence in the
    validity of the verdict:
R. v. Dunbar
, 2007 ONCA 840, at para. 23.

[9]

The appellant raises a number of concerns about his representation at
    trial. The overriding theme of his submissions is that his trial counsel did
    not put his version of the events  which he had set out in his police
    statement and a handwritten account provided to his counsel  before the court.
    There was no significant dispute about what occurred up to the point when the
    complainant lay down on the couch, or about his actions the following day. The
    appellant contends, however, that the complainant had accompanied him outside
    the apartment more than once to get food and beer. He also claims that,
    although she drank a few beers when he was there and consumed cocaine, she did
    not appear to be intoxicated and was never incapacitated. He asserts he was
    sleeping on the couch and that the complainant initiated the sexual intercourse
    by calling him into the bedroom to kill a cockroach. He found her naked on the
    bed. She performed oral sex on him and they engaged in vaginal intercourse.

[10]

The
    appellants principal argument is that his trial counsel prevented him from
    testifying. Crown counsel concedes that, if this ground is made out, the
    appellant was denied a fair trial, and the appeal should be allowed. I will
    address this issue first as it has merit and is the basis on which I would
    allow the appeal.

Failure to Permit the Appellant to Testify

[11]

The
    determination of this ground requires the court to make findings of fact, based
    on the expanded record that is before the court, which includes the affidavits
    of the appellant and trial counsel, and the transcripts of and exhibits to
    their cross-examinations.

[12]

The
    appellant asserts that trial counsel told him not to testify. He contends that
    he always wanted to put his version of events before the court, but was not
    given the opportunity to do so. He says that he was never told that he had the
    right to testify, that it was his decision, or that it was in his best interest
    to testify. He claims that trial counsel told him to keep quiet and not say anything or the outcome would be worse for him.

[13]

Trial
    counsel insists that, while it was his strong opinion throughout the
    proceedings that the appellant should not testify, they discussed the issue on
    several occasions, and ultimately he left the decision to the appellant, who
    followed his advice. Trial counsel contends that the final decision that the
    appellant would not testify was made only after the conclusion of the Crowns
    case, when he was of the view that the appellants evidence was not necessary
    because the complainants evidence was sufficient to raise a reasonable doubt.
    While he may not have had time to discuss the issue with the appellant, nothing
    had occurred to change his opinion that the appellant should not testify.

[14]

It
    is a fundamental principle that, while counsel must provide advice about
    whether a client should testify, the ultimate determination must be made by the
    client. If the appellant can show his counsel made the decision he would not
    testify and that he would have testified if he had been given the choice, it
    must be accepted that his testimony could have affected the result, thereby
    establishing that a miscarriage of justice occurred:
Archer
, at para.
    139.

[15]

I
    am satisfied on a balance of probabilities that the appellant was denied the
    opportunity to testify in his own defence in his sexual assault trial.

[16]

First,
    I cannot accept Crown counsels submission that the appellant should be
    disbelieved. While there is always a risk of hindsight through the bars of a
    jail cell (
Archer
, at para. 142), the appellants account is
    credible, and in many respects is not denied by trial counsel. The fact that
    the appellant did not allege ineffective assistance of counsel in his inmate
    notice of appeal is not surprising, as trial counsel prepared the notice for
    him. And it is consistent with his evidence that he did not appreciate that the
    choice to testify was his to make.

[17]

Second,
    in a letter responding to the appellants appeal counsel, trial counsel stated that
    the decision about [the appellant] not testifying was mine and was taken at
    his trial, right after the complainant finished her testimony. I am not
    persuaded by trial counsels explanation that, had he known the full extent of
    the appellants allegations, he would have been more careful and explained that
    he always made it clear to the appellant that he had the right to testify. Trial
    counsels claim that he was not as careful as he ought to have been with the
    wording of his letter is not convincing. This was not, as Crown counsel asserts,
    an informal response to an informal letter. Other aspects of trial counsels
    evidence on cross-examination are consistent with the letter. He testified, for
    example, that it was not clear whether the appellant wanted to testify and he
    could not remember if he had asked the appellant whether or not he wanted to
    testify.

[18]

Third,
    there was nothing in trial counsels file that would support his contention
    that he had informed the appellant that he had the right to testify and that he
    had given him the choice. There was no signed direction, and there were no file
    notes in any of the documents trial counsel produced in response to the request
    for his file that indicated dates of meetings or what was discussed with the
    appellant. Counsel maintained no dockets and he did not issue any accounts
    (although he was paid in cash for his services). It was only on the day of his
    cross-examination that trial counsel attended with a three page typewritten
    chronology, showing specific dates of meetings, with two references to
    discussions about the appellants right to testify. I am unable to accept the
    contention that this document was created on an ongoing basis and was an
    accurate account of trial counsels dealings in this matter. If that were the
    case, trial counsel would reasonably have produced the document immediately
    when he responded to appeal and Crown counsel, and not over 18 months after he
    was asked for notes of his discussions with the appellant about testifying and some
    six weeks after he swore his affidavit responding to the allegations of
    ineffective assistance.

[19]

Finally,
    the record is inconsistent with trial counsels contention that the appellants
    decision not to testify was taken only after the conclusion of the Crowns
    case. In order for the appellant to testify about what transpired leading up
    to, during, and following the sexual intercourse, his lawyer was required to
    comply with the rule in
Browne v. Dunn
, and first put the contrary
    version to the complainant in her cross-examination. The fact that there was no
    attempt on the part of trial counsel to do so is inconsistent with his
    assertion that the decision as to whether the appellant would testify was left
    open until the end of the Crowns case.

[20]

The
    record discloses that trial counsel was not rushed, as he contends, but that he
    immediately informed the court that the appellant would not be testifying. He
    reconfirmed this without requesting an opportunity to converse with his client
    even after Crown counsel, in handing up her case authorities, suggested that
    defence counsel might want to review the cases and reconsider whether to call
    evidence.

[21]

Trial
    counsel asserted that it was his strong opinion all along that the appellant
    should not testify and be subject to cross-examination. He did not, however,
    offer any reason for this assessment, other than that the appellant had never
    testified in court before.  The respondent acknowledges that the appellant
    provided a consistent account of the events in question to the police upon his
    arrest and in the handwritten account he provided to trial counsel. He had no
    criminal record. On this record, it is difficult to understand why trial
    counsel was so strongly of the view that the appellant should not testify.
    Indeed, once the Crowns case was in, it ought to have been obvious to trial
    counsel that the evidence that was before the court was unlikely on its own to
    raise a reasonable doubt.

[22]

On
    this record, I am satisfied that the appellant was denied the opportunity to
    testify, or at least to make his own decision about whether or not to testify
    in this trial, and that in the circumstances of this case, this amounted to a
    miscarriage of justice.

Other Issues

[23]

While
    I would allow the appeal based on trial counsels failure to provide the
    appellant the opportunity to testify, I agree with the appellant that there
    were other serious deficiencies in his representation by trial counsel.

[24]

Trial
    counsel did not conduct an effective cross-examination of the complainant. He
    failed to explore several material inconsistencies between the complainants
    evidence at trial and her police statement and preliminary inquiry evidence
    that were relevant to the questions of the complainants capacity to consent
    and whether she had consented to the sexual intercourse. Where counsel did
    attempt to confront the complainant with some inconsistencies, he did not put
    the statements to her, and was ineffectual. Counsel did not explore the
    question of the complainants alcohol consumption and tolerance, which were
    relevant to her capacity to consent. Finally, and most significantly, counsel
    did not put to the complainant the appellants version of events. Ultimately,
    trial counsel, in his closing submissions, conceded that the complainant was a
    reliable witness while there were a couple of issues there on credibility.

[25]

The
    manner in which trial counsel conducted the cross-examination does not suggest
    that there was any proper exercise of professional judgment. Rather, trial
    counsel appears to have proceeded on a mistaken understanding of the law. This
    is revealed both in his closing arguments and in the fresh evidence. His
    argument was that the complainant admitted she was awake, and that she had not
    given evidence that she had refused the sexual act. He relied on the assertion
    that a drunken consent is still consent.

[26]

The
    appellant also points to trial counsels failure to introduce an expert
    toxicologists report at trial. The report, which was included in the Crowns
    disclosure, contained two opinions that might have assisted the appellant in
    his defence: first, that chronic heavy users of alcohol may show fewer signs of
    intoxication due to tolerance; and second, that blackouts could occur without
    loss of consciousness. Indeed, trial counsel referred to the report in his
    closing submissions, appearing to believe that it was already in evidence. It
    is impossible to say whether such evidence, if admitted at trial, would have
    affected the outcome. What is apparent is that counsel overlooked this
    potential evidence, and may even have failed to appreciate its importance.

Conclusion

[27]

I
    am satisfied that this is a case where the appellant was denied representation
    at trial by competent counsel and that this caused a miscarriage of justice. I
    would emphasize that this is not a determination of the appellants guilt or
    innocence of the offence charged. I would allow the appeal, quash the
    appellants conviction, and order a new trial.

Released: October 10, 2018

K. van Rensburg J.A.

I agree. Robert J. Sharpe J.A.

I agree. P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Faucher, 2018 ONCA 815

DATE: 20181015

DOCKET: C65616

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jody Faucher

Appellant

Michael Dineen, as duty counsel

Jody Faucher, acting in person

Andrew Hotke, for the respondent

Heard: October 1, 2018

APPEAL BOOK ENDORSEMENT

[1]

The appellant pleaded guilty to unauthorized use of credit card data. He
    was sentenced to 18 months imprisonment in addition to credit for 90 days
    pre-sentence custody plus three years' probation.

[2]

On behalf of the appellant, duty counsel argues that the
    trial judge erred in imposing house arrest and curfew terms as terms of the
    probation order because they were not reasonable conditions imposed to protect
    society or facilitate the appellant's reintegration into the community under s.
    732.1(3)(h) of the
Criminal Code.

[3]

We reject this submission.

[4]

We acknowledge that probation has traditionally been viewed as a
    rehabilitative sentencing tool and that conditions imposed to punish rather
    than rehabilitate the offender have been struck out:
R. v. Proulx
(2000), 140 C.C.C. (3d) 449 (S.C.C.) at paras. 32 and 33.

[5]

However, we note that, in this case, the sentence imposed was negotiated
    at a judicial pre-trial and resulted in a joint submission that was accepted by
    the sentencing judge. Although the Crown submitted that a portion of the
    sentence should be seen as partially punitive, the appellant's trial counsel
    supported the sentence on the basis that it would serve as a catalyst to turn
    the appellant's life around and allow him, the only son, to support his ailing
    mother  in other words, because it would assist in the appellant's
    rehabilitation.

[6]

Because of the nature of the proceeding as a joint submission, the trial
    judge did not articulate the basis on which he accepted the impugned terms. It
    would have been preferable had he done so.

[7]

Without endorsing the use of house arrest and curfews as probationary terms,
    on the limited record before us and in the unique circumstances of this case
    (including the appellants circumstances as articulated by trial counsel), we
    are not prepared to give effect to the submission made for the first time on
    appeal and say that the impugned terms were illegal as being in contravention
    of s. 732.1(3)(h).

[8]

Leave to appeal sentence is granted but the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fraser, 2018 ONCA 820

DATE: 20181011

DOCKET: C64910

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathan Fraser

Appellant

Louis P. Strezos, as duty counsel

Nathan Fraser, in person

Jessica Smith Joy, for the respondent

Heard: October 4, 2018

APPEAL BOOK ENDORSEMENT

[1]

We agree that the trial judge failed to give effect to the appellants
    qualification of the facts as read in on his guilty plea when the trial judge
    described in his list of aggravating factors the accidental blast from the
    sawed-off shotgun as narrowly missing the complainant.  As we read his reasons,
    this mis-description factored into the sentence imposed on the possession of a
    prohibited firearm charge.

[2]

We allow the appeal in part, reduce the effective sentence imposed on
    that charge from five years and thirty-four days to four years, seven months
    and four days.  We otherwise see no error in the trial judges reasons and
    dismiss the balance of the sentence appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.M., 2018 ONCA 821

DATE: 20181011

DOCKET: C65284

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.M.

Appellant

Jonathan Dawe, as duty counsel

G.M., in person

Grace Choi, for the respondent

Heard: October 2, 2018

APPEAL BOOK ENDORSEMENT

[1]

On behalf of the appellant, duty counsel raises three issues going to
    the correctness and adequacy of the trial judges reasons.

[2]

First, he argues that the trial judge relied improperly on evidence of a
    prior consistent statement made by the complainant to a former friend to
    corroborate the complainants evidence.  We reject this submission.  In our
    view, the trial judge did not reply improperly on any evidence adduced of a
    prior consistent statement.  Read in the context of the submissions at trial,
    we are satisfied that the trial judges statement that the evidence of the
    complainant was corroborated by the evidence of her friend referred to other
    aspects of the friends testimony, such as the complainants demeanour and
    conduct after the events at issue.  Further, the trial judges earlier finding
    that the complainants statement to her friend was for the most part consistent
    with the complainants trial evidence was a response to defence arguments that
    her friends testimony undermined the complainants trial evidence based on
    inconsistencies.

[3]

Second, the appellant submits that the trial judge failed to adequately
    explain why he accepted the evidence of the complainant despite inconsistencies
    and other issues in her evidence raised by the defence.  We reject this
    submission.  Although given in short compass, the trial judges reasons are
    responsive to defence arguments.  For example, he explained why he found the
    complainant credible and attributed other deficiencies in her evidence to the
    passage of time.

[4]

Third, the appellant submits that the complainants evidence that the
    appellant talked about getting his boys to come down was insufficient to
    constitute a threat.  We reject this argument.  Based on the context in which
    the words were said, it was open to the trial judge to find that a threat to
    cause bodily harm had been made.

[5]

Speaking on his own behalf, the appellant argued the trial judges
    reasons did not adequately explain why he accepted the complainants evidence.
    We reject this argument for the reasons we have given.

[6]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Giesbrecht, 2018 ONCA 822

DATE: 20181011

DOCKET: C65458

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Giesbrecht

Appellant

Michael Dineen, as duty counsel

David
    Giesbrecht, in person

Andrew Hotke, for the respondent

Heard: October 2, 2018

APPEAL BOOK ENDORSEMENT

[1]

The appellant was sentences to two years less one day imprisonment, plus
    two years probation after pleading guilty to the lesser but included offence
    of assault causing bodily harm.

[2]

We see no error in principle in the sentencing judges reasons.  Nor is the
    sentence demonstrably unfit.  The appellant sucker-punched the 55-year-old
    victim (the appellant was 23) and caused the victim significant injury.
    Although the injuries may not have been intended, this type of behaviour, which
    can lead to serious consequences, must be both deterred and denounced.  The
    warrant of committal is amended to reflect the lesser but included offence.

[3]

Appeal dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Granados-Arana, 2018 ONCA 826

DATE: 20181012

DOCKET: C61437

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Mauro Granados-Arana

Respondent

R. Posner and E. Taché-Green, for the appellant

Deborah Krick, for the respondent

Heard: October 1, 2018

On appeal from the conviction entered on April 23, 2015
    and the sentence imposed on July 23, 2015 by Justice M.D. Forestell of the
    Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant appeals his
    conviction for second degree murder. The deceased was shot and killed leaving a
    New Years Eve party. Prior to the shooting, the deceased was involved in an
    argument with two women at the party about a missing cell phone. When he
    threatened to slap one of the women and to retrieve a gun and return, the
    appellant and his friend, Baptists Bernier, confronted him outside the party.
    Four shots were fired as the deceased ran away. One of the bullets struck the
    deceased in his right upper back and caused his death. The central issue at
    trial was whether Bernier or the appellant fired the fatal shot. While one
    witness thought both men fired guns, forensic evidence suggested that only one
    gun was used.

[2]

Bernier was initially charged with
    the murder. The appellant was charged during Berniers preliminary inquiry, at
    which Bernier was committed for trial. Bernier subsequently testified as a
    Crown witness at the appellants preliminary inquiry and then pled guilty to
    being an accessory after the fact to murder. He identified the appellant as the
    shooter and stated that he observed the appellant hide the murder weapon.

[3]

The evidence of two eyewitnesses
    placed both men at the scene but was contested as to the identity of the
    shooter. It is common ground that Berniers evidence was the critical element
    in the Crowns case.

Issues

[4]

The appellant raises three grounds
    of appeal.

1.

Did the trial judge err
    by failing to instruct the jury that Berniers guilty plea could not be used as
    evidence against the appellant?

2.

Did the trial judge err
    by failing to give an adequate
Vetrovec
instruction with respect to
    Berniers evidence?

3.

Did the trial judge err
    by failing to adequately relate the evidence to the issue of intent for the
    included offence of manslaughter?

Analysis

(1)

Did the trial judge err by failing to instruct the jury that Berniers
    guilty plea could not be used as evidence against the appellant?

[5]

The trial judge did not instruct
    the jury that Berniers guilty plea to accessory after the fact to murder was
    only relevant to Berniers credibility but could not be used to determine the
    guilt of the appellant. The appellant argues that this failure prejudiced the
    appellant as the trial Crown submitted to the jury that Berniers plea was
    based on the same evidence as the jury had heard at the appellants trial. The
    appellant contends that the jury would be loath to second-guess the wisdom of
    the verdict in Berniers case and that, without a limiting instruction, there
    is a risk that the jury would use that verdict as evidence against the
    appellant. The appellant relies on
R. v. MacGregor
(1981), 64 C.C.C. (2d) 353 (Ont. C.A.), leave to
    appeal refused, [1982] S.C.C.A. No. 246, among other cases, in support of this
    argument.

[6]

We do not accept this submission.

[7]

While a caution to the jury is
    ordinarily required to ensure that the jury does not rely on the guilty plea of
    an accomplice or former co-accused, the lack of an instruction is not fatal in
    the absence of prejudice to the accused:
MacGregor
, at p. 358, followed in
R. v. Simpson
, [1988] 1 S.C.R. 3, at p. 19.

[8]

The relevance of Berniers guilty
    plea and any danger it posed in the specific circumstances of this case were
    inextricably bound up with the fact that he was a person with a motive to lie
    and to point to the appellant as the shooter. That issue was fully vetted by
    counsel and by the trial judge, a factor that this court found significant in
    reducing the risk of prejudice in
R. v. Berry
, 2017 ONCA 17, 345 C.C.C. (3d) 32, at paras. 40-41.
    For the following reasons, we conclude that the complaint the appellant now
    makes did not result in any prejudice to him.

[9]

The appellant contended at trial
    that the guilty plea was a
quid pro quo
deal with the Crown. However, Bernier denied this and there was no
    evidence to support it. Bernier did admit that he did hope to obtain some
    benefit from his guilty plea. The appellants trial counsel argued this gave
    him a motive to lie in order to escape the murder charge. The trial judge gave
    a
Vetrovec
caution, warning the
    jury in strong terms about the danger in relying on Berniers evidence given
    that possible motive. She told the jury:  I am sure it will come as no
    surprise to you that the law requires me to caution you in the strongest terms
    about the dangers of relying on the evidence of a person of [Berniers]
    background and circumstances. She cautioned the jury: Mr. Bernier may have an
    interest in testifying in a manner that minimizes his involvement in the
    offence. He may have an interest in implicating [the appellant]. She added:
    Experience has taught us that the testimony of witnesses like Mr. Bernierwho
    have an interest in gaining an advantage for themselves by implicating others
    must be approached with the utmost caution.

[10]

The trial judge also instructed
    the jury not to speculate about the nature of prior proceedings and gave a
    thorough alternate suspect instruction. The appellants trial counsel did not
    request a correction to the trial Crowns submission that Berniers plea was
    based on the same evidence as the jury had heard at the appellants trial. Nor
    did the trial judge repeat the trial Crowns submission on this point in her
    jury instructions. The trial judge also instructed the jury that it should
    ignore Berniers out-of-court statements because they did not bolster his
    reliability or credibility. In
MacGregor
, this court found that a similar instruction diminished the risk of prejudice
    from the trial judges failure to instruct on the guilty pleas of the
    co-accused persons: at p. 358.

[11]

In our view, the trial judges
    treatment of the relevance of Berniers guilty plea was tailored to the
    circumstances of the case and did not prejudice the appellant. The trial judge
    and both parties made very clear to the jury that the issue was whether the
    appellant or Bernier fired the fatal shot.

[12]

The appellant argues that the significance
    of the guilty plea was two-fold. It exculpated Bernier. And that exculpation
    had added weight because another judge had accepted the plea.

[13]

The live issue in this case was
    whether the appellant or Bernier was the shooter. It was plain from the
    evidence, the jury addresses of counsel, and the trial judges charge, that it
    was open to the jury to decide that Bernier was the shooter and not the
    appellant. There was no risk that the jury could think that somehow Berniers
    guilty plea was an impediment to finding that he was the shooter.

[14]

We are fortified in this conclusion
    by the absence of any objection or request from the appellants trial counsel
    for the instruction now sought on appeal. In addition, we note that an explicit
    guilty plea instruction was neither requested nor given at the appellants
    first trial which resulted in a hung jury. While not fatal, the lack of
    objection supports our conclusion that the failure to give this instruction did
    not result in any prejudice to the appellant: see
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

(2)

Did the trial judge err
    by failing to give an adequate Vetrovec instruction with respect to Berniers
    evidence?

[15]

As we have already noted, the
    trial judge gave the jury a strong
Vetrovec
caution. She referred to Berniers serious criminal
    record and his motive to lie as a person charged with the murder. The appellant
    complains that the trial judge failed to warn the jury that Berniers close
    involvement in the case and his access to the fruits of the police
    investigation through disclosure in his own case provided him with details
    about the crime that would allow him to tailor his evidence to falsely
    implicate the appellant.

[16]

We disagree.

[17]

In our view, the risk of Bernier
    tailoring or manipulating his evidence on account of disclosure or other
    related knowledge of the details of the case is purely speculative. He may have
    had the opportunity to tailor his evidence based on the disclosure. However, he
    denied that he had ever read the disclosure when the appellants trial counsel
    explored this issue with him during his cross-examination. The appellant came
    to a dead-end on this issue at trial and there is no factual basis to raise it
    again on appeal.

[18]

The appellant also argues that the
    trial judge erred by instructing the jury that the evidence of the two
    eyewitnesses was capable of supporting Berniers evidence. The appellant
    submits that the trial judge should have pointed out certain discrepancies
    between their evidence and Berniers, including parts of their evidence that
    implicated Bernier as the shooter.

[19]

We are satisfied that when the
    charge is read as a whole, the trial judge did explain the strengths and
    weaknesses of the evidence of the two eyewitnesses. She did not have to repeat
    that analysis when referring to confirmatory evidence in the course of her
Vetrovec
warning concerning Bernier.

[20]

We note as well that the
    appellants trial counsel conceded that the evidence of the two eyewitnesses
    was capable of supporting Berniers evidence. He did not object to the
Vetrovec
instruction.

[21]

Finally, this court has held that
    deference is owed to trial judges in how best to frame a
Vetrovec
caution. Where the trial judge gives a
Vetrovec
caution, appellate intervention will be
    warranted only where the warning given clearly failed to convey to the jury
    the appropriate degree of caution required to meet the particular
    circumstances of the case:
R. v. Zebedee
(2006), 81 O.R. (3d) 583 (C.A.), at paras 83-4, motion to extend the
    time to apply for leave dismissed, [2006] S.C.C.A. No. 461. In our view, that
    test has not been met in this case. Unlike in
R. v. Kanagalingam
, 2014 ONCA 727, 315 C.C.C. (3d) 199, where this court
    found that a
Vetrovec
warning was
    inadequate because it failed to explain the witnesses motivation to lie, here
    the trial judge fully canvassed Berniers motivation to lie.

(3)

Did the trial judge err
    by failing to adequately relate the evidence to the issue of intent for the
    included offence of manslaughter?

[22]

The trial judge ruled she would
    leave the jury with manslaughter as a possible verdict, even though the number
    of shots fired and the fact that the deceased was struck in the back made it
    quite unlikely that the jury would not find the requisite intent for murder
    if they concluded that the appellant was the shooter. The appellant, relying on
R. v. MacKinnon
(1999), 43 O.R.
    (3d) 378 (C.A.), at pp. 386-387, complains that the trial judge erred by
    failing to provide the jury with the details of the evidence that could lead to
    a manslaughter verdict.

[23]

The trial judge provided the
    following instruction:

You have [the firearms experts] evidence that a gun would not
    have accidently discharged and that a considerable amount of pressure on the
    trigger was necessary to fire the gun each time. On the other hand, it is open
    to you to have a reasonable doubt based on a combination of factors, including
    the ingestion of drugs, the words of [the deceased], that He was going to get
    his ting, or a gun, the spontaneous nature of the confrontation and the fact
    that the fatal shot was fired from a considerable distance in a manner that,
    according to [the firearms expert], may have made accuracy difficult.

If those factors either
    individually or in combination leave you with a reasonable doubt as to whether
    he had either of the states of mind for murder then [the appellant] is entitled
    to the benefit of that doubt and you will return a verdict of manslaughter.

[24]

The appellant complains that this
    instruction was inadequate and that a more thorough review of the evidence
    capable of supporting a verdict of manslaughter was required. The appellant
    placed particular emphasis on evidence of two gouge marks in the pavement that
    could have indicated that two shots were fired into the ground rather than at
    the deceased.

[25]

We agree with the trial judge and
    the Crown that there was little possibility on this record that if the jury
    concluded the appellant was the shooter, he lacked the intent for murder. Four
    shots were fired in the direction of the deceased. The first ricocheted off the
    sidewalk and hit the deceased in the knee and the other three shots were fired
    in his direction as he ran away. We note that the appellants trial counsel did
    submit to the jury that manslaughter was a viable alternative verdict and
    referred to the evidence that could support that verdict. It is significant
    that he did not include the evidence of the gouge marks that the appellant
    relies upon on appeal.

[26]

While the trial judges review of
    the evidence supporting manslaughter was brief and less than complete, we are
    satisfied that, when read together with the closing submissions, her summary
    captured the essential facts that could have led to a manslaughter verdict.
    When the Crown objected to the draft instruction on manslaughter the
    appellants trial counsel asked the trial judge to leave it in or perhaps even
    reinforce it a bit. He did not object when the trial judge declined to
    reinforce it, and hence, took a position more or less accepting the instruction
    that was given.

Disposition

[27]

For these reasons, the appeal is dismissed

Robert J. Sharpe J.A.

P. Lauwers J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Holdsworth, 2018 ONCA 828

DATE: 20181016

DOCKET: C62505

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathan Holdsworth

Appellant

Matthew Gourlay, appearing as duty counsel

Nathan Holdsworth, in person

Jessica Smith Joy, for the Crown

Heard: October 4, 2018

On appeal from the conviction entered on April 11, 2016,
    and the sentence imposed on July 15, 2016, by Justice F.E. McWatt of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to several charges relating to events that
    occurred on October 24, 2014, including possession of a loaded prohibited
    firearm. Following a jury trial on charges relating primarily to events that
    occurred on October 21, 2014, the appellant was acquitted of attempted murder
    but found guilty of discharging a firearm with intent to endanger life and
    pointing a firearm. The appellant was sentenced to ten years imprisonment less
    32 months credit for pre-sentence custody, leaving a total sentence of 7 years
    4 months imprisonment.

[2]

The October 21, 2014 charges related to a shooting that occurred in an
    apartment. The victim did not testify at trial, but medical evidence indicated
    he was shot in the chest. Along with the victim, the appellant was present in
    the apartment with three other men. Two of the men gave evidence indicating the
    appellant was armed with a revolver with a brown handle at the time of the
    shooting. Their evidence also implicated him in the shooting. The appellant did
    not testify at trial. However, he took the position through counsel that the
    shooter was one of the two witnesses who implicated him and who was standing
    behind the victim at the time of the shooting.

[3]

On a preliminary severance motion brought by the appellant, the
    Crown took the position that the gun the appellant had in his possession on
    October 24, 2014, namely, a black semi-automatic handgun with a brown handle,
    could have been the same gun witnesses said he had on October 21, 2014. The
    Crown submitted that that possibility had to be left with the jury and, if
    accepted, could be used to substantiate the appellants involvement in the
    shooting  whereas if the jury did not accept that possibility, any prejudice
    arising from the evidence of the appellants possession of a gun of October 24,
    2014 could be addressed by a clear propensity instruction from the trial judge.

[4]

The evidence emerged somewhat differently at trial. Based on the trial evidence,
    the Crown submitted to the jury that the semi-automatic handgun the appellant
    had on October 24, 2014 was descriptively identical to a gun the victim had
    on October 21, 2104. At trial, at least one witness (the witness the appellant
    asserted was the shooter) testified that following the shooting, the appellant searched
    the victim, took his handgun and gave it to a third man who later gave it back
    to the appellant.

[5]

On appeal, duty counsel, on behalf of the appellant, argues that the
    trial judge erred by failing to give a limiting instruction with respect to the
    use the jury could make of the evidence of the appellants possession of a handgun
    at the time of his arrest. In his submission, the jury ought to have been
    instructed that the appellants possession of a handgun on the day of his
    arrest, some three days after the shooting, does not mean that he is the type
    of person who would have gotten angry and shot the victim. Further, the jury
    should have been told that if they found the handgun was not the victims gun,
    they should not consider the evidence that the appellant was in possession of a
    gun.

[6]

We reject this submission. As we have noted, there was evidence led at
    trial that the handgun found in the appellants possession on the date of his
    arrest matched the description by two witnesses at trial of the handgun allegedly
    taken (at least according to one of the witnesses) by the appellant from the victim
    immediately following his being shot. The evidence about the October 24, 2014 handgun
    was, therefore, highly relevant evidence as it could connect the appellant to
    the shooting and was potentially corroborative of the testimony of the two
    witnesses to the shooting  in particular, the witness who testified that the
    appellant took the victims gun (the same witness the appellant claimed was the
    shooter). Corroboration of the testimony of the two witnesses was important
    given that the jury had been given a
Vetrovec
warning with respect to
    their testimony. Further, in the context of the evidence that emerged at trial,
    the evidence that, on October 24, 2014, the appellant was in possession of a
    handgun similar to the victims handgun became part of the narrative of the
    events. It was not relevant simply because it was evidence of the appellant
    having a gun that could have been the gun he had on October 21, 2014  as had
    been the case on the severance motion. Moreover, it was not evidence of totally
    unrelated discreditable conduct.

[7]

Considering the evidence in context, we see no realistic possibility the
    jury would have engaged in improper propensity reasoning. Neither the Crown nor
    the trial judge suggested to the jury any improper use of the evidence. This
    case came down to the impact of the medical evidence and whether the jury
    accepted the evidence of the two
Vetrovec
witnesses. We see no air of
    reality to the suggestion that the jury made impermissible use of the evidence
    concerning the appellants possession of a gun on October 24, 2014 in reaching
    their verdict. In the circumstances of this case, we have concluded that the
    failure to give the caution did not amount to material misdirection or
    non-direction.

[8]

Although defence counsel at trial told the jury to expect a direction on
    improper propensity reasoning and outlined that caution to the jury, defence counsel
    did not raise any objection when the trial judge did not include such a caution
    in her charge to the jury.

[9]

For these reasons, the conviction appeal is dismissed. The appellant did
    not make any oral submissions on sentence. We see no basis on which to
    interfere with the sentence imposed by the trial judge. As a result, leave to
    appeal sentence is granted, but the sentence appeal is also dismissed.

Janet Simmons J.A.

Paul Rouleau J.A.

Grant Huscroft J.A.


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. Hussaini, 2018 ONCA 860

DATE: 20181024

DOCKET: C65733

Doherty, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sajjad Hussaini

Appellant

Bryan Badali, for the appellant

Carmen Elmasry, for the respondent

Heard: October 24, 2018

On appeal from the sentence imposed on October 20, 2014
    by Justice Heather E. Perkins-McVey of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is allowed and the sentence is varied to 133
    days.