COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Debassige, 2021 ONCA
    484

DATE: 20210702

DOCKET: C66290

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Debassige

Appellant

Richard Litkowski and Jessica Zita
, for the appellant

Gregory J. Tweney
, for the respondent

Heard: March 4, 2021 by video conference

On appeal from the
    conviction entered by Justice W. Danial Newton of the Superior Court of
    Justice, sitting with a jury, on May 25, 2017.

Watt J.A.:

[1]

A few days before Christmas, Monica Spence and
    Daniel Debassige (the appellant) were drinking wine at Richard Spence's (the
    deceased) apartment in Thunder Bay. Feeling the effects of the wine and percs
    she had consumed over several hours, Ms. Spence lay down on the deceased's bed.
    She was fully clothed.

[2]

Sometime later, Ms. Spence was awakened by
    someone pounding at the apartment door. The deceased was on top of her. They were
    on the living room couch. Ms. Spence had no clothes on below her waist. Apparently,
    no one else was in the apartment.

[3]

Ms. Spence pushed the deceased off her. She
    punched and kicked him. She tried to escape. The deceased tried to prevent her
    from leaving his apartment. Ms. Spence did escape. She ran out of the
    apartment, naked from the waist down.

[4]

Later the same day, the deceased was found dead
    on the floor in his bedroom. A police investigation followed. Ms. Spence and
    the appellant were charged with second-degree murder.

[5]

Ms. Spence and the appellant were tried
    together. The jury found Ms. Spence guilty of manslaughter and the appellant
    guilty of second-degree murder.

[6]

The appellant appeals against his conviction.
    The reasons that follow explain why I would dismiss the appeal and affirm the
    conviction.

The Background Facts

[7]

The principal grounds of appeal allege errors in
    the charge to the jury. Those grounds do not require an elaborate recitation of
    the evidence adduced at trial. However, the appellant also contends that the
    jury's verdict was unreasonable. A brief overview of the essence of the case as
    it unspooled before the jury will provide the background necessary to
    understand the claims of error advanced.

The Principals

[8]

The appellant and his co-accused, Ms. Spence,
    had been in a relationship for several years. Ms. Spence had known the deceased
    for nearly two decades, and she often drank alcohol with the deceased, together
    with several others.

[9]

Evidence was introduced at trial that the
    deceased had sexually assaulted Ms. Spence several years before his death. In
    her testimony at trial, Ms. Spence explained that she had put those previous
    events behind her and had forgiven the deceased, who had admitted his
    responsibility.

The Morning Visit

[10]

Ms. Spence and the appellant had sexual
    intercourse on the morning of December 20, 2014. The appellant did not wear a condom.
    Ms. Spence then called the deceased. She asked the deceased whether he had bus
    fare for her and the appellant. The deceased agreed to provide it.

[11]

The appellant and Ms. Spence went to the
    deceased's apartment later that morning. The deceased gave the couple four
    dollars. He also offered them something to drink. Later that morning, a cousin
    of the deceased called. He and the deceased spoke on the phone. The cousin also
    spoke with Ms. Spence. He heard another male voice, not that of the deceased,
    in the background.

The Afternoon

[12]

As morning gave way to afternoon, the deceased, Ms.
    Spence and the appellant continued to drink wine in the deceased's apartment. Ms.
    Spence had been to the apartment several times previously, but this was the
    first time the appellant had been there. Ms. Spence also consumed some percs.

[13]

At some point, the appellant left the deceased's
    apartment. Ms. Spence remained there. She and the deceased were alone.

Monica Spence Becomes Intoxicated

[14]

During the afternoon, Ms. Spence began to feel wobbly
    as she stood up in the deceased's apartment. She fell and struck her head on
    the table. Her nose began to bleed. She decided to lie down. She went into the
    deceaseds bedroom and lay down on the bed. She was fully clothed. She passed
    out.

The Awakening

[15]

Sometime later, a banging on the door to the
    deceased's apartment awakened Ms. Spence. She was no longer on the bed in the
    deceased's bedroom. She was no longer wearing all her clothes. She was on the
    couch in the deceased's living room. She was naked from the waist down. And the
    deceased was on top of her.

The Altercation

[16]

Ms. Spence pushed the deceased off her onto the
    floor. She punched and kicked him. She tried to escape. The deceased tried to
    prevent her from escaping. The struggle continued.

The Dark Figure

[17]

As Ms. Spence made her way to and through the
    door to the deceased's apartment, she saw a dark figure standing outside the
    door. She did not recognize this person. It appeared to be a man. It could have
    been the appellant. But she was not sure.

The Escape

[18]

When Ms. Spence fled from the apartment, the
    deceased remained inside and alive. As she left the building, Ms. Spence was
    naked from her waist down. It was December 20, 2014. In Thunder Bay.

The Appellant and Ms. Spence Meet

[19]

At some point later, Ms. Spence met the
    appellant outside an Italian bar, a short distance from the deceased's
    apartment. The appellant did not say how he came to be outside the bar. The
    appellant did not ask Ms. Spence, his partner, why she was wearing no clothes
    from her waist down.

The Finding of the Deceased

[20]

Edward Finlayson, a lifelong friend of the
    deceased, had been at the local casino. He walked over to the deceased's
    apartment so he could go to sleep. He knocked on the apartment door and called
    out to the deceased. He got no response. He checked a local bar the deceased
    frequented. Again, no sign of the deceased.

[21]

Mr. Finlayson returned to the deceased's
    apartment. He knocked again, then tried the door. It was unlocked. He went
    inside. He walked to the fridge to get a drink. He saw a trail of blood. Then
    he thought he saw the deceased on the bedroom floor. He left the apartment to
    return to the casino in search of the police.

[22]

At the casino, Mr. Finlayson encountered a
    cousin of the deceased, and the two of them located the deceaseds sister. Mr.
    Finlayson explained what he had seen at the deceaseds apartment. The
    deceaseds sister called 911, and the three of them drove to the deceased's
    apartment. They went inside.

[23]

Inside the apartment, the deceased's cousin
    noticed liquor bottles and blood on the floor. He and the deceaseds sister
    went into the bedroom. There they saw the deceased, face down on the floor. His
    pants were down. He was unresponsive. Emergency personnel arrived.

The Admissions of the Appellant

[24]

Ellen Marratt lived near the appellant. She had
    known the appellant and Ms. Spence for over three years. As she was outside her
    home smoking a cigarette, the appellant walked by. It was the evening of
    December 20, 2014. They greeted each other briefly. The appellant then said
    that he had killed a rapist. Ms. Marratt did not believe the appellant, nor ask
    him any questions about what he had said.

[25]

A second witness gave similar evidence. Diane
    Hanson and the appellant lived in the same boarding house. She testified that in
    the afternoon on the day the deceased was killed, the appellant returned home.
    He told Ms. Hanson that he had killed a rapist. He said he had entered the
    deceased's apartment. There he saw the deceased and Ms. Spence, both in a state
    of undress. He then got into an altercation with the deceased. The appellant
    then left the boarding house.

[26]

Later the same day, the appellant returned to
    the boarding house. Ms. Spence was with him. She was intoxicated and had blood
    on her nose. Ms. Hanson heard the appellant say to Ms. Spence, [N]obody was,
    he was never gonna touch her, or her grandchildren, or her daughter, or
    whatever, again. Ms. Hanson did not provide this information to the police
    during any of three interviews. She only did so around the time of the
    appellant's arrest.

The Admissions of Ms. Spence

[27]

The jury also heard evidence of some admissions
    that witnesses attributed to Ms. Spence. While not admissible against the
    appellant at their joint trial, these admissions provide some background to the
    narrative of events.

[28]

Donald Churchill was a friend of both Ms. Spence
    and the deceased. He had met the appellant a few times. He called Ms. Spence when
    he saw police officers outside the deceased's apartment. Ms. Spence came over
    to Mr. Churchill's apartment.

[29]

Mr. Churchill testified that Ms. Spence said, Don,
    I think, um, that was me that did it to, uh, Richard. Ms. Spence explained
    that she woke up with the deceased on top of her, sexually assaulting her. She
    pushed, punched and kicked the deceased before fleeing the apartment. When she
    left, the deceased was coherent, yelling at her as she fled.

[30]

Christine Churchill is Mr. Churchill's sister.
    She spoke to Ms. Spence after Ms. Spence had talked to her brother. Ms. Spence
    said that she woke up with her pants off, but she did not say whether she had
    been sexually assaulted. Later, Ms. Spence indicated that she had stomped on
    the deceased's head or something.

The Forensic Evidence

[31]

A forensic biologist examined samples of body
    fluids found at or on items located at the scene of the deceased's death. The
    appellant could not be excluded as the source of DNA found in blood smears
    located on pillars leading into the deceased's apartment. Nor could he be
    excluded as the source of semen located in boxer shorts from Ms. Spence or a
    penile swab taken of the deceased. These latter findings could have been the
    result of transfer from Ms. Spence, with whom the appellant had engaged in
    unprotected sex before the couple arrived at the deceased's apartment.

[32]

A bloodstain pattern analyst, who reviewed
    photographs of the scene and reports from investigators who had attended there,
    explained that patterns of staining found on the floor, door, walls and sheets
    revealed that the deceased was likely struck where his body was found.

The Cause of Death

[33]

A forensic pathologist concluded that the
    deceased died from blunt impact facial trauma with aspiration of blood. The
    deceased was in a state of acute ethanol intoxication when he died, as well as
    coronary artery, or coronary atherosclerotic and hypertensive heart disease. At
    death, the deceased's blood alcohol concentration was 270 mg of alcohol in 100
    ml of blood. A person with such a blood alcohol concentration might stagger and
    be lethargic.

[34]

The deceased had suffered 74 separate injuries,
    two-thirds of which were to his neck and head. There was an extensive
    hemorrhage from his left temple and a small hemorrhage to the right side of his
    brain. Some of the injuries could have been caused by a fall, but neither a
    single fall nor several falls could explain all the injuries, especially those
    around his head.

The Grounds of Appeal

[35]

The appellant urges five grounds of appeal. He
    contends that the trial judge erred:

i.

in instructing the jury on the statutory partial
    defence of provocation in accordance with a provision that was inapplicable to
    the offence charged;

ii.

in failing to instruct the jury in express terms
    that intoxication negates the fault element required to be proven to make an
    unlawful killing murder;

iii.

in failing to fully and fairly put the defence position to the jury;
    and

iv.

in failing to provide a
W.(D.)
instruction
with respect to the appellant's defence.

[36]

The final ground of appeal is that the verdict
    of the jury was unreasonable.

Ground #1: The Jury Instruction on Provocation

[37]

This ground of appeal does not require any
    further reference to the evidence adduced at trial. A snapshot of the recent
    procedural history of s. 232(2) of the
Criminal Code
, R.S.C. 1985, c. C-46
is sufficient
    prelude for what follows.

The Procedural Background

[38]

The offence charged was alleged to have occurred
    on December 20, 2014. At that time, the provoking conduct requirement in s.
    232(2) of the
Criminal Code
was expressed as [a] wrongful act or an insult.
    Neither constituent was defined in or for the purposes of the provision.

[39]

On July 17, 2015, an amendment to s. 232(2) came
    into force. It replaced [a] wrongful act or an insult with [c]onduct of the
    victim that would constitute an indictable offence under this Act that is
    punishable by five or more years of imprisonment. The objective and subjective
    standards or tests in the subsection remained unchanged. The amending
    legislation contained no transitional provisions with respect to s. 232:
Zero
    Tolerance for Barbaric Cultural Practices Act
, S.C. 2015, c. 29.

[40]

The appellants trial was held in May 2017. At
    the pre-charge conference, it was common ground that the instructions on
    provocation should accord with the amended legislation. The charge, delivered
    on May 24, 2017, followed this course.

The Charge to the Jury

[41]

In instructing the jury on provocation, the
    trial judge described the provocative conduct as the deceaseds sexual assault
    and unlawful confinement of Ms. Spence. He told the jury that both sexual
    assault and unlawful confinement were indictable offences punishable by
    imprisonment for five or more years.

[42]

No objection was taken to this or any other
    aspect of the trial judges instruction on provocation.

The Arguments on Appeal

[43]

The appellant says that the trial judge erred in
    instructing the jury on the post-amendment standard for provocative conduct. In
    the absence of any contrary legislative provisions, the common law presumes
    legislation does not apply retrospectively to events or conduct that occurred
    before the legislation came into force. It is all the more so where the
    legislation, as here, is substantive in nature. Like the legislation amending
    the statutory justification of self-defence, this legislation amending the
    statutory partial defence of provocation is, by nature, substantive. Absent a
    specific statutory provision or a discernible legislative intent of Parliament
    to have the legislation apply retrospectively, the legislation applies
    prospectively only. In this case, that means that the trial judge erred in
    charging the jury based on the amended legislation, as the relevant events took
    place before the amending legislation came into force.

[44]

This error, the appellant continues, was
    prejudicial to the defence at trial. The new standard for provocative conduct
    is much narrower than the former, more limitative of the range of conduct that
    may engage the defence. In this case, the Crown did not accede to the defence
    assertion that a sexual assault had occurred, thus leaving the issue at large
    for the jury to decide.

[45]

The respondent acknowledges that the trial judge
    erred in instructing the jury on the post-amendment standard for provocative
    conduct. But, the respondent says, this error caused the appellant no prejudice
    in the circumstances of this case.

[46]

The respondent asks us to recall the defence
    position as advanced in the closing address of trial counsel. It had several
    components. The deceased died by accident. The appellant was not there when the
    deceased died. In the alternative, the appellant acted in lawful defence or
    protection of his intimate partner, Ms. Spence, who was being sexually
    assaulted by the deceased. Or in the further alternative, the appellant was
    provoked by the deceased's sexual assault of Ms. Spence, such that his unlawful
    killing of the deceased was manslaughter, not murder.

[47]

In this case, the respondent continues, the
    trial judge told the jury that both sexual assault and unlawful confinement met
    the standard required for provocative conduct. It would have been equally the
    case had the standard been [a] wrongful act or an insult, as it should have
    been. The critical question was whether this conduct, as alleged by Ms. Spence,
    ever occurred and satisfied the objective standard for provocation. This would
    have been no different had the correct characterization of the engaging conduct
    been applied. The appellant suffered no prejudice.

The Governing Principles

[48]

Two sources of principle control our decision on
    this ground of appeal. The first has to do with the temporal application of
    amending legislation to existing prosecutions when Parliament has not enacted
    any transitional provisions. The second concerns the nature and extent of the
    amendment to the threshold standard for the statutory partial defence of
    provocation.

[49]

As a matter of general principle, legislation
    affecting substantive rights is presumed to have prospective effect unless it
    is possible to discern a clear legislative intent that it apply
    retrospectively. On the other hand, new procedural legislation designed to
    govern only the manner in which rights are asserted or enforced, which does not
    affect the substance of the rights, applies immediately to pending and future
    cases:
R. v. Dineley
, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10;
R.
    v. Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, at para. 40.

[50]

The amendment in this case relates to the
    statutory partial defence of provocation. In particular, the amendment alters
    an essential element of the defence  the threshold requirement of provocative
    conduct. In place of the former [a] wrongful act or an insult, the amendment
    substitutes a narrower range of conduct that may constitute provocation. The
    objective and subjective standards the provocative conduct must meet remain the
    same.

[51]

In recent years, Parliament also amended the
    statutory justifications of self-defence and defence of property. A single
    section for each replaced several provisions often criticized for their
    complexity. As here, the amending legislation was bankrupt of any transitional
    provisions. These amendments were held to be substantive in nature. Nothing in
    the legislation suggested any intention on the part of Parliament to have the
    legislation apply retrospectively. Thus, the presumption against retrospective
    application applied and the amendments operated prospectively only:
Benjy
,
    at paras. 50, 31, 67 and 71.

[52]

Turning to the nature and effect of the
    amendments to s. 232(2) themselves.

[53]

Provocation is a statutory partial defence to
    murder. When applicable, provocation reduces what otherwise would be murder to
    manslaughter:
Criminal Code
, s. 232(1). Provocation, as a statutory
    defence, has nothing to do with the mental or fault element in murder, since
    murder must be proven first before the statutory partial defence can become
    engaged:
R. v. Bouchard
, 2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 60,
    affd 2014 SCC 64, [2014] 3 S.C.R. 283;
R. v. McGregor
, 2019 ONCA 307,
    145 O.R. (3d) 641, at para. 149.

[54]

The statutory partial defence of provocation
    consists of three essential elements:

i.

provocative conduct;

ii.

an objective standard; and

iii.

a subjective standard.

The provocative conduct must satisfy
    both the objective and subjective standards for the defence to reduce murder to
    manslaughter.

[55]

The amendment to s. 232(2) with which we are
    concerned relates to the provocative conduct element of the defence.

[56]

Under the now repealed s. 232(2), the provoking
    conduct required to engage the defence was [a] wrongful act or an insult. Neither
    wrongful act nor insult was defined. Despite the absence of clearly defined
    boundaries for [a] wrongful act, however, no one would deny that the
    commission of an indictable offence punishable by imprisonment for five years
    or more by the victim would meet this standard. Whatever may be the outer
    reaches of wrongful act, the term would seem to include an unlawful act, a criminal
    offence under the
Criminal Code
.

[57]

The only change to the statutory partial defence
    of provocation made by the amendment to s. 232(2) with which we are concerned
    has to do with the threshold requirement of provocative conduct. Instead of [a]
    wrongful act or an insult, the subsection requires conduct by the victim that
    would constitute an indictable
Criminal Code
offence punishable by
    imprisonment for five years or more. The balance of the section, which requires
    that the provocative conduct meet both an objective and a subjective standard,
    remains unchanged.

The Principles Applied

[58]

Despite my conclusion that the trial judge erred
    in instructing the jury in the statutory partial defence of provocation, I
    would not give effect to this ground of appeal. In the circumstances of this
    case, the error was harmless.

[59]

The amendment to s. 232(2) substituted a new
    formula for determining what constitutes provocative conduct for the purposes
    of the statutory partial defence of provocation. This affects a substantive
    right, the scope of a defence, albeit partial, to a charge of murder. Such an
    amendment is, by nature, substantive. As a substantive provision, the amendment
    is subject to the presumption against retrospective operation absent any
    evidence of a legislative intention to the contrary. No such contrary intention
    is suggested. None appears.

[60]

In the result, I agree with counsel on both
    sides that the trial judge erred in instructing the jury in accordance with the
    current version of s. 232(2), rather than its predecessor which required that
    the provocative conduct be [a] wrongful act or an insult.

[61]

However, I am satisfied that in the
    circumstances of this case, the error was harmless.

[62]

First, the nature of the allegedly provocative
    conduct in this case.

[63]

The provocative conduct alleged in this case
    consisted of the commission of two criminal offences: sexual assault and
    unlawful confinement. When prosecuted on indictment, each is punishable on
    conviction by a term of imprisonment of more than five years. As criminal offences,
    the victims conduct would also constitute [a] wrongful act for the purposes
    of the former s. 232(2). In other words, this is a case in which the allegedly
    provocative conduct would have been left to the jury as the basis for the
    partial statutory defence under the applicable version, the former s. 232(2).

[64]

Second, in his final instructions, the trial
    judge told the jury that the allegations of sexual assault and unlawful
    confinement amounted to conduct that constituted an offence punishable under
    the
Criminal Code
by five or more years of imprisonment. The trial
    judge went on to identify both the objective and subjective standards the
    conduct must meet for the defence to reduce proven murder to manslaughter. The
    instructions on those issues are not affected by the error in the provocative
    conduct requirement and are not the subject of complaint here.

[65]

The trial Crown disputed that a sexual assault
    or unlawful confinement had occurred and that it met either standard essential
    to the statutory partial defence. But that dispute likely would have also
    occurred had [a] wrongful act or an insult been the governing characterization.
    That the applicable characterization was not applied caused no prejudice to the
    appellant.

[66]

Third, trial counsel were provided ample
    opportunity to review the proposed charge before it was delivered. No one
    raised any objection about how the threshold issue  the characterization of
    provocative conduct itself  was left to the jury.

[67]

In the result, what occurred here when the wrong
    qualifying requirements of provocative conduct were left with the jury was
    harmless error. The evidence adduced reveals no conduct beyond the alleged
    sexual assault and unlawful confinement that would have been captured by [a]
    wrongful act or an insult but was beyond the borders of the current
    formulation.

Ground #2: The Instruction on Intoxication

[68]

The second ground of appeal also alleges a fatal
    omission in the charge to the jury. As with the first ground of appeal, this
    submission relates to an issue on which the trial judge instructed the jury.
    But, unlike the first ground of appeal, the issue to which this claim of error
    relates was not the focus of the multi-faceted position advanced to the jury by
    trial counsel.

[69]

A brief reference to the charge to the jury will
    furnish the background necessary to an understanding of the error alleged and
    an assessment of its impact.

The Charge to the Jury

[70]

The trial judge instructed the jury on the mental
    or fault element the Crown was required to prove beyond a reasonable doubt
    before the appellant (or Ms. Spence) could be found guilty of second-degree
    murder. The instruction included reference to the common-sense inference of
    intention from conduct and the relationship between evidence of intoxication and
    the availability of that inference in proof of the fault or mental element. The
    trial judge made it clear that, in determining whether to draw the inference,
    the jury was required to consider all the evidence, including evidence of
    impairment and intoxication from drug and alcohol consumption.

[71]

The trial judge also devoted several pages of
    the charge to intoxication. After repeating the fault element required to make
    an unlawful killing murder, the trial judge instructed the jury in these terms:

To decide whether Crown counsel has proven
    beyond a reasonable doubt that Monica Spence and or Daniel Debassige had the
    state of mind required for second degree murder, you should take into account
    the evidence about her and or his consumption of alcohol and drugs, along with
    the rest of the evidence that throws light on her and or his state of mind at
    the time the offence was allegedly committed.

[72]

The trial judge also included evidence of
    alcohol and drug consumption, together with evidence of anger and instinctive
    reaction, in a rolled-up instruction in connection with proof of the mental
    or fault element required for murder.

The Arguments on Appeal

[73]

The appellant acknowledges that the trial judge
    did instruct the jury on the issue of intoxication based on the evidence of Ms.
    Spence about the consumption of alcohol and drugs over a period of several
    hours on December 20, 2014. But the appellant says the instructions given were
    deficient in that they failed to include an express direction that a finding
    that the appellant was intoxicated when he unlawfully killed the deceased would
    require the jury to return a verdict of manslaughter. This failure, despite the
    inclusion of a rolled-up instruction, essentially deprived the appellant of a
    manslaughter verdict.

[74]

The respondent accepts that the evidence adduced
    warranted an instruction about the legal effect of evidence of intoxication on
    proof of the mental or fault element required to establish an unlawful killing
    as murder.

[75]

In this case, the respondent points out, the
    trial judge provided counsel with copies of his proposed charge. Apart from
    some minor comments about the use of footnotes, trial counsel for the appellant
    and his co-accused were content with the proposed instruction. In these
    instructions, the trial judge dealt with the obligation of the Crown to prove
    the mental or fault element in murder in three ways. He explained the substance
    of the element. He directed the jury to consider all the evidence, including
    but not only evidence of intoxication, in determining whether the Crown had
    proven the required fault element beyond a reasonable doubt. And he
    specifically told the jury about the legal effect of evidence of intoxication
    on proof of the fault element both on its own and as part of the combined
    effect of several factors.

The Governing Principles

[76]

Three sources of principle help us assess this
    ground of appeal.

[77]

The first involves the effect of evidence of an
    accuseds intoxication on proof of the fault element in murder.

[78]

It is uncontroversial that a jury should be
    instructed that they are to consider evidence of an accuseds consumption of
    alcohol and drugs, together with evidence of the other circumstances
    surrounding an unlawful killing, in deciding whether the Crown has proven the
    mental or fault element required for murder beyond reasonable doubt:
R. v.
    Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 48;
R. v. Robinson
,
    [1996] 1 S.C.R. 683, at paras. 48-49.

[79]

It is commonplace for jurors to be instructed
    that in deciding whether the mental or fault element in murder has been proven
    beyond a reasonable doubt, they are entitled to rely on the common-sense
    inference that a person intends the natural and probable consequences of their
    acts. However, the jurors must also understand that the inference can only be
    drawn after they have considered the whole of the evidence, including evidence
    of the accused's consumption of alcohol and drugs:
Daley
, at para. 58;
R. v. Seymour
, [1996] 2 S.C.R. 252, at para. 23.

[80]

The second relates to the rolled-up instruction.
    The purpose of the rolled-up instruction is to advise the jury not to take a
    compartmentalized approach to the evidence by considering it only in connection
    with a discrete defence, such as intoxication. The rolled-up instruction
    ensures that the jury understands that the probative value of evidence, for
    example of intoxication, is not spent simply because they reject the
    substantive defence to which it relates. Insufficient on its own to raise a
    reasonable doubt about proof of the mental or fault element in murder, evidence
    of intoxication may gain sufficient strength, when combined with other
    evidence, to do so:
Robinson
, at para. 59;
R. v. Phillips
,
    2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 155. No specific word formula need
    be followed to convey this principle to the jury:
Phillips
, at para.
    160.

[81]

The final point relates to the principles
    governing appellate review of the adequacy of jury instructions.

[82]

Appellate courts are instructed to adopt a
    functional approach in our review of jury instructions. Our purpose is to
    ensure that the jury has been properly instructed, not perfectly instructed.
    Instructions are proper if, when considered as a whole in the context of the
    trial in which they were given, they leave the jury with an adequate
    understanding of the applicable legal principles and the evidence relating to
    the issues that require their decision:
R. v. Jacquard
, [1997] 1 S.C.R.
    314, at paras. 2, 32 and 62;
Daley
, at para. 58. In assessing the
    adequacy of the instructions, we may consider counsel's failure to object,
    especially where the proposed instructions were provided to counsel in advance
    of their delivery:
Jacquard
, at paras. 36-38.

The Principles Applied

[83]

I would reject this ground of appeal.

[84]

The trial judge explained to the jury the mental
    or fault element the Crown was required to prove beyond a reasonable doubt
    before the jury could find the appellant guilty of second-degree murder. The
    judge explained this element in detail and emphasized that the jury was to
    consider all the evidence in deciding this issue. This evidence, the trial
    judge expressly pointed out, included evidence of intoxication from the
    appellant's consumption of alcohol and drugs.

[85]

The trial judge defined for the jury the role of
    the common-sense inference of intention in proof of the mental or fault element
    in murder. He described the permissive nature of the inference and the
    relationship between evidence of intoxication and the availability of the
    inference in proof of this element.

[86]

In several pages of the charge, under the
    heading Intoxication, the trial judge advised the jury of the legal effect of
    evidence of intoxication on proof of the mental or fault element, the
    distinguishing feature between murder and manslaughter. Intoxication was linked
    to proof of the appellant's actual state of mind.

[87]

To ensure that the jury did not take a
    compartmentalized approach to the evidence of intoxication, the trial judge
    also included a rolled-up instruction with intoxication as one of its
    components. This made it clear to the jury that even if evidence of
    intoxication on its own did not raise a reasonable doubt about proof of the
    essential mental or fault element, the jury understood that they had to decide
    whether it did so when combined with other evidence.

[88]

Trial counsel was provided with the proposed
    charge in advance. Neither then nor after delivery was any objection raised to
    what is now said to have been a fatal omission.

Ground #3: Failure to Review the Position of the Defence

[89]

The appellant also contends that the trial judge
    failed to adequately review the position of the defence as it was put forward
    by trial counsel.

[90]

Although this ground of appeal does not require
    any recitation of the evidence adduced at trial, it is informed by a brief
    reference to the concluding moments of the trial when counsel discussed the
    contents of the charge and addressed the jury and the trial judge delivered his
    charge.

The Essential Background

[91]

This was a joint trial. Ms. Spence testified in
    her own defence. The appellant neither testified nor called evidence. As a
    result, defence counsel addressed the jury first, followed by the Crown.

The Pre-Charge Conference

[92]

Before counsel gave their closing addresses, the
    trial judge discussed with them what he proposed to include in his charge.
    Counsel had been provided with drafts of the proposed instructions in advance
    and had the opportunity to review them before the pre-charge conference.

[93]

At the pre-charge conference, the trial judge
    asked and received from counsel statements of their positions as they wished
    the trial judge to instruct the jury on those positions.

The Closing Addresses

[94]

In their closing addresses, all three counsel
    made extensive reference to the evidence adduced at trial and the inferences
    and findings of fact they invited the jury to draw and make from that evidence.
    The addresses were completed in a single day.

[95]

In a somewhat meandering closing address, which
    included several references to Ockhams Razor, trial counsel for the appellant (not
    Mr. Litkowski) advanced a multi-faceted defence:

i.

the deceased died by accident (repeated falls);

ii.

the appellant was not present when the deceased
    died;

iii.

in the alternative, the appellant was acting in defence of Monica Spence;

iv.

in the further alternative, the appellant was provoked by the sexual
    assault on Monica Spence.

Trial counsel asked the jury to find
    the appellant not guilty.

The Charge to the Jury

[96]

The trial judge divided his charge into several
    parts, including one part that summarized the position of each of the parties
    as counsel had earlier provided them to him. With minor language adjustments,
    the positions of each party were provided in the language of counsel's choosing.

[97]

In his canvass of the position of the appellant,
    the trial judge included references to the evidence on which trial counsel
    relied in support of his position. The judges review of the appellants
    position was the most detailed of any, about the same length as those of the Crown
    and the co-accused combined.

The Arguments on Appeal

[98]

The appellant underscores the requirement that,
    in final instructions, a trial judge must review the substantial parts of the
    evidence and clearly articulate the position of the defence, so that the jury
    appreciates the value and effect of the evidence and how the law applies to the
    facts as they may find them to be. The trial judge, the appellant says, fell
    short of this requirement. He neither accurately conveyed the defence position to
    the jury, nor did he fairly summarize the evidence that supported that
    position.

[99]

In his charge to the jury, the trial judge, the
    appellant urges, failed to mention the evidence of Ms. Spence that the
    appellant had left the deceased's apartment before the sexual assault and any
    response to it occurred. Further, there was no mention of the dark figure at
    the door as Ms. Spence fled from the apartment. She did not identify this man
    as the appellant.

[100]

The respondent contends that, applying a functional approach in
    considering the charge as a whole in light of the evidence adduced at trial,
    the charge properly equipped the jury to apply the evidence to the issues that
    required their decision.

[101]

A trial judge, the respondent continues, has a well-established
    discretion about how to organize their final instructions and how much of the
    evidence adduced at trial they will review for the jury. The extent of an
    evidentiary review is a function of the evidence adduced at trial. The trial
    judge is under no obligation to review all the evidence or repeat evidentiary
    references where the same evidence is relevant to more than one issue.

[102]

The first issue the jury was required to decide was whether the Crown
    had proven beyond a reasonable doubt that either or both accused caused the deceased's
    death. On this issue, the trial judge instructed the jury that the Crown was
    required to prove this essential element beyond reasonable doubt. The jury was
    told that they were to consider all the evidence, including but not limited to
    the testimony of the pathologist and of any witness who described the relevant
    events. The trial judge made specific reference to the evidence of Ms. Spence,
    including her testimony that the deceased seemed fine when she left.

[103]

The trial judge's instructions on the position of the defence
    reflected what trial counsel provided at the trial judge's request. It
    included, in the words of counsel's choosing, not only the position advanced,
    but also the evidence on which counsel relied. This included the testimony of Ms.
    Spence that the appellant had left the apartment before the sexual assault
    occurred and was not the dark figure outside the door as she fled from the
    apartment. The evidentiary references also included the defence position on the
    limited value of the forensic evidence linking the appellant to the scene and
    his submission about the unreliability of the testimony of his I killed a
    rapist admissions.

The Governing Principles

[104]

In addition to the principles already discussed in connection with
    the second ground of appeal, some further brief references are worthy of
    reminder.

[105]

First, the structure or organization of a jury charge is largely a
    matter within the discretion of the trial judge who is an eye and ear witness
    to the entire proceedings:
Daley
, at para. 30.

[106]

Second, applying a functional approach, we assess the adequacy of
    jury instructions in the context of the evidence adduced, the positions
    advanced and the trial proceedings taken as a whole:
R. v. Pickton
,
    2010 SCC 32, [2010] 2 S.C.R. 198, para. 10.

[107]

Third, a trial judge is under no obligation to review all the
    evidence adduced at trial in their charge, or to repeat the evidence if it
    bears on more than one issue the jury has to decide. The judge's obligation is
    to review the substantial parts of the evidence and to relate it to the issues
    raised so that the jury understands the value and effect of that evidence and
    how it applies to these issues:
Azoulay v. The Queen
, [1952] 2 S.C.R.
    495, at pp. 497-8.

[108]

Further, the extent to which a trial judge reviews the evidence in
    final instructions varies from one case to the next and resides largely within
    the discretion of the trial judge:
R. v. Rodgerson
, 2015 SCC 38,
    [2015] 2 S.C.R. 760, at para. 30;
Daley
, at para. 57; and
R. v.
    Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3.

[109]

A final point concerns the effect of a failure to refer to an item
    of evidence in final instructions. Without more, non-direction on an item of
    evidence is not misdirection. Nor does it amount to a failure to put the
    position of the defence to the jury. Non-direction on an item of evidence only
    becomes misdirection where the item of evidence omitted is the foundation of a
    defence:
Young v. R.
, [1981] 2 S.C.R. 39, at p. 56;
Thériault v. The
    Queen
, [1981] 1 S.C.R. 336, at p. 344; and
R. v. Demeter
(1975),
    25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436-37, affd on other grounds, [1978] 1
    S.C.R. 538.

The Principles Applied

[110]

I would not accede to this ground of appeal.

[111]

In this case, the trial judge first instructed the jury on their
    duties as jurors and on the general rules of law applicable in all criminal
    cases and thus to their decision at trial. The judge then turned to the
    specific legal principles that apply and explained the essential elements that
    the Crown was required to prove beyond a reasonable doubt to establish the
    guilt of the appellant and Ms. Spence of the offence charged. He described
    these elements as:

i. that Monica Spence and or Daniel Debassige
    caused Richard Spence's death;

ii. that Monica Spence and or Daniel Debassige
    were not acting in self defence or defence of another; and

iii. that Monica Spence and or Daniel Debassige
    had the state of mind required for murder.

[112]

The trial judge converted each essential element into a question,
    followed that question with the legal principles that informed the jury's decision
    on it and then reviewed some of the evidence that was relevant to the jury's
    decision on the question. He concluded his instructions on each issue with a
    reminder about the burden and standard of proof imposed on the Crown and the further
    deliberation and verdict consequences of the findings available to the jury.

[113]

The manner in which the charge was organized was an issue for the
    trial judge to determine. That another judge might have done it in another way
    is beside the point. Examined in a functional way, the charge was neither
    unorganized nor so disorganized that it failed to fairly place the position of
    the defence before the jury.

[114]

Second, the extent to which the trial judge reviewed the salient
    features of the evidence and where he located those references in the charge
    were equally issues for the trial judge to determine. The trial was brief. The
    evidence was uncomplicated. Three counsel had painstakingly reviewed the
    evidence the day before the charge was delivered.

[115]

Third, the defence position and the evidence relied on in support of
    it was more fully canvassed during the trial judge's review of the positions of
    the parties. This portion of the charge was drafted with the input and approval
    of trial counsel. It expressly recited the items of evidence the appellant now
    says were missing from other parts of the charge and linked it to the defence
    position. These references included the core elements of the defence:

i.

that the appellant had left the apartment and
    was not present when Ms. Spence was sexually assaulted;

ii.

that the forensic evidence linking him to the
    apartment and the deceased could be explained; and

iii.

that if the jury accepted that he was there, he was acting in
    defence of his partner Ms. Spence.

[116]

Finally, the appellant has not identified any specific aspect of the
    evidence the trial judge failed to mention that formed the basis of a defence
    advanced at trial. That more could have been said or parts of what was said
    repeated affords no sufficient basis for our intervention. These instructions
    adequately equipped the jurors to fulfill their obligations and attracted no
    objection from trial counsel.

Ground #4: The
W.(D.)
Instruction

[117]

This ground of appeal alleges another deficiency in the charge to
    the jury. Its focus is the testimony of the co-accused, Ms. Spence, about the
    circumstances in which she was awakened and responded to the sexual assault and
    other conduct by the deceased. More narrowly, that portion of the co-accused's
    testimony in which she said that the appellant had left the apartment before
    the deceased sexually assaulted her.

[118]

However, there was evidence that the appellant was present when the deceased
    was killed if the jury accepted the testimony of two witnesses who said the
    appellant told them I killed a rapist.

The Charge to the Jury

[119]

The trial judge included a
W.(D.)
instruction in his charge
    to the jury. That instruction related to the testimony of the co-accused, Ms.
    Spence, and her potential liability for the killing of the deceased. Even
    though her testimony was evidence for and against the appellant, the trial
    judge did not, in express terms at least, link this instruction to the issue of
    the appellant's liability.

[120]

Trial counsel for the appellant did not seek a
W.(D.)
instruction
    in relation to his client and did not object to its omission from the charge.

The Arguments on Appeal

[121]

The appellant submits that the need for a
W.(D.)
instruction
    arises even when an accused does not testify, or the defence calls no evidence.
    In this case, the obligation to provide such an instruction was engaged by the
    evidence of the co-accused, Ms. Spence, whose testimony was exculpatory of the
    appellant. This was direct evidence that the appellant was not in the
    deceased's apartment when the events leading to the deceased's death occurred.

[122]

In this case, the trial judge was required to include the appellant
    in the
W.(D.)
envelope. This meant including an instruction that, even
    if the jury did not accept Ms. Spence's testimony that the appellant was not
    present at the material time, if that testimony left them with a reasonable
    doubt about the appellant's participation, they were required to find him not
    guilty.

[123]

The respondent accepts that where credibility is the central issue
    at trial, a trial judge is required to explain the relationship between the
    assessment of credibility and the burden and standard of proof. Although the
    word formula often used to explain this relationship is that of
W.(D.)
,
    no express language is required, so long as the jury is not left, expressly or
    by necessary implication, with the impression that they are simply required to
    choose between competing versions. The jury must understand that they are only
    to find an accused guilty if the evidence, taken as whole, establishes their
    guilt beyond a reasonable doubt.

[124]

In this case, the respondent accepts, the co-accuseds evidence that
    she did not kill the deceased or cause him bodily harm that could have caused
    his death was properly the subject of a
W.(D.)
instruction. But the
    appellant did not testify or adduce evidence. A
W.(D.)
instruction was
    not sought, and its omission attracted no objection. In these circumstances, a
W.(D.)
instruction was only required when a credibility assessment required the
    resolution of conflicting evidence on a vital issue. That is not this case.
    And, in any event, a
W.(D.)
or equivalent instruction is not
    necessarily required where there is potentially exculpatory evidence, provided
    the jury is properly instructed on the burden and standard of proof and not
    left to choose between competing versions of events.

[125]

Here, Ms. Spence's testimony about the appellant's whereabouts when
    she fled the deceased's apartment, if believed, did not conflict with the
    evidence adduced by the Crown on this point. She testified that she was
    awakened by the sound of someone banging on the door. She discovered that the
    deceased was trying to have sex with her. She fought him off and ran out of the
    apartment. She noticed a dark figure outside the door. It looked like a man. It
    might have been the appellant. She ran past this person and kept running. She later
    ran into the appellant at a bar a few blocks away from the deceased's
    apartment. She did not tell the appellant what had happened, nor did he ask why
    she was not wearing any pants. Ms. Spence's testimony could not exclude the
    possibility that the man outside the door was the appellant, a version of
    events that did not conflict with the evidence from Ms. Hanson. There was no
    need for a
W.(D.)
instruction in these circumstances.

The Governing Principles

[126]

In any prosecution, irrespective of the nature of the evidence, the
    issue for the trier of fact is whether the evidence adduced, taken as a whole,
    establishes the guilt of the person charged beyond a reasonable doubt. Of
    particular importance in cases in which the evidence reveals two (or more)
    competing narratives, the trier of fact must not decide the case simply by
    choosing between the narratives presented. To do so would not be faithful to
    the burden and dilute the standard of proof.

[127]

The decision in
R. v. W.(D.)
, [1991] 1 S.C.R. 742 set out a
    series of three steps to ensure that a trier of fact remained focused on the
    principle of reasonable doubt where confronted with conflicting versions of
    relevant events:
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R. 5, at para.
    6;
W.(D.)
, at p. 758. The trial proceedings in
W.(D.)
were
    before a judge sitting with a jury, and the steps suggested an instruction to
    jurors to ensure fidelity to the burden and standard of proof. From
W.(D.)
itself and myriad decisions following its lead, it is clear that the steps need
    not be rigidly expressed by a judicial trier of fact, nor articulated in
    exactly the way that
W.(D.)
suggests to a lay trier of fact:
W.(D.)
,
    at p. 758;
R. v. S. (W.D.)
, [1994] 3 S.C.R. 521, at p. 533; and
C.L.Y.
,
    at para. 7.

[128]

The principles explained in the
W.(D.)
formula have been
    extended beyond its oath-versus-oath origins to cases in which defence evidence
    other than the testimony of the person charged has contradicted the narrative
    presented by the Crown. This includes other evidence adduced as part of the
    defence case and conflicting evidence favourable to the defence emerging in the
    case for the Crown:
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at
    para. 114;
R. v. Dayes
, 2013 ONCA 614, 301 C.C.C. (3d) 337, at para.
    52.

[129]

In each case, what is critical is not so much whether the precise
    formula proposed in
W.(D.)
has been faithfully uttered in final
    instructions to the jury, but rather whether the jury has been properly informed
    on the burden and standard of proof they are to apply in deciding whether the Crown
    has proven the essential elements of the offence charged beyond a reasonable
    doubt:
C.L.Y.
, at para. 7;
B.D.
, at para. 104.

[130]

The principles expressed in the
W.(D.)
formula underscore the
    relationship between credibility and reasonable doubt. They make it clear that
    reasonable doubt applies to credibility. In a jury instruction, this
    relationship must be explained. From what is said or left unsaid a jury must
not
be left with the impression or understanding that they are to decide the case
    according to their preference of the competing versions advanced in the
    evidence. Instead, the jury must understand that their verdict must be based on
    whether, on the whole of the evidence, they are left with a reasonable doubt
    about the guilt of the person charged.

The Principles Applied

[131]

I would reject this ground of appeal.

[132]

In this case, the trial judge properly instructed the jury on the
    burden and standard of proof, both generally and in respect of each of the two
    statutory defences  defence of another and provocation  that the appellant
    advanced as alternatives to his principal claim that he was not involved in the
    death of the deceased. Nothing said or left unsaid in those instructions would
    have left the jury with the impression that they were to decide the case by
    simply choosing one position or the other.

[133]

In accordance with the prevailing practice in this province, the
    trial judge divided the offence charged  second-degree murder  into its
    essential elements. He converted each essential element into a question, then
    explained what Crown counsel had to prove to establish the relevant element. In
    each case, the trial judge made it clear that the jury was to decide whether
    the essential element had been proven, or the related defence of defence of
    another had been disproven, by the Crown beyond a reasonable doubt based on all
    the evidence.

[134]

The evidence on which the appellant relies as the basis for a
W.(D.)
instruction is the testimony of the co-accused, Ms. Spence, that the appellant
    had left the apartment before the sexual assault by the deceased began. By
    necessary implication, this meant that the appellant did not cause the death of
    the deceased. To the opposite effect was the testimony of two witnesses each of
    whom said that the appellant told them I killed a rapist. In one instance,
    the appellant, who had a split knuckle, described returning to the deceased's
    apartment and being involved in an altercation with him.

[135]

It is open to question whether Ms. Spences testimony about the
    appellants whereabouts when she fled the deceaseds apartment, if believed,
    was of such a nature as to require a
W.(D.)
instruction. Recall that Ms.
    Spence was awakened by the sound of someone banging on the door of the deceaseds
    apartment. She discovered the deceased on top of her. Neither were fully
    clothed. The deceased was trying to have sex with her. She fought off the
    deceased and fled the apartment. As she fled, she noticed a dark figure that
    looked like a man outside the door. She did not know whether it was the
    appellant, but it could have been him. She ran past the man and kept running.
    She encountered the appellant a few blocks away from the deceaseds apartment.
    She was naked from the waist down. She did not tell the appellant what had
    happened to her at the deceaseds apartment and the appellant did not ask her
    about her state of undress.

[136]

Ms. Spence's testimony was not in conflict with that of the Crown
    witness, Ms. Hanson, who lived in the same rooming house as the appellant. The
    appellant told her that he returned to the apartment and engaged in an
    altercation with the deceased. He also told Ms. Hanson I killed a rapist. The
    testimony of Ms. Spence could not exclude the possibility that the appellant
    was the man outside the apartment door when she fled the apartment.

[137]

Even if a
W.(D.)
instruction might have been preferable
    with respect to this issue, I am satisfied that the jury was properly
    instructed on the burden and standard of proof. They were not instructed,
    expressly or by necessary implication, that they were entitled to resolve the
    case, or any essential element of the offence charged, simply by choosing which
    narrative of events they preferred.

[138]

Before concluding on this ground of appeal, it is necessary to
    assess the impact of an error in the
W.(D.)
instruction the trial
    judge did include in his charge.

[139]

The trial judge included in his charge a section entitled TESTIMONY
    OF ACCUSED. In that section, he provided a
W.(D.)
instruction in
    connection with the testimony of Ms. Spence. In doing so, the judge limited the
    application of the evidence to the verdict for Ms. Spence.

[140]

This was a joint trial. When Ms. Spence testified, her evidence was
    available for use by the jury not only in deciding whether the case against her
    had been proven beyond a reasonable doubt, but also in connection with the case
    against the appellant. Unlike an out-of-court statement by one of several
    accused jointly charged and tried that is admissible only in respect of its
    maker, the testimony of one accused in a joint trial is evidence for and
    against all accused in that joint trial. The limitations imposed here, which
    repeated an error in the closing address of defence counsel, were incorrect.

[141]

Despite the erroneous limitation of the effect of the evidence of Ms.
    Spence to the case against her, I am satisfied that the appellant suffered no
    prejudice by the omission of a
W.(D.)
instruction with respect to the
    appellant. No such instruction was sought, nor was its omission the subject of
    objection. The evidence was left to the jury for their consideration of whether
    either accused caused the death of the deceased. And the evidence itself, taken
    as a whole, was of limited exculpatory value.

Ground #5: Unreasonable Verdict

[142]

The final ground of appeal challenges the reasonableness of the
    jury's verdict. A brief reference to some aspects of the evidence adduced at
    trial will provide the background necessary for an evaluation of this ground.

The Essential Background

[143]

The appellant fastens on two aspects of the case for the Crown to
    advance this ground of appeal: the absence of evidence that the appellant
    caused the death of the deceased and a similar evidentiary vacuum on the state
    of mind necessary to establish the unlawful killing as murder.

[144]

Expert evidence suggested the appellants DNA was in blood smeared
    on the wall by the entrance to the deceased's apartment and in fingernail
    scrapings from the deceased's left hand. Ms. Spence gave no evidence of any conduct
    by the appellant while he was present in the deceased's apartment that would
    account for either finding. Ms. Spence testified about being awakened by
    pounding on the apartment door as she was being sexually assaulted by the
    deceased. She also testified that she saw a dark figure standing outside that
    door as she fled, half-naked, from the apartment. The figure appeared to be a
    man. She could not exclude the appellant as that man.

[145]

A short time later, Ms. Spence, still half-naked, met the appellant
    at a local bar not far from the deceased's apartment. The appellant did not say
    how he came to be there, when he had arrived or where he had come from. Nor did
    he ask his domestic partner, Ms. Spence, why she was not wearing any pants.

[146]

In addition, two witnesses testified about admissions the appellant
    made on the day of the deceased's death. Each recalled the appellant as having
    said I killed a rapist. One said that the appellant told her that he returned
    to the deceased's apartment, entered it and got into an altercation with the
    deceased. She noticed he had a split knuckle, an injury that was still visible
    on arrest several days later.

[147]

A forensic pathologist testified that the deceased suffered 74
    injuries, nearly two-thirds of which were around his head and neck area.
    Although a fall could have caused some of the injuries, repeated falls could
    not account for all the injuries, especially those around his head. The pattern
    of blood splatter at the scene indicated that the deceased was likely struck
    where he was found on the floor of his bedroom.

The Arguments on Appeal

[148]

The appellant says that the verdict is unreasonable because there
    was no evidence of two essential elements of the offence of which he was
    convicted:

i.

that he caused the death of the deceased; and

ii.

that he had the state of mind necessary to make an unlawful killing
    murder.

[149]

The case for the Crown, the appellant suggests, consisted entirely
    of circumstantial evidence. As a result, the issue in this court is whether, on
    the evidence adduced, the jury, acting judicially, could reasonably be
    satisfied that the appellant's guilt was the only reasonable conclusion
    available on the totality of that evidence.

[150]

The evidence of the appellants admissions was highly suspect and
    contradicted by other evidence. Ms. Spences evidence was that the appellant
    had been present in the deceased's apartment earlier that day but had left
    before she was sexually assaulted by the deceased. The injuries to the deceased
    and the bloodstain pattern could have been caused by repeated falls by a highly
    intoxicated deceased. At most, the evidence could sustain a finding that the
    appellant had been involved in some unlawful act that led to the death of the
    deceased. There was no evidence that could support a finding that the unlawful
    act was accompanied by a state of mind necessary for murder.

[151]

The respondent says that this complaint fails. The standard of
    review is well-settled. It is whether the jury, acting judicially, could
    reasonably be satisfied that the appellants guilt was the only reasonable
    inference available on the evidence taken as a whole. The availability of
    competing inferences does not render the verdict unreasonable. It is for the
    trier of fact to decide whether any alternative inferences are reasonable
    enough to raise a reasonable doubt and to separate reasonable doubt from
    speculation.

[152]

The jury was entitled to reject the claim of Ms. Spence that the
    appellant had been at the deceased's apartment earlier and left but did not
    return there. Evidence of the appellant's blood on the wall of the apartment,
    coupled with the absence of any suggestion that an altercation had taken place
    before he left, put paid to this claim. As did the appellants DNA in the
    deceased's fingernail scrapings. There was also Ms. Spence's evidence about the
    dark figure outside whom she could not say was not the appellant. And the later
    meeting with no questions asked about how Ms. Spence came to be missing her
    pants. And finally, the telling admissions I killed a rapist, and a visibly split
    knuckle.

[153]

In connection with evidence about the mental element in murder, the
    respondent points to the number, nature and location of the injuries; the
    location in the apartment where the deceased was struck; the incompatibility of
    the injuries with repeated falls; and the appellants admissions to the effect
    that he had killed a rapist.

The Governing Principles

[154]

The applicable standard of review is uncontroversial. A verdict is
    unreasonable if it is one that a properly instructed jury, acting judicially,
    could not reasonably have rendered:
R. v. W.H.
, 2013 SCC 22, [2013] 2
    S.C.R. 180, at para. 26. We must ask not only whether there is evidence in the
    trial record to support the jury's verdict, but also whether the jury's
    conclusion conflicts with the bulk of judicial experience:
W.H.
, at
    para. 28;
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40.
    To succeed, the appellant must demonstrate that no properly instructed jury acting
    judicially could reasonably have found guilt established on the evidence
    adduced at trial:
R. v. Jackson
, 2007 SCC 52, [2007] 3 S.C.R. 514, at
    para. 2.

[155]

In the exercise of our authority under s. 686(1)(a)(i) of the
Criminal
    Code
, we must, within the limits of appellate disadvantage, re-examine and
    re-weigh the evidence, and consider, through the lens of judicial experience,
    whether judicial fact-finding precludes the verdict reached by the jury:
Biniaris
,
    at para. 36;
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 186. Where a
    verdict is based on a credibility assessment, the verdict will be unreasonable
    if that assessment cannot be supported on any reasonable view of the evidence:
R.
    v. Burke
, [1996] 1 S.C.R. 474, at para. 7. One factor we may consider in
    determining whether the verdict is unreasonable is the failure of the appellant
    to testify:
R. v. Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at para.
    33;
R. v. George-Nurse
, 2018 ONCA 515, 362 C.C.C. (3d) 76, at para.
    33, affd 2019 SCC 12, [2019] 1 S.C.R. 570.

[156]

In a case consisting of circumstantial evidence in which the verdict
    is challenged as unreasonable, we must consider whether the jury, acting
    judicially, could reasonably have been satisfied that the guilt of the accused
    was the only reasonable conclusion available on all the evidence:
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56.

The Principles Applied

[157]

I would not give effect to this ground of appeal.

[158]

The forensic evidence adduced at trial supported an inference that
    the appellant was in physical contact with the deceased and shed blood in the
    deceased's apartment. He was observed shortly afterwards with a split knuckle
    that remained visible almost two weeks later when he was arrested. He admitted
    to two witnesses I killed a rapist. This was consistent with Ms. Spence's
    description of what had happened in the deceased's apartment before she fled
    the premises partially clad. The manner in which the appellant described his altercation
    with the deceased to Ms. Hanson was also consistent with Ms. Spence's evidence
    about hearing pounding on the door and a dark figure outside who she claimed
    not to be able to identify.

[159]

As for proof of the fault or mental element essential to make the
    unlawful killing murder, the deceased died from blunt impact facial trauma and
    aspiration of blood. He suffered 74 separate injuries, the vast majority around
    his head and neck. With those injuries and in a grossly intoxicated state, he
    was left on his bedroom floor, where blood spattered patterns indicated that
    the injuries were likely inflicted. Shortly thereafter, the appellant said I
    killed a rapist.

[160]

The jurys verdict that the appellant was guilty of murder was not
    unreasonable.

Disposition

[161]

For these reasons, I would dismiss the appeal and affirm the
    conviction.

Released: July 2, 2021 DW

David Watt J.A.

I agree. M.L. Benotto J.A.

I agree. M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2021 ONCA 478

DATE: 20210702

DOCKET: C68995

Hourigan, Paciocco and Zarnett
    JJ.A.

IN THE MATTER OF: Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Manasvin Goswami, for the respondent,
    Attorney General of Ontario

No one
    appearing for the respondent, Person in Charge of Providence Care Hospital Kingston

Heard: June 25, 2021 by
    videoconference

On appeal from the disposition of the Ontario
    Review Board, dated October 1, 2020, with reasons dated October 30, 2020.

REASONS FOR DECISION

[1]

Helen Tolias is currently under the jurisdiction
    of the Ontario Review Board (the Board) as the result of a 2006 verdict of
    not criminally responsible on account of mental disorder (NCR) arising from non-violent
    criminal harassment charges. Sadly, Ms. Tolias has been under detention orders
    since that time, including, more recently, at the Secure Forensic Unit of Providence
    Care Hospital, Kingston (Providence Care SFU).

[2]

Ms. Tolias most recent disposition review occurred
    on September 17, 2020, by videoconference, in Ms. Tolias absence. The Board
    decided to proceed
in

absentia

after learning that Ms.
    Tolias was not comfortable having a videoconference hearing, and after being
    informed that she had discharged her lawyer. The Board appointed Ms. Tolias
    discharged lawyer as
amicus
before proceeding with the hearing.

[3]

On October 1, 2020, the Board released its
    disposition arising from the September 17, 2020 hearing (the October 2020
    Disposition). The October 2020 Disposition ordered Ms. Tolias to be detained forthwith
    at the Forensic Psychiatry Program of St. Josephs Health Care Hamilton (St.
    Josephs FPP), on conditions.

[4]

Ms. Tolias now appeals the October 2020
    Disposition. She argues that:

(1) The Board committed a jurisdictional error in proceeding by
    videoconference without her consent;

(2)   The Board erred in law by applying the wrong test in determining
    that she poses a significant threat to the safety of the public; and

(3)   The Boards finding that detention on conditions is the least
    onerous and restrictive disposition, rather than a conditional or absolute
    discharge, is unreasonable.

[5]

It is unnecessary for us to consider the last
    two grounds of appeal, since the Crown correctly concedes the first ground. In
Woods
    (Re)
, 2021 ONCA 190, 154 O.R. (3d) 481, at para. 7, this court determined
    that the Board did not have jurisdiction to proceed by videoconference without
    the consent of the NCR accused. By doing so in this case, the Board committed
    a jurisdictional error.

[6]

The Crown nonetheless submits that we should
    dismiss the appeal pursuant to s. 672.78(2)(b) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, notwithstanding the Boards legal error. The Crown
    argues that no substantial wrong or miscarriage of justice occurred because, in
    this unique situation, the Boards decision to proceed was reasonable and the
    subsequent hearing was fair.

[7]

In our view, s. 672.78(2)(b) does not apply
    because the authority to dismiss an appeal from a disposition under s.
    672.78(2)(b) is confined to decisions based on a wrong decision on a question
    of law. The Boards error in conducting a videoconference hearing without Ms.
    Tolias consent was not simply a wrong decision on a question of law or a mere
    procedural error. It was a jurisdictional error that rendered the disposition
    null and void:
Woods (Re)
, at para. 7. A disposition arrived at
    without jurisdiction constitutes a miscarriage of justice which cannot be
    saved pursuant to s. 672.78(2)(b).

[8]

In the alternative, the Crown submits that if we
    allow Ms. Tolias appeal, we should exercise our jurisdiction pursuant to s.
    672.78(3)(a) of the
Code
to make a disposition that is identical to
    the Boards October 2020 Disposition.

[9]

Ms. Tolias also asks us to make a disposition,
    but she requests an absolute discharge, or, alternatively, a conditional
    discharge.

[10]

Mindful that Ms. Tolias is prepared to permit us
    to do so, we do not consider it to be in the interests of justice to arrive at a
    disposition based on a record generated in a hearing that proceeded without
    jurisdiction and was conducted without Ms. Tolias participation.

CONCLUSION

[11]

Accordingly, the appeal is allowed, the October
    2020 Disposition is set aside, and a new hearing is ordered. The new hearing is
    to be held at the earliest possible opportunity once in-person Board hearings
    resume, or, if Ms. Tolias consents in writing to a videoconference or telephone
    hearing, at the earliest available opportunity for a videoconference or
    telephone hearing.

[12]

The Boards disposition of January 29, 2020 (the
    January 2020 Disposition) therefore remains in force pending a new disposition.
    However, it is in the interests of justice to vary the January 2020 Disposition,
    which required Ms. Tolias to be detained at Providence Care SFU in Kingston.
    Pursuant to the October 2020 Disposition, now set aside, Ms. Tolias was ordered
    to be detained at St. Josephs FPP in Hamilton, which is closer to where her family
    resides. Due to a wait list delay, Ms. Tolias was only recently moved to St.
    Josephs FPP. It is not in the interests of justice, nor in Ms. Tolias interest,
    to return her to Providence Care SFU.

[13]

Therefore, s. 1 of the January 2020 Disposition
    is varied to replace the term Secure Forensic Unit of the Providence Care
    Hospital, Kingston, Ontario, with Forensic Psychiatry Program at St. Josephs
    Health Care Hamilton, West 5th Campus.

[14]

Section 2 of the January 2020 Disposition is varied
    as follows:

(i)     to replace all references to Providence Care Hospital in
    s. 2 with St. Josephs Health Care Hamilton;

(ii)    to replace the term Secure Forensic Unit of the Providence
    Care Hospital, with Forensic Psychiatry Program at St. Josephs Health Care
    Hamilton; and

(iii)   to replace all references to Kingston in s. 2 with
    Hamilton.

[15]

Sections 3 and 4 of the January 2020 Disposition,
    as well as the COMMAND to the person in charge of the Providence Care
    Hospital, are all varied to replace the term Providence Care Hospital with
    St. Josephs Health Care Hamilton.

C.W. Hourigan J.A.

David M. Paciocco J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: K.M. v. Banik, 2021 ONCA 481

DATE: 20210630

DOCKET: C68652

Doherty, Benotto and Brown JJ.A.

IN THE
    MATTER OF Appeal from a decision of the

Consent
    and Capacity Board,

Pursuant
    to the
Mental Health Act
,

R.S.O.
    1990, chapter M.7,

As
    amended,

IN THE
    MATTER OF Appeal from a decision of the

Consent
    and Capacity Board,

Pursuant
    to the
Health Care Consent Act
,

S.O.
    1996, chapter 2, Schedule A,

As
    amended,

BETWEEN

K.M.

Appellant (Appellant)

and

Dr. Tapan Banik

Respondent (Respondent)

Eyitayo F. Dada, for the appellant

Jennifer L. Hunter and Ashley Boyes,
    for the respondent

Heard: June 25, 2021 by video conference

On
    appeal from the order of Justice Andrew A. Sanfilippo of the Superior Court of
    Justice, dated August 11, 2020, with reasons reported at 2020 ONSC 4829,
    affirming a decision of the Consent and Capacity Board, dated April 14, 2020,
    with reasons dated April 21, 2020.

REASONS FOR DECISION

[1]

The appellant appeals the decision of the Superior Court which dismissed
    his appeal from the Consent and Capacity Board decision affirming his Community
    Treatment Order.

Facts

[2]

The appellant K.M. was diagnosed with schizophrenia. The respondent Dr. Tapan
    Banik is his treating psychiatrist. On January 31, 2020, the appellants mother
    called the police because his behaviour gave her concern for his well-being. The
    appellant had  six times before  been admitted to Brampton Civic Hospital as
    a psychiatric patient and discharged on a Community Treatment Order. Once his
    Community Treatment Order was revoked, the appellant had refused to see his
    doctor or take injections of the prescribed anti-psychotic medicine and had
    decompensated as a result. The police brought the appellant to Brampton Civic
    Hospital where he was admitted as an involuntary psychiatric patient.

[3]

The respondent examined the appellant on February 3 and 4, 2020 and
    determined that the appellant was unable to appreciate the reasonably
    foreseeable consequences of treatment or lack of treatment and was not capable
    of consenting to treatment of his mental disorder with anti-psychotic
    medications. On February 4, the respondent informed the appellant of his
    determination and prepared a Community Treatment Plan for the appellant based
    on his determination that the appellant was incapable of giving or refusing
    consent to the Plan. Under the Plan, the appellant would be given community
    support by the Peel Assertive Community Treatment Team (ACT team).

[4]

The Plan required the appellant to present himself to the ACT team one
    to three times every week for medication compliance and to receive monthly
    injections of anti-psychotic medication. The appellants mother agreed to act
    as his substitute decision maker and consented to the appellant resuming
    treatment with antipsychotic medication. The respondent issued the Community Treatment
    Order on March 5, 2020. The appellant was discharged on March 20, 2020. The
    appellant applied to the Consent and Capacity Board to review the respondents
    finding of incapacity and the issuance of the Community Treatment Order.

Decision of the Consent and
    Capacity Board

[5]

The Consent and Capacity Board recognized that the onus is on the
    physician who issued the Community Treatment Order to establish on a balance of
    probabilities that the appellant lacked the capacity to consent to treatment.
    The Board followed the test in s. 4(1) of the
Health Care
    Consent Act, 1996
, S.O. 1996, c. 2, Sched. A,

which
    provides:

Capacity

4
(1) A person is capable with respect to a treatment, admission to or
    confining in a care facility or a personal assistance service if the person is
    able to understand the information that is relevant to making a decision about
    the treatment, admission, confining or personal assistance service, as the case
    may be, and able to appreciate the reasonably foreseeable consequences of a
    decision or lack of decision.

[6]

The Board was satisfied that the appellant was unable to appreciate the
    reasonably foreseeable consequences of a decision or lack of decision about his
    treatment. The Board relied on the evidence with respect to his readmissions to
    hospital due to non-compliance, his refusal of injections, his aggressive
    conduct when not being medicated, his inability to appreciate the severity of
    his mental condition and his inability to recognize incontrovertible facts.

[7]

The Board affirmed the Community Treatment Order.

Decision of the Superior Court

[8]

On appeal to the Superior Court, the appellant argued that:

(1) the Board had erred in finding that he was unable to
    appreciate the reasonably foreseeable consequences of a decision or lack of
    decision about the recommended treatments; and

(2) the Board erred in confirming the validity of the Community
    Treatment Plan.

[9]

The court rejected the appellants argument that, in applying the test
    for finding the appellant capable to consent, the Board incorrectly required
    the appellant to accept, acknowledge or appreciate that he suffered from a
    mental illness. The court found that the Board correctly identified and
    interpreted the two-part test for capacity to consent to treatment under s.
    4(1) of the
Health Care Consent Act
as
    explained in
Starson v. Swayze
, 2003 SCC 32,
    [2003] 1 S.C.R. 722.

[10]

On
    the first part of the test, the Board had found the appellant was able to
    understand the information relevant to making a treatment decision. On the
    second part of the test, the Board had found the appellant unable to appreciate
    the reasonably foreseeable consequences of a decision or lack of a decision
    about the recommended treatments based on the two criteria laid down in
Starson
, at para. 79. The Board accepted the
    respondents evidence that the appellant had a mental condition and that the
    condition deteriorated when untreated. The Board also found the appellant
    believed he did not have a mental health condition at all. It was not merely
    that he disagreed with the respondents diagnosis of the condition, he disputed
    that he had any mental health issues. He was also unable to appreciate that his
    condition improved with treatment and deteriorated when he discontinued
    treatment.

[11]

The
    court was satisfied that the evidence of the respondent as well as the
    appellant supported the Boards findings. The court found that it was open to
    the Board to reject the appellants submission that the respondent did not
    provide him with the necessary information to make a treatment decision.

[12]

On
    the second issue, the appellant submitted that the Board erred in finding the
    Community Treatment Plan compliant with the statutory requirements in ss.
    33.1(4) of the
Mental Health Act
, R.S.O. 1990,
    c. M.7, which sets out the criteria for a Community Treatment order as follows:

33.1 (4) A physician may issue or
    renew a community treatment order under this section if,

(a) during the previous three-year
    period, the person,

(i) has been a patient in a
    psychiatric facility on two or more separate occasions or for a cumulative
    period of 30 days or more during that three-year period, or

(ii) has been the subject of a
    previous community treatment order under this section;

(b) the person or his or her
    substitute decision-maker, the physician who is considering issuing or renewing
    the community treatment order and any other health practitioner or person
    involved in the persons treatment or care and supervision have developed a
    community treatment plan for the person;

(c) within the 72-hour period before
    entering into the community treatment plan, the physician has examined the person
    and is of the opinion, based on the examination and any other relevant facts
    communicated to the physician, that,

(i) the person is suffering from
    mental disorder such that he or she needs continuing treatment or care and
    continuing supervision while living in the community,

(ii) the person meets the
    criteria for the completion of an application for psychiatric assessment under
    subsection 15 (1) or (1.1) where the person is not currently a patient in a
    psychiatric facility,

(iii) if the person does not
    receive continuing treatment or care and continuing supervision while living in
    the community, he or she is likely, because of mental disorder, to cause
    serious bodily harm to himself or herself or to another person or to suffer
    substantial mental or physical deterioration of the person or serious physical
    impairment of the person,

(iv) the person is able to comply
    with the community treatment plan contained in the community treatment order,
    and

(v) the treatment or care and
    supervision required under the terms of the community treatment order are
    available in the community.

(d) the physician has consulted with
    the health practitioners or other persons proposed to be named in the community
    treatment plan;

(e) subject to subsection (5), the
    physician is satisfied that the person subject to the order and his or her
    substitute decision-maker, if any, have consulted with a rights adviser and
    have been advised of their legal rights; and

(f) the person or his or her
    substitute decision-maker consents to the community treatment plan in
    accordance with the rules for consent under the
Health Care Consent Act,
    1996
.

[13]

The
    court examined each criterion and concluded each had been complied with. In
    addition, the court rejected the appellants submission that the Board erred in
    finding the appellant likely to suffer substantial mental deterioration if he
    did not receive treatment while living in the community. The court held that
    the fact that the appellant could cope in the community for some time before
    deteriorating did not mean his deterioration was not substantial. The court
    also held that the Board did not err in concluding that the appellant was able
    to comply with the Community Treatment Plan, including the requirement to meet
    with the ACT team up to three times a week, despite the COVID-19 pandemic. This
    argument was not raised before the Board, and the court found no evidence to
    support the appellants argument that he was unable to attend treatment during
    the pandemic.

[14]

The
    Superior Court of Justice dismissed the appeal, finding no palpable and
    overriding error in the Boards decision.

Issues on this appeal

[15]

The
    appellant raises the same issues on appeal to this court and relies on the same
    submissions made to the Superior Court. In oral submissions, the appellant
    focused on the second part of the
Starson
test
    and the evidence that the appellant was able to appreciate the benefits of
    treatment.

Analysis

[16]

The
    second part of the
Starson
test is that the
    patient must be able to recognize the
possibility

that he is affected by the condition: at para 79
    (emphasis added). The appellant submits that his testimony discloses that he
    admitted the manifestations of his situation and consequently this provision is
    satisfied.

[17]

We
    do not accept this submission. The evidence before the Board was the appellant
    denied he had a mental health condition at all and explained his conduct in
    barricading himself in his room because he didnt really want to talk to [any]
    one, didnt really want to eat and just wanted to lay in [his] stuff. He
    explained his prior admissions as related to domestic issues. The Board
    considered the whole of the appellants evidence. It was open to the Board to
    accept the respondents evidence that the appellant had been floridly
    psychotic with symptoms including delusions or persecutions, withdrawal and
    isolation, lack of self-care, auditory hallucinations, paranoid delusions and
    disorganization of thought. There was evidence for the Board to conclude that
    he does not recognize the possibility that he is affected by his illness.

[18]

The
    appellant also submits that he was able to appreciate the benefits of treatment
    as demonstrated by his history of taking antipsychotic medication and following
    previous Community Treatment Plans. However, this ignores that evidence that
    the appellant discontinued treatment, decompensated as a result and was
    re-admitted to hospital. Upon resuming treatment, he improved and was able to
    be discharged. This has been the pattern since 2012. There was evidence before
    the Board to conclude that he did not appreciate the benefits of his treatment.

[19]

Nor
    did the Board misapply the test by requiring the appellant to agree with the
    respondents diagnosis or characterize his condition in negative terms. The
    Board recognized that he did not have to agree with the diagnosis.

[20]

Contrary
    to the appellants argument, the evidence showed the respondent explained the
    benefits and potential side effects of antipsychotic medication to the appellant
    and it was open to the Board to reject the appellants evidence in this regard.

[21]

Finally,
    the court did not refuse to consider the COVID-19 issue but found no evidence
    that the pandemic had impaired the appellants ability to attend treatment or
    the health professionals ability to treat the appellant.

[22]

We
    see no reason to interfere with the decision of the Superior Court which upheld
    the decision of the Consent and Capacity Board.

Conclusion

[23]

Despite the able submissions of counsel for the appellant, the
    appeal is dismissed. No costs were requested, and none are ordered.

Doherty
    J.A.

M.L.
    Benotto J.A.

David
    Brown J.A.