COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mhlongo, 2017 ONCA 562

DATE: 20170630

DOCKET: C59129

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zwelakhe Mhlongo

Appellant

Nathan Gorham, for the appellant

Victoria Chan and Anya Weiler, for the respondent

Heard: May 17, 2017

On appeal from the conviction entered on April 18, 2014
    by Justice Robert J. Nightingale of the Superior Court of Justice, sitting with
    a jury.

R.A. Blair J.
A.:

[1]

Mr. Mhlongo appeals from his conviction for possession of cocaine for
    the purposes of trafficking.  His grounds of appeal are founded on the trial
    judges refusal to exclude the evidence of cocaine and cash seized by the police
    during events surrounding a vehicle stop for a
Highway Traffic Act
(
HTA
)
    offence.

[2]

For the reasons that follow, I would allow the appeal.

Facts

[3]

On July 27, 2012, the appellant was a front-seat passenger in a rental
    car being driven by his friend, Justin Booth.  In the back seat was another friend,
    Glen Thomas.  At approximately 7:15 p.m., the car was pulled over and stopped
    by P.C. James Richardson, a member of the Hamilton Police force.

[4]

P.C. Richardson had parked his cruiser in an alleyway in an area in
    Hamilton known to be a drug area, and close to what was believed to be a crack
    house.  He said he noticed a black Honda vehicle (the vehicle driven by Mr.
    Booth) drive by him at an extremely slow rate of speed, which caught his eye, and
    that he noticed as well that the front passenger was not wearing his seat belt
    as the vehicle passed by.  He pulled out behind the Honda and, after conducting
    a data search while following the vehicle, had reason to believe that it had
    unauthorized licence plates attached to it, contrary to the
Highway Traffic
    Act
, R.S.O. 1990, c. H.8.  He pulled the car over into a parking lot to
    investigate that infraction and called for back-up.

[5]

Over the course of the next three-quarters of an hour the following
    series of events took place.

The
    Arrest of Mr. Booth

[6]

As P.C. Richardson approached the Honda, the appellant got out of the
    car.  P.C. Richardson ordered him to get back into the car, which he did.

[7]

P.C. Richardson then asked the driver, Mr. Booth, for his ownership
    papers and drivers licence, and the passengers for their identification.  Mr. Booth
    provided his drivers licence. The appellant provided his health card with his
    photo on it and the ownership and insurance documents, which were in the glove
    compartment.  Mr. Thomas gave only a false name, orally.

[8]

P.C. Richardson returned to his cruiser and, after conducting a computer
    search, confirmed that the licence plates on the vehicle did not belong to it.
    He returned to the rental car, arrested Mr. Booth and placed him in the rear of
    the cruiser.

[9]

It was 7:25 p.m.

[10]

The appellant and Mr. Thomas were then asked to get out of the vehicle while
    P.C. Richardson conducted a search of it.  Another police officer, P.C. Michael
    Stone, one of the two officers who had arrived on scene in response to P.C.
    Richardsons call for back-up, stood nearby while the two passengers waited
    outside the vehicle.

The
    CPIC and Niche Searches

[11]

Following the arrest of Mr. Booth, P.C. Richardson conducted computer
    checks of the passengers, using the CPIC and Niche RMS database systems.
[1]
He acknowledged in cross-examination that he was conducting a criminal
    investigation of the appellant at this point in time, and that he did not then
    have any specific crime in mind.  He had asked for the passengers
    identification with this purpose in mind.

The
    Incident Regarding Mr. Thomas

[12]

The CPIC and Niche searches led to an incident relating to Mr. Thomas,
    who had originally given the false name.

[13]

As a result of running the name appearing on the appellants health card
    through a CPIC check, P.C. Richardson discovered that the appellant had a
    criminal record.  He also learned that the rear passenger was likely Glen
    Thomas, who was known to have a tattoo on his shoulder.  If that were the case,
    P.C. Richardson believed that Mr. Thomas was in breach of a recognizance that
    prohibited him from being in the company of someone with a criminal record.

[14]

By this time, it was approximately 7:48 p.m.

[15]

At P.C. Richardsons direction, P.C. Stone approached Mr. Thomas and asked
    to see his shoulder. Upon request, Mr. Thomas revealed his shoulder tattoo.
    However, when P.C. Richardson then returned to the rental car and insisted that
    Mr. Thomas tell him his real name, Mr. Thomas took flight.  P.C. Richardson and
    another officer gave chase, followed by P.C. Stone, telling the appellant to
    remain where he was. The appellant was alone for a short time after that.

[16]

Mr. Thomas was caught and arrested within a minute or so of taking
    flight.

The
    Arrest of the Appellant

[17]

The third part of the chronology then unfolded.

[18]

When P.C. Richardson was returning from his chase of Mr. Thomas, he told
    P.C. Stone to detain the appellant because, although he had no specific crime
    in mind at the time, P.C. Richardson thought that something else might be going
    on besides the
HTA
offence.  He conceded that if the appellant had in
    fact been detained in those circumstances it would not have been legal.
    However, what happened next led to the appellants arrest on the drug offence.

[19]

P.C. Stone testified that before he could detain the appellant he
    observed the appellant walk towards a white vehicle parked next to the rental
    car in the parking lot.  He saw the appellant make a downward motion with his
    hand, as if he were throwing something on the ground under the white car.  He
    then saw the appellant approach the drivers door of the white vehicle and ask
    the driver for a cigarette.

[20]

P.C. Stone decided to detain the appellant so that he could retrieve the
    evidence of what he believed had been thrown under the car.  He placed the
    appellant in handcuffs and told the appellant that he was being detained for
    further investigation.  It was 7:57 p.m.

[21]

P.C. Stone did not immediately conduct a search of the appellant, nor
    did he advise the appellant of his right to counsel.  He went to the white
    vehicle and found a bag containing approximately 23.5 grams of cocaine under
    the car and a smaller bag of 0.45 grams of cocaine in the area where the
    appellant and Mr. Thomas had been standing.

[22]

The appellant was arrested at 7:58 p.m.  He was subjected to a pat-down search
    that yielded an iPhone, a Blackberry and $420 in cash.  The appellant was advised
    of his right to counsel at approximately 8:00 p.m.

The
    Trial Judges Disposition

[23]

The appellant applied for an order excluding the evidence of the cocaine
    and cash, pursuant to s. 24(2) of the
Canadian Charter of Rights and
    Freedoms
, on the basis that the police had violated his s. 8, s. 9 and s.
    10(b) rights.  The trial judge found a breach of s. 8 (unlawful search and
    seizure) and an understandably brief breach of s. 10(b) (the right to counsel),
    but no breach of s. 9 (arbitrary detention).  In spite of finding the s. 8 and
    short-lived s. 10(b) breaches  but against the background of that
Charter

analysis  he exercised his discretion to refuse to exclude the evidence
    under s. 24(2).  He concluded that the police had not acted in bad faith and
    after balancing the criteria set out by the Supreme Court of Canada in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353  that the admission of the
    evidence would not bring the administration of justice into disrepute.

Analysis

[24]

The resolution of this appeal revolves primarily around whether the
    trial judge erred in his s. 9 analysis.  Did the detention of the appellant,
    initially lawful for purposes of the
HTA
investigation, remain lawful
    throughout until his arrest, as an incident of that investigation (as the trial
    judge concluded), or did it become unlawful the moment Mr. Booth was arrested
    and the
HTA
investigation was concluded (as the appellant contends)?
    The answer to this question, in turn, depends on whether the trial judge
    properly applied the decision of this Court in
R. v. Harris
, 2007 ONCA
    574, 87 O.R. (3d) 214.

[25]

If the trial judge erred in his s. 9 analysis, and the appellant was
    detained for criminal investigative purposes for more than 30 minutes before
    being given his s. 10(b) rights to counsel, the s. 10(b) analysis leads to a
    different conclusion as well.  In the face of a breach of three
Charter
rights in these circumstances, the
Grant
analysis would favour
    exclusion of the evidence, in my view.

Section
    9 (Unlawful Detention)

[26]

The Crown conceded that the appellant was detained when P.C. Richardson
    told him to get back into the vehicle when he first got out immediately after
    the traffic stop, and he complied.  Defence counsel conceded that P.C. Richardson
    had a valid reason to stop the vehicle and detain the driver and passengers
    during the investigation of the
HTA
offence.

[27]

The trial judge agreed that, because the police had a valid reason to
    stop the vehicle and conduct the
HTA
investigation, they were
    justified in taking control of the driver and passengers for this purpose.  The
    initial detention of the appellant was therefore lawful. He then considered,
    and rejected, the appellants argument that the detention became arbitrary, and
    therefore unlawful, when the appellant was subjected to a groundless criminal
    investigation following Mr. Booths arrest.  Relying on this Courts decision
    in
Harris
, the trial judge concluded that the justification for the
    detention pursuant to the
HTA
investigation continued while P.C.
    Richardson checked the appellants identification through the police data
    system.  The request for the appellants identification, in the trial judges
    view, did not prolong or alter the nature of his detention.

[28]

Accordingly, on the trial judges analysis, there was no arbitrary
    detention of the appellant between 7:25 p.m. and 7:48 p.m., when the computer checks
    were completed and the officers returned to deal with Mr. Thomas. When P.C.
    Stone physically detained the appellant nine minutes later, he was entitled to do
    so in view of the information he had at the time.

[29]

The trial judge therefore concluded that there was no violation of s. 9.
    Respectfully, I disagree.

[30]

In my view, the trial judge erred in law and made palpable and
    overriding errors of fact in arriving at the foregoing conclusion.  The error
    in law consisted of his misinterpretation of the principles enunciated in
Harris
.
    The errors in fact relate to his finding that the appellants detention for criminal
    investigative purposes did not commence until he was detained by P.C. Stone
    just prior to his arrest at 7:58 p.m. On his own evidence, P.C. Richardson was
    satisfied at the time of Mr. Booths arrest (based on the appellants photo on
    his health card), that the appellant was who he said he was and what he (P.C.
    Richardson) then intended to do was to undertake a criminal investigation of
    the appellant through the database checks.

[31]

I agree with Mr. Gorham that this Courts decision in
Harris
does not establish a sweeping legal principle that, once a passenger has been
    lawfully detained in the course of an
HTA
stop, the detention remains
    lawful for as long as it takes the police to conduct an investigation of the
    passengers identity for whatever purpose.  As I read it,
Harris
stands for the proposition that, once a passenger is lawfully detained as an
    incident of a proper
HTA

stop and investigation, and the
    continued detention remains otherwise lawful, the detention is not rendered
    unlawful by an unconstitutional request for the passengers identification and
    the follow-up police check of that identification.  To put it another way, the
    improper request for the passengers identification for a purpose unrelated to
    the
HTA
stop and investigation will be a breach of s. 8 of the
Charter
,
    but that breach does not, itself, render a continued detention that is related
    to the continuing
HTA
investigation unlawful.

[32]

There are significant differences between this case and
Harris
,
    however.

[33]

Mr. Harris was a passenger in a vehicle that was stopped pursuant to a
    valid
HTA
investigation.  The investigating police officer asked all
    occupants for identification, and did so for purposes that were not related to
    the
HTA
investigation (i.e., to conduct a general CPIC search in order
    to obtain information about criminal records and whether persons were on
    probation or bail or under some level of surveillance).  The officer carried
    out the CPIC checks of all occupants at the same time and thus, the CPIC check
    of Mr. Harris and his continued detention took place while the
HTA
investigation was still ongoing.

[34]

The trial judge in
Harris

found  and this finding was
    accepted on appeal  that the CPIC check of the driver was enmeshed in the
    check of the passenger [Harris].  She also found that when the police officer
    asked Mr. Harris for his identification, the detention changed from lawful to
    arbitrary.  Writing for the majority,
[2]
Doherty J.A. rejected the latter conclusion and held that the continued
    detention of Mr. Harris during the period of time it took to complete the CPIC checks
    was not rendered unconstitutional simply because of the unlawful request for
    Mr. Harriss identification.  Central to that determination was the continuing
    nature of the
HTA
investigation and the fact that the passenger check
    was enmeshed in that exercise.

[35]

The following passages, from paras. 24-27 and 46 of this Courts
    decision in
Harris
, illustrate this:

The trial judge also rejected the defence submission that when
    Constable Lipkus returned to his vehicle to run Harris's identification through
    CPIC, he had already finished his investigation of the driver and could not
    rely on the
Highway Traffic Act
investigation to justify the
    continued detention of Harris.
The trial judge held, at para. 48 that
    "the CPIC check of the driver was enmeshed in the check of the passenger
    [Harris]
."

The trial judge went on to hold that when Lipkus asked Harris
    for identification for purposes that had nothing to do with the enforcement of
    the
Highway Traffic Act
, Harris's detention changed from lawful
    to arbitrary. She said, at para. 41:

... I find, however, that the characterization of
    the detention changed as matters unfolded. Once the officer moved beyond
    detaining Mr. Harris for the purposes of investigating issues relating to
    driving offences, Mr. Harris' detention became arbitrary.

I cannot agree that the request of Harris for identification
    for purposes unrelated to the
Highway Traffic Act
altered
    the constitutionality of his detention.
Harris was detained by virtue of the
    lawful stopping of the vehicle, the ongoing investigation of the
Highway Traffic Act
violation, and
    Lipkus's lawful assuming of control over the movements of the passengers in the
    vehicle. On the trial judge's factual findings, Lipkus's request for
    identification did not prolong or alter the nature of Harris's detention. He
    remained in exactly the same position he would have been in had Lipkus
    questioned only the driver.

Harris's detention, that is the limitation on his personal
    physical freedom imposed by Lipkus's actions, was not arbitrary in the sense
    that it was random or without individualized cause. The detention flowed from
    the officer's observations of the vehicle, his decision to pursue the
Highway
    Traffic Act
investigation, and the reasonable steps he took to assume
    control of the occupants of the vehicle. As the trial judge observed, these
    observations gave Lipkus proper grounds to detain the passengers in the vehicle
    during the
Highway Traffic Act
investigation. In my view,
    the request that Harris identify himself, even though improper for the reasons
    set out below, did not render Harris's detention arbitrary.

[]

For the reasons set out above, I
    do not agree that the improper questioning of Harris rendered his detention
    arbitrary or unlawful. Harris was lawfully detained as an incident of the

Highway
    Traffic Act

stop and
    investigation.
The justification for that detention operated when Harris was
    asked for identification and continued to operate when Lipkus checked that
    identification through CPIC
. As I do not find that Harris was arbitrarily
    detained when asked for identification, I do not reach the question of whether
    the arbitrariness of a detention automatically triggers the rights guaranteed
    by s. 10(b) of the

Charter
.

[36]

In short, the request for Mr. Harriss identification (even though
    itself unlawful as a breach of s. 8) did not render his continued detention
    during the CPIC check unlawful under s. 9 because:

(i) the HTA investigation was still ongoing;

(ii) the identification request did not prolong or alter the
    nature of the passengers detention; the passenger remained in exactly the same
    position he would have been in had the police questioned only the driver.

[37]

This case is quite different.

[38]

Here, the
HTA
investigation with respect to the unauthorized
    plates  the basis for the traffic stop  was completed, at least from the
    perspective of the appellants involvement, once Mr. Booth was arrested.  The
    trial judge accepted that P.C. Richardson pulled the vehicle over to
    investigate the unauthorized plates and that he did not ask the appellant for
    identification on account of the seat belt issue. P.C. Richardson acknowledged
    that he was satisfied as to the appellants identification by the time of the
    drivers arrest, having looked at his photo on the produced health card.  A
    police database check was not needed for that purpose.

[39]

On P.C. Richardsons own evidence he returned to the cruiser to conduct
    the data system checks on the appellant and Mr. Thomas
after
the Booth
    arrest.    He conceded that he was conducting a criminal investigation of the
    appellant at that time, and a groundless one at that.  The following exchange
    from his cross-examination makes this clear:

Q. So, you were satisfied as to his identity right when you
    looked at the photo card, right?

A. I was satisfied with his identity. Yes, sir.

Q. All right.  So, when you started running him, and thats the
    expression that you use when youre putting someones name in the computer,
    right.
So, when you were running him through these police databases, you
    are conducting a criminal investigation into Mr. Mhlongo, right?

A. Yes.

Q. You had no basis whatsoever to conduct a criminal
    investigation into Mr. Mhlongo, right?

A.
I have no specific crime
, if thats what youre
    asking?

Q. Yes.

A. At that point, no, I didnt have a specific crime.

Q. We all understand that, you know, you may have sniffed that
    something was going on here, and that your officers spidey sense, for lack
    of a better expression, I think you know what I mean, was maybe tingling a
    little bit.
But you will agree that you had no real reason, no articulable
    basis to believe that Mr. Mhlongo was implicated in any sort of criminal
    activity, right?

A. At that time, no.

[Emphasis
    added.]

[40]

In the face of that evidence, it is palpable and overriding error, in my
    view, to find  as the trial judge appears to have found  that the appellant
    was not detained for criminal investigative purposes prior to his physical
    detention and subsequent arrest by P.C. Stone at or around 7:58 p.m.

[41]

In
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45, the
    Supreme Court of Canada clarified that a police officer may detain an
    individual to investigate a criminal offence
if
there are
reasonable
    grounds to suspect
in all the circumstances that the individual is
    connected to
a particular crime
and that such detention is necessary
    [emphasis added].  No such grounds existed here, either at the time of the
HTA
stop or at the time the police checks of the appellant were conducted following
    the arrest of Mr. Booth and termination of the
HTA
investigation.

[42]

Nor can it be said  as was the case in
Harris
 that P.C.
    Richardsons request for identification did not prolong or alter the nature of
    [the appellants] detention or that [h]e remained in exactly the same
    position he would have been in had [P.C. Richardson] questioned only the
    driver.

[43]

Had it not been for the request for identification, neither the
    appellant nor Mr. Thomas would have remained in detention following Mr. Booths
    arrest and the termination of the
HTA
investigation; there would have
    been no CPIC or Niche search of their names; it would not have been discovered
    that the appellant had a criminal record, that the back-seat passenger was Mr.
    Thomas, and that Mr. Thomas was in breach of a recognizance by being in the
    company of the appellant.  The entire scenario evolving from the knowledge the
    police obtained through the flight and arrest of Mr. Thomas to the discarding
    of the drugs by, and the arrest of, the appellant, would not have occurred.

[44]

I am satisfied in the circumstances of this case, therefore, that the
    appellants detention turned from lawful to arbitrary (and therefore unlawful)
    once Mr. Booth was arrested, the
HTA
investigation was completed from
    the appellants perspective, and the subsequent investigation of the appellant
    for criminal act purposes commenced.  His right not to be detained unlawfully,
    pursuant to s. 9 of the
Charter
,
was violated. This would have
    been at, or very shortly after, 7:25 p.m.

[45]

The unlawful detention continued until the appellant was subsequently
    detained after P.C. Stone witnessed him throw what turned out to be cocaine
    under the white vehicle  very shortly before his arrest at 7:58 p.m.

Section
    10(b) (the Right to Counsel)

[46]

While the Crown conceded at trial, and the trial judge found, that P.C.
    Stone should have provided the appellant with his right to counsel when he was
    detained and handcuffed at 7:57 p.m., rather than three minutes later, and
    following his arrest, at 8:00 p.m., the trial judge treated this violation as a
    brief, justifiable, and relatively inconsequential one.  However, once it is determined
    that the appellant was detained for criminal investigative purposes when he
    was, as described above, the s. 10(b) analysis takes on a different complexion.

[47]

Section 10(b) states that:

Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be
    informed of that right.

[48]

In
R. v. Suberu
, 2009 SCC 33, 245 C.C.C. (3d) 112 the Supreme
    Court of Canada established that the police duty to inform a detained person of
    his or her s. 10(b) rights is triggered at the outset of an investigative
    detention (para. 2), and (at para. 41) that:

In order to protect against the risk of self-incrimination that
    results from the individuals being deprived of their liberty by the state, and
    in order to assist them in regaining their liberty, it is only logical that the
    phrase without delay must be interpreted as immediately.

[49]

A brief stop of a vehicle for purposes of a valid
HTA
investigation does not trigger s. 10(b) rights:
Harris
, at para. 47.  That
    is not this case, however.  Given my conclusion that the nature of the
    appellants detention was transformed from a detention for valid HTA-investigation
    purposes to a detention for criminal investigative purposes at the time of, or
    very shortly after, Mr. Booths arrest at 7:25 p.m., it follows that the police
    were obliged to advise the appellant of his right to retain and instruct
    counsel immediately thereafter.  They did not do so.  The appellant was not
    advised of his right to counsel until 8:00 p.m., over 30 minutes later.

[50]

In these circumstances, it is not particularly significant whether the
    police violated the appellants s. 10(b) rights by not providing him with his
    right to counsel at 7:57 p.m., as opposed to 8:00 p.m.  He was entitled to be
    advised of those rights at or about 7:25 p.m.  That is what constitutes the s.
    10(b) violation in the circumstances of this case.

Section
    8 (Protection from Unreasonable Search and Seizure)

[51]

Relying on
Harris
and on this Courts decision in
R. v.
    Johnson
, 2013 ONCA 177, 297 C.C.C. (3d) 87, the trial judge concluded that
    P.C. Richardsons request for the appellants identification for purposes of a
    general criminal investigation, rather than simply for valid
HTA
-investigation
    purposes, constituted a breach of the appellants right to be protected from
    unreasonable search and seizure.  The request for identification in
    circumstances of the appellants detention pursuant to the traffic stop
    amounted to a warrantless seizure without reasonable cause.

[52]

As Doherty J.A. explained in
Harris
, at paras. 40-41 and 44:

In the circumstances, Harriss identification in response to
    the officers question constitutes a seizure and attracts s. 8 protection.

The seizure was unreasonable.  As in
Mellenthin
[3]
,
    [the police officer] had no reason to suspect Harris [the passenger] of
    anything when he questioned him and requested his identification.  The purpose
    for the stop and the consequential detention of Harris and the other occupants
    of the vehicle had nothing to do with the request for Harriss identification.
    The purpose of the stop did not justify an at large inquiry into Harriss
    background or his status in the criminal justice system.  That was the effect
    of the request for identification.  Just as in
Mellenthin
, [the police
    officer] expanded a
Highway Traffic Act
stop into a broader and
    unrelated inquiry.  Harriss identification of himself provided the entré
e into that broader and unrelated inquiry.

I conclude that Harris was subject to a
    seizure when he gave [the police officer] his identification.  The seizure was
    warrantless and without reasonable cause.

[53]

The Crown does not contest the trial judges finding of a s. 8 breach.

Section
    24(2)

[54]

The trial judges errors in failing to find a s. 9 breach and in failing
    to recognize the nature and duration of the s. 10(b) breach undermine his s.
    24(2) analysis in which he concluded that the evidence of the cocaine and cash
    should be admitted at trial, and deprive it of the deference to which it would
    otherwise be entitled.  In the circumstances, it falls to us to revisit the
    analysis.  In doing so, however, I will have regard to the factual findings of
    the trial judge.

[55]

Section 24(1) of the
Charter
permits a person whose
Charter

rights have been infringed or denied to apply to the court for a remedy.  Section
    24(2) provides a particular remedy: the exclusion of evidence obtained in a
    manner that infringed or denied a persons
Charter

rights,
    where the admission of that evidence would bring the administration of justice
    into disrepute.

[56]

In
Grant
, the Supreme Court of Canada crafted the balancing analysis
    to be undertaken by a court in determining whether such evidence should be
    excluded in such circumstances.  Noting, at para. 67, that the purpose of s.
    24(2) is to maintain the good repute of the administration of justice, McLachlin
    C.J. and Charron J., writing for the majority, summarized the appropriate
    approach, at para. 71, as follows:

When faced with an application for exclusion under s. 24(2), a
    court must assess and balance the effect of admitting the evidence on societys
    confidence in the justice system having regard to: (1) the seriousness of the
Charter
-infringing
    state conduct (admission may send the message the justice system condones
    serious state misconduct), (2) the impact of the breach on the
Charter
-protected
    interests of the accused (admission may send the message that individual rights
    count for little), and (3) societys interest in the adjudication of the case
    on its merits.  The courts role on a s. 24(2) application is to balance the
    assessments under each of these lines of inquiry to determine whether,
    considering all the circumstances, admission of the evidence would bring the
    administration of justice into disrepute.

[57]

For the reasons outlined above, when balancing what have come to be
    known as the
Grant
factors, I do so against a different
Charter
-violation
    backdrop than that considered by the trial judge.  The results of the analysis
    differ accordingly.

Seriousness of
    the Charter Breach

[58]

The trial judge conducted his analysis on the basis of their having been
    a relatively low-threshold s. 8
Charter
breach and a relatively brief
    s. 10(b) violation. He made a finding that the police officers had not acted in
    bad faith or in wilful and deliberate breach of the appellants rights, and had
    not attempted to mislead the court in their testimony.  Given his view that
    detention concerns did not arise until after the appellant was seen to throw
    the object under the white vehicle, he was able to conclude that the
    seriousness of the s. 10(b) violation was diminished because the police were
    justified in acting as they did by the urgency and necessity of the situation
    surrounding the drug find and arrest.

[59]

He therefore determined that the first
Grant
factor weighed in
    favour of inclusion of the impugned evidence.

[60]

Once it is accepted, however  as I conclude  that the appellant was
    held, unlawfully, in investigative detention for more than half an hour,
    without being provided with his right to counsel during that period, and that
    there were therefore
three
consecutive
Charter

breaches
    committed  two, at least (s. 9 and s. 10(b)), quite serious in nature  the
    analysis points in the opposite direction, in my view.

[61]

On the trial judges analysis, the s. 8 violation was less serious than
    might otherwise have been the case.  He concluded that P.C. Richardson
    reasonably believed (although perhaps mistakenly) that the appellant had not
    been wearing a seat belt when the Honda passed his cruiser in the alley, that
    he could have ticketed the appellant for that infraction (although he did not),
    and in those circumstances would have had a lawful means to ask the appellant
    for identification (although, as noted above, on the trial judges findings,
    P.C. Richardson did not in fact ask the appellant for his identification on
    account of the seat belt issue).

[62]

Looked at in isolation, this view of the s. 8 violation, on a spectrum
    of less serious to more serious s. 8 violations, may be less serious.  However,
    the s. 8 violation provided the entrée to the two serious ss. 9 and 10(b)
    violations that followed.  Once the latter violations are in the mix, the s. 8
    violation cannot be viewed in isolation for purposes of the seriousness of the
    breach analysis.

[63]

Two other considerations played into the trial judges approach to that
    analysis.  The first was his finding that the police officers had not acted in
    bad faith, or in deliberate or wilful breach of the appellants
Charter
rights, or in an attempt to mislead the court in their testimony.  The second
    was his view that the appellant was not detained for criminal investigative
    purposes until P.C. Stone physically detained and handcuffed him at 7:57 p.m.

[64]

In spite of the appellants vigorous attack on the trial judges
    findings with respect to bad faith generally, the finding was open to him on
    the record, and I see no basis for interfering with it.  I accept those
    findings for purposes of the s. 24(2) analysis.  That said, given my conclusion
    that there were three consecutive
Charter

breaches  two of
    which are serious  it is also open for me to observe that the police conduct
    in these circumstances can fairly be described as demonstrating at least a
    sustained indifference to the appellants
Charter

rights.  I do
    not accept the finding of no-bad-faith as enough to tip the first
Grant
factor analysis in favour of admitting the evidence.

[65]

It was the trial judges failure to appreciate the presence of a s. 9
    breach, and his consequent view that the appellants s. 10(b) rights were only
    triggered upon his physical detention by P.C. Stone at 7:57 p.m. that were
    central to the trial judges conclusions respecting the seriousness of the
    breaches.  This is apparent from his comments at paras. 52-54 of his reasons:

In this case, there was no warrantless search of anything for
    the purpose of finding drugs. In fact, there was no search or unreasonable
    search of Mhlongo or even an attempt made to question Mhlongo or obtain
    incriminating evidence or statements from him. The cocaine was found only after
    Mhlongo himself in sight of Stone threw it away under the white car. The
    officers evidence is clear that although he intended to detain Mhlongo as he
    approached him, he never did so until after Mhlongo himself had thrown the
    object under the car which turned out to be cocaine when the police officer
    retrieved it.

In addition, Stone obviously knew he had to act quickly to
    retrieve what Mhlongo had thrown under the car as the driver of that car was in
    it. He had just assisted when one of the passengers who ran away had to be
    caught and restrained and it was not unreasonable for him in all the
    circumstances that evening to detain Mhlongo briefly while he searched for what
    he had just discarded. He admits he should have given him his right to counsel
    when he detained him in the back of his cruiser. However, he obviously believed
    in the urgency of immediately retrieving what was discarded and avoid[ing] the
    potential of Mhlongo also leaving the scene as the rear passenger had done shortly
    before. There was the potential and real risk of destruction of evidence if the
    vehicle started to move before the police officer checked underneath it. The
    urgency and necessity of this police action diminishes the seriousness of the
Charter
violations as upon retrieving the evidence, Stone immediately placed
    Mhlongo under arrest and read him his rights to counsel.

There was no expectation of privacy that Mhlongo had in the
    discarded cocaine thrown under the car which also diminishes the seriousness of
    the violations.

[66]

While acceptable in the context of the trial judges approach, this
    analysis is of little assistance in the context of the s. 9 and much more
    prolonged s. 10(b) breaches.  I view the unlawful detention of the appellant
    for purposes of a criminal investigation - in circumstances where P.C.
    Richardson concedes he had no basis at all for such a detention - as well
    toward the serious end of the breach spectrum, and the failure to provide the
    appellant with his right to counsel for more than half an hour after the
    commencement of that unlawful detention as even further along that spectrum.

[67]

The first
Grant
factor points strongly towards exclusion of the
    impugned evidence, in my view.

Impact
    of the Breach on the Charter-Protected Interests of the Appellant

[68]

Similar considerations lead me to hold that the second
Grant
factor also points strongly towards exclusion.

[69]

The trial judge was entitled to conclude, as he did, that the appellant
    was not humiliated or treated in a poor fashion by the police, even though
    the events took place in a public parking lot.  Prior to his arrest, he was not
    subjected to a search of his person, publicly.  The trial judge again observed that
    [a]lthough running a CPIC search on Mhlongo may have been an invasive and
    unwarranted search into his private personal information, there was no
    questioning, physical detention or search of him that lead to any incriminating
    evidence.

[70]

The balance of the trial judges analysis regarding the impact of the
    breach hinged again on his view of the relevant timing of the s. 10(b)
    violation and his determination that the appellant was in effect the author of
    his own misfortune by discarding the cocaine in sight of P.C. Stone, thereby
    giving up any right to privacy in it and triggering the events that logically
    followed its discovery.

[71]

Again, I take a different view.

[72]

The unlawful detention was what gave rise to the appellants immediate
    right to counsel.  By failing to inform him of his s. 10(b) rights, the police
    deprived the appellant of any meaningful opportunity to assert his legal rights
    during the investigative detention and, ultimately, he incriminated himself by
    throwing the drugs in his possession under the white vehicle.  Protection
    against self-incrimination is an important concern underlying the s. 10(b)
    right: see
Suberu
, at paras. 40-41. Had the appellant been informed of
    his rights  as he should have been, at or around 7:25 p.m.  events might well
    have unfolded differently.

[73]

It is not enough to say, as the Crown asserts, that the computer
    searches of the appellants name (flowing from the s. 8 breach) were
    inconsequential because they yielded no incriminating evidence with respect to
    the drug charge or, as the trial judge found, that the appellant created his
    own difficulties by intentionally discarding the drugs and giving up any
    privacy rights in them.  The right to counsel is designed to guard against the
    very eventuality of self-incrimination.

[74]

The second
Grant
factor strongly favours exclusion of the
    evidence.

Societys
    Interest in Adjudication of the Case on the Merits

[75]

I agree with the trial judge and Crown counsel that the third
Grant
factor
    favours admission of the evidence.  The seized drugs provided real and reliable
    evidence and were essential to the proof of a serious crime.  Society has an
    important interest in the adjudication of such cases on the merits.

Balancing
    the Grant Factors

[76]

It does not necessarily follow from the foregoing that exclusion wins
    over admissibility by a 2:1 score, however.  As
Grant

stipulates,
    [t]he courts role on a s. 24(2) application is to balance the assessments
    under each of these lines of inquiry to determine whether, considering all the
    circumstances, admission of the evidence would bring the administration of
    justice into disrepute (para. 71).  See also
R. v. Harrison
, 2009 SCC
    34, 245 C.C.C. (3d) 86, at para. 36.

[77]

I am satisfied, though  after considering all the circumstances and, in
    particular the serious s. 9 breach and the lengthy s. 10(b) breach  that the admission
    of the impugned evidence here would bring the administration of justice into
    disrepute and that, in balancing all the factors, the evidence should therefore
    be excluded.  As Doherty J.A. said in
R. v. McGuffie
, 2016 ONCA 365, 131
    O.R. (3d) 643, at para. 63: [i]f the first and second inquiries make a strong
    case for exclusion, the third inquiry will seldom, if ever, tip the balance in
    favour of admissibility.  This is consistent with the jurisprudence generally,
    which cautions against resorting to the third
Grant
factor in a
    systematic fashion to require the admission of reliable evidence obtained in
    plain disregard of an accuseds
Charter

rights: see, for
    example,
R. v. Dunkley
, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 63;
Harrison
, at paras. 36 and 40.

Disposition

[78]

For the foregoing reasons, I would allow the appeal and set aside the
    appellants conviction.  Since the excluded evidence was essential to the proof
    of the Crowns case, I would enter an acquittal.

Released:

JCM                                                            R.A.
    Blair J.A.

JUN 30 2017                                     I agree
    J.C. MacPherson J.A.

I
    agree Gloria Epstein J.A.

[1]
The Canadian Police Information Centre (CPIC) and Niche RMS databases are
    available only to police. They contain not only records of criminal convictions,
    but can also include information about outstanding warrants, court orders,
    charges, police contacts and investigations relating to individuals and
    locations.

[2]

McMurtry C.J.O. agreed with Doherty J.A.  OConnor A.C.J.O.
    concurred in the result, and with the s. 9 analysis, but differed from the
    majority on the s. 8 analysis.

[3]

R. v. Mellenthin
, [1992] 3 S.C.R. 615.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Monckton, 2017 ONCA 450

DATE: 20170602

DOCKET: C58800

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Monckton

Appellant

Raymond Boggs, for the appellant

Craig Harper, for the respondent

Heard: February 28, 2017

On appeal from the convictions entered by Justice Alexander
    Sosna of the Superior Court of Justice, sitting with a jury, on November 21,
    2012, and from the sentence imposed on February 22, 2013, with reasons reported
    at 2013 CanLII 87464.

Trotter J.A.:

A.

overview

[1]

Michael Monckton was convicted of second-degree murder for killing
    Keagan Davis, the 2 ½-year-old son of his girlfriend. He was also convicted of
    assault causing bodily harm in relation to the injuries Keagan suffered in the
    weeks or months leading up to his death.

[2]

Keagan was the son of Leigh-Ann Cooper and Dan Davis, who were separated.
    Keagan lived with his mother. She met the appellant on the Internet in August
    of 2010 and started dating. The appellant moved in two months later. By the end
    of November, he was laid off from his job and became Keagans caregiver during
    the day, while Ms. Cooper was at work.

[3]

On the morning of January 5, 2010, the appellant messaged Ms. Cooper at
    work. He told her to call 911 and come home. When she arrived home, Keagan lay
    lifeless on his bedroom floor. Paramedics were unable to revive him. Keagan was
    pronounced dead at the hospital. An autopsy revealed that he had suffered a
    shocking array of serious and painful injuries.

[4]

The appellant denied harming or killing Keagan. He argued that many of
    Keagans injuries were inflicted before he came into the picture. The appellant
    pointed the finger at Ms. Cooper, although he did not testify himself.

[5]

The appellant appeals his convictions, and the 15-year period of parole
    ineligibility imposed by the trial judge. For the reasons that follow, the
    appeals are dismissed.

B.

the facts

(1)

Introduction

[6]

Keagan was born on May 25, 2007. For the first two years of his life,
    Keagan and his parents lived with different members of their extended families.
    Apart from surgery for an undescended testicle, Keagan was healthy. Many family
    members participated in caring for Keagan and were in a position to observe how
    Ms. Cooper and Mr. Davis parented him. They observed no problems. Nobody
    involved in Keagans care physically disciplined him.

[7]

Ms. Cooper and Mr. Davis ended their relationship in April 2009, but Mr.
    Davis had access to Keagan on a regular basis. Ms. Cooper found her own
    apartment in September of 2009, where she lived with Keagan.

(2)

The Appellant Enters the Picture

[8]

Ms. Cooper met the appellant in August of 2009. He spent a great deal of
    time at her apartment. He moved in shortly afterwards. In one of his statements,
    the appellant told the police he had been living there for about five months.

[9]

In November of 2009, the appellant and Mr. Davis got into an argument on
    the phone. The appellant apparently said that Keagan was a retard and should
    be dead. Mr. Davis did not mention this utterance until the third time he spoke
    to the police. The argument between Mr. Davis and the appellant escalated and
    Mr. Davis was charged with threatening death. As a consequence of his bail
    conditions, he was not allowed to see Keagan until Christmas day that year.

[10]

The appellant lost his job on November 30, 2009. He remained home and
    looked after Keagan. Ms. Coopers mother, who had been assisting with Keagans
    care, stopped her daily visits. However, Keagan continued to occasionally sleep
    at her home.

[11]

Members of the Cooper and Davis families started to notice marks and
    injuries on Keagans body in the fall of 2009. Ms. Coopers sister, Laura,
    noticed small circular bruises on Keagans back when she bathed him. Other
    injuries family members observed included: a goose egg and bruise to Keagans
    forehead; rug burns to his hip; and yellow bruises to his lower back. Ms.
    Cooper noticed bruising down the middle of his back. On Christmas Day, Mr.
    Davis family noticed bruises to Keagans back and forehead, and redness on his
    scalp. They were so concerned that they photographed the injuries. Keagan also
    complained of pain when Mr. Davis mother took his hand. The appellant
    explained away some of Keagans injuries as the result of a fall.

[12]

In addition to noticing these injuries, family members also testified to
    a change in Keagans behaviour in the fall of 2009. He became upset when
    leaving his grandparents homes.

[13]

Keagan was sick on and off from December 28, 2009 until the day he died.
    He experienced flu-like symptoms. Ms. Cooper did not take Keagan to the doctor because
    she was concerned about the H1N1 virus, although she did seek treatment for
    herself at a walk-in clinic. She treated Keagans symptoms with Motrin and
    Gravol. On one occasion, Keagan was injured in the kitchen. The appellant told
    Ms. Cooper that Keagan fell off a kitchen chair and vomited. Ms. Cooper found
    him in a pool of vomit, with a bleeding nose. On January 2, 2010, Keagan had a
    bruise on his upper back and on the nape of his neck. The appellant said Keagan
    fell into a wooden chair while playing with another child.

(3)

January 5, 2010

[14]

Leigh-Ann Cooper got up at 6:30 a.m. and left for work at 7:30 a.m.
    Keagan was fine when she left. Ms. Cooper had planned to return home for lunch
    at about 11:30 a.m. At 11:33 a.m., she received a message from the appellant,
    telling her to come home quickly and to call 911. When Ms. Cooper arrived home,
    Keagan was not breathing. The appellant was performing CPR. Ms. Cooper called 911
    at 11:40 a.m. The appellant came on the line at one point to say that he had a
    shower with Keagan and put underwear on him, put him in his room, and when he
    returned, Keagan was lying on the floor. During the call, the operator
    encouraged the appellant and Ms. Cooper to perform CPR.

[15]

The police soon arrived at the scene. Keagan appeared lifeless and was
    without vital signs. The appellant was crouched down beside Keagan, but not
    performing CPR. Referring to the ambulance, he yelled, Where the fuck are
    they? A similar utterance can be heard on the 911 recording, during which the
    appellant said he was performing CPR.

[16]

When the paramedics arrived, Keagan was taken to the ambulance, where he
    could be treated more effectively. All of the paramedics testified that Keagan
    was wearing a diaper, not underwear, as the appellant said. Keagan was rushed
    to the hospital where he was pronounced dead.

(4)

The Appellants Statements

(a)

At the Scene

[17]

The appellant spoke to officers at the scene. Both he and Ms. Cooper
    were very emotional. The appellant appeared to be in shock. He cried at one
    point.

[18]

The appellant said that he and Keagan slept-in that morning. When they
    woke up, the appellant said that he took Keagan into the shower. After the
    shower, Keagan had a bowel movement in the toilet. Officers on the scene noted
    solid feces in the shower stall, something the appellant failed to mention to
    police at the scene.

[19]

The appellant told the police that Keagan had been complaining of a sore
    stomach and was sick for two weeks, with diarrhea, vomiting, fever and trouble
    breathing. The appellant said he found Keagan in distress on the bed, where he
    had left him briefly to get dressed. He picked Keagan up and put him on the
    floor. This contradicted his statement to the 911 operator that he
found
Keagan on the floor.

(b)

Later That Day

[20]

After being told that Keagan was dead, Mr. Davis and the appellant left
    the hospital in hysterics. Mr. Davis was persuaded to return. The appellant did
    not. That evening, the appellant spoke to Ms. Cooper and her father on the phone.
    Mr. Cooper asked the appellant to come home. The appellant said: But I wont see
    my kids again. Mr. Cooper asked, If you didnt do anything wrong, why
    wouldn't you be able to see your kids? The appellant said nothing.

(c)

The Police Interviews

[21]

On January 7, 2010, the appellant voluntarily went to the police
    station. Near the end of the interview, he was arrested for murder. He
    exercised his right to counsel. The interview continued shortly afterwards, but
    was terminated when the appellant experienced medical difficulties.
[1]
He was interviewed again on January 8, 2010.

[22]

In the first interview, the appellant denied harming Keagan. He said that
    he did not wake up until roughly 11 a.m. However, Ms. Coopers cell phone
    records revealed communication with the appellant at 8:12 a.m. and 9:47 a.m. Keagan
    was not feeling well and wanted the appellant to come into the shower with him.
    The appellant again failed to mention the feces in the shower. He dressed Keagan
    in underwear and put him on the bed. It was only later that the appellant moved
    Keagan to the floor when he realized that he was in distress. The appellant had
    no idea why Keagan went into distress that morning.

[23]

The appellant explained that he did not return to the hospital after
    learning Keagan had died because he was afraid to face Ms. Cooper and her
    family after failing to save Keagan.

[24]

The appellant continued to deny any wrongdoing in his second interview.
    For the first time, he mentioned that Keagan defecated in the shower. He admitted
    telling family members he wanted to kill himself, but only because he wanted to
    trade places with Keagan.

(5)

The Medical Evidence

[25]

Keagan suffered many injuries, at different times. It was important to
    determine when these injuries were caused in order to identify who caused them.

[26]

Dr. Michael Pollanen, a forensic pathologist, identified the cause of death
    as blunt abdominal trauma in a child with head injury and multiple other
    injuries of varying age.

[27]

Keagan suffered significant injuries to his mesenterythe fan of blood
    vessels, fat and connective tissue that surrounds the intestines and attaches
    them to the abdominal wall. Dr. Pollanen identified three sets of mesenteric
    injuriesrecent, healing and healed. The recent mesenteric injuries involved
    six lacerations, which resulted in bleeding in Keagans abdominal cavity. This
    injury could have been caused by one significant blow, within minutes to hours
    before death. The healing injuries occurred within days or weeks prior to
    death. The healed injuries within several weeks (perhaps months) before his
    death.

[28]

In addition to the recent mesenteric injury, Keagan suffered other
    recent injuries, including:

·

Bleeding within the abdominal wall;

·

Bleeding in and around the duodenum;

·

Four contusions underneath the skin at the top of the head, back
    of the head, right temple and left jawline. These were likely caused by the
    head coming into contact with broad, flat surfaces, each representing a
    separate contact point;

·

Bleeding in the left shoulder muscle, resulting from direct
    contact or forceful movement of the arm;

·

Bleeding under the skin of the tailbone; and

·

Two bruises on the penis, caused by pinching or twisting.

[29]

Dr. Pollanen found dozens of other injuries to this child. Keagans
    brain reflected changes from either trauma or lack of oxygen. He had three distinct
    bruises on his face, and suffered a laceration to the upper lip and frenulum,
    likely from punching, slapping or the forcing of an object into his mouth.

[30]

Keagan had six broken ribs. These fractures were either healed or
    healing. With the exception of a re-fracture of one of the ribs, Dr. Pollanen
    excluded CPR as the cause of these injuries, which would have required
    considerable force, within weeks of Keagans death.

[31]

Keegan had compression factures of three vertebrae, with disc bleeding,
    caused by significant force, either to the top of his head or to his buttocks.

[32]

Dr. Pollanen identified 18 small, circular bruises to the exterior of
    the abdomen, consistent with punching or heavy prodding, likely occurring
    within 3 to 5 days of death. He also found 13 bruises on Keagans back,
    including the neck, shoulder blades and spinal column.

[33]

Keagan suffered an abrasion or friction injury to his scrotum, which was
    covered by a scab.

[34]

Keagan had four bruises on his upper arms, all caused by blunt force.
    Significantly, the left forearm bones (both the ulna and the radius) had been
    fractured. A significant amount of force would have been required to cause
    these injuries, which likely occurred within weeks of his death. Of similar age
    were symmetrical fractures of both of his ring fingers, also caused within
    weeks of his death.

[35]

Lastly, Keagan suffered 14 blunt force injuries to his lower limbs.

[36]

Dr. Pollanen testified that Keagans injuries were indicative of child
    abuse. He rejected CPR as the cause of Keagans death. He explained that there
    was no demonstrable, non-traumatic cause for his sudden collapse or death.

[37]

Dr. Pollanen was challenged on his estimates of the timing of Keagans
    injuries. He agreed that Keagans recent injuries could have been 18 to 24
    hours old. However, Dr. Pollanen was generally of the view that Keagans recent
    abdominal injuries were inflicted within minutes to hours of death, and certainly
    around the time of death.

[38]

Similarly, with respect to Keagans fractures, Dr. Pollanen agreed that
    it could take up to 16 weeks for secondary calluses to form around the healing
    fractures. However, he qualified this answer in the following way: But again,
    if we are going to talk about specific weeks, then if you want a more precise
    answer, I would have to check the medical literature on that.

[39]

The Crown also relied on the evidence of Dr. Michelle Shouldice, an
    expert in paediatrics and the evaluation of suspected injuries in children. Dr.
    Shouldice testified that the bruising found over Keagans body was the result
    of multiple applications of force. She expected that a child with Keagans
    injuries would be in a lot of discomfort and would cry when the injuries
    occurred. Discomfort would continue for some time.

[40]

Dr. Shouldice testified that Keagans abdominal injuries were significant
    and not typical of common toddler falls. A significant amount of force would be
    required to crush tissues within the abdomen. She explained that common
    symptoms of this type of injury in a child include vomiting, loss of appetite
    and changes in bowel habits. Dr. Shouldice said that children with abdominal
    trauma just generally dont appear well. She testified that CPR could have caused
    the recent damage to Keagans mesentery, but ruled out CPR as a cause of his
    older mesentery injuries. She deferred to Dr. Pollanen on the timing of
    Keagans mesentery injuries.

[41]

With respect to the healing process of the forearm, Dr. Shouldice
    testified that it could take up to six months, especially if the arm was not
    immobilized. However, she again deferred to Dr. Pollanen on the issue of
    timing.

C.

THE APPEAL AGAINST CONVICTION

[42]

The appellant raises a number of grounds of appeal that relate to the
    timing of Keagans injuries and whether the appellant had the opportunity to
    cause them. It was the appellants position at trial, and on appeal, that some
    of Keagans older injuries were inflicted before he ever met Keagan. Because
    the Crown alleged that one person caused all of Keagans injuries, the
    appellant could not be found guilty of inflicting any of them, including those
    that were fatal. The appellant did not testify himself, but through his
    counsels cross-examinations and closing address to the jury, he suggested that
    Ms. Cooper was responsible for her sons death.

(1)      Instructions to the Jury
    to Consider the Evidence as a Whole

[43]

The appellant argues that the trial judge failed to sufficiently instruct
    the jury to consider the evidence against the appellant as a whole. This error
    was compounded, the appellant contends, by the trial judges answer to a
    question concerning the aggravated assault charge.

[44]

This ground of appeal relates to the timing of Keagans injuries,
    especially in light of how the indictment was framed, and then amended just
    before the trial judges final instructions to the jury. This requires further
    elaboration.

(a)      The Indictment and Its Amendment

[45]

The appellant was originally charged with three offences, with the
    following time frames: (1) second-degree murder (on January 5, 2010); (2)
    aggravated assault (endangering life) (between October 1, 2009 and January 5,
    2010); and (3) assault causing bodily harm (between October 1, 2009 and January
    5, 2010). January 5, 2010 was common to all three counts.

[46]

During an extensive Pre-Charge Conference, the trial judge expressed
    concern about the overlapping date of January 5, 2010 and the jurys
    deliberations on the aggravated assault count. Observing that there was no
    medical evidence that established that the healed and healing mesenteric
    injuries endangered Keagans life, the trial judge was concerned that, if the
    jury found the appellant was guilty of murder, it might automatically conclude
    that the appellant also endangered Keagans life by inflicting similar injuries
    on an earlier occasion.

[47]

The trial judge was ultimately satisfied that medical evidence existed from
    which the jury could infer that Keagan suffered life-endangering injuries
    before January 5, 2010. However, to focus the jurys attention, the trial judge
    proposed that the time frame of the aggravated assault and assault causing
    bodily harm counts be amended to end on January 4
th
, the day before
    Keagan died, rather than on January 5
th
.

[48]

In his factum, the appellant argues that the trial judge erred in
    amending the indictment in this manner. However, counsel for the appellant explicitly
    consented to this amendment. Nevertheless, the appellants main argument on
    appeal is that, without a proper instruction that the jury must consider all of
    the evidence when considering each of the three counts, the jury may have
    considered the evidence as it related to Keagans fatal injuries without ever
    considering the potential timing of some of his earlier injuries, and whether
    they occurred before the appellant entered the picture.

(b)      The Trial Judges Instructions

[49]

In his final instructions to the jury, the trial judge explained the recent
    amendment to the indictment:

You will see the same date of January the 4
th
on the
    assault causing bodily harm count. Again, this was done to keep your
    deliberations focused. In other words, on these two counts, you will be dealing
    with the evidence of the healed and healing injuries.

On the charge of aggravated assault, in accordance with the
    Crowns position, I suggest you focus on the healed and healing injuries
    sustained to the mesentery.

[50]

Seven times throughout the rest of his charge, the trial judge stressed
    that the jury must consider all of the evidence in deciding whether the
    appellant was guilty of any one of the three counts. Counsel for the appellant
    had no objections to the trial judges charge to the jury. He did not identify
    the inadequacy now raised on appeal.

(c)      The Jurys Questions

[51]

On the second day of deliberations, the jury asked the following two
    questions at the same time:

We, the jury, respectfully request clarification on the
    following two questions:

1. Does the charge of aggravated
    assault specifically apply to the healing and healed mesentery injuries or the
    sum of all injuries?

2. Could you please clarify the
    definition of state of mind as it pertains to the decision tree for second
    degree murder?

[52]

In the colloquy that followed, the Crown and the defence agreed that the
    aggravated assault charge related to the healed and healing mesentery injuries,
    but not the sum of all of Keagans injuries. Defence counsel advised the trial
    judge: I would agree that it was healed and the healing. The trial judge
    answered the jurys question accordingly.

[53]

Following this instruction, the appellant argued that the trial judge
    failed to provide the jury with an instruction about circumstantial evidence
    and reasonable doubt, in accordance with
R. v. Griffin
, 2009 SCC 28,
    [2009] 2 S.C.R. 42. Even though the jury had already received this instruction
    much earlier in the main charge, the trial judge obliged and gave this
    instruction again. This repetition was the last instruction the jury heard
    before delivering its verdicts.

(d)

The Trial Judge Did Not Err in His Approach

[54]

In all of the circumstances, given the live issues at trial, and the
    positions of counsel, I can find no error in the manner in which the trial
    judge instructed the jury on this issue, or in how he answered the jurys
    question.

[55]

Looked at in their entirety, the trial judges instructions to the jury
    were comprehensive, fair and focused on the salient issues at trial: see
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at paras. 33 and 35; and
R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 28-31. It is not determinative that
    defence counsel failed to object to matters now complained of on appeal. However,
    it is an important consideration in assessing whether the jury was properly and
    fairly instructed:
Jacquard
, at paras. 37-38;
R. v. Polimac
,
    2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A.
    No. 263, at para. 89; and
R. v. Chandrakumar
, 2007 ONCA 798, 231
    O.A.C. 30, at para. 36.

[56]

The trial judge properly instructed the jury on all critical issues with
    the full agreement of experienced trial counsel. The amendment to the
    indictment and the trial judges final instructions helped the jury apply the
    complex medical evidence to the temporal issues framed by defence counsel. The
    manner in which the jury was charged did not undermine the appellants position
    that, based on the theory of a single perpetrator of all of Keagans injuries,
    he had to be excluded because of the potential timing of the earlier injuries,
    which occurred at a time when the appellant could not have been the perpetrator.

[57]

I would not give effect to this ground of appeal.

(2)      Was the Murder Conviction Unreasonable?

[58]

The appellant argues that the second-degree murder verdict is unreasonable
    and unsupported by the evidence. This argument has two components: (1) there
    was no evidence upon which the jury could find that the appellant caused the
    various injuries Keagan sustained; and (2) there was no evidence from which the
    jury could be satisfied beyond a reasonable doubt that the appellant had the requisite
mens rea
for murder. I deal with each in turn.

(a)      The Appellant as Perpetrator

[59]

As with the previous ground of appeal, the appellant focuses on aspects
    of the evidence that suggest potential timelines for Keagans injuries that
    pre-dated the appellants involvement in his life.

[60]

There was evidence favourable to the appellant on this issue. This
    emerged through the cross-examinations of Dr. Pollanen and Dr. Shouldice.
    Counsel for the appellant attempted to leverage the qualifications made in
    their evidence about the timing of Keagans injuries to create reasonable doubt
    about whether the appellant was the perpetrator. However, this potential for
    reasonable doubt does not equate with an unreasonable verdict.

[61]

It was ultimately for the jury to assess the weight of this medical
    evidence, in the context of all the evidence, against the standard of proof
    beyond a reasonable doubt. On appeal, when considering the reasonableness of a
    verdict, the focus is different. As Tulloch J.A. wrote in
R. v. McCracken
,
    2016 ONCA 228, 348 O.A.C. 267, at para. 34:

The issue is not whether the reviewing court
    would have convicted the appellant, but whether the evidence, viewed through
    the lens of judicial experience, was reasonably capable of supporting a finding
    of guilt. The reviewing court must ask itself whether the jurys verdict is
    supportable on
any
reasonable view of the evidence and whether
    proper judicial fact-finding applied to the evidence
precludes
the
    conclusion reached by the jury (emphasis in original):
R. v.
    W.H.
,
2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 2,
    26-28. [Emphasis in original.]

[62]

Applying the same approach to this case, the verdict was not
    unreasonable or lacking support in the evidence. The timing of Keagans injuries
    was not the exclusive domain of expert evidence. This issue had to be
    determined in light of all of the evidence, including the following:

·

The appellant had sole care of Keagan on the morning he died; his
    mother was at work;

·

The appellant did not call 911 when Keagan was in distress;

·

The appellant excluded Ms. Cooper as a suspect in his pre-trial
    statements, although this position changed by the time of trial;

·

The appellants post-offence conduct (
i.e
.
, his
    suicidal thoughts and his statement to Mr. Cooper that he would not see his
    children again) suggested a belief that he was responsible for Keagans death;

·

The appellant made contradictory pre-trial statements, and his
    phone records suggest that he did not sleep in until 11 a.m., as he told
    everyone he did; and

·

The appellant was the primary caregiver of Keagan in the weeks
    leading up to his death, when Keagan sustained multiple severe injuries.

[63]

Turning to the expert evidence, the cross-examination of Dr. Pollanen
    and Dr. Shouldice elicited answers that raised the
possibility
that
    some of Keagans injuries were caused before the appellant entered Keagans
    life; however, these answers must be viewed in context.

[64]

Dr. Pollanen specifically described the limitations inherent in
    providing timelines for injuries. As he explained:

And then what is frequently the case is that tribunals such as
    this want to know, What does that mean in time? Can you give us hours, days,
    weeks, months, years? To some extent we can do that but we have to recognize
    the limits on that. So in other words, I know of no method that would allow a
    pathologist to determine discreetly, you know, the precise age of a wound but
    we can give some general guidelines and so as we move through the injuries that
    we have here, we can give general guidelines about the duration of those
    injuries.

[65]

This caution was important in the evaluation of Keagans injuries. In
    his examination-in-chief, Dr. Pollanen estimated that the healed mesenteric
    injuries were weeks to months old. Asked in cross-examination whether he could
    rule out the possibility of these injuries being 12 months old, Dr. Pollanen
    answered:

Could it be 12 months? My impression wasnt  it wasn't that it
    was that old. I guess the question is could I exclude that?

I dont think I could totally exclude  I don't think you could
    exclude  if you had an area of scar tissue that was relatively stable, healed
    for months, could you differentiate it from an area of scar tissue that you
    knew was a year old? Probably not.

[66]

A fair reading of Dr. Pollanens evidence as a whole is not that he
    accepted of 12 months as his best professional judgment of the age of the
    healed mesenteric injuries; he simply could not exclude this theoretical time
    frame. He maintained his original opinion that these injuries were weeks to
    months old. The same observations are applicable to his time-estimates of
    Keagans other injuries, including his fractures.

[67]

In all of the circumstances, there was evidence to support the jurys
    conclusion that the appellant caused Keagans fatal injuries. Furthermore,
    there was an evidentiary basis from which the jury could reasonably infer that
    all of the injuries suffered by Keagan were at the hands of the appellant.

(b)      The Intent for Murder

[68]

The appellant further argues that, if the appellant was the perpetrator
    of Keagans fatal injuries, there was no evidence that he intended to kill him.
    The appellant submits on appeal, as he did before the jury, that, at its
    highest, the evidence only established liability for manslaughter, not murder.
    I disagree.

[69]

The trial judge instructed the jury on both aspects of the requisite
mens
    rea
for murder in 229(a) of the
Criminal Code
, which provides:

229
Culpable
    homicide is murder

(a)
where the person who causes the death of a                       human
    being

(i)
means to cause his death, or

(ii)
means to cause him bodily harm that he                knows is
    likely to cause his death, and is reckless  whether death ensues or not.

The trial judge expanded his instructions on the
    application of this provision when the jury asked for clarification in its
    question, discussed above.

[70]

With the exception of post-offence conduct, the evidence detailed in
    paragraph 62, above, is capable of supporting the inference that, when the
    appellant assaulted Keagan on January 5, 2010, he intended to kill him or, more
    probably, intended to cause Keagan bodily harm that he knew was likely to cause
    his death, and was reckless whether death ensued or not. Of great significance
    on this issue is the degree of force required to cause Keagans fatal injuries.
    Weighing only 32 pounds, he suffered six lacerations to his mesentery. A jury
    could reasonably conclude that an adult male who inflicted this type of harm on
    such a small child did so with one of the intents in s. 229(a) of the
Criminal
    Code
.

[71]

As I have already noted, the post-offence conduct evidence relevant in
    identifying the appellant as the perpetrator of Keagans injuries was not
    probative on the issue of intent: see
R. v. Arcangioli
,
[1994] 1 S.C.R. 129. The trial judge was careful to remove it from
    the jurys consideration on this issue.

[72]

The appellant points to certain features of the
    evidence that he contends undermine the presence of the requisite
mens
    rea
.
First, the appellant argues that his
    behaviour after Keagan fell ill on January 5, 2010 was inconsistent with an
    intention to kill Keagan. He points to his life-saving efforts and his obvious
    signs of distress when EMS personnel arrived at the house, and later at the
    hospital after Keagan had died.

[73]

It was open to the jury to consider these items of evidence in deciding
    whether one of the intents for murder in s. 229(a) had been proved beyond a
    reasonable doubt. However, they may have had minimal value. The evidence
    concerning life-saving efforts was equivocal. Ms. Cooper testified that the appellant
    performed CPR on Keagan. However, officers on the scene maintained that they
    did not see the appellant actively engaged in CPR. It must also be remembered
    that the appellant did not call 911. He messaged Ms. Cooper instead.

[74]

More importantly, the appellants subsequent actions and emotional presentation
    were not necessarily inconsistent with someone who,
at the point in time
    when the fatal assault occurred
, intended to kill Keagan or cause the
    serious type of bodily harm contemplated by s. 229(a)(ii) of the
Code
.

[75]

The jury was instructed that, to find the appellant guilty of
    second-degree murder, one of the two mental states for murder must be present
    at the time he inflicted harm on Keagan. In
R. v. Cooper
, [1993] 1
    S.C.R. 146, also a case of second-degree murder, Cory J. said at p. 157: There
    is, then, the classic rule that at some point the
actus reus
and the
mens
    rea
or intent must coincide. See also
R. v. Williams
, 2003 SCC
    41, [2003] 2 S.C.R. 134, at para. 35; and Don Stuart,
Canadian Criminal Law
     A Treatise
, 7th ed. (Toronto: Carswell, 2014), at pp. 399-401. This
    rule, often referred to as the simultaneous principle, does not require a
    lingering murderous intent after this point of convergence. If the appellants acts
    and mind came together as contemplated by this principle, his subsequent shock,
    horror or regret, combined with apparent efforts to undo what he had just done,
    were of no moment.

[76]

The appellant further argues that, assuming the prosecution theory that
    a single perpetrator inflicted all Keagans injuries, the fact that the healed
    and healing mesenteric injuries did not result in death suggests a lack of
    intent on the appellants part in inflicting the subsequent, fatal injuries.
    This argument was made to the jury during defence counsels closing address. By
    its verdict, the jury rejected this line of reasoning. This rejection does not
    make the jurys verdict unreasonable.

[77]

Moreover, this argument is undermined by Keagans precise cause of death.
    It was not restricted to the recent mesentery injury; Dr. Pollanen described it
    as blunt abdominal trauma in a child with head injury and multiple other
    injuries of varying age.

[78]

The verdict of guilty on the count of second-degree murder was
    reasonable and supported by the evidence.

(3)      Inconsistent Verdicts

[79]

The appellant was convicted of second-degree murder and assault causing
    bodily harm; he was acquitted of aggravated assault. He argues that the jurys
    verdict of guilty on the murder count is inconsistent with the acquittal on the
    aggravated assault count. I disagreeall three verdicts are reconcilable based
    on their different conceptual elements, the nature of the evidence that applied
    to each of them and the significant temporal divide caused by the amendment of
    the indictment.

[80]

In
R. v. Catton
, 2015 ONCA 13, 319 C.C.C. (3d) 99, at para. 21,
    Doherty J.A. provided the following account of the law concerning inconsistent
    verdicts:

Inconsistent verdicts are a subspecies of
    unreasonable verdicts:
R. v. Pittiman
, [2006]
    1 S.C.R. 381 at para. 6. If a trier of fact returns a conviction on one count
    (or against one accused), and an acquittal on another count (or against a
    co-accused), the inconsistency in the verdicts will only render the conviction
    unreasonable if the appellant can demonstrate that on any realistic view of the
    evidence, the verdicts cannot be reconciled on any rational or logical
    basis:
R. v. McShannock
(1980), 55
    C.C.C. (2d) 53 (Ont. C.A.), at 56;
Pittiman
, at paras. 7-8.

[81]

Assessing the consistency of verdicts engages a consideration of
    the elements of the offences in question, temporal considerations, and the nature
    and quality of the evidence relating to specific counts. As Charron J. said in
R.
    v. Pittiman
, 2006 SCC 9,
[2006] 1 S.C.R. 381,
at
    para. 8:

in the case of a single accused charged with multiple
    offences, different verdicts may be reconcilable on the basis that the offences
    are temporally distinct, or are qualitatively different, or dependent on the
    credibility of different complainants or witnesses.

[82]

While the appellant seeks to impugn his conviction for murder by
    attempting to show its inconsistency with his acquittal for aggravated assault,
    it is important to consider the verdicts on all three counts that were before
    the jury. As a whole, the three verdicts that the jury reached are readily
    explainable.

[83]

I start with the nature of the offencesmurder (s. 229(a)),
    aggravated assault (s. 268), and assault causing bodily harm (s. 267(b)). Each
    has different elements.

[84]

The key elements of murder have already been described above in
    terms of the mental element. Of course, in addition to the
mens rea

requirements, an essential component of murder is causation: the force an
    accused inflicts must be a significant contributing cause of death.

[85]

To be found guilty of aggravated assault under s. 268, an accused
    person must commit an assault that wounds, maims, disfigures or endangers the
    life of another person. In this case, the charge was particularized to allege
    endangerment of life. Accordingly, given that the Crown relied upon Keagans
    earlier (healed and healing) mesenteric injuries to prove this offence, it was
    required to prove that Keagans life was endangered by the infliction of this
    specific harm, and not the harm inflicted on January 5, 2010.

[86]

Assault causing bodily harm in s. 267(b) is distinguished from
    aggravated assault by virtue of the type of harm caused. Section 267(b) must be
    read in conjunction with s. 2 of the
Criminal Code
, a provision of
    general application, which defines bodily harm as any hurt or injury to a
    person that interferes with the health or comfort of the person and that is
    more than merely transient or trifling in nature.

[87]

These elemental differences provide a complete explanation for the
    conviction for assault causing bodily harm and the acquittal on aggravated
    assault. The jury could have been satisfied that the appellant inflicted the
    kind of harm that amounted to bodily harm within the timeframe of these counts
    on the indictment (October 1, 2009 to January 4, 2010), while at the same time
    entertaining a reasonable doubt about whether Keagans life was actually endangered
    by that same bodily harm.

[88]

The different verdicts on the murder and aggravated assault charges are
    explained by the different evidentiary foundations applicable to both offences.
    Counsel agreed that the aggravated assault allegation related only to the
    healed and healing mesenteric injuries. To ensure the jury did not convict the
    appellant for both murder and aggravated assault for the same actthe recent
    mesenteric injuriesthe trial judge amended the indictment to make the murder
    and aggravated assault timeframes mutually exclusive. The jury was instructed
    that it had to determine the appellants liability on the aggravated assault charge
    without consideration of the fatal blows suffered by Keagan on January 5, 2010.

[89]

As both defence counsel and the trial judge pointed out, the
    healed and healing mesenteric injuries provided a weak evidentiary basis for
    aggravated assault. During the Pre-Charge Conference, the trial judge initially
    observed that there was no evidence that Keagans life was endangered by the
    previous injuries to his mesentery. Defence Counsel agreed: There is no
    evidence that those injuries alone could have put his life at risk. Referring
    to Dr. Pollanens evidence concerning mesenteric injuries, counsel said: this
    injury aloneeven on the doctors evidence as to the cause of death, this
    injury alone may not have caused the death. So, prior injuries of a similar
    nature, theres no evidence that they put his life at risk. It was entirely
    possible that the jury was satisfied that the appellants conduct on January 5
    amounted to murder, but that the evidence of healed and healing mesenteric
    injuries did not make out the aggravated assault charge.

[90]

Lastly, while the mesenteric injuries were critical to the
    aggravated assault charge, the cause of Keagans death was described in broader
    terms, involving more than just the recent injuries to his mesentery. Again, the
    cause of death was described as blunt abdominal trauma in a child with head
    injury and multiple other injuries of varying age.

[91]

In all of the circumstances, the verdicts are reconcilable. Accordingly,
    I would not give effect to this ground of appeal.

D.

The Appeal Against Sentence

[92]

The appellant was sentenced to a mandatory term of life
    imprisonment. The trial judge imposed a period of 15 years before the appellant
    is eligible to apply for parole. The appellant submits that the period of
    parole ineligibility was too harsh. In support of this position, he applies to
    adduce fresh evidence of his Aboriginal status, a matter that was not disclosed
    to his counsel at trial. Consequently, it was not brought to the attention of
    the trial judge on sentencing.

(1)      The Appellants Background

[93]

At the time of the offences, the appellant was 26 years old. He
    was 30 when he was sentenced.

[94]

The appellant has two children from a previous relationship. He
    also has a criminal record, dating back to late 2008, containing convictions
    for criminal harassment, breach of recognizance, mischief and breach of
    probation. These offences all related to the fallout from two of the
    appellants previous relationships. When he killed Keagan, the appellant was
    bound by three probation orders. Moreover, on November 19, 2009, the appellant
    was registered in the Child Abuse Registry with the Ontario Ministry of
    Community and Social Services. This related to his caregiving role in the life
    of another child. No criminal charges arose from the investigation that
    resulted in the appellants registration.

[95]

In his Pre-Sentence Report (PSR), the appellant reported that
    he enjoyed a close relationship with both of his parents, as well his younger
    sister. The appellant has struggled with alcohol in the past and no longer
    drinks. He reported using MDMA and marijuana, up until a few days before his
    arrest.

(2)      The Jurys Recommendations

[96]

Under s. 745.2 of the
Criminal Code
, the jury made
    recommendations about the appellants parole eligibility. Two jurors made no
    recommendation; four jurors recommended that parole not be available for 15
    years; and six jurors recommended that the appellant serve 25 years before
    becoming parole-eligible.

(3)      The Trial Judges Reasons

[97]

In written Reasons for Sentence, the trial judge addressed the factors
    for determining parole ineligibility set out in s. 745.4the character of the
    offender; the nature of the offence and the circumstances surrounding its
    commission; and the recommendations of the jury. Based on these factors, the
    Crown at trial submitted that a 15-year period of parole ineligibility was
    appropriate, whereas the defence requested the minimum, 10 years.

[98]

After reviewing the leading decision of the Supreme Court of
    Canada in
R. v. Shropshire
, [1995] 4 S.C.R. 227, the trial judge
    referred to the appellants high moral culpability and the horrific nature
    of Keagans deathcompounded by the litany of other injuries Keagan sustained
    in the weeks prior to death, and determined that the minimum period of parole
    ineligibility was not appropriate. Observing that the senseless and brutal
    murder of a defenceless child in ones care is an egregious breach of trust,
    the trial judge set the period of parole ineligibility at 15 years. He imposed
    a five-year concurrent sentence for the assault causing bodily harm conviction.

(4)      The Fresh Evidence

[99]

As I have already noted above, the appellant seeks to rely upon
    his Aboriginal status on his appeal from sentence. This was not brought to the
    attention of his trial counsel, nor the trial judge. The appellant did not raise
    the issue with the author of the PSR.

[100]

The
    appellant did not make an application to adduce fresh evidence on the sentence
    appeal under ss. 683 and 687 of the
Criminal Code
, as he should have
    done. Instead, the appellant simply included in his Appeal Book an affidavit
    from his father, Harvey Monckton.

[101]

In
    this affidavit, Mr. Monckton swears that, I am a Native Canadian and have been
    for over 30 yearsI am from the 6 Tribes reserves [and] my Native Tribe is
    called Oneida. He further states that his other two children [have] been
    Native Status for over 2 years and that the appellant is also Native by
    virtue of being my son, and is in the process of getting his Native Status. Mr.
    Monckton also swears that that the appellant wishes to learn more and more
    about his heritage and has become involved in Aboriginal programing while
    incarcerated.

[102]

Harvey Moncktons affidavit stands alone. There is nothing from the
    appellant that sheds light on his Aboriginal status and how it has factored in
    his life and his present circumstances.

[103]

In
    his Amended Supplementary Notice of Appeal, the appellant requests that, on the
    basis of Harvey Moncktons affidavit, he should receive the minimum period of
    parole ineligibility. At the hearing of the appeal, counsel for the appellant
    requested that his sentencing be remitted to the trial judge to be determined
    in accordance with s. 718.2(e) of the
Criminal Code
.

[104]

Section
    687 of the
Code
sets out the powers of an appellate court on a sentence
    appeal:

687

(1)
Where an appeal
    is taken against                          sentence, the court of appeal shall,
    unless the                          sentence is one fixed by law, consider the
    fitness               of the sentence appealed against, and may on                          such
    evidence, if any, as it thinks fit to require or                      to
    receive,

(a)
vary the sentence within the limits prescribed        by law
    for the offence of which the accused was    convicted; or

(b)
dismiss the appeal.

[105]

This
    provision provides appellate courts with two optionsto impose the sentence
    that it believes ought to have been imposed; or to dismiss the appeal outright.
    Unlike appeals from dangerous offender proceedings (s. 759(3)(a)(ii)), on
    appeals under s. 687 there is no third option to remit the matter to the trial
    judge, even where an appellant raises his aboriginal status for the first time
    on appeal: see
R. v. Kakekagamick
(2006), 81 O.R. (3d) 664 (Ont. C.A.),
    leave to appeal refused, [2007] S.C.C.A. No. 34, at para. 60; and
R. v.
    Pelletier
(1989), 52 C.C.C. (3d) 340 (Que. C.A.), at pp. 346-348. Generally,
    it will be inefficient to remit a case for re-sentencing because the new
    sentence that is imposed may itself be the subject of an appeal, re-engaging
    the appellate court to consider the matter again.

[106]

Returning to Harvey Moncktons affidavit, Mr. Harper for the Crown,
    quite fairly, does not stand on formal procedure to strenuously resist this
    court considering the material placed before us. Instead, he submits that,
    because of its vague and incomplete nature, it would not have made any
    difference to the sentence that was imposed at trial.

[107]

The
    well-known criteria for the admission of fresh evidence, traceable to
R. v.
    Palmer
, [1980] 1 S.C.R. 759, apply in the sentencing context. However,
    appellate courts are more flexible with the sources and types of evidence they
    are willing to receive in sentence appeals: see

R. v. Lévesque
,
    2000 SCC 47, [2000] 2 S.C.R. 487, at paras. 16-21; and
R. v. Angelillo
,
    2006 SCC 55, [2006] 2 S.C.R. 728, at paras. 13-15.

[108]

In
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, Cromwell J.
held that
the admission of fresh evidence on sentence appeals
    must be flexible and responsive to the innumerable situations that present
    themselves to appellate courts. As he concluded at para. 31:

At the level of principle, the approach set
    out in
Lévesque
and
Angelillo
strikes the balance between the competing values and, when applied
    thoughtfully to the particular circumstances before the court, provides
    sufficient flexibility to ensure that the appellate process is both responsive
    to the demands of justice and respectful of the proper limits of appellate
    review.

[109]

The failure of
    the appellant to inform his counsel of his Aboriginal heritage remains a
    mystery. Nevertheless, given the importance of the values embodied in s.
    718.2(e) of the
Criminal Code
, as recognized in many cases, most
    notably
R. v. Gladue
, [1999] 1 S.C.R. 688 and
R. v. Ipeelee
,
    2012 SCC 13, [2012] 1 S.C.R. 433, this is an appropriate case to admit the
    fresh evidence and to consider it in reviewing the fitness of the sentence
    imposed.

(6)

The Fitness of the Sentence

[110]

The trial judge
    addressed the factors set out in s. 754.4 of the
Criminal Code
.
    Understandably, the gravity of the offences played a dominant role in his
    analysis, leading to the great weight being attributed to the principle of
    denunciation. The trial judge correctly identified the appellants egregious
    breach of trust, as recognized by s. 718.2(a)(iii), as a serious aggravating
    factor. The period of parole eligibility was in accordance with previous
    decisions of this province dealing with the murder of young children: see
R.
    v. Dooley
, 2009 ONCA 910, 249 C.C.C. (3d) 449, leave to appeal refused,
    [2010] S.C.C.A. No. 179;
R. v. Bottineau
, 2011 ONCA 194, 269 C.C.C.
    (3d) 227, leave to appeal refused, [2011] S.C.C.A. No. 455;
R. v. Khan
,
    2007 ONCA 779, 230 O.A.C. 174;
R. v. Olsen
(1999), 131 C.C.C. (3d) 355
    (Ont. C.A.);
R. v. Biddersingh
, 2016 ONSC 5663; and
R. v. Whalen
,
    2014 ONSC 5481.

[111]

Keagan was
    murdered when he was 2 ½ years old. The last few months of this little boys
    life must have been utterly miserable. He endured an existence marked by
    extreme pain, one that he could not possibly understand, nor prevent. By its
    verdicts, the jury found that the appellant was responsible for the shocking
    abuse of this child, resulting in multiple fractures, dozens of other injuries
    and, ultimately, death.

[112]

The jurors recommendations,
    by and large, reflect an elevated level of moral culpability on the part of the
    appellant. This was in line with the trial judges assessment of the appellant.
    The circumstances of this case required a period of parole ineligibility that
    reflected the need for general deterrence and denunciation. There was little
    before the trial judge that reflected favourably on the appellants background
    or character that would offset the importance of these goals of sentencing.

[113]

Based on the
    record that was before him, I can find no error in the trial judges analysis.
    Nevertheless, s. 718.2(e) requires a consideration of an offenders Aboriginal
    status at sentencing: see
Kakekagamick
, at para. 37; and
R. v.
    Radcliffe
, 2017 ONCA 176, at para. 62. In light of the fresh evidence
    about the appellants Aboriginal heritage, this is an appropriate case to
    reassess the fitness of his sentence. However, I am not persuaded that the
    appellants Aboriginal status should affect the result.

[114]

The problem lies
    in the vagueness of the information concerning the appellants attitude towards
    his Aboriginal status. The court was merely provided with general information
    from the appellants father about his sons interest in his heritage.

[115]

Of course, the
    appellant is not required to draw a straight line between his Aboriginal roots
    and the offences for which he is being sentenced: see
Ipeelee
, at paras.
    82-83; and
R. v. Kreko
, 2016 ONCA 367, 131 O.R. (3d) 685, at paras.
    21-22. However, more is required than the bare assertion of an offenders
    Aboriginal status.

[116]

In
Radcliffe
,
    this court addressed the failure of a sentencing judge to order a
Gladue
Report in the context of a dangerous offender proceeding. Writing for the
    court, Watt J.A. described the proper approach to sentencing Aboriginal
    offenders (at paras. 52-55):

It is now firmly established that when
    sentencing an Aboriginal offender, a judge must consider:

i.                 the
    unique systemic or background factors which may have played a part in bringing
    the particular Aboriginal offender before the court; and

ii.               the
    types of sentencing procedures and sanctions which may be appropriate in the
    circumstances for the offender because of his or her particular Aboriginal
    heritage and connection.

See
R. v. Gladue
, [1999] 1 S.C.R. 688, at para. 66;
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.

. . .

Courts are required to take judicial notice of
    the systemic and background factors affecting Aboriginal people in Canadian
    society. But, on their own, these matters about which judicial notice must be
    taken do not necessarily justify a different sentence for Aboriginal offenders.
    They provide the necessary
context
for
    understanding and evaluating the case-specific information which counsel have a
    duty to present, absent express informed waiver of the right to have it
    presented:
Ipeelee
, at para. 60.

Although systemic and background factors
    provide the necessary context to enable a judge to determine an appropriate
    sentence, rather than to excuse or justify the underlying conduct, it is only
    where the unique circumstances of an offender bear on culpability, or indicate
    which sentencing objective can and should be actualized, that they will
    influence the ultimate sentence. [Emphasis in original.]

[117]

These
    observations are applicable to the present case. In the materials placed before
    us, t
here is no information
from
the appellant, or
about
the
    appellant, that lifts his life circumstances and Aboriginal status from the
    general to the specific. This new information does not impact on the sentence
    that was imposed.

The sentence imposed was fit.

E.

DISPOSITION

[118]

The conviction appeal
    is dismissed. Leave to appeal sentence is granted, but the sentence appeal is
    dismissed.

Released:

GTT                                                   G.T.
    Trotter J.A.

JUN -2 2017                                     I agree
    J. MacFarland J.A.

I
    agree G. Pardu J.A.

[1]

The trial judge ruled this part of the interview inadmissible
    due to the infringement of the appellants right to silence under s. 7 of the
Charter
.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Muir, 2017 ONCA 461

DATE: 20170605

DOCKET: C59863

Simmons, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Muir

Appellant

R. Craig Bottomley and Mayleah Quenneville, for the
    appellant

Peter Fraser, for the respondent

Heard and released orally: June 1, 2017

On appeal from the conviction entered on November 20,
    2014 and the sentence imposed on May 15, 2015 by Justice H.W. Allen of the
    Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Following a jury trial, the appellant was found guilty of robbery with a
    firearm and related offences and sentenced to five years imprisonment. The
    sole issue at trial was identification. The appellant appeals from conviction
    and requests leave to appeal sentence.

[2]

Having regard to the strength of the circumstantial evidence, we are not
    satisfied that a more elaborate charge on eyewitness identification evidence
    was required in this case.  Our conclusion in this respect is reinforced by the
    fact that the trial judge vetted the charge with counsel on more than one
    occasion before delivering it. Experienced defence counsel did not advance the
    complaints that are now raised on appeal.

[3]

Concerning the photo line-up evidence, the witnesses did not purport, in
    their evidence, to be able to identify the fleeing passenger. The photo line-up
    evidence therefore had no probative value.

[4]

With respect to the surveillance video, its value lay in the still-shot
    showing the clothing worn by one of the perpetrators.  The jury instruction concerning
    the video was adequate in the circumstances.

[5]

The conviction appeal is therefore dismissed.

[6]

As for the sentence appeal, given the submissions made and the fact that
    the trial judge imposed the minimum sentence for these very serious offences,
    in the circumstances, we are not persuaded the trial judge disregarded the
    pre-sentence custody or house arrest bail.

[7]

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

Janet Simmons J.A.

G. Pardu J.A.

M.L.
    Benotto J.A.