WARNING

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

An order restricting
    publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5),
    (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made
    under section 486.4, on application of the prosecutor in respect of a victim or
    a witness, or on application of a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in any
    way if the judge or justice is of the opinion that the order is in the interest
    of the proper administration of justice.

(2)     On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, a judge or justice may make an order
    directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application
    to the prosecutor, the accused and any other person affected by the order that
    the judge or justice specifies.

(5)     An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)     The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)     In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in encouraging
    the reporting of offences and the participation of victims, witnesses and
    justice system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)     An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information
    given or submissions made at a hearing under subsection (6); or

(c) any other information that could
    identify the person to whom the application relates as a victim, witness or justice
    system participant in the proceedings.
2005, c.
    32, s. 15; 2015, c. 13, s. 19

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.H., 2018 ONCA 677

DATE: 20180803

DOCKET: C62348

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. H.

Appellant

Andrew Bigioni, for the appellant

Rebecca DeFilippis, for the respondent

Heard: February 7, 2018

On appeal from the conviction entered on June 6, 2016 by
    Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2016 ONSC 3709, and the sentence imposed on
    October 13, 2016, with reasons reported at
2016 ONSC 6364
.

Feldman JA.:

Introduction

[1]

The appellant was convicted of child luring under s. 172.1(1)(b) of the
Criminal
    Code
. The indictment charged that the appellant believed the complainant
    was under 16 years of age. The complainant was a 15 year old friend of the
    appellants twin daughters.

[2]

The main issue on the appeal is whether the trial judge erred in law in
    finding that the Crown proved beyond a reasonable doubt that the appellant
    subjectively believed that the complainant was under 16 years old and therefore
    had the
mens rea
to commit the offence as charged. Specifically, the
    appellant argues that it was unreasonable for the trial judge to have convicted
    him based on the finding that the accused would have known the complainants
    approximate age, and further, that there was insufficient evidence to support
    a finding that the appellant had the subjective belief that the complainant was
    under 16.

[3]

The appellant also argues that: the trial judge failed to provide the
    appellant, a self-represent accused, sufficient assistance, and that he erred
    in dismissing the appellants s. 8
Charter
application. The appellant
    also seeks leave to appeal his sentence, on the basis that it was unfit because
    the sentence was influenced by a mandatory minimum provision that has since
    been struck down as unconstitutional.

Background facts

[4]

The appellant is the father of twin daughters who were friends of the complainant,
    a girl they went to school with. The complainant turned 16 on October 24, 2013.
    Between August 23, 2013 and October 20, 2013, when she was 15, Facebook
    messages were sent from the appellants Facebook account to the complainants
    account, including:

1)

on August 28, 2013, a
    picture of a penis was sent, along with the message: Hey, send me your email
    address. I want to send you some pics;

2)

on August 30, 2013, a
    different picture of a penis was sent, with the message: I swear by the moon
    and the stars in the sky. I want to suck your pussy n boobs n I want you to
    suck me dickthen me take your virginity..

3)

on September 26, a
    message was sent that said: u want to suck me dicklolI want to suck your
    pussy and boobs;

4)

also on September 26,
    ten minutes later, a third picture of a penis was sent;

5)

on October 20, a
    fourth picture of a penis was sent, together with the following message: satisfaction
    guaranteedwith life time warranty what us see is what u get take it in your
    mouth and suck it babes. I gon suck your sweet pussy n lovely boobs; and

6)

also on October 20, around
    2 hours later, a picture of a man and a woman in a sexual position was sent
    with the message: u still a virgin.

[5]

The complainant, S.K., testified that she met the appellant at the
    mosque when she was 14 and in grade 8. The appellants twin daughters, Aa. H.
    and Ai. H., are one year younger than S.K., born on September 25, 1998. The
    appellant would often pick up the three girls at school, take them out for
    lunch, and drop them back at school. Occasionally, he would take them to the
    mall. The complainant described the appellant as really good friends with her
    uncle. She testified that the appellant knew the complainants father as well;
    they attended the same mosque and, at one time, the two families lived in the
    same building for a period spanning three years.

[6]

Both of the appellants daughters testified. Aa. H. said that she met S.K.
    in grade 9 and they became close friends. She also testified that the appellant
    had initially met S.K. at the mosque. With respect to what the appellant knew
    about S.K.s age, she gave the following testimony:

Q. Okay. And [S.K.], you said shes a little older than you?

A. Yeah.

Q. Do you know how much older?

A. One year.

Q. Did you tell your dad that she was older than you?

A. He knows. He, he was friends with her dad, so they talk.

Q. Okay. So you believe him to know her age because of her dad
    and him being friends?

A. Yeah.

Q. Did you ever tell him what grade she was in?

A. Yeah.

Q. And what grade were you in when you told him what grade she
    was in?

A. Well, when she first came to the school, hes like, Oh,
    really, what grade is she is, and then Im like, She in grade 10, and Im in
    grade 9, so, yeah.

Q. And I understand it, in grade 9, you were 14?

A. Yeah.

[7]

Ai. H. said that S.K. was a year older than she was and a grade ahead of
    her. She confirmed that their fathers knew one another through their mosque and
    that the appellant sometimes took her, her sister, and S.K. all to lunch. She
    also testified that she told her father that she and S.K. were in two classes
    together.

[8]

The appellant was charged with two offences: sending the messages to a
    person he believed was under 16, i) for the purpose of exposing his genitals
    for a sexual purpose to a person under 16, and ii) for a sexual purpose
    inviting a person under 16 to touch his body. He represented himself, except
    that
amicus
was appointed to cross-examine both of the appellants
    twin daughters and the complainant, S.K. The appellant did not testify at the
    trial.

Findings by the trial judge

[9]

The main issue at the trial involved two aspects of identity. As the first
    count charged the appellant with sending a picture of his penis to the
    complainant, the Crown was required to prove that the penis in the pictures was
    the appellants. In the end, the trial judge was not satisfied of that fact beyond
    a reasonable doubt and entered an acquittal on that count.

[10]

The
    second aspect, which related to both counts, was the identity of the sender of
    the Facebook messages. The witnesses testified that the appellant went by a
    nickname reflected in the email address under which the Facebook account that
    sent the messages was registered, but in submissions, the appellant denied it
    was him. The trial judge was satisfied beyond a reasonable doubt that the appellant
    had sent the messages based on his finding that the email address associated
    with the Facebook account that sent the messages was the appellants
.

[11]

On
    the other elements of the offence of child luring, the trial judge found that
    the messages constituted an invitation to sexual touching. On the issue of the
    complainants age he stated at para. 219 of his reasons:

In regards to S.K.s age, the
    accused would have known her approximate age. He had met her a few years
    previously at the mosque where both families attended. S.K.s father was a
    friend of the accused and S.K. had been in the presence of the accused when she
    was with his daughters.

Issues on the appeal

[12]

The
    appellant raises four issues on the appeal:

1)

The verdict is
    unreasonable because the trial judge convicted the appellant by finding that he
    would have known the complainants approximate age, rather than that he
    believed the complainant was under 16, and there was no evidence that the
    appellant had the subjective belief that the complainant was under 16;

2)

The trial judge
    erred by failing to provide sufficient assistance to the appellant with his
Charter
challenges as a self-represented accused;

3)

The trial judge
    erred in dismissing the appellants
Charter
application to exclude the
    evidence found at his home, the photo of his computer screen and his
    cell-phone; and

4)

The sentence of
    15 months incarceration was influenced by the mandatory minimum of 1 year
    imposed by s. 172.1(2)(a), which has since been struck down as contrary to s.
    12 by this court in
R. v. Morrison
, 2017 ONCA 582, 136 O.R. (3d) 545,
    leave to appeal allowed, [2017] S.C.C.A. No. 290, decision reserved by the Supreme
    Court on May 24, 2018.

Issue 1: Is the
    verdict unreasonable because there was no evidence that the appellant believed
    that the complainant was under 16?

[13]

Section
    172.1(1)(b) of the
Code
provides:

Every person commits an offence who transmits, makes
    available, distributes or sells sexually explicit material to

(b) a person who is, or who the accused believes
    is, under the age of 16 years, for the purpose of facilitating the commission
    of an offence under section 151 or 152, subsection 160(3) or 173(2) or section
    271, 272, 273 or 280 with respect to that person;

[14]

The
    wording makes it an offence to communicate sexually explicit material to a
    person who is actually under 16, or to a person whom the accused believes to be
    under 16 years, even if the person is not. This latter form of the offence allows
    the police to communicate with a suspected perpetrator by pretending to be
    under 16 in order to confirm that perpetrator is engaged in child luring.

[15]

In
    this case, the complainant was actually under 16 at the time the Facebook
    messages were sent by the appellants device and received by the complainants
    Facebook account.
[1]
However, the appellant was charged with communicating with a person whom he
    believed was under 16, and therefore, the Crown was required to prove that
    subjective belief.

[16]

At
    the time of the trial, s. 172.1(3) of the
Code
provided that where the
    complainant was represented to the accused as being under 16, then in the
    absence of evidence to the contrary, that constituted proof of the accuseds
    belief. That section has since been declared unconstitutional by this court in
R.
    v. Morrison
. Although Crown counsel at trial mentioned subsection (3), she
    did not rely on it, nor did the trial judge refer to it in his reasons.

[17]

In
    his reasons for judgment, the trial judge set out the three essential elements
    of the offence as charged: 1) an intentional communication by computer or
    electronic device; 2) the communication was with a person the accused believed
    to be under 16; and 3) the purpose of the communication was for sexual
    touching. The Crowns submission with respect to proving the second element,
    which the trial judge summarized at para. 175 of his reasons, was that the
    appellant would have known S.K.s age because she was a friend of his daughters
    who was a year older than them. He had met her at the mosque when she was 14
    and the appellants family were friends with S.K.s family.

[18]

At
    para. 176, the trial judge also referred to the Crowns submission with respect
    to s. 172.1(4). That section provides:

It is not a defence to a charge under paragraph (1)(a), (b) or
    (c) that the accused believed that the person referred to in that paragraph was
    at least 18, 16 or 14 years of age, as the case may be, unless the accused took
    reasonable steps to ascertain the age of the person.

[19]

Crown
    counsel at trial submitted that there was no evidence that the appellant took
    any reasonable steps to ascertain the complainants age. Again, while that
    submission was made, the trial judge did not refer to it or to s. 172.1(4) in
    his findings regarding the appellants belief in the age of the complainant.

[20]

As
    the appellant did not raise the defence that he believed the complainant was 16
    or over, there is an issue whether s. 172.1(4) is applicable, and whether the
    Crown may use the failure to make reasonable inquiries to prove an accuseds
    belief that a complainant is under 16. That issue may also be determined by the
    Supreme Court in its decision in
R. v. Morrison
, currently under
    reserve in that court. As the trial judge did not use the appellants failure
    to make reasonable inquiries as a basis for finding he believed the complainant
    was under 16, there is no need to deal with the issue of the proper
    interpretation and application of s. 172.1(4) in this case.

[21]

The
    test for unreasonable verdict from
R. v. Biniaris
, 2000 SCC 15, [2000]
    1 S.C.R. 381, at para. 36, is whether the verdict was one that a properly
    instructed jury, acting judicially could reasonably have rendered. The
    reviewing court is entitled to re-examine and reweigh the evidence.

[22]

As
    quoted above, in his reasons, the trial judge found that the appellant would
    have known [S.K.s] approximate age. The appellant submits that by reducing an
    essential element of the offence to an approximation, the trial judge reached
    an unreasonable verdict. I agree that had the trial judge found that the
    appellant believed that S.K. was around the age of 16, that would have been
    an error in law. The appellant had to believe she was under 16. However, it is
    clear from the reasons, read as a whole, that the trial judge found that the
    appellant believed the complaint to be under 16.

[23]

The
    trial judges reference to her approximate age must be read in context. By
    correctly reviewing the elements of the offence, the trial judge demonstrated
    that he knew that in order to convict the appellant, the Crown had to prove beyond
    a reasonable doubt that the appellant believed the complainant was under 16
    years of age. While the trial judge found that the appellant did not know the
    complainants exact age  only her approximate age  the Crown was not
    required to prove that the appellant knew the complainants exact age. Read
    contextually, the reasons demonstrate that the trial judge was satisfied that,
    although the appellant did not know the complainants exact age, he believed
    that she was under the age of sixteen years. The trial judges meaning is reinforced
    by the language he used in referring to the
mens rea

component
    in his subsequent reasons on sentence, where he stated at para. 5: The
    Offender was aware that, at the time, the complainant was only 15 years old.

[24]

In
    my view, based on the trial record, in particular the evidence of the
    complainant and of the appellants daughters, the trial judge was entitled to
    find that the appellant believed that the complainant S.K. was under the age of
    16. There was ample evidence to support that conclusion. The appellant was very
    involved with his twin daughters, who were 14 at the time of the offence. He
    had a lot of contact with S.K.s family. He knew them from the mosque, from
    living in the same building for a number of years, and he knew her father and
    was a very good friend of her uncle. He also had a lot of contact with S.K.
    herself by picking her up and taking her for lunch with his daughters. The
    appellants daughter, Aa. H., testified that her father asked her what grade S.K.
    was in when she came to his daughters school, and she told him grade 10. At
    that time, the twins were in grade 9 and they were 14. The appellants other
    daughter, Ai. H., similarly testified that she told her father that she and
    S.K. were in two classes together around this time.

[25]

From
    all of this evidence, the trial judge was entitled to conclude that the
    appellant would have known S.K.s approximate age, and that he believed she was
    under 16. The verdict is not unreasonable.

[26]

I
    would not give effect to this ground of appeal.

Issue 2: Did
    the trial judge err by failing to give the appellant sufficient assistance with
    his
Charter
issues?

[27]

The
    appellant submits that the trial judge erred by failing to raise and address a
    breach of s. 10(b) of the
Charter
, and by failing to give the
    appellant sufficient assistance with his s. 8 motion to exclude the evidence
    seized from his dwelling.

[28]

The
    appellant was arrested at the door of his apartment. He told the officers he
    needed to get his shoes, turned around and went back into the apartment. The
    officers followed him in. One accompanied him into his bedroom while the other
    stayed in the kitchen where he observed the open computer and the cell phone.
    He took a photograph of the screen of the computer, which showed an open
    Facebook page, which displayed the appellants email address and read: Your
    account has been deactivated. The officer then seized both items.

[29]

Once
    the officers and the appellant were seated in the police cruiser, one of the
    officers read the appellant his right to counsel. This was six minutes after
    the initial arrest.

[30]

The
    appellant submits on appeal that that delay constituted a breach of his s.
    10(b) right, to be informed of his right to counsel without delay, and that the
    trial judge erred by failing to raise and address the issue. The Crown argues
    that there was no air of reality to a s. 10(b) breach based on all the
    evidence, and that the trial judge made no error in failing to address it.

[31]

I
    would not give effect to the appellants argument on this ground. A trial
    judges duty to assist a self-represented accused is circumscribed by a
    standard of reasonableness and this duty is not engaged on the mere scent or
    intimation of a possible
Charter
infringement:
R. v. Richards
,
    2017 ONCA 424, 349 C.C.C. (3d) 284, at paras. 111 and 113. Therefore, while a
    trial judge has a duty to assist a self-represented accused, including raising
    legal issues that should be addressed, a trial judge is not required to raise
    and knock down issues that do not have an arguable chance of success to benefit
    the accused.

[32]

A
voir dire
was held to address the s. 8
Charter
issue where
    facts relevant to the right to counsel issue were also explored in testimony.
    On the
voir dire
, Constable Durgan testified that when the appellant
    answered the door, the officer advised him that he was under arrest for
    invitation to sexual touching. The appellant turned around and walked back into
    the apartment. Crown counsel asked the officer when he gave the appellant the right
    to counsel and why he waited until they were in the police vehicle. His
    explanation was that he wanted to do it in a safe environment. Because the
    appellant walked back into the apartment, he had to keep control of him and
    ensure everyones safety. Once they were in the police car, he could take out
    his notebook and read the rights to counsel and caution in a safer environment.

[33]

The
    trial judge was entitled to accept this explanation for the short delay in
    reading the appellant his right to counsel. A delay in informing an arrestee
    about the right to counsel is permitted on the basis of concerns for officer or
    public safety:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
    paras. 2 and 41, and
R. v. Gonzales
, 2017 ONCA 543, 385 C.R.R. (2d)
    115, at para. 123; see also as an example,
R. v. Dhindsa
, 2013 ONCJ 32,
    at para. 51.  Furthermore, the police did not question the appellant during the
    six minute time period and no statements were made. Because of all the
    circumstances, the facts do not raise a
prima facie
issue under s.
    10(b), and it was reasonable for the trial judge not to consider s. 10(b).

[34]

With
    respect to the s. 8 motion, the trial judge explained the issue to the
    appellant, facilitated the holding of the
voir dire
where all the
    relevant witnesses were called by the Crown, then gave the appellant the
    opportunity to see if he could find duty counsel over lunch to give him any
    assistance he needed with the argument. After the lunch break, the appellant
    reported that he was not able to get much assistance. He first asked for an
    adjournment, then withdrew that request and sought to withdraw the application.
    However, the trial judge directed the Crown to argue the s. 8 issue, the
    appellant made brief submissions that the police should have had a warrant to
    search, and the trial judge gave his ruling on it.

[35]

The
    appellants argument on the appeal is that the trial judge was obliged to
    provide the appellant with additional assistance to argue his
Charter
application. He refers to some examples from the Canadian Judicial Councils
Statement
    of Principles on Self-Represented Litigants and Accused Persons
, published
    September 2016, such as explaining the case law to allow the accused to make
    critical choices, providing information to assist in understanding  rights or
    asserting arguments, and making referrals to agencies for education advice and
    assistance, or questioning witnesses.

[36]

These
    examples of additional assistance are always recommended in the context and
    circumstances of each case and each accused. In this case, the trial judge
    lived up to his obligation. The appellant was articulate and capable before the
    court. The trial judge explained procedures and choices to be made as the trial
    progressed. He held a
voir dire
to hear the evidence regarding the
    arrest and search. The witnesses were all cross-examined by the appellant. The
    trial judge gave the appellant an opportunity to seek any assistance he wanted
    at the lunch break and was prepared to give an adjournment, although he was
    clearly reluctant to do so at that stage with the trial proceeding hopefully
    within the allotted timeframe.

[37]

Finally,
    the legal issues were clear and familiar to the judge. He had to deal with a
    warrantless search of a home upon arrest. He received submissions from both
    sides, then made his ruling. This was not a situation where the unrepresented
    accused did not understand the language or the proceedings. Because he was not
    legally trained, the trial judge assisted him procedurally along the way, gave
    him the opportunity to get assistance, did not acquiesce in the appellants
    request to withdraw his motion, but heard it fully and gave his reasons based
    on the law.  In my view, there is no basis to suggest that the trial judge
    failed to provide sufficient guidance to the appellant, such that he did not
    receive a fair trial as a self-represented accused.

Issue 3: Did
    the trial judge err in dismissing the s. 8
Charter
application and
    admitting the seized evidence?

[38]

In
    oral reasons delivered following the argument, the trial judge concluded that
    the Crown had met its burden of proof on a balance of probabilities that the
    seizure was reasonable in the circumstances. He found that once Constable
    Durgun had placed the appellant under arrest, he was in his care and custody.
    As a result, the two officers were required to follow him into the apartment
    and were lawfully there. They were legally entitled to seize the computer and
    the cell phone on three bases: 1) a search incident to arrest and seizure of
    items that appeared to be related to the crimes charged; 2) the items were in
    plain view on the kitchen counter as they walked through the kitchen to the
    bedroom with the appellant; and 3) s. 489(2)(b) of the
Criminal Code
, which
allows officers to seize without
    a warrant anything they believe on reasonable grounds was used in the
    commission of an offence.

[39]

The
    appellant submits on this appeal that the trial judge erred by finding that the
    officers were lawfully in the dwelling. He argues that each of the
    justifications for the seizures depends on the lawfulness of the officers
    presence in the dwelling. The appellant relies on cases such as
R. v.
    Feeney
, [1997] 2 S.C.R. 13 at para. 43,
R. v. Silveira
, [1995] 2
    S.C.R. 297, at para. 140, and
R. v. Golub
(1997), 117 C.C.C. (3d) 193
    (Ont. C.A.) for the proposition that the officers breached the appellants
    right to privacy in his home by entering without permission.

[40]

However,
    in those cases, the police entered the home either before they had made an
    arrest, or in
Golub
, in order to search following the arrest. In this
    case, the officers arrested the appellant at the door, and only entered his
    apartment when he turned away and entered it following his arrest. First, they
    needed to accompany him in order to maintain control over him for officer
    safety and second, to prevent him from destroying evidence. The police had been
    dispatched to arrest the appellant when the investigating officer, who was
    interviewing the complainant and the appellants daughters, observed the
    appellant at the police station leaving in a hurry. The investigating officer
    was concerned about the destruction of evidence and therefore authorized the
    appellants immediate arrest. In the circumstances that occurred, the officers
    entrance into the apartment was lawful.

[41]

The
    officers did not proceed to conduct a search without a warrant. They would not
    have been entitled to do so in the circumstances. However, they observed the
    computer partly open and the cell phone in plain view. They were entitled to
    seize items they believed constituted evidence of the offence in accordance
    with s. 489(1)(b) of the
Code
. Therefore, the trial judge did not err
    in concluding that the appellants right under s. 8 of the
Charter
was
    not breached.

[42]

As
    there was no
Charter

breach, there is no need to consider s.
    24(2). .

Issue 4:  Sentence Appeal

[43]

The
    trial judge sentenced the appellant to 15 months imprisonment together with
    one year probation. That sentence was imposed before the mandatory minimum of
    12 months imprisonment for the offense of child luring provided by s. 172.1(2)(a)
    was struck down by this court in
R. v. Morrison
as contrary to s. 12
    of the
Charter
.

[44]

In
    his reasons for sentence, the trial judge noted that the appellant continued to
    deny that he had committed the offence and expressed no remorse. He also
    declined to provide the author of the pre-sentence report with the names of any
    people to contact or with authority to contact the Childrens Aid Society,
    which had been involved with the family. The complainant declined to provide a
    victim impact statement. The trial judge accepted that she wished to put the
    ordeal behind her. During her testimony at the trial, she was at times brought
    to tears. The trial judge also stated, referring to this courts decision in
R.
    v. Woodward
, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 58, that child
    luring over the internet has become a pervasive social problem in the
    community.

[45]

At
    the sentencing hearing, the Crown submitted that deterrence and denunciation
    were the principal sentencing objectives, and that given the lack of remorse,
    rehabilitation should not be given much consideration. The appellant suggested
    a shorter sentence with probation and community service. He also raised the
    concern of his continuing medical issues arising from a serious car accident in
    1997, which left him unable to work, and the difficulties that would pose for
    him in prison.

[46]

Regarding
    the appropriate range for the offence of child luring, the trial judge referred
    again to the case of
Woodward
,
as well as the cases of
R. v. Jarvis
(2006), 211 C.C.C. (3d) 20 and
R.
    v. Dragos
, 2012 ONCA 538, 111 O.R. (3d) 481 from this court. In
Jarvis
,
    which pre-dated the enactment of the mandatory minimum on August 9, 2012, the
    court upheld a 6 month sentence following a guilty plea, but called it lenient,
    and referred to an established range from trial decisions of 12 months to 2
    years. In
Woodward
, which also pre-dated enactment of the mandatory
    minimum, Moldaver J.A. noted that Parliament had doubled the maximum sentence from
    5 years to 10 years since
Jarvis
, and suggested at para. 58 that, if
    evidence were properly tendered showing
that the offence of
    luring has become a pervasive social problem, then
a range of 3 to 5
    years could well be warranted in order to deter, denounce and separate from
    society adult predators who commit this serious crime. In both
Woodward
and
Dragos
, the complainant was actually lured to a sexual encounter with
    the accused. The trial judge accepted that the range in
Jarvis
had
    been modified by
Woodward
.

[47]

The
    trial judge then noted that the only mitigating factor was that the appellant
    had no criminal record. He specifically rejected the Crowns submission to
    treat the lack of remorse as an aggravating factor. He referred to the
    principles of sentencing, including proportionality. He also accepted that the
    appellants conduct had had a significant impact on the complainant.

[48]

Ultimately,
    the trial judge accepted the Crowns submission that a sentence of 15 months
    incarceration followed by 1 year of probation was appropriate. He concluded
    that although 15 months was below the start of the range suggested in
Woodward
,
    it was not manifestly unjust, given that the luring in this case was not
    successful, was over a relatively short period of time, and took into account
    the mitigating factors of the lack of a criminal record and that the appellant
    did not violate his bail conditions.

[49]

The
    Crown on the appeal acknowledges that because the mandatory minimum sentence
    was struck down in
Morrison
after the sentence was imposed in this
    case, a fit sentence should be determined by this court. However, the Crowns
    submission is that regardless of the former minimum, 15 months is a fit
    sentence for this offender and should be upheld. The appellants position is
    that the mandatory minimum created an inflationary floor that had the effect
    of increasing the sentence that would otherwise have been imposed, and that a
    fit sentence is 6 months imprisonment.

[50]

The
    appellant submits that because the complainant did not see the messages until
    several months after they were sent and after the appellant had stopped sending
    them, and did not reply, plus the appellant did not attempt to arrange an
    encounter or groom her for a sexual encounter, that a lower sentence is
    warranted.

[51]

I
    would not give effect to this submission. The fact that the appellants
    approach was direct and unsubtle, and that he gave up when he got no response,
    are not mitigating factors for which the appellant is entitled to any credit. The
    appellant knew the complainant and had direct contact with her in his role as
    the father of her friends. While this may not constitute a direct fiduciary
    relationship, it is akin to one. The complainant was actually under 16. The
    messages that were sent were abhorrent, and if the complainant had been lured
    to respond, could have led to serious sexual offences.

[52]

This
    court has repeated many times that where adult sexual predators exploit
    innocent children, deterrence and denunciation and the need to separate the
    perpetrators from society are the predominant objectives of sentencing:
Woodward
,
    at para.76. In
Jarvis
, this court commented that 6 months is a lenient
    sentence. In
R. v. Gucciardi
, 2017 ONCJ 770, a case that was decided
    after
Morrison
, the accused was sentenced to 12 months incarceration
    in order to give effect to the objectives of deterrence and denunciation, where
    there were a number of mitigating factors not present in this case, including
    the fact that the accused pleaded guilty, expressed remorse, had a supportive
    family, and had taken positive steps toward his rehabilitation.

[53]

In
    my view, the sentence of 15 months imposed by the trial judge is a fit sentence
    for the appellant in all the circumstances of this case.

Result

[54]

I
    would dismiss the appeal against conviction, and grant leave to appeal the
    sentence, but dismiss the sentence appeal.

Released: K.F. August 3, 2018

K.
    Feldman J.A.

I
    agree. David M. Paciocco J.A.

I
    agree. Fairburn J.A.

[1]

The evidence was that the complainant did not actually look at
    the messages on her Facebook account until several months later, after she had
    turned 16.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adamson, 2018 ONCA 678

DATE: 20180803

DOCKET: C57171

Watt, Brown & Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Adamson

Appellant

Lance C. Beechener, for the appellant

John Patton, for the respondent

Heard: February 23, 2018

On appeal
    from the convictions entered and sentence imposed on May 10, 2013 by Justice Douglas
    K. Gray of the Superior Court of Justice, sitting with a jury.

Watt
    J.A.:

[1]

Early one morning in November, Sarah Muir and her family were asleep in
    their home.

[2]

Sarah Muir was awakened by the sound of someone coming up the stairs
    outside her room. A man walked into her bedroom. He was wearing black track
    pants, a tight-fitting tank top and gloves.

[3]

The man walked over to Sarah Muirs bed. He punched her in the head.
    Sarah asked the man: Why are you doing this? The man said Im sorry, then
    rolled her onto her back and put a gloved hand over her mouth.

[4]

The man then put a knife to Sarah Muirs throat. As he began to cut her
    neck, the man told Sarah: I love you. Sarah screamed. The man fled out of her
    room and out of the house.

[5]

Sarah Muir knew the man who entered her room. She knew the man because
    he had turned on the light when he walked into her room. She knew him because
    he was her boyfriend  or so she thought. And she knew him because he was the
    father of the child that she was then carrying. The man, she said, was

Brandon
    Adamson.

[6]

Brandon Adamson denied that he was the man who had attacked Sarah Muir
    in her bedroom early that November morning. He said that he was at home at the
    time of the attack on Sarah.

[7]

A jury found Brandon Adamson guilty of several offences arising out of
    his unlawful entry of the Muir home and his attack on Sarah.

[8]

Brandon Adamson appeals his conviction and the sentence imposed on him.
    As these reasons will explain, I am satisfied that both appeals fail and should
    be dismissed.

THE BACKGROUND FACTS

[9]

A brief canvass of the circumstances in which the offences alleged took
    place will provide an adequate frame for the ground of appeal advanced.

The Principals and their Relationship

[10]

Sarah
    Muir and Brandon Adamson had a casual sexual relationship for about four years.
    At times, Sarah wanted their relationship to become official. Brandon thought
    otherwise. For about a year prior to the attack on Sarah, Brandon had been
    dating another woman whom he considered his real girlfriend.

[11]

Neither
    Sarah Muir nor the appellants real girlfriend knew about each other.

[12]

On
    two occasions prior to the attack on her, Sarah Muir had become pregnant by
    Brandon Adamson. Each time she terminated the pregnancy.

The Third Pregnancy

[13]

About
    three months before the attack upon her, Sarah Muir learned that she was
    pregnant for a third time as a result of her relationship with Brandon Adamson.
    This time would be different. Sarah decided that she would keep the baby. And she
    would tell her parents about it. Brandon was upset when Sarah told him about
    her decision to have his child.

[14]

Sarah
    Muir told her parents about her pregnancy and her plans to have and keep her
    baby. She also told them that Brandon Adamson was the father of her unborn
    child. Sarahs parents supported her decision to have and care for her child.

[15]

Brandon
    Adamson did not tell his mother or his real girlfriend about Sarah Muirs
    pregnancy or of her plan to have and raise their child.

The Meeting

[16]

During
    the month before the early morning attack on Sarah Muir, Brandon Adamson met
    with Sarah and her parents at their home to discuss her pregnancy and her
    future plans to have and care for the baby. They agreed that Sarah and their
    child would live in the Muir home. Brandon Adamson would have access to their
    child and contribute twenty dollars per week as support, an amount that would
    permit him to continue his education and to pursue a career in the culinary
    arts.

The Missing Key

[17]

During
    the summer immediately preceding the attack upon her, Sarah Muir hosted a get together
    at her home. Her parents were away. Among the six people in attendance was
    Brandon Adamson.

[18]

The
    day after the get together, Sarah Muir noticed that a house key was missing
    from her bedroom. She asked Brandon Adamson whether he took or had the key. He
    denied taking or having it.

[19]

The
    missing key was never found.

The Claim of Unfairness

[20]

About
    four days before the attack on Sarah Muir, Brandon Adamson was out with his
    friends. He called Sarah Muir and complained that she was unemployed while he
    was working hard at a restaurant to earn enough money to meet his future
    support obligations. At trial, Brandon admitted that he raised his voice during
    the call but said he had to do so because of the background noise at the club
    from which he made the call.

The Telephone Call and Text Message

[21]

About
    seven hours before she was attacked in her bedroom, Sarah Muir spoke with
    Brandon Adamson on the telephone. He told her that he planned to see a movie
    with some friends. Shortly thereafter, Sarah went to bed.

[22]

At
    11:19 p.m. the same night, Brandon Adamson sent Sarah Muir a one word text: Hey.
    Asleep at the time the text was sent, Sarah Muir did not notice it until the
    next day after she had been attacked.

The Attack

[23]

At
    about 2:00 a.m. on November 10, 2010, Sarah Muir was awakened by the sound of
    someone climbing the stairs outside her bedroom door. Her bedroom door opened.
    She saw a tall, dark figure standing in the doorway. The man was wearing
    gloves, black track pants and a tight-fitting grey tank top. He turned on the
    light in her bedroom. The man, Sarah claimed, was Brandon Adamson, the father
    of her unborn child.

[24]

The
    man walked up to the side of Sarah Muirs bed. He punched her in the head with
    his gloved hand. When she asked why he had punched her, the man replied: Im
    sorry. He then rolled Sarah onto her back, covered her mouth with his gloved
    hand and put a knife to her throat. As he began to cut her throat, he told
    Sarah: I love you.

[25]

Sarah
    Muir screamed. The man fled from her room and the house.

The Flight

[26]

Sarah
    Muirs scream awakened her father and brother. They looked outside. They saw a
    dark van leave their driveway, its tires squealing. They were unable to
    determine the make, model or licence number of the van. One of their neighbours
    made similar observations.

The Emergency Response

[27]

Paramedics
    and police responded to the Muir home within minutes of the attack on Sarah
    Muir. At 2:12 a.m., Sarah was taken to the hospital where she received six
    stitches to close the cut to her neck. Treating staff also noticed bruises.
    Police officers spoke to Sarahs parents and her brother.

The Facebook Message

[28]

At
    about 2:20 a.m., Brandon Adamson sent a Facebook message to Sarah Muir. He told
    her that he was going to bed and asked her to call him in the morning. It was
    not unusual for Brandon to send Sarah Facebook messages before he went to
    sleep. He then went upstairs to bed.

The Investigation and Arrest

[29]

The
    police arrived at the Adamson home at 2:44 a.m. As they walked up the driveway
    to the house, officers noticed a green minivan in the driveway. Its hood was
    warm to the touch. Unlike other vehicles in the area, no frost appeared on the
    windows of the minivan.

[30]

Brandon
    Adamson called and sent a text to his brother Bradley when he saw the police at
    his door. He asked Bradley to come upstairs quick. The call and message were
    not answered.

[31]

When
    the police arrived, Brandon Adamson was wearing a black, sleeveless basketball
    jersey and shorts.

[32]

During
    a search of Brandon Adamsons bedroom, police found a pair of gloves in a
    hollowed out storage area under his bed. They found no blood on either the
    gloves or a pair of Adamsons pants. They found no key to the Muir home. Police
    also seized Brandon Adamsons running shoes. On the underside of the tongue of
    one of the shoes, investigators located a spot of Sarah Muirs blood.

[33]

In
    the Muir home, police found a knife at the bottom of the stairs and blood on
    the staircase wall. The knife was very dull and had been taken from the kitchen
    in the Muir home. The blood smear on the wall was the blood of Sarah Muir.

[34]

There
    were no signs indicative of forced entry to the Muir home.

The Alibi

[35]

Brandon
    Adamson testified at trial. He denied having unlawfully entered the Muir
    residence and having attacked Sarah Muir. He said he was at home, playing video
    games with his brother Bradley until 1:50 a.m., then watching sports until 2:20
    a.m. when he sent Sarah a Facebook message. He then went upstairs to bed where
    he remained until he saw the police arrive at his home. He called and texted
    Bradley.

[36]

At
    the door of the Adamson home, a police officer told Brandon that they needed to
    talk to him about an assault on his girlfriend. He responded: Who? Malena?
    When the officer said no, Brandon added: My best friend, Sarah? When told
    that Sarah had identified him as the perpetrator, Brandon denied having
    assaulted her and said that he had not left the house.

[37]

Brandon
    Adamson denied having a key to the Muir home, changing his clothes, hiding his
    gloves, leaving his home, and driving the familys van to the Muir residence.

[38]

Bradley
    Hamil, Brandon Adamsons brother, testified that Brandon was home when he
    (Bradley) returned at about 10:00 or 10:30 on the evening of November 9. The
    familys van was in the driveway. He and Brandon played video games and watched
    television in the basement until Brandon went upstairs around 2:15 a.m.

[39]

Bradley
    Hamil declined to give police a formal statement about the events of the
    evening and early morning hours preceding the attack on Sarah Muir. A police
    officer who attended at the Adamson residence testified that Bradley told him that
    he had been asleep for about an hour before the police came to the Adamson
    residence. Bradley could not recall this conversation with the officer.

THE APPEAL FROM CONVICTION

[40]

Brandon
    Adamson (the appellant) advances a single ground of appeal against
    conviction. He complains that the trial judge failed to properly instruct the
    jury about its use of evidence of post-offence conduct in reaching its verdict.
    The substance of the grievance focuses upon those features of the post-offence
    conduct about which the trial Crown cross-examined the appellant and invoked in
    her closing address as establishing the appellants guilt.

[41]

To
    better appreciate the nature of the complaint and evaluate its validity, it is
    enough to identify the subject-matter of the criticism and its treatment at
    trial.

The Post-Offence Conduct

[42]

Among
    the things done and said after the attack on Sarah Muir, several incidents were
    the subjects of attention by the trial Crown in her cross-examination of the
    appellant (and his brother) and in her closing address to the jury. They
    included:

i.

the Facebook message to Sarah Muir at 2:20 a.m.;

ii.

the appellants hiding a pair of gloves in the hollowed-out space
    beneath his bed;

iii.

the appellants pretending to be asleep when the police arrived at his
    home;

iv.

the appellants attempt to contact his brother when the police arrived;
    and

v.

the appellants concocted alibi.

[43]

In
    cross-examination, the appellant denied leaving his home, assaulting Sarah Muir
    and hiding a pair of gloves under his bed. He acknowledged that his brother was
    the only person who could verify his presence at home at the time Sarah Muir
    said that he had attacked her.

[44]

In
    her closing address, the trial Crown contended that:

i.

the appellant sent the 2:20 a.m. Facebook message to cover his tracks
    and make it appear that he had been at home at the relevant time;

ii.

the appellant hid his gloves and went upstairs pretending to have been
    in bed;

iii.

the appellant called and texted his brother seeking his help in coming
    up with a story when the police arrived at their home; and

iv.

the appellant and his brother fabricated an alibi to account for the
    appellants whereabouts at the time of the attack on Sarah Muir.

The Charge to the Jury

[45]

Prior
    to the charge to the jury, the trial judge gave counsel a copy of his proposed
    final instructions. The draft charge contained no instructions about evidence
    of post-offence conduct.

[46]

Repeatedly
    during the pre-charge conference, the trial judge asked defence counsel whether
    there was anything further counsel wished included in the final version of the
    instructions to be provided to the jury. Defence counsel did not ask for any
    instructions on jury use of evidence of post-offence conduct, nor did counsel
    complain thereafter about their absence.

The Arguments on Appeal

[47]

The
    appellant says that the trial judge erred in law in failing to instruct the
    jury, in express terms, about the restricted use the jury could make of the
    evidence of post-offence conduct. This omission caused a miscarriage of
    justice.

[48]

The
    appellant underscores the authorities that uniformly recognize that evidence of
    post-offence conduct carries with it a heightened risk that an untutored lay
    trier of fact will misapply it to the prejudice of an accused. These inherent
    characteristics of evidence of post-offence conduct require a trial judge to
    instruct a jury not only about the use the jury may make of the evidence, but
    also about impermissible uses. The instruction should caution jurors about the
    dangers inherent in the evidence and point out other inferences arising from it
    that point away from, rather than towards guilt. The general instruction should
    also make it clear that the jury should not draw any inferences from evidence
    of post-offence conduct until it has examined the evidence as a whole.

[49]

In
    addition to the general instructions explaining jury use of evidence of
    post-offence conduct, the appellant says that the trial judge should have
    included two specific instructions. The jury should have been told to disregard
    the trial Crowns submission that the appellants alibi had been fabricated.
    This is so because there was no independent evidence of fabrication. And the trial
    judge should have limited jury use of any evidence of post-offence conduct to
    the issue of complicity and made it clear that the evidence could not be used
    to establish the level of the appellants culpability. This limitation was
    important because the jury struggled over the issue of intent. The case for the
    Crown on intent to kill was far from overwhelming. And both the trial Crowns
    closing address and the trial judges instructions on intent invited the jury
    to consider, among other things, words and conduct
after
the attack.

[50]

The
    respondent begins with an observation about the nature of the case presented at
    trial. The case for the Crown, the respondent says, was simply overwhelming,
    not only on the issue of identity, but also on the level of culpability. The
    complainant gave direct evidence of the identity of her assailant  her
    sometime lover of more than four years  and of words and conduct that
    established an intent to kill. The charge to the jury focused on the contested
    issue at trial  identification of her assailant  and attracted no objection
    either before or after it was given.

[51]

Evidence
    about what the appellant did after the attack on Sarah Muir was properly
    admitted as narrative and relevant to establish the appellants involvement in
    the attack and to impeach the credibility of his assertion of non-involvement.
    The trial judges charge was well-structured and left the jury adequately
    equipped to decide the issues raised by the evidence at trial. It accurately
    conveyed the defence position as it had been advanced by defence counsel.

[52]

The
    respondent says that nowhere in the charge or closing addresses is there any
    suggestion, much less an instruction, that a failed or disbelieved alibi was an
    item of evidence from which the jury could draw a positive adverse inference of
    guilt.

[53]

The
    respondent submits that on the evidence adduced at trial, the judge was under
    no obligation to give the instruction of whose absence the appellant now
    complains. Such an instruction is only required where the Crown invokes
    evidence of a concocted alibi in proof of guilt or where the common sense of
    the jury is unlikely to overcome the inherent likelihood of overvaluation or
    misinterpretation of the evidence of post-offence conduct. Neither is at work
    here.

[54]

In
    this case, the respondent concludes, the jury was well-equipped to navigate the
    evidence of post-offence conduct without restriction. Their verdict was, and
    remains, entirely sound.

The Governing Principles

[55]

The
    principles governing the admissibility and jury use of evidence of post-offence
    conduct
[1]
are well established and not in need of lengthy recital. That said, the
    precedents elucidate several principles of importance in the assessment of this
    ground of appeal.

[56]

To
    begin, evidence of post-offence conduct is circumstantial evidence which
    invokes retrospective reasoning to link something said or done later to the
    speakers or doers participation in a prior event which constitutes the
actus
    reus
of an offence with which she or he is charged:
R. v. White,
2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 17, 105;
R. v. B. (P.)
,
    2015 ONCA 738, 127 O.R. (3d) 721, at para. 165.

[57]

Second,
    the bulk of evidence of post-offence conduct enters the trial record as an
    unremarkable part of the narrative of relevant events:
White
, at
    paras. 140 and 157;
R. v. Cornelius
, 2011 ONCA 551, 283 O.A.C. 66, at
    para. 19.  Where evidence of post-offence conduct is received as pure
    narrative, no special or limiting instruction about its use is required:
White
,
    at para. 47.

[58]

Third,
    as a general rule, evidence of post-offence conduct is not subject to special
    admissibility rules. Nor does it require that a trial judge caution the jury
    about its use in proof of guilt:
White,
at paras. 105, 137;
Cornelius
,
    at para. 19;
R. v. Rosen
, 2018 ONCA 246, 361 C.C.C. (3d) 79, at para. 50.

[59]

Fourth,
    the influence of evidence of post-offence conduct in the determination of an
    accuseds guilt is a variable, not a constant.

[60]

Sometimes,
    the Crown will tender evidence of post-offence conduct as an essential
    component of its case. When this is so, it is for the Crown to satisfy the
    trial judge, as with any item of evidence, that the evidence is relevant and
    admissible. To meet the modest threshold for
relevance
, the Crown must
    establish that the evidence of post-offence conduct, as a matter of logic,
    common sense and human experience, has a tendency to help the jury resolve a
    live factual issue in the trial:
White
, at paras. 36, 140, 169. To
    meet the
admissibility
requirement the Crown must show that no
    exclusionary rule bars reception of the evidence.

[61]

In
    other cases, evidence of post-offence conduct will be admitted as narrative
    only and not enlisted as an essential component in proof of guilt.

[62]

Fifth,
    where evidence of post-offence conduct is put forward as an integral element in
    the Crowns attempt to establish guilt, it is ultimately for the jury to decide,
    on the basis of the evidence as a whole, whether the evidence of post-offence
    conduct relates to the offence charged rather than to something else and, if
    so, how much weight, if any, the evidence should be accorded in the final
    determination of guilt or innocence:
White
, at para. 137;
Cornelius,
at para. 19.

[63]

Sixth,
    as a general rule, evidence of post-offence conduct may be relevant to and
    admissible to assist in proof of an accuseds culpability in an offence, but
    not on the level of that culpability:
R. v. Czibulka
, 2011 ONCA 82,
    267 C.C.C. (3d) 276, at para. 55;
R. v. Stiers
, 2010 ONCA 382, 255
    C.C.C. (3d) 99, at para. 55, leave to appeal refused, [2011] S.C.C.A. No. 150.
    But this rule is not unyielding. After all, relevance is a relative concept.
    The relevance of evidence of post-offence conduct depends upon myriad factors
    such as:

i.

the nature of the conduct;

ii.

the facts sought to be inferred from it;

iii.

the positions of the parties; and

iv.

the totality of the evidence.

No prefabricated rule determines the relevance or lack
    of relevance of evidence of post-offence conduct to a particular fact in issue:
Stiers
, at para. 56.

[64]

Seventh,
    experience teaches that in some cases jurors may attach more weight to evidence
    of post-offence conduct than is warranted. In such cases, it makes sense for
    judges to alert jurors to the accumulated learning of the courts about the
    evidence, all the more so when that learning may be counter-intuitive for at
    least some jurors:
Cornelius
, at para. 19;
White
, at para.
    138.

[65]

Eighth,
    consistent with general principle, where evidence of post-offence conduct is
    admissible for one purpose but not another, as a general rule, a trial judge
    should expressly instruct the jury on the permitted and prohibited use(s) of
    this evidence. But failure to do so in express terms is not always fatal:
Cornelius
,
    at para. 24;
Czibulka
, at paras. 60-61;
Stiers
, at paras. 61-62;
R. v. Huard
, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 83, leave to
    appeal refused, [2014] S.C.C.A. No. 13.

[66]

Two
    further points will round out this discussion of governing principles.

[67]

Where
    the evidence of post-offence conduct consists of or includes advancement of an
    alibi, we distinguish the evidentiary value of a disbelieved alibi from that of
    an alibi that has been fabricated or concocted. A disbelieved alibi is an
    evidentiary naught. On the other hand, an alibi that independent evidence
    establishes as concocted or fabricated at the instance of an accused may
    support an inference of guilt, but is
not
conclusive evidence of
    guilt:
R. v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 67;
R.
    v. Nedelcu
, 2012 SCC 59, [2012] 3 S.C.R. 311, at para. 23;
R. v. Cyr
,
    2012 ONCA 919, 294 C.C.C. (3d) 421, at para. 75.

[68]

Finally,
    a general instruction that jurors might consider an accuseds words and
    actions before, at the time, and after the conduct that constitutes the
actus
    reus
of an offence in determining the accuseds state of mind is simply a
    general guideline that encourages jurors to consider an accuseds actions in
    their totality.  As such, it is not an instruction to infer an accuseds state
    of mind merely from conduct after the incident:
R. v. Jaw,
2009 SCC
    42, [2009] 3 S.C.R. 26, at para. 25.

The Principles Applied

[69]

As
    I will explain, I would not give effect to this ground of appeal and, as a
    result, would dismiss the appeal from conviction.

[70]

In
    this case, the appellants complaint is of non-direction. In other words, the
    trial judge left something out of his final instructions. He failed to tell the
    jury about how it could and could not use evidence of what the appellant said
    and did after the attack on Sarah Muir. To assess the impact of the omission,
    we must take as our point of departure the standard by which we adjudge the
    adequacy of a jury instruction. The parties are entitled to a
properly
instructed jury, not a perfectly instructed one:
R. v. Daley
, 2007 SCC
    53, [2007] 3 S.C.R. 523, at para. 31;
R. v. Marshall
, 2017 ONCA 1013,
    at para. 27. Perfection is a standard that few, if any, trial judges are
    capable of achieving:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 2.

[71]

It
    would be a rare case in which final instructions included everything that could
    be said on a particular subject, as for example, the use that can be made of
    various items of evidence adduced at trial. But on review the issue is not
    whether something more or something different could have been said but rather,
    in the context of the trial as whole, whether what was said was sufficient. For
    it is not misdirection to fail to tell the jury everything that could be said
    about a particular subject. Non-direction becomes misdirection only when
    something left unsaid makes wrong something that was said, or where what was
    left unsaid is essential to an accurate instruction on the subject:
B. (P.)
,
    at para. 131.

[72]

A
    second preliminary point. Recall the controverted issue at trial  the identity
    of Sarah Muirs assailant. Was it the appellant? Or was it somebody else? And
    recall the nature of the evidence upon which the Crown relied to prove its
    case.

[73]

Sarah
    Muir gave evidence that it was the appellant, her lover of several years and
    the father of her unborn child, who attacked her. Her blood was found on the
    inside of the tongue of one of his shoes seized within hours of the attack. A
    dark van sped away from the Muir home immediately after the attack. The
    appellants family owned a dark minivan. When police arrived at the Adamson
    home shortly after the assault, the hood of the van was warm to the touch and,
    unlike other vehicles in the same area that early November morning, the
    windshield was clear of any signs of frost.

[74]

Pitted
    against this combination of direct and circumstantial evidence was the
    appellants claim, supported by his brother, that he was at home playing video games,
    watching television, then retiring to bed shortly before the police arrived.

[75]

It
    was in the context of these dramatically opposed versions of events that the
    evidence of the appellants post-offence conduct entered trial proceedings. As
    it seems to me, the most the appellant can say is that the trial judge failed
    to give the jury an instruction about how the jury could use this evidence in
    deciding whether the Crown had proven the appellants guilt beyond a reasonable
    doubt. Perhaps it would have been better had the trial judge done so. But
    several reasons satisfy me that the omission of limiting instructions did not
    render the appellants trial unfair or cause him a miscarriage of justice.

[76]

First,
    the significance of the evidence in the demonstration of guilt. On the critical
    issue of identity, the evidence of the appellants post-offence conduct played
    a peripheral role in the Crowns case. Sarah Muir identified the appellant as
    her assailant. He was a person with whom she was thoroughly familiar. Cogent
    circumstantial evidence linked the appellant to her, including her blood on the
    inside tongue of his shoe and the inferences available from the nature and
    condition of the dark minivan parked in the driveway of the home where the
    appellant lived.

[77]

Second,
    the reliance placed on this evidence by the Crown in proof of guilt: reference
    to it in the closing address on the issue of identity only, with no suggestion
    that it could be utilized as proof of the mental element in attempted murder.

[78]

Third,
    the references to the substance of this evidence in the charge to the jury. A
    single reference in a recital of the evidence and positions of the parties on
    the issue of identity or participation. No link to proof of intent. And no link
    to the defence of alibi.

[79]

Fourth,
    the position of trial counsel for the appellant. No request for an instruction
    on evidence of post-offence conduct, despite ample opportunity for input on the
    content of final instructions during lengthy pre-charge discussions. And no
    complaint about the absence of any such direction either before or after
    delivery of the charge. While not dispositive of the necessity for such an
    instruction, the absence of any request or objection goes some distance to put
    paid to any claim of prejudice or unfairness as a result of its absence:
Daley
,
    at para. 58.

[80]

And
    finally, we ought not lose sight of the substance of an instruction on evidence
    of post-offence conduct. The appellant does not suggest that the evidence of
    post-offence conduct warranted a no probative value instruction. At least
    some of the evidence was relevant in proof of culpability, if not the level of
    that culpability. In these circumstances, drawing further attention to the
    evidence of post-offence conduct may have been unfavourable to the defence.
    Further, it was by no means certain that the evidence could not sustain a
    finding that the alibi was concocted. And even if the jury had been instructed
    that the evidence of post-offence conduct could not be used to establish proof
    of the mental element in attempted murder, the case for the Crown on that issue
    was not so underwhelming as the appellant colours it. A knife to the throat
    causing injury. And evidence of motive.

[81]

This
    ground of appeal fails, so too the appeal from conviction.

the appeal from sentence

[82]

The
    appellant also appeals the sentence imposed upon him  a term of imprisonment
    of 12 years and 57 days, the result of deducting credit of 308 days for
    pre-disposition custody from an imposed sentence of imprisonment for 13 years.

[83]

On
    the appeal from sentence, the appellant says that the trial judge erred in two
    respects:

i.

in failing to consider the appellants compliance with strict bail
    conditions for an extended period of time as a mitigating factor on sentence,
    thus warranting a deduction in the net sentence imposed; and

ii.

in imposing a sentence that is demonstrably unfit and exceeds that proposed
    by the trial Crown.

[84]

These
    complaints of error are better understood with brief references to the
    circumstances of the appellant, the positions advanced at the sentencing
    hearing, and the manner in which the hearing was conducted.

The Circumstances of the Appellant

[85]

The
    appellant was a 19-year-old first offender. He completed high school and worked
    in restaurants before and after graduating. He hoped to forge a career for
    himself in the culinary arts. He has a supportive family.

[86]

The
    terms of the appellants release from custody included requirements that he:

i.

remain in his residence at all times unless in the direct presence of
    one of his sureties (his parents), save and except during meetings with his
    counsel and only during those meetings; and

ii.

be under the direct, present and immediate supervision of at least one
    of his sureties at all times.

[87]

Prior
    to sentencing, the appellant worked at a restaurant where his father was also
    employed. The appellant was arrested on a charge of failure to comply with his
    recognizance and detained in custody until he was acquitted of that charge and
    ordered released on the terms contained in his original recognizance.

The Positions of the Parties at Trial

[88]

The
    trial Crown proposed a sentence of ten years, emphasizing as aggravating
    factors that the attack occurred in the victims home, that the victim was
    pregnant at the time of the attack, that the attack was planned, and that the
    attack had lasting effects not only on the victim, but also on her family. The
    trial Crown acknowledged the mitigating factor of the appellants youth and, in
    the following exchange, conceded that the trial judge had to take into account
    the lengthy period the appellant was subject to restrictive terms of release:

CROWN COUNSEL: So that leaves the issue of the time spent on
    release.

THE COURT: Yes,
Downes
and
Ijam
and

CROWN COUNSEL: Exactly.

THE COURT: all of that.

CROWN COUNSEL: So, its the Crowns position and I think I
    provided yesterday the law as
Ijam
and the
Dragos
case. The
    Crowns position is that
while Your Honour has to take that into account to
    some extent, that its Your Honours discretion with respect to how much credit
    to provide and that in certain cases other factors may take a predominant role
,
    and so you may decide theres [no] mathematical formula, you may decide to give
    less credit.

CROWN COUNSEL: and its something that at the end of the day
you
    may give some weight to, but in the Crowns submission, it should be far far
    less than what my friend is submitting to you
gives [
sic
] the
    circumstances and the principles that are, that you have to consider in this
    case. [Emphasis Added.]

[89]

Trial
    counsel for the appellant submitted that the appropriate range of sentence was
    imprisonment for a term of seven to ten years. She contended that the fact that
    the appellant was a youthful first offender with excellent prospects for
    rehabilitation and family support warranted a sentence of seven years. Trial counsel
    urged the trial judge to consider the appellants lengthy compliance  for 22
    months  with restrictive bail conditions as a mitigating circumstance in
    determining a fit sentence. Trial counsel proposed credit for restrictive bail
    conditions at a rate of 0.5 to 1, a figure with which the trial Crown
    disagreed.

The Sentencing Proceedings

[90]

Immediately
    after the trial Crown indicated that she sought a sentence of imprisonment of
    ten years, less whatever credit the trial judge considered appropriate for
    restrictive bail conditions, the trial judge said:

May I say respectfully that I think you may be too low.

The trial judge then explained that the purpose of his
    comment was to put counsel on notice that he was considering imposing a
    sentence in excess of that sought by the Crown.

Reasons for Sentence

[91]

The
    trial judge identified denunciation, deterrence, separation, and
    proportionality as the governing sentencing objectives. He also recognized that
    the appellant was a youthful first offender with rehabilitative potential and
    strong family support.

[92]

In
    reaching his conclusion that a fit sentence was imprisonment for a term of 13
    years less credit of 308 days for pre-disposition custody, the trial judge
    identified several aggravating features. Among those were that the offences:

i.

involved a home invasion;

ii.

were planned;

iii.

constituted a breach of trust;

iv.

had a significant impact on the victim and her family; and

v.

were committed on a pregnant woman.

[93]

The
    trial judge expressly acknowledged that the appellant was seeking credit for time
    spent under strict bail conditions. The trial judge noted  erroneously  that
    the Crown was opposed to any mitigation of the imposed sentence on this basis.
    Ultimately, the trial judge was not persuaded that the appellant suffered any
    significant hardship due to his bail conditions. He reached this conclusion for
    three reasons:

i.

The appellant was able to spend all of his pre-trial time in the
    comfort of his own home, with his family, with the exception of some time
    spent in custody on the charge of breaching his recognizance.

ii.

For a portion of his time on bail, the appellant was able to secure
    employment at the same workplace as his father worked.

iii.

The Crown was reasonable in consenting to variations of [the
    appellants] bail terms where appropriate.

[94]

In
    the result, the trial judge awarded no credit for the 22 months the appellant
    had been bound by his release terms never to be out of the presence of one of
    his sureties.

The Arguments on Appeal

[95]

The
    appellant says that the trial judge erred in failing to consider the
    appellants lengthy period of pre-trial release on stringent terms as a
    mitigating factor on sentence. The appellant, when at home, was under the
    direct, present and immediate supervision of at least one of his sureties for
    almost two years. This qualifies, he says, as a lengthy period of release on
    very restrictive terms and warranted some mitigation of the principal sentence.

[96]

In
    failing to consider restrictive release conditions over a lengthy period of
    time as a factor in mitigation of sentence, the appellant contends that the
    trial judge made three discrete errors. He misapprehended the position of the
    Crown on the issue, mistakenly characterizing it as opposed to the award of
    credit. The Crown had in fact expressly acknowledged the mitigating effect of
    restrictive release conditions, but left the quantum of credit to be determined
    by the trial judge. The judge then misconstrued the scope of the Crowns
    consent to a pre-trial bail variation. The consent was to a minor variation in
    a reporting condition, not a more meaningful loosening of the house arrest term
    which the Crown opposed. And the trial judge, having decided not to award a
    specific amount of credit for a lengthy period of pre-trial release subject to
    restrictive bail conditions, further erred in failing to consider these
    conditions as a mitigating factor on sentence. This error stemmed, in part,
    from the trial judge misapprehending the strictness of the appellants bail
    conditions.

[97]

The
    appellant further submits that the 13-year sentence imposed is demonstrably
    unfit. The trial judge, according the appellant, relied on distinguishable
    authorities that involved more blameworthy offenders with extensive criminal
    histories committing more serious crimes. The trial judges improper reliance
    on these cases caused him to view the trial Crowns reasonable sentence
    proposal as too low. The appellant seeks a variation in the sentence imposed
    to a term of ten years, less credit for pre-trial custody.

[98]

The
    respondent resists any variation of the sentence imposed at trial. The judge
    was entitled to refuse to award a specific amount of credit or to consider as a
    mitigating factor the period spent on pre-trial release. The trial judge made
    no error in principle and did not impose a sentence that was demonstrably
    unfit. He followed the correct procedure in advising counsel that he was
    considering imposing a sentence beyond what the trial Crown had sought and gave
    cogent reasons for having done so.

[99]

In
    connection with the period spent on pre-trial release, the respondent reminds
    us that whether such a period should be accorded a defined credit or considered
    in mitigation is an issue for the sentencing judge to determine. Relevant
    factors include the length of time on pre-trial release, the nature of the
    conditions, and the impact of those conditions on the offender. The trial judge
    considered the relevant factors and decided that no credit or mitigation was
    warranted. His conclusion is entitled to and should be accorded deference in
    this court.

[100]

Further, the
    respondent continues, the sentence the trial judge imposed is not unfit. The
    trial judge considered and applied the proper sentencing objectives and
    principles. Aggravating factors predominated. The judge was cognizant of the
    appellants youth, his status as a first offender, his family support and his
    rehabilitative prospects. The sentence imposed is not beyond the range of fit
    sentencing dispositions and is entitled to substantial deference.

The Governing Principles

[101]

Several
    principles inform the decision on the fitness of the sentence imposed at trial.
    Some have to do with the scope of appellate review while others relate more
    specifically to the influence of the terms of predisposition release on the
    sentencing decision.

[102]

First, the
    standard of review. It is not every error in principle, every failure to
    consider a relevant factor, or every erroneous consideration of an aggravating
    or mitigating factor that can justify the intervention of an appellate court on
    an appeal from sentence. Appellate intervention is justified only where it
    appears from the sentencing judges decision that such an error had an impact
    on the sentence imposed:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
    at paras. 43-44;
R. v. Suter
, 2018 SCC 34, at para. 24.

[103]

Second, an
    appellate court is disentitled to interfere with a sentence imposed at trial
    simply because the appellate court would have weighed the relevant factors
    differently than did the sentencing judge:
Lacasse
,
at para.
    49.

[104]

Third, a
    sentencing judges choice of sentencing range or of a category within a range
    resides within the sentencing judges discretion and, without more, cannot
    amount to a reviewable error. Appellate courts may not intervene solely on the
    ground that they would have situated the sentences in a different range or
    category:
Suter
, at para. 25. Intervention is restricted to cases in
    which the sentence imposed is demonstrably unfit:
Lacasse
, at para.
    51.

[105]

Fourth, a
    sentence is demonstrably unfit if it constitutes an unreasonable departure from
    the fundamental principle of proportionality, that is to say, that the sentence
    be proportionate to the gravity of the offence and the degree of responsibility
    of the offender who committed it:
Lacasse
, at para. 53.

[106]

Turning to the
    issue of credit for time spent on predisposition release on restrictive terms. Unlike
    predisposition custody, which is governed by s. 719(3) of the
Criminal Code
,
    no statutory provision explicitly authorizes or requires consideration of time
    spent subject to stringent predisposition bail conditions as a relevant
    mitigating factor on sentence. That said, it is beyond controversy that prior
    decisions of this court authorize a sentencing judge to take into account, as a
    relevant mitigating circumstance on sentence, time spent under stringent bail
    conditions, especially house arrest:
R. v. Downes
, (2006), 79 O.R.
    (3d) 321 (C.A.), at para. 33;
R. v. Ijam
, 2007 ONCA 597, 87 O.R. (3d)
    81, at para. 37.

[107]

A sentencing
    judge should explain why she or he has decided not to take predisposition house
    arrest into account in determining the sentence that she or he will impose. The
    amount of credit to be given, if any, lies within the discretion of the trial
    judge. Unlike s. 719(3) in relation to predisposition custody, there is no
    formula the sentencing judge must employ. The amount of credit is variable, a
    function of several factors, including but not limited to:

i.

the period of time spent under house arrest;

ii.

the stringency of the conditions;

iii.

the impact on the offenders liberty; and

iv.

the ability of the offender to carry on normal relationships, employment
    and activity.

See,
Downes
, at paras. 33, 34 and 37. See
    also,
Ijam
, at paras. 37 and 63.

[108]

A final point
    concerns the effect of the failure of a sentencing judge to consider an offenders
    bail conditions as a mitigating factor in determining the sentence to be
    imposed. Consistent with
Lacasse
and earlier jurisprudence of this
    court, the failure to consider or give effect to an offenders predisposition
    bail conditions as a mitigating factor on sentence warrants appellate
    intervention only where it appears from the trial judges decision that such an
    error had an impact on the sentence imposed:
Lacasse
, at para. 44;
Suter
,
    at para. 24;
R. v. Lawes
, 2007 ONCA 10, at paras. 10-11;
R. v. Hunjan
,
    2007 ONCA 102, at para. 1. See also,
R. v. Pomanti
, 2017 ONCA 48, at
    para. 34.

The Principles Applied

[109]

As I will
    briefly explain, although I would grant leave to appeal sentence, I would
    dismiss the appeal from sentence.

[110]

At the outset, I
    acknowledge that a 13-year sentence imposed upon a youthful first offender with
    significant rehabilitative potential is a substantial sentence. But I do not
    consider it to offend the fundamental principle of proportionality or to be
    otherwise demonstrably unfit as reflective of an unreasonable departure from
    that principle.

[111]

I agree with the
    appellant that the trial judges reasons reveal a misapprehension about the
    position of the Crown in connection with the pre-trial bail conditions by which
    the appellant was bound for 22 months. The Crown did not oppose consideration
    of these conditions as a relevant mitigating factor on sentence, rather
    agreeing that they were relevant and leaving it to the trial judge to determine
    the extent of mitigation warranted. It is also arguable that the trial judge
    overstated the extent of the Crowns cooperation with the appellants attempts
    to review and vary the conditions governing his predisposition release.
    Although the Crown consented to a variation in the frequency of the appellants
    reporting to police, it opposed loosening of the house arrest and
    surety-supervisory conditions.

[112]

While I do not
    gainsay the force of these submissions, I am not satisfied that they justify this
    court interfering with the sentence imposed

[113]

To begin,
    neither claim of error discloses a significant misapprehension by the trial
    judge. While the Crown acknowledged that the appellants pre-trial bail
    conditions had to be considered to some extent, she did not advocate for any
    particular quantum of credit. She expressly opposed the 11-month figure
    proposed by the appellants trial counsel, suggesting that the appellants time
    on pre-trial release deserved far far less weight as a mitigating factor, and
    that in certain cases other factors may take a predominant role. Thus, the
    Crowns position, while not accurately depicted in the reasons for sentence,
    was far from forceful in favour of awarding the appellant credit for pre-trial
    release.

[114]

Further, the trial
    judges finding that the Crown was reasonable in consenting to variations of
    [the appellants] bail terms where appropriate amounts, at most, to an
    overstatement and not a fundamental misunderstanding of the record. The Crown
    provided its consent for one variation to the appellants bail conditions and
    refused to acede to other, more significant variations. The trial judge may
    simply have concluded that the Crown acted reasonably in deciding which
    variations to support  and, as such, provided consent
where appropriate

    (emphasis added).

[115]

More
    importantly, neither alleged error had any impact on the sentence imposed.
    Neither affects the fundamental finding of fact made by the trial judge, a
    determination available to him on the evidence, that the
Downes
criteria were not satisfied. The trial judge provided cogent reasons in support
    of his finding that the appellant did not suffer any significant hardship or
    deprivation as a result of his bail terms. This conclusion was reasonably
    available to him on the evidence and entitled to significant deference in this
    court.

[116]

Turning next to
    the appellants claim that the trial judge should have taken the strict bail
    conditions into account as a mitigating factor, even after refusing to award the
    appellant a specific amount of credit for abiding by those conditions.

[117]

I reject this
    submission. Time spent on pre-trial release does not always deserve weight as a
    mitigating factor. In some cases, a sentencing judge should give mitigation
    effect to pre-trial bail. In other cases, this factor should attract little,
    if any, weight:
Ijam
, at para. 37. This case fell into the latter
    category, given the trial judges unequivocal and reasonable finding that the
    appellant did not suffer any significant hardship because of compliance with
    his bail conditions. That finding justifies the trial judges decision not to
    give mitigation effect to the appellants time on pre-trial release, either
    through an explicit award of credit or by assigning it weight when determining
    an appropriate sentence.

[118]

Finally, I would
    reject the appellants submission that the sentence imposed is demonstrably
    unfit.

[119]

Sentences for
    attempted murder imposed at trial or after a plea of guilty and upheld by this
    court vary widely:
R. v. Tan
, 2008 ONCA 574, 268 O.A.C. 385, at para.
    35. The variations reflect differing circumstances. Of offence. Of offender.
    And of the effects of the offence on their victims. The maximum sentence is
    imprisonment for life. And the offence includes the most morally blameworthy
    state of mind known to our law  the intent to kill a fellow human being.

[120]

In this case, a
    sentence of 13 years is justified on the basis of several aggravating factors,
    compounding the significant moral blameworthiness inherent to the crime of attempted
    murder and the intent to kill that accompanies it:
R. v. Forcillo
,
    2018 ONCA 402, at paras. 129-130, 195, 201. These aggravating factors include:

i.

the domestic-like context;

ii.

the breach of trust;

iii.

the planned nature of the attack;

iv.

the invasion of the victims home;

v.

the pregnant state of the victim; and

vi.

the serious consequences for the victim and her family.

[121]

An additional
    point. The trial judge found that the appellants actions did not result in Sarah
    Muirs death only because by happenstance he selected a dull knife with which
    to attempt to kill Ms. Muir rather than a sharp knife. If he had selected a
    sharp knife, he would in all probability be guilty of murder. In these
    circumstances, the appellants culpability is hardly distinguishable form that
    of a murderer:
R. v. Varga

(2001), 159 C.C.C. (3d) 502 (Ont.
    C.A.), at para. 95;
R. v. McArthur
(2004), 182 C.C.C. (3d) 230 (Ont.
    C.A.), at paras. 47-48.

[122]

Given these
    significant aggravating factors, the sentence imposed was reasonable and fell
    within the appropriate range for this offence and this offender.

conclusion

[123]

I would dismiss
    the appeal from conviction, grant leave to appeal sentence, but dismiss the
    appeal from sentence.

Released: DW AUG 3 2018

David Watt J.A.

I agree. David Brown J.A.

I agree. Grant Huscroft J.A.

[1]

Although the label post-offence conduct is less prejudicial
    than its predecessor consciousness of guilt, it appears to presume the
    commission of an offence. Perhaps post-incident conduct would be a better
    choice of words.