COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clause, 2016 ONCA 859

DATE: 20161117

DOCKET: C59063

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kelli Lynn Clause

Appellant

Joshua D. Frost, for the appellant

John A. Neander, for the respondent

Heard: June 10, 2016

On appeal from the conviction entered on April 6, 2013
    and the sentence imposed on January 9, 2014 by Justice Harrison S. Arrell of
    the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I.

Overview

[1]

On January 10, 2010 the appellant, Kelli Lynn
    Clause, hosted a birthday party at a house on Second Line Road near Ohsweken,
    Ontario. During the party, the complainant, Ross Martin, was stabbed in the eye
    while sitting in a car and seriously injured. The only real issue at trial was
    whether it was the appellant who stabbed Mr. Martin in the eye.

[2]

The jury convicted the appellant of one count
    of aggravated assault. At the conclusion of the hearing of the appeal, this
    court allowed the appeal and directed a new trial, with reasons to follow.
    These are those reasons.

II.

A brief chronology of events

[3]

On January 9, 2010, after returning home from
    work, Mr. Martin passed the afternoon and evening drinking with a friend,
    Roni-Lee Styres. Mr. Martin, Ms. Styres, and Skylar Henry lived together at the
    time.

[4]

Late that evening, Mr. Martin chatted with
    the appellant on Facebook, and she invited him to her birthday party. The
    appellant picked Mr. Martin up from his house early in the morning of January
    10, and they proceeded to the party.

[5]

About half an hour after Mr. Martin and the
    appellant reached the Second Line Road house, a group of 15 to 20 people
    arrived. Mr. Martin testified he was sucker punched by one of the new arrivals
    and then attacked by others as he lay on the ground.

[6]

After the attack, Mr. Martin left the house
    and began to walk back to where he lived. The appellant and another female
    picked him up along the way and drove him to the house he shared with Ms.
    Styres and Mr. Henry. Mr. Martin said he wanted to fight and planned to return
    to the Second Line residence.

[7]

Upon reaching his house, Mr. Martin asked Ms.
    Styres to drive him back to the party. Mr. Martin, Ms. Styres, and Mr. Henry then
    returned to the Second Line Road house using Ms. Styress car.

[8]

Although there was conflicting evidence about
    precisely what happened next, the evidence showed Mr. Martin attacked the
    appellants younger brother with a baseball bat outside of the house. Mr. Martin,
    in turn, was attacked by a group of people who came out of the house. He was
    hit with a variety of objects, including beer bottles and a metal pipe.

[9]

Ms. Styres and Mr. Henry were able to
    extricate Mr. Martin from the group and place him on the backseat of the car.
    While Mr. Martin was seated in the car, someone reached into the vehicle with a
    beer bottle and stabbed him in his right eye. He suffered serious injuries.

[10]

Ms. Styres and Mr. Henry took Mr. Martin to
    his mothers residence. The police were called and Mr. Martin was taken to
    hospital. At the hospital, Mr. Martin told a police officer he did not know who
    had attacked him.

[11]

In their initial statements to the police, Ms.
    Styres and Mr. Henry identified three males as the persons who had attacked Mr.
    Martin at the Second Line residence before he was stabbed in the eye. All three
    men were charged and pled guilty to aggravated assault.

[12]

Mr. Martin first identified the appellant as
    one of his attackers in a January 26, 2010 statement he gave to the police. At
    trial, Mr. Martin, Ms. Styres, and Mr. Henry testified that it was the
    appellant who reached in and stabbed Mr. Martin in the face with a beer bottle.

[13]

The jury convicted the appellant of one count
    of aggravated assault.

III.

The issues on appeal

[14]

The appellant advances several grounds of
    appeal, which I will address in the following order:

1.

In
    his opening statement, Crown counsel improperly referred to three statements the
    appellant made to the police, the admissibility of which was contested. The
    appellant submits the trial judge erred in failing to declare a mistrial after
    the Crowns opening;

2.

Alternatively,
    the appellant submits the trial erred by failing to give the jury an immediate
    corrective instruction to ignore the Crowns improper reference to the three statements
    in his opening;

3.

The
    trial judge erred in admitting a statement the appellant made to a police
    officer at a gas station shortly after the incident;

4.

The
    trial judge failed to instruct the jury properly on the use they could make of
    the appellants gas station statement;

5.

The
    trial judges charge was inadequate because he failed to instruct the jury on
    how to assess the prior inconsistent statements of three key Crown witnesses
    Messrs. Martin and Henry, and Ms. Styres; and

6.

The
    charge was inadequate because the trial judge failed to instruct the jury on
    possible collusion amongst Messrs. Martin and Henry and Ms. Styres in regards
    to their evidence identifying the appellant as the person who struck Mr. Martin
    in the face with a beer bottle.

[15]

I see no error in the trial judges decision
    not to declare a mistrial (Issue 1), his admission of the appellants gas
    station statement to the police (Issue 3), or in his charge to the jury about
    how to assess inconsistencies in the evidence of the three key Crown witnesses
    (Issue 5). However, I accept the appellants submission that the trial judge
    made three errors of law: (i) he failed to provide the jury with a timely
    corrective instruction regarding the Crowns improper opening (Issue 2); (ii) he
    failed to instruct the jury properly on the use they could make of the
    appellants gas station statement to the police (Issue 4); and (iii) he failed
    to instruct the jury on the possibility of collusion amongst the three key
    Crown eye-witnesses (Issue 6). Cumulatively, those three errors resulted in an
    unfair trial, requiring the appellants conviction to be set aside and a new
    trial ordered.

IV.

Issues 1 and 2: The Crowns opening address

A.

The issue stated

[16]

During the course of his opening address,
    Crown counsel referred to three statements the appellant had made to police
    officers. The appellant made the first two statements to Sergeant Timothy
    Bomberry shortly after the assault on Mr. Martin.

[17]

Crown counsel stated Sgt. Bomberry went to
    the residence of Mr. Martins mother and assisted the paramedics in preparing
    him for transport to the local hospital. Crown counsel then stated:

After leaving the residence in Hagersville, [Sgt. Bomberry] had
    to stop to fuel up his cruiser. Coincidentally, there he observed the accused,
    Kelli Lynn Clause, and Lisa Hill. They too were filling up gas in their
    vehicle. He spoke with Ms. Clause and asked her specifically if she had met up
    with Mr. Ross Martin that night. Ms. Clause deliberately lied to the officer in
    stating that she had not seen Mr. Martin, but that they were in fact, supposed
    to meet up at a bar called Jackhammers in Brantford, but that he didnt show
    up. He advised Ms. Clause of the reason of his inquiry and she again stated
    emphatically that she had not seen Mr. Martin that night (the Gas Station Statement).

[18]

Crown counsel told the jury that Sgt.
    Bomberry then interviewed Mr. Martins roommates. Based on information he
    learned, Sgt. Bomberry returned to the Second Line residence where he
    encountered the appellant:

[W]ho became belligerent with him, who became assaultive with
    him. He will testify that she was intoxicated. He then began another
    conversation with her. He stated, You lied to me about knowing what happened
    to Ross Martin. Her response to him was, I dont give a fuck, fuck him. She
    then tried to grab the sergeant and interfere with his investigation by yelling
    and screaming (the Second Statement).

[19]

Crown counsel also referred to the
    anticipated evidence of Detective Constable Gordon Hill, who arrested the
    appellant when she turned herself in at the police station. In describing those
    events, Crown counsel told the jury:

Later that day, Detective Hill spoke with her and informed her
    as to the reason for her arrest, in particular, information he had received
    from Ross Martin as to her involvement in the aggravated assault. She denied
    that she was responsible, claiming that she was inside the residence on Second
    Line Road during the assault on Mr. Martin (the Third Statement).

[20]

On the day following the Crowns opening, defence
    counsel moved for a mistrial on the basis that Crown counsel had referred
    improperly to the three statements  they were statements made by the appellant
    to persons in authority the admissibility of which had not been determined in a
voir dire
.
    The trial judge dismissed the motion, ruling:

Your motion is dismissed. The comments made by [Crown counsel]
    in his opening was clearly indicated to the jury that its not evidence. If
    those statements do not go in after we have a
voir dire
, the jury will
    be instructed even more fully that what [Crown counsel] said was totally
    irrelevant, not evidence and not to be considered by them. Whether these three
    statements go in or do not go in will depend on a
voir dire
if thats
    what we need to have now.

[21]

With the agreement of counsel, the
voir dire
was held several days later in the trial. Just prior to the start of the
voir dire
,
    Crown counsel advised he was not seeking the admission of the Third Statement.

[22]

On the
voir dire
,
    Sgt.
Bomberry testified about the Gas Station and
    Second Statements. The trial judge ruled that the Gas Station Statement was
    admissible because it was taken when the appellant was not a suspect, but the
    Second Statement was inadmissible as it was taken when the appellant was
    arbitrarily detained.

[23]

The following day, defence counsel renewed
    her motion for a mistrial, arguing that the Crown had referred improperly in his
    opening to the three statements, one of which had now been ruled inadmissible
    and one of which the Crown had withdrawn. Defence counsel recalled the tone Crown
    counsel had used in his opening when referring to the excluded Second Statement,
    when it was put to the jury in clear, loud, slow terms, I dont give a fuck,
    fuck him. Defence counsel submitted it was unlikely a corrective instruction
    would dislodge the impact of that statement.

[24]

The trial judge again dismissed the motion
    for a mistrial, ruling:

The motion for mistrial is dismissed. I acknowledge [defence
    counsel] that what the Crown said in the opening is very unfortunate, that
    never should have been said until it was clear that the statements were going
    to be admitted. However, its also been made very clear to the jury that what
    the lawyers say is not evidence. I will reemphasize that in no uncertain terms
    in my charge, and Im confident that this jury, and the case law supports this
    overwhelmingly, that the jury will follow my instructions. And juries do follow
    judges instructions, and I expect this jury will as well, and I will give a
    very clear instruction that what counsel says in openings or closings, or at
    any time, is not evidence, and the only evidence of any statement by your
    client is the one statement that will be admitted.

[25]

The trial judge did not give a mid-trial corrective
    instruction to the jury about the Crowns reference in his opening to the
    inadmissible statements.

[26]

Following counsels closings to the jury,
    defence counsel requested the trial judge include an express reference in his
    charge to the fact there was evidence about alleged statements made by [the
    appellant] in the opening statement that cannot and should not be considered in
    [the jurys] deliberation. The trial judge stated he was not inclined to do
    so. His charge would instruct the jury that what the lawyers say is not
    evidence, and he was reluctant, three weeks later, to bring up those two
    statements again.

[27]

In his charge, the trial judge instructed the
    jury that there were some things that were not evidence, including: What the
    Crown said in his opening and what both lawyers said in their closings are not
    evidence. This instruction tracked what the trial judge had said in his
    introductory remarks to the jury at the beginning of the trial.

B.

The
    positions of the parties

[28]

The appellant submits the trial judge should
    have declared a mistrial to remedy the prejudice resulting from the Crown
    referring in his opening to the three statements, the admissibility of which was
    in dispute. She argues the Second Statement was highly prejudicial given its
    content and the tone in which it was conveyed by Crown counsel, yet had little
    probative value. The appellant contends the Crowns opening cast her as a liar
    and a belligerent person, giving rise to the risk of propensity reasoning by
    the jury.

[29]

Alternatively, the appellant submits the
    trial judge erred in failing to give the jury a mid-trial instruction about the
    improper contents of the Crowns opening address. He also erred in failing to
    instruct the jury expressly in his charge to ignore the Second and Third
    Statements.

[30]

The respondent acknowledges that the Crown
    should not have referred to the three statements in his opening. However, the respondent
    submits two circumstances rendered those references harmless: (i) the trial
    judges instructions that what counsel said was not evidence and (ii) the
    passage of two weeks from the time of the Crowns opening until the jury began
    its deliberations.

[31]

Alternatively, the respondent submits that if
    the trial judge erred in failing to give a more specific corrective instruction,
    this is an appropriate case for the application of the curative proviso:
Criminal Code
,
    s. 686(1)(b)(iii).

C.

Analysis

[32]

The limits on a Crowns opening address to a
    jury are well-established: the Crown should use an opening to introduce the
    parties, explain the process, and provide a general overview of the evidence
    the Crown anticipates calling in support of its case:
R. v. Mallory
,
    2007 ONCA 46, 222 O.A.C. 239, at para. 338. In an opening statement, the Crown
    should not refer to evidence the admissibility of which is in dispute:
R. v. Smith
(1994),
    120 Sask. R. 221, [1994] S.J. No. 316, (C.A.), at paras. 44 and 47. For
    example, since a statement or confession an accused person made to a person in
    authority does not become evidence until ruled admissible, Crown counsel should
    not refer to it in an opening:
R. v. Truscott
(1960), 126 C.C.C. 109, [1960] O.J. No. 402 (C.A.), at para. 5.

[33]

In the present case, it was improper for
    Crown counsel to refer in his opening address to the three statements the
    appellant made to a police officer when the admissibility of those statements
    had not been ruled or agreed upon. The issue is whether the trial judge took
    adequate steps in the circumstances to mitigate any prejudice to the appellant
    caused by the Crowns improper references.

Mistrial

[34]

The appellant submits the trial judge erred
    in refusing her two requests for a mistrial.

[35]

Mistrials are a remedy of last resort and
    should only be declared to avoid miscarriages of justice:
R. v. A.G.
,
    2015 ONCA 159, 124 O.R. (3d) 758, at para. 50. A trial judge is best positioned
    to assess whether a mistrial is warranted in the circumstances. Consequently,
    an appellate court owes significant deference to a trial judges determination whether
    to grant a mistrial, and should only interfere with a decision to deny a
    mistrial if that decision is clearly wrong or based on an erroneous principle:
A.G.
,
    at paras. 51 and 52.

[36]

Here, as noted above, the trial judge refused
    to declare a mistrial because he intended to give instructions to the jury
    about the improper references made by the Crown in his opening.

[37]

Proposing to use a corrective instruction
    certainly fell within the range of acceptable approaches by which to mitigate
    the prejudice flowing from the improper references in the Crowns opening.
    Accordingly, the trial judge did not err in refusing to declare a mistrial.

Corrective
    instruction

[38]

When improper comments by Crown counsel are
    sufficiently prejudicial, a trial judge has a duty to intervene; a failure to
    do so will constitute an error of law:
R. v. Romeo
,
    [1991] 1 S.C.R. 86, at p. 95;
R. v. A.T
.,
    2015 ONCA 65, 124 O.R. (3d) 161, at para. 38. Accordingly, where the Crown
    refers in its opening to anticipated evidence that subsequently is not led or
    is ruled inadmissible, it is the duty of the trial judge to tell the jury
    explicitly that the statements complained of are not in evidence and they must
    try to free their minds from them:
R. v. Walker
(1910), 15 B.C.R. 100, [1910] B.C.J. No. 18 (S.C.), at para. 7;
Smith
,
    at para. 48.

[39]

Where a trial judge fails to redress properly
    the harm caused by a clearly unfair or significantly inaccurate jury address, a
    new trial may result:
R. v. Rose
, [1998] 3 S.C.R. 262, at
    para. 127. The question is whether, in the context of the entire trial, the
    remarks and the trial judges response or failure to respond caused a
    substantial wrong or miscarriage of justice:
Romeo
, at
    p. 95.

[40]

The trial judge recognized his duty to
    intervene, but failed to do so in the manner required by the circumstances. The
    Crowns reference in his opening to three statements by the accused, the
    admissibility of which was in dispute, called for strong intervention. The
    trial judge should have intervened immediately after objection was made
    following the Crown opening, or certainly no later than the conclusion of the
voir dire
when the trial judge ruled on the admissibility of the statements.

[41]

The trial judge recognized the prejudice that
    could result from the Crowns improper opening. In his
voir dire
ruling, the trial judge had described the Second Statement as not terribly
    probative and highly prejudicial. Yet the trial judge ended up merely making
    a general statement in his charge that what the Crown said in his opening was
    not evidence. With respect, that general statement did not constitute the full
    and emphatic instruction he said he would give, and it failed to redress
    properly the harm caused by the Crowns improper reference to the three
    statements in his opening.

[42]

By failing to give an adequate corrective
    instruction to the jury, the trial judge erred in law.

[43]

The respondent submits that if the trial
    judge erred in failing to give a proper corrective instruction, this would be an
    appropriate case for the application of the curative proviso:
Criminal Code
,
    s. 686(1)(b)(iii). I will consider the availability of the curative proviso at
    the end of these reasons.

V.

Issue 3: Did the trial judge err in dismissing
    the appellants ss. 9 and 10(b)
Charter
application to exclude the Gas
    Station Statement?

A.

The issue stated

[44]

In her Gas Station Statement, the appellant
    said she had not seen Mr. Martin the night of the assault and he had not shown
    up at the Jackhammers bar in Brantford where they had agreed to meet. The
    appellant submits the trial judge erred by dismissing her motion to exclude the
    Gas Station Statement on the ground that Sgt. Bomberry had obtained it in
    violation of her rights under ss. 9 and 10(b) of the
Canadian Charter of Rights
    and Freedoms
.

B.

Analysis

[45]

The appellant submits the trial judge erred
    in holding Sgt. Bomberry did not violate her
Charter
rights because he did not consider whether a reasonable person would conclude
    the appellant was detained at the time she made the Gas Station Statement.

[46]

I would not accept this submission. In his
    ruling on the
voir dire,
the trial judge identified
    and applied the correct legal tests:
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353;
R. v. Suberu
,
    2009 SCC 33, [2009] 2 S.C.R. 460. His conclusion that the appellant was not
    psychologically detained when she made the Gas Station Statement to Sgt.
    Bomberry was fully supported by the evidence: Sgt. Bomberry did not consider
    her a suspect or person of interest at the time; he met her by chance when he
    stopped at the gas station to fuel his vehicle; initially Sgt. Bomberry tapped
    on the window of the car in which the appellant was a passenger and they spoke
    with the window rolled down; the appellant wanted to roll up the window because
    it was an extremely cold night, and she consented to Sgt. Bomberry coming into
    the car to continue the conversation, which lasted another four minutes; when
    Sgt. Bomberry left the car, the appellant and her friend continued on their
    way.

[47]

Although the trial judge did not state
    expressly in his
voir dire
ruling that a reasonable
    person looking at all the circumstances would conclude the appellant was not
    detained, that conclusion was apparent when his ruling is read as a whole. I
    see no error in his decision that Sgt. Bomberry did not violate the appellants
    s. 9 and 10(b)
Charter
rights.

VI.

Issue 4: The admissibility and use of the Gas
    Station Statement

A.

The issues stated

[48]

The appellant submits the trial judge made
    two further errors regarding the Gas Station Statement. He:

(i)

failed to take into account relevant factors
    when determining the statements admissibility given that the Crown intended to
    use the Gas Station Statement to tell the jury the appellant had fabricated the
    statement and was a liar; and

(ii)

failed to instruct the jury adequately on the
    use they could make of the Gas Station Statement.

B.

Admissibility

The
    Crowns intended use of the Gas Station Statement

[49]

The Crown not only asked the jury to conclude
    the appellants exculpatory Gas Stations Statement was false, but also that she
    had fabricated the statement in an effort to avoid culpability. In his closing,
    Crown counsel stated:

[H]er responses to [Sgt. Bomberry] were an absolute and
    deliberate lie, a deliberate and calculated attempt to deflect any and all
    attention away from herself, her family and the activities occurring at 2099
    Second Line Road.

[50]

Crown counsel also pointed to the appellants
    deliberate lies to Sgt. Bomberry as one of several pieces of evidence that
    speaks volumes as to her culpability in this crime. Crown counsel thereby sought
    to use the appellants Gas Station Statement as circumstantial evidence of her
    guilt.

[51]

In her closing, defence counsel did not
    seriously dispute the appellant had made the Gas Station Statement. Instead,
    counsel characterized the statement more as a lying, dishonest way of, I dont
    want to be involved with anything, a dishonest brushoff, and what she said
    was, I dont have anything to say.

Analysis

[52]

Our law distinguishes between an exculpatory
    statement that is disbelieved and rejected by the trier of fact, and one that
    is found to have been fabricated or concocted to avoid culpability. This court
    explained the distinction and its implications in
R. v. Bradey
,
    2015 ONCA 738, 127 O.R. (3d) 721, at paras. 165-174. An alibi or other
    exculpatory statement that is merely disbelieved is not evidence that
    strengthens the Crowns case. By contrast, where the Crown adduces evidence from
    which the trier of fact can infer that the exculpatory statement was
    fabricated, that evidence is capable of supporting an inference of guilt:
    para. 169.

[53]

The reason for distinguishing mere disbelief from
    a finding of fabrication relates to the fundamental principle that the onus of
    proof remains on the Crown throughout a criminal trial. As this court explained
    in
R. v.
    OConnor
(2002), 62 O.R. (3d) 263 (C.A.), at para. 19:

The distinction reduces the risk that a trier of fact may blur
    the need for the Crown to prove the offence charged beyond a reasonable doubt
    with the failure of the accused to provide a credible defence. The distinction
    also recognizes the danger that a trier of fact may attach undue weight to the
    rejection of an accused's explanation and may move too readily from mere
    disbelief to a finding of guilt.

[54]

The implications of the distinction for the
    admissibility of a statement were explained in
Bradey
, at
    paras. 171-173:

In many, if not most, cases, a trier of fact may logically
    infer fabrication from disbelief. But the policy that underpins the distinction
    between disbelief and fabrication sets its face against using disbelief to
    infer fabrication. Instead, to establish fabrication, we insist on evidence
    that is
independent
of the evidence that contradicts or discredits the
    exculpatory explanation

Evidence of fabrication may emerge from the circumstances in
    which the disbelieved out-of-court statement was made For example, the
    circumstances in which a false statement was made may show an intent to mislead
    the police or others or an intent to deflect suspicion from the maker of the
    statement or towards others

The decision in
OConnor
affords some examples of
    circumstances in which a statement was made that might assist in proving that
    the statement was fabricated:

The timing of the statement, for example that the accused
    provided the statement at a time when the police did not suspect or have any
    reason to suspect the involvement of the accused;

The scope of the exculpation provided by the statement; and

The degree of detail provided in the statement. [Citations
    omitted].

[55]

The appellant submits that on the
voir dire
to determine the admissibility of the Gas Station Statement, the trial judge
    failed to consider whether there existed sufficient evidence, independent of
    the falsity of the statement, to demonstrate fabrication.

[56]

A trial judge has a duty to consider the
    effect of the Crowns allegation of fabrication on the admissibility of an
    accuseds statement. This duty persists even where the
voir dire
focuses on other issues relating to the statement, such as voluntariness or
Charter
compliance:
R. v.
    Hall,
2010 ONCA 724, 269 O.A.C. 199, at para. 163.

[57]

The trial judge did not do so in this case.
    That said, since the parties did not ask the trial judge to assess the effect
    of the Crowns allegation of fabrication on the admissibility of the Gas
    Station Statement, his failure to do so is understandable.

[58]

More importantly, I do not regard this
    oversight as materially affecting the admissibility of the Gas Station
    Statement. There was ample independent evidence of fabrication. Unlike the
    circumstances in
Hall
, the Crowns case against
    the appellant did not rest only on circumstantial evidence  three
    eye-witnesses testified she assaulted Mr. Martin. As well, the circumstances in
    which the appellant made the Gas Station Statement afforded some evidence of
    fabrication  the appellant made the statement at a time the police did not
    suspect her, and she provided some detail in the statement, contending Mr.
    Martin did not keep their arrangement to meet at a Brantford bar.

[59]

Consequently, I would not give effect to this
    ground of appeal.

B.

Instructions
    on the use of the Gas Station Statement

[60]

The appellant further submits the trial judge
    failed to provide the jury with clear instructions on the inference they could
    draw from the Gas Station Statement. In particular, the appellant argues the
    trial judge did not instruct the jury on the distinction between an accuseds
    evidence that is disbelieved and evidence that is fabricated. The appellant
    submits such an instruction was necessary to prevent the jury from inferring
    fabrication from disbelief in the circumstances of this case.

[61]

In
OConnor
,
    this court laid down a two-step process for the trier of fact to follow where
    alibi evidence is introduced: paras. 34-38. First, the trier of fact must
    determine whether they believe or have a reasonable doubt about the
    truthfulness of the alibi. Next, if the judge concludes
that
    there is sufficient independent evidence of fabrication of an exculpatory
    out-of-court statement, the judge should instruct the jurors that it is open
    to them to find that the accused fabricated the exculpatory version of events
because
he or she was conscious of having done what is alleged and that they may use
    that finding, together with other evidence, in deciding whether the Crown has
    proven the case beyond a reasonable doubt: para. 37 (emphasis added). If, on
    the other hand, there is insufficient independent evidence of fabrication, the
    jury should be instructed to disregard any disbelieved exculpatory statement
    and decide the case on the balance of the evidence: para. 36.

[62]

It is essential for the trial judge to set out
    clearly the difference between evidence leading only to disbelief and
    independent evidence of fabrication. Where the fabrication instruction is
    given, the trial judge must carefully outline what evidence is capable of
    constituting independent evidence:
OConnor
, at
    para. 38.

[63]

In the present case, the trial judges charge
    does not conform to the requirements set out in
OConnor
. In
    his charge, the trial judge focused his instructions on whether the appellant
    had made the Gas Station Statement. He stated:

When a witness says what he heard Ms. Clause say, you have to
    decide whether you believe Ms. Clause made the statement or any part of itIn
    deciding whether Ms. Clause actually said [the Gas Station Statement], you
    should use your common senseUnless you decide that Ms. Clause made a
    particular remark or statement, you must not consider it in deciding this case.

If you decide that Ms. Clause made remarks that may help her in
    her defence, or if you cannot decide whether she made it, you will consider
    that statement along with the rest of the evidence in deciding whether you have
    a reasonable doubt about Ms. Clauses guilt.

You may give anything you find Ms. Clause said as much or as
    little importance as you think it deserves in deciding this case. It is for you
    to say. Anything you find Ms. Clause said, however, is only part of the
    evidence in this case. You should consider it along with and in the same way as
    all the other evidence.

[64]

With respect, this instruction was not
    sufficient. The Crown sought to use the appellants Gas Station Statement for
    the purpose of demonstrating she was a liar who tried to deflect police
    attention away from herself. Having admitted the Gas Station Statement, the
    trial judge was obliged to give the jury an instruction on the use of the
    statement that incorporated the elements set out in
OConno
r.
    He did not do so. The trial judge did not explain to the jury the difference
    between a finding of disbelief and one of fabrication, nor did he instruct them
    on what they could consider as independent evidence of fabrication.

[65]

The trial judges failure to give such an
    instruction constituted an error of law that prejudiced the appellants right
    to a fair trial in the circumstances of this case.

VII.

Issue 5: The failure to instruct the jury
    adequately regarding the credibility of witnesses

The
    issue stated

[66]

The appellant submits the evidence of Messrs.
    Martin and Henry, and Ms. Styres, was central and highly material to the case
    against her. Their evidence, she argues, contained many material
    inconsistencies relevant to their credibility and reliability: the evidence
    they gave at trial about the incident differed materially from the information
    they provided in their initial statements to the police; in some instances
    their evidence on cross-examination at trial was inconsistent with that given in
    chief; they admitted lying to the police; and Ms. Styres and Mr. Martin
    admitted they lied under oath at the preliminary hearing.

[67]

The appellant contends the trial judge failed
    to provide the jury with adequate instructions that would enable them to assess
    properly the credibility and reliability of these witnesses. It was not enough
    for him to highlight some of the inconsistencies, as he did. The trial judge
    should have given the jury a legal instruction explaining the evidentiary
    effect of prior inconsistent statements, together with specific examples from
    the case.

[68]

The Crown submits the trial judges
    instructions about how to assess the effect of prior inconsistent statements on
    the credibility of these witnesses were functionally adequate and faithfully
    related the defence position to the jury.

Analysis

[69]

I would accede to the Crowns submission.

[70]

The adequacy of the trial judges
    instructions must be assessed in the context of the specific circumstances of
    the case.

[71]

In her closing to the jury, defence counsel
    reviewed in great detail what she submitted were inconsistencies and frailties
    in the evidence of those three Crown witnesses, including their late
    identification of the appellant as the assailant. She argued that witnesses
    lied and the jury should not believe them.

[72]

The trial judge provided counsel with a draft
    of his charge. It contained the standard instruction on the use the jury could
    make of prior inconsistent statements. It also identified some of the prior
    inconsistent statements made by Mr. Martin and Ms. Styres. The trial judge also
    included a statement that all three witnesses admitted lying to the police. In
    the section setting out the position of the defence, the trial judge stated the
    defence was contending the Crowns case relied on the evidence of the three
    witnesses and all of these witnesses admitted that they had lied to the police
    and under oath in respect to this case.

[73]

The trial judge entertained submissions from
    counsel on the draft charge. In respect of the section of the charge dealing
    with prior inconsistent statements, defence counsel requested a minor addition
    to the description of the evidence given by one witness. The trial judge made
    the requested change. Defence counsel raised no other issue about the adequacy
    of this portion of the charge  there was no request to include additional
    examples of prior inconsistent statements by any of the three Crown eye-witnesses
    or to expand the legal instruction on the use of such statements.

[74]

Defence counsels concerns regarding the
    inconsistencies in the evidence and the credibility of the witnesses were well-canvassed
    with the jury. The trial judge was not obliged to go over each of them again in
    detail. That defence counsel did not attempt to press him to do so in the
    pre-charge submissions confirms this. In those circumstances, the charge of the
    trial judge on the use of prior inconsistent statements was adequate. I would
    not give effect to this ground of appeal.

VIII.

Issue 6: Did the trial judge err in failing
    to charge to the jury on the possibility of collusion amongst three Crown
    witnesses?

A.

The issue stated

[75]

Three witnesses identified the appellant as
    the person who struck Mr. Martin in the face with a beer bottle: Mr. Martin,
    Ms. Styres, and Mr. Henry. All three were friends. At the time of the incident,
    they lived together in a house Mr. Styres owned. Mr. Martin and Ms. Styres had
    been romantically involved in the past.

[76]

During the pre-charge conference, defence counsel
    asked the trial judge to instruct the jury on the law regarding collaboration
    and collusion. She submitted there was evidence those three witnesses had
    talked to each other about the appellants involvement in the events.

[77]

The Crown objected to the inclusion of such
    an instruction in the charge, arguing there was an absence of evidence of any
    collusion amongst the three witnesses.

[78]

The trial judge refused to include such an
    instruction, ruling:

I dont see collusion here. I dont see any evidence of collusion.
    All I see is that one comment that, in the statement that he had, Ross Martin
    had spoken to Roni Lee, either the day before or whatever, that he spoke to
    Detective Hill. But other than that, youve not provided any evidence that
    theyve colluded in what their evidence has been before the court. Thats what
    collusion is.

[79]

The appellant submits the trial judge erred
    in failing to charge on possible collusion in light of the evidence in the
    record and the relevance of possible collusion to the credibility assessment of
    the evidence from Mr. Martin, Ms. Styres, and Mr. Henry.

[80]

The respondent submits the trial judge
    properly refused to charge on collusion because the evidence of the dealings
    amongst the three witnesses amounted to nothing more than evidence of contact,
    not the possibility they had joined in concocting evidence.

B.

Analysis

[81]

Collusion can
    arise both from a deliberate agreement to concoct evidence, as well as from
    communication among witnesses that can have the effect, whether consciously or
    unconsciously, of colouring and tailoring their descriptions of the impugned
    events:
R.
    v. B. (C.)
(2003), 167 O.A.C. 264, [2003] O.J. No.
    11 (C.A.), at para. 40. As this court noted in
R. v. F.(J.
)
    (2003), 177 C.C.C. (3d) 1, [2003] O.J. No. 3241 (C.A.), at para. 77, the
reliability of a witnesss account can be
    undermined not only by deliberate collusion for the purpose of concocting
    evidence, but also by the influence of hearing other peoples stories, which
    can tend to colour ones interpretation of personal events or reinforce a
    perception about which one had doubts or concerns.

[82]

In
R. v. Burke
,
    [1996] 1 S.C.R. 474, the Supreme Court addressed how to deal with the issue of possible
    collusion outside the context of similar fact evidence. The court stated, at
    para. 45:

On the assumption that the evidence is admissible, I am
    prepared to adopt the more conventional approach which would leave it to the
    trier of fact to determine what weight, if any, is to be given to evidence that
    is alleged to have been concocted by means of collusion or collaboration. Under
    this approach, the trier of fact is obliged to consider the reliability of the
    evidence having regard to all the circumstances, including the opportunities
    for collusion or collaboration to concoct the evidence and the possibility that
    these opportunities were used for such a purpose.

[83]

Summarizing the jurisprudence dealing with
    the possibility of tainting by collusion in the context of the treatment of
    similar fact evidence, this court stated in
R. v. F.(J.
),
    at para. 86, that once evidence is admitted,
the jury must still
    be warned to assess the evidence carefully and to consider whether it can be
    considered reliable given the possibility of deliberate or accidental tainting
    by collusion among the witnesses (citation omitted).

[84]

As a result, in a case where there is an air
    of reality to the possibility of collusion, the jury should be instructed that
    their consideration of
the reliability of the evidence, having
    regard to all the circumstances, should include a consideration of the
    opportunities for collusion or collaboration to concoct the evidence and the
    possibility that these opportunities were used for such a purpose:
B. (C.)
, at
    para. 40.

[85]

In the present case, the evidence, when taken
    as a whole, disclosed there was an air of reality to the possibility of
    collusion amongst the three witnesses who testified the appellant struck Martin
    the face with a beer bottle  Messrs. Martin and Henry, and Ms. Styres.

[86]

Significantly, in their initial statements to
    the police, none of the three identified the appellant as the person who struck
    Mr. Martin in the face with a beer bottle. In addition, both Mr. Martin and Ms.
    Styres admitted they had lied in various pre-trial statements they had given to
    the police.

[87]

Ms. Styres initially told the police she did
    not witness the assault. In her interview with the police the day after the
    assault, she did not identify the appellant as the person who hit Mr. Martin in
    the face with a beer bottle. Instead, she told the police she assumed the
    appellants brothers had reached into the car to get Mr. Martin. Later, at the
    appellants December, 2011 preliminary hearing, Ms. Styres identified the
    appellant as the assailant for the first time.

[88]

In his initial statement to the police, Mr.
    Martin did not identify the appellant as the person who had stabbed him in the
    eye with a beer bottle. At the appellants preliminary inquiry held on December
    7, 2011, Mr. Martin testified that he did not remember who caused him to lose
    his eye. At trial, Mr. Martin stated that at the preliminary inquiry he did not
    give a full description of the appellants involvement in the incident because
    he did not want anyone to get into trouble.

[89]

The police conducted a videotaped interview
    of Mr. Henry the day after the incident. In his description of the events, Mr.
    Henry did not mention that Martin was stabbed in the face by the appellant with
    a beer bottle; he made no mention of any assault on Martin while he was in the
    car. At trial, Mr. Henry testified the appellant reached in with a beer bottle
    and stabbed Mr. Martin in the right side of the face.

[90]

There was evidence that these three
    witnesses had discussed with each other the events regarding the assault on Mr.
    Martin.

[91]

Mr. Henry testified that he did not talk to
    Ms. Styres before giving his statement to the police the day after the
    incident. However, Mr. Henry did state that after the incident, he talked with
    Ms. Styres about what they had observed,
stating the
    two of them observed the same thing and spoke about the identities of the
    people involved in the assault
.
Mr. Henry had
    no idea when he first talked to Ms. Styres about what she might have
    observed.

[92]

In a January 26, 2010 statement
    to the police, Mr. Martin stated the appellant had hit him with a bottle and
    was trying to stab him. He continued: I was talking to Roni [Styres] today and
    thats what she said too. She goes, Are you going to tell them about that?
    At trial, Mr. Martin testified that statement to the police was a lie. He
    testified that he did not recall having a conversation with Ms. Styres on the
    day he gave his police statement.

[93]

Ms. Styres visited Mr. Martin at
    the hospital a few days after the assault. She denied speaking to him about the
    incident at that time. She admitted talking with Mr. Martin on a fairly regular
    basis in the weeks and months after his discharge from the hospital, and they spoke
    about the incident here and there.

[94]

Although Ms. Styres denied
    discussing the incident with Mr. Henry, she admitted she told the police Mr.
    Henry had given her some information about the events, in a quiet
    conversation.

[95]

In those circumstances, there
    clearly was an air of reality to the possibility of collusion amongst the three
    identification witnesses. With respect, the trial judge erred in failing to
    instruct the jury on the issue of collusion.

IX.

Summary and Curative Proviso

[96]

By way of summary, I conclude the trial judge
    made three errors of law: (i) he failed to provide a timely corrective
    instruction regarding the improper references to inadmissible evidence Crown
    counsel made in his opening; (ii) he failed to instruct the jury properly on
    the use they could make of the appellants Gas Station Statement; and (iii) he
    failed to instruct the jury on the possibility of collusion amongst the three
    key Crown witnesses.

[97]

The respondent submits that notwithstanding
    those errors of law, the curative proviso should apply:
Criminal Code
,
    s. 686(1)(b)(iii).

[98]

I disagree. The errors were not minor in their
    nature or effect. Their cumulative effect resulted in an unfair trial: the trial
    judge recognized the prejudicial effect of the inadmissible Second Statement Crown
    counsel referred to in his opening, yet gave no specific corrective
    instruction; the only admissible evidence from the appellant before the jury
    was her Gas Station Statement, but no proper instruction on its use was given;
    and the Crowns case turned on the jury accepting the evidence given by the
    three eye-witnesses, yet the trial judge did not give a necessary instruction
    on an important aspect of their credibility  possible collusion. In those
    circumstances, it would not be appropriate to apply the curative proviso.

X.

Disposition

[99]

For the reasons set out above, I would grant
    the appeal, set aside the appellants conviction, and direct a new trial.

Released: November 17, 2016 (RJS)

David Brown J.A.

I agree Robert J.
    Sharpe J.A.

I agree David Watt
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Danial, 2016 ONCA 822

DATE: 20161103

DOCKET: C60720

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louay Danial

Appellant

Gerald Chan, duty counsel

Scott Latimer, for the respondent

Heard and released orally: October 31, 2016

On appeal from the conviction entered on March 19, 2015
    by Justice A.T. McKay of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of kidnapping and robbery. The only ground
    of appeal pursued before this court was that the trial judges questions to the
    defence witness created an apprehension of bias.

[2]

The appellant and three others picked up the complainant in a car in
    order to question him about his perceived involvement with a young woman named
    Samira. The trial judge concluded that the appellant kidnapped the complainant
    and stole his phone in order to dissuade the complainant from harassing Samira.

[3]

During the testimony of the defence witness, the trial judge perceived a
    lack of clarity as to the conversation that took place between the witness and
    Samira. At the conclusion of the witness testimony, the judge asked a short
    series of questions in an effort to clarify when those discussions took place.
    The appellant submits that these questions raised an apprehension of bias on
    the part of the trial judge.

[4]

We do not accept this submission. There is a presumption of impartiality
    on the part of the trial judge and a high threshold on the part of an appellant
    to rebut it.

[5]

A trial judge is entitled to ask questions for clarification. The trial
    judge here followed the long standing protocol articulated in
R. v. Stuckey
,
    2009 ONCA 151 at para 64. He waited until the conclusion of the witness
    testimony, asked questions for clarification on a narrow issue, and allowed
    further re-examination. That some of the questions towards the end of the
    series of questions may have been leading would not lead a reasonable observer
    being apprised of all the facts to conclude that the trial judge was not
    impartial.

[6]

The appeal is therefore dismissed.

K. Feldman J.A.

E.E. Gillese
    J.A.

M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dawson, 2016 ONCA 869

DATE: 20161117

DOCKET: C60150

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher R. Dawson

Applicant (Appellant)

John K. Lefurgey, for the appellant

Kathleen Healey, for the respondent

Heard and released orally:  November 9, 2016

On appeal from the conviction entered on May 13, 2014 by
    Justice R.H. Turnbull of the Superior Court of Justice, and the sentence
    imposed on January 22, 2015.

ENDORSEMENT

[1]

This was a single issue trial  did the appellant know that the package
    given to him by the man named McIntyre contained cocaine.

[2]

The appellant testified and denied that he had any knowledge of the
    contents.  The assessment of the appellants credibility was central to the
    outcome of the case.  The trial judge concluded that the appellants testimony
    was incredible.  He gave cogent reasons for that finding.  It is fair to say
    that the appellants evidence stretched credulity.

[3]

The appellant alleges that the credibility finding made by the trial
    judge was tainted by three misapprehensions of the evidence.  To succeed on a
    submission based on an alleged misapprehension of the evidence, the appellant
    must show first, an error, that is, that the trial judge got the evidence
    wrong, and second, that the error was material in the sense that it played an
    essential role in the trial judges reasoning process:  see
R. v. Lohrer
,
    [2004] 3 S.C.R. 732.

[4]

We see no reason to describe each of the three alleged misapprehensions
    of evidence in any detail.  The first relates to the evidence of a defence
    witness, Mr. Hoekstra.  We see no error in the trial judges summary of that
    evidence.

[5]

The second alleged misapprehension of the evidence arises out of the
    trial judges summary of the evidence describing the appellant driving into a
    Shell gas station at or about the same time as McIntyre drove into the gas
    station.  The trial judge referred to this evidence during his summary of the
    evidence.  His reference to the evidence is not entirely accurate.  However,
    assuming some misapprehension of the evidence, that misapprehension had nothing
    to do with the trial judges rejection of the appellants evidence as to how he
    came to drive into the Shell station and meet with McIntyre.  The trial judges
    reasons for rejecting that testimony are set out at para. 87.  We need not
    repeat them.  It is sufficient to say they are cogent indeed.  The
    misapprehension of the evidence was not material to the rejection of the
    appellants evidence.

[6]

The third alleged misapprehension relates to the appellants evidence
    about the exchange between him and McIntyre regarding the contents of the
    package at the time McIntyre asked the appellant to hold the package.  The
    trial judge summarized this evidence, at para. 47.  Like all summaries, the
    summary did not refer to the entirety of the evidence.  However, there is
    nothing inaccurate in the summary.  In any event, the trial judges findings
    with respect to this evidence, at para. 90, accurately summarized the thrust of
    the appellants evidence on this point.  There is no misapprehension of the
    evidence.

[7]

The appellant also alleges inconsistent findings of fact made by the
    trial judge concerning the impact of the appellants head injury on his ability
    to testify.  The appellant contrasts the trial judges description of the
    effect of the head injury in the trial judges reasons for judgment with the
    trial judges description of the effect of the head injury in his reasons for
    sentence.

[8]

Without accepting that an argument alleging inconsistent findings of
    fact, which compares findings made in reasons for judgment with findings made
    on sentence, can succeed, we see no inconsistent findings here.  The reasons
    for judgment focussed on whether the head injury affected the appellants
    ability to understand the questions put to him, both at trial and during the
    police interview.  The trial judge found that the head injury did not explain
    the appellants evasiveness and demeanour when answering the questions.  There
    was nothing said on sentencing that contradicts that finding.

[9]

This ground of appeal cannot succeed.  The appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

6.

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

7.

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

8.

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dawson,
2016
    ONCA 880

DATE: 20161123

DOCKET: C61037

Feldman, Simmons, Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth David Dawson

Appellant

Kenneth Dawson, acting in person

Erika Chozik, appearing as duty counsel

Leslie Paine, for the respondent Crown

Heard: April 7, 2016

On appeal from the convictions entered on July 29, 2015
    and the sentence imposed on September 14, 2015 by Justice Alan C. R. Whitten of
    the Superior Court of Justice, sitting with a jury.

Feldman J.A.:

[1]

The appellant was convicted by a jury of sexual interference and sexual assault
    of two very young girls each around five years old, for whom he occasionally
    babysat. The two convictions for sexual assault were stayed by the trial judge
    applying
R. v. Kienapple
, [1975] 1 S.C.R. 729 and the appellant was
    sentenced to two years imprisonment in respect of each count of sexual
    interference to be served consecutively. He appeals his convictions and seeks
    leave to appeal sentence.

Background

[2]

The first complainant, A.S., lived with her mother across the hall from
    the appellant and his common law spouse in an apartment building. The mother
    was in her early 20s and had a longstanding relationship with the appellants spouse,
    who was like a mother to her. A.S. referred to the appellant and his spouse as grandpa
    and grandma. A.S. spent a lot of time at the appellants apartment from 2012 to
    2013 before her mother moved. The mother identified two occasions when A.S. was
    alone with the appellant, one in August 2012 and one in January 2013.

[3]

A.S. gave a videotaped statement to the police in April 2013 when she
    was five years old. That statement was played at the trial and she was asked
    questions about it and about her allegations. The trial took place when she was
    seven years old.

[4]

She testified consistently that the appellant touched her pee-pee,
    which she pointed to as her private parts, with his finger and with his
    pee-pee. She also said he put his pee-pee into her pee-pee but that she had
    her clothes on when this happened. She also drew a picture while giving her
    video statement to the police, which was adopted by her at trial, and which
    shows a male with a large penis lying with another person. She identified the
    people in the picture as the appellant and herself. She testified that she had
    not seen anyone elses pee-pee other than grandpas.

[5]

Her mother testified that although there had been a number of adult
    males that the child knew, the only one she referred to as grandpa was the
    appellant. A.S. drew a picture of her assailant for the Childrens Aid Society
    (CAS), which showed him with hair on his head. The picture she drew of the
    assailant during the police interview did not include hair, but A.S. told the
    officer that she had not finished drawing the hair. While the appellant does
    not have hair on his head, A.S. explained that she likes drawing hair on peoples
    heads.

[6]

The other complainant, B.A., was a few months younger than A.S. B.A.s mother
    testified that she was a friend of the appellants spouse. Her mother left B.A.
    alone with the appellant on two occasions, once in February 2013 at the
    apartment and the second time in April 2013, at the appellants new address. B.A.
    called the appellant Uncle David and did not refer to anyone else by that name.

[7]

B.A. also gave a videotaped statement to the police in April 2013. She
    was four years old at the time and seven at the trial. In the video statement,
    she talked about playing the baby game with Uncle David where they took turns
    being naked like a baby, and where he got milk on her which came from where he
    went pee. She said she played the baby game both at his apartment and at his
    new house. She also mentioned that there were snakes in the room and trophies
    and referred to eating them.

[8]

The videotaped statement was played at the trial. B.A. said she
    remembered giving it, that she was telling the policeman the truth and that she
    remembered the things she talked about concerning Uncle David and the baby
    game. However, on cross-examination at trial, she was unable to give any testimony
    about the events. She remembered Uncle David and his spouse but not playing the
    baby game, although she did remember Uncle David feeding her bottles of milk.
    She did not remember the snakes or trophies.

[9]

The appellant did not testify at the trial. The jury convicted the
    appellant of sexual interference and sexual assault of both young girls.

Issues on the Conviction Appeal

[10]

Duty counsel, on behalf of the appellant, raised three issues on the
    conviction appeal: 1) unreasonable verdict; 2) prejudicial interruption of the
    defence closing submissions to the jury by the trial judge; and 3) insufficient
    caution on the use of the evidence of one complainant to corroborate the other
    and on the risk of propensity reasoning.

Analysis

1)

Unreasonable
    Verdict

[11]

A court on appeal will set aside a verdict of guilt as unreasonable
    where it finds that there was no evidence on which a properly instructed jury
    could make a finding of guilt.
R. v. Biniaris
, 2000 SCC 15, [2000] 1
    S.C.R. 381.

[12]

The appellant points to four aspects of the evidence that he argues make
    the verdicts unreasonable. The first three relate to the first complainant A.S.
    The effect of the appellants argument is that there was evidence that should
    have raised a reasonable doubt. The three areas of evidence he relies on are:
    1) the picture the complainant drew for the CAS of the man who touched her had
    hair on his head, while the appellant does not; 2) A.S. said that the assailant
    put his pee-pee into her but there was no evidence of any injury; and 3) the
    evidence of the mother was that A.S. had been left alone with six separate men,
    giving all of them the opportunity to assault her.

[13]

The appellant is correct that any of these aspects of the evidence,
    either taken together or separately, could have left the jury with a reasonable
    doubt about whether the assault or sexual interference happened at all or that
    he was the perpetrator. Defence counsel at trial explored all of this evidence
    on cross-examination and relied on it in his closing submissions to the jury.
    The trial judge also referred to it in his statement of the position of the
    defence.

[14]

However, there was an explanation in the evidence for each of these
    alleged inconsistencies. The complainant testified that she liked drawing
    pictures of people with hair. Although she at some points said that the
    appellant had put his pee-pee into hers, as she was consistent that she had her
    clothes on, no injury would be expected. She was also definite in identifying
    the appellant and not the other men as the perpetrator. The jury was entitled
    to accept the evidence of A.S. as to what occurred and that it was the
    appellant who did it. This court is also entitled to consider that the
    appellant did not testify to dispute the complainants evidence when
    considering whether the verdict is unreasonable.
R. v. Pannu
, 2015
    ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 478
    and [2015] S.C.C.A. No. 498, at para. 164. There is no basis to consider the
    verdict to be unreasonable in respect of A.S.

[15]

In relation to the second complainant, B.A., duty counsel submits that
    because B.A. could not remember the events at trial, the conviction was based
    solely on the evidence she gave in her police statement at the time. However,
    in that evidence the complainant included fanciful references to snakes and
    trophies, showing that she confused fact with fantasy.

[16]

I would not give effect to this submission. Although B.A. could no
    longer remember the assault by the time of the trial, she did remember the
    police interview and confirmed that what she said was true. She also remembered
    Uncle David. Although she did not remember any snakes and trophies, the jury
    was alerted to this issue by defence counsel and it was referred to by the
    trial judge in his charge.

2)

Trial Judges Interruption
    of Defence Counsels Closing Address to the Jury

[17]

During his closing address, defence counsel showed flash cards to the
    jury illustrating the points he was making and was proceeding to tape up one of
    the cards that showed a doctor examining a child, when the trial judge
    indicated that he had made his point. Counsel then asked to speak to the court
    in the absence of the jury. Counsels point was that there was no physical or
    medical evidence to substantiate the complainants claims and no DNA evidence. The
    trial judge was concerned that this flash card was misleading and unnecessary. Following
    their discussion, the trial judge ruled that counsel could use the flash cards
    but that they would not go before the jury in the jury room. The trial judge
    did not denigrate counsel in front of the jury.

[18]

I am satisfied that nothing the trial judge did caused any prejudice to
    the appellant. Defence counsel did not seek to pre-clear with the trial judge
    his use of flash cards that were not evidence at the trial. The trial judge was
    entitled to control the process in his court and to ensure that the jury was
    given only properly admitted material. Following the discussion in the absence
    of the jury, defence counsel continued directly with his address on the same
    subject, sticking to the evidence on the issue of any injury to the complainant
    A.S. I would not give effect to this ground of appeal.

3)

Failure to Give a
    Propensity Warning

[19]

The appellant was charged with two counts against each of the two
    complainants in one indictment. The evidence presented was not put forward as
    similar fact evidence. Therefore, the jury had to be clearly instructed that
    they had to keep separate the evidence that related to each count and each
    complainant. The trial judge gave the jury clear instructions on this point in
    a number of ways throughout the charge.

[20]

I will set out two examples:

1)

[A]s you know
    there are four charges. Each count, one, two, three, four. Its essentially an
    offence within itself. Its like having been charged with four offences.
Each of these counts is a separate charge. You must make a
    separate decision and give a separate verdict for each charge. Your verdicts
    may, but do not have to be the same on each charge. You must make your decision
    on each charge only on the basis of the evidence that relates to that
    particular charge and the legal principles that I tell you to apply to your
    decision on that charge.
Now, obviously, because theres a repetition of
    the nature of the offence, I will, you will take those instructions, but you
    will carry them over to the other count and apply it individually.
You must not use the evidence that relates only to one charge
    in making your decision on any other charge.
[Emphasis added.]

2)

As I indicated,
    Mr. Dawson is presumed innocent of each charge. You must consider each charge
    separately and return a separate verdict for each charge based only on the
    evidence and the legal principles that apply to it. For each charge your
    verdict will depend on your assessment of the evidence and your application of
    the legal principles that relate to that charge. Your verdict sheet, as Ive
    told you, will show you the verdicts available on each charge and I will tell
    you about that. So an analogy that I would give is that each charge is like an
    island.
Youve got to stay on the island, on a particular
    island until you resolve what constitutes the evidence in that particular case
    and come to your conclusion, whether it be beyond a reasonable doubt as to
    guilt or innocence. You dont take anything with you to the next island. Youve
    got to start afresh and consider the evidence and the law in so far as that
    particular issue is concerned.
[Emphasis added.]

[21]

The appellant submits that in addition to these instructions regarding
    the separation of the evidence applicable to each count, the trial judge was
    also required to instruct the jury that they could not use the evidence
    concerning the appellant and one of the complainants as bad character or
    propensity evidence in their consideration of the evidence in relation to the
    other complainant.

[22]

The seminal case from this court on this requirement is
R. v. B.M.
(1998), 42 O.R. (3d) 1. In that case, the appellant was charged with multiple
    offences including rape, indecent assault, invitation to sexual touching,
    incest, as well as weapons offences, against multiple complainants of all ages
    and both sexes, as well as bestiality with two dogs. The trial judge did not
    adequately instruct the jury to deal with each count separately or as to the
    use they could make of the evidence on the different counts. On appeal, this
    court held, at p. 14, that the charge to the jury was inadequate in two
    respects:

First, when evidence of one count is not admissible as similar
    fact evidence on the other counts, jurors must be instructed to consider each
    charge separately and not to use evidence relating to one count as evidence on
    any of the other counts.

Second, [
R. v. Rarru
, [1996] 2 S.C.R. 165] requires
    the trial judge to give the jury a proper limiting instruction regardless of
    whether evidence of other counts or of uncharged misconduct is admissible as
    similar fact evidence. It was essential that the jury be instructed that it
    was not to rely on the evidence of other counts or other uncharged misconduct
    as proof that the accused is the sort of person who would commit the offence or
    offences charged.

[23]

In that case, the court also held that the bestiality counts should have
    been severed because including them with the sexual misconduct counts served only
    to invite the jury to engage in forbidden propensity reasoning, especially
    where no limiting instruction was given. A new trial was therefore ordered.

[24]

These requirements have been reiterated in a number of cases of this
    court since
B.M.
In those cases, unlike in this case, the trial judge had
    failed to give both of the charges discussed in
B.M.
, that is to keep
    the evidence of each count separate and not to engage in propensity reasoning.
    See for example:
R. v. K.P.
, 2009 ONCA 408, 252 O.A.C. 10 and
R.
    v. F.J.H.
, 145 C.C.C. (3d) 169.

[25]

Cromwell J.A. (as he then was) explained in the Nova Scotia Court of
    Appeal decision in
R. v. T.C.F.
, 2006 NSCA 42, 243 N.S.R. (2d) 237, at
    paras. 30-31, that three related points must be brought home to the jury to
    counter the prejudice inherent in a multi-count indictment. However, he noted
    that the second two are really just examples of the first. The first is that
    only the evidence admissible with respect to the particular count can be
    considered when determining guilt or innocence on that count (the instruction
    to keep the evidence relating to each count separate). The second is that a
    finding of guilt on one count is not evidence of guilt on another. And the third
    is that evidence of discreditable conduct or criminal acts cannot be used to
    reason that the accused is the type of person who would have committed any of
    the offences (the propensity reasoning instruction).

[26]

The fact that the second two are actually examples of the first critical
    instruction  that the jury must keep the evidence on each count separate  means
    that failure to give a propensity warning is not always fatal. Rather, the
    court may tailor the charge in a particular case to suit the circumstances of
    that case.

[27]

This point was made in
R. v. J.A.T.
, 2012 ONCA 177, 288 C.C.C.
    (3d) 1 where Watt J.A., referring to
B.M.
and
Rarru
, reiterated
    the rule that in a trial where there are multiple complainants and counts, but
    not similar fact evidence, the jury should be instructed 1) not to use the
    evidence from one count as proof of another count, and 2) not to use the
    evidence from one count to conclude that the accused is a person of bad
    character, who is therefore likely to be guilty of another count. Watt J.A.
    explained that the second rule is a limiting instruction that tells the jury
    the permitted and prohibited uses of the evidence, and that [t]he rule is of
    general, but not unyielding application. (paras. 55 and 65).

[28]

As such, the necessity of giving a propensity instruction is determined
    based on the particular circumstances of the case. In some cases, a propensity
    instruction is unnecessary and the failure to give one will not be fatal. See
    for example,
R. v. Miller
, 1999 CarswellOnt 3130 (C.A.);
R. v.
    Cote
, 2003 NBCA 38, 176 C.C.C. (3d) 89;
R. v. H.S.S.
, 2009 ONCA
    102, 242 C.C.C. (3d) 262; and

R. v. A.W.B.
,

2015 ONCA
    185, 322 C.C.C. (3d) 130. In other cases, a propensity instruction is required,
    such as where other discreditable conduct by the accused is brought into
    evidence. See for example,
R. v. R.O.
, 2015 ONCA 814, 333 C.C.C. (3d)
    367;
R. v. Chamot
, 2012 ONCA 903, 296 C.C.C. (3d) 91; and
R. v.
    B.D.
, 2016 ONCA 673.

[29]

In
R. v. J.R.M.
, 2015 ONCA 229, the failure to give the propensity
    instruction was not fatal  however, the trial judges failure to give the
    instruction to keep the evidence relating to each count separate was. There, two
    very young sisters complained at the same time to their grandparents that they
    had each been sexually abused by the appellant. The court held that the jury
    was unlikely to engage in propensity reasoning because of the interrelated
    nature of the complainants disclosure, and therefore the trial judges failure
    to give the propensity reasoning instruction did not cause prejudice.

[30]

However, it was essential for the trial judge to warn the jury that it
    must not use the evidence of one count to prove any other count. The failure to
    give that critical instruction was fatal to the conviction.

[31]

Crown counsel on this appeal submitted that while it would have been
    desirable to include a propensity warning, in the circumstances of this case
    the instruction the trial judge gave was more than sufficient to address any
    concern that the jury may have cross-pollinated the evidence in relation to the
    two complainants. I agree with this submission.

[32]

The trial judge emphasized a number of times and in a number of ways
    that the jury must keep the evidence regarding each complainant separate. One
    of those (quoted above) was his analogy to an island to emphasize the point:

So an analogy that I would give is that each charge is like an
    island.
Youve got to
    stay on the island, on a particular island until you resolve what constitutes
    the evidence in that particular case and come to your conclusion, whether it be
    beyond a reasonable doubt as to guilt or innocence. You dont take anything
    with you to the next island. Youve got to start afresh and consider the
    evidence and the law in so far as that particular issue is concerned.

[33]

Further, from the record there was no suggestion in either address by
    counsel that the jury should use the evidence in the prohibited manner. Nor did
    defence counsel request the propensity charge in addition to what the trial
    judge did say, nor was an objection made. Although none of these factors is
    definitive, they address the concern whether there was potential prejudice in
    this case.

[34]

Finally, this was not a case where there was evidence of acts of disreputable
    conduct that were not the subject of the charge, making the likelihood of
    prejudice strong, or where the charged conduct was so prejudicial in itself,
    such as bestiality, that prejudice was virtually inevitable. In this case,
    there were two complainants allegations with significant differences. There
    was no direct evidence of collusion. Also, the defence was a complete denial
    not that it may have happened in one case but not the other.

[35]

The appellant submitted that because the complainant B.A. could not
    remember the events at trial, there was a risk, as in
J.R.M.
, that the
    jury would use the other complainant A.S.s evidence as corroborative of that
    of B.A. In my view, the result in
J.R.M.
is instructive for this
    appeal. In that case, where neither of the two instructions was given, the
    court held that it was only the failure to give the admonition to keep the
    evidence separate that was necessary, not the propensity instruction. In this
    case, reading the charge as a whole, including the numerous admonitions to keep
    the evidence separate and explanations of how to do that, the propensity
    instruction, as an example or amplification of that instruction, was not
    essential for the jury to understand that rule.

[36]

I would not give effect to this ground of appeal.

Sentence Appeal

[37]

Following the stay of the two sexual assault convictions, the appellant
    was sentenced to two years consecutive on each of the sexual interference
    charges. He submits that the sentence was unreasonably high and that the trial
    judge failed to take into account the following four factors:

1)

The conduct was
    at the lower end of the spectrum because there was no penetration or extraneous
    threats of violence;

2)

There is no
    reason why the mandatory minimum sentence of one year would not be appropriate
    in the circumstances;

3)

The breach of
    trust was of a very low level as the appellant was just a neighbour; and

4)

The appellant is
    51 and has no prior criminal record.

[38]

There is no basis to interfere with the sentence imposed. The trial
    judge considered all of the facts and circumstances. He did not consider these
    offences to be at the lowest end of the spectrum given the age of the victims,
    the limited position of trust of the appellant, and the nature of the sexual
    acts. Counsel at trial acknowledged that consecutive sentences were
    appropriate. Crown counsel asked for two to three years for each count
    consecutive. The trial judge did not err in the exercise of his discretion to
    impose a sentence of two years for each. I would not allow the sentence appeal.

Result

[39]

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

Released: November 23, 2016 (K.F.)

K. Feldman J.A.

I agree. Janet Simmons J.A.

I agree. S.E. Pepall J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

6.

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

7.

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

8.

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Devitt, 2016 ONCA 871

DATE: 20161118

DOCKET: C61419

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Donald Devitt

Appellant

Robert J. McGowan, for the appellant

Chris Chorney, for the respondent

Heard: November 15, 2016

On appeal from a conviction entered on January 23, 2014
    and the sentence imposed on February 26, 2015 by Justice Kenneth E. Pedlar of
    the Superior Court of Justice, sitting without a jury.

By the Court:

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was convicted of two counts of sexual assault
    causing bodily harm and single counts of breach of a recognizance and
    counselling murder, an offence that was not committed. He appeals his
    conviction of counselling murder only.

[2]

The trial judge considered a sentence of nine years was fit for the
    conviction of counselling murder. After taking into account the time spent in
    pre-disposition custody, which the trial judge calculated at four years, he
    imposed a sentence of five years for the counselling murder conviction. The
    appellant seeks leave to appeal that sentence. He does not take issue with the
    sentence imposed in respect of the other convictions  three years  or the
    decision that those sentences be served consecutively to the sentence for
    counselling murder.

The Appeal from Conviction

[3]

The essence of the case against the appellant on the count of
    counselling murder is that he approached a fellow inmate, whom he invited into
    the yard at Brockville Jail, and solicited him, on a promise of payment of
    money, to kill the complainant in the sexual assault counts, the same person
    with whom the appellant had communicated in breach of his recognizance, so that
    she could not testify against him. The parties did not conclude an agreement
    about how the killing was to be carried out at this time.

[4]

The putative killer, a career criminal who had spent the better part of
    three decades in jail, testified about the appellants plan. The complainant
    was to die of a drug overdose while the appellant was still in jail. An
    overdose would look accidental. The killer was to be paid $50,000 when the
    charges against the appellant were withdrawn. The money would be obtained by
    the appellant on release by remortgaging his home.

[5]

The putative killer said he would think about it. His thoughts soon
    crystallized. He contacted jail authorities, then the police. He offered
    himself as a police agent. He sought some concessions, but received none. On
    two separate occasions, about a month apart, he and the appellant had
    discussions about the plan. The discussions were recorded. On the second
    occasion, the appellant drew a map of the complainants residence and pointed
    out the best time and place to enter. The appellant insisted that he did not
    want the complainants death to come back on him.

[6]

The appellant, who did not testify at trial, advances two grounds of
    appeal against conviction. He says that the trial judge erred:

i.

in finding that the appellant proactively engaged in the conversation
    about killing the complainant in the Brockville Jail yard and further erred in
    relying on mere discussions in the recorded conversations as corroboration of
    the discussion in the yard; and

ii.

in misapprehending and erroneously relying upon the evidence of the
    later discussions as confirmatory of the evidence of the unsavoury prosecution
    witness, the putative killer.

[7]

We would not give effect to either ground of appeal.

[8]

Counselling by procuring or inciting another to commit an offence does
    not require that the inciter originate or initiate the transaction. Counselling
    the commission of an offence that is not committed is an inchoate or
    preliminary crime complete when the solicitation occurs even if the person
    incited rejects the solicitation or merely feigns assent:
R. v. Root
, 2008
    ONCA 869, at paras. 85-86. Proactivity of the counsellor is not an essential
    element of the offence.

[9]

In this case, the trial judges findings with respect to the unrecorded
    discussion in the yard at the Brockville Jail established the essential
    elements of the counselling offence. These findings were open to the trial
    judge to make on the evidence of the principal witness for the Crown. The trial
    judge was fully cognizant of the need for caution in approaching and relying
    upon this evidence. It was his call to make.

[10]

Further, we are not persuaded that the trial judge misapprehended or
    erred in considering as confirmatory of the evidence of the putative killer
    portions of the conversations surreptitiously recorded later in the Brockville
    Jail. It is worthy of reminder that neither a
Vetrovec
self-instruction nor confirmatory evidence are conditions precedent to reliance
    on the evidence of a tainted witness:
R. v. Snyder
, 2011 ONCA 445, 273
    C.C.C. (3d) 211, at para. 24;
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R.
    104, at para. 37.

[11]

The appellant emphasizes the lack of proactive discussion during the
    intercepted conversations and points to the failure of the appellant to do any
    of the several things necessary to implement the plan. Failure to provide a
    surety to assist the putative killer in obtaining bail. Recruiting others to
    assist. Getting drugs or money for their purchase to kill the complainant.
    Mortgaging his house to pay the putative killer for the job. All these things,
    the appellant says, show that the whole scheme was the work of the putative
    killer who entrapped the appellant for his own purposes.

[12]

The submission fails in large measure because the trial judge found, as
    he was entitled to do, that the offence was complete when the appellant and
    putative killer met, at the appellants invitation, in the yard at the
    Brockville Jail. The preliminary or inchoate crime of counselling is not unravelled
    because some of the details remain to be worked out. Entrapment involves
    official instigation of crime, not conduct after the offence is complete.

[13]

The appeal from conviction is dismissed.

The Appeal from Sentence

[14]

The appellant also seeks leave to appeal the sentence imposed on the
    conviction of counselling, a sentence of imprisonment of nine years reduced to
    five years as a result of credit awarded for pre-disposition custody.

[15]

The appellant says that the sentence imposed is too long and thus unfit.
    It fails to take into account the appellants lack of engagement and thus is
    disproportionate to his moral blameworthiness. A more apt range of sentence,
    consonant with the principle of proportionality, would be a term of
    imprisonment of one to three years.

[16]

The appellant is a mature recidivist. He is now 61 years of age. His
    prior convictions, separated by more than a decade from these offences,
    included offences of significant violence that attracted a sentence for a then
    first-offender of six years in the penitentiary. In an assessment completed for
    prospective dangerous offender proceedings, the appellant was described as a
    low to moderate risk to reoffend. On the other hand, as the examining
    psychiatrist pointed out, the offences of which the appellant stands convicted
    did occur and included offences of serious violence.

[17]

The precedents reveal a substantial range of sentence for an offence
    counselling to commit murder  that is not of commonplace occurrence. The
    disparity among the precedents and the breadth of the sentencing range is
    scarcely remarkable for an offence that attracts no minimum punishment and a
    maximum punishment of imprisonment for life.

[18]

A significant aggravating factor in this case, as the trial judge
    pointed out, is that the person whose death was counselled was the complainant,
    for all practical purposes the case for the Crown, in the offences with which
    the appellant was charged. As the complainant and a witness for the Crown, she
    was a justice system participant, a person deserving of the laws protection.
    In these circumstances, the trial judge was right to emphasize denunciation and
    deterrence in his sentencing decision.

[19]

The sentence imposed on the conviction of counselling murder is substantial.
    This is as it should be. We cannot say, however, that the sentence offends the
    cardinal principle of proportionality or is in any other way unfit.

[20]

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

Released: November 18, 2016 (JCM)

J.C. MacPherson J.A.

R.A. Blair J.A.

David Watt J.A.