CITATION:
R. v. Czibulka, 2011
      ONCA 82

DATE: 20110131

DOCKET: C48343

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lajos Czibulka

Appellant

Catriona Verner and Carol Cahill, for the appellant

Frank Au and Deborah Calderwood, for the respondent

Heard: September 16, 2010

On appeal from the conviction
          entered on October 27, 2006 and the sentence imposed on November 16, 2006 by
          Justice E.F. Then of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A.

OVERVIEW

[1]

On the morning of Monday, June 8, 1998, the appellant, Lajos Czibulka,
    telephoned 9-1-1 claiming that his wife, Maria, was having trouble breathing.
    When the paramedics arrived at the couples apartment, they found Maria dead on
    the living room floor.  She was faced down on the carpet, on her hands and
    knees, wearing only a black bra and underwear.

[2]

Maria had been brutally beaten to death.  Her eyes were swollen shut and
    bruises covered her whole body.  Her ribs were fractured in 25 places.  Her
    diaphragm was lacerated and her breast bone was broken.  Her husband alone was
    with her.  At the time of her death, she had been married to him for 35 years.
    He was 57 years old when his wife died.

[3]

Ten months after Marias death, the appellant was charged with her
    murder.  He was tried and convicted of second degree murder before Campbell J.
    and a jury, but on appeal, this court overturned the conviction and ordered a
    new trial.  The retrial before Then J. and a jury is the subject of this
    appeal.

[4]

At the second trial, the main issue was identity.  The Crown relied on
    exclusive opportunity, motive, forensic evidence, post-offence conduct and inculpatory
    statements the appellant had made to paramedics and the police, to establish
    that he had killed his wife.  The defence claimed that Maria was a prostitute,
    that one of her customers beat her and then brought her back to the apartment
    while she was still alive, and that she later died there.  The appellant did
    not testify.

[5]

If the appellant was the killer, a secondary issue at trial was whether
    he was guilty of murder or manslaughter.  To prove murder the Crown relied on
    the severity and persistence of the beatings.  The defence relied on evidence
    of the appellants intoxication and mental state, and on his apparent disbelief
    that he had killed his wife  throughout the time the paramedics were in the
    apartment, the appellant repeatedly said she no dead.

[6]

The jury found the appellant guilty of second degree murder.  The trial
    judge imposed a period of parole ineligibility of 15 years.  The appellant
    appeals both his conviction and his sentence.

[7]

On his conviction appeal, the appellant argues three grounds of appeal.
    First, he submits that the trial judge erred in admitting one of his statements
     statement number four  to the police.  This submission has two branches:
    one, the trial judge erred in finding that the appellant was not detained when
    he gave the statement; two, the trial judge ought to have found the statement
    inadmissible because it was incoherent.

[8]

Second, the appellant submits that the trial judge erred by failing to
    correct comments made by the Crown, in closing, about exclusive opportunity and
    DNA evidence.

[9]

Third, the appellant submits that the trial judge erred by failing to
    tell the jury that the appellants post-offence conduct could not be used to
    determine whether he was guilty of murder or manslaughter, and by failing to
    relate the evidence to the
mens rea
for murder.

[10]

On his sentence appeal, the appellant submits that the trial judge erred
    in principle by holding that the appropriate range of parole ineligibility was
    12 to 17 years, instead of 12 to 15 years.  He asks that his period of parole
    ineligibility be reduced to 12 or 13 years.

B.

EVIDENCE SUPPORTING THE CROWNS CASE

[11]

As I have said, to prove that the appellant
    killed his wife, the Crown relied on exclusive opportunity, motive, forensic
    evidence, post-offence conduct and the appellants statements.  To put the
    appellants submissions in context, I will briefly review this evidence.

(a)
Evidence of exclusive opportunity

·

The paramedics arrived to discover Marias body
    on a Monday morning.  Only the appellant was there.

·

The appellant had been on vacation from work the
    previous week.  Over the weekend he called his employer and left a message that
    he would not be in to work on Monday because his wife was ill.  No evidence was
    led that anyone else was in the apartment over the week leading up to the
    discovery of Marias body.

·

On Saturday night, a neighbour heard bumping and
    thumping sounds, and Maria moaning.  The neighbour attributed these sounds to
    the couples having sex.  However, the neighbour heard no further sounds from
    the apartment until Monday morning.  The Crown relied on this evidence to
    establish that the fatal beating took place Saturday night.  Clumps of Marias
    torn hair found in the apartment showed that she had been beaten there.

·

There was no evidence of forced entry, and
    testing did not disclose any foreign finger or palm prints.

(b)
Motive

·

The appellant admitted that he and Maria had
    fought over her massage business.

(c)
Forensic evidence

·

The appellants DNA was found under Marias
    fingernails.  No one elses was.  The appellant had scratches on his hand, and
    Maria had bruises on her knuckles.

·

Torn clumps of hair removed from Marias head
    were found in the living room, together with a beer bottle that had on it the
    appellants finger print upside down.

(d)
Post-offence conduct

·

In his 9-1-1 call the appellant said that his
    wife had been drugged.  No signs of drug use were found in the apartment and no
    indication of drug use was reported by the toxicologist, pathologist or Marias
    doctor.  On the other hand, the appellant did not tell the 9-1-1 operator about
    his wifes extensive bruising and injuries.

·

After the paramedics arrived at the apartment,
    the appellant appeared to be uncooperative and evasive.  He refused to give
    them any information that might assist them.

·

Also, after the paramedics and police arrived at
    the apartment, the appellant seemed anxious to leave.  He kept moving toward
    the door saying he needed to go to work, even though he had already called in
    to say he would not be there that day.

(e)
Statements

·

When asked how Maria got the bruises, the
    appellant said they had had a fight over her giving sexy massages.

·

The appellant demonstrated for an officer how
    Maria had been on her knees, begging for his forgiveness for all that she had
    done.  The position the appellant assumed for the demonstration matched the
    position Maria had been found in.

·

The appellant admitted that he may have slapped
    Maria a few times and kicked her lightly in the buttocks.

C.

ANALYSIS

(1)

Did the trial judge err in admitting statement
    number four?

[12]

The appellant made six statements.  After a
voir
    dire
, at which the appellant did not testify, the trial judge found the
    first four statements to be admissible and statements five and six to be
    inadmissible.  Only the admissibility of statement four is in question on this
    appeal.

[13]

Statement one was the 9-1-1 call.  Statements
    two and three were made in the appellants apartment.  Statements four, five
    and six were made at the police station.  The trial judge ruled that statements
    five and six were inadmissible because the appellants answers were
    incomprehensible and thus their prejudicial effect outweighed their probative
    value.  However, the trial judge found no impediment to the admissibility of
    statement four, which was made to two police officers.

[14]

Although statement four was made at the police
    station, it was not video recorded.  However, one of the officers testified
    that she took it down verbatim.  Her notes read as follows:

Q:        Can you tell us what
    happened?

A:        I went sleep early.  I have to work early.  Wake up 4:30,
    go to work.

Q:        Where was Maria when you went to sleep?

A:        I dont know.  Always going out and in, out and in.  She
    not working.  Always going out.

Q:        What happened?

A:        I dont know.  I going to sleep.

Q:        Where did Maria sleep last night?

A:        I dont know where she was.  She was crying and said, Im
    sorry, everything.  I called ambulance.  I was thinking, I said, Wake up.
    Wake up.  I was think she always drink and drunk and doing things.  Come out
    some white from mouth.  She saying, Forgive me.  Forgive me.  I called
    ambulance.  I went downstairs and open door for ambulance people.

Q:        What time do you get up this morning?

A:        4:30.  I see my wife, she was sit beside me, she was
    crying.  I put her living room.  I want to go back sleep.  She was so badly
    drink and drug and needle here and there.  I go back sleep.  I wake up. She was
    down.  Forgive me.  [The officers notes indicated that this was what the
    appellant said his wife had said to him.  He then demonstrated that Maria got
    down on her knees and prayed to him to forgive her.]

Q:        Did you have an argument with your wife last night?

A:        Well [pause] no.

Q:        Did you hit her?

A:        Well [pause] no, not really.

Q:        What do you mean not really?

A:        [Pause] Always people come here, man, woman, I dont
    know.  [at that point the appellant began talking in circles about having to
    go to work, was sleeping, etc and the officer stopped taking notes]

[15]

The trial judge gave brief reasons for holding
    statement four admissible.  He said:

There was no detention within s.
    10(b) of the
Charter
either in the apartment or at 54 Division on the
    part of Detectives King, Kelly or Thomas nor was there any investigative
    unfairness by Detectives Kelly and Thomas to render the statements of the
    accused to them involuntary.  I am satisfied on a balance of probabilities that
    the accused was not detained within s. 10(b) of the
Charter
and beyond a
    reasonable doubt that the statements to Detectives Kelly and Thomas were
    voluntary.  The accuseds statements to Detectives Kelly and Thomas are
    admissible.

[16]

At the beginning of his brief reasons for all the statements, the trial
    judge said that his ruling was by way of conclusions in summary form.  He
    added, I reserve the right to render full reasons if necessary at a later
    date.  No further reasons were delivered.

[17]

The appellant challenges the trial judges ruling on statement four on
    two grounds:  first, the trial judge erred in finding that the appellant was
    not detained when he gave the statement; and second, the statement should have
    been excluded because, like statements five and six, which were excluded, it
    was incoherent.

(a)

Was the appellant detained when he gave
    statement number four?

[18]

Under s. 10(b) of the
Charter
, a person
    who is detained has the right to counsel and to be informed of that right.  The
    appellant was not informed of his right to counsel before he gave statement
    number four.  Therefore, if he was detained when he gave the statement, his
    right to counsel under s. 10(b) was breached.

[19]

The trial judge, however, found that there was
    no detention.  The appellant submits that he erred in so finding.  If he did
    err, and s. 10(b) was breached, the appellant says that his statement should be
    excluded under s. 24(2) of the
Charter
.  The Crown does not challenge
    the appellants position on s. 24(2).  The focus of this ground of appeal,
    therefore, is on the question whether the appellant was detained.

[20]

Detention under ss. 9 and 10 of the
Charter
means that an individuals liberty interest has been suspended by a
    significant physical or psychological restraint:  see
R. v. Grant
, [2009]
    2 S.C.R. 353 at para. 44.  The appellant was not physically restrained, but
    argues that he was psychologically restrained.  A psychological detention may
    arise when a reasonable person would conclude by reason of the state conduct
    that he or she had no choice but to comply:  see
Grant
at para. 44.
    This is an objective test and thus the appellants failure to testify is not
    fatal to his claim that he was detained.  In
Grant
itself, the accused
    did not testify, but both this court and the Supreme Court of Canada held that
    he had been detained contrary to s. 9 of the
Charter
.

[21]

In
Grant
, at para. 44, the Supreme Court
    of Canada set out a list of factors that may assist courts in determining
    whether an individual has been psychologically detained:

a)

The circumstances giving rise to the encounter
    as would reasonably be perceived by the individual:  whether the police were
    providing general assistance; maintaining general order; making general
    inquiries regarding a particular occurrence; or, singling out the individual
    for focused investigation.

b)

The nature of the police conduct, including the
    language used; the use of physical contact; the place where the interaction
    occurred; the presence of others; and the duration of the encounter.

c)

The particular characteristics or circumstances
    of the individual where relevant, including age; physical stature; minority
    status; level of sophistication.

[22]

This list is not intended to be exhaustive, but
    as a guide in cases where it is unclear whether there has been a psychological
    detention.  In putting forward his argument, the appellant relies on this list,
    as he is entitled to do, even though
Grant
was decided in the Supreme
    Court of Canada after the trial judges ruling in this case.

[23]

Looking at the factors set out in
Grant
,
    I consider this to be a close case.  Ordinarily a trial judges finding on
    whether an accused has been psychologically detained deserves appropriate
    deference:  see
Grant
at para. 45.  However, this deference is attenuated
    where, as in this case, the finding is conclusory and unsupported by any
    explanation.

[24]

And, the appellant puts forward a good case, on
    all the
Grant
factors, that he was psychologically detained.  Even at
    his apartment, though he wanted to leave, one of the paramedics cautioned the
    appellant to stay because the police wanted to speak to him.  The officers then
    suggested that he come to the police station.  He was put in an interview room
    and was never told that he was free to leave.  He was kept there for a fairly
    long time  over an hour and a half.  The interview began at 6:23 a.m. and he
    gave statement number four at 8:00 a.m.

[25]

Although the officers questions initially could
    be characterized as general inquiries, they soon became quite pointed.  Did
    you have an argument with your wife last night?, and did you hit her?,
    showed a focused investigation.

[26]

The appellant himself was unsophisticated and of
    limited intellect, had difficulty with the English language, and appeared
    emotionally distraught.

[27]

These considerations taken together could lead
    one to conclude that a reasonable person in the appellants circumstances would
    believe that he had no choice but to comply with the officers requests.

[28]

On the other hand, as the Crown fairly points
    out, several considerations support the trial judges finding.  The officer who
    asked the appellant to come to the station apparently did so at least partly
    out of sensitivity to the appellants situation.  He testified that he thought
    the appellant would be more comfortable at the police station because the
    coroner was coming to the apartment to take Marias body to the morgue.

[29]

Moreover, though a few of the officers
    questions were pointed, focused suspicion, in and of itself, does not turn the
    encounter into a detention:  see
Grant
at para. 41.  When the appellant
    gave statement four, the police had just begun their investigation.  A few
    hours later, before the appellant gave statement five, the police explicitly
    told him that he was free to go.  Yet he chose to stay.  And the defence
    conceded that the appellant was not detained when he gave statements five and
    six.

[30]

I do not think it is necessary to resolve
    whether the trial judge erred in finding that the appellant was detained.  Even
    if the trial judge did err, the error was harmless, for two reasons.

[31]

First, the jury heard other admissible evidence
    that duplicated the inculpatory aspects of statement number four.  Two examples
    show this.  In statement four, the appellant admitted that he had an argument
    with his wife and implied that he may have hit her.  Sixteen days after he gave
    this statement, the appellant called one of the homicide officers and told him
    that he may have slapped Maria a few times and lightly kicked her in the
    buttock area.

[32]

In statement four, toward the end, as the officers
    questions became pointed, the appellant appeared to be evasive.  Yet statement
    four was not needed to show the appellants evasiveness.  Both paramedics
    testified that the appellant was uncooperative and evasive at the apartment.

[33]

Second, any error is harmless because the Crown
    had an overwhelming case.  In the light of the evidence of exclusive
    opportunity, the appellants post-offence conduct, his statements to the paramedics
    and police that are unquestionably admissible, and the forensic evidence that I
    have outlined earlier, a new trial would inevitably have the same result.  I
    would not give effect to this ground of appeal.

(b)

Should statement number four have been excluded
    because it was incoherent?

[34]

As I have said, the trial judge excluded statements
    five and six, which were video recorded.  He ruled that because the appellants
    answers were incomprehensible, the prejudicial effect of each statement
    outweighed its probative value.  He said:

Because of the incomprehensible
    nature of the responses of the accused on key matters in both statements, I am
    not satisfied beyond a reasonable doubt in the absence of an interpreter that
    the statements given to the police by the accused can properly be characterized
    as his statements.  Moreover, because of the incomprehensible answers of the
    accused on key issues the prejudicial effect of his answers outweighs their
    probative value as there is a danger that the jury may be mislead not only as
    to the meaning of the answers of the accused but as to whether the accused is
    deliberately seeking to evade the questions of the police.  Statements Nos. 5
    and 6 are inadmissible.

[35]

However, the trial judge ruled that statement
    four, made just before statements five and six, and recorded only on paper, was
    admissible.  The appellant submits that statement four was as incoherent as
    statements five and six and should have been excluded as well.

[36]

In making this submission, the appellant
    challenges the adequacy of the trial judges reasons on his
voir dire
ruling.   He says that the trial judge had an obligation to explain why his
    ruling on statements five and six did not apply to his ruling on statement
    four, and his bald conclusion failed to fulfill that duty.  Had the trial judge
    addressed why his rulings differed, the appellant says, his ruling on statement
    four might have been different.

[37]

The Crown responds with a preliminary
    objection:  this court should not even consider the alleged inadequacy of the
    trial judges reasons because the appellant never requested full reasons,
    although the trial judge had reserved the right to deliver them if
    necessary.  The Crown argues that the appellant had an onus to ask for further
    reasons and his failure to do so ought to be an absolute bar to challenging
    the ruling.

[38]

Respectfully, I cannot see any merit in the
    Crowns argument.  The obligation to deliver adequate reasons rests on the
    trial judge and the trial judge alone.  Neither the defence nor the Crown
    whether appellant or respondent  has any onus to request a trial judge to deliver
    better reasons.

[39]

That said, trial judges are entitled in
    appropriate instances to deliver summary rulings with further reasons to
    follow.  They may need to do so to keep a long and complicated trial,
    especially a jury trial, moving forward without undue delay.  Undoubtedly that
    is why the experienced trial judge in the case before us delivered a summary
    ruling on the
voir dire
.  As the Supreme Court of Canada said in
R.
    v. Tesky
, [2007] 2 S.C.R. 267 at para. 17: it is often necessary in the
    interest of achieving trial efficiency for a trial judge to announce promptly
    the disposition on an evidentiary ruling or on a
Charter
motion, with
    reasons to follow on a later date.

[40]

However, if a trial judge does not later deliver
    full reasons for a ruling and the ruling is appealed, then an appellate court
    must assess whatever reasons have been delivered.  A party is not foreclosed
    from challenging the adequacy of reasons because that party failed to ask the
    trial judge to deliver further reasons.

[41]

What then of the appellants argument that
    statement four is incoherent?  On appeal, the important function of reasons is
    to permit meaningful appellate review.  The conclusory nature of the trial
    judges ruling does not preclude meaningful review.  The statement is short and
    was recorded verbatim by one of the officers.  We are able to discern why the
    trial judge admitted it.  For convenience, I reproduce statement four here:

Q:        Can you tell us what
    happened?

A:        I went sleep early.  I have to work early.  Wake up 4:30, go
    to work.

Q:        Where was Maria when you
    went to sleep?

A:        I dont know.  Always going out and in, out and in.  She
    not working.  Always going out.

Q:        What happened?

A:        I dont know.  I going
    to sleep.

Q:        Where did Maria sleep
    last night?

A:        I dont know where she was.  She was crying and said, Im
    sorry, everything.  I called ambulance.  I was thinking, I said, Wake up.
    Wake up.  I was think she always drink and drunk and doing things.  Come out
    some white from mouth.  She saying, Forgive me.  Forgive me.  I called
    ambulance.  I went downstairs and open door for ambulance people.

Q:        What time do you get up
    this morning?

A:        4:30.  I see my wife, she was sit beside me, she was
    crying.  I put her living room.  I want to go back sleep.  She was so badly drink
    and drug and needle here and there.  I go back sleep.  I wake up. She was
    down.  Forgive me.  [The officers notes indicated that this was what the
    appellant said his wife had said to him.  He then demonstrated that Maria got
    down on her knees and prayed to him to forgive her.]

Q:        Did you have an argument
    with your wife last night?

A:        Well [pause] no.

Q:        Did you hit her?

A:        Well [pause] no, not
    really.

Q:        What do you mean not
    really?

A:        [Pause] Always people come here, man, woman, I dont
    know.  [at that point the appellant began talking in circles about having to
    go to work, was sleeping, etc and the officer stopped taking notes]

[42]

Up until the last answer, the appellants
    responses are quite coherent and comprehensible.  Only the last answer causes
    any concern, and at that point the officer stopped taking notes.  The Crown may
    have tried to make something of the last answer  arguing that the appellant is
    showing evasion to a pointed question  but that is fair advocacy.  Overall, I
    see nothing incoherent about statement four.  The trial judge was correct not to
    rule it inadmissible because it was incoherent.

[43]

However, even if the statement should have been
    ruled inadmissible, for the reasons given on the first branch of this ground of
    appeal, the error was harmless.  If necessary I would apply the curative
    proviso and hold that admitting the statement caused no substantial wrong or
    miscarriage of justice.

[44]

I would not give effect to this ground of
    appeal.

(2)

Did the trial judge err by failing to correct
    comments made by the Crown in closing?

[45]

The appellant contends that the trial judge erred by failing to correct
    two assertions made by Crown counsel during her closing argument:  one
    concerning the DNA under Marias fingernails; the other concerning the
    appellants exclusive opportunity to commit the offence.  At trial, no
    objection was taken with either assertion.  I do not accept the appellants
    contention on appeal.

(a)

DNA under Marias fingernails

[46]

The Crown called Pam Newall from the Center of
    Forensic Sciences to give expert evidence on DNA.  Ms. Newall testified that
    the appellants DNA under Marias fingernails had probative value.  The
    appellant accepts this to be so.

[47]

However, the Crown suggested to the jury that
    the absence of anyone elses DNA under Marias fingernails was also significant:

As for the finger  the DNA under
    the fingernails, what was found under Marias nails is equally as significant
    as the DNA that was not found.  If Maria was attacked by anyone other than Mr.
    Czibulka, why was only his DNA found under her nails?  Surely in the course of
    such a beating, the circumstances of close, forceful contact that Ms. Newall
    described would have occurred.  If the circumstances were really as the defence
    suggests, there would have been someone other than Mr. Czibulkas DNA under
    Marias fingernails.  There was no other DNA under her nails because the only
    person that beat Maria was Mr. Czibulka himself.

The appellant says that this suggestion
    misstated Ms. Newalls evidence and should have been corrected by the trial
    judge.

[48]

I agree with the Crown on appeal that the trial
    Crowns suggestion was fair advocacy, and not a misstatement of the evidence.
    In Ms. Newalls evidence  which the trial judge, in his charge, recited to the
    jury  she referred to studies showing that DNA was transferred by severely
    scratching another person.  The appellant had scratch marks on him.  If the
    jury accepted that Maria may have used her hands to try to fend off her
    attackers brutal beating, one might fairly expect that the attackers DNA
    would be under her fingernails.  The Crown simply asked the jury to draw this
    inference.  No correction from the trial judge was needed.

(b)

Exclusive opportunity

[49]

The appellant also complains that in seeking to show he had the exclusive
    opportunity to commit the crime, the Crown went too far by telling the jury that
    they could rely on the lack of evidence anyone else was present.  The appellant
    points to the following passages from the Crowns closing:

There is absolutely no evidence before you, ladies
    and gentlemen, to suggest that anyone other than Mr. Czibulka was with Mrs.
    Czibulka the weekend of her death.

Where is the intervening assault?  Where is the
    intervening assailant?

Absolutely no evidence before you that anyone other
    than Mr. Czibulka was with Mrs. Czibulka the weekend that she was murdered.

[50]

The appellant submits that the trial judge should have instructed the
    jury they could not rely on a lack of evidence anyone else was present to find
    exclusive opportunity; instead they had to rely on positive evidence.  I do not
    agree with this submission.  Absence of evidence that anyone else was present
    at the relevant time may be used to establish exclusive opportunity.

[51]

McIntyre J., writing for the court, made this point in
R. v. Yebes
,
    [1987] 2 S.C.R. 168 at pp. 189-90.  In that case, the accused, Mr. Yebes, was
    convicted of the second degree murder of his two adopted sons.  In upholding
    the conviction, McIntyre J. noted that there was no evidence connecting Yebes
    to the death of the boys.  He therefore considered whether at the relevant time
    Yebes had the exclusive opportunity to commit the murders.  He held there was
    evidence on which a properly instruct jury could find exclusive opportunity.
    In so finding, the jury could take into account that there is no evidence of
    the presence of any other person, save the two boys, in the townhouse that
    evening.

[52]

I would not give effect to this ground of appeal.

(3)

Did the trial judge err by failing to tell the
    jury that the appellants post-offence conduct could not be used to determine
    whether he was guilty of murder or manslaughter, and by failing to relate the
    evidence to the
mens rea
for murder?

[53]

Whether the appellant was guilty of murder or manslaughter was a live
    issue at trial.  The Crown relied mainly on the severity and persistence of the
    beatings to show an intent to kill.  The defence maintained that the
    appellants repeated utterances to the paramedics she no dead, coupled with
    his intoxication and emotional state amounted to compelling evidence that he
    lacked the requisite intent for murder.

[54]

To prove that the appellant killed his wife, the Crown had led evidence
    of the appellants post-offence conduct.  That evidence consisted mainly of his
    misleading call to the 9-1-1 operator, his apparent unwillingness to cooperate
    with the paramedics and his desire to leave the apartment on the pretext that
    he had to go to work.

[55]

The principle that ordinarily post-offence conduct may point to an
    accuseds culpability but not to the level of that culpability is now well
    established.  See, for example,
R. v. Marinaro
, [1996] 1 S.C.R. 462,
    adopting Dubin C.J.Os dissent at (1994), 76 O.A.C. 44 (C.A.);
R. v. Wiltse
(1994), 19 O.R. (3d) 379 (C.A.);
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A.).
    The appellant says that the trial judge was required to so instruct the jury.
    He relies on cases such as
Wiltse
, where Doherty J.A. wrote at pp.
    384-85:

In so far as Yaremas acts after the homicide
    demonstrated a consciousness of guilt, they could do no more than point to his
    culpability in the homicide.  They could not help in determining the level of
    his culpability, that is, whether he was guilty of manslaughter, second degree
    murder or first degree murder.  That is not to say that in some cases the conduct
    of an accused after the offence cannot have some relevance to his or her level
    of culpability, apart entirely from its evidentiary value as demonstrating a
    consciousness of guilt.  No such alternate evidentiary use was put forward
    here.

In my view, the jury should have been instructed
    as to the limited use of evidence of consciousness of guilt in determining
    Yaremas culpability in the homicide
.  The jury also should have been told
    that the evidence had no probative value unless the jury was satisfied that the
    consciousness of guilt reflected by those acts was with respect to the killing
    of the deceased and not some other conduct of Yaremas. [Emphasis added,
    citations omitted.]

[56]

The appellant argues that instead of giving this limiting instruction,
    the trial judge told the jury that the appellants post-offence conduct, was
    relevant in determining whether he committed murder.  After reviewing the
    post-offence conduct the trial judge told the jury:

Now, what a person does or says after a crime has
    been committed may constitute circumstantial evidence which, together with all
    of the other evidence, may help you decide whether that was the person who
    committed the offence.  I say it may help.  It may not help.    If you
    conclude that the words were spoken or that the conduct did take place, you
    will consider next whether the conduct or words indicate that Mr. Czibulka
    committed the offence or whether the conduct or words do not indicate he
    committed the offence.

[57]

Indeed, the appellant goes further and argues that the trial judges
    failure to give a limiting instruction on post-offence conduct was part of his
    failure to fulfill his broader duty of relating the relevant evidence to the
mens
    rea
for murder.  He maintains that it was particularly important for the
    trial judge to do so because the defence focused on the issue of identity, not
    on the level of culpability:  see
R. v. Maciel
(2007), 222 O.A.C. 174 (C.A.)
    at para. 96.  The appellant submits that the trial judges overall instruction
    on the level of culpability deprived him of a fair trial.

[58]

I do not accept the appellants submission.  On the narrower aspect of
    his submission concerning the trial judges instructions on post-offence
    conduct, I note that the passage the appellant impugns came in the part of the
    charge dealing with the issue of identity.  On that issue, the appellants
    post-offence conduct was relevant in deciding whether he was culpable at all.  Moreover,
    the instruction itself was balanced.  In the omitted portion of the passage
    cited in para. 55 above (where the ellipse appears), the trial judge explained
    to the jury the competing inferences available to them:

The conduct and words of Mr. Czibulka that I have
    outlined may indicate that he committed the offence with which he is charged.  Ms.
    Richards for the Crown wishes you to draw that inference.  However, the words
    and actions of the accused to which reference has been made, however, be those
    of an innocent person who wishes to avoid embarrassment or who wants to avoid
    involvement in a police investigation with respect to a crime for which he
    thought he might be blamed or suspected, but one which he did not commit.  That
    is the inference which Ms. Cahill wishes you to draw.

[59]

I recognize the trial judge told the jury that the post-offence conduct
    may help them determine whether the appellant committed the offence with which
    he is charged.  However, as this instruction was given in the part of the
    charge on identity, I cannot see that the jury would have considered it when
    deciding whether the appellant was guilty of murder or manslaughter.

[60]

Thus, the most the appellant can say is that the trial judge failed to
    give a limiting instruction.  Perhaps it would have been better had he done so,
    but the absence of a limiting instruction did not deprive the appellant of a
    fair trial.  The Crown did not rely on the appellants post-offence conduct to
    prove that he had the intent for murder.  Nor did the trial judge refer to this
    evidence in the portion of his charge on whether the appellant had the requisite
    intent for murder.

[61]

Further, defence counsels position may be taken as a strong indication
    that the absence of a limiting instruction on post-offence conduct did not
    result in an unfair trial.  The trial judges charge was extensively vetted
    with counsel in the pre-charge discussion.  Yet, defence counsel neither
    objected to the charge nor asked for the limiting instruction now sought on
    appeal.

[62]

On the broader aspect of the appellants submission, that the trial
    judge failed to relate the evidence to the
mens rea
for murder, I am
    satisfied that the charge was adequate.  The trial judge fairly and succinctly
    instructed the jury on the positions of the parties on the issue of intent.  He
    told the jury that the Crown relied on the severity and persistence of the
    beatings.  And though defence counsel in her closing had made no submissions on
    whether the appellant had the intent for murder, the trial judge told the jury
    they could consider the evidence of the appellants intoxication and his
    emotional state.

[63]

The trial judge did not specifically refer to the appellants repeated
    utterances to the paramedics, she no dead.  However, I doubt that a specific
    reference would have assisted the defence.  Those utterances had the potential
    to cut both ways  they could well have been an act on the appellants part.
    Indeed, that is perhaps why the defence never sought a specific instruction on
    these utterances.  Moreover, the jury would have been well aware of these
    utterances during their deliberations.

[64]

I would not give effect to this ground of appeal.

(4)

Did the trial judge err in principle in fixing
    the period of parole ineligibility at 15 years?

[65]

As the appellant was convicted of second degree murder, he received a
    mandatory life sentence.  By statute he is not eligible for parole for at least
    10 years.  As would be expected in a case such as this, the Crown sought an
    increased period of parole ineligibility:  she asked for 17 years.  The defence
    sought a period of 12 years.  The jury made no recommendation.  The trial judge
    imposed 15 years.

[66]

The appellant appeals his period of parole ineligibility on the ground
    that the trial judge erred in principle by fixing the range of parole
    ineligibility for a brutal spousal murder at 12 to 17 years.  The appellant
    contends that the appropriate range is 12 to 15 years.  As the trial judge did
    not impose a period of parole ineligibility at the high end of the range he
    considered appropriate, the appellant says that if the range is 12 to 15 years,
    then he should be eligible for parole after 12 to 13 years.

[67]

I do not accept the appellants contention.  Admittedly, in
R. v.
    McKnight
(1999), 44 O.R. (3d) 263 (C.A.), the case relied on by the
    appellant, a majority of the panel held at p. 276 that  no two cases are the
    same but similar cases from this province of brutal second degree murders of an
    unarmed wife or girlfriend suggest a range of 12 to 15 years.  However, that
    range is not cast in stone for all brutal spousal murders.  Sentencing ranges
    are guidelines rather than hard and fast rules:  see
R. v. Nasogaluak
2010 S.C.C. 6 at para. 44.  Sentencing remains an individualized process.  The
    range stipulated in
McKnight
was driven by previous case law in this
    province and by several mitigating considerations in the case itself.  These
    considerations included McKnights remorse, his many contributions to the
    community, and his mental illness, considerations absent in the present case.

[68]

Moreover, a few months after
McKnight
was decided, in
R. v.
    Wristen
(1999), 41 47 O.R. (3d) 66 (C.A.), another case where an accused
    was convicted of the brutal second degree murder of his spouse, this court
    imposed a period of parole ineligibility of 17 years.  The panel referred to
McKnight
,
    yet said at para. 76 But in
McKnight
, there were several significant
    mitigating circumstances that justified reducing the period of parole
    ineligibility and that have no counterpart in the present case.

[69]

In the case before us, the trial judge took
Wristen
to reflect
    the upper end of the range, and I do not see how he can be faulted for doing
    so.  At trial, both Crown and defence accepted a range of 12 to 17 years.

[70]

The trial judge did not impose 17 years because of some mitigating
    considerations.  The appellant was 64 years old at the time of sentencing, he
    had been steadily employed for over 30 years, he had a single conviction for
    care and control over 80, and there was no admissible evidence of previous
    domestic abuse.

[71]

However, in the trial judges view, several aggravating considerations
    warranted a sentence in the middle, not the lower end of the range.  The trial
    judge agreed with Campbell J.s opinion at the first trial that the
    distinguishing and unusual feature of this case is the savage cruelty reflected
    in the terrible injuries to this defenceless woman.  The trial judge went on
    to say that, on the pathologists evidence, Marias death could have taken
    several hours after the beating, and during that time she would have
    experienced excruciating pain from her injuries.

[72]

Later in his sentencing reasons, the trial judge summed up his own
    assessment of the aggravating considerations:

Aggravating factors include his deliberate
    demeaning of his wifes character and memory in order to distract the
    investigation and to cover up his own guilt. More particularly, the singular
    aggravating factor is, as has been stated, the persistent and protracted
    beating administered to his defenceless wife, coupled with his unspeakable
    indifference to her suffering after the beating was administered which brands
    this offence as one of, as I have mentioned, conspicuous brutality, callousness
    and cruelty.

[73]

I agree with the trial judges assessment and I agree that it fully
    justified the 15- year period of parole ineligibility he imposed.  I would
    therefore not interfere with the appellants sentence.

D.

CONCLUSION

[74]

I would dismiss the conviction appeal.  Neither the trial judges
    decision to admit statement number four, nor his charge to the jury deprived
    the appellant of a fair trial.

[75]

Also, I would not interfere with the 15 year period of parole
    ineligibility imposed by the trial judge.  This period was justified by several
    aggravating considerations surrounding Maria Czibulkas death, especially the
    terrible injuries she suffered at her husbands hands, and the cruelty he exhibited
    in inflicting those injuries on his defenceless wife.  Accordingly, although I
    would grant leave to appeal sentence, I would dismiss the sentence appeal.

RELEASED:  Jan. 31, 2011                                                John
    Laskin J.A.

JL                                                                                I
    agree Robert J. Sharpe J.A.

I
    agree G.J. Epstein 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), (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
    complainant 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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to commit rape),
    149 (indecent assault on female), 156 (indecent assault on male) or 245 (common
    assault) or subsection 246(1) (assault with intent) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female
    under 14) or (2) (sexual intercourse with a female between 14 and 16) or
    section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse
    with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166
    (parent or guardian procuring defilement) or 167 (householder permitting
    defilement) of the
Criminal Code
, chapter C-34 of the Revised Statutes
    of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application
    for the order; and

(b)
on
application made by the complainant,
    the prosecutor or any such witness, 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).

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.

CITATION:
R. v. D.T.G., 2011
          ONCA 40

DATE: 20110118

DOCKET: C48140  C49269

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., MacFarland and Watt JJ.A.

BETWEEN                                                                                C48140

Her Majesty the Queen

Appellant

and

D. T. G.

Respondent

AND  BETWEEN                                                                                C49269

Her
          Majesty the Queen

Respondent

and

D. T. G.

Appellant

Philip Campbell and Michael
Dineen
,
          for the appellant (on conviction)/respondent (on sentence)

John McInnes and Chris Dwornikiewicz, for the Crown respondent
          (on conviction)/ appellant (on sentence)

Heard:  November 12,
          2010

On appeal from the convictions entered by Justice Frances P. Kiteley
          of the Superior Court of Justice dated March 13, 2007 and the sentence
          imposed by Justice Kiteley on November 28, 2007.

MacFarland J.A.:

OVERVIEW

[1]

This is an appeal by the accused from the judgment of
    Kiteley J. who entered convictions on five counts of indecent assault; one
    count of threatening death; two counts of assault causing bodily harm; one
    count of sexual intercourse with a person under 14 and one count of assault
    with a weapon.  The Crown appeals the
    sentence imposed by the trial judge.

[2]

The charges against the appellant relate to historical
    physical and sexual abuse alleged to have been perpetrated on two of his four
    step-daughters, V. and B. The complainants testified that the appellant
    regularly beat them between 1969 and 1977.  They also testified that he forced them to engage in sexual activities
    including fondling, oral sex and, in the case of the younger complainant, full
    sexual intercourse.  The older
    step-daughter, V., also testified that she and her sister had been forced to perform
    sexual acts on each other; the younger step-daughter B. testified to no such
    events and said that she had not been aware that her sibling had also been
    molested.  The appellant testified and
    denied all allegations.  The appellant
    submits that the trial judge erred in her approach to the assessment of
    credibility and raises three grounds of appeal:

1.         The trial judge erred in finding the
    appellants evidence unreliable for
    speculative and unfounded reasons;

2.         The trial judge erred in finding the
    appellants evidence incredible because
    he had a motive to lie; and

3.         The trial judge erred in failing to
    appreciate a major inconsistency between
    the complainants.

[3]

For the reasons that follow, I am of the view that the
    conviction appeal must be allowed and a new trial ordered.  Accordingly, it is unnecessary to deal with
    the sentence appeal.

THE FACTS

[4]

The appellant was born in Newfoundland on December 11,
    1945.  In 1968, he moved to Ontario where
    he met B.L., the mother of the complainants.  B.L. had also recently moved to Ontario from Newfoundland with her
    husband and four daughters.  She and her
    husband separated in 1969 and she subsequently began a relationship with the
    appellant.  V. and B. are B.L.s second
    and third daughters; they were seven and six years of age, respectively, when B.L.
    moved in with the appellant.  The
    appellant and B.L. soon had a son together.  The family lived in Toronto for three years,
then
moved to Kitchener where they lived for a couple of years.  In 1974, they returned to Toronto.  In 1977, the appellant and B.L. separated when
    the appellant moved to Alberta, where he eventually got married and had a
    daughter.

V.s Evidence

[5]

V.
    testified that the appellant began to sexually abuse her when she was about
    seven years of age.  She described the
    first incident of abuse in the familys kitchen at their home in Toronto and of
    specific incidents that occurred when they lived in Kitchener.  She recalled an incident when she was sick in
    bed with the mumps and the appellant brought her jello and then fondled
    her.  She also spoke of occasions when
    the family would go swimming in Kitchener and the appellant would make her rub
    his penis and he would fondle her inside her bathing suit.  She spoke of him coming into her bedroom at
    night, fondling her and placing his penis in her mouth.  She also spoke of an occasion when the family
    was driving back from Kitchener in a station wagon and the appellant climbed
    into the back where V. was lying under blankets and fondled her there.  She testified to the appellants verbal and
    physical abuse throughout his relationship with B.L.  According to V., the appellant beat B.L. and
    spanked V. regularly, often using shoes or belts.

[6]

V.
    also testified about occasions when she and B. were forced to perform oral sex
    on the appellant together.  They were
    also required to perform oral sex on each other and to use a vibrator on each
    other.  She recalled a specific incident
    when the appellant was speaking to her mother on the phone, telling her
    everything was fine, while V. and B. performed oral sex on him.  According to her, she did not tell her mother
    about the sexual abuse because the appellant had told her that if she did, her
    mother would no longer love her.  Although V. testified that she had disclosed the abuse to her husband
    years earlier, neither he nor anyone else testified that either complainant had
    disclosed these matters before 2000.

B.s Evidence

[7]

B.
    spoke of similar abuse.  She said the
    appellant spanked her almost every night and often used a belt.  He would belittle her and call her
    stupid.  He regularly beat her
    mother.  She said the appellant fondled
    her and forced her to perform oral sex on him, telling her that this was what fathers
    did to their little girls to prepare them for their future husbands.  B. testified that the appellant started
    having intercourse with her when she was eleven or twelve years of age.  According to her, she would go over weekly to
    the appellants new apartment in Toronto and have intercourse or oral sex with
    him until he moved to Alberta when she was thirteen or fourteen years old.  In her evidence, B. clearly stated that she
    was not aware of any sexual abuse perpetrated on her siblings during this
    period.

[8]

B.
    had been addicted to cocaine and other drugs for years.  It was during a relapse following her release
    from a rehabilitation program that she first told her mother of the abuse in an
    effort to explain why she had personal problems. She went to the police in
    2004. V. only decided to give police a statement after B. had done so; she
    described her testimony as standing by her sister.

B.L.s Evidence

[9]

B.L.,
    the complainants mother, testified for the Crown.  She said the appellant was physically abusive
    to her. Her evidence was that he disciplined the children by yelling at them
    and grounding them.  If she intervened,
    he would beat her.  She had no awareness
    of any of the physical or sexual abuse that her daughters claimed to have
    suffered.  She gave no evidence of ever
    having noticed injuries or any other sign of abuse.

The Appellants Evidence

[10]

The
    appellant denied all sexual interaction with either V. or B.  He denied being regularly violent with his
    wife or her children but he admitted that he may have shouted at them or struck
    at them with his hand for occasional discipline, but never with belts or other
    objects.  He acknowledged that he and
    B.L. argued, particularly near the end of their relationship and when they had
    been drinking.  In relation to his
    drinking, the appellant was asked by the Crown:

Q.        And did you have a problem with alcohol,
    and do you have a problem with alcohol?

A.
           No, I dont, maam.

Q.
           Im going to suggest to you that [B.L.]
    really isnt much of a drinker.

A.        She partied enough with me and our
    friends.

Q.        She was a social drinker

A.        I was a social drinker also.  Okay, I got drunk every now and then on a
    weekend or whenever the case. Its just we drank too much. You dont realize it
    at the time.  Yes, and I partied.  She partied with me.  We went camping.  We
drank,
the whole
    lot of us, our friends and everyone.
Theres
nights we got drunk.
Theres
other nights we didnt.

[11]

B.L.
    described the appellant as a controlling man and as being physically abusive
    toward her but she was not asked directly about the appellants alcohol
    consumption.  The appellant testified
    that he was a different person now (at trial) than he had been thirty years
    earlier  he had quit drinking, changed his lifestyle and dumped his anger.

[12]

Following
    his move to Alberta, the appellant continued to have contact with the
    complainants. Many cards and letters sent to him by both complainants were put
    into evidence.  V. said she continued to
    send cards because she still saw the appellant as a father figure.  B. claimed she remained in contact because the
    appellant continued to threaten to kill her mother. Both complainants visited
    the appellant in Alberta after his move there.  Contact appears to have stopped in 1994, the year the appellants wife
    died of cancer.

ANALYSIS

[13]

The
    Crown conceded in its closing submissions that this case was a close call. This
    was a case of two uncorroborated accounts from two complainants and a broad
    denial by the appellant of any abuse.  In
    dealing with the evidence of the complainants, the trial judge found aspects of
    the evidence of both V. and B. problematic.  The case was not an overwhelming one for the Crown.

[14]

The
    appellants evidence is dealt with at paras. 78 through 83 of the trial judges
    reasons for judgment. She briefly reviewed some aspects of the appellants
    evidence and concluded:

[82]    Given
    his concession that he might have hollered at the children and might have
    smacked them for discipline, I find that the anger that he admits was part of
    his personality affected his perception of the events at the time.  Perhaps because of his alleged transformation
    he minimizes the profound effect he had on the lives of [B.L.] and [V.] and [B.].

[83]     Even on his evidence he drank alcohol
    frequently and excessively. That too may have had an effect on his memory. He
    has a motive to minimize what he did do and deny any behaviour that might
    attract criminal liability.  It may be
    that his memory is sufficiently impaired by alcohol, by the passage of time,
    and by his asserted transformation that he does not remember the events that
    form the basis of the allegations.  I do
    not find his evidence credible and reliable.  I do not accept his evidence. His evidence does not raise a reasonable
    doubt.

[15]

There
    are a number of problems with this reasoning, the first and most obvious being
    that the reasons are conclusory. There is no analysis of the evidence.  Further, the basis upon which the appellants
    evidence is rejected is speculative at best. The trial judge found that the
    appellants anger had affected his perception of past events without any
    evidence whatsoever to support that conclusion. The appellant was not
    cross-examined about whether or not his anger may have affected his perception
    of past events nor was any expert or other evidence called on the point.  In addition, the trial judge speculated that
    perhaps because of the appellants alleged transformation, he minimized the
    effect he had on the lives of the complainants and their mother.  Once again, there is no basis in the evidence
    to support such a conclusion.  Similarly,
    the trial judge speculated that the appellants consumption of alcohol may
    have affected his memory  again without any support in the evidence to support
    such a conclusion.

[16]

Equally
    problematic is the trial judges statement: He has a motive to minimize what
    he did do and deny any behaviour that might attract criminal liability.  This court considered a similar comment in
R. v. L.B.
(1993), 82 C.C.C. (3d) 189,
    at p. 190:

It is only necessary to consider one
    of the two grounds of appeal. The appellant submits that the trial judge erred
    in attributing to him a motive to lie, as a reason for disbelieving his
    evidence.

When
    he came to consider the evidence of the appellant, the trial judge said: The
    accused, of course, has a motive for not telling the truth, he does not wish to
    be convicted.

The
    appellant submits that this was an error as it displaced entirely the presumption
    of innocence and presupposed the guilt of the appellant.  I agree.

[17]

In
    my view, the trial judges comment in this case about the appellants motive
    falls into the category of impermissible reasoning outlined in
L.B.
 that in effect, the appellant
    will lie to avoid criminal liability.  Such a comment displaces the presumption of innocence and in the
    language of
L.B.
, at p. 191, goes
    beyond the permissible consideration of the accuseds interest in being
    acquitted, as one factor to be taken into account when weighing his
    testimony.  It falls into the
    impermissible assumption that the accused will lie to secure his acquittal.

[18]

The
    final ground of appeal relates to the significant contradiction in the evidence
    of the complainants.  V. testified that
    the appellant forced her and B. to perform oral sex on him and on each other,
    with and without a vibrator.  B.
    testified that she had been unaware until her adulthood that V. too had suffered
    sexual abuse at the hands of the appellant.  The trial judge dealt with this serious contradiction at para. 100 of
    her reasons:

It
    is the case that [B.] did not give evidence about being forced to participate
    in sexual acts with her sister at the family residence or at [the appellants]
    apartment.  But she was never asked that
    question specifically in cross-examination and [the Crown] could not
    cross-examine on that point. I have accepted [V.s] evidence on that point. I
    draw no negative inferences that [B.] did not speak on the same issue.

[19]

In
    my view, the trial judge had to do more in dealing with this significant
    inconsistency in the complainants evidence.  It is not enough to simply say that the defence did not ask a specific
    question in relation to this evidence and that the Crown could not
    cross-examine on the issue. This was a serious conflict in the evidence.  It was the Crowns problem.  A trial judge is not required to expressly
    deal with every inconsistency in the evidence.  However, as Binnie J. noted in
R.
    v. Sheppard
, [2002] 1 S.C.R. 869, at para. 55:

Reasons
    acquire particular importance when a trial judge is called upon to address
    troublesome principles of unsettled law, or to resolve confused and
    contradictory evidence on a key issue

[20]

In
    my view, the trial judges reasons here do nothing to resolve this
    contradictory evidence on a key issue.  This was not an insignificant conflict in the evidence.  The trial judge had a duty to address this
    inconsistency and failed to do so.

[21]

For
    the foregoing reasons, I am of the view that the appeal must be allowed, the
    convictions set aside and a new trial ordered.

[22]

In
    view of this result on the conviction appeal, it is neither necessary nor
    appropriate to deal with the Crowns sentence appeal.

RELEASED:  January 18,
    2011 DOC

J. MacFarland
    J.A.

I
    agree Dennis OConnor A.C.J.O.

I
    agree David Watt J.A.


CITATION: R. v. Davis, 2011
      ONCA 12

DATE: 20110107

DOCKET: C50254

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

And

Jermaine Davis

Appellant

Daniel A. Stein, for the appellant

Deborah Krick, for the respondent

Heard: January 6, 2011

On appeal from the conviction entered on June 12, 2008 and the
          sentence imposed on September 17, 2008 by Justice C. Horkins of the Superior
          Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The two grounds of appeal raised by the appellant are, in our view,
    essentially fact-driven.  The trial judge provided very detailed and cogent
    reasons for concluding that the jury should have before it the appellants full
    criminal record.  She provided equally detailed and thorough reasons for
    concluding that the arresting officer did not, in the circumstances, use
    excessive force in arresting the appellant.

[2]

We have carefully considered both rulings and we are not persuaded that
    the trial judge erred, either in her findings of fact or in the application of
    the relevant legal principles.

[3]

Accordingly, the appeal for conviction is dismissed.  The appeal from
    sentence is not pursued.  Accordingly, it is also dismissed.


CITATION:
R. v. Dhillo, 2011
          ONCA 63

DATE: 20110121

DOCKET: C50669

COURT OF APPEAL FOR ONTARIO

Rosenberg, Goudge and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pappu Dhillo

Appellant

Vincenzo Rondinelli, for the appellant

Emile Carrington, for the respondent

Heard and released orally: January 17, 2011

On appeal from the conviction
          entered by Justice J. Daley of the Superior Court of Justice on February 3,
          2009.

ENDORSEMENT

[1]

The appellant raises two grounds of appeal.  The first is that the trial
    judge misapprehended the evidence as to when the appellant knew the complainant
    was alleging he had assaulted her.  The transcript is somewhat confusing but
    the trial judge had the advantage, which we do not, of having seen the witness
    and we cannot say that the trial judges interpretation of the appellants
    evidence on this point is unreasonable.  In any event, this was just one of
    some six reasons the trial judge gave for rejecting the appellants evidence
    and was not essential to the finding of guilt.

[2]

The second ground of appeal concerns the trial judges failure to deal
    with all of the evidence touching on the recent fabrication issue.  However,
    the trial judge primarily relied upon the evidence of the social worker.  She
    was an independent witness whose evidence on this issue was absolutely clear
    and conclusively established that the complainant had complained at least about
    the most serious assault well before the divorce papers were served.

[3]

Accordingly, the appeal from conviction is dismissed.

M.
    Rosenberg J.A.

S.T.
    Goudge J.A.

Robert
    P. Armstrong 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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION:
R. v. E.T., 2011 ONCA
          86

DATE: 20110131

DOCKET: C51113

COURT OF APPEAL FOR ONTARIO

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E. T.

Appellant

Anthony De Marco, for the appellant

Tracy Kozlowski, for the respondent

Heard: January 21, 2011

On appeal from the conviction entered on May 9, 2009 and the
          sentence imposed on October 14, 2009 by Justice L. Ricchetti of the Superior
          Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of sexual assault, gross indecency and
    sexual exploitation of a young girl who was the child of his spouses cousin.   The
    acts began with kissing at age 8 and progressed over the years to sexual
    touching and oral sex at age 17 and 18.

[2]

The appellant appeals his conviction and sentence of three years.  The
    appellant submits that the trial judge erred with respect to the bases he
    described for rejecting the appellants evidence and in relying on the evidence
    of the cousins as corroborative of the complainant.

[3]

In our view, the trial judge was entitled to assess the evidence of the
    appellant and to make his findings of credibility based on that evidence.  He
    was entitled to make the interpretations that he did.  He was also entitled to
    accept the evidence of the two women cousins although it was denied by the
    appellant.

[4]

We see no error in the approach of the trial judge.  The appeal against
    conviction is dismissed.

[5]

The appellant seeks leave to appeal the sentence and appeals the
    sentence of three years.  He sought a conditional sentence at trial and renews
    that submission here.

[6]

The trial judge rejected a conditional sentence as unavailable.  He
    referred to the case law that puts the range for this type of sexual offence
    against a child by an adult in a position of trust where there was no
    penetration as a minimum of three years.

[7]

The trial judge referred to the aggravating and mitigating factors, the
    latter of which included the appellants age (then 68), no criminal record,
    strong community ties, an operating business, a new wife and young daughter,
    and some deficiency as a result of an earlier head injury.  The trial judge
    considered that these factors caused him to give a sentence at the lower end of
    the range of three years.

[8]

As the trial judge adverted to all the mitigating factors and made no
    error as to the appropriate range of sentence in these circumstances, we see no
    basis to interfere with the sentence imposed.  We also see no basis to
    interfere with the corollary orders that were imposed by the trial judge.

[9]

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


CITATION: R. v. Ferlisi, 2011 ONCA 14

DATE:  20110107

DOCKET: C50371

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Ferlisi

Appellant

Heather Pringle, for the appellant

Deborah Calderwood, for the respondent

Heard and released orally: January 4, 2011

On appeal from the sentence imposed by Justice J.E. Allen of
          the Ontario Court of Justice dated December 1, 2008.

ENDORSEMENT

[1]

In our view, the sentence imposed on this offender including the
    three-year period of probation was fit, indeed it may be described as lenient in
    all the circumstances.  The Mothers Day home invasion on his ex-wife in the
    presence of their two young children was horrific and terrorized his wife.  She
    feared for her life and the lives of her children.

[2]

The trial judges characterization of that event as one of stark
    horror for Mrs. Ferlisi was apt.  She was terrorized and remained fearful of
    him upon his release.  As the trial judge noted, Mrs. Ferlisi needs to be
    protected for as long as possible.

[3]

The fresh evidence discloses that while incarcerated, the appellant has
    taken advantage of some courses to address his anger management and addiction
    issues.  He is to be commended for his efforts, which we hope will continue.
    However, in our view, in all the circumstances, the sentence was a fit one and
    there is no basis upon which this court should interfere.

[4]

The appeal is dismissed.

M.
    J. Moldaver J.A.

K.
    Feldman J.A.

J.
    MacFarland J.A.


CITATION: R. v. Fulton, 2011
          ONCA 75

DATE:  20110127

DOCKET: C52045

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sonnie Fulton

Appellant

Rosalind Conway, for the appellant

Dayna Arron, for the respondent

Heard and released orally:  January 24, 2011

On appeal from the conviction entered by Justice Richard
          Lajoie of the Ontario Court of Justice dated January 15, 2010 and the
          sentence imposed on January 15, 2010.

ENDORSEMENT

[1]

There is no doubt that the appellant broke into the victims home and
    that his entry was unlawful.  The trial judge also found that the appellant
    committed the offence of mischief in the course of entering the house by
    causing damage to the window through which he entered and by disturbing some of
    the objects on a wall unit he pushed aside to gain access to the house.  The
    trial judge, however, never turned his mind to the appellants intention when
    the appellant entered the house and specifically whether at the time he entered
    he intended to commit an indictable offence in the home.  On the very unusual
    facts of this case, the appellants intention at the time he entered the home
    was a significant issue and one on which there was a clear factual dispute.

[2]

The Crown has convinced us that there was a factual basis upon which the
    trial judge could have found that the appellant intended, as he entered the
    home, to commit an indictable offence in that dwelling.  Unfortunately, the
    trial judge did not make the necessary findings of fact or address the question
    of the appellants intention when he broke into the home.  The evidence does
    not permit us to make the necessary factual findings.

[3]

The appeal is allowed and a new trial is ordered.  It is, of course, for
    the Crown to determine whether in all of the circumstances, a new trial is
    warranted.

Doherty J.A.

J.I. Laskin J.A.

E.E.
    Gillese J.A.


WARNING

An order restricting publication in this
    proceeding was made under s. 517 of the
Criminal Code
and continues
    to be in effect.  This section of the
Criminal Code
provides:

517.

(1) If the prosecutor or the accused intends to show
    cause under section 515, he or she shall so state to the justice and the
    justice may, and shall on application by the accused, before or at any time
    during the course of the proceedings under that section, make an order
    directing that the evidence taken, the information given or the representations
    made and the reasons, if any, given or to be given by the justice shall not be
    published in any document, or broadcast or transmitted in any way before such
    time as

(
a
) if a preliminary inquiry is held, the
    accused in respect of whom the proceedings are held is discharged; or

(
b
) if the accused in respect of whom the
    proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Every one who fails
    without lawful excuse, the proof of which lies on him, to comply with an order
    made under subsection (1) is guilty of an offence punishable on summary
    conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.

CITATION: R. v. Henry, 2011
          ONCA 79

DATE: 20110127

DOCKET: C52408

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Clayton Yohan Henry

Respondent

Andreea Baiasu, for the appellant

Paul Calarco, for the respondent

Heard:  January 26, 2011

On appeal from the sentence imposed
          by Justice Robert J.C. Moore of the Ontario Court of Justice dated June 16,
          2010.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge considered all of the
    relevant principles and clearly appreciated the seriousness of the offence.  He
    also had to consider the Gladue Report, the respondents personal
    circumstances and the respondents substantial progress in the two years
    between the offence and the sentencing.  Alcohol was the cause of the
    respondents conduct.  He has addressed that problem prior to sentencing.

[2]

We see no basis upon which to interfere
    with the trial judges disposition.  The respondents post-sentence progress
    over the last seven months tends to confirm the wisdom of the sentence
    imposed.  He continues to abstain from alcohol and further his personal
    rehabilitation.

[3]

Leave to appeal is granted and the appeal
    is dismissed.


CITATION:
R. v.
Kummer
, 2011 ONCA 39

DATE: 20110118

DOCKET: C52044

COURT OF APPEAL FOR ONTARIO

MacPherson, Simmons and Gillese JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Andrew Larry
Kummer

Appellant

Brian H. Greenspan and Seth P. Weinstein, for the appellant

Joanne Stuart, for the respondent

Heard: December 14, 2010

On appeal from the sentence imposed on April 30, 2010 by
          Justice J.S.
Skowronski
of the Ontario Court of
          Justice

MacPherson J.A.:

A.

OVERVIEW

[1]

In March of 2009, the appellant, driving with a blood
    alcohol concentration more than twice the legal limit, caused an accident
    resulting in three deaths. He pled guilty to ten charges arising from this
    incident and was sentenced to eight years imprisonment. He appeals from sentence.

B.

FACTS

(1)

The parties and the accident

[2]

On the evening of Friday, March 13, 2009, the appellant
    was driving his pick-up truck in London, Ontario with two passengers, his
    friends David Marshall and Randy
Psaila
. The
    appellant had been drinking prior to driving and continued to do so while on
    the road. His blood alcohol level would be found to be over twice the legal
    limit, indicating that he had consumed the equivalent of 15 to 20 beers. The
    appellant was driving at an extreme speed, 122 km/h where the posted speed
    limit was 70 km/h.

[3]

Jason Berube was on the road at the same time. He was
    returning from a London Knights hockey game with his son, Mason, and family
    friend David
Tinus
, both 12 years old. They had left
    the game early to beat the traffic.

[4]

Mr. Berube and the appellant approached the same
    intersection at the same time. Mr. Berube had the right of way; the appellant
    faced a stop sign. As Mr. Berube entered the intersection, it became clear that
    the appellants vehicle was not going to stop. He slammed on the brakes. The
    appellant did the same. Nevertheless, the appellants vehicle struck the
    passenger side of Mr.
Berubes
pick-up truck travelling,
    at the time of the collision, at a speed of 83 km/h. Both vehicles came to rest
    in the roadside ditch. Both almost immediately caught fire.

[5]

Mr.
Berube,
initially trapped
    in the front seat and now suffering from two collapsed lungs, a shattered hip,
    a broken femur, several cracked and broken ribs and a multitude of cuts,
    scrapes and bruises, eventually managed to pull himself free from the wreckage.
    Despite his injuries, he immediately began to try to rescue the two boys still
    trapped in the burning truck before being pulled from the wreckage by two
    civilian on-lookers.

[6]

In his victim impact statement, Mr. Berube remembered
    struggling against his rescuers as they dragged him away from the burning truck
    and the two boys still trapped inside. He described at one point breaking free
    of their grasp and attempting to return to his vehicle, only to find himself
    again being pulled away. Mr. Berube recalled watching the truck explode and
    described the vision of his 12-year-old son Mason engulfed in flames as his
    last memory of his son.

[7]

The appellant and one of his passengers, Randy
Psaila
, also managed to survive the collision. His other
    passenger, 26-year-old David Marshall, succumbed to the fire along with Mason
    Berube and David
Tinus
.

(2)

The Sentence

[8]

The appellant pled guilty to ten charges: three counts
    of impaired driving causing death contrary to s.255(3) of the
Criminal Code
, three counts of dangerous
    driving causing death  contrary to
    s.249(4), two counts of impaired driving causing bodily harm contrary to
    s.255(2), and two counts of dangerous driving causing bodily harm contrary to
    s.249(3).

[9]

The sentencing hearing was marked by victim impact
    statements from Mr. Berube and the family and friends of the three young people
    killed in the collision. These statements offered some insight into the
    enormity of the tragedy caused by the appellant. They described how three
    families had been left devastated by the loss of some of their youngest members,
    how relatives and friends continue to struggle to come to terms with the deaths
    of these young people, and how a father who could not stop questioning his own
    role in these events, continued, more than a year after the collision, to
    return to the intersection where he had last seen his son to reflect on what
    had been lost.

[10]

The sentencing
    judge was also presented with 22 letters written in support of the appellant.
    These letters described the impact of these events on the
Kummer
family and explain that these actions were entirely out of character for the
    appellant, whom they described as kind, caring and generous.

[11]

Balancing these competing factors was an important part
    of the challenge facing the sentencing judge in arriving at an appropriate
    sentence. In detailed reasons, he identified the extent of the devastation as
    a crucial aggravating factor, alongside the appellants level of intoxication,
    the speed at which he was driving, and his driving record. At the same time, he
    cited the appellants loving family and network of supportive friends and his
    good character as mitigating factors, in addition to his guilty plea, his age
    and his lack of a criminal record.

[12]

Turning to the question of proportionality as directed
    in
R. v. Priest
(1996), 30 O.R. (3d)
    538 (C.A.), the sentencing judge concluded that this was an extremely serious
    offence, that the appellants culpability was high, and that the harm
    resulting, as evidenced by the victim impact statements, was of the highest
    order. After citing the long-recognized importance of deterrence in impaired
    driving cases, the sentencing judge imposed eight-year concurrent sentences for
    each of the dangerous and impaired driving causing death offences and four-year
    concurrent sentences for each of the dangerous and impaired driving causing
    bodily harm offences, along with a 12-year driving prohibition.

C.

ISSUE

[13]

The appellant submits that the sentence imposed is
    outside the range established by this court for these offences for first
    offenders and that the sentencing judge overemphasized the harm caused by the
    offences in arriving at an eight-year sentence.

D.

ANALYSIS

[14]

Sentencing decisions are entitled to considerable
    deference: see
R. v. Shropshire
, [1995]
    4 S.C.R. 227 at
para
. 46, and
R. v. M
.(
C.A.
), [1996] 1 S.C.R. 500 at
paras
. 90-91.
The
justification
    for this deferential standard of review was recently explained by Doherty J.A.
    in
R. v.
Ramage
(2010), 265 O.A.C. 158 (C.A.), at
paras
. 70-72:

Appellate deference to the trial judges sentencing
    decision makes good sense. Sentencing is a fact-specific exercise of judicial
    discretion. It is anything but an exact science. In the vast majority of cases,
    there is no single sentence that is clearly preferable to all others. Instead,
    there is a range of reasonable options from which the trial judge must make his
    or her selection. That selection is driven by the judges evaluation of the
    sentence that best reflects his or her assessment of the combined effect of the
    many variables inevitably at play when imposing a sentence. Absent the
    discipline of deference, sentence appeals would invite the appellate court to
    repeat the same exercise performed by the trial judge, with no realistic
    prospect that the appellate court would arrive at a more appropriate sentence.
    Appellate repetition of the exercise of judicial discretion by the trial judge,
    without any reason to think that the second effort will improve upon the
    results of the first, is a misuse of judicial resources. The exercise also
    delays the final resolution of the criminal process, without any countervailing
    benefit to the process.

A deferential standard of review on sentence
    appeals also recognizes that a trial judge has an advantage over the appellate
    court when it comes to balancing the competing interests at play in sentencing.
    The trial judge gains an appreciation of the relevant events and an insight
    into the participants in those events  particularly the accused  that cannot
    be revealed by appellate review of a transcript....

Deference is justified for a third reason. The
    sentencing judge represents and speaks for the community that has suffered the
    consequences of the crime. He or she is much better placed to determine the
    sentence needed to adequately protect the community than is an appellate court
    sitting at a distant place often years removed from the relevant events.

[15]

As the dangers of impaired driving have become increasingly
    evident and as this problem has continued to demonstrate its intractability,
    the sentences imposed where impaired driving results in death have increased. Last
    year, this court upheld sentences of four and five years for such offences in
R. v.
Ramage
and
R. v.
Junkert
,
    2010 ONCA 549.

[16]

In
Ramage
, the appellant, who had a blood alcohol concentration
    of between .229 and .274, drove across a busy, four-lane road into oncoming
    traffic. He struck one car, in which no one was hurt, and then collided with
    another. The appellants passenger was killed and the driver of the other
    vehicle was injured. The appellant in
Ramage
, a first-time offender, was described by the
    sentencing judge as an outstanding member of the community who experienced
    real and deep remorse for his crime. He was convicted of impaired driving
    causing death, impaired driving causing bodily harm, dangerous driving causing
    death and dangerous driving causing bodily harm and sentenced to four years
    imprisonment.

[17]

The appellant in
Junkert
, while driving at least
    90 km/h where the posted speed limit was 50 km/h, lost control of his vehicle
    and drove on to the sidewalk where he struck and killed a jogger. At the time
    of the accident, the appellants blood alcohol level was between .130 and .170.
    The appellant in
Junkert
was also a first-time offender.

[18]

The sentence imposed on the appellant is higher than
    those levied in
Ramage

and

Junkert
. For the appellant, this difference
    provides the tipping point in his argument. The appellant candidly and fairly
    acknowledges that the sentencing judge was aware of and considered the general principles
    of sentencing, fully addressed the relevant aggravating and mitigating factors,
    and engaged in the proportionality analysis mandated by
Priest
. The appellants submission, summarized crisply near the end
    of his oral argument, is the number is too high... an eight-year sentence here
    is outside the four to five-year range in
Ramage

and
Junkert
.

[19]

I do not accept this submission.
Ramage

and
Junkert
do not and cannot cap the sentences available for this kind of offence. This is
    so for three reasons.

[20]

First, imposing such a cap would contradict the
Criminal Code
and defy the will of
    Parliament. The maximum sentence for the offence of impaired driving causing
    death is life imprisonment. It must remain within the realm of possibility that
    a life sentence could be imposed for this crime. Absent a determination that
    the maximum penalty is unconstitutional, this court is not entitled to lower
    the maximum penalty any more than it is entitled to raise it.

[21]

Second, in
Junkert
itself this court cautioned against thinking
    formulaically about sentence ranges in drinking and driving cases involving
    death. As expressed by OConnor A.C.J.O. at
para
. 40:

I begin by noting that courts should be cautious in
    rigidly applying a range of sentences in cases such as this, involving
    impaired driving causing death. In
R. v.
Heaslip

(2001), 10 M.V.R. (4
th
) 220, 49
    W.C.B. (2d) 347 (Ont. C.A.), in dismissing a Crown appeal from a sentence for
    two counts of impaired driving causing bodily harm, this court said:

In
R. v. L
.(
J.)
[(2000), 147 C.C.C. (3d) 2199 (Ont. C.A.)], this Court
    also recognized that cases involving drinking and driving did not demonstrate a
    particular range of sentencing but rather that the sentences were driven by the
    almost infinite variety of circumstances in which this offence can be
    committed.

[22]

Third, there is precedent for the imposition of
    sentences more severe than those found in
Ramage

and
Junkert
in impaired driving causing death cases. In
R.
    v. Wood
(2005), 197 O.A.C. 43 (C.A.), the appellant, who had an extensive
    criminal record, was sentenced to nine years imprisonment after killing three
    people and injuring one while driving without a license with a blood alcohol
    level nearly twice the legal limit. In
R.
    v.
Mascarenhas
(2002), 60 O.R. (3d) 465 (C.A.), a
    nine-year sentence was substituted by this court for one of twelve years. The
    appellant in that case struck and killed two pedestrians while driving with a
    blood alcohol level between .339 and .353. The appellant had three previous
    impaired driving convictions, and at the time of the offence was on bail for a
    drinking and driving offence, had a suspended license, and was on a
    recognizance that prohibited him from drinking and driving.

[23]

There is good reason, in this case, to move beyond the
    sentences imposed and affirmed on appeal in
Ramage

and
Junkert
.
    First and foremost, while the harm caused in each of these cases was
    significant, the results of the appellants actions here were particularly
    catastrophic. The appellants in
Ramage

and
Junkert
each
    killed one person.

Here, three young
    lives were lost in the most horrifying of circumstances. The impact of this
    tragedy on three families and, notably, the physical and emotional toll it has
    taken on Mr. Berube, must be recognized. The appellant must be held accountable
    for the consequences of his actions.

[24]

This is not to suggest that the appellants character
    and background are irrelevant, even in the face of such monumental tragedy. The
    appellants good character was appropriately considered a mitigating factor by
    the sentencing judge. The fact that he does not have the kind of record seen in
Wood
or
Mascarenhas
distinguishes this
    case from those and does call for a reduced sentence.

[25]

However, the appellants circumstances are also
    different from those seen in
Ramage

and
Junkert
. The
    appellant did not have a criminal record and he cannot be treated as having
    one. His driving record, however, is significant. In October of 2007, the
    appellant was convicted of careless driving and failing to report an accident
    in relation to an incident in which, after consuming three drinks and allergy
    medication, he drove onto the runway at the London airport and jumped approximately
    60 metres through airport antennas. He then left his car, walked through the
    airport terminal, and took a cab home.  The
    incident caused $127, 000 in damage to the vehicle and the airport.

[26]

The 2007 incident should have served as a wake-up
    call to the appellant. It should have impressed upon him the danger he posed
    to himself and others when driving in an altered state. Clearly it did not.
    Following the 2007 incident, the appellants parents spoke with him about the
    dangers of drinking and driving. This also obviously had little effect on him.
    The appellant received one final warning just
minutes
before the fatal crash. His friend and passenger, Randy
Psaila
,
    warned him to slow down. Again, tragically, this warning had no impact on the
    appellant. While it would be difficult to believe that any person in Canada
    could be ignorant of the dangers of drinking and driving, the appellant had
    particular reason to be aware of the risk he posed in doing so. His decision to
    disregard that risk is an important factor that can and should be considered in
    determining an appropriate sentence.

[27]

While, again, there are important distinctions between
    the appellant and the offender in
R. v.
    Wood
, the aggravating factors listed in
para
. 25 of
Wood
reveal a higher degree of
    similarity between the two cases than may at first be apparent:

This was a particularly serious example of criminal
    negligence. As indicated, the appellants ability to drive was impaired and he
    had a high blood alcohol level. He ignored the advice of his friend not to
    drive. He drove without a licence the wrong way on a high speed 400 series
    highway. He ignored the attempts of other motorists to warn him. The appellant
    had a serious criminal record, albeit not for driving offences, that includes
    prior penitentiary sentences and convictions for crimes of violence. He killed
    three people and caused serious and permanent injuries to another. His conduct
    has devastated the families of the victims and the survivor. A sentence of nine
    years was appropriate.

[28]

Here, as in
Wood
,
    the appellant had a very high blood alcohol level. As in
Wood
, he ignored the advice of his friend to slow down. While the
    appellant did have a valid licence, he also drove in an extremely reckless
    manner, reaching speeds of 52 km/h over the posted speed limit. The appellant
    did not have a criminal record, but he did have a highly relevant driving
    record which, coupled with his parents warnings, should have left him very
    familiar with the risk he posed to himself and others when driving under the
    influence of alcohol. Finally, as in
Wood
,
    the appellant killed three people and seriously injured another, leaving three
    families irreparably damaged. Moreover, as I have said, in this case three
    young lives were lost in the most horrifying of circumstances and the sentence
    imposed must hold the appellant accountable for the consequences of his actions.

[29]

In the end, the sentence imposed by the sentencing
    judge was higher than those imposed in
Ramage
and
Junkert
but lower than the sentences in
Mascarenhas

and
Wood
. In the context
    of comprehensive reasons demonstrating full consideration of the general principles
    of sentencing, the relevant aggravating and mitigating circumstances, and the
    proportionality analysis, I cannot see any error in principle in those reasons.
    Nor is the eight-year sentence manifestly unfit.

E.

DISPOSITION

[30]

I would grant leave to appeal the sentence and would
    dismiss the appeal from sentence.

RELEASED:  JAN 18 2011
    (JCM)

J. C. MacPherson J.A.

I agree. J. M. Simmons J.A.

I agree. E. E. Gillese J.A.