COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marki, 2021 ONCA 83

DATE:  20210209

DOCKET: C67416

MacPherson, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Benjamin Ronald Marki

Appellant

Delmar Doucette and Cara Barbisan, for
    the appellant

Amy Alyea, for the respondent

Heard: January 20, 2021 by video conference

On appeal from the convictions entered
    by Justice Terrence A. Platana of the Superior Court of Justice on April 20,
    2018, sitting with a jury.

MacPherson J.A.:

A.

Overview

[1]

Wilfred Pott and Anne Chuchmuch were a common
    law couple with whom Benjamin Marki lived for about three years. They lived
    together as a family in a house in Thunder Bay.

[2]

On December 27, 2015, Pott and Chuchmuch were
    stabbed to death in their home. Gasoline was spread and a fire was set in the
    home. Marki was present just outside the home when the firefighters and police
    arrived.

[3]

On January 15, 2016, Marki was charged with two
    counts of second degree murder, one count of arson, and one count of
    interfering with human remains (burning). It was agreed at trial that one
    person committed all the offences and the only live issue was the identity of
    that person.

[4]

On April 20, 2018, the jury found Marki guilty
    on all counts. On August 29, 2018, Platana J. imposed life sentences with no
    eligibility for parole for 20 years on the murder charges and concurrent time
    served sentences on the other charges.

[5]

On September 12, 2019, the appellant filed a notice
    of appeal challenging the convictions. He does not appeal the sentence (notice of
    abandonment filed October 5, 2020).

B.

facts

(1)

The parties and events

[6]

In 2009-2010, Pott and Chuchmuch moved from
    southern Ontario to Thunder Bay to make a fresh start. In 2012-2013, Marki
    moved to Thunder Bay and resided with the couple. Pott and Chuchmuch treated
    Marki as a son; Marki called them dad and mom.

[7]

During the eight months prior to December 27,
    2015, there were two fires at the family home. One, to which firefighters
    responded, resulted in a wooden shed in the backyard being destroyed. The other
    involved a boat in the driveway.

[8]

Robert Guitard lived in a home whose backyard
    abutted the backyard of the home where Marki lived with Pott and Chuchmuch. On
    the night of December 27, 2015, he was at home when he noticed flickering
    light. When he looked out his window, he saw flames and smoke coming out the
    back door of the home where Pott and Chuchmuch lived. He told his wife to call
    911, which she did at 10:23 p.m. He then went outside to move his truck. When
    he did so, he saw Marki frantically pounding on the back door of the burning
    home, trying to open it, and calling out is anybody in there and let me in.
    Guitard knew that opening a door during a fire can be dangerous so he told
    Marki to stop trying to enter.

[9]

When the firefighters arrived, they heard
    Markis voice in the backyard. When they saw that he was close to the fire,
    they coaxed him to move away from the house and come to the front.

[10]

According to fireman Jim Gowenlock, Marki told
    him that he lived in the house, had been out walking his two dogs, had returned
    to the house to find it on fire, and that there might be people inside.

[11]

Two other firefighters entered the house through
    the front door. Marki tried to enter as well. He had one foot over the
    threshold before Constable Braydon Beck, the first police officer on the scene,
    pulled him back out of the house. Beck took Marki to Guitards garage.

[12]

When the firefighters entered the house, they
    found the bodies of Pott and Chuchmuch. Chuchmuch had at least 40 stab wounds
    all over her body, with 12 being categorized by a pathologist as lethal or
    potentially lethal. Pott had bruises, abrasions and stab wounds, one of which
    caused his death. The pathologist determined that both victims died prior to
    the fire.

[13]

The fire investigator concluded that gasoline
    had intentionally been introduced and the fire deliberately set.

[14]

After the police and Marki left Guitards
    garage, Guitard saw two folded up knives on the floorboard of his snowmobile.
    He called the police back and the police seized the knives. Forensic testing
    established that there was blood on one of the knives. The blood swab provided
    a mixed profile of two people, the major contributor being a profile that could
    not exclude Chuchmuch and the other one being a profile that could not exclude
    Pott.

[15]

Forensic testing also established that there was
    gasoline and blood on Markis shoes.

[16]

Constable Beck interviewed Marki in Guitards
    garage from 10:49 p.m. to 12:03 a.m. According to Constable Becks paraphrase
    notes, Marki said: he went to the local First Nations reserve and bought smokes
    and then started drinking; returned home and saw that Pott and Chuchmuch were
    in the kitchen making pies mid-afternoon; kept to himself in his room for most
    of the afternoon; did not eat supper with the others; took the dogs for a walk;
    brought the dogs back but did not go into the house; went to a bus stop that
    was a two minute walk away; waited about six to eight minutes for a bus; heard
    sirens and saw flashing lights; suspected from the earlier fires that the
    emergency vehicles might be going to his house; ran back to the house; kicked
    the front door and tried to enter the house, but was knocked back by smoke;
    tried to kick the back door; was told by Guitard to get away from the door;
    and, at Guitards suggestion, handed one of the dogs over the fence to him.

[17]

At the end of the interview, after more than an
    hour of questioning, Marki said, in what Constable Beck said was a verbatim
    statement: Im going to be arrested for this, I know it. Might as well arrest
    me now. I know how this works. Im the most eligible to go to jail. I should
    have jumped on the bus and took off.

(2)

The trial

[18]

The trial lasted six days. Marki did not testify
    and called no evidence. The jury deliberated for 12 hours over two days. The
    jury found Marki guilty on all four charges. He appeals from the convictions.

C.

issues

[19]

The appellant raises three issues on the appeal:

1.

Did the trial judge err in failing to give a
W.(D.)
instruction with respect to the statements the appellant made to a firefighter,
    a police officer, and one of Potts friends?

2.

Did the trial judge err in failing to give a
    corrective instruction in regard to purported after-the-fact conduct?

3.

Did the trial judge improperly instruct the jury
    on the defences failure to call evidence?

D.

analysis

(1)

The
W.(D.)
issue

[20]

It was common ground at trial that one person
    committed all the offences and that the only live issue was the identity of
    that person. The appellant made three statements to firefighter Gowenlock,
    Constable Beck and Potts friend John Zahn. Although they were not recorded and
    there were differences in detail, there was a common thread in all three
    conversations  the appellant stated that he had been out and when he came back
    to the house it was on fire. Accordingly, the appellant made three exculpatory
    statements that he was not the person who had committed the four crimes,
    including arson and murder.

[21]

During the pre-charge conference, the trial
    judge and counsel discussed elements of the final instructions that were
    specific to the facts of the case. The trial judge then ran down the checklist
    of final instructions found in
Watts

Manual of Criminal Jury
    Instructions
to see what other instructions might be given. One of the
    potential instructions in the checklist was the
W.(D.)
instruction.
    When it was discussed, the following exchange took place:

[THE CROWN]: Page 10 [of an early draft
    charge], testimony of the person charged, the
W.D.
instruction.

THE COURT: Oh no, I  Ive clearly taken that
    out.

Defence counsel did not comment on
    this exchange.

[22]

The appellant submits that a full and proper
W.(D.)
instruction specifically related to the appellants three exculpatory statements
    was required; the trial judge had a duty, regardless of the position or silence
    of counsel, to give this fundamental instruction.

[23]

The
W.(D.)
instruction arose in a case
    where the accused testified:
R. v. W.(D.)
, [1991] 1 S.C.R. 742. This
    was manifest in the actual language of the famous tripartite formulation of the
    instruction which refers explicitly to the testimony of the accused. However,
    subsequent case law has made it clear that the principles underlying
W.(D.)
are not confined merely to cases where an accused testifies and their evidence
    conflicts with that of the Crown witnesses. Thus, as expressed by Blair J.A. in
R. v. B.D.
, 2011 ONCA 51, at para 114:

Where, on a vital issue,
    there are credibility findings to be made
between conflicting evidence called by the defence or
arising
    out of evidence favourable to the defence in the Crown's case
, the trial
    judge must relate the concept of reasonable doubt to those credibility findings.
    [Emphasis added.]

[24]

Although the trial judge spoke at length and
    properly about the concept of reasonable doubt, the appellant submits that he
    did not link it sufficiently to some of the evidence favourable to the defence
    in the Crowns case.

[25]

I do not accept this submission. Even though
W.(D.)
considerations may be in play in a case where the accused does not testify or
    call evidence, there is no explicit formula that must be provided. Appellate
    review should focus on whether the trial judge adequately explained the facts
    and law to the jury on a functional level. What is required is that the jury
    understand the burden and standard of proof and their application.

[26]

In my view, that happened in this case. The
    trial judges jury charge relating to the presumption of innocence and the beyond
    reasonable doubt standard of proof was impeccable.

[27]

Importantly, the trial judge also gave the jury
    a good roadmap for assessing the appellants statements to witnesses, including
    firefighter Gowenlock, Constable Beck and Mr. Zahn. As requested by defence
    counsel, the jury was given the model instruction on out-of-court statements by
    an accused. The trial judge instructed the jury:

Some or all of the statements may help
    Benjamin Marki in his defence. You must consider those remarks that may help Benjamin
    Marki along with all of the other evidence, even if you do not believe them, unless
    you are satisfied that he did not make them. In other words, you must consider
    all the remarks that might help Benjamin Marki even if you cannot decide
    whether he said them or whether you believe them. If you decide he made a
    remark that may help him in his defence or if you cannot decide whether he made
    it, you will consider that statement along with the rest of the evidence in
    deciding whether you have a reasonable doubt about Benjamin Markis guilt.

[28]

For these reasons, I do not accept the
    appellants submissions on the first issue.

(2)

The after-the-fact conduct issue

[29]

A few days after the homicide, but before the
    appellant was charged, he had coffee with Brian Walker, a good friend of Potts.
    Walker testified that within days of Markis arrest on January 15, 2016, Marki
    called from the district jail to ask that Walker and his wife change their
    statements to the police. However, Walkers statement was not given to the
    Crown until March 2016 and it was disclosed to the defence sometime after that.
    Walkers wife never gave a statement.

[30]

During his closing address to the jury, Crown
    counsel said:

And [Marki] knows something about what the
    evidence is before he ever gets the disclosure. And so when he calls and asks
    someone to change their story and says, Ive seen your statement, thats a
    lie. Its Mr. Markis lie. We know he didnt see Mr. Walkers statement because
    he didnt have it yet and we know he didnt see Mr. Walkers wifes statement
    because she didnt give one. But why does he call and ask them to change their
    stories? Because he knows hes guilty and he knows and has every expectation
    that theyre going to say something thats going to implicate him.

[31]

Defence counsel did not object to this aspect of
    the Crown closing address. Instead he succinctly, and accurately, addressed it
    in his own closing address, saying the situation could not have taken place
    because the appellant could not have seen the statement. Moreover, defence
    counsel did not ask the trial judge for a corrective instruction on this point.

[32]

In these circumstances, I regard this as a very
    minor point and would not give effect to it as a basis for overturning the
    jurys verdict.

(3)

The failure to call evidence issue

[33]

In his jury instructions, the trial judge told
    the jury:

You did not hear any evidence offered by the
    defence. I remind you again that the burden of proof is on the Crown. There is
    no requirement of the accused person to call any evidence. You should not
    conclude
solely
on the basis of his decision not
    to call evidence or to testify himself as an acknowledgment of guilt. [Emphasis
    added.]

[34]

The appellant submits that the use of the word
    solely in this instruction had the effect of telling the jury that they could
    rely on the appellants failure to testify or to call evidence as
a
basis, even if not the
sole
basis, in determining guilt.

[35]

I am not persuaded by this submission. In
R.
    v. Araya
, 2015 SCC 11, Rothstein J. said, at para. 52:

Parsing the language in one particular
    sentence to determine whether it was sufficient to warn of an impermissible
    line of reasoning, without taking into consideration the greater context of the
    jury instructions and the trial itself, represents the kind of dissection and
    minute scrutiny this Court warned against in
Cooper
.

[36]

There was no risk, in the circumstances of this
    case, that the jury would have treated the appellants failure to testify as
    evidence of his guilt. The jury instructions, as a whole, tied the presumption
    of innocence to the burden of proof in a manner that spoke almost directly to
    the irrelevance of the appellant's failure to testify. It properly conveyed that
    the evidence of the Crown stood alone and must be evaluated on that basis. The
    instruction did not invite the inference that the appellant chose not to
    testify to hide his guilt. When read in the context of the address of counsel
    and the jury charge as a whole, the jury would have understood that the Crown
    could prove the appellants guilt only on the evidence and that the appellants
    silence at trial did not constitute evidence and therefore could not be used to
    infer guilt.

E.

disposition

[37]

I would dismiss the appeal.

Released: JCM FEB 09 2021

J.C.
    MacPherson J.A.

I
    agree. Gary Trotter J.A.

I
    agree. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R v. Marshall, 2021 ONCA 28

DATE: 20210118

DOCKET: C65380, C65381 & C66233

Strathy C.J.O., Gillese and Watt
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bevon Marshall

Appellant

Jeffery Couse, for the appellant

Andrew Hotke, for the respondent

Heard: July 23, 2020 by videoconference

On appeal from the
    sentences imposed on January 29, 2016, March 23, 2016 and June 29, 2018 by Justice
    Brian P. OMarra, Justice Robert F. Goldstein and Justice Michael G. Quigley, respectively,
    of the Superior Court of Justice.

Watt J.A.:

[1]

Bevon Marshall (the appellant) is in custody.
    His warrant expiry date is October 28, 2033. Then, he will begin a decade-long period
    of long-term supervision which will end on October 27, 2043 when the appellant is
    53 years old. He will have spent more than three decades under state
    supervision.

[2]

The appellant asks us to substantially reduce both
    his term of imprisonment and the length of his long-term supervision order (LTSO).

[3]

The appellants sentence is an amalgam of three
    sentences imposed on three separate occasions by three different judges on
    convictions for a variety of offences committed over a period of nearly six
    years. The LTSO is part of a composite sentence levied after a finding that the
    appellant is a long-term offender (LTO).

[4]

The reasons that follow explain why I would
    decline the appellants entreaty to intervene. I am not persuaded that the
    sentences of imprisonment imposed, whether considered individually or
    cumulatively, offend the principle of totality as the appellant urges. Nor am I
    convinced that the length of the LTSO fails to give proper effect to its
    purposes of protecting the public and rehabilitating and reintegrating the appellant
    into the community.

The Standard of Review

[5]

Our mandate as a reviewing court is to consider
    the fitness of the individual and cumulative sentences imposed on the
    appellant. We do so mindful of the scope of our authority to intervene in the
    profoundly subjective process that is sentencing those convicted of criminal
    offences. In determining a fit sentence, the sentencing judge must consider a
    complexity of factors including the nature of the offence and the personal
    characteristics of the offender. As well, the sentencing judge must weigh the
    normative principles Parliament has enshrined in the
Criminal Code
; the
    sentencing objectives in s. 718, the fundamental principle of proportionality
    in s. 718.1, the aggravating and mitigating factors, as well as the principles
    of totality and restraint in s. 718.2:
R. v. M. (L.)
, 2008 SCC 31,
    [2008] 2 S.C.R. 163, at para. 17.

[6]

Proportionality is the cardinal principle
    that governs our review of the fitness of a sentence imposed on an offender. It
    requires that every sentence be proportionate not only to the gravity of the
    offence, but also to the degree of responsibility of the offender who committed
    that offence:
Criminal Code
,
s.
    718.1.

[7]

The severity of a sentence depends not only upon
    the seriousness of the consequences of a crime, but also on the moral
    blameworthiness of the offender. The more serious the crime and its
    consequences, or the greater the offenders degree of responsibility for that
    crime, the heavier the sentence will be:
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, at para. 12.

[8]

Where consecutive sentences are concerned, the
    fundamental principle of proportionality expresses itself through the more
    particular form of the totality principle. In brief, the totality principle requires
    a sentencing judge who orders an offender to serve consecutive sentences for
    multiple offences to ensure that the cumulative sentence imposed does not
    exceed the overall culpability of the offender:
R. v. M. (C.A.)
, [1996]
    1 S.C.R. 500, at para. 42.

[9]

The principle of totality also applies where a
    sentencing judge imposes a sentence on an offender who, at the time of
    sentencing, is already serving a sentence for a prior conviction. In this case,
    the influence of the totality principle is tempered by the continuing
    criminality of the offender:
R. v. Johnson
, 2012 ONCA 339, 285 C.C.C.
    (3d) at paras. 19, 21-24.

[10]

Appellate intervention in a sentence imposed at
    trial is justified only where the sentencing judge has erred in principle,
    failed to consider a relevant factor, or erroneously considered an aggravating
    or mitigating factor and the error has had an impact on the sentence actually
    imposed:
Lacasse
, at paras. 43-44.

[11]

The weight assigned to aggravating or mitigating
    factors lies within the discretion of the sentencing judge. The decision to
    weigh these factors in a particular way is not itself an error that permits
    appellate intervention unless the weighing is unreasonable. Nor is an appellate
    court entitled to intervene because a majority of its members would have
    weighed those same factors differently. After all, this is what the exercise of
    discretion is all about:
Lacasse
, at paras. 49-50, 78.

[12]

Similarly, a choice of a sentencing range, or of
    a category within a range, also falls within the discretion of the sentencing
    judge and, on its own, cannot constitute a reviewable error. It follows that an
    appellate court has no authority to intervene except in those cases where the
    sentence imposed is demonstrably unfit:
Lacasse
, at para. 51.

[13]

A sentence is demonstrably unfit if it
    constitutes an unreasonable departure from the fundamental principle of sentencing
     proportionality.

The Sentences Imposed

[14]

With these principles in mind, I turn to the
    sentences imposed. I begin with a sentence the fitness of which is not
    challenged here, but which is nonetheless of importance to the sentences that
    are under review.

The Sentence of September 1, 2015

[15]

After a trial before Code J. sitting without a
    jury, the appellant was found guilty of conspiracy to commit robbery. The
    offence occurred on May 8, 2013.

[16]

During an interception of the appellants
    private communications in May 2013 in an unrelated investigation, police
    learned that the appellant and his co-accused planned to rob a man of $15,000. Telephone
    calls and text messages disclosed attempts by the appellant to obtain a weapon
    to help carry out the plan.

[17]

Despite the appellants enthusiastic pursuit of
    a firearm, his efforts came to naught. No gun. The victim vanished. And no
    robbery.

[18]

The appellant was 22 years old at the time of
    this offence. When sentenced on September 1, 2015, the appellant was 25. He had
    a youth and adult record which included assault, robbery, failure to comply
    with a probation order, two firearms offences including breach of a firearms
    prohibition, and a drug offence. Despite his comparative youth, the appellant
    had logged substantial time in custody, much of it prior to sentencing for his
    various convictions.

[19]

The appellant had not completed high school. He
    had no significant employment history and, at best, limited rehabilitative
    potential.

[20]

In his reasons for sentence, Code J. considered
    as aggravating the appellants criminal record, his apparent enthusiasm and
    excitement at the prospect of committing robbery, and a casual nonchalance,
    acceptance of, and commitment to violent crime.

[21]

In mitigation, Code J. took into account the
    unsophisticated nature of the offence, which he characterized as a crime of
    opportunity of brief duration and ultimate failure. He also considered the appellants
    youth and his responsible conduct throughout the trial.

[22]

Code J. imposed a sentence of three and one-half
    years on the appellant. From this sentence, he deducted 40 months as credit for
    the time the appellant had been detained in pre-sentence custody. As a result,
    the appellant was required to serve a further period of two months in custody.

[23]

The appellant does not challenge this sentence on
    appeal.

The Sentence of January 29, 2016

[24]

On October 1, 2015, a jury found the appellant
    guilty of robbery and of discharging a firearm with intent to endanger life.
    The appellant was found not guilty of attempted murder.

The Circumstances of the Offence

[25]

On February 25, 2009, four people participated
    in a robbery at a pawn shop. Each had a role. One drove the others to and from
    the pawn shop. Another entered the shop, looked around to ensure that no
    customers were there, and left to advise the remaining two. The final two entered
    the pawn shop. Each was masked and armed. The appellant carried a baseball bat.
    The other man carried a gun.

[26]

The store operator and an employee were alone in
    the store when the robbers entered. Under threat, the robbers forced the store
    occupants from one place to another. The robbers smashed display cases and
    gathered up jewelry and other property. The store operator resisted and engaged
    the intruders in a protracted and violent struggle. During this altercation,
    the store operator kicked the gun out of the robbers hand. The appellant
    picked up the gun and fired a shot as he continued his struggle with the store
    operator. The shot did not hit anyone.

[27]

The operator managed to pull the appellants
    hoodie over his head. When the operator fell to the ground, the appellant
    pulled the hoodie off his head and fired a second shot at the operator. The
    shot struck the operator in the abdomen. The appellant and his partner fled
    from the pawn shop and were driven away by their accomplice.

[28]

The pawn shop operator was seriously injured by
    the gun shot. He required surgery and a lengthy period of rehabilitation. At
    the sentencing hearing about seven years later, his victim impact statement recounted
    in detail the physical, emotional, and financial consequences of the event.

[29]

Police did not learn of the appellants
    involvement in these offences until they intercepted his telephone calls and
    text messages under an authorization granted in relation to another
    investigation. The appellant was arrested in June 2013.

The Circumstances of the Offender

[30]

The appellant was 18 years old at the time of
    the pawn shop robbery and 25 at the time he was sentenced. He grew up in a good
    and supportive family home. He did not complete high school. His employment
    record consisted of part-time jobs. He was involved in an intermittent
    relationship with a young woman and had no dependants. During his time in pre-trial
    custody, he had taken courses to upgrade his education to high school
    equivalency.

[31]

At the time of sentencing, the appellant had
    both a youth and adult criminal record. Included were convictions for firearm
    offences and robbery. He had been placed on probation for the robbery
    conviction about one month before he participated in the pawn shop robbery and
    shooting. At the time of this offence, the appellant was also subject to a
    weapons prohibition. He was not serving an imposed sentence when he appeared
    for sentencing on the pawn shop offences.

The Sentence Imposed

[32]

The trial judge imposed a sentence of
    imprisonment of 11.5 years, less 3 months for time spent in pre-sentence
    custody, which the judge deducted from the sentence of 5.5 years for robbery
    involving a firearm. The sentence for the discharge firearm offence was 6 years
    to be served consecutively to the sentence for robbery.

The Arguments on Appeal

[33]

The appellant asks that we reduce the sentence
    on the pawn shop robbery and shooting to a sentence of imprisonment of seven
    and one-half years. To accomplish this, he suggests that we impose a sentence
    of seven and one-half years on each count with the sentences being served
    concurrently. The appellant submits that the trial judge erred in failing to
    give proper effect to the principle of totality.

[34]

The appellant concedes that the sentence imposed
    falls within the range appropriate for the offences of which he was convicted.
    But the totality principle becomes engaged because the sentence imposed
    increased the appellants cumulative sentence to one of 15 years. Recall the
    sentence of three and one-half years imposed by Code J. five months earlier.

[35]

Relatedly, the appellant continues, the trial
    judge erred in failing to give anything beyond passing mention to the
    appellants prospects for rehabilitation. The appellant was barely an adult
    when he committed the offence and was a youthful offender at the time of
    sentencing. The sentence imposed not only failed to accord a meaningful place
    to the appellants rehabilitative prospects, it extinguished them.

[36]

The respondent acknowledges the applicability of
    the principles of totality and proportionality and notes that the trial judge
    adverted to them in three respects. First, he adverted to the totality principle
    before determining the appropriate sentence. Second, he expressly considered
    the sentence previously imposed by Code J. Finally, after noting that the
    offences warranted consecutive sentences, he immediately stated the global
    sentence, reflecting the effect of the consecutive sentences he had imposed.

[37]

The trial judge correctly determined that the
    pawn shop offences warranted consecutive sentences. They were separate delicts.
    The robbery had been completed before the appellant shot the victim, who
    represented no danger to the robbers who were then making their escape. The
    cumulative sentence was lengthy, as it should have been. It properly reflected
    the governing objectives and principles of sentencing, foremost among them,
    proportionality.

Discussion

[38]

I would not give effect to the appellants
    complaint that the sentencing judge failed to give effect to the principle of
    totality.

[39]

These were very serious offences committed by a
    youthful recidivist. The predominant sentencing principles which were engaged
    were denunciation and deterrence. Despite the appellants youth, the principle of
    rehabilitation occupied a place of lesser prominence, especially in the absence
    of evidentiary support for optimism.

[40]

This was a planned and deliberate robbery
    involving four persons, each with a defined role. The victim was vulnerable.
    The appellant was a principal who gained possession of and used a prohibited or
    restricted firearm to shoot from point-blank range a victim who was, by then,
    no threat to him or his fellow robber. The shooting displayed a callous
    disregard for human life.

[41]

For practical purposes, the appellants
    confession that the sentence of 11 years, 3 months imposed by B. OMarra J. falls
    within the applicable range of sentence for these offences leaves this aspect
    of his challenge on life support. After all, the selection of a sentencing
    range or of a sentence within that range is subject to substantial deference in
    this court. As exemplified by the appellants own acknowledgment, I cannot say
    that the sentence is clearly or manifestly excessive or represents a
    substantial and marked departure:
Lacasse
, at paras. 51-52. Nor does
    it constitute an unreasonable departure from the principle of proportionality:
Lacasse
,
    at para. 53.

[42]

Similarly, the appellant cannot invoke an error
    in the application of the totality principle on the basis that this sentence,
    in combination with the sentence then being served, amounted to a crushing
    sentence, thus offending the principle.

[43]

The sentence with which we are concerned was not
    ordered to be served consecutively with any sentence the appellant was then
    serving. The reason is simple: the sentence imposed by Code J. had expired. The
    appellants imprisonment was due to his failure to obtain release pending
    trial, not because he was serving a sentence.

The Sentence of March 23, 2016

[44]

After a trial before Goldstein J. and a jury, on
    January 11, 2016, the appellant was convicted of trafficking cocaine,
    possession of cocaine for the purpose of trafficking, and attempting to possess
    a firearm.

The Circumstances of the Offences

[45]

While intercepting the appellants private communications
    in 2013, the police discovered a message where the appellant offered crack
    cocaine to his collocutor.

[46]

About three weeks later, the appellant asked a
    man to get him a firearm. The man explained that the supplier did not have a .38
    calibre firearm but, he has a nine. The appellant counselled the man to keep
    it codedthe talk. The next day, police executed a search warrant at the
    appellants apartment where they found an amount of crack cocaine consistent
    with trafficking, the appellants Blackberry, and a digital scale.

The Circumstances of the Offender

[47]

The appellant was 22 when he committed these
    offences and 25 when he was sentenced. He was on probation after the conspiracy
    to commit robbery of which he had been convicted and sentenced by Code J.

[48]

When sentenced, the appellant was serving the
    sentence of 11 years, 3 months imposed by B. OMarra J. about two months
    earlier. On December 4, 2015, the appellant was convicted of aggravated assault
    and was awaiting dangerous offender proceedings that did not conclude until 27
    months later.

The Sentence Imposed

[49]

Goldstein J. imposed sentences of two years on
    each of the drug counts and ordered that those sentences be served concurrently
    to one another and to the sentence imposed by B. OMarra J. On the conviction
    of attempting to possess a firearm, Goldstein J. ordered that the appellant
    serve a sentence of four years consecutive to the sentence the appellant was
    then serving. Thus, the appellants total sentence increased to 15 years, 3
    months.

The Arguments on Appeal

[50]

The appellant says that Goldstein J. made two
    errors. The first has to do with the quantum of sentence he determined was
    appropriate for the conviction of attempted possession of a firearm. The second
    concerned the totality principle and the imposition of a consecutive sentence.

[51]

The appellant contends that, as a matter of
    principle, a sentence for an inchoate offence, such as an attempt, should be
    lower than a sentence for a completed offence. An attempt to possess a firearm
    is less morally culpable than the completed offence of possession because the
    degree of danger to the community is significantly reduced in comparison to
    actual possession. Further, in this case, there was no evidence of the likelihood
    that the appellants attempt would result in actual possession. Yet the
    sentence imposed mirrors those for actual possession.

[52]

The appellant does not argue that the sentence
    for the firearm offence should not have been consecutive to the sentence he was
    then serving. However, he submits that the imposition of a four year sentence
    to be served consecutively offends the totality principle. He submits that a
    one year consecutive sentence would better reflect the principle of totality
    and not depart from the prevailing sentencing objectives of denunciation and
    deterrence.

[53]

The respondent says that a review of the reasons
    for sentence contradicts any suggestion that Goldstein J. did not give effect
    to the totality principle.

[54]

The trial judge concluded that a proper
    application of the principles of sentencing and an evaluation of the
    aggravating and mitigating factors justified a total sentence of seven years.
    To give effect to the principle of totality and the goal of rehabilitation,
    Goldstein J. reduced the total sentence to four years. This was a proper
    application of the totality principle, especially for an accused whose
    rehabilitative prospects were, at best, marginal.

[55]

The respondent resists any suggestion of error
    in the sentence imposed for attempted possession of a firearm. This was the appellants
    second conviction for this offence. His first sentence was two years, five
    months. At the time, he was bound by a weapons prohibition, a probation order,
    and was trafficking drugs. These are serious aggravating factors.

Discussion

[56]

I am not persuaded that the appellants
    arguments about the totality principle or the culpability of inchoate crimes warrant
    our intervention.

[57]

I turn first to the principle of totality. As I
    previously explained, it is well settled that, subject to consideration of
    proportionality and totality, consecutive sentences are properly imposed for
    sentences involving separate delicts, such as where they implicate different
    protected interests. In my view, it was open to the sentencing judge in this
    case to impose concurrent sentences on the drug counts, but order the sentence
    on the firearms count to be served consecutively to those sentences:
Criminal
    Code
, s. 718.3(4)(b). In a similar way, as s. 718.3(4)(a) of the
Criminal
    Code
expressly permits, it was open to Goldstein J. to direct that the
    term of imprisonment he was imposing be served consecutively to the sentence of
    imprisonment imposed by B. OMarra J. to which the appellant was then subject.

[58]

To determine whether the sum of the sentences
    imposed by B. OMarra J. and Goldstein J., is compatible with or must yield to
    the totality principle, I must next consider whether the sentence imposed on
    the attempt to possess a firearm accords with the governing principles.

[59]

I do not gainsay that the absence of a completed
    crime is a relevant consideration in assessing the gravity of an offence, and
    thus a component of the fundamental principle of proportionality. This is so
    because offenders are punished for their wrongdoing in proportion to the
    culpability and harmfulness of their conduct. Stated in the form of an
    equation:

Culpability x Harm = Punishment

[60]

The gravity of the harm associated with an immature
    attempt is arguably less than with a mature completed offence. On the other
    hand, moral culpability is often measured by an actors state of mind, which
    does not differ, in most cases at least, between the preliminary and the
    completed offence. Often, the fact that the crime is incomplete is not due to
    any want of effort on the part of the accused, nor any lesser degree of responsibility.

[61]

It is reasonable to conclude that Parliament had
    in mind this distinction between inchoate and completed crimes when it enacted
    the punishment provisions for attempts in s. 463(b). There, it set the maximum
    for attempts at one-half of the longest term to which a person who is guilty
    of the completed offence is liable.

[62]

Since Parliament has taken into account the
    inchoate nature of an attempt in the maximum punishment on conviction, our task
    becomes to determine whether the sentencing judge made an error of law or an
    error in principle that had an impact on the sentence he imposed or imposed a
    sentence that was demonstrably unfit.

[63]

I am satisfied that the trial judges decision
    to impose a sentence of imprisonment of four years on the conviction for
    attempted possession of a firearm does not reflect error.

[64]

This was the appellants second conviction for
    an offence under s. 92(1) of the
Criminal Code
. He received a sentence
    of two years, five months for his first conviction. Recidivism warrants a more
    substantial sentence. The appellant was also subject to a weapons prohibition
    at the time of this offence. In addition, he committed this offence within a
    month of his involvement in a conspiracy to rob a man of $15,000. There, as
    well, he made several attempts to obtain a weapon. Finally, there was his use
    of a handgun in the pawn shop robbery in which he shot and severely wounded the
    shopkeeper. Four years was a fit sentence for this firearms offence, despite
    its inchoate nature.

[65]

Returning to the issue of totality, the reasons
    of the trial judge demonstrate his fidelity to the principle and an informed
    application of it to the case at hand.

[66]

The trial judge concluded that the drug and
    firearms convictions warranted a total sentence of seven years. As punishing
    separate delicts, the offences warranted consecutive sentences.

[67]

The trial judge then considered whether those
    sentences should be served concurrently with or consecutive to the sentence the
    appellant was then serving. He decided that they should be served consecutively
    to the existing sentence as s. 718.3(4)(a) of the
Criminal Code
expressly permits. He then invoked the principle of totality to reduce the
    sentence he would otherwise have imposed to a sentence of four years. He also
    took into account the appellants rehabilitative prospects, which he accurately
    characterized as minimal given his record of virtually unceasing criminality
    since the age of 16.

[68]

This ground of appeal fails.

The Sentence of June 29, 2018

[69]

On December 21, 2015, after a trial before
    Quigley J. sitting without a jury, the appellant was found guilty of aggravated
    assault, assault with an edged weapon, and possession of an edged weapon for a
    purpose dangerous to the public peace.

[70]

The Crown took dangerous offender proceedings against
    the appellant. The application failed. However, the trial judge found the
    appellant to be an LTO and sentenced him to a term of imprisonment and a period
    of long-term supervision.

The Circumstances of the Offence

[71]

In January 2015, the appellant was an inmate at
    Toronto East Detention Centre. In accordance with institutional practice,
    persons who have court appearances are moved from their usual range to a
    temporary overnight holding area in advance of their scheduled court
    appearance. The appellant was among a group moved on January 2, 2015.

[72]

Among the group was an inmate who was scheduled
    to testify as a witness at a murder trial. The inmate asked correctional staff
    not to be moved to the overnight holding area. However, giving no reason for
    his request, he was transferred.

[73]

The appellant and three others entered the
    victims cell shortly after the doors were unlocked on the morning of January
    3, 2015. The trial judge found that the appellant was one of two principals who
    had attacked the victim with a sharp-edged weapon. The victim sustained
    significant injuries requiring several sutures and staples to close them. The
    appellant disposed of the weapon.

[74]

The victim refused to provide a statement to
    police. He declined to give evidence at trial despite a judges order that he
    do so. The case for the Crown at the appellants trial consisted of a video
    produced by the surveillance system at the detention centre. A security
    supervisor narrated the video and identified the participants.

The Circumstances of the Offender

[75]

When this offence occurred, the appellant was 24.
    He was serving a sentence of 15 years and 3 months and awaiting the Crowns
    application to have him declared a dangerous offender.

[76]

During the dangerous offender proceedings, two
    forensic psychiatrists expressed the opinion that the appellant had an anti-social
    personality disorder. From both actuarial and clinical perspectives, the
    appellant presented a high risk for both general and violent recidivism.
    However, both psychiatrists acknowledged that their ability to predict
    behaviour and risk 15 or 20 years away was markedly diminished.

The Sentence Imposed

[77]

The trial judge was not satisfied that the Crown
    had established that the appellant was a dangerous offender. However, he found that
    the appellant was an LTO and sentenced him to imprisonment for a term of two
    and one-half years to be served consecutively to the sentence the appellant was
    then serving. The judge also ordered that, at the conclusion of his prison
    sentence, the appellant be subject to an LTSO for ten years.

The Arguments on Appeal

[78]

The appellant does not contest the finding that
    he is an LTO. However, he argues that the trial judge erred not only in the
    length of the term of imprisonment he imposed, but also in the duration of the
    LTSO.

[79]

The appellant says that a consecutive sentence
    of 2.5 years results in a total sentence of 21.5 years. This is a crushing
    sentence which extinguishes the appellants prospects of release and
    rehabilitation. It results in a sentence that is disproportionate to the
    gravity of the appellants offences and the degree of his responsibility for
    them. The appellant proposes a sentence of two years for this offence to be
    served consecutively to the existing sentences. This, together with his submissions
    in connection with the other sentences, would reduce the total sentence to 14
    years.

[80]

The second error alleges that the trial judge
    failed to consider whether a period of less than ten years would better reflect
    the objectives of the LTSO regime. Two objectives underpin the regime. The
    first is protecting the public from the offenders risk of re-offence. The
    second, and ultimate objective, is the rehabilitation of the LTO and their reintegration
    into the community:
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433,
    at para. 48;
R. v. Bird
, 2019 SCC 7, [2019] 1 S.C.R. 409 at para. 37. These
    objectives require the sentencing judge to tailor the length of the LTSO to the
    objectives of the scheme.

[81]

In this case, the appellant says, the trial
    judge lacked any expert evidence about the predictability of future recidivism
    beyond the term of imprisonment. In the absence of this evidence, the trial
    judge effectively treated the maximum term of an LTSO as a default position.
    This shifted the onus to the appellant to show why the maximum length was not
    justified. This evidentiary shortfall mandated an LTSO of no more than five
    years.

[82]

According to the respondent, the reasons of the
    trial judge demonstrate his appreciation and application of the totality principle.
    The trial judge concluded that an appropriate sentence for the appellants
    offence was one of five years. Then, after taking into account the principles
    of totality and parity (in light of the sentence imposed on the other
    principal), the trial judge reduced the sentence to one of two and one-half
    years.

[83]

The respondent points out that even if totality
    considerations were more pressing in the appellants case than in that of his
    co-principal, there were important factors that warranted a higher sentence for
    the appellant; different criminal histories, fewer mitigating factors, and dissimilar
    rehabilitative prospects. In addition, the principle of totality has a
    substantially lessened impact where an offender is serving the
remnant
of an existing sentence. Were it otherwise, an offender could be seen as
    benefiting from their prior offending. Totality would submerge the other
    objectives and principles that underpin the sentencing regime.

[84]

Turning to the duration of the LTSO, the
    respondent contends that, when read as a whole, the trial judges reasons
    reasonably support the ten-year LTSO. The appellants offending history shows
    not only a complete lack of restraint in his behaviour and an attendant
    likelihood of causing, in the future, death, injury, or severe psychological
    damage to others, but also a pattern of persistent aggressive behaviour that
    shows a substantial degree of indifference about the reasonably foreseeable
    consequences of that behaviour.

[85]

In addition, the appellant denies responsibility
    for most of his prior offences, and thus lacks the insight necessary to benefit
    from future treatment. He has a robust history of failing to comply with orders
    for community supervision and requires intense case management and supervision
    on release into the community. Should the appellants substantial risk of
    re-offence be reduced at the conclusion of his term of imprisonment, he has the
    right to seek a reduction in the length of the LTSO. Conversely, the
    legislation does not permit the Crown to seek an increase in the period of
    supervision should a reduced period prove inadequate.

Discussion

[86]

In my view, the appellants arguments about the
    totality principle and the length of the LTSO both fail.

[87]

A review of the sentencing judges reasons
    betrays the claim that the totality principle was not accorded its due in the
    sentencing decision. The sentencing judge concluded that on a stand-alone
    basis, a fit sentence for the appellant on his conviction of aggravated assault
    was five years. I would agree with this assessment.

[88]

The aggravated assault was a pre-concerted,
    armed, and cowardly attack on a fellow inmate in a remand facility. The
    appellant was a principal. The victim was confined in his cell by the appellant
    and three accomplices.

[89]

An additional aggravating factor was that the
    victim was scheduled to testify as a witness at a murder trial. As a result, he
    was a justice system participant within s. 2 of the
Criminal Code
.
    It is a reasonable inference that the attack and the purpose of the court
    appearance were not complete strangers to each other. Even in the absence of an
    express provision, like s. 718.02 of the
Criminal Code
,
I would consider these circumstances as
    aggravating on sentence.

[90]

Instead of sentencing the appellant to a term of
    imprisonment of five years for the aggravated assault, the sentencing judge
    imposed a sentence of two and one-half years which he ordered to be served
    consecutively to the sentence the appellant was then serving. He invoked two
    sentencing principles when he did so: totality and parity. The former, to
    ensure that the cumulative sentence did not exceed the appellants overall
    culpability for the myriad offences of which he had been convicted. The latter,
    to comport with s. 718.2(b) of the
Criminal Code

and the sentence imposed on the other
    principal in the assault.

[91]

In my view, the custodial part of the sentence
    imposed reflects a proper application of the principle of totality.

[92]

Turning now to the LTSO. Section 753.1(3)(b)
    requires a sentencing court that has found an offender to be an LTO to order
    that the offender be subject to an LTSO for a period that does not exceed ten
    years. The section is silent on the factors the sentencing judge is to consider
    in determining the duration of the LTSO. Although, it would seem that, as a
    sentencing provision, the imposition of an LTSO should engage the sentencing
    provisions of Part XXIII.

[93]

Rehabilitation is the key feature of the LTO
    regime that distinguishes it from the dangerous offender regime. Thus, rehabilitation
    is an appropriate sentencing objective:
Ipeelee
, at para. 50.

[94]

It is uncontroversial that in determining the
    length of the term of imprisonment to be imposed on an LTO, the sentencing
    judge does not take the subsequent period of long-term supervision into
    account. The principal of parity would be seriously compromised were courts to
    compare fixed sentences for non-LTOs with fixed sentences with LTSOs for LTOs.
    The decision about an LTO is based on controlling a serious risk in the future,
    not punishment for what the offender has done in the past:
R. v. M. (L.),
2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 38, 41, & 50.

[95]

The period for which an LTSO is in force
    should not be longer than necessary to obviate the risk of re-offence and to
    protect the public:
M. (L.),
at para. 44. Any period of long-term
    supervision established by the sentencing court may be reduced or terminated on
    an application to the superior court of criminal jurisdiction by the offender,
    a member of the Parole Board of Canada, or, with Board approval, by the
    offenders parole supervisor. The grounds for the reduction or termination are
    that the LTO no longer presents a substantial risk of re-offending and thereby
    being a danger to the community. The onus is on the applicant:
Criminal
    Code
, s. 753.2(3).

[96]

No provision authorizes an application to extend
    the period of long-term supervision authorized by the sentencing court. The
    period of long-term supervision is not a sentence within the inclusive
    definition of that term in s. 673 of the
Criminal Code
.

[97]

In my view, the sentencing judge did not err in
    fixing the period of the LTSO at ten years.

[98]

The LTSO is future-focused. But sometimes, the
    best predictor of the future lies in the past. The appellants substantial
    offending history shows a failure to restrain his behaviour and a likelihood of
    its repetition with a consequent probability of death, injury, or severe
    psychological damage to others as a result. It also reveals a pattern of
    persistent aggressive behaviour that shows a substantial degree of indifference
    to the reasonably foreseeable consequences of that conduct.

[99]

Despite its limitations, the expert evidence,
    especially when taken together with the appellants offending history,
    establishes a substantial risk of re-offence, and of violent re-offence. The
    appellant lacks insight and denies responsibility for his proven offences. Each
    is an impediment to future treatment. Thus far, the appellant has displayed an
    unwavering disregard for court orders. Taken as a whole, the evidence adduced
    at the hearing fully warranted the order made.

Disposition

[100]

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

Released: January
    18, 2021 GRS

David Watt J.A.
I agree. G.R. Strathy C.J.O.
I agree.
E.E. Gillese
    J.A.