COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stennett, 2021 ONCA 258

DATE: 20210426

DOCKET: C65598

Fairburn A.C.J.O., Watt and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lerrell Stennett

Appellant

Paul J.I. Alexander, for the appellant

Eric W.G. Taylor, for the respondent

Heard: October 16, 2020 by video conference

On appeal from the conviction
    entered on April 19, 2018, and the sentence imposed on July 11, 2018, by
    Justice Joseph F. Kenkel of the Ontario Court of Justice.

Watt J.A.:

[1]

On a wet highway, a driver lost control of his
    vehicle. The vehicle began to rotate, struck a curb and left the roadway.

[2]

After the vehicle left the roadway, it sheared
    off two light standards and continued on to the lot of a used car dealership.
    There, it hit a parked pickup truck. The force of the collision drove the
    pickup truck into another vehicle. Then another. And another. And another.

[3]

The vehicle returned to the road surface. Three
    people were inside. The driver. A front seat passenger. A rear seat passenger.
    The driver and front seat passenger suffered serious injuries. The front seat
    passengers injuries were life-threatening. Fortunately, she survived.

[4]

Lerrell Stennett (the appellant) was the driver
    of the vehicle.

[5]

A judge of the Ontario Court of Justice found
    the appellant guilty of counts of dangerous operation and impaired operation of
    a motor vehicle causing bodily harm.

[6]

The appellant appeals his conviction and one
    ancillary order included as part of his sentence.

[7]

In the reasons that follow, I explain why I
    would dismiss the appeals from conviction and set aside the victim surcharge
    included as part of the sentence imposed.

The Background Facts

[8]

The trial proceedings consisted of a blended
voir
    dire
to determine the admissibility of an interview of the appellant by
    investigating officers; an Agreed Statement of Facts (ASF), which included a
    Collision Reconstruction Report and a Toxicology Letter of Opinion by qualified
    experts in each field; and the
viva voce
evidence of a qualified
    forensic toxicologist. The appellant did not testify or otherwise adduce
    evidence.

[9]

In large measure, the circumstances underlying
    the offences with which the appellant was charged are uncontroversial. Their
    brief recital affords a sufficient frame for the decision that follows.

The Nightclub

[10]

On the evening before the accident, the
    appellant drove to a birthday party for one of his brothers at a nightclub. He
    drove there in a rear-wheel drive Jaguar owned by another of his brothers. He
    had driven the car previously.

[11]

The appellant had arranged for bottle service at
    the nightclub. This included a 1.5-litre bottle of vodka. The appellant did not
    plan to drink at the nightclub, but rather, as he explained to police when
    interviewed, he planned to get lit later. However, he acknowledged having had
    two shots, which he considered would have resulted in an alert reading if
    tested on an alcohol screening device.

The Departure

[12]

As the birthday celebration came to a close, the
    appellant left the club with two others. One sat in the front passenger seat,
    the other in the rear passenger seat. The appellant was the driver.

[13]

The group stopped at a McDonalds restaurant
    where one of the members got some water.

The Accident Scene

[14]

The accident occurred on a straight level
    stretch of Highway 7 at about four oclock one mid-August morning. The road
    surface was paved with two lanes running in each east-west direction. There was
    no median or other obstruction on the road surface. The posted speed limit was
    60 km/h.

[15]

The road surface was wet at the time of the
    accident.

The Accident

[16]

According to the collision reconstructionist,
    the accident occurred when the appellant was driving west on Highway 7. The
    Jaguar rotated clockwise with its centre mass continuing in a westerly
    direction, but its front facing north. The rear tire on the passenger side
    struck the curb. The vehicle left the travelled surface of the highway and
    sheared off two light standards as it continued towards several vehicles parked
    on a used car lot.

[17]

The drivers side of the appellants vehicle
    struck a truck parked on the used car lot on the north side of the highway. The
    force of the impact pushed the pickup truck into an adjacent vehicle parked in
    a line with several others. Four vehicles in this line were damaged in the
    chain reaction that followed.

[18]

The Jaguar continued to rotate clockwise after
    the chain reaction collisions in the used car lot. The vehicle continued south
    off the shoulder of the road until it finally came to rest in the westbound
    lanes of Highway 7, its original direction of travel.

The Vehicle

[19]

A post-accident examination of the Jaguar
    disclosed no pre-existing defect in its operating system or fittings. There was
    extensive damage to the drivers side of the car. The front wheel was detached
    from the axle. The rear drivers door was no longer attached. There was a
    cylindrical dent in the roof above the door. The drivers airbag had deployed.
    Both front and side windows on the drivers side had shattered.

The Speed of the Vehicle

[20]

The Jaguar was not equipped with an Event Data
    Recorder (EDR). As a result, there was no record of any pre-accident
    information such as the speed of the vehicle before, at the time and after the
    various collisions. The vehicles parked on the used car lot and struck by the
    Jaguar or each other in the chain reaction that followed were not powered, thus
    their EDRs did not record any events in which they were involved. The collision
    reconstructionist was unable to calculate the pre-collision speed of the
    Jaguar.

[21]

In his report, the collision reconstructionist
    wrote that wet roads can reduce the dynamic friction between the tire on a
    vehicle and the surface of the road. This can contribute to a loss of control
    if a vehicle is travelling at a speed that exceeds the available friction.
    Other factors that can contribute to a loss of control on wet conditions
    include steering input, a curve in the road, abrupt acceleration and braking.
    The reconstructionist was unable to determine which, if any, of these factors
    may have caused the Jaguar to enter a rotation.

The Toxicology

[22]

The accident occurred between 4:00 and 4:09 a.m.
    on August 20, 2016. Blood samples were taken from the appellant at hospital and
    later analyzed by forensic toxicologists at the Centre of Forensic Sciences.
    The projected blood alcohol concentration of the appellant at the time of the
    collision was 66-96 milligrams of alcohol per 100 millilitres of blood.

[23]

Elizabeth Hird is a forensic toxicologist at the
    Centre of Forensic Sciences. She testified that impairment of driving ability
    due to alcohol consumption becomes significant at a blood alcohol concentration
    of 50 milligrams of alcohol per 100 millilitres of blood and increases from
    that point as blood alcohol concentration increases. Impairment refers to a decreased
    ability to perform a complex task such as driving a motor vehicle. Intoxication
    refers to the physiological or observable effects alcohol has on a person.
    These effects may be less apparent in those with a tolerance for alcohol, but
    tolerance has no effect on impairment.

[24]

Ms. Hird testified that the ability of a person
    with a blood alcohol concentration in the range of 66-96 milligrams of alcohol
    in 100 millilitres of blood to operate a motor vehicle would be impaired.
    Driving requires the use of several faculties almost simultaneously. Divided
    attention must be maintained. Judging speed and distance. Responding to unexpected
    events. Taking corrective action. The witness could not say whether a person
    with a blood alcohol concentration of 60 milligrams of alcohol in 100
    millilitres of blood who displayed no visible signs of intoxication could
    operate a vehicle safely. But she did say that the persons ability to operate
    the vehicle would be decreased due to the complexity of the task and their
    decreased ability to perform that task well.

[25]

In cross-examination, Ms. Hird acknowledged that
    she could not say whether the appellant was impaired at a blood alcohol
    concentration because she had never tested him. Similarly, she could not
    express an opinion about where within the projected range of 66-96 milligrams
    of alcohol per 100 millilitres of blood the appellant would have fallen at the
    time of the collision. However, she noted that the entire range was beyond 50
    milligrams of alcohol per 100 millilitres of blood at which impairment
    generally becomes significant. She also testified that although she could not
    rule out a blood alcohol concentration at the lower end of that range, either
    generally or for the appellant in particular, she considered it more likely
    that a person would be at the higher end due to the average rates of
    elimination.

The Signs of Impairment

[26]

No one reported having seen any signs of
    impairment of the appellant at the nightclub, the collision scene, or the
    hospitals to which he was taken or transferred after the collision.

The Consequences of the Collision

[27]

Neither the appellant nor either of his
    passengers could recall the circumstances of the collision. None gave evidence
    at trial. The appellant and his front seat passenger were severely injured in
    the collision. Each suffered internal and brain injuries.

The Grounds of Appeal against Conviction

[28]

On his appeal from conviction, the appellant
    says the trial judge erred:

i.

in drawing conclusions contrary to the ASF based
    on misapprehensions of or lack of support in the evidence adduced at trial;

ii.

in inferring guilt from the consequences of the
    collision; and

iii.

in finding each offence proven through circular reasoning.

Ground #1: Erroneous Findings of Fact

[29]

This ground of appeal alleges that the trial
    judge erred in finding that the accident was caused by grossly excessive speed.
    This finding, the appellant says, is anchored in a combination of three
    discrete, yet related errors that vitiate both convictions. Those errors
    consist of:

i.

misapprehending the evidence;

ii.

making findings contrary to the ASF; and

iii.

making findings in the absence of any supporting evidence.

[30]

It is unnecessary to repeat what has already
    been said about the circumstances of the accident as described in the ASF, the
    report of the collision reconstructionist and the testimony of the forensic
    toxicologist.

[31]

A brief reference to the reasons of the trial judge
    will provide a suitable foundation for the discussion that follows.

The Reasons of the Trial Judge

[32]

The trial judge began his consideration of the
    offences alleged in the indictment with the counts charging impaired operation.
    The issue, he said, was whether the Crown had proven the alleged impairment
    beyond a reasonable doubt on the basis of the evidence of the appellants projected
    blood alcohol concentration, the manner of driving and the expert evidence of
    the forensic toxicologist. He acknowledged that there was no direct evidence of
    the manner of the appellants driving and that the evidence was that the
    appellant had displayed no signs of physical impairment at the nightclub, at
    the accident scene and at the hospital.

[33]

In examining the evidence about the speed of the
    appellants vehicle at the time of the accident, the trial judge affirmed the
    absence of any direct evidence of the precise speed before or at any point
    during the accident. However, the trial judge recognized that, like any fact in
    issue, the relative speed of the vehicle could be established by circumstantial
    evidence.

[34]

The cumulative effect of several items of
    evidence persuaded the trial judge that when he lost control of his vehicle,
    the appellant was travelling at a speed that was far beyond what was safe under
    the conditions and constituted a marked departure from the standard of a
    reasonably prudent driver. Among the items of evidence were these:

i.

the absence of any mechanical defect as a
    contributing factor;

ii.

the straight, level, unobstructed nature of the
    highway and road surface;

iii.

the posted speed limit of 60 km/h;

iv.

the absence of any difficulty for first responders and other
    motorists to navigate the wet surface of the roadway safely;

v.

the absence of evidence of skid marks suggesting
    the intervention of some external factor requiring evasive action;

vi.

the relationship between a speed that exceeds the available friction
    between the tire and road surface and loss of control of the vehicle; and

vii.

the circumstances of the several collisions with light standards and
    parked vehicles including the extent of damage caused.

[35]

In determining whether the evidence established
    that the appellants ability to operate a motor vehicle was impaired by his
    consumption of alcohol, the trial judge reviewed the testimony of the forensic
    toxicologist. He concluded that the circumstantial evidence relating to the
    appellants driving showed the indicia of mental impairment.

[36]

The trial judge accepted that driving was a
    complex task involving divided attention, choices, reaction time, and judgment
    of speed and distance. All these mental processes are impaired when a drivers
    blood alcohol concentration is 50 milligrams of alcohol per 100 millilitres of
    blood and impairment increases as the blood alcohol concentration increases.
    The appellants blood alcohol concentration at the time of the accident
    exceeded 50 milligrams of alcohol per 100 millilitres of blood. The trial judge
    recognized the possibility of an outlier at a blood alcohol concentration of 50
    milligrams of alcohol per 100 millilitres of blood, but noted that this
    prospect diminished as the blood alcohol concentration increased.

[37]

The absence of common indicia of physical
    impairment, such as loss of balance and slurred speech, were important. What
    was critical, however, was not physical impairment, but rather mental
    impairment, that is to say, impairment of the ability to perform the complex
    task of driving a motor vehicle. The trial judge concluded that the appellant drove
    while impaired:

The circumstantial evidence as to the
    accused's driving shows the indicia of mental impairment as described by the
    toxicologist. Mr. Stennett was able to travel across Highway 7 to Kipling
    without incident, but he failed to perceive the need to slow his speed and he
    failed to react to the wet road condition. The evidence shows Mr. Stennett is
    not the rare, theoretical outlier as discussed in cross-examination. On the
    contrary, his driving errors show the effects of alcohol impairment on the mental
    faculties necessary to drive safely that were identified by the toxicologist.
    The Crown is not required to prove intoxication or marked impairment.
    Considering all of the evidence and the legal test, I find the lack of physical
    indicia and other circumstances do not reasonably leave a doubt. The Crown has
    proved impairment by alcohol in the mental faculties necessary for safe
    driving.

[38]

On the count charging dangerous operation
    causing bodily harm, the trial judge expressed his conclusion in this way:

The whole of the evidence including the
    circumstances of the multiple collisions shows that the accused drove far in
    excess of the speed that was safe for the road conditions that evening. He was
    driving while his ability to judge safe speed and react to road conditions was
    impaired by alcohol consumption which is a departure from the standard of care
    required for safe driving. The Crown has proved beyond a reasonable doubt that
    the accused's manner of driving was dangerous to the public and a marked departure
    from the standard of care a reasonable person would observe.

The Arguments on Appeal

[39]

The appellant contends that the finding of fact
    upon which the convictions are grounded is that the appellant was driving at a
    grossly excessive speed at the time of the accident. This finding, the
    appellant says, was fatally flawed for three reasons. It was based on a
    misapprehension of the evidence. It was contrary to the ASF. And it was
    unsupported by the evidence adduced at trial. It follows that neither conviction
    can stand.

[40]

The misapprehension of the evidence, the
    appellant submits, has to do with the collision reconstructionists reference
    to the effect of the speed of the vehicle exceeding the available friction
    between the tire and road surface on the loss of control. The report said that
if
the speed of the vehicle exceeded the available friction between the tire and
    the roadway, a loss of control over the operation of the vehicle may occur. But
    the collision reconstructionist did not say that a speed exceeding the
    available friction was the cause of the accident as the trial judge concluded.
    The expert pointed to several other factors that might cause a driver to lose
    control of their vehicle and said that he could not determine which factor was
    at work here.

[41]

In addition, the appellant says, the finding of
    excessive speed was contrary to the ASF. There it was clear that the pre-impact
    speed of the vehicle could not be determined. It was and remained an unknown.
    The report of the collision reconstructionist, which was part of the ASF,
    offered no reason for the loss of control of the vehicle and did not say that
    excessive speed caused or contributed to the loss of control.

[42]

In the end, the appellant concludes, the
    evidence adduced at trial simply cannot support the trial judges conclusion
    that excessive speed caused the accident. There were other explanations for the
    loss of control. But the trial judge never considered them, nor their impact
    upon proof of the essential elements of the offences charged. As a whole, the
    evidence falls short of the standard of persuasion required. Acquittals should
    be entered.

[43]

The respondent rejects any suggestion of error
    in the trial judges conclusion or in the analysis that underpins it.

[44]

The ASF and the language used in the report of
    the collision reconstructionist were not so definitive or conclusive that they
    foreclosed an examination of the evidence, the available inferences and making
    findings of fact concerning the cause of the loss of control. Nothing suggested
    that speed was not a factor or that the cause of the loss of control could not
    be determined. The absence of direct evidence did not preclude the use of
    circumstantial evidence or conclusions based on inferences from that evidence
    taken as a whole.

[45]

The trial judge properly concluded that the
    phrase travelling at a speed that exceeds available friction meant simply
    driving too quickly for the road conditions, given the wetness and the
    available friction, irrespective of the actual speed at which the vehicle
    travelled. This conclusion was not at odds with the ASF.

[46]

At trial, the respondent continues, it was
    uncontroversial that the appellant lost control of the car and that this caused
    the accident. It fell to the trial judge to determine, if he could, why the
    appellant lost control. The trial judge recognized that this was his task and
    that he had to consider other plausible theories or reasonable possibilities.
    He did so and concluded that excessive speed was the cause. He was not required
    to consider speculative possibilities.

[47]

The respondent says that the trial judges
    finding that the appellant drove far in excess of the speed that was safe for
    the road conditions was grounded in the evidence adduced at trial. Although it
    was not possible to know or find a precise or exact pre-impact speed of the
    vehicle, the nature of the accident itself could provide circumstantial
    evidence about the speed of the vehicle relative to the road conditions at the
    time of the accident. This could inform the decision on whether the appellants
    driving amounted to dangerous operation of a motor vehicle.

The Governing Principles

[48]

Several disparate strands of principle woven
    together inform the decision on this ground of appeal.

[49]

First, misapprehension of evidence.

[50]

The phrase misapprehension of evidence
    encompasses at least three errors. The failure to consider evidence relevant to
    an issue. A mistake about the substance of an item or items of evidence. And a
    failure to give proper effect to evidence:
R. v. Morrissey
(1995), 97
    C.C.C. (3d) 193 (Ont. C.A.), at pp. 217-18.

[51]

Where an appellant advances misapprehension
    of evidence as a ground of appeal, the reviewing court considers first the
    reasonableness of the verdict rendered by the trier of fact. If the verdict is
    not unreasonable, then the reviewing court must decide whether the
    misapprehension of evidence caused a miscarriage of justice. If the appellant
    fails on this ground as well, the court must inquire whether the
    misapprehension amounted to an error of law, and if so, whether that error
    occasioned the appellant a substantial wrong or miscarriage of justice:
Morrissey
, at pp. 219-20.

[52]

Whether a
    misapprehension of evidence renders a trial unfair and results in a miscarriage
    of justice requires an examination of the nature and extent of the misapprehension
    and its significance to the verdict rendered at trial. Where the mistake
    relates to a material part of the evidence and the error plays an essential
    part in the reasoning process leading up to the conviction, the conviction is
    not grounded exclusively on the evidence and constitutes a miscarriage of
    justice:
Morrissey
, at p. 221. This is a stringent standard:
R. v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[53]

Second, drawing inferences.

[54]

A trier of fact may draw inferences from the evidence
    adduced at trial. However, the inferences must be ones that can reasonably and
    logically be drawn from a fact or group of facts established by the evidence.
    An inference which does not flow logically and reasonably from established
    facts is not a permissible inference but rather impermissible conjecture and
    speculation:
Morrissey
, at p. 209.

[55]

Third, admissions of fact.

[56]

In proceedings on an indictment, an accused or
    their counsel may admit any fact alleged against him for the purpose of
    dispensing with proof of that fact. This is the effect of s. 655 of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.
    These are formal admissions. They dispense with the need to prove the fact
    admitted by other evidence. They are binding on the party and may only be
    withdrawn with leave of the court:
Castellani v. The Queen
, [1970]
    S.C.R. 310, at p. 317;
R. v. Korski
, 2009 MBCA 37, 244 C.C.C. (3d)
    452, at paras. 121-22.

[57]

Sometimes, admissions may be informal. They
    are not conclusive but rather may be contradicted or explained by evidence
    adduced at trial. In essence, they are items of evidence, thus subject to
    qualification or rebuttal. Informal admissions may be or include statements of
    what a witness could or would say if called to give evidence:
Korski
, at paras. 123-24, citing
Matheson
    v. The Queen
, [1981] 2 S.C.R. 214, at
    p. 217.

[58]

Informal
    admissions may be labelled or designated Agreed Statement of Facts, but that
    does not make them so. Those that recite what a witness would say retain their
    true character, however they may be styled. An agreement about what a witness
    could say or would have said is not an agreement that what they say is true:
Korski
,
    at para. 125.

[59]

Fourth,
    circumstantial evidence and the burden and standard of proof.

[60]

Circumstantial
    evidence is about drawing inferences and the range of reasonable inferences
    that may be drawn from that evidence. In an assessment of circumstantial
    evidence, a trier of fact is required to consider, or be directed to consider,
    other plausible theories and other reasonable possibilities inconsistent
    with guilt. In its effort to establish guilt, the Crown must negate those
    reasonable possibilities. However, the Crown need not negative every possible
    conjecture, no matter how irrational or fanciful, which might be consistent
    with the innocence of the accused. These other plausible theories or other
    reasonable possibilities must be rooted in logic and experience applied to the
    evidence or absence of evidence:
R. v.
    Villaroman
, 2016 SCC
    33, [2016] 1 S.C.R. 1000, at para. 37. See also
R. v. Bagshaw,
[1972] S.C.R. 2, at p. 8.

[61]

Circumstantial
    evidence does not have to totally exclude other conceivable inferences. The
    trier of fact must not act on alternative interpretations of the circumstances
    that it considers unreasonable. Alternative inferences, whether arising from
    the evidence or an absence of evidence, must be reasonable, not simply
    possible:
Villaroman
, at para. 42. Non-culpable inferences,
    based on the evidence or the absence of evidence, must be reasonable when
    assessed logically and in light of human experience and common sense:
Villaroman
,
    at para. 36.

[62]

The final
    point concerns the analysis of a trial judges reasons.

[63]

A reviewing
    court must not read or analyze a trial judges reasons as if they were the
    final instructions to a jury. Reasons for judgment delivered after a trial
    before a judicial trier of fact do not equip jurors with what is required to
    reach an informed decision, a verdict in accordance with the evidence and
    compliant with the applicable legal principles. Reasons for judgment explain
    why the judge reached their verdict. They are not to be read as an enumeration
    of the entire deliberative process:
Morrissey
, at p. 204.

The Principles Applied

[64]

As I will explain, I would not give effect to
    this ground of appeal.

[65]

This ground of appeal challenges the trial
    judges finding that the accident was caused because of the grossly excessive
    speed at which the appellant was travelling. This was a marked departure from
    the standard of care of a reasonably prudent driver. This finding is said to be
    fatally flawed on three grounds:

i.

it is contrary to the ASF;

ii.

it is based on misapprehensions of the evidence;
    and

iii.

it is unsupported by any evidence adduced at trial.

[66]

First, the claim that the finding is contrary to
    the ASF and, in particular, the report of the collision reconstructionist that
    forms part of the ASF.

[67]

In my respectful view, this argument is based on
    a mischaracterization of the ASF and, in particular, the Collision
    Reconstruction Report.

[68]

The Collision Reconstruction Report is not a
    formal admission of fact within s. 655 of the
Criminal Code
. It
    follows that it is not conclusive of the facts stated but rather subject to
    contradiction or qualification. It is an informal or evidentiary admission, in
    essence, a will say or can say statement of what the author of the report
    could or would say if called to testify about its subject-matter. It dispenses
    with the swearing or affirmation of the witness and the taking of evidence by
    admitting what their evidence would be if it were called. Labelling the
    document that refers to the report as Agreed Statement of Facts does not
    alter the fundamental character of the report.

[69]

As with any item of evidence received at trial,
    the trial judge, as the trier of fact, could accept or reject the contents of
    the report in whole or in part. He was entitled to draw reasonable inferences
    from it. His conclusion that the appellant drove at a grossly excessive speed
    in the circumstances was not foreclosed, as the appellant contends, by the ASF
    or the contents of the Collision Reconstruction Report.

[70]

Further, to the extent that the Collision
    Reconstruction Report represents the opinion of its author, it is debatable
    whether it could be the subject of a formal admission under s. 655 of the
Criminal
    Code
. The section only permits an accused or counsel to admit any fact
    alleged against him.

[71]

Second, misapprehension of evidence.

[72]

The appellant urges that the trial judge
    misapprehended the collision reconstructionists opinion in concluding that the
    appellants speed was so excessive that it amounted to the criminal offence of
    dangerous operation. However, when read as a whole, the reasons of the trial
    judge do not support the interpretation the appellant advances.

[73]

At trial, it was undisputed that the appellant
    lost control of the vehicle he was driving. The trial judge recognized that he
    needed to determine, if he could on the available evidence, why this loss of
    control occurred. This involved consideration of various possible explanations
    and whether it amounted to either offence charged. One such explanation was
    that the appellant was driving too fast for the conditions of the road at the
    time. The trial judge examined other possible explanations for the loss of
    control, such as a curve in the road, sudden braking and a need for steering
    correction, and rejected them, as he was entitled to do. Of some assistance on
    the issue of degree of departure from the speed safe for the road conditions
    were the circumstances of the collisions involved. The conclusion that the
    manner in which the appellant was driving amounted to dangerous operation was one
    reached on the basis of the evidence as a whole, not on a misapprehension of
    any particular item of evidence including the opinion of the collision
    reconstructionist.

[74]

Third, the innocent explanations.

[75]

In order to conclude that the only reason that
    the appellant lost control of the vehicle was because of the grossly excessive
    speed at which he was driving, the trial judge was required to consider whether
    all other plausible theories or reasonable possibilities inconsistent with
    culpability could account for the accident. These non-culpable inferences could
    arise from the evidence or the absence of evidence. However, to be availing,
    those inferences must be reasonable, given the evidence and the absence of
    evidence, assessed logically and in light of human experience and common sense.
    Circumstantial evidence does not have to exclude merely conceivable or possible
    inferences, only those that are reasonable and not speculative.

[76]

It remains fundamentally for the trier of fact
    to determine whether any proposed alternative way of looking at the case is
    reasonable enough to raise a doubt. In other words, it is fundamentally for the
    trier of fact to draw the line in each case that separates reasonable doubt
    from speculation. The trier of facts assessment can be set aside only where it
    is unreasonable. Here, it was reasonable for the trial judge to conclude that
    the evidence as a whole excluded all reasonable alternatives to guilt.

Ground #2: Inferring Guilt from Consequences of the
    Accident

[77]

The second ground of appeal focuses on the
    conviction of dangerous operation causing bodily harm. The complaint is that
    the finding of guilt was not based as it should have been on an analysis of the
    manner in which the appellant operated the motor vehicle, but rather on the consequences
    of the accident.

[78]

An assessment of this alleged error does not
    require any further reference to the evidence adduced at trial. A brief
    reference to the arguments advanced and the reasons of the trial judge will
    provide the background essential to determining the viability of this claim.

The Arguments on Appeal

[79]

The appellant submits that the
actus reus
or conduct requirement in the offence of dangerous operation of a motor vehicle
    focuses on the manner in which the vehicle is operated, and the risks
    associated with it. The focus is not on the consequences of the manner of
    operation.

[80]

The fault element in dangerous operation, the
    appellant says, required the Crown to prove that the manner of driving was a
    marked departure from the standard of care of a reasonable person in equivalent
    circumstances. This is a modified objective standard, more than mere
    carelessness or momentary inattention. And it cannot be established by simply
    drawing an inference from proof of the conduct requirement.

[81]

In this case, the appellant continues, the trial
    judge conflated the consequences of the accident with the manner in which the
    vehicle was operated and the extent it departed from the standard of a
    reasonable person. In essence, the trial judge inferred both the conduct and
    fault elements from the mere fact of the accident and its consequences.

[82]

The appellant argues that the trial judge
    undertook no meaningful inquiry into either essential element of dangerous
    operation. He did not examine the manner of driving but rather simply found
    grossly excessive speed, a conclusion at odds with the ASF and unsupported by
    the evidence. Likewise for the fault element. No meaningful inquiry. And a
    conclusion of marked departure from nothing more than the consequences of the
    accident.

[83]

The respondent rebuffs the appellants claim
    that the trial judges finding of guilt of dangerous operation rested on an
    impermissible inference from the consequences of the accident.

[84]

A review of the reasons for judgment betrays any
    claim that the findings on the conduct and fault elements of the offence were
    no more than inferences from the bodily harm caused and property damaged by the
    accident. Admittedly, the reasons could have been more expansive. But his
    reasons show that he was aware of the tests for both elements and why he was
    satisfied that they had been met.

[85]

Read as a whole, together with the colloquies
    with counsel during submissions, what emerges clearly is that the trial judge
    was keenly aware of the essential elements of the offence and why the evidence
    satisfied him that those elements had been established with the required degree
    of certainty. The trial judge relied upon his finding of grossly excessive
    speed which caused the appellant to lose control of the vehicle as the basis
    for his conclusion that the conduct requirement had been met. In connection
    with the fault element, the trial judge relied on his finding of impaired
    ability to appreciate the risk created by driving too fast in the conditions to
    conclude that this was a marked departure from the requisite standard of care.

The Governing Principles

[86]

Like the first ground of appeal, this submission
    relates to the count of dangerous operation causing bodily harm, not that of
    impaired operation causing bodily harm. The controlling principles are those
    associated with the offence of dangerous operation
simpliciter
as
    there is no issue of causation in controversy here.

[87]

As the language of the offence-creating
    provision makes clear, it is the
manner
in which the motor vehicle was
    operated that is at issue, not the consequences of the driving. The
    consequences, such as bodily harm, may make the offence more serious. But the
    consequences have no say on whether the offence of dangerous operation has been
    established:
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, at para.
    46.

[88]

The focus of the inquiry into whether an
    accuseds driving, viewed objectively, was dangerous to the public in all the
    circumstances is on the risks created by the manner of the accuseds driving,
    not its consequences such as an accident which ensued from that driving.
    However, the consequences of the driving may assist in assessing the risk
    involved even though they do not answer the fundamental question of whether the
    accused operated the vehicle in a manner which was dangerous to the public:
Beatty
, at para. 46;
R. v. Roy
, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 34-35.

[89]

The conduct
    requirement or
actus reus
of the dangerous operation offence
    requires that the trier of fact be satisfied beyond a reasonable doubt that,
    viewed objectively, the accused was driving in a manner that was dangerous to
    the public in all the circumstances:
Beatty
, at para. 43.

[90]

The focus of the analysis on the fault
    element or
mens rea
is on whether the dangerous manner of driving was
    the result of a marked departure from the standard of care which a reasonable
    person would have exercised in the same circumstances:
Beatty
, at para. 48;
Roy
, at para. 36.

[91]

In
    considering the issue of the fault element, it is helpful to ask two questions.
    The first is whether, in light of all the relevant evidence, a reasonable
    person would have foreseen the risk and taken steps to avoid it if possible. If
    the answer to the first question is yes, the second question is whether the
    accuseds failure to foresee the risk and take steps to avoid it, if possible,
    was a marked departure from the standard of care expected of a reasonable
    person in equivalent circumstances:
Roy
, at para. 36.

[92]

As a general
    rule, a trier of fact may infer the required objective fault element or
mens rea
from
    the fact that an accused drove in a manner that constituted a
marked departure
from the norm. But this is an inference, not a presumption. And even
    where the manner of driving is a marked departure from the norm, the trier of
    fact must examine all the circumstances to decide whether it is appropriate to
    draw the inference of fault from the manner of driving:
Roy
, at
    para. 40.

[93]

The fault element
    or
mens rea
of dangerous operation can be established by
    momentary excessive speeding on its own, provided, in light of all the
    circumstances, it supports an inference that the driving was the result of a
    marked departure from the standard of care that a reasonable person would have
    exhibited in the same circumstances:
R. v.
    Chung
, 2020 SCC 8,
    386 C.C.C. (3d) 523, at para. 19;
Roy
, at para. 41.

[94]

Finally, it is not permissible to infer the
    marked departure simply from the fact that an accuseds driving, viewed
    objectively, was dangerous:
Roy
,
    at para. 44.

The Principles Applied

[95]

In my respectful view, this ground of appeal
    fails.

[96]

Like the respondent, I would characterize the
    trial judges reasons on the count charging dangerous operation causing bodily
    harm as spare. However, the appellant does not suggest that they are
    insufficient to permit meaningful appellate review. Nor am I persuaded otherwise
    when they are considered as a whole, together with the evidence adduced, the
    positions advanced and the exchanges between counsel and the trial judge during
    final submissions.

[97]

The trial judge found the conduct element or
actus
    reus
established on the basis of the persuasive force of several
    circumstances. Speed that was far in excess of the speed that was safe in view
    of the existing road conditions. A blood alcohol concentration consistent with
    impairment of the ability to carry out the complex tasks associated with the
    operation of a motor vehicle, including timely and appropriate responses to the
    unpredictable. The circumstances of the accident as indicative of the relative
    speed of the vehicle. The conclusion is barren of any reference to the
    consequences of the accident to the appellant or his passengers. This
    combination of factors and circumstances provided an adequate evidentiary
    predicate to ground a finding that the conduct element or
actus reus

of the dangerous operation offence had
    been proven beyond a reasonable doubt.

[98]

The trial judge concluded on [t]he whole
    of the evidence that the fault element or
mens rea
of dangerous operation had been proven beyond a
    reasonable doubt. As with the conduct element, this finding was not
    contaminated by any improper consideration of the consequences of the accident
    to the appellant and his passengers. As we have seen from
Chung
, excessive speed alone can establish the required
    fault element where, in all the circumstances, it supports the inference that
    the driving resulted from a marked departure from the standard of care that a
    reasonable person would have exhibited in the same circumstances. In this case,
    that inference from excessive speed and the conduct element was further
    supported by evidence of impairment of the ability to operate a motor vehicle
    due to consumption of alcohol.

[99]

I would not
    accede to this ground of appeal.

Ground #3: Circular Reasoning

[100]

The final ground of appeal converts elements of its two predecessors
    into a complaint that the convictions rested on circular reasoning. The
    appellant drove dangerously because his ability to drive was impaired by
    alcohol, and because he drove dangerously, his ability to operate a motor
    vehicle was impaired by alcohol. In other words, dangerous operation proved
    impairment and impairment, dangerous operation.

The Arguments on Appeal

[101]

The appellant says that the evidence of the forensic toxicologist
    was generic, based on statistical models. She acknowledged that she could not
    provide an opinion about impairment of any individuals ability to operate a
    motor vehicle after consuming alcohol without testing that person. She did not
    perform any tests on the appellant, who showed no physical signs of impairment.
    Not everybody with a blood alcohol concentration of 50 milligrams of alcohol in
    100 millilitres of blood will be impaired. Yet the trial judge found, based on
    this generic evidence, that the appellants ability to operate his motor
    vehicle was impaired by his consumption of alcohol.

[102]

According to the appellant, he could not be found guilty of impaired
    operation solely on the basis of his own blood alcohol concentration and the
    experts generic opinion about impairment at blood alcohol concentrations of 50
    milligrams of alcohol in 100 millilitres of blood and beyond. Case-specific
    information was required. The trial judge found the appellant guilty of
    impaired operation based on his conclusion that the appellant had driven
    dangerously. That he drove dangerously proved his ability to operate a motor
    vehicle was impaired by alcohol. But, the appellant continues, the trial judge
    also reasoned that the appellant drove dangerously because he drove while
    impaired when he found as follows: He was driving while his ability to judge
    safe speed and react to road conditions was impaired by alcohol consumption
    which is a departure from the standard of care. This reasoning is circular. In
    the result, neither conviction can stand.

[103]

The respondent takes the position that the trial judge did not
    engage in circular reasoning in reaching his conclusion that the essential
    elements of each offence were proven beyond a reasonable doubt.

[104]

In the respondents submission, the trial judge recognized that
    impairment was not only an essential element of one offence, but also relevant
    to proof of an essential element of the other. The judge was aware that there
    was a conflict between the observations of those who saw the appellant before,
    at the scene, and after the accident and the testimony of the forensic
    toxicologist. No one saw any physical signs of impairment or intoxication. Yet
    the toxicologist testified that impairment of the ability to operate a motor
    vehicle begins at a blood alcohol concentration of 50 milligrams of alcohol in
    100 millilitres of blood.

[105]

The respondent says that the trial judge dealt with these apparent
    inconsistencies. There were differences between the physical indicia of
    impairment and impairment of the mental faculties required to drive safely.
    Impaired operation only requires proof of the latter. The judge also referred
    to the toxicologists evidence that although a person with the appellants
    blood alcohol concentration might be able to successfully drive between two
    points on a familiar roadway without becoming involved in a collision, their
    ability to operate their motor vehicle would be impaired nonetheless. This
    impairment would affect their ability to recognize and respond correctly to any
    unusual circumstance they encountered.

[106]

In this case, the trial judge drew reasonable inferences from the
    evidence. His finding on the conduct element of the dangerous operation count
    was not based on any finding of impairment, but rather on a finding that the
    appellant lost control of his vehicle because he was driving at a speed well in
    excess of what the circumstances permitted. The reference to the appellants
    impairment was only considered in relation to the fault element where it was
    relevant to the question of whether the appellants conduct amounted to a
    marked departure from the standard of care a reasonably prudent driver would
    exercise in equivalent circumstances.

The Governing Principles

[107]

The appellant recruits no specific authority to advance this ground
    of appeal. Nor does the respondent in answer.

[108]

Whether the essential elements of any offence have been proven
    beyond a reasonable doubt requires an assessment of all the evidence tendered
    to establish them. Sometimes, an item of evidence may assist in proof of one or
    more elements of an offence or of other offences. That it does so does not
    involve circular reasoning.

[109]

Evidence of the impairment of a persons mental processes caused by
    the consumption of alcohol is relevant to both the offences of dangerous
    operation of a motor vehicle and of impaired operation of a motor vehicle.

[110]

Evidence of an accuseds actual state of
    mind may be relevant to determine whether the objective fault element in
    dangerous operation of a motor vehicle has been proven beyond a reasonable
    doubt:
Beatty
, at para. 43;
Roy
, at para. 39. It is well settled that evidence of
    impairment by consumption of alcohol is relevant in determining a persons
    state of mind.

[111]

In
    prosecutions for impaired operation of a motor vehicle, the essential element
    of impairment is proven if the evidence establishes any degree of impairment
    ranging from slight to great:
R. v. Stellato
(1993), 78 C.C.C. (3d) 380 (Ont. C.A.),
    at p. 384, affd [1994] 2 S.C.R. 478.

The Principles Applied

[112]

In my respectful view, this ground of appeal cannot succeed.

[113]

The findings of guilt entered in this case
    are not the product of circular reasoning. Evidence that the appellants
    ability to operate a
motor vehicle was
    impaired by the consumption of alcohol was relevant to proving an essential
    element of the impaired operation offence. That same evidence was also relevant
    in proof of the objective fault element on the count of dangerous operation.
    The mere fact the same evidence is relevant and admissible in proof of both
    elements exemplifies multiple relevance or admissibility, not circular
    reasoning.

The Sentence Appeal

[114]

The appellant submits that the victim
    surcharges the trial judge imposed on the appellant were made under a regime
    that the Supreme Court of Canada later held to be unconstitutional, so that the
    surcharge order should be quashed. The respondent agrees that the surcharges should
    be quashed.

[115]

As the victim surcharge regime has been
    ruled unconstitutional, I agree that the victim surcharges should be set aside.

Disposition

[116]

For these reasons, I would dismiss the appeal from conviction. I
    would grant leave to appeal sentence and allow the appeal from sentence to the
    extent of setting aside the victim surcharges.

Released: JMF April 26, 2021

David Watt J.A.

I agree. Fairburn A.C.J.O.

I agree. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sunda, 2021 ONCA 319

DATE: 20210512

DOCKET: C66808

Tulloch, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rajin Sunda

Appellant

Harpreet Saini, for the appellant

Kelvin Ramchand, for the respondent

Heard and released orally: May
    10, 2021 by video conference

On appeal from the conviction entered on
    October 23, 2018 by Justice Alan D. Cooper of the Ontario Court of Justice, and
    from the sentence imposed on March 14, 2019.

REASONS FOR DECISION

[1]

On April 27, 2021, the appellant abandoned his
    appeal from his convictions for possession of heroin for the purpose of trafficking
    and simple possession of cocaine. In the exceptional circumstances of this
    case, the appellant and the respondent jointly propose that the sentence appeal
    be allowed in part and that the remainder of the net twenty month sentence be
    stayed, and a one-year period of probation be substituted.

[2]

The sentencing judge accepted that the appellant
    was an addict-trafficker. The pre-sentence report highlighted the appellants
    addiction to heroin since 2016, as well as the appellants very significant
    progress in dealing with his addiction issues. In addition to giving credit for
    pre-sentence custody, the sentencing judge noted and gave additional credit for
    the 3.5 months that the appellant had spent on restrictive release conditions
    without incident. The sentencing judge also ordered a probationary period of 12
    months to enable the appellant to continue addiction counselling.

[3]

The appellant filed an inmate appeal on April
    10, 2019. He served 6.5 months of his custodial sentence before being released
    on October 1, 2019 and has since been on a house arrest interim judicial release
    without incident.

[4]

Following a serious mental health episode, on
    December 25, 2020, the appellant was admitted to a 60-day in-treatment program.
    The appellant was diagnosed with anxiety and depression that was connected to
    substance abuse issues. The appellant received a certificate of completion of
    this program on February 23, 2021.

[5]

We agree that it is in the interests of justice
    that the sentence appeal be allowed as proposed by the parties. While the sentence
    imposed was fit, re‑incarceration of the appellant in the particular
    circumstances of this case is not in the public interest and would be
    deleterious to his prospects for rehabilitation. The appellant has served a meaningful
    portion of his sentence and has not re‑offended or breached his bail
    conditions. He has continued to undergo treatment for his addiction issues. It
    is in the public interest that the appellants rehabilitative progress continues
    uninterrupted and that he reintegrates to society as a productive and
    law-abiding individual.

Disposition

[6]

Accordingly, leave to appeal sentence is
    granted, and the remaining custodial sentence is stayed. The existing probation
    order is vacated, and a new probation order is to be entered for a period of 12
    months, with the compulsory conditions under s. 732.1(2) of the
Criminal
    Code
but no other optional conditions, except to continue drug addiction and
    related counselling or programming and to provide a consent to confirm compliance
    with same. All other ancillary orders as ordered by the sentencing judge remain
    in place.

M. Tulloch
    J.A.

L.B. Roberts
    J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tayongtong, 2021 ONCA 281

DATE: 20210503

DOCKET: C67022

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nelson Tayongtong

Appellant

Delmar Doucette, Angela Ruffo and Zahra
    Shariff, for the appellant

Mabel Lai, for the respondent

Heard: March 1, 2021 by videoconference

On appeal from the conviction entered on
    October 18, 2017, and from the sentence imposed on October 27, 2017 by Justice Leonard
    Ricchetti of the Superior Court of Justice,
sitting with a jury
.

Benotto J.A.:

[1]

Aicha Saludares was killed in her home. She had been stabbed 138 times.
    Her estranged husband  the appellant Nelson Tayongtong  was arrested and
    charged with her murder. While in a courtroom awaiting his matter to be spoken
    to, the appellant shouted out that he had killed his wife. Psychiatric
    assessments followed. Upon being found fit to stand trial, a jury convicted him
    of second-degree murder. He appeals his conviction on the grounds that the
    trial judge erred by admitting his in-court statements as evidence and by not
    allowing self-defence and provocation to be left with the jury. He also appeals
    the 17-year period of parole ineligibility established by the trial judge.

BACKGROUND

[2]

Aicha
Saludares emigrated from the Philippines to Canada with her
    family when she was 14 years old. After graduating from high school, she began
    working at the Bank of Montreal where she rose to become branch manager. In
    2003, she married the appellant while on holiday in the Philippines. He
    eventually joined her in Toronto. In 2010, he had a stroke and spent months in
    a long-term health care facility. He no longer worked. A series of financial
    setbacks occurred, and the couple had to sell the family home. Their marriage
    was in difficulty and there were discussions about divorce. Aicha began a
    relationship with another man.

[3]

The appellants health appeared to
    deteriorate, and he planned to return to the Philippines. In September 2012, he
    was days away from departure. Aicha was, at that point, living with her mother
    and
her mothers boyfriend

in
    their apartment in Mississauga. They agreed that the appellant could stay with
    them for a few days until he left for the Philippines.

[4]

On September 8, 2012 Aichas mother and her boyfriend left around 6 a.m.
    to go to work. When they left, Aicha and the appellant were alone in the
    apartment. Surveillance video shows the appellant leaving the building at 7:37
    a.m. At 1:30 p.m., the mothers boyfriend found Aichas dead body lying face
    down on the kitchen floor. A blue-handled knife was in her right hand. She was
    left-handed.  No one else was in the apartment.

[5]

Aicha
suffered a total of 138 wounds, including: 17
    stab wounds and 3 incised wounds to the head; 10 stab wounds and 8 incised
    wounds to the neck; 20 stab wounds to the upper and middle back; 10 stab wounds
    and 1 incised wound to the chest; 14 stab wounds and 8 incised wounds to the
    abdomen; 10 stab wounds and 12 incised wounds to the left arm and hand; 3 stab
    wounds and 12 incised wounds to the right arm and hand; and 1 stab wound to the
    right leg. One of the stab wounds to the head resulted in the knife tip
    breaking off and being lodged in the mandible. None of the twelve knives found
    in the kitchen of the apartment, including the blue-handled knife found in Aicha
s non-dominant
hand, was the source of the
    broken tip.

[6]

Days later, the appellant was found passed out in a
    convenience store and admitted to hospital. He was arrested on September 19,
    2012 and charged with murder. He has remained in custody.

[7]

On November 13, 2014, the court ordered an
    assessment to determine whether he was fit to stand trial. He was assessed by
    Dr. Colleton at the Centre for Addiction and Mental Health and found fit to
    stand trial.

[8]

The appellant was to attend court on March 11, 2015,
    for a routine to be spoken to appearance. His counsel said that before court,
    the appellant had exhibited strange behaviour and wanted counsel fired. Later,
    while in court with his counsel, and waiting for his case to be called, he
    interrupted another matter as follows:

Appellant: Im guilty.

The Court: All right. Ill speak to you in a
    moment, sir. Could the - is the tagalog interpreter here? All right. If you
    could just indicate to this gentleman that Im going to deal with his...

Appellant: Im guilty.

The Court:  case in a couple of - Im going to
    deal with his case in a couple of minutes?

Appellant: Im so sorry. I want to tell the truth
    that Im guilty, what happened between me and my wife. I love her. Because....

The Court: Okay. All right. Sir....

Appellant: I love her so so much. But she dont
    love me anymore. She pretended everything she do to me.

The Court: Okay. Sir

Appellant: Thats why I tell the truth.

The Court: All right. Im going to deal with your
    case

Appellant: Tell the truth that I am the one who
    killed my wife.

The Court: All right Mr. Tayongtong, Im going to
    speak to your case in a couple of moments. I want you to sit down, please.

Minutes later a second exchange took place:

Appellant: Justice

The Court: All right. Well deal with Mr.
    Tayongtong if the

Appellant: Im guilty. Thats the truth. Justice,
    Im guilty.

The Court: Thank you.

Appellant: That is the truth.

The Court: Thank you. All right.

Appellant:
    Justice, Im guilty. I tell the truth. Justice, Im guilty. I am so sorry for
    what happened between me and my wife, what happened to us. Im telling the
    truth. I dont want to lie anymore. Its better for me to tell the truth. Its
    better for me to tell the truth. Justice, Im guilty.

The Court: Thank you.

[9]

The presiding judge immediately conducted a summary
    fitness inquiry. The appellants responses demonstrated an understanding of the
    charges, but the judge nonetheless ordered a fitness assessment pursuant to s. 672.1(1)(a)
    of the
Criminal Code
. The
    matter was adjourned to March 17 when Dr. Colleton would be available at the
    courthouse to conduct the assessment.

[10]

On March 17, Dr. Colleton observed that the appellants mental health
    had deteriorated and that he demonstrated a circular and self-contradictory
    thought process. He concluded that the appellant may not be able to instruct
    counsel and his fitness to stand trial was in question. The judge ordered a 60
    day in-hospital assessment pursuant to s. 672.14(3) of the
Criminal Code
.

[11]

On May 14, 2015, Dr. Daly reported on the appellants fitness. He
    concluded that the appellant was likely feigning mental illness and was fit to
    stand trial.

[12]

In August 2016, his fitness again became an issue and another in-hospital
    assessment was conducted, following which the judge made a make-fit order as
    requested by the Crown. The appellant was treated by Dr. Prakash. The appellant
    was agitated, not cooperative with Dr. Prakash and refused to answer his
    questions. Dr. Prakash said that good psychological testing could be done once
    he is calmed down, whether with oral medications or injections. Dr. Prakash
    added that he was torn between Dr. Dalys view that he was malingering and
    whether he had a psychotic disorder rendering him unfit. Dr. Prakash testified
    that he had not been able to engage him at all.

[13]

The appellant was treated with anti-psychotic medication while subject
    to a series of keep-fit orders.

[14]

The trial began before a jury on September 11, 2017.

THE RULINGS AT TRIAL

[15]

There were two rulings made by the trial judge at issue in this appeal:
    the admissibility of the statements on March 11, 2015; and whether there was an
    air of reality to self-defence and provocation.

The Statements of March 11

[16]

The trial judge ruled that the appellants
    utterances on March 11 were not protected statements.  They were not made to a
    person in authority. They were spontaneous, volunteered statements made in a
    public courtroom to the presiding justice. Their admissibility was not impacted
    simply because the Crown and the investigating officer happened to be in the
    public place at the time.

[17]

The appellants challenge to admissibility, based on
Charter
principles failed. The defence had
    not established, on a balance of probabilities, that the appellant did not have
    an operating mind on March 11, 2015. Even if the confessions rule applied, the
    trial judge would nevertheless have found the Crown had established beyond a
    reasonable doubt that the appellant had an operating mind on March 11, 2015. He
    relied on Dr. Dalys assessment. He concluded that Dr. Prakash did not assist
    the appellant given the failure of the appellant to engage with him.

[18]

The March 11 statements were admitted.
[1]

Self-defence and provocation
[2]

[19]

The appellant asked the court to instruct the jury on self-defence and
    provocation. He argued that an inference could be drawn that Aicha had the
    knife in her hand and was threatening the appellant with it. The trial judge
    ruled that there was no air of reality to support an instruction on either self-defence
    or provocation. He explained:

·

Aicha must have been on the floor when she was
    stabbed. This is evident from the fact that the blood spatter was almost all
    below the countertops. She could not therefore have been standing with the
    knife in her hand.

·

The blue-handled knife was in her non-dominant
    hand. It had her blood on it. There was overwhelming evidence that it was
    placed there after her death:

o

The placement of the blade was unusual in that
    it is standing straight up as though to keep it on its edge.

o

There was no aspirated blood from Aicha on the
    blade but there was everywhere else.

o

The blood spatter pattern was uniform even when
    the knife was removed. There was no spot (or void) behind the blade with no
    blood as there would have been had she been holding it before she died.

o

Aicha had blood over her entire hand. The handle
    marks left on her hand were not consistent with the knife having been grabbed
    by her while alive.

·

The appellants blood was found in the apartment.

·

The appellant was found to have small, healed cuts
    on his fingers and some healed scratches.

·

Aicha had several defensive wounds on her hands and
    arms.

[20]

Following the air of reality test set out in
R. v. Cairney
, 2013 SCC 55, [2013] 3
    S.C.R. 420, the trial judge considered the elements of self-defence and
    provocation.

[21]

He found there was no reasonable inference available to the jury to
    conclude that Aicha first attacked or threatened the appellant. In any event,
    it would defy all logic that the appellant did not use more force than
    necessary to defend himself. She suffered 138 stab wounds. Further, there was
    no evidence that would meet the criteria of any of the
Criminal Code

provisions
    dealing with self-defence.

[22]

With respect to provocation, he found that, without any evidence as to
    what, if any, wrongful act was allegedly done by Aicha, there was no basis for
    the jury to determine whether, objectively, it would cause a reasonable person
    to lose control. Nor was there any evidence of the subjective element. There was
    simply a vacuum that could not be filled by speculation.

ISSUES

(1)

Did the trial judge err by
    admitting the March 11, 2015 utterances?

(2)

Did the trial judge err by
    concluding that there was no air of reality to self-defence or provocation?

(3)

Did the trial judge err by
    imposing a 17-year period of parole ineligibility?

ANALYSIS

(1)

Did the trial judge err by admitting the March 11, 2015 utterances?

[23]

The
    appellant raises four reasons to support his submission that the statements
    should not have been admitted.

[24]

First,
    the appellant submits that the March 11 statements were protected statements
    and therefore inadmissible pursuant to s. 672.21(2) of the
Criminal

Code
because they were made during the course and for the purposes of an assessment
    or treatment directed by a disposition. He urges a broad and liberal
    interpretation of the protection. He submits that the statements were so
    closely linked to the
Taylor

test
    inquiry that they are part of the assessment:
R. v. Taylor
(1992)
, 11 O.R. (3d) 323 (C.A.).

[25]

Second,
    he submits that the statements were analogous to an aborted guilty plea.
    Relying on
Thibodeau v. The Queen
, [1955]
    S.C.R. 646, he submits that when a guilty plea is entered and then permitted to
    be withdrawn, it cannot be adduced at a subsequent trial.

[26]

Third,
    he submits that the statements were not the product of an operating mind and
    thus it creates a great unfairness to the appellant to have the statement
    admitted. Fitness, he submits, is a fluid issue and the fact that the
    appellant was fit after March 11 does not mean he was fit on March 11. Indeed,
    the judge found reasonable grounds to order a fitness assessment on that day.

[27]

Finally,
    the probative value of the statement was outweighed by its prejudicial effect.
    By admitting the statement into evidence, the trial judge effectively
    eliminated potential defences.

[28]

I
    do not agree that the statements fall within the protection of s. 672.21(1)
    which provides:

672.21
(
1
) In this section,
protected statement
means a statement made by the accused during the course and for the purposes of
    an assessment or treatment directed by a disposition, to the person specified
    in the assessment order or the disposition, or to anyone acting under that
    person's direction.

[29]

The
    appellants statements were made in open court, during a to be spoken to
    appearance. There was no assessment underway. They were made before an
    assessment had been ordered and not during the course of or for the purposes of
    an assessment or treatment. They were not made to a person specified in the
    assessment.

[30]

Nor
    do I accept the analogy to a withdrawn guilty plea. The appellant did not
    attempt to plead guilty. He had not been arraigned. There was no plea inquiry,
    no reading of the allegations and no judicial consideration of the plea. The
    appellants utterances were interrupting other ongoing matters.

[31]

The
    trial judge concluded that the appellant had an operating mind when he made the
    statements. He relied on the opinion of Dr. Daly who authored the May 14 report.
    Dr. Daly said that the appellant surpassed the fitness threshold and his
    purported symptoms are feigned. The trial judge was entitled to rely on this
    evidence. The trial judge considered and rejected Dr. Prakashs conclusions
    because the appellant did not engage with him.

[32]

Finally,
    while the evidence did bolster the Crowns case, and increase the risk of
    conviction, it does not follow that the probative value is outweighed by the
    prejudicial effect. Evidence is prejudicial if its reception would threaten
    trial fairness, or there is a real risk that the jury will misuse the evidence:
R. v. Frimpong
,
2013
    ONCA 243, 106 W.C.B. (2d) 326, at para. 18. Those factors do not exist here. There
    was no scope for misuse by the jury as the evidence included the entire context
    of the statement. Also, at the request of the appellants trial counsel, the
    statement was edited to eliminate the implication of the mental health issues.

[33]

The
    trial judge did not err by admitting the March 11, 2015 utterances.

(2)

Did the trial judge err by concluding that there was no air of reality
    to self-defence or provocation?

[34]

The
    appellants theory with respect to self-defence and provocation rests with the
    blue-handled knife.

[35]

There
    are three aspects of the forensic evidence that the appellant says allow for
    the inference that Aicha was holding the knife before she died:

(a)

The blood
    stains lower than the countertops could only have resulted from stab wounds
    which caused bleeding. There could have been stab wounds  such as a stab to
    the heart  that would not have caused immediate bleeding. Aicha could have
    been stabbed in the heart while standing. This would have produced no immediate
    blood loss and would explain why there was no blood spatter above the
    countertop height. The forensic evidence could not identify the sequence of
    stab wounds. Consequently, she could have endured a fatal stab wound while
    standing with a knife in her hand.

(b)

If she had
    been stabbed in the heart while standing it could have resulted in her
    immediate death and a cadaveric spasm causing her to grasp the knife she had
    been holding.

(c)

The
    void of aspirated blood behind the knife could have been the result of her movement
    while on the ground. There was evidence of her hair in various places in the
    kitchen indicating that her body was moving while she was being stabbed on the
    ground. This could explain the lack of a void and eliminate the inference that
    the knife was placed in her hand after her death.

[36]

Ultimately,
    the appellant submits that, by finding that the knife was placed in Aichas
    hand after her death, the trial judge usurped the function of the jury. The
    jury could have found that the knife was in her hand before her death and there
    is thus an air of reality to self-defence and provocation.

[37]

Whether
    there is an air of reality to a defence is a question of law, reviewed on a
    correctness standard:
R. v. Cinous
, 2002 SCC
    29, at para. 55. The air of reality test will be satisfied if there is evidence
    on the record upon which a properly instructed jury acting reasonably could
    acquit:
Cinous
, at para. 51.

[38]

A
    properly instructed jury acting reasonably could not have acquitted on the
    basis of self-defence or provocation, even when the evidence is taken at its
    highest. As the trial judge concluded, the appellants theories are pure speculation.
     Even if the jury believed that Aicha had a knife and threatened the appellant
    with it, there were still significant gaps in the evidence about the subjective
    and objective components of the tests for self-defence and provocation.

[39]

Consider
    the elements of self-defence under each section of the
Criminal
    Code
:

·

Section 34: there was no evidence that Aicha had first attacked
    or threatened the appellant with a knife. Further, as the trial judge said, it
    was not possible to conclude that, if she did attack first, the response was no
    more than necessary to defend himself. In addition, there was no evidence about
    the sequence of events or about the appellants state of mind.

·

Section 35: there was no evidence about the appellants state of
    mind, or whether he retreated as far as reasonably possible.

·

Section 37: it is impossible to conclude that the appellant used
    no more force than necessary to prevent the assault.

[40]

The
    jury would have had to speculate about events surrounding her death and the
    appellants state of mind.

[41]

Similarly,
    there was no evidence with respect to the subjective and the objective analysis
    required to make a determination with respect to provocation, including whether
    the wrongful act was sufficient to deprive an ordinary person of self-control,
    whether the appellant acted in response to the provocation, and whether the
    appellant acted on the sudden before there was time for his passion to cool:
R. v. Tran
, 2010 SCC 58, at paras. 25, 36.

[42]

The
    evidence does not support either defence. Aicha suffered 138 knife wounds,
    contusions, abrasions and defensive wounds. The appellant had a few scratches.
    The knife was in her right hand. She was left-handed. Dr. Herath, the forensic
    pathologist, and Det. Hofstetter, the blood pattern analyst, testified that in
    their opinion the knife was placed in her hand after her death.

[43]

The
    trial judge did not err by concluding that there was no air of reality to
    self-defence or provocation.

(3)

Did
the trial judge err by imposing a 17-year
    period of parole ineligibility
?

[44]

The
    appellant submits that the period of parole ineligibility is unfit. He says the
    trial judge failed to consider that the appellant had suffered a stroke and had
    no history of domestic violence.

[45]

The
    trial judge did refer to an absence of prior domestic abuse. But this is not a
    mitigating factor.

[46]

The
    trial judge was aware of the appellants stroke and concluded that little
    weight should be given to this fact. His reasons explain:

The Defence points to Mr. Tayongtongs stroke in
    2010 to submit that he is disabled. I am not persuaded this is a significant
    factor. First, the evidence is that, during the few months leading up to the
    murder, Mr. Tayongtong took martial arts lessons, went to the gym, walked
    frequently, and was capable of giving massages. In addition, Dr. Chans
    evidence was that this was a mild stroke and had seen him attend numerous
    medical appointments unassisted. Lastly, given the amount of strength and
    effort needed to commit this murder, it belies any finding that Mr. Tayongtong
    was physically disabled to the extent it impacts his sentence.

There is also evidence that Mr. Tayongtong used a
    cane when necessary to persuade a doctor that he needed social assistance. But
    there is also some evidence that Mr. Tayongtong had used a cane on at least
    another occasion. I am not prepared to go so far as to find that the evidence shows
    Mr. Tayongtong was a manipulative man when it came to his physical abilities.

[47]

An appellate court may only interfere with a sentence if there is an
    error of law or principle that has an impact on the sentence or the sentence is
    demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 2 S.C.R. 1089, at para. 11. I see no error in
    principle in the trial judges discretionary conclusion that the parole ineligibility
    period should be 17 years. The brutality of the murder of a domestic partner
    and the lack of mitigating factors permit the court to impose a term of up to
    17 years:
R. v. French
,
2017 ONCA 460, at para 31. There was no error in principle and the
    sentence was fit.

CONCLUSION

[48]

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

Released: May 3, 2021 DW

M.L. Benotto J.A.

I agree David Watt J.A.

I agree M. Jamal J.A.

[1]
There was also a March 17, 2015 statement which the trial judge
    ruled admissible. The Crown did not seek to admit it at trial and it does not
    form part of this appeal.

[2]

Self-defence and provocation in this case are governed by
    the former provisions, not the current scheme.