COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tenthorey, 2021 ONCA 324

DATE: 20210518

DOCKET: C67163

Feldman, Paciocco and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathan Lowell Tenthorey

Appellant

James Lockyer and Jessica Zita, for the
    appellant

Elena Middelkamp, for the respondent

Heard: March 10, 2021 by videoconference

On appeal from the conviction entered on
    April 5, 2019 by Justice Kirk W. Munroe of the Superior Court of Justice,
    sitting with a jury.

Paciocco J.A.:

OVERVIEW

[1]

Nathan Tenthorey was tried before a jury and
    convicted of committing an aggravated assault on Robert Brochu, contrary to s.
    268 of the
Criminal

Code
of
Canada
, R.S.C.
    1985, c. C-46. He appeals that conviction.

[2]

Mr. Tenthoreys first ground of appeal is that
    the trial judge erred in law by failing to instruct the jury on the included
    offences of (a) simple assault, contrary to s. 266 of the
Criminal

Code
,
    and (b) assault causing bodily harm, contrary to s. 267(b) of the
Criminal

Code
.

[3]

In making this argument, Mr. Tenthorey relies
    upon s. 662(1) of the
Criminal

Code
, which provides
    that a person charged with an offence is in jeopardy of being convicted not
    only of the charged offence, but alternatively of any included offences. He
    maintains that, in law, the offences of simple assault and assault causing
    bodily harm are included offences in a non-particularized charge of aggravated
    assault, the charge he faced. He submits that where (1)
legally
, an
    offence qualifies as an included offence, and (2)
factually
, there is a
    realistic possibility a jury could find the accused committed that included
    offence but not the charged offence, a trial judge is required to instruct the
    jury on the included offence. He argues that in his case both preconditions
    were met, yet the trial judge failed to charge the jury on the offences of
    simple assault and assault causing bodily harm. Mr. Tenthoreys position is
    that, had the jury known he was also being tried for simple assault and assault
    causing bodily harm, they may have found it more suitable to find him guilty of
    one of those less serious offences, rather than aggravated assault.

[4]

Mr. Tenthorey also argues, based on the line of
    authority following
R. v. Soobrian
(1994), 96 C.C.C. (3d) 208 (Ont. C.A.),
    that the trial judge erred in law by failing to give a
Soobrian

limiting
    instruction directing the jury not to draw an adverse inference against Mr.
    Tenthorey based on the Crowns impeachment of one of its own witnesses, Jessica
    Gregory.

[5]

For reasons that follow, I would allow the
    appeal on the included offences ground, but not on the
Soobrian

limiting
    instruction ground. I would set aside Mr. Tenthoreys aggravated assault conviction
    and order a new trial.

MATERIAL FACTS

Events prior to the assault on Mr. Brochu

[6]

The assault on Mr. Brochu occurred at a house
    party in the early morning of July 23, 2016 in Lakeshore, Ontario (formerly
    known as Belle River). The events relevant to the assault began hours earlier
    at a local festival. Mr. Tenthorey and Mr. Brochu were at the festival, as were
    many of the party guests later present at the time of the assault. Everyone called
    as a witness to the assault had been drinking that evening.

[7]

There had been tension between Mr. Tenthorey and
    Mr. Brochu at the festival. Mr. Tenthoreys girlfriend
[1]
, Ms. Gregory, had complained
    to Mr. Tenthorey that Mr. Brochu touched her inappropriately while they were
    both in the festivals beer tent. Mr. Tenthorey confronted Mr. Brochu at the
    festival, but the encounter ended peacefully.

[8]

After the festival, Mr. Tenthorey and Ms.
    Gregory crossed paths with Mr. Brochu again at the house party, which was at the
    home of John Markakis. At the party, an incident involving Ms. Gregory, Mr.
    Brochu, and Jonathan Snider occurred in the kitchen area of the house. This
    incident led to the assault on Mr. Brochu that is the subject of this appeal,
    and it led to Mr. Snider being knocked to the ground.

Mr. Brochus injuries

[9]

During the altercation, Mr. Brochu sustained aggravated
    facial injuries. When treating Mr. Brochu, Dr. Morhaf Sadek observed blunt
    force injuries, namely, fractures to four different facial bones. Dr. Sadek said
    Mr. Brochus facial injuries were caused by more than one instance of blunt
    force trauma. While it was impossible for Dr. Sadek to describe the exact
    degree of force used, he noted that not all blunt force trauma is forceful
    enough to cause bone fractures.

Evidence relating to the assault on Mr.
    Brochu

[10]

Whether because of the alcohol consumption of
    the witnesses, or for other reasons, it is fair to say that the Crown was
    challenged in presenting a description of the entire confrontation in which Mr.
    Brochu was injured. Three of the Crown witnesses, including Mr. Snider,
    testified they had no memory of the events that evening due to alcohol
    consumption. None of the others could provide a complete narrative of the
    entire assault on Mr. Brochu.

[11]

Mr. Brochu testified that he did not see who assaulted
    him. He stated that the confrontation in the kitchen began with Ms. Gregory hitting
    Mr. Snider. Mr. Brochu said he was trying to intercede to separate Ms. Gregory
    and Mr. Snider when a man whom Mr. Brochu could not identify began punching Mr.
    Snider. Mr. Brochu said he then saw Mr. Tenthorey come over. He expected Mr.
    Tenthorey to pull his girlfriend off of Mr. Snider. Mr. Brochu testified that
    he himself was then clubbed across the side of the face. He did not see the
    blow, only a flash, but he concluded that he had been assaulted by Mr.
    Tenthorey because he was struck on the left side of his face and Mr. Tenthorey had
    been the only person in the room to his left side.

[12]

Mr. Brochu testified that after being struck, he
    fell to the ground and someone administered numerous kicks to his face, which
    he described as soccer style kicks. He could not look up during the attack to
    see who was attacking him. He could see only shoelaces and a big sneaker. He
    assumed it was Mr. Tenthorey who was kicking him.

[13]

Mr. Brochu testified that he got up when the
    kicking ended and saw Mr. Tenthorey standing as though they were going to square
    off and have another fight.

[14]

During his examination-in-chief, Mr. Markakis
    testified that he saw Mr. Brochu on the ground but that there were two other
    guys fighting beforehand. He identified the two men as Mr. Snider and a man
    named Daniel. He said those two were fighting in or near the bathroom, right
    next to the kitchen. Mr. Markakis testified that he was trying to break up that
    fight, and so was Mr. Brochu, who was behind Mr. Markakis at the time. Mr.
    Markakis testified he was not present when Mr. Brochu was assaulted but that he
    saw Mr. Brochu on the ground with his nose bleeding and tried to help him, but that
    Mr. Brochu had refused his help.

[15]

Mr. Markakis further testified that he later saw
    Mr. Brochu trying to figure out who hit him, and that Mr. Brochu and Mr.
    Tenthorey eventually went outside where Mr. Markakis observed the two men trying
    to fight each other.

[16]

While being cross-examined by Mr. Tenthoreys
    trial lawyer (who did not argue the appeal before us), Mr. Markakis said that
    when he saw Mr. Brochu on the ground, Mr. Tenthorey was standing right by him.
    Mr. Markakis agreed with the suggestion that he had no idea who injured Mr.
    Brochu. He initially said he did not know whether Mr. Tenthorey had done
    anything to Mr. Brochu, but then said, I think I only seen [Mr. Tenthorey]  I
     I think I only seen him  sorry. I think I only seen one kick. Thats it. He
    said that the kick was into Mr. Brochus face, like kicking  a soccer ball.
    When asked if he was sure about this, Mr. Markakis said, [c]ause after I
    broke up the fight, I remember saying, Why  whyd you kick him to his face.
    Mr. Markakis then agreed with the suggestion that he was unsure whether he saw
    Mr. Tenthorey kick Mr. Brochu because he had been drinking, the event occurred four
    years before, and people had told him a lot of stuff since then about this.

[17]

Ms. Gregory was also called as a witness by the
    Crown. She testified that Mr. Brochu had been touching her in the kitchen and
    she punched him in the chest. Mr. Tenthorey was outside on the patio at the
    time. Ms. Gregory said Dylan Lafreniere and Mr. Snider began punching Mr.
    Brochu. At this point, she said Mr. Tenthorey came into the kitchen and led her
    away from the altercation.

[18]

Mr. Lafreniere did not testify at the trial.

[19]

As indicated, Mr. Snider testified that he could
    not remember what happened.

[20]

Billie-Jo Lemire testified that Mr. Brochu and
    Mr. Snider were hitting on her and Ms. Gregory at the party. Jesse Broadfoot,
    Ms. Lemires boyfriend at the time, told Mr. Brochu and Mr. Snider to stop. She
    said there were two loud bangs and she saw Mr. Brochu and Mr. Snider on the
    ground. She saw that Mr. Snider was dazed but uninjured. She then heard a third
    bang coming from the kitchen and saw Mr. Brochu bleeding from the nose. She
    said she did not know who hit the men.

[21]

Ms. Lemire also testified that she subsequently
    saw Mr. Brochu outside, attempting to fight Mr. Tenthorey. She heard Mr.
    Tenthorey trying to de-escalate the situation and apologizing to Mr. Brochu for
    something.

[22]

Mr. Brochus brother, Jean-Paul, who was not at
    the party, testified that the morning after Mr. Brochu was assaulted he began
    to make inquiries about what had happened, including in a phone call to Mr.
    Markakis. Shortly after the call with Mr. Markakis, Jean-Paul received a phone
    call from a man who identified himself as Nate. Jean-Paul testified that Nate
    told him that he had smashed my brothers face in because he hit on his
    girlfriend.

[23]

Jean-Paul further testified that during his call
    with Nate a woman was shouting in the background that she was going to press
    charges against Jean-Pauls brother for sexual assault.

[24]

Mr. Markakis confirmed that Jean-Paul had called
    him to inquire about what had happened at the party and that Jean-Pauls phone
    number was visible to him through caller ID. Mr. Markakis also said he gave Jean-Pauls
    phone number to Mr. Tenthorey.

[25]

Ms. Gregory denied being part of any such phone
    conversation.

Events relevant to a
Soobrian

limiting

instruction

[26]

During Ms. Gregorys testimony, the trial Crown (who
    did not argue the appeal before us) was given leave pursuant to ss. 9(1) and
    9(2) of the
Canada

Evidence

Act
, R.S.C. 1985,
    c. C-5 to cross-examine Ms. Gregory about the prior inconsistent testimony she
    had given at Mr. Tenthoreys bail hearing. Specifically, at trial Ms. Gregory provided
    the above-described account of the assault against Mr. Brochu, yet at Mr. Tenthoreys
    bail hearing she testified she was not present during the assault on Mr. Brochu
    and therefore had not seen what happened.

[27]

When requesting leave to cross-examine Ms. Gregory
    pursuant to s. 9(2) of the
Canada

Evidence

Act
,
    the trial Crown made clear that he would not suggest to the jury that Ms.
    Gregory was colouring her evidence in favour of Mr. Tenthorey such that Mr.
    Tenthorey is somehow in cahoots. He simply wanted her evidence disregarded
    and expected the trial judge would give a specific charge.

[28]

At the end of the s. 9(2)
voir

dire
,
    the trial Crown requested a ruling under s. 9(1) of the
Canada

Evidence

Act

that Ms. Gregory was an adverse witness. As a result, a
voir

dire
regarding s. 9(1) followed. During the s. 9(1)
voir

dire
, the trial judge said he was looking for an instruction to
    the effect that this is not evidence of any collusion or any linking of  what
    [Ms. Gregorys] giving evidence [of] to [Mr. Tenthorey].

[29]

After delivering his s. 9 rulings in favour of
    the Crown, the trial judge shared with counsel a draft mid-trial instruction he
    had prepared and asked for their input. The draft mid-trial instruction
    contained the following clause addressing the
Soobrian
concern:

This cross-examination on a previous statement
    can be used on the issue of credibility of that witness, but it is not to
    reflect on the accused person as indicating that they are not credible or are
    guilty.

[30]

Mr. Tenthoreys trial counsel told the trial
    judge he wanted to reserve his comments on the proposed charge until after the
    Crowns cross-examination of Ms. Gregory was complete. During the further exchange
    that followed, the trial judge decided not to include the proposed mid-trial
Soobrian

limiting instruction because he did not yet know whether Mr. Tenthorey would
    testify. The trial judge provided the balance of the proposed mid-trial
    direction relating to the proper use of prior inconsistent statements.

[31]

The trial Crown then confronted Ms. Gregory with
    her inconsistent testimony. She attempted to explain the inconsistency by
    claiming that she thought she had been called at the bail hearing to testify
    only about the assault allegedly committed by Mr. Tenthorey, not about the
    whole night.

[32]

Later that afternoon, after a recess during the
    testimony of another witness, the trial judge noted that he had not gotten back
    to Mr. Tenthoreys trial counsel as to whether there should be a further
    mid-trial instruction relating to Ms. Gregorys testimony. Mr. Tenthoreys trial
    counsel responded: Well, no. I think its  just as easy if you leave it to
    the end because again, [Ms. Gregorys] evidence is fairly close to the end [of
    trial] in any event. No further mid-trial instruction was provided.

[33]

In his closing address, the trial Crown
    submitted the following to the jury:

Ms. Gregory has no respect for the oath. Shes
    making up her evidence. She is trying to protect her fiancé [Mr. Tenthorey].
    Her testimony as to  her explanation for that testimony [at the bail hearing]
    rings very hollow, and [I] say in the strongest terms  but its up to you
    that you should reject her evidence out of hand.

[34]

Nothing was said by anyone about a
Soobrian

limiting instruction during the pre-charge conference. Nor was a
Soobrian

limiting

instruction included in any of the draft charges, or in the
    final charge to the jury.

The jury charge on the offences to be
    considered

[35]

Section 268(1) of the
Criminal

Code
sets out four distinct ways in which an aggravated assault can be committed,
    by: (1) wounding, (2) maiming, (3) disfiguring, or (4) endangering the life of
    another. It does so in simple terms:

268
(1)
    Everyone commits an aggravated assault who wounds, maims, disfigures or
    endangers the life of the complainant.

[36]

The aggravated assault charge in the indictment
    against Mr. Tenthorey did not specify the mode of committing aggravated assault
    that was being alleged. It was a general, non-particularized charge. It simply
    said that he, on or about the 23
rd
day of July, 2016, at the town
    of Lakeshore in the said Southwest Region, did commit an aggravated assault on
    Robert Brochu, contrary to s. 268 of the
Criminal

Code
.

[37]

Initially, the trial judge anticipated charging
    the jury on the included offences of simple assault, contrary to s. 266 of the
Criminal

Code
, and assault causing bodily harm, contrary to s. 267 of the
Criminal

Code
. The draft charges the trial judge prepared included
    instruction on both offences, but he indicated when he shared the draft charges
    with counsel that he had yet to finally decide whether to give such instructions.

[38]

In the initial pre-charge conference on April 2,
    2019, Mr. Tenthoreys trial counsel took the position that simple assault,
    contrary to s. 266 of the
Criminal

Code
, was certainly
    an included offence in the aggravated assault charge Mr. Tenthorey faced. However,
    he was unsure whether assault causing bodily harm, contrary to s. 267, was an
    included offence as a matter of law. The trial judge decided to leave that
    question open for further discussion in subsequent pre-charge conferences.

[39]

The next day, April 3, 2019, Mr. Tenthoreys trial
    counsel advised the trial judge that his research had led him to conclude that,
    as a matter of law, assault causing bodily harm is not an included offence in a
    non-particularized charge of aggravated assault. He said this despite
    acknowledging that leaving the offence of assault causing bodily harm with the
    jury might benefit Mr. Tenthorey. As he wanted his client tried according to
    law, Mr. Tenthoreys trial counsel advised that he was not seeking a charge on
    assault causing bodily harm, but reiterated his request that the trial judge charge
    the jury on the included offence of simple assault.

[40]

The trial Crown disagreed with Mr. Tenthoreys
    trial counsel about whether assault causing bodily harm was an included
    offence, as a matter of law. The trial Crown advised the trial judge that it
    was.

[41]

However, as he had done the day before, the trial
    Crown asked the trial judge not to charge the jury on either assault causing
    bodily harm or simple assault. He submitted that the trial judge should give an
    all or nothing charge. It was the trial Crowns position that factually there
    was no view of the evidence, when considered as a whole, that could cause the
    jury to acquit of aggravated assault but convict of either of the two included
    offences. The trial Crown submitted that the only evidence others were involved
    in the assault came from Ms. Gregory and, if the jury believed or were left in
    doubt about whether to accept her version of events, obviously thats complete
    exculpation. He submitted that, in the circumstances, it would cause mischief
    in the thinking of the jury to instruct them on the included offences.

[42]

The trial judge urged Mr. Tenthoreys trial counsel
    to explain what reasonable view of the evidence could lead the jury to convict
    on either of the included offences. Counsel responded that the Crown had not
    proved beyond a reasonable doubt that Mr. Tenthorey was the only one who had
    administered blows to Mr. Brochu. Since it was open to the jury to find that
    Mr. Tenthorey only punched Mr. Brochu once, or kicked him once, a simple
    assault verdict was available. During the colloquy, the trial judge expressed disagreement
    with this submission, commenting that [t]heres no evidence that [Mr.
    Tenthorey] was involved and then other people jumped in. He challenged Mr. Tenthoreys
    theory that there may have been more than one assailant as speculative and
    inconsistent with the defence position that no charge was required on joint
    responsibility.

[43]

On April 4, 2019, the trial judge gave an oral
    ruling, declining to charge the jury on either assault causing bodily harm or
    simple assault. Specifically, he held that, as a matter of law, assault causing
    bodily harm was not an included offence in this case and therefore cannot be
    put to the jury.

[44]

He then ruled that although, as a matter of law,
    the offence of simple assault is included in a non-particularized aggravated
    assault allegation, factually, there was no reasonable view of the evidence
    that could cause a jury to acquit of aggravated assault but convict of simple
    assault. The trial judge said:

The Crown does not want the assault to be
    given to the jury. The defence does, arguing that the jury could find [Mr.
    Tenthorey] punched [Mr. Brochu] once but others assaulted [Mr. Brochu], causing
    his injuries. But this scenario is not part of the evidence.

The only evidence that anyone else struck [Mr.
    Brochu] comes from [Ms. Gregory], who testified that others beat [Mr. Brochu]
    and [Mr. Tenthorey] was not involved at all in the beating. Obviously if the
    jury accepts this evidence or believes it raises a reasonable doubt, [Mr.
    Tenthorey] will be acquitted. This is the major defence: Mr. Tenthorey did not
    assault Mr. Brochu.

The evidence of [Mr. Brochus] injuries as a
    result of the blows received at the house that night was unchallenged
    factually. Assuming the jury concludes that [Mr. Tenthorey] assaulted Mr.
    Brochu, in my view there is no reasonable prospect that a jury could properly
    find that those serious injuries were not caused by that assault. Accordingly,
    I decline to give the jury the lesser included offence of simple assault.

[45]

The trial judge therefore directed the jury only
    on the offence of aggravated assault, focusing exclusively on the three modes
    of commission in s. 268 that necessarily involve assaultive behaviour:
    wounding, maiming, or disfiguring.

[46]

The jury returned a verdict of guilty of
    aggravated assault.

ISSUES

[47]

The two grounds of appeal raised by Mr.
    Tenthorey can conveniently be stated and approached in the following order:

(1)     Whether
    the trial judge erred by failing to leave the jury with the included offences
    of simple assault, contrary to s. 266 of the
Criminal

Code
,
    and/or assault causing bodily harm, contrary to s. 267 of the
Criminal

Code
; and

(2)     Whether
    the trial judge erred by failing to provide the jury with a
Soobrian

limiting instruction relating to Ms. Gregorys testimony.

[48]

In his notice of appeal, Mr. Tenthorey also
    sought leave to appeal his sentence. However, on May 26, 2020, Mr. Tenthorey
    abandoned his sentence appeal.

ANALYSIS

1.       The Included Offence Errors

(a)     The
    Offence of Assault Causing Bodily Harm is Included in a Non-particularized Charge
    of Aggravated Assault

[49]

The Crown concedes the trial judge committed a
    legal error in holding that, as a matter of law, assault causing bodily harm is
    not an included offence in a non-particularized charge of aggravated assault. This
    concession is correct. It is well-established that, legally, assault causing
    bodily harm is an included offence in a non-particularized charge of aggravated
    assault:
R. v. Wong
(2006), 209 C.C.C. (3d) 520 (Ont. C.A.), at para.
    11;
R. v. Lucas
(1987), 34 C.C.C. (3d) 28 (Que. C.A.), at pp. 32-33;
R.
    v. Soluk
, 2001 BCCA 519, 46 C.R. (5th) 380, at para. 16.

[50]

The error committed by the trial judge, and by Mr.
    Tenthoreys trial counsel for that matter, is understandable. Each applied a
    test for identifying included offences that is adequate if there is only one
    mode of committing the charged offence. However, that same test produces
    inaccurate results if applied where there is more than one mode of committing
    the charged offence, as in the case of a non-particularized charge of
    aggravated assault.

[51]

In order to discourage similar errors in future
    cases, I will explain the source of the error in more detail. I also propose the
    following test, which can be used in identifying included offences, regardless
    of the nature of the charged offence: an offence will be an included offence if
    the essential elements of that offence would necessarily be proved if the Crown
    were to successfully establish any one of the legally available avenues of
    conviction for the charged offence.

[52]

To understand the source of the error in this
    case, one must begin with the underlying concept of an included offence. As a
    matter of fundamental justice, an accused person is only called upon to meet
    the charge put forward by the prosecution:
R. v. G.R.
, 2005 SCC 45,
    [2005] 2 S.C.R. 371, at para. 2. This is because an accused person must have
    fair notice of the charges they face. As Martin J.A. instructed in
R. v.
    Simpson

(No. 2)
(1981), 58 C.C.C. (2d) 122 (Ont. C.A.), at
    p. 133, fair notice is an operative principle governing the meaning of an
    included offence. Martin J.A. explained that the offence charged, as
    described either in the enactment creating the offence or as charged in the
    count, must be sufficient to inform the accused of the included offences which
    he must meet.
[2]
An offence is therefore an included offence if it is part of the main or
    charged offence, or is embraced by the main or charged offence:
Simpson
    (No. 2)
, at p. 133;
R. v. G.R.
, at para. 25.

[53]

Where either the charge itself or the enactment
    creating the offence provides only one mode of committing the charged offence, it
    is possible and indeed customary to test whether an offence is embraced by the
    main charge by asking whether that offence is
necessarily committed

in
    the commission of the principal offence as described in the enactment creating
    it (emphasis in original):
R. v. G.R.
, at para. 30, quoting
R. v.
    Harmer and Miller

(1976), 33 C.C.C. (2d) 17 (Ont. C.A.), at p. 19. This
    test works where there is only one mode of committing the charged offence
    because if that one mode of commission cannot be accomplished without also
    committing the included offence, the accused person will have fair notice that
    the elements of the included offence are at issue. It is therefore fair or just
    to convict the accused person of the included offence if the elements of the
    included offence are proved but the Crown falls short of proving all the
    elements of the charged offence. The offence of dangerous driving causing
    death provides an example. As I explained in
R. v. Romano
, 2017 ONCA
    837, 41 C.R. (7th) 305, at para. 12:

Dangerous driving is an included
    offence in a charge of dangerous driving causing death because it is
    impossible to commit the offence of dangerous driving causing death without
    satisfying the legal requirements or elements of the offence of dangerous
    driving. Dangerous driving causing death is an aggravated version of the
    offence of dangerous driving, distinguishable only by the added legal
    requirement that the dangerous driving must cause the death of another.

[54]

Things are somewhat more complicated where there
    is more than one mode of committing the charged offence. Since the Crown may
    succeed in proving the charged offence by establishing any one of the available
    modes of committing the charged offence, an offence will be included if it is
    necessarily proved by establishing any one of the different ways in which the
    charged offence can be committed:
Simpson (No. 2)
, at p. 139;
Luckett
    v. The Queen
, [1980] 1 S.C.R. 1140;
R. v. Benoit
, 2014 ONCA 457,
    [2014] O.J. No. 2770. This is because an accused person, alerted by law that
    the Crown can succeed in the prosecution by establishing any one of the modes
    of commission, will have fair notice that the Crown may ultimately prove any
    offence that is necessarily proved when establishing any one of those modes of
    commission.

[55]

A non-particularized charge of aggravated
    assault falls into this latter category. As indicated, where an aggravated
    assault charge is not particularized, the Crown may succeed in establishing
    aggravated assault by proving any one of the four modes of commission. Three of
    those modes of commission (wounding, maiming, and disfiguring) cannot be
    committed without also committing an assault causing bodily harm. An accused
    person, such as Mr. Tenthorey, facing a non-particularized charge of aggravated
    assault will therefore have fair notice that the elements of assault causing
    bodily harm are at issue.

[56]

Yet if one set out to determine whether assault
    causing bodily harm is an included offence in a non-particularized charge of
    aggravated assault by applying the test used for offences that have but one
    mode of commission, a different  and incorrect  answer would result. Since
    the fourth mode of committing aggravated assault (endangering the life of
    another) can be committed without also committing an assault causing bodily
    harm, assault causing bodily harm is not necessarily committed in the commission
    of the principal [or charged] offence.

[57]

Both the trial judge and Mr. Tenthoreys trial counsel
    erred in this way; by employing the test identified in
R. v. G.R.
, at
    para. 30, a case involving an offence with a single mode of commission. In
    fairness, their errors are understandable because, unfortunately, it is not
    uncommon for judges deciding single-mode of commission cases to describe the
    test articulated in
R. v. G.R.
as
the
test for identifying
    included offences. Regrettably, I did so myself in
Romano
, at para. 11.

[58]

Obviously, the confusion that occurred in this
    case could have been avoided if the test for included offences was described in
    a way that would work for both single-mode and multiple-mode charged offences.
    Hence the test I have articulated here: an offence will be an included offence
    if the essential elements of that offence would necessarily be proved if the
    Crown were to successfully establish any one of the legally available avenues
    of conviction for the charged offence.

[59]

Applying this test, the offence of assault
    causing bodily harm would necessarily be proved if the Crown were to successfully
    establish any one of three legally available avenues of convicting Mr.
    Tenthorey of the non-particularized offence of aggravated assault; wounding,
    maiming, or disfiguring. Therefore, as a matter of law, assault causing bodily
    harm is an included offence in the charge Mr. Tenthorey faced. The trial judge
    erred in finding otherwise.

(b)     The
    Crowns Harmless Error Submission

[60]

The Crown conceded before us that the trial
    judge erred in holding that, legally, assault causing bodily harm is not an
    included offence in a non-particularized charge of aggravated assault.
    Nevertheless, the Crown submits that this error was harmless, contending the
    trial judge was nonetheless correct in not instructing the jury on the included
    offence of assault causing bodily harm because the factual precondition to such
    instruction was not met. Specifically, the Crown argues that there is no
    reasonable view of the evidence on which a jury could acquit Mr. Tenthorey of
    the charged offence of aggravated assault yet convict him of the offence of
    assault causing bodily harm.

[61]

This argument by the Crown mirrors the trial
    judges reasoning relating to the offence of simple assault, contrary to s. 266
    of the
Criminal

Code
. The trial judge recognized that,
    as a matter of law, simple assault is an included offence in a non-particularized
    charge of aggravated assault, contrary to s. 268 of the
Criminal

Code
:
R. v. Rocchetta
, 2016 ONCA 577, 352 O.A.C. 130, at para 38. However, he
    held that, factually, there was no reasonable view of the evidence on which the
    jury could acquit Mr. Tenthorey of the charged offence of aggravated assault
    yet convict him of the offence of simple assault. The trial judge therefore
    refused to charge the jury on the offence of simple assault.

[62]

The Crowns harmless error argument and Mr.
    Tenthoreys ground of appeal that the trial judge erred in failing to charge
    the jury on the offence of simple assault thus turn on whether the factual
    precondition to a mandatory included offence charge was met. There is overlap
    in determining whether the factual precondition for each offence was met. I
    will therefore address together the factual preconditions to a mandatory jury
    charge on both included offences; assault causing bodily harm and simple
    assault.

(c)     Factually,
    the Included Offences of Assault Causing Bodily Harm and Simple Assault Were Available
    on a Reasonable View of the Evidence

[63]

Even if, as a matter of law, an offence is
    included in a charged offence, trial judges are not required to instruct a jury
    on the law applicable to that included offence unless there is an air of
    reality in the evidence adduced at trial to permit a reasonable jury, properly
    instructed, to conclude that the essential elements of the included offence
    have been established:
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d)
    16, at para. 75;
R. v. Durant
, 2019 ONCA 74, 144 O.R. (3d) 465, at
    paras. 174-75.

Realistic possibility: the factual precondition
    to an included offence charge

[64]

In
R. v. Ronald
, 2019 ONCA 971, Doherty
    J.A. helpfully framed this rule of law, at para. 42:

There should be no instruction on potential
    liability for an included offence only when, on a consideration of the totality
    of the evidence and having due regard to the position of the parties and the
    proper application of the burden of proof, there is no
realistic
    possibility
of an acquittal on the main charge and a
    conviction on an included offence.

[65]

To be clear, Doherty J.A. was not purporting to
    jettison the air of reality test as the standard to be used in determining
    whether a jury instruction is required relating to an included offence. He was
    simply adding precision to the description of the air of reality test as it
    applies to included offences. He did so in order to prevent confusion with the application
    of the air of reality test when it is used to determine whether a positive
    defence should be left with a jury:
Ronald
, at paras. 43-46. However,
    in both contexts, the air of reality test performs the same basic function. As
    Doherty J.A. explained, [b]oth inquiries seek to focus the jurys attention on
    the live issues actually raised by the evidence. By doing so, the risks of
    unreasonable verdicts, juror confusion, or improper compromise by jurors, are
    reduced:
Ronald
, at para. 43.

[66]

Whether applied in identifying included offences
    or available defences, the air of reality test performs another function:
    ensuring that trial judges do not encroach on the role of the trier-of-fact
    when determining whether there is a live issue in a jury trial. The existing restrictions
    to accomplish this can best be illustrated by examining more generally how the
    law limits the operation of the threshold tests for identifying the live issues
    in a case. There are two such tests: (a) the air of reality test; and (b) the
    more familiar
prima

facie

case test, which is used to
    determine committal at preliminary inquiries and directed verdict applications
    at the close of the Crowns case.

[67]

In applying the
prima

facie

case test, in order to prevent a trial judge from encroaching on the role
    of the trier-of-fact, a trial judge is disqualified from considering the
    credibility and reliability of evidence, and from considering their own view on
    whether the Crowns case would succeed. The sole weighing exercise permitted is
    for the trial judge to determine whether the inferences required for the Crown
    to prove its case beyond a reasonable doubt are, as a matter of logic, reasonably
    available on the evidence:
R. v. Arcuri,
2001 SCC 54, [2001] 2 S.C.R.
    828, at paras. 21-24.

[68]

The air of reality test works in much the same way
    and for the same reason. The majoritys statement in
R. v. Cinous
, 2002
    SCC 29, [2002] 2 S.C.R. 3, at para. 54, referring to the air of reality test
    and defences, applies
mutatis

mutandis
to the
    application of the air of reality test in included offence cases:

The threshold determination by the trial judge
    is not aimed at deciding the substantive merits of the defence. That question
    is reserved for the jury. The trial judge does not make determinations about
    the credibility of witnesses, weigh evidence, make findings of fact, or draw
    determinate factual inferences. Nor is the air of reality test intended to
    assess whether the defence is likely, unlikely, somewhat likely, or very likely
    to succeed at the end of the day. The question for the trial judge is whether
    the evidence discloses a real issue to be decided by the jury, and not how the
    jury should ultimately decide the issue. [Citations omitted.]

[69]

Therefore, in determining whether it is possible
    for a jury to have reasonable doubt on the charged offence but to convict on an
    included offence, a trial judge should not consider how likely or unlikely the
    trial judge believes that outcome to be. Nor should the trial judge pay regard
    to concerns about the credibility or reliability of the evidence required to
    reach that outcome. In a circumstantial evidence case, the appropriate inquiry is
    into the logical reasonableness of the inferences that are available to be relied
    upon to support a realistic possibility of an acquittal on the main charge and
    a conviction on an included offence.

[70]

In
Ronald
, at paras. 52-56, when
    determining in a circumstantial evidence case whether there was a reasonable
    possibility that a jury could acquit on the main charge but convict of an
    included offence, Doherty J.A. therefore looked at
reasonable inferences
.
    He no doubt used the term reasonable inferences in much the same way that Cromwell
    J. employed that phrase in
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, at para. 36, when he held that an inference of not guilty is
    available in a circumstantial evidence case only if that inference is reasonable
    given the evidence and the absence of evidence, assessed logically, and in
    light of human experience and common sense.

[71]

Therefore, in applying the
Ronald

test,
    if there is direct evidence that the accused has committed an included offence
    but not the charged offence, or if the state of circumstantial evidence yields
    logical inferences in light of human experience and common sense that the
    accused has committed an included offence but not the charged offence, there will
    be a realistic possibility of an acquittal on the main charge but a
    conviction on an included offence. In that case, the included offence must be
    left with the jury, regardless of how incredible or unreliable the evidence may
    be, or how unlikely it is that the trier-of-fact will ultimately draw the
    relevant inferences.

Case law applying the realistic possibility
    standard for included offences

[72]

The cases argued before us conform to this
    standard. For example, in
Wong
, the appellant, who claimed he had
    acted accidentally or in self-defence, acknowledged that he had caused the
    aggravated injury or wound to the victim. Since, in these circumstances, [t]here
    was no reasonable view of the evidence that would yield an acquittal on the
    charge of aggravated assault by wounding and a conviction on the included
    offence of assault causing bodily harm, this court concluded that the trial
    judge had erred by leaving the included offence with the jury:
Wong
,
    at paras. 13-15.

[73]

In
R. v. Grewal
, 2019 ONCA 630, 379
    C.C.C. (3d) 201, the charged offence was kidnapping. The appellant argued that
    the trial judge should have directed the jury on the included offence of
    attempted kidnapping. This court disagreed. At paras. 38-45, van Rensburg J.A.
    reasoned that the only available inference from the uncontested evidence was
    that if the appellant did not participate in the kidnapping, he aided in the
    kidnapping. Both avenues enabled a conviction on the charged offence, and
    neither could support a realistic possibility of a conviction for attempt.

[74]

In
Romano
, the charged offence was
    dangerous driving causing death. It was not contested that the vehicle driven
    by the appellant struck the victim and that she died. The appellant argued that
    even if his driving was dangerous, which he denied, his dangerous driving did
    not cause the victims death, and therefore the trial judge erred by failing to
    instruct the jury on the included offence of dangerous driving. This court
    disagreed. As a matter of law, if the appellants driving was found to be
    dangerous, he would necessarily be convicted of dangerous driving causing death
    because there was simply no proper basis on which the jury could find that [the
    appellants] driving did not meet the legal requirements of causation relating
    to the victims death:
Romano
, at para. 25. In those circumstances, it
    would have been improper for the trial judge to leave the simple charge of dangerous
    driving with the jury.

[75]

None of these illustrative cases turned on
    weaknesses in the credibility or reliability of the evidence, and none had to
    do with the unlikelihood of an included offence inference. In each of them, there
    was no realistic possibility of an acquittal on the main charge and a
    conviction on an included offence because the respective included offences
    were simply not on the table.

Mr. Tenthoreys submissions with respect to
    included offences

[76]

Mr. Tenthorey argued at trial that there was a
    realistic possibility the jury could acquit him of the charged offence of aggravated
    assault but convict him of the offence of simple assault. Although not
    separated as cleanly in his submissions, he presented two paths to that
    realistic possibility that I will describe later in these reasons.

[77]

Mr. Tenthorey adopts this argument on appeal and
    contends that those same paths also present a realistic possibility that the
    jury could have acquitted him of aggravated assault but convicted him of
    assault causing bodily harm.

[78]

He points out that his trial counsel did not
    pursue the assault causing bodily harm option because of his mistaken belief
    that, legally, assault causing bodily harm was not an included offence. Mr.
    Tenthorey argues that since a trial judge is legally obliged to charge a jury
    on included offences that have an air of reality, and since it is clear that his
    trial counsels position that no such direction was required was based on an erroneous
    understanding of the law and not a tactical choice, that position is not an
    impediment to relying, as a ground of appeal, on the trial judges failure to charge
    the jury on assault causing bodily harm.

[79]

The Crown does not argue otherwise. I will
    therefore consider not only whether the trial judge erred in failing to charge
    the jury on the offence of simple assault, but also whether he failed to charge
    the jury on assault causing bodily harm.

The realistic possibility standard was met
    for both included offences

[80]

In my view, using either of the paths I am about
    to describe, there was a realistic possibility of an acquittal on the main
    charge and a conviction on either the included offence of assault causing
    bodily harm, or the included offence of simple assault. Both paths assume that
    the jury would accept either the circumstantial evidence of Mr. Brochu that Mr.
    Tenthorey punched him in the face, knocking him to the ground, and/or the
    direct testimony of Mr. Markakis that Mr. Tenthorey administered one soccer
    kick to Mr. Brochus face.

[81]

The first path Mr. Tenthorey advances rests on
    the Crowns failure to produce any witness who testified to seeing who
    perpetrated the entire assault. Mr. Tenthorey argues that, given the absence of
    such evidence, a jury could find that the Crown had failed to establish beyond
    a reasonable doubt that Mr. Tenthorey acted alone in administering the blows. In
    such circumstances, the jury could be unable to conclude that Mr. Tenthorey
    caused the aggravated injuries required to support an aggravated assault
    conviction. The jury would then be left to determine whether the blow or blows
    Mr. Tenthorey administered caused Mr. Brochu bodily harm. If the jury was able
    to infer from the nature of the blow or blows that they must have caused some
    bodily harm not rising to the level of wounding, maiming, or disfiguring, the
    appropriate verdict would be guilty of assault causing bodily harm. If the jury
    was not prepared to infer that the blow or blows caused bodily harm at all, the
    appropriate verdict would be guilty of simple assault.

[82]

To be clear, even on the path just described, if
    a jury were persuaded that Mr. Tenthorey and any other assailants acted in
    concert or jointly when attacking Mr. Brochu, aggravated assault would still
    be the appropriate verdict. However, there was no suggestion on the evidence of
    joint participation. Appropriately, this theory of party liability was not
    before the jury. Therefore, in the circumstances of this case, the path I have
    just described would lead to an included offence conviction and a verdict of
    not guilty of aggravated assault.

[83]

The second path Mr. Tenthorey advances is
    similar but relies on the affirmative evidence of Ms. Gregory that Mr. Lafreniere
    and Mr. Snider punched Mr. Brochu. A jury accepting that testimony but finding
    that Mr. Tenthorey also punched and/or kicked Mr. Brochu could equally be left with
    a reasonable doubt about whether Mr. Tenthorey caused the aggravated injuries,
    or any injury at all. This scenario, too, would lead to a verdict of guilty of
    assault causing bodily harm or simple assault, but not guilty of the charged
    offence of aggravated assault.

[84]

The trial judge concluded that neither of these
    paths was realistically possible on the totality of the evidence. In his
    included offence ruling, the trial judge held that a jury could not properly
    accept the theory that Mr. Tenthorey was not the only one to assault Mr. Brochu,
    stating this scenario is not part of the evidence. When this submission was
    raised by trial counsel in oral argument, the trial judge challenged the
    submission by saying:

Youre asking them to speculate. There is no other
    evidence  theres evidence that [Mr. Tenthorey] was either involved or he
    wasnt involved. Theres no evidence that he was involved and then other people
    jumped in. I have nothing of that.

[85]

Later, the trial judge said of the same
    submission, [the jury are] not to speculate on [whether] something may have
    happened when they have no evidence of it.

[86]

With respect, the trial judge erred in
    dismissing the paths I have identified to an included offence verdict on the
    basis that there was no evidence that [Mr. Tenthorey] was involved and then other
    people jumped in. He also erred by finding this theory to be speculative.

[87]

Speaking of reasonable doubt in circumstantial
    evidence cases in
Villaroman
, at para. 35, Cromwell J. explained why
    inferences consistent with innocence do not have to arise from proven facts:

Requiring proven facts to support explanations
    other than guilt wrongly puts an obligation on an accused to prove facts and is
    contrary to the rule that whether there is a reasonable doubt is assessed by
    considering all of the evidence.

[88]

Cromwell J. also cautioned, at para. 36, that a
    reasonable doubt, or theory alternative to guilt, is not rendered speculative
    by the mere fact that it arises from a lack of evidence.

[89]

In
Ronald
, Doherty J.A. gave several
    reasons why the trial judge in that case had erred in failing to leave the
    included offence of second-degree murder with the jury. One such reason was
    that the jury could choose not to infer planning and deliberation from the
    circumstantial evidence that the Crown had relied upon, leaving an absence of
    evidence of planning and deliberation. He reinforced the point, at para. 54,
    that [j]uries are not obliged to draw all inferences that are reasonably
    available on the evidence. Earlier in the decision, at para. 47, Doherty J.A. explicitly
    linked this proposition to included offences, as follows:

When the defence, or the Crown, argues that a
    jury should be instructed on the possibility of a conviction on the included
    offence of second degree murder, it is not essential that the party seeking the
    instruction point to evidence capable of supporting inferences that are
    inconsistent with planning and deliberation. Unlike positive defences, there is
    no evidentiary burden on the defence, or the Crown, to put the possibility of a
    conviction for the included offence  in play. It is sufficient if, on the
    totality of the evidence, a reasonable jury could be left unconvinced, beyond a
    reasonable doubt [of the charged offence]. That potential uncertainty can
    provide the basis for a proper verdict of not guilty of [the charged offence],
    but guilty on the included offence.

[90]

Because of the gaps in the evidence, the Crowns
    case that Mr. Tenthorey administered all the blows to Mr. Brochu was
    circumstantial. Even if it is likely that the jury would draw the inference
    that Mr. Tenthorey administered all the blows, the trial judge should have
    proceeded on the basis that the jury might not do so.

[91]

Nor was Mr. Tenthorey under any obligation to
    fill the gaps with evidence that others did administer blows. He was entitled
    to rely on the absence of evidence to raise a reasonable doubt about this
    possibility. Mr. Tenthoreys submission that a jury could have a reasonable
    doubt on the charged offence of aggravated assault because of the absence of
    evidence that he administered all the blows was not speculative. It arose from
    the absence of evidence and required a jury charge on the included offences.

[92]

Although not essential to this outcome, it is
    also worth noting that the realistic possibility the jury could be left in
    doubt by the absence of evidence finds additional support in the confusing testimony
    about exactly how events unfolded. Taken together, that evidence suggested
    there was a melee underway, which in my view enhances the prospect that the jury
    could have a reasonable doubt as to whether Mr. Tenthorey administered all the
    blows to Mr. Brochu.

The jury was
    entitled to accept some, none, or all of Ms. Gregorys evidence

[93]

The trial judge provided an additional reason
    for rejecting Mr. Tenthoreys second suggested path to a jury finding that he committed
    simple assault, but not aggravated assault. This additional reason is also
    problematic. The trial judge said that Ms. Gregory provided the only evidence
    that anyone else struck Mr. Brochu and that Mr. Tenthorey was not involved in
    the beating. As such, he asserted that if the jury believed Ms. Gregory, or was
    left in reasonable doubt by her evidence, Mr. Tenthorey would be acquitted.

[94]

With respect, the trial judge erred by treating
    Ms. Gregorys evidence as an all or nothing proposition. As McLachlin J. (as
    she then was) affirmed in
R. v. François
, [1994] 2 S.C.R. 827, at p.
    837, a jury may accept some of the witnesss evidence while rejecting other
    parts of it. Ms. Gregory gave direct evidence that she saw Mr. Lafreniere and
    Mr. Snider punching Mr. Brochu. The jury was entitled to accept this part of
    Ms. Gregorys evidence but reject her testimony that Mr. Tenthorey was never
    involved in the incident and never assaulted Mr. Brochu. On this basis, as
    well, there is a realistic possibility that the jury could have acquitted Mr.
    Tenthorey of aggravated assault but convicted him of one of the included
    offences.

[95]

In her able oral argument, appeal counsel for
    the Crown urged us not to accept this submission without a realistic basis on
    which to conclude that a jury would have accepted the part of Ms. Gregorys
    evidence putting the included offences on the table, while rejecting the
    balance of her evidence.

[96]

I do not accept that it would be appropriate for
    us to engage in this exercise. I say this even though it is obvious that Ms.
    Gregorys evidence suffered from serious credibility problems that could cause
    a jury to reject her testimony in its entirety. The Crowns submission that we
    should confine juries to readily explicable choices about what to believe encroaches
    too heavily on the province of the jury. The air of reality test does not
    include consideration of the reasonableness of a jurys choices about what
    evidence to believe. If it did, there would be no principled basis on which to refrain
    from the same evaluation when determining whether the Crown has established a
prima

facie

case. Wisely, this has not been judicial practice.

[97]

Indeed, even when an appellate panel engages in
    an
ex

post

facto

evaluation of the
    reasonableness of a jury verdict, it is reluctant to question a jurys
    credibility determinations:
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180,
    at para. 32. To assign judges the responsibility to pre-screen the
    reasonableness of a jurys potential credibility determinations when applying
    the air of reality test would be inconsistent with the deference accorded to
    credibility determinations of juries, and incompatible with the threshold tests
    that have developed to limit trials to the matters in issue.

(d)     Conclusion
    on the Included Offence Errors

[98]

Accordingly, I would find that the factual
    preconditions requiring the trial judge to direct the jury on the included
    offences of assault causing bodily harm and simple assault were present in this
    case. There was a realistic possibility that the jury, on a consideration of
    the totality of the evidence and having due regard to the position of the
    parties and the proper application of the burden of proof, could have acquitted
    Mr. Tenthorey on the main charge of aggravated assault yet convicted him of assault
    causing bodily harm or simple assault.

[99]

I would therefore find that the trial judges
    error in holding that assault causing bodily harm is not an included offence in
    a non-particularized charge of aggravated assault was not harmless. He was
    required to charge the jury on that included offence.

[100]

I would also find that the trial judge erred in finding the air of
    reality test was not met with respect to the included offence of simple
    assault. He was obliged to charge the jury on that offence as well.

2.       tHE
SooBRIAN

Limiting

iNSTRUCTION
    ISSUE

[101]

Mr. Tenthorey argues that the trial judge erred in law by failing to
    give a
Soobrian

limiting instruction directing the jury not to draw
    an adverse inference against the defence as a result of the Crowns impeachment
    of Ms. Gregorys testimony.

[102]

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

(a)     The Governing
    Legal Principles

[103]

Proof that a witness lied to protect the accused cannot properly be
    treated as proof that the accused encouraged or directed the witness to do so, absent
    an evidentiary foundation for a finding of collusion. It is therefore improper for
    the Crown to call a witness who is expected to testify favourably to the
    accused and then impeach that witness in an effort to discredit the defence by inviting
    an unsupported inference that the accused was complicit in the false testimony
    the witness provided:
Soobrian
, at p. 216;
R. v. Figliola (No. 1)
,
    2011 ONCA 457, 105 O.R. (3d) 641, at para. 45. If this is the Crowns purpose, the
    trial judge should exercise their discretion to prohibit the impeachment from
    occurring:
R. v. Figliola (No. 2)
, 2018 ONCA 578, 141 O.R. (3d) 662,
    at paras. 52 and 58.

[104]

If the Crown does impeach its own witness without foundation for this
    improper purpose, the trial judge must generally give a
Soobrian

limiting
    instruction to prevent the jury from misusing the impeachment to draw an
    adverse inference against the defence that the accused is also a liar, or has
    acted to hide their guilt:
Soobrian
, at p. 219;
Figliola

(No.
    1)
, at paras. 38 and 61-63.

[105]

Even where the Crown calls the witness for a proper purpose, if the
    Crown ultimately impeaches its witness and strays into impermissible
Soobrian

territory, a
Soobrian

limiting

instruction will
    generally be required:
Figliola (No. 1)
, at paras. 61-62. This will
    occur where the impeachment, whether wittingly or not, is conducted in a manner
    that has created a real risk that the jury would misuse their rejection of
    [the witnesss] evidence to discredit the defence:
R. v. Figliola (No. 2)
,
    at paras. 45-46, 52 and 58.

(b)     A
Soobrian

Limiting
    Instruction Was Not Required in This Case

[106]

Mr. Tenthorey does not suggest that the trial Crown called Ms.
    Gregory for an improper purpose. Nor would there have been any basis for such a
    suggestion. As Doherty J.A. explained in
Figliola (No. 2)
, at para.
    61:

[I]f the Crown has a good faith basis for
    believing that a witness has relevant evidence to give, the Crown may call that
    witness even though the Crown expects that the witness will give evidence
    inconsistent with the Crown position and evidence that contradicts the witness
    prior statements. The Crown may call that witness even though it anticipates
    applying for leave to cross-examine that witness and challenging the
    credibility of that witness in certain respects. [Citations omitted.]

[107]

Other witnesses had testified that Ms. Gregory was implicated in the
    events leading to the assault on Mr. Brochu. This alone provided the Crown with
    a good faith basis for believing that Ms. Gregory had relevant evidence to
    give, notwithstanding her testimony at Mr. Tenthoreys bail hearing. The Crown
    was clearly entitled to call her and to impeach her, if necessary, based on her
    prior inconsistent testimony.

[108]

As indicated, Mr. Tenthoreys submission is that a
Soobrian

limiting instruction was required given the manner in which Ms. Gregory was
    impeached and the use the Crown made of that impeachment in his submissions to
    the jury. I do not agree. In my view, the trial Crowns impeachment of Ms.
    Gregory and his use of that impeachment in his jury submissions did not raise the
    kind of real risk that the jury would misuse her evidence to discredit the
    defence that would have required a
Soobrian

limiting
    instruction.

[109]

To the contrary, the trial Crown was aware that it would be improper
    to attempt to taint Mr. Tenthoreys defence by impeaching Ms. Gregory. He
    explicitly stated this was not his intention and invited the trial judge to
    provide a
Soobrian

limiting instruction, a point to which I
    will return.

[110]

More importantly, the trial Crown exercised restraint in impeaching
    Ms. Gregory. He did not seek permission to cross-examine her at large, nor did
    he attempt to do so. He impeached her testimony efficiently, by confronting her
    with her prior inconsistent testimony from the bail hearing. That prior
    inconsistent testimony did not implicate Mr. Tenthorey. It consisted simply of Ms.
    Gregorys denial that she had any evidence to give. Therefore, this was not a
    case such as
Soobrian
,
where, as described by Doherty J.A. in
Figliola
    (No. 1)
, at para. 61, the effect of the Crowns cross-examination was to shred
    the credibility of the witness it called and to create a factual matrix in
    which the jury might well conclude that the witness was not only a liar, but
    lying for the very purpose of covering up for the wrongful deeds of the accused
    and that the accused were therefore liars themselves, and guilty too.

[111]

Nor did the Crown present the jury with a cover up theory, as
    occurred in
Figliola (No. 1)
, at paras. 53-55. Instead, the Crown attributed
    responsibility to Ms. Gregory for the testimony she gave, with the trial Crown
    in his jury address stating as follows: Ms. Gregory has no respect for the
    oath. Shes making up her evidence. She is trying to protect her fiancé.

[112]

Simply put, I see no real risk or likelihood that the jury would
    blame anyone but Ms. Gregory for her testimony, given that the impeachment was
    restrained and confined to suggestions that she alone was responsible for the
    false evidence she gave.

[113]

In his submissions before us, Mr. Tenthorey emphasized that: (1) when
    seeking to impeach Ms. Gregory, the trial Crown expressed the expectation that
    a
Soobrian

limiting instruction would be given; (2) the trial
    judge also suggested that he would be looking for that kind of instruction;
    and (3) when asked if there should be a mid-trial
Soobrian

limiting
    instruction, Mr. Tenthoreys trial counsel expressed the view that such an
    instruction would best be given in the final jury charge.

[114]

However, the issue before us is not whether the parties expected a
Soobrian

limiting instruction, but whether the trial judge was legally required to
    give one. For the reasons I have expressed, he was not.

[115]

More importantly, circumstances had changed by the end of the trial.
    It is evident from the trial judges comments that his belief a
Soobrian

limiting instruction would be required was linked to his concern the jury
    might improperly rely on Ms. Gregorys impeachment to find Mr. Tenthorey was
    not a credible witness. Recall that the trial judge decided not to give that
    mid-trial instruction because it was not known at that time whether Mr.
    Tenthorey would testify. By the time the charge to the jury was provided, it
    was clear that Mr. Tenthorey had not done so.

[116]

Defence counsels position at the end of the trial is even more
    telling. After opting not to request a mid-trial
Soobrian

limiting
    instruction, and after reviewing draft jury charges containing no such
    instruction, Mr. Tenthoreys trial counsel never asked for one to be included.
    Nor did he object to the charge that was given. He had clearly been alive to
    the availability of a
Soobrian
limiting instruction during the trial yet
    still said nothing.

[117]

In these circumstances, it would not be unfair to infer that, not
    unlike defence counsel in
R. v. Dayes
, 2013 ONCA 614, 117 O.R. (3d)
    324, Mr. Tenthoreys trial counsel recognized that a
Soobrian

limiting
    instruction could enhance the risk that Ms. Gregorys impeachment would taint
    the defence by planting the seed that perhaps Mr. Tenthorey, out of
    consciousness of guilt, was complicit in her false testimony. At the very
    least, the failure by defence counsel to object reinforces my view that a
Soobrian

limiting instruction was not legally required in the circumstances of this
    case.

[118]

I am persuaded that the trial judges decision not to provide a
Soobrian
limiting instruction fell well within the bounds of his discretion. Accordingly,
    I would dismiss this ground of appeal.

CONCLUSION

[119]

For reasons above, I conclude the trial judge erred in failing to
    instruct the jury on the included offences of assault causing bodily harm and
    simple assault.

[120]

I would therefore allow the appeal, set aside Mr. Tenthoreys
    conviction for aggravated assault, and order a new trial.

Released: May 18, 2021 K.F.

David M. Paciocco J.A.

I agree. K. Feldman J.A.

I agree. S. Coroza J.A.

[1]

By
    the time of trial, Mr. Tenthorey and Ms. Gregory were engaged to be married. As
    such, they are respectively referred to as fiancé and fiancée in parts of
    the record re-produced below.

[2]
As
    pointed out in
R. v. G.R
.
,
    2005 SCC 45, [2005] 2 S.C.R. 371, at para. 29, statutory provisions may also
    expressly create included offences.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Topol, 2021 ONCA 217

DATE: 20210407

DOCKET: C67875

Pardu, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Topol

Appellant

Robert Topol, acting in person

Chris G. Bendick, for the respondent

Heard and released orally:
    April 6, 2021 by video conference

On appeal from the decision of Justice
    Nyron Dwyer of the Ontario Court of Justice, dated April 12, 2019, dismissing
    the appeal from the conviction entered by Justice of the Peace Rhonda
    Shousterman on August 14, 2018

REASONS FOR DECISION

[1]

The appellant was convicted of speeding by a justice
    of the peace for driving at 91 km/h in a 50 km/h zone. His appeal to the
    provincial offences appeal court was dismissed.

[2]

Roberts J.A. granted leave to appeal that
    decision, noting there is good reason to believe that the appeal judge
    misapprehended the mathematical errors the moving party highlighted and erred
    in mischaracterizing the discrepancies as minor. Citing
R. v. Morillo
,
    2018 ONCA 582, 362 C.C.C. (3d) 23, she added that the appeal raises special
    ground in that it concerns process issues essential to the public interest and
    for the administration justice, namely the scrutiny of officers oral
    testimony in traffic offences involving self-represented accused.

[3]

The charging officer testified at trial that he
    measured the time and distance travelled by the appellant, but this testimony implied
    a speed widely different from that measured by the radar device. The respondent
    concedes that the discrepancy between the officers testimony and the radar
    reading was significant and could have raised a reasonable doubt as to whether
    the speed-measuring device was functioning properly. The respondent concedes
    that the justice of the peace made a palpable and overriding error in failing
    to consider this evidence and that a new trial is required. We agree.

[4]

The conviction is set aside, and the matter is
    remitted back to the trial court for a new trial. The respondent indicates that
    it will withdraw the charge as it is no longer in the public interest to
    continue the prosecution.

[5]

Mr. Topol seeks costs
    for his expenses, time, and trouble dealing with this proceeding. The general
    rule is that no costs are awarded in a proceeding under the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33:

see
R. v. Felderhof
(2003), 68 O.R. (3d) 481 (Ont. C.A.), at para. 100;
R. v. Kazemi
, 2013
    ONCA 585, 117 O.R. (3d) 300. These appeals resulted from an error by the trial
    justice, and we see no basis to award costs.

G. Pardu J.A.

David
    Brown J.A.

David
    M. Paciocco J.A.