COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sinclair, 2017 ONCA 38

DATE: 20170118

DOCKET: C55487

Watt, Lauwers and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damion Sinclair

Appellant

Timothy E. Breen, for the appellant

Andreea Baiasu, for the respondent

Heard: April 15, 2016

On appeal from the conviction entered by Justice Alfred
    J. OMarra of the Superior Court of Justice, sitting with a jury, on December
    9, 2010 and the sentence imposed on December 23, 2010, with reasons reported at
    2010 ONSC 7256.

Watt J.A.:

[1]

An afternoon in early September. Four people in a bus shelter. Waiting
    for a bus. A grandmother. Her niece. And two grandchildren.

[2]

A man walked up to the bus shelter. A young man. About 18. Damion
    Sinclair. He stood outside the shelter, leaning against it.

[3]

Another man came along. A young man. About 18. Stephen Barton.

[4]

Stephen Barton approached Damion Sinclair. Their meeting was brief.
    Damion Sinclair shot Stephen Barton. Once. In the chest. Through the heart.

[5]

Damion Sinclair said he shot Stephen Barton in self-defence. The jury at
    Sinclairs trial concluded otherwise. Found him guilty of second degree murder.
    The judge at the trial decided that Sinclair should serve at least 14 years of
    his sentence of imprisonment for life before becoming eligible for
    consideration for release on parole.

[6]

Damion Sinclair appeals. He says the judge made errors in instructing
    the jury about self-defence and imposed a period of parole ineligibility in
    excess of what was appropriate.

[7]

As I will explain, I would dismiss both appeals.

THE BACKGROUND FACTS

[8]

The nature of the grounds of appeal advanced on the appeal from
    conviction render a forced march through the minutiae of the evidence
    unnecessary. Some review is essential, however, in order to understand the
    grounds of appeal advanced.

[9]

At trial and on appeal it was and remains common ground that there was
    an air of reality to Sinclairs assertion of self-defence. The only applicable
    basis of self-defence was former s. 34(2) of the
Criminal Code
, which
    provided:

Every one who is unlawfully assaulted and who causes
    death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of
    death or grievous bodily harm from the violence with which the assault was
    originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he
    cannot otherwise preserve himself from death or grievous bodily harm.

The Principals and their History

[10]

Damion Sinclair lived alone in the Jane Street and Weston Road area. He
    received financial assistance from the Childrens Aid Society (CAS). He had a girlfriend,
    Justine Brown, who lived at York Square. Sinclair had a youth record and was a
    drug trafficker.

[11]

Stephen Barton lived in an apartment at York Square with his mother.
    Barton was a member Eglinton West Crips gang and hung around with other members
    of the gang by the entrance to York Square.

[12]

Earlier in the year in which he shot Stephen Barton to death, Sinclair
    had been involved in an altercation with several members of the Eglinton West
    Crips at the Hamilton Wentworth Detention Centre. Stephen Barton was not among
    those embroiled in the fracas.

[13]

Prior to the day of the shooting, Sinclair and Barton had not been
    involved in any contretemps. Neither had displayed or voiced any animosity
    towards the other.

The Initial Confrontation

[14]

Around 2:20 p.m. on the day of the shooting, Barton and some of his
    friends left the apartment building in York Square and joined another group in
    front of a convenience store near the entrance to York Square. About 15 minutes
    later, Sinclair passed by the group coming from the apartment building.

[15]

As Damion Sinclair passed by, one of Stephen Bartons friends made a
    comment to Sinclair which he said he perceived as a threat. Sinclair offered no
    response, except to put his hand in his pocket indicating that he was armed.
    After seeing Sinclair make this gesture, Stephen Barton became angry with
    Damion Sinclair and jumped up. Barton was heard to say whats wrong with the
    nigga. The nigga is dead.

The Interlude

[16]

Within seconds of making his comment, Stephen Barton returned to the
    apartment building where he lived. A minute later, several of his friends
    followed. Sinclair said that some of Bartons friends had at first started
    following him after the initial confrontation but then turned back towards the
    building.

[17]

About a minute after Bartons friends returned to the building, Damion
    Sinclair walked by the main entrance and then around the perimeter of the building.
    He stayed close to the outside walls and appeared to look inside as he passed
    by the several entrances. Sinclair had a black object in his right hand. At
    trial, he said the object was not a gun, but he offered no explanation about
    its nature.

[18]

Damion Sinclair said that he was scared as he walked around the
    building. He was afraid that he would be shot. He could have run from the area
    or taken a taxi elsewhere. He could have gone into a store and sought
    assistance. He did not call the police because of his prior experience with
    them.

[19]

Damion Sinclair had a gun in his left back pocket. He denied that he was
    looking for the group because he was angry and wanted to confront them for
    having disrespected him.

The Bus Stop

[20]

Damion Sinclair left the perimeter of York Square. He walked west on
    Eglinton to a bus shelter about 370 feet away from the western edge of York
    Square. He looked behind him repeatedly, back towards the apartment building
    where he thought Barton had gone to get a gun. The distance between York Square
    and the bus shelter can be walked at a normal pace in about 1 minute and 15
    seconds.

[21]

Damion Sinclair stopped at the bus shelter. At first, he leaned against
    the east side of the shelter, his right shoulder against the glass. He looked
    both east and west along Eglinton Avenue. He had his hands in his pants pocket,
    his gun too.

[22]

About a minute after Sinclair had arrived at the bus shelter, Stephen
    Barton came out of the apartment building. He began walking west towards the
    bus shelter. And towards Damion Sinclair.

[23]

Damion Sinclair was not alone at the bus shelter. Inside, either standing
    or sitting, were a grandmother, her two small grandchildren and her niece.

The Shooting

[24]

Accounts about the circumstances of the shooting, including the events
    that immediately preceded it, vary.

[25]

A passerby saw Barton walk down the hill from the apartment building to
    the bus shelter, and stop to speak to Damion Sinclair who was leaning against
    the shelter. Barton spoke in a normal tone of voice. The two men faced each
    other. The passerby, who did not speak or understand the language in which
    Barton and Sinclair were speaking, could not say what the men were talking
    about.

[26]

Neither adult occupant of the bus shelter saw where Barton came from,
    but both saw him outside the shelter. Their accounts differ somewhat about who
    approached whom. Neither remembered Barton grabbing Sinclair by the shoulder,
    as Sinclair claimed. Neither saw Barton with a gun or anything else in his
    hands before Sinclair shot him. One witness saw Sinclair turn around, take
    three steps to face Barton, point a gun at Bartons chest and shoot him. The
    other witness recounted Barton having approached Sinclair before he was shot.

[27]

Damion Sinclair recalled that he had been at the bus shelter about a
    minute before he saw Barton walking towards him. Sinclair became more fearful
    as Barton looked right at him, his right hand in his pocket. Sinclair thought
    about running, but decided against it.

[28]

Damion Sinclair explained that Barton walked about two feet past him.
    Sinclair thought he was safe. But Barton suddenly turned back, grabbed
    Sinclairs shoulder with his left hand and put his right hand in his pocket as
    if he (Barton) was trying to pull something out of his pocket. Thinking he had
    no option, Damion Sinclair pulled his gun out of his own pocket. He fired at
    Barton.

[29]

Damion Sinclair ran from the bus shelter. He got rid of his sweater and
    hat so that he would not be easily recognizable by Stephen Bartons friends.

The After-the-Fact Conduct

[30]

Damion Sinclair fled on foot from the bus shelter. He went to another
    apartment complex about 20 minutes away. There, he changed his clothing again.
    He said he changed because there was a tear in the shirt he had on. Later, he
    disposed of the spent cartridge from the gun and returned the weapon to its
    owner.

[31]

Damion Sinclair stayed overnight at the gun owners home. He was
    arrested there the next morning. The gun, fully loaded, was recovered by police
    from under a mattress.

The Cause of Death

[32]

Stephen Barton died of a gunshot wound to his left chest. The bullet
    passed through his chest and exited out his back. The weapon used was the .38
    calibre handgun fired by Sinclair and recovered the next day. Death would have
    been quite rapid for the deceased, from a matter of seconds to minutes. The gun
    was fired from an indeterminate distance, as close as several centimeters from
    the deceased.

THE APPEAL FROM CONVICTION

[33]

On the appeal from conviction, Damion Sinclair (the appellant) advances
    three grounds of appeal. Each asserts a deficiency in the trial judges final
    instruction on self-defence under former s. 34(2). I would paraphrase the
    grounds of appeal as errors in:

i.

limiting the availability of self-defence to an actual assault, rather
    than including assaults that are reasonably apprehended;

ii.

instructing the jury on the relevance of the failure to retreat to the
    accuseds entitlement to raise self-defence; and

iii.

failing to give an appropriate
Baxter
[1]
instruction in connection with the third element of self-defence under former s.
    34(2).

Ground #1: Limiting Self-Defence to Responses to an
    Actual Assault

[34]

The first ground of appeal focuses on the conduct of the deceased that
    precipitated the appellants response. To be more specific, we are concerned
    with the words unlawfully assaulted in the opening portion of former s. 34(2).

[35]

It is helpful to begin with a brief reminder about the evidence upon
    which the applicant relies to found his claim that he was unlawfully
    assaulted and thus justify his response as necessary in self-defence.

The Confrontation

[36]

The appellant testified that Barton walked by him as he stood beside the
    bus shelter. Once he had passed by, Barton turned around and put his hand on
    the appellants shoulder. Barton had his hand in his other pocket. The
    appellant never saw a gun in Bartons hand. Fearing for his life, the appellant
    took his gun out of his pocket and fired, without aiming, at Barton. He then
    ran away.

[37]

No one else described any gesture or physical contact by Barton towards
    the appellant. The women in the bus shelter described the men facing each other
    and the appellant pointing his gun at, then shooting Barton in the chest.

The Addresses of Counsel

[38]

At trial, Crown counsel (not Ms. Baiasu) argued that the appellants
    claim that Barton grabbed him by the shoulder, and thereby unlawfully assaulted
    him, was fabricated. No such assault took place. The eyewitnesses in the bus
    shelter were well-positioned to see it. They saw nothing of the kind because it
    never happened.

[39]

Trial counsel for the appellant (not Mr. Breen) staked the defence claim
    of self-defence on the appellants testimony. The appellant responded to
    Bartons unlawful assault when he grabbed the appellant by the shoulder. Trial
    counsel did not suggest that, if the jury rejected the appellants evidence
    that he was actually assaulted by Barton, self-defence remained available
    because the appellant reasonably apprehended an imminent assault from the
    manner in which Barton approached him.

The Pre-Charge Conference

[40]

At trial, the parties were of one mind about the only basis of
    self-defence that should be left with the jury  former s. 34(2). No one
    suggested that anything other than Bartons grabbing of the appellants
    shoulder should serve as the unlawfully assaulted predicate to ground
    self-defence under s. 34(2).

[41]

The trial judge provided a draft of his proposed instructions for counsel
    to review in advance of their delivery. He afforded counsel an equivalent
    opportunity for objection after delivery. Trial counsel for the appellant did
    not object to this, or any aspect, of the charge on self-defence.

The Charge to the Jury

[42]

The trial judge explained to the jury that self-defence under what was
    then s. 34(2) consisted of three elements. After setting out the essential
    elements in question form, the trial judge described to the jurors the nature
    of their task. He said:

In assessing all three parts or components of self-defence, you
    are being asked to determine how Mr. Sinclair perceived the relevant facts and
    whether that perception was reasonable. Your determinations are to be based on
    both a subjective evaluation, that is, what did Mr. Sinclair honestly believe,
    and an objective evaluation, that is, what would an ordinary person in the same
    circumstances reasonably believe?

[43]

The trial judge formulated the first question as:

Was Damion Sinclair unlawfully assaulted by Stephen Barton?

The judge then explained:

So Part I and the question relating to it. Was Damion Sinclair
    unlawfully assaulted by Stephen Barton? An unlawful assault is an intentional
    application of force, directly or indirectly, by any means, in this instance to
    Damian Sinclairs body without his consent. An unlawful assault may also
    consist of threatening words or actions that would cause a reasonable person in
    the defendants circumstances to think that he is about to be physically harmed
    unless he does something to prevent it.

The issue is whether Damion Sinclair reasonably believed, in
    the circumstances that he knew them to be, that he was being unlawfully
    assaulted in the seconds leading up to the killing. If you decide that he was
    not being assaulted, then self-defence is not available to him. However, if you
    have a reasonable doubt about whether he was being unlawfully assaulted right
    before the killing. You would go to the second part of self-defence.

The Arguments on Appeal

[44]

The appellant begins with a reminder about the position advanced by the
    Crown at trial. The trial Crown contended that the appellants claim that the
    deceased grabbed his shoulder was fabricated. She urged the jury to reject this
    evidence and, with it, the justification of self-defence. This juxtaposition,
    for all practical purposes, took apprehended assault off the table as a gateway
    to former s. 34(2).

[45]

The appellant says that trial counsel did not rest the claim of self-defence
    exclusively on an actual assault. What happened first, the menacing advancement
    and reaching into the pants pocket, put apprehended assault in play. And thus
    required its inclusion in the final instructions.

[46]

The brief references to apprehended assault in the final instructions
    were inadequate to ensure a proper evaluation of this aspect of the
    justification. The dominant focus on the
actual
assault deflected a reasoned
    consideration of apprehended assault and significantly prejudiced the
    appellants defence.

[47]

Not so, says the respondent. The charge, read as a whole, conveyed and
    ensured the jurys proper understanding of the unlawful assault constituent of
    former s. 34(2) in the circumstances of this case.

[48]

The respondent contends that the evidence adduced at trial affords no
    basis for a distinction between an actual and an apprehended assault to which
    the appellant responded. The appellant said he was assaulted. His evidence was
    that Barton grabbed him by the shoulder as soon as he (Barton) turned around.
    There was no mistake about it. His response was not to something that he feared
    would or might happen, but rather to something that actually did.

[49]

Further, the respondent continues, trial counsel for the appellant
    advanced no argument to the jury and made no submissions to the trial judge
    about apprehended assault as a gateway to self-defence. Not as a free-standing
    basis for the justification. And not in combination with actual assault. In
    addition, throughout the charge, the trial judge emphasized the subjective
    component of self-defence, thus ensuring the jury appreciated the importance of
    the appellants state of mind along with the objective reality.

The Governing Principles

[50]

The former s. 34(2) created a justification for the use of force that
    caused the death of or grievous bodily harm to another person, provided the
    responsive force fell within the limits imposed by subsection.

[51]

For ease of reference, former s. 34(2) provided as follows:

Every one who is unlawfully assaulted and who causes
    death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of
    death or grievous bodily harm from the violence with which the assault was
    originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he
    cannot otherwise preserve himself from death or grievous bodily harm.

[52]

At first light, the former justification contains several elements. Some
    have to do with conduct. Others with purpose. Still others with consequences. And
    what remains with the state of mind of the person who uses responsive force.
    For discussion purposes, we can separate out the elements of self-defence under
    former s. 34(2) as:

i.

an unlawful assault;

ii.

a reasonable apprehension of a risk of death or grievous bodily harm
    from the assault or its pursuit; and

iii.

a reasonable belief that it is not possible to preserve oneself from
    harm except by killing or seriously injuring the adversary.

See

R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3, at para. 93;
R. v. Pétel
,

[1994]
    1 S.C.R. 3, at p. 12.

[53]

On its face, the phrase unlawfully assaulted in former s. 34(2) would
    appear to require that the person asserting the justification be the victim of
    an
actual
assault. In other words, the victim of a direct or indirect
    application of force without his or her consent. This is an assault as defined
    in s. 265(1)(a) of the
Criminal Code
. But this is not the only
    definition of assault in the offence-defining section. Assault may also be
    committed, for example, where one person attempts or threatens, by an act or
    gesture, to apply force to another person, if the threatener has, or causes the
    other person to believe on reasonable grounds that she or he has, present
    ability to carry out his or her purpose. And to limit the justification to an
    actual assault would not take cognizance of the doctrine of mistake of fact.

[54]

The authorities have made it clear that former s. 34(2) may be engaged
    in circumstances in which the person who invokes the justification  the
    accused  has not actually been assaulted. In connection with this element of
    the justification, the issue is not whether the accused was
actually
unlawfully
    assaulted, but rather whether the accused reasonably believed that he was being
    unlawfully assaulted:
Pétel
, at p. 13;
Cinous
,
at para. 107. See also
R. v. Currie
(2002), 166 C.C.C. (3d) 190 (Ont. C.A.), leave to appeal refused, [2003]
    S.C.C.A. No. 410, at para.
43;
R. v. Proulx
(1998),
    127 C.C.C. (3d) 511 (B.C.C.A.), at paras.
25, 27.

[55]

The imminence of an attack, real or apprehended, is
not
a
    formal requirement of a claim of self-defence under former s. 34(2). However, immediacy
    is a relevant consideration in connection with apprehended assault. Common
    sense compels the conclusion, especially when consideration is given to the
    words, repelling the assault, that the apprehended attack was happening or about
    to happen:
Currie
,

at paras.

50-51;
Cinous
,

at para. 124.

[56]

The air of reality standard applies to each constituent element of
    self-defence under former s. 34(2):
Cinous
,

at para. 93.

The
    element expressed in the statutory language unlawfully assaulted is no
    exception. This element, like the others, has not only a subjective component,
    but also an objective ingredient. There must be evidence of each before the
    obligation to instruct on the justification arises. With respect to each
    element, the proper approach involves two inquiries. The first inquiry is about
    the subjective perceptions of the accused. The second asks whether those
    perceptions were objectively reasonable in the circumstances:
Cinous
,
    para. 94.

[57]

The air of reality standard determines whether a trial judge is required
    to instruct the jury on the justification enacted by former s. 34(2). Where the
    justification is grounded on a mistaken belief by an accused on reasonable grounds
    that he was assaulted, the obligation to instruct is co-extensive with an
    evidentiary foundation for both the subjective and objective component of this
    element. The absence of either extinguishes the obligation to instruct on the
    justification:
Proulx
,

at para. 33:
Cinous
,

at
    paras. 124-25. See also
R. v. Stewart
,

2014 ONCA 70, 306 C.C.C.
    (3d) 269, at paras. 30-31.

[58]

A final point. Where the claim of self-defence rests on an assertion of
    actual assault, and a distinction between what an accused said happened and
    what she reasonably believed happened or was about to happen cannot be fairly
    said to arise from the evidence, a trial judge is under no obligation to
    instruct the jury on the basis of apprehended assault:
Stewart
,

at
    paras. 26-31;
R. v. Doucette
,

2015 ONCA 583,

328 C.C.C.
    (3d) 211, at paras. 25-26;
R. v. Rochon
(2003),

173 C.C.C. (3d)
    321

(Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 229,
    [2004] S.C.C.A. No. 230,

at paras. 37-38;
R. v. Grandin
,

2001
    BCCA 340, 154 C.C.C. (3d) 408, at para. 64.

The Principles Applied

[59]

Several reasons persuade me that we should not give effect to this claim
    of non-direction amounting to misdirection.

[60]

To begin, the obligation to instruct on a defence, justification or
    excuse is not engaged by its mere assertion or an unadorned request. As we have
    seen, the specific claim advanced here, like others, requires an evidentiary
    foundation, an air of reality as the controlling authorities describe it.
    Non-direction, without more, is not misdirection, much less fatal misdirection.
    For non-direction on a defence, justification or excuse to amount to
    misdirection, there must be an evidentiary foundation, an air of reality, to
    the submission. And that is where the claim of non-direction amounting to
    misdirection founders in this case.

[61]

First, as is often the case, the evidentiary support for self-defence
    was the testimony of the appellant. The conduct to which he said that he responded
    was not an attack that he reasonably believed was about to occur. Rather it was
    one that did occur  Barton grabbed him by the shoulder. On this evidence,
    there was no realistic basis for a suggestion that although Barton may not in
    fact have grabbed him by the shoulder, the appellant reasonably believed that
    he was about to be attacked by an armed assailant. To distinguish between what
    the appellant reasonably believed and what he said happened was unwarranted on
    the evidence. It follows, in my respectful view, that there was no air of
    reality to support the proposed instruction and thus no obligation to give it.

[62]

Second, trial counsel for the appellant did not suggest that the
    appellants responsive force originated in his reasonably held but honestly
    mistaken belief that he was about to be attacked by Barton. Not in her closing
    address. Not in her submissions about charge content. And not in her complaints
    about legal omissions in the charge. While not fatal, the failure to advance
    this basis for the defence and to seek its inclusion or complain about its
    omission are factors worthy of consideration here.

[63]

Third, what occurred here and precipitated the appellants response was,
    in reality, a single event. It was not something that could or should be
    subjected to a metaphysical, freeze-frame type of analysis to colour it
    otherwise than as it was. To do so risks sacrifice of substance on the altar of
    form. Jury confusion, not jury education.

[64]

Fourth, this is not a case in which the trial judge failed to apprise
    the jury about the relevance of the appellants state of mind to the
    constituent elements of self-defence. The trial judge emphasized at the
    beginning, at the end, and throughout his instructions on self-defence the
    importance of the appellants state of mind. On at least two occasions, the
    trial judge specifically told the jury that the issue was whether the appellant
    reasonably believed, in the circumstances as he knew them to be, that he was
    being unlawfully assaulted in the seconds leading up to the killing.

[65]

Finally, whether the appellant reasonably but mistakenly believed that
    an assault was about to occur was not a live issue at trial. The appellants
    evidence was that Barton grabbed him by the shoulder. This is not a case about
    equivocal conduct. The only conduct that could have footed such a belief was
    the selfsame conduct that constituted an actual assault. If the evidence did
    not raise a reasonable doubt that the appellant was defending himself against
    Bartons actual assault, the record was barren of any evidence to support a
    mistaken belief by the appellant that he was being assaulted.

[66]

As I have said, I would not give effect to this ground of appeal.

Ground #2: The Role of Failure to Retreat

[67]

The second ground of appeal alleges a further error in the trial judges
    instructions on self-defence: a failure to properly instruct the jury on the
    relevance of evidence of failure to retreat in their assessment of the applicability
    of the defence.

[68]

To frame the discussion that assesses the viability of this claim of
    error, it is helpful to recall some features of the evidence, the position of
    the parties, and the instructions given to the jury.

The Essential Background

[69]

Several minutes elapsed between the first altercation at the entrance to
    York Square where Barton insulted the appellant  whats wrong with the nigga.
    This nigga is dead  and the shooting at the bus shelter. During this
    interlude:

·

Barton
    and his friends re-entered York Square.

·

The
    appellant walked around the outside of the apartment building, carrying a black
    object in his right hand and looking in at the entrances.

·

The
    appellant was looking for Barton and his friends, armed with a handgun, a fact
    that he had communicated to them at their first meeting.

·

The
    appellant walked from York Square, a distance of 370 feet to the bus shelter.

·

The
    appellant had a clear view of Barton walking from York Square to the bus
    shelter and acknowledged that he could have gone to several different places or
    left the area.

·

The
    appellant thought Barton was armed.

The Position of the Parties at Trial

[70]

In her closing address, trial counsel for the appellant did not
    specifically refer to the issue of retreat, or to the significance of a failure
    to retreat, on the availability of self-defence under former s. 34(2). She did
    point out, however, several circumstances that she said indicated that the
    appellant had nowhere to go.

[71]

The trial Crown submitted that the appellant had ample opportunity to
    get away, a submission she illustrated by several examples. The trial Crown
    also asked the trial judge to include an instruction that the appellant had a
    duty to retreat from the moment his interaction with Barton began and again
    when the deceased turned towards him at the bus shelter.

The Charge to the Jury

[72]

The trial judge separated out the essential components of self-defence
    under former s. 34(2) and converted each to a question for the jurors to
    answer. For each question, the trial judge explained the governing legal
    principles and summarized the evidence relevant for jurors to consider in
    reaching their conclusion on the issue.

[73]

The trial judge discussed the availability of other alternatives when he
    instructed the jury on the third essential element of self-defence  a
    reasonably grounded belief on the part of the appellant that he could not
    otherwise preserve himself from death or grievous bodily harm than by killing
    or seriously injuring Barton.

[74]

In concluding his instructions on self-defence, in connection with the
    requirement that the Crown prove beyond a reasonable doubt that the appellant
    unlawfully caused the death of the deceased, the trial judge focused on the
    relevance of retreat:

The bottom line with self-defence is that the defendant has to
    believe honestly and on reasonable grounds that the force he uses is necessary.

While there is no obligation on the defendant to retreat, the
    issue of retreat, whether a defendant could retreat, may be a relevant
    consideration in determining whether the defendant believed on reasonable
    grounds that he could not otherwise preserve himself from death or grievous
    bodily harm. It may be, in hindsight and reflection, that there was a realistic
    option to flee or leave the area. But the question is not what someone thinks
    in hindsight. The question is whether Mr. Sinclair believed reasonably and
    honestly that he had no other choice.

On the other hand, if you are satisfied beyond a reasonable
    doubt that Mr. Sinclair used more force than he honestly did and reasonably
    believed was necessary, or that he was reasonably aware that there were other
    options available to him than to apply deadly force, then you should reject the
    defence of self-defence and conclude that Mr. Sinclair committed an unlawful
    homicide.

[75]

The trial judge did not instruct the jury that failure to retreat
    disentitled the appellant from relying on self-defence.

The Arguments on Appeal

[76]

The appellant says that the trial judge failed to properly instruct the
    jury on the relevance of evidence of the opportunity and failure to retreat.

[77]

According to the appellant, he was under no legal obligation to retreat
    as a condition precedent to his reliance on self-defence under former s. 34(2).
    Failure to retreat, he accepts, may be relevant to two constituent elements of
    the justification afforded by former s. 34(2):

i.

the appellants subjective apprehension of death or grievous bodily harm
    from the assault by Barton; and

ii.

the reasonableness of the appellants belief in the necessity of killing
    or very seriously injuring Barton to save himself from an equivalent fate.

But the problem here arose because the trial Crown
    suggested that the law imposed a duty on the appellant to retreat.

[78]

In this case, the appellant contends, the trial judge was required to
    correct the misimpression created by the Crown. This involved two steps. The
    first was to make it clear to the jury that although relevant to two essential
    elements of self-defence, a failure to retreat did not disentitle the appellant
    from relying on self-defence. And the second was that the relevant time at
    which a failure to retreat may become material was when the appellant responded
    to Bartons assault. But there was no realistic opportunity to retreat at this
    time, thus the issue of retreat or failure to do so, should have occupied no
    role in the jurys assessment of the claim of self-defence.

[79]

The respondent accepts that former s. 34(2) contains no reference to
    retreat and does not require retreat in the face of unlawful assault as a
    condition precedent to the availability of the defence. That said, the
    respondent continues, the possibility or availability of retreat is relevant to
    the reasonableness of a claimants apprehension of death or grievous bodily
    harm from the victims assault, and of the claimants belief about the
    unavailability of other bases for self-preservation.

[80]

The respondent says that the trial Crowns closing address properly
    reflected the relevance of evidence of a failure to retreat. The trial Crown
    did not say that a failure to retreat precluded self-defence, or that a failure
    to do so at the time of the initial brouhaha outside York Square eliminated the
    availability of self-defence at the bus shelter.

[81]

In addition, the respondent continues, the trial judge did not misdirect
    the jury, expressly or by necessary implication, about the relevance of retreat
    and of evidence of a failure to retreat in the face of a reasonable opportunity
    to do so.

[82]

In her final address to the jury, the trial Crown submitted that the
    appellants repeated failure to leave when he had ample opportunity to do so
    belied his claim that he was surprised by Bartons sudden turn and had to shoot
    as a last resort to save his own life. At no time did the trial Crown suggest
    that the appellant had an obligation to retreat or that his failure to do so
    negated his claim of self-defence.

[83]

The respondent says that the trial judges instruction to the jury
    expressly advised them that the appellant had no obligation to retreat. The
    failure to retreat was left to the jury as a relevant factor for them to
    consider in their assessment of self-defence. The judge explained that the
    relevant time for them to consider in connection with the failure to retreat
    was just before the fatal shot. Trial counsel for the appellant offered no
    objection to the manner in which the trial judge left this issue to the jury.

The Governing Principles

[84]

A brief reminder about the obligation to retreat and the significance of
    evidence of a failure to do so when self-defence is put forward as a
    justification for killing another will assist in the resolution of this ground
    of appeal.

[85]

First, former s. 34(2) does not, in express terms or by necessary implication,
    contain any reference to retreat. The subsection imposes no obligation on the
    self-defence claimant to retreat. In this respect, the former s. 34(2) differs
    from the former s. 35:
R. v. Cain
,

2011 ONCA 298,

278
    C.C.C (3d) 228,

at para. 9;
R. v. Abdalla
, 2006 BCCA 210, 209
    C.C.C. (3d) 172, at para. 25;
Proulx
,

at para. 44
.
Former
    s. 34(2) does not differ from the common law where retreat before using force
    is not an independent and imperative condition of a successful plea of
    self-defence:
R. v. Howe
(1958),100 C.L.R. 448 (H.C.A.), at pp.
    462-63.

[86]

Second, the possibility of retreat is relevant to the second and third
    elements of the justification afforded by the former s. 34(2). In other words,
    the possibility of retreat is a relevant item

of evidence for the jury
    to consider in deciding whether the accused:

i.

had a reasonable apprehension of death or grievous bodily harm from the
    victims assaultive conduct; and

ii.

had a reasonable belief that it was not otherwise possible to save him
    or herself from death or grievous bodily harm except by killing or seriously
    harming the victim.

See
Cain
, at para. 9;
Proulx
, at paras. 47-49.

[87]

Third, the relevance of failure to retreat on these issues may disappear
    when an accused had no real opportunity to do so. The absence of any real
    opportunity to retreat may require an instruction that the accuseds failure to
    do so is not relevant to the jurys assessment of the claim of self-defence:
Abdalla
,

at para. 26.

[88]

Fourth, where Crown counsel misstates the relevance of retreat, or
    failure to retreat, as for example by telling the jury that the accused is
    precluded from relying on self-defence because he had failed to retreat when
    the confrontation began, the trial judge would be required to give the jury a
    correcting instruction:
Cain
,

at para. 11;
Proulx
,
    at para. 50;
Abdalla
,

at para. 27.

[89]

Finally, even where Crown counsel has not expressly misstated the
    relevance of retreat, a trial judge should consider whether a corrective
    instruction may be necessary to alleviate the risk that the jury may have
    understood the Crown to be making such an erroneous submission:
Cain
,

at para. 11;
Proulx
, at para. 50.

The Principles Applied

[90]

As I will explain, I would not give effect to this ground of appeal. In
    my respectful view, neither Crown counsel in her closing address, nor trial
    judge in his instructions to the jury misstated the law about retreat.

[91]

I begin with the closing address of the trial Crown.

[92]

First, at no point did the trial Crown suggest to the jury in her
    closing address that the appellants failure to retreat disentitled him to the
    justification of self-defence. Nor did the trial Crown claim that the
    appellants failure to retreat after the initial altercation in front of York
    Square disentitled him to rely on self-defence when Barton grabbed him by the
    shoulder at the bus shelter. Rather, the trial Crown argued that the
    appellants failure to retreat earlier supported the Crowns position that the appellant
    was looking for a gunfight and that his claim of the need for self-defence was
    spurious.

[93]

Second, in her closing address, the trial Crown correctly focused on the
    time of the appellants response to what he alleged was an assault by Barton as
    the relevant time to assess his claim of self-defence. As a result, the trial
    Crown did not expressly or impliedly suggest that the appellants failure to
    retreat after the first incident at York Square disentitled him to rely on
    self-defence.

[94]

Third, trial counsel did not object to the closing address of the Crown
    or request any corrective action be taken by the trial judge. Of course the
    failure to object is not dispositive. However, it affords some indication that
    counsel who conducted the trial, heard the address and was sensitive to the
    issue of retreat, did not consider the Crowns references unfair or misleading.

[95]

Finally, perhaps a point of lesser significance, the instructions of the
    trial judge, as well the address of counsel, made it clear that the jurors were
    to take their legal instructions from the trial judge, not from counsel.

[96]

Turning next to the instructions of the trial judge. Nothing said or
    left unsaid constitutes misdirection or non-direction amounting to
    misdirection.

[97]

First, the trial judge expressly told the jury that the appellant was
    under no obligation to retreat. This instruction ensured that the jury was not
    left with a mistaken view that retreat was an essential pre-condition to or an
    independent requirement of self-defence.

[98]

Second, the trial judge correctly linked retreat to the second and third
    constituent elements of self-defence, and emphasized that it was not the burden
    of the appellant to prove that he acted in self-defence, rather it was the onus
    of the Crown to disprove that he did so.

[99]

Third, the trial judge tied the issue of retreat to the time of the
    shooting. Even without an express direction that retreat did not relate to the
    earlier altercation at York Square, the jury would not be left in any state of
    doubt about the time that was relevant to the issue. In the end, the jury was
    not left with the impression that the appellants failure to retreat initially
    sounded the death knell for self-defence.

[100]

Finally, trial counsel had ample opportunity to review a draft of the
    trial judges proposed instructions. She did not seek the instruction now said
    to amount to a fatal omission, nor complain of its absence before or after
    delivery.

Ground #3: The
Baxter
Instruction

[101]

The final ground of appeal against conviction also takes issue with
    something not said in the instructions on self-defence. In the parlance of the
    criminal lawyer and jurist, the missing part was a
Baxter
instruction,
    so described because of its origin in
R. v. Baxter
(1975), 27 C.C.C.
    (2d) 96 (Ont. C.A.). The instruction advises the jury of the need to make an
    allowance for the stress of the situation in which an accused finds himself and
    of the need for an immediate response to that unlawful assault.

[102]

To site this claim of prejudicial error in its appropriate landscape, it
    is helpful to recall some aspects of the events surrounding the shooting
    followed by a brief overview of the positions of counsel.

The Background

[103]

The occupants of the bus shelter, two adults and two children, were
    close by the shooting. Each saw the appellant and Barton facing one another.
    Each adult saw the appellant point his gun at Bartons chest and shoot him. The
    shot was fired from a distance that could not be precisely determined. But it
    was not so close that it left stippling or unburned power residue around the
    site of the entrance wound. Neither bystander remembered seeing Barton grab the
    appellant by the shoulder. Neither saw Barton make any threatening gesture
    towards the appellant.

[104]

Stephen Barton was in fact armed. After he was shot. He struggled to his
    feet and fired a shot towards the direction of the fleeing appellant, hitting
    nothing.

[105]

The appellant testified that Barton walked by him as he leaned or stood
    by the bus shelter. Barton then suddenly turned, and grabbed the appellant by
    the shoulder. It was then that the appellant fired a single shot without taking
    aim. He then ran away.

[106]

Stephen Barton died of a single shot that penetrated his heart.

The Positions at Trial

[107]

Neither party sought nor complained about the failure to include
Baxter
direction in the charge to the jury.

The Arguments on Appeal

[108]

The appellant says that the trial judge was wrong in failing to include
    a
Baxter
instruction in his charge to the jury. The instruction
    advises the jury of the need to make an allowance for the stress of the
    situation in which an accused finds himself and of the need for an immediate
    response to that unlawful assault.

These factors were relevant in the jurys assessment of
    the third essential element of self-defence, in particular, whether the force
    used by the appellant, based on his reasonable belief that he could not
    otherwise preserve himself from death or really serious bodily harm, was more
    than what was necessary.

[109]

The respondent acknowledges that previous decisions of this court have
    considered it an error of law to fail to include a
Baxter
direction
    when instructing the jury on self-defence under the former s. 34(2). But, the
    respondent says, no case holds that, without more, the failure to provide a
Baxter
direction constitutes reversible error.

[110]

The respondent reminds us that we are to take a functional approach when
    assessing the adequacy of a jury charge. We are to examine the charge as a
    whole to determine, despite the omission, whether it adequately equipped the
    jury to discharge its responsibility. The charge here was up to that task. The
    trial judge directed the jury to consider the essential elements of
    self-defence in light of the appellants evidence of his perception of the
    situation that confronted him. The instructions emphasized the appellants state
    of mind, his perceptions and reaction, and would have brought home to the jury
    that a precisely calibrated response was not required.

[111]

The respondent points out that nothing said or left unsaid by the trial
    judge suggested that any requirement of proportionality or rough equivalence
    between Bartons assault and the appellants response was essential for
    self-defence to avail. Absent such an instruction, the omission of a
Baxter
direction caused the appellant no prejudice.

The Governing Principles

[112]

A consideration of the substance of and the necessity for what has
    become known as a
Baxter
instruction begins with the look at the
    origin of the species, the decision of this court in
Baxter.

[113]

Baxter was charged with three counts of attempted murder and a single
    count of criminal negligence causing bodily harm. He was acquitted of attempted
    murder, but convicted of three counts of discharging a firearm with intent to
    wound and of criminal negligence causing bodily harm. He raised the defence of
    self-defence.

[114]

The trial judge instructed the jury on self-defence under former s.
    34(2) of the
Criminal Code
, but declined to charge on former s. 34(1)
    or former s. 37. On appeal, Baxter complained about the adequacy of the
    instructions on s. 34(2) and the absence of instructions on s. 34(1) and 37. This
    court found the instructions on s. 34(2) adequate and a failure to instruct on
    ss. 34(1) and 37 not to have caused a substantial wrong or miscarriage of
    justice. After pointing out that the doctrine of mistake of fact applied to
    both ss. 34(1) and 34(2), Martin J.A. added at p. 111:

Moreover, in deciding whether the force used by the accused was
    more than was necessary in self-defence under both s. 34 (1) and (2), the jury
    must bear in mind that a person defending himself against an attack, reasonably
    apprehended, cannot be expected to weigh to a nicety, the exact measure of
    necessary defensive action.

[115]

The lead authority cited by Martin J.A. in
Baxter
was the
    decision of the Privy Council in
Palmer v. The Queen
(1971),

55
    Cr. App. R. 223 (P.C.)
.
In
Palmer
,

the appellant contended
    for a general rule that a jury should be instructed that if they concluded that
    an accused used excessive force in self-defence, they should return a verdict
    of guilty of manslaughter. Their Lordships declined to adopt such a rule
    (despite its currency in the common law states of Australia). In determining the
    appeal, the Board concluded at p. 242:

There are no prescribed words which must be employed in or
    adopted in a summing-up. All that is needed is a clear exposition, in relation
    to the particular facts of the case, of the conception of necessary
    self-defence. If there has been no attack, then clearly there would have been
    no need for defence. If there has been attack so that defence is reasonably necessary,
    it will be recognized that a person defending himself cannot weigh to a nicety the
    exact measure of his necessary defensive action. If a jury thought that in a
    moment of unexpected anguish a person attacked had only done what he honestly
    and instinctively thought was necessary, that would be most potent evidence
    that only reasonable defensive action had been taken. A jury will be told that
    the defence of self-defence, where the evidence makes its raising possible,
    will fail only if the prosecution show beyond doubt that what the accused did
    was not by way of self-defence.

[116]

It is worthy of notice that neither this court in
Baxter
,

nor
    the Privy Council in
Palmer
established a bright line rule that
    requires inclusion of what has become known as a
Baxter
instruction in
    all cases in which former s. 34(2) is invoked for fatal or near fatal violence
    inflicted on others in response to an unlawful assault: see also
R. v.
    Bogue
(1976), 30 C.C.C. (2d) 403 (Ont. C.A.),

at pp. 407-8
.
Yet
    subsequent authorities appear to have treated inclusion of the instruction as
    essential to an understanding of the role of excessive force in adjudication of
    a claim of self-defence: see e.g.
R. v. Hebert
,

[1996] 2 S.C.R.
    272, at para. 18;
R. v. Desveaux
(1986), 26 C.C.C. (3d) 88 (Ont. C.A.),
    at p. 92;
R. v. Onigbinde
, 2010 ONCA 56, 251 C.C.C (3d) 15, at para.
    27.

[117]

The
Baxter
instruction relates to the reasonableness of an
    accuseds belief of the necessity of killing or very seriously injuring a
    victim as the only means of self-preservation under former s. 34(2)(b).

[118]

Despite its humble origins, a
Baxter
instruction
    seems to have achieved near-canonical status as a component of a proper jury
    instruction under former s. 34(2). Our court has held it to be an error in law
    to omit the instruction:
R. v. Scotney
,

2011

ONCA
    251, 277 C.C.C. (3d) 186, at para. 33.

[119]

Yet not every omission of a
Baxter
instruction is
    fatal to the validity of a conviction recorded without its inclusion. The
    authorities fail to reveal a single case in which such an omission, on its own,
    has been held sufficient to warrant appellate reversal. Each case depends on
    its own facts: The absence of a request for the instruction or an objection to
    its omission: The thoroughness of the judges review of the relevant evidence:
    The emphasis laid on the subjective component of the excessive force element in
    former s. 34(2)(b):
Scotney
,

at paras. 34-36.

The Principles Applied

[120]

For several reasons, I am not persuaded that this omission
    warrants appellate reversal in this case.

[121]

First, the prevalent current of authority resists appellate reversal
    on this ground alone. The industry of counsel yielded that no precedent where,
    standing alone, the absence of a
Baxter
instruction was fatal to the
    validity of a conviction.

[122]

Second, the omission occurred in connection with an
    instruction on an issue that was otherwise faultless, emphasized the subjective
    component and recited the material aspects of the evidence relevant to an
    informed decision on the issue.

[123]

Third, the subject-matter of the
Baxter
instruction,
    as the Privy Council observed in
Palmer
,

is something an untutored
    jury is likely to consider. If there has been an attack such that self-defence
    is reasonably necessary, a jury is likely to recognize that a person defending
    himself cannot be expected to weigh to a nicety the exact measure of his
    necessary defensive action. If a jury thought that, in a moment of unexpected
    anguish, a person attacked had only done what he or she and a reasonable person
    in the same circumstances honestly thought was necessary to preserve himself or
    herself from death or grievous bodily harm, that would be the most potent
    evidence that he had taken only reasonable defence action:
Palmer
, at
    p. 242.

[124]

Fourth, it is worthy of reminder that the excessive force
    issue framed by former s. 34(2)(b) is not determined solely on the basis of
    subjective considerations. It involves objective considerations as well.
    Reasonableness depicts a range of responses, not a single right answer. This
    hybrid standard, coupled with not only the absence of any onus on the accused
    to establish the defence, but rather an obligation the Crown to disprove beyond
    a reasonable doubt its availability, renders the omission of little moment in
    the final analysis.

[125]

Finally, we should not lose sight of the controverted issue
    that lay at the centre of this case. That issue did not involve the nature of
    the appellants response. The fundamental controversy was whether Barton
    assaulted the appellant in the first place. In the absence of an unlawful
    assault, actual or reasonably apprehended, no measure of self-defence was
    warranted. On that threshold decision, the omitted
Baxter
instruction
    had nothing to say.

[126]

I would not give effect to this ground of appeal and,
    accordingly, would dismiss the appeal from conviction.

THE APPEAL FROM SENTENCE

[127]

The appellant also appeals the period of parole ineligibility  14 years
     fixed by the trial judge under s. 745.4 of the
Criminal Code
.

[128]

To put the claim of error advanced by the appellant in its proper
    context, it is helpful to begin with a reference to the factors s. 745.4
    requires a trial judge to take into account in establishing the period of
    parole ineligibility, before turning to the reasons of the trial judge and his
    alleged error.

The Nature and Circumstances of the Offence

[129]

The appellant encountered the victim and some of his friends outside
    the front entrance to an apartment building. The victim and some of his friends
    were gang members. The appellant had been involved in an incident at a
    correctional centre several months earlier with some of those whom he
    encountered outside the apartment building, but the victim had not been among
    them.

[130]

In response to a provocative remark directed towards him, the appellant put
    his hand in his pants pocket to show the victim and his friends that he (the
    appellant) was armed and prepared to use his weapon. The victim left the area
    shortly after the exchange. The appellant thought that the victim had departed
    to get a gun.

[131]

Within minutes of this first encounter, the appellant shot the victim
    through the heart in front of a nearby bus shelter. The shooting took place in
    the early afternoon of a day in September within feet of four occupants,
    including two very young children, of the bus shelter and as others passed by
    on the street. The appellant fled on foot.

The Character of the Offender

[132]

The appellant was 18 years old when he shot Stephen Barton to death and
    20 when he was sentenced. Despite his youth, the appellant had accumulated
    nearly two dozen convictions for a hodgepodge of offences including robbery,
    failure to appear or comply with court orders, and various weapons, firearms
    and drug offences. At the time of the killing, the appellant was bound by and
    in breach of two separate firearm prohibitions.

[133]

For several years, the appellant had been under the care of the CAS.
    When he turned 17, he was housed in an apartment where he lived independently
    with the support of the CAS.

[134]

The appellant worked part-time. He also trafficked in drugs. The day
    before the killing he had sold drugs in Hamilton, a place to which he planned
    to return the day following the killing. His plans were thwarted by his arrest.

The Jury Recommendation

[135]

After brief deliberations, nine jurors made no recommendation about
    parole ineligibility. Each of the three remaining jurors recommended that the
    appellant serve either 10, 11, or 12 years before eligibility for release on
    parole.

The Positions of the Parties at Trial

[136]

The trial Crown invited the judge to impose a parole ineligibility period
    of 18 years. In support of her submission, Crown counsel emphasized the brazen
    nature of the killing, feet away from innocent bystanders; the appellants
    lengthy record; his carrying of a loaded handgun in breach of not one but two
    firearm prohibitions; and the absence of any rehabilitative efforts and few, if
    any, rehabilitative prospects.

[137]

Trial counsel for the appellant advocated for the minimum period of parole
    ineligibility  10 years  or, in the alternative a modest increase to 12
    years. She stressed the appellants youth and his consequent potential for
    rehabilitation, as well as the remorse he expressed at the time of sentencing.

The Reasons for Sentence

[138]

In establishing the period of parole ineligibility at 14 years, the
    trial judge considered the predominance of aggravating over mitigating factors
    and the high degree of moral culpability associated with the killing in broad
    daylight, literally at the feet of innocent bystanders including two very young
    children. The appellant, 18 years old, was walking around armed with a .38
    calibre handgun in open defiance of two firearm prohibitions. He made it clear
    to those with whom he had a verbal contretemps that he was armed and prepared
    to use his weapon. The only mitigating factors were his age and his expression
    of remorse at sentencing. Rehabilitative prospects often associated with the youthful
    offenders were diminished here by the appellants significant record and his
    apparent unwillingness to comply with court orders.

[139]

The trial judge considered that the finding of guilt rendered by the
    jury reflected
either
of two factual determinations:

i.

that
    the deceased did not unlawfully assault the appellant, as the appellant claimed
    in his trial testimony; or

ii.

that
    the appellant had options open to him to save himself, other than shooting the
    deceased, if he were in fear of his life or serious harm as he asserted at
    trial.

The Arguments on Appeal

[140]

The appellant says that the trial judge erred in principle by failing to
    recognize that excessive force in self-defence was a mitigating factor on
    sentence. Counsel acknowledged that the 14 year parole ineligibility imposed
    was not outside the appropriate range in the circumstances of this case, but
    the use of excessive force reduces the moral blameworthiness of the appellants
    crime and the trial judge should have considered it in imposing the parole
    ineligibility period.

[141]

The respondent contends that the trial judge made no error in principle
    that had any impact on the period of parole ineligibility imposed. To be more
    specific, the use of excessive force in self-defence was not an issue here.
    What was an issue was whether there was any basis for its self-defence, in
    particular, the unlawful assault alleged by the appellant at trial. Even if
    excessive force in self-defence were to be considered a mitigating factor on
    sentence, it lacks purchase here in the absence of any finding of fact
    necessary to engage it.

[142]

In the end, the respondent says we have no error in principle, no failure
    to consider a relevant factor or consideration of an irrelevant factor that had
    any impact on the period of parole ineligibility fixed by the trial judge. The
    period imposed falls within, perhaps slightly below, the range of periods of
    parole ineligibility applicable to offences of second degree murder committed
    in circumstances such as these by similarly situated offenders. Deference
    should prevail and the appeal should be dismissed.

The Governing Principles

[143]

A brief reference to two controlling precedents will suffice to
    establish the basis upon which we are entitled to review the sentencing
    decision. The first has to do with sentence review generally, the second with
    review of periods of parole ineligibility.

[144]

Appellate review of sentencing decisions proceeds from a
    well-established and fully justified stance of deference. Simply put,
    sentencing judges are in the best position to determine a just appropriate
    sentence, consistent with the sentencing objectives and principles and
    aggravating and mitigating factors set out in Part XXIII of the
Criminal
    Code
:
R. v. Lacasse
,

2015 SCC 64, [2015] 3 S.C.R. 1089,

at para. 11
.

[145]

Proportionality is the cardinal principle that guides appellate courts
    in their consideration of the fitness of a sentence imposed on an offender. The
    more serious the offence and its consequences, or the greater an offenders
    degree of responsibility, the heavier the sentence imposed will be. Serious consequences,
    coupled with significant moral blameworthiness, advance the sentence upwards on
    the scale of available punishments:
Lacasse
,

at para. 12.

[146]

A relevant factor for a sentencing judge to consider in determining a
    fit sentence is the frequency with which the offence under consideration occurs
    in the area where the sentence is being imposed:
Lacasse
, at para. 13.

[147]

In the end, appellate intervention in a sentence imposed at trial can
    only be justified where an error in principle, a failure to consider a relevant
    factor or the erroneous consideration of an aggravating or mitigating factor
    has had an impact on the sentence imposed:
Lacasse
, at paras. 43-44.

[148]

Three brief points about parole ineligibility orders will round out my
    discussion of the governing principles.

[149]

First, denunciation and deterrence, sentencing objectives within Part XXIII
    of the
Criminal Code
, are relevant considerations in determining the
    length of a parole ineligibility order:
R. v. Shropshire
,

[1995]
    4 S.C.R. 227, at paras. 19-21. After all, parole ineligibility orders are part
    of the sentence imposed on an offender, as defined in s. 673 of the
Criminal
    Code
.

[150]

Second, the general rule that establishes the period of parole
    ineligibility in cases such as this at 10 years is not unyielding. The rule may
    be ousted by a determination by the trial judge, made after consideration of
    the factors enumerated in s. 745.4, that the offender should wait a longer
    period before having his suitability for release into the community assessed:
Shropshire
,
    at para. 27.

[151]

Finally, appellate intervention should only occur where a party
    demonstrates the application of an erroneous principle that has resulted in a
    period of parole ineligibility that is clearly or manifestly excessive or
    inadequate:
Shropshire
, at paras. 47-48.

The Principles Applied

[152]

For several reasons, I would not interfere with the parole ineligibility
    order made by the trial judge.

[153]

First, the single error in principle advanced by the appellant is the
    alleged failure of the trial judge to consider that excessive force in
    self-defence is a mitigating factor on sentence. But crucial to the
    ameliorating influence of such a factor is a finding of fact by the trial judge
    that self-defence failed on the basis that the appellant used excessive force.
    The trial judge made no such finding under s. 724(2)(b) of the
Criminal
    Code
, nor would one have been warranted on the evidence adduced at trial.
    Absent such a finding, the factual predicate for the alleged error falls away,
    likewise the alleged error as a basis upon which to review the parole
    ineligibility order.

[154]

Second, the authority relied upon by the appellant to support his claim
    that excessive force in self-defence is a mitigating factor in determining the
    period of parole ineligibility on conviction of second degree murder fails to
    establish the basis for the claim.

[155]

In
R. v. Trecroce
(1980), 55 C.C.C. (2d) 202 (Ont. C.A.),

excessive
    force in self-defence was advanced as a substantive doctrine, much like the
    statutory partial defence of provocation, to reduce what otherwise was proven
    to be murder to manslaughter. The argument failed. Trecroce received the
    minimum period of parole ineligibility. Sentence was not in issue, nor was the
    influence, if any, of excessive force in self-defence on a determination of the
    appropriate period of parole ineligibility.

[156]

Third, the enhanced period of parole ineligibility imposed
    here falls within, perhaps even slightly below, the range of parole
    ineligibility orders in cases such as this. A youth, armed with an illegal
    handgun, in breach of not one but two firearm prohibitions, ready to shoot it
    out on a public thoroughfare in the presence of innocent bystanders, including
    two pre-schoolers, all to vindicate an inflated sense of self-worth. In a city plagued
    by gun violence. End of story.
Res ipsa loquitur
.

[157]

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

CONCLUSION

[158]

For these reasons, I would dismiss the appeal from conviction and would
    grant leave to appeal, but dismiss the appeal from sentence.

Released: January 18, 2017 ("DW')

"David Watt
    J.A."

"I agree. P.
    Lauwers J.A."

"I agree. B.W.
    Miller J.A."

[1]
This instruction derived from
R. v. Baxter
(1975), 27 C.C.C. (2d) 96
    (Ont. C.A.) advises the jury of the need to make allowance for the stress of
    the situation in which an accused finds himself and of the need for an
    immediate response to that unlawful assault.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tarroza, 2017 ONCA 14

DATE: 20170110

DOCKET: C59841

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alex Tarroza

Appellant

Joseph Wilkinson, for the appellant

Brian Puddington, for the respondent

Heard and released orally: October 13, 2016

On appeal from the conviction entered on November 18,
    2014 by Justice Donald J. Halikowski of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals from his conviction for possession of cocaine for
    the purpose of trafficking.

[2]

It is undisputed that the trial judge misapprehended the evidence when
    he found that police surveillance officers saw Mr. Chronopoulos place a bag in
    the trunk of the appellants vehicle on the morning of July 11, 2013.

[3]

Based on our review of the trial judges reasons, he relied on this
    misapprehension in coming to the conclusion that the appellant was acting in a joint
    venture with Mr. Chronopoulos and Mr. Gannes to traffick cocaine and knew of
    the cocaine in his trunk.  That this is so is apparent, in particular, from
    paragraphs 30, 31, 39, 44, and 46 of his reasons.  This error, standing alone,
    requires a new trial.

[4]

We do not accept the appellants submission that the verdict was
    unreasonable.  The appellant relies for this submission on statements by the
    trial judge that he rejected the appellants evidence in its entirety and
    argues that there was therefore no evidence of certain matters essential to the
    Crowns case.  We do not accept this submission.

[5]

Read fairly the trial judges reasons reflect the rejection of the
    appellants version of the events at issue and not the appellants evidence
    concerning what was essentially uncontroversial background information.

[6]

In light of our conclusions concerning the forgoing issues, it is
    unnecessary that we deal with the other grounds of appeal.

[7]

We will however address one other matter. In his reasons for judgment,
    the

trial

judge

also found the
    appellant guilty of conspiracy to commit an indictable offence and not guilty
    of several other offences.  All of these charges
[1]
had previously been withdrawn.  After the trial judge delivered his reasons, it
    was pointed out to him that the conspiracy charge had been withdrawn.  He said
    the finding of guilt on that charge would not form part of the final order.
    The Information in the appeal book does not include any endorsement of the
    trial judges findings or of the sentence that he imposed.  Counsel have been
    unable to locate a final order.  Although there is no sentence appeal before
    us, the trial judges reasons for sentence disclose that he sentenced the
    appellant to a concurrent sentence for the withdrawn conspiracy charge.  In the
    circumstances we consider it prudent to make an order that, to the extent
    necessary, any conviction and sentence for the withdrawn conspiracy charge are
    set aside.

[8]

For the reasons given, the appeal is allowed, the conviction for
    possession of cocaine for the purpose of trafficking is set aside and a new
    trial is ordered.

Janet Simmons
    J.A.

G. Pardu J.A.

B.W. Miller J.A.

[1]
The conspiracy count in the Information actually charged the appellant with
    conspiracy to traffick a controlled substance.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a
    young person who has received an adult sentence;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in subsection (1) may,
    after he or she attains the age of eighteen years, publish or cause to be
    published information that would identify him or her as having been dealt with
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985, provided that he or she is not in custody pursuant to
    either Act at the time of the publication.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. V.S., 2017 ONCA 25

DATE: 20170113

DOCKET: C61575

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

V. S.

Applicant/Appellant

Christopher Hicks, for the appellant

Jennifer Mannen Epstein, for the respondent

Heard: January 11, 2017

On appeal from the conviction entered on June 24, 2015
    and the sentence imposed on July 15, 2015 by Justice Sarah S. Cleghorn of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown concedes that the trial judge erred in convicting the
    appellant of assault causing bodily harm. We accept that concession as
    appropriate. In accordance with s. 686(1)(b)(1) and on consent, that conviction
    is set aside and in its place a conviction for common assault is substituted.
    The sentence has been served.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walker, 2017 ONCA 39

DATE: 20170118

DOCKET: C62020

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Walker

Appellant

E. Taché-Green, for the appellant

Rochelle Direnfeld, for the respondent

Heard: November 25, 2016

On appeal from the sentence imposed on June 9, 2015 by
    Justice J. Skowronski of the Ontario Court of Justice.

Sharpe J.A.:

[1]

The central issue on this sentence appeal is whether a sentence of four
    years imprisonment in addition to credit for 13 months pre-sentence custody is
    an illegal sentence where the maximum penalty for the offence is five years.

FACTS

[2]

On September 9, 2014 Ontario Provincial Police officers observed the appellant
    driving very slowly and pulling a trailer with no tail lights. The trailer also
    obscured the tail lights of the appellants car. The police signalled for the
    appellant to pull over.

[3]

The officers observed the appellant to be exhibiting signs of impairment.
     The appellant refused to get out of the vehicle when ordered to do so. He hit
    the gas and revved his engine, but the car was in park and it did not move. An officer
    leaned into the car and struggled with the appellant. The officer then backed
    out of the vehicle and again ordered the appellant to exit the vehicle. The
    appellant reached for the gearshift in an apparent attempt to place it into
    drive. At that point, the officer tasered the appellant. Undeterred, the
    appellant drove away, speeding through stop signs with the trailer he was
    pulling whipping back and forth across the road. The appellant also swerved
    into oncoming lanes of traffic. The police chased him in their cruiser, using
    their siren. The appellant paid no heed, and the police turned the sirens off
    in hope that this would cause the appellant to slow to a safer speed.

[4]

At one point during the pursuit, the appellant locked his brakes. As the
    trailer had no brake lights, the police did not realize that the appellant was
    braking and the cruiser hit the back end of the trailer. After this collision,
    the appellant sped away through a residential area with the cruiser once again
    in pursuit. The appellant sped through stop lights and stop signs. Eventually,
    the police were successful in forcing the appellant to stop by pinning him
    against a gate. An officer got out of the cruiser and ordered the appellant to
    turn his car off. The appellant reversed, hitting the cruiser three or four
    times. The appellants vehicle broke free from the trailer and he drove away.
    One of the officers jumped out of the way to safety.

[5]

Once again, the police pursued the appellant and ultimately succeeded in
    pinning his vehicle down. The appellant exited his vehicle and fled on foot.
    Neighbours alerted the police that he had gone into his house. His elderly
    mother told the police that her son had just run into his room. The police
    arrested him in his bedroom. He made some comments to the police and initially
    resisted arrest until the taser was brought out, at which point he was
    compliant. The appellant refused to provide a breath sample at the station. The
    appellant was subject to a driving prohibition at the time he was arrested.

[6]

The appellant pleaded guilty to impaired driving, resisting a peace
    officer, dangerous driving, flight while being pursued by a peace officer,
    driving while disqualified and failing to provide a breath sample.

REASONS FOR SENTENCE

[7]

The Crown sought a sentence of five to six years, less time served, plus
    a lifetime driving prohibition. The defence argued for time served and a
    lengthy probationary period.

[8]

The appellant has a lengthy criminal record consisting of 78
    convictions, including 17 convictions for driving offences. His most recent
    conviction was in 2013 when he was stopped for speeding. He was a prohibited
    driver at the time. He initially gave a false name to the police. While the
    police conducted a CPIC check, the appellant sped away. He evaded the first and
    second spike belts that were employed to stop him, but was eventually stopped
    by a third set. He then fled on foot but was caught. His alcohol readings were
    115 and 117. He also has more than 20 convictions for breaches of court orders,
    including nine convictions for driving while disqualified.

[9]

The sentencing judge noted that the mitigating factors were the guilty
    plea, and the appellants expression of remorse. In addition, the appellant had
    concrete plans for rehabilitation.

[10]

The sentencing judge considered the aggravating factors to be pronounced.
    In addition to the appellants lengthy criminal record, the sentencing judge
    found the circumstances of the offences to be aggravating. In the sentencing
    judges words, they border on legendary in a negative way. Perhaps nightmarish
    is a better description.

[11]

The sentencing judge noted that denunciation and deterrence must be major
    considerations in drinking and driving cases, as strong and consistent messages
    must be sent to drunk drivers. The appellants record screams out to the
    court for an exemplary sentence. While the appellant claimed to be determined
    to start down the road to rehabilitation, that had also been his position in
    2013 when he had asked for a longer sentence so that he could get into a
    treatment program. The sentencing judge observed that the time to get help has
    been ever present when out of custody, but not meaningfully accessed. He
    concluded that the circumstances of these offences and the appellants record
    demanded a sentence that appropriately denounced and deterred. He concluded as
    follows: Therefore, on the resist police officer, there will be a 90 day
    sentence concurrent to the other charges, and on all other charges there will
    be a four year penitentiary sentence, on top of 13 months of pre-plea custody.
    The sentencing judge also imposed a lifetime driving prohibition, victim fine
    surcharges and a DNA order.

ISSUES

[12]

The appellants principal ground of appeal is that by imposing a
    sentence of four years on top of 13 months pre-sentence custody, the sentencing
    judge imposed an illegal sentence. The appellant points out as well that the sentencing
    judge erred in his calculation of the pre-sentence custody and that the sentence
    should be reduced accordingly. The appellant also submits that the sentencing judge
    failed to consider the parity principle, and did not properly consider the
    evidence of rehabilitation. The appellant also moves to admit fresh evidence, to
    which the Crown responds with further fresh evidence.

ANALYSIS

Did the sentencing judge
    impose an illegal sentence?

[13]

In addition to the resist police officer charge (for which the appellant
    received 90 days concurrent), the appellant pleaded guilty to five other
Criminal
    Code
offences, for each of which the maximum allowed sentence was five
    years imprisonment.

Offence

Maximum Penalty where Crown proceeding by indictment

Impaired
          operation of a motor vehicle

(s.
          253(1)(a))

5
          years (s. 255(1)(b))

Dangerous
          operation of a motor vehicle

(s.
          249(1)(a))

5
          years (s. 249(2)(a))

Flight
          while pursued by a peace officer

(s.
          249.1(1))

5
          years (s. 249.1(2)(a))

Drive
          while disqualified (s. 259(4))

5
          years (s.259(4)(a))

Fail
          to provide a breath sample (s. 254(5))

5
          years (s. 255(1)(b))

[14]

While it might have been technically possible for the sentencing judge
    to have imposed a sentence of more than five years in total, that would have
    required consideration of the principle in
R. v. Kienapple,
[1975]
1 S.C.R. 729 and the imposition of
    discrete sentences on each count.  The sentencing judge did not do that. Instead,
    he imposed a global sentence of four years in addition to 13 months pre-sentence
    custody. He did not specifically determine the sentence to be imposed for each
    of those offences as required by s. 725(1)(a) of the
Criminal Code
.
    That, however, does not invalidate the sentence as s. 728 of the
Criminal
    Code
provides:  Where one sentence is passed on a verdict of guilty on
    two or more counts of an indictment, the sentence is good if any of the counts
    would have justified the sentence. In
R. v. P.(T.A.)
, 2014 ONCA 141,
    307 C.C.C. (3d) 506, at para.16, this court held that when considered together,
    ss. 725(1)(a) and 728 mean that sentence should be passed on each count on
    which an accused has been found guilty but a single global sentence on one or
    more counts will not be invalidated provided the sentence may be justified by
    any of the counts.

[15]

The maximum single global sentence that would have been justified in
    this case was five years. Accordingly, the issue is whether a sentence of four
    years imprisonment on top of 13 months credit for pre-sentence custody is an
    illegal sentence.

[16]

The issue of the calculation of sentences that include credit for pre-sentence
    custody in relation to statutory minimums and maximums has been considered in a
    variety of circumstances.

[17]

In
R. v. Wust
, 2000 SCC 18, [2000] 1 S.C.R. 455,
R. v.
    Arthurs
, 2000 SCC 19, [2000] 1 S.C.R. 481 and
R. v. Arrance
, 2000
    SCC 20, [2000] 1 S.C.R. 488, the Supreme Court of Canada held that a sentencing
    judge may give credit for pre-sentence custody and impose a sentence less than
    a mandatory minimum sentence, provided the total amount of time served
    satisfies the mandatory minimum. As explained in
Arthurs
, at para. 1:
    a sentencing judge may give credit for time served in pre-sentencing custody,
    even if that credit results in a sentence below the mandatory minimum, since
    this reflects the intention of Parliament that all sentences be administered
    consistently within the context of the criminal justice systems sentencing
    regime.

[18]

In
R. v. Fice
, 2005 SCC 32, [2005] 1 S.C.R. 742, the Supreme
    Court rejected the argument that credit for pre-sentence custody could affect
    the availability of a conditional sentence. A conditional sentence is only
    authorized for sentences of less than two years. The court determined that the
    two years less a day maximum period must be based on the total time of
    punishment, which includes credit for pre-sentence custody. Just because a
    given offender was sentenced to serve less than two years did not mean a
    conditional sentence was available, if taking pre- sentence custody into
    account meant that total time spent in custody was more than two years.

[19]

In my view,
Wust
,
Arthurs, Arrance
and
Fice
support the appellants argument that the sentence imposed in this case was
    illegal. Those cases hold that pre-sentence custody is properly considered as
    punishment for the offence, and that it should therefore be taken into account when
    calculating the length of the sentence in relation to minimum and conditional
    sentences.

[20]

The respondent relies on
R. v. Mathieu
, 2008 SCC 21, [2008] 1
    S.C.R. 723, where the Supreme Court appears to have taken a different approach
    in the case of eligibility for a probation order. The court held, at para. 17,
    that a sentence of less than two years does not become a sentence of more
    than two years simply because the trial judge, in imposing the sentence of less
    than two years, took into account the time already spent in custody as a result
    of the offence. As a result, it was open to the sentencing judge in that case
    to make a probation order which is only available where the sentence is less
    than two years, despite the aggregate of the sentence imposed and the
    pre-sentence custody exceeding two years. Similarly, in
R. v. Moniere
,
    2008 SCC 21, [2008] 1 S.C.R. 723, the Court held that credit for pre-sentence custody
    is not relevant to the determination of when an accused is eligible for parole;
    rather that calculation is based on the sentence imposed on the date of
    sentencing.

[21]

While
Mathieu
and
Moniere
take a different view of the
    effect of pre-sentence custody on the calculation of the length of sentences in
    the context of probation orders and parole, those cases also accept that there are
    occasions where pre-sentence custody should be considered as part of the term
    of imprisonment imposed at the time of sentence; namely, minimum sentences (
Wust
)
    and conditional sentences (
Fice
).

[22]

The Supreme Court of Canada has not considered the question before us on
    this appeal, but there is a consistent line of authority at the level of
    provincial appellate courts that the total of credit for pre-sentence custody
    plus the sentence actually imposed must not exceed the maximum sentence and
    that if it does, the sentence is illegal.

[23]

In
R. v. Rotman
, 2015 ONCA 663, 339 O.A.C. 266, this court
    found that the trial judge erred in principle by imposing a sentence which
    taken together with the pre-sentence custody exceeded the statutory maximum of five
    years. In that case, the trial judge said, In addition to Mr. Rotmans
    presentence custody, I sentence him to 3 years At the time of sentencing Mr.
    Rotman had spent two years and 13 days in custody. Brown J.A., writing for the
    court, concluded at para. 7:

I accept the appellant's submission. The language used by the
    sentencing judge in his reasons clearly indicates that he imposed a sentence
    containing two elements  the time already served by the appellant in
    pre-sentence custody (2 years and 13 days by the date of sentence), together
    with a further 3 years' imprisonment. At the time the sentence was imposed,
    that resulted in a sentence which exceeded, by 13 days, the statutory maximum
    of 5 years' imprisonment. By imposing a sentence that exceeded the statutory
    maximum, the sentencing judge erred in principle. On this basis alone, the
    sentence imposed cannot stand.

[24]

In
R. v. LeBlanc
, 2005 NBCA 6, 193 C.C.C. (3d) 387, the New
    Brunswick Court of Appeal held, at para. 64, that the trial judge erred in
    imposing a sentence, which, when combined with the pre-sentence custody,
    exceeds the maximum allowed by the
Criminal Code
.

[25]

In
R. v. Severight
, 2014 ABCA 25, 306 C.C.C. (3d) 197, leave to
    appeal refd [2014] S.C.C.A. No. 184,  the Alberta Court of Appeal took the
    same approach and found that the Supreme Courts decision in
Mathieu
did not assist in determining how pre-sentence custody interacted with maximum
    sentences. The court noted that
Mathieu
had expressly recognized that
    there were occasions where pre-sentence custody should be considered as part of
    the term of imprisonment imposed at the time of sentence, namely, minimum or
    conditional sentences. The Alberta Court of Appeal found, at para. 32, that the
    issue of pre-sentence custody in the context of maximum sentences raises many
    of same concerns about fairness:

In our view, issues of fairness also arise when one is
    considering pre-sentence custody in the context of statutory maximum sentences.
    These limits are designed to establish an upper limit of incarceration with
    respect to certain offences. To impose the maximum sentence, without
    considering pre-sentence custody, would flout the obvious intention of
    Parliament by providing a sentence that effectively exceeds the maximum.
    Parliament can hardly have intended to impose a maximum term of imprisonment
    for aggravated assault that could be extended, to varying degrees depending on
    the time spent in pre-sentence custody, through the failure to exercise a
    judicial discretion. It would also provide unequal punishment, for similarly
    situated offenders, based upon the length of time they have spent in
    pre-sentence custody. Furthermore, there could be occasions when an offender
    given less than the maximum sentence could spend more time in jail than an
    offender receiving the maximum sentence, if the latter was released on bail,
    pending trial, or served less time in pre-sentence custody. It follows that
    whether you find it is mandatory to consider pre-sentence custody in crafting
    the sentence, or you consider it as part of the sentence already served,
    pre-sentence custody also ought to be considered as part of the punishment when
    dealing with maximum sentences.

[26]

I agree with that reasoning and, following this courts decision in
Rotman
,
    I conclude that the sentence imposed in this case exceeded the statutory
    maximum and was therefore illegal.

[27]

The Crown concedes that the sentencing judge erred in his calculation of
    credit for pre-sentence custody. The sentencing judge gave the appellant 1.5 to
    1 credit for 273 days of pre-sentence custody, which he mistakenly calculated
    as 13 months rather than 13 months and 19 days. The Crown agrees that this
    minor error should be corrected on appeal.

[28]

I conclude, accordingly, that the sentence imposed exceeded the
    statutory maximum by one month and 19 days and was therefore illegal.

[29]

Given my conclusion that the sentence imposed was illegal, it is not
    necessary for me to consider the other issues raised by the appellant as
    grounds of appeal.

What is the appropriate
    sentence?

[30]

The appellant is a 50 year-old man, with a troubled family history. He
    is a lifelong alcoholic with mental health issues. In recent years he has
    suffered the loss of his half-brother, step-father, brother and mother. The
    appellant is single and childless.

[31]

The circumstances of these offences were very aggravating. The appellant
    drove while intoxicated in a frighteningly dangerous manner, driving at high
    speed through red lights and stop signs in a residential area. His conduct displays
    a disturbing disregard for the authority of the police and for court orders.

[32]

The appellants criminal record for similar offences is deplorable. Of
    particular concern is the fact that in 2013, he committed similar offences,
    driving in an erratic and dangerous manner in flight from the police while
    intoxicated and while disqualified from driving. For those offences, he
    received 13 months in custody, on top of credit for four and one half months pre-sentence
    custody. This was the appellants previous longest sentence, in part because of
    his request for a sentence that would facilitate his admission to Ontario
    Correctional Institute so he could access programs for alcoholism and mental
    illness. Unfortunately, he was not admitted to that institution.

[33]

Upon his release in 2014, it appears that the appellant did not take any
    steps to access treatment or help for his illnesses. Since his arrest on these
    charges, the appellant has taken some steps to seek treatment in custody.
    Regrettably, however, the fresh evidence filed by both the appellant and the
    respondent presents a mixed picture of his success in that regard. He has
    completed some programs while in custody and has worked with the John Howard
    Society with a view to arranging assistance upon his release. However, his
    progress was halted when he was transferred to face other outstanding charges
    in Alberta. He has now been returned to the penitentiary in Beaver Creek. The
    parole officer responsible for his supervision reports that the appellant has
    been unwilling to follow the directions and recommendations of his case
    management team, and that he is argumentative and disrespectful, focused upon
    his release rather than addressing the needs that are identified in his
    correctional plan.

[34]

While I am sympathetic to the view that in the case of an offender who
    suffers from alcoholism and mental health problems, rehabilitation must be
    given significant weight, the appellant seems only to consider treatment as an
    option when faced with criminal charges. He has continued to conduct himself in
    a manner that is extremely dangerous to the public and to disregard court
    orders designed to protect the public from the risk he poses. He appears to be
    making little progress in custody.

[35]

I conclude that this case calls for a substantial period of
    incarceration for the purposes of general and specific deterrence and for the
    protection of the public. On the other hand, the sentence should not be one that
    ignores rehabilitation or discourages the appellant from seeking help for his
    addiction and mental illness.

[36]

In my view, notwithstanding the very serious circumstances of these
    offences, this is not a case calling for the maximum sentence. The appellants
    previous longest sentence is the equivalent of approximately 18 months. In my
    view, the appropriate sentence is four- years imprisonment, less 13 months and
    19 days credit for pre-sentence custody, that is, 34 months and 11 days from
    the date of sentence, June 9, 2015.

DISPOSITION

[37]

For these reasons, I would grant leave to appeal, admit the fresh
    evidence, allow the appeal, set aside the custodial portion of the sentence
    with respect to counts 3, 4, 6, 7 and 8 and in its place, substitute a sentence
    of 34 months and 11 days. In all other respects, the sentence imposed by the sentencing
    judge is maintained.

Released: January 17, 2017

Robert J. Sharpe
    J.A.

I agree K. van
    Rensburg J.A.

I agree G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: RJM56 Investments Inc. v. Kurnik, 2017 ONCA 19

DATE: 20170112

DOCKET: C61469

Cronk, Rouleau and Huscroft JJ.A.

BETWEEN

RJM56 Investments Inc.

Applicant
(Appellant)

and

Kevin Kurnik and Canada Revenue Agency

Respondents
(Respondents in Appeal)

Application under Rule 14.05(3)(d) and (g) of the
Rules of
    Civil Procedure

AND BETWEEN

DOCKET: C61468

Kevin Kurnik
and the
    Kurnik Family Trust

Plaintiffs
(
Respondent
)

and

Martin McCarthy, the McCarthy Family Trust,
RJM56 Investments Inc.
(formerly R.J. McCarthy Limited)
, RJM56 Holdings Inc. (formerly R.J.
    McCarthy Holdings Inc.), 1434669 Ontario Inc. and 214CO Investments Inc.
    (formerly 2140831 Ontario Inc.)

Defendants
(
Appellant
)

Melvyn L. Solmon and David M. Sherman, for the appellant

Michael R. Kestenberg, for the respondent

Andrew Kinoshita and P. Tamara Sugunasiri, for Canada
    Revenue Agency

Heard: September 21, 2016

On appeal from the judgment of Justice Suhail A.Q. Akhtar
    of the Superior Court of Justice, dated November 10, 2015.

COSTS ENDORSEMENT

[1]

On November 4, 2016, this court issued its decision allowing the appeal
    in part. We allowed the appellants appeal from the judgment granting partial
    summary judgment but dismissed its appeal of the lower courts dismissal of its
    application. The appellant was awarded its costs of the appeal fixed in the
    amount of $15,000 inclusive of disbursements and applicable taxes. The decision
    also provided that if the parties could not agree on costs in the court below,
    they were to make brief written submissions. These have now been received.

[2]

The appellant seeks costs in the court below on a partial indemnity
    basis from the commencement of the application up to the date of its offer to
    settle and on a substantial indemnity basis thereafter under rule 49 of the
Rules
    of Civil Procedure
, for its original application and for defending against
    the respondents motion. In the alternative, the appellant seeks partial
    indemnity costs for the proceedings in the court below fixed in the amount of
    $57,031.43, inclusive of disbursements and HST. It also seeks costs of the
    appeal on a substantial indemnity basis based on the offer to settle that was
    made in the context of its application.

[3]

The costs of the appeal were fixed in our original decision and we see
    no basis on which to review that decision.

[4]

With respect to the costs of the original application and motion, we
    agree with the respondents submission that the offer to settle referred to by
    the appellant is of no relevance to the issue of costs. It was made as an offer
    to settle the appellants own application and that application has been
    dismissed. We also agree with the respondents submission that the result on
    appeal, and as a consequence in the court below, was mixed. This is because the
    appeal was allowed strictly on the basis of the motion and the appeal of the
    dismissal of the application was dismissed as moot.

[5]

In our view, the $57,031.43 being sought by the appellant in partial
    indemnity costs for the original application and motion is excessive. In the
    court below, the respondent, who had initially been successful on both the
    application and the motion, received a costs award of $28,565.99. In our view,
    taking into account the fact that the appellants application was not
    successful but that the appellant was successful on appeal with respect to the
    motion and specifically on the critical issue of its obligation to pay
    additional amounts to the respondent, a reasonable amount for costs in the
    court below is the same amount originally awarded to the respondent, that is,
    $28,565.99.

[6]

In conclusion, costs of the application and motion in the court below
    are awarded to the appellant fixed in the amount of $28,565.99, inclusive of
    disbursements and applicable taxes.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

Grant Huscroft J.A.