COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Van Every, 2016 ONCA 87

DATE: 20160201

DOCKET: C55165

Laskin, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Van Every

Appellant

Dirk Derstine and Janani Shanmuganathan, for the appellant

Grace Choi, for the respondent

Heard: June 19, 2015

On appeal from the conviction entered by Justice Alan
    C.R. Whitten of the Superior Court of Justice, sitting with a jury, on May 29,
    2008, and the sentence imposed on December 19, 2008.

van Rensburg J.A.:

A.

Overview

[1]

L.B. was killed by a single gunshot wound to the chest while standing in
    the hallway of his Hamilton home in the early morning of January 25, 2006. The
    appellant, Thomas Van Every, was arrested in Montreal several days later and
    charged with first degree murder.

[2]

L.B. was a drug dealer and the father of three. The appellant was his
    lifelong friend and the second-in-command in his drug dealing business. The
    appellant lived in L.B.s basement, along with J.G. J.G. was a crack addict who
    also worked in the business and took his payment in drugs.

[3]

At trial, the Crowns theory was that Van Every shot L.B., intending to
    kill him, after he felt disrespected by L.B. The Crown argued that the killing
    was planned and deliberate. The defence contended that Van Every was too drunk
    to have been the killer, and that J.G., the Crowns key witness at trial, had
    in fact shot L.B. The defence also argued that even if the jury found that the appellant
    was the shooter, he was too intoxicated to have the required intent for first
    or second degree murder. The appropriate verdict would then be manslaughter.

[4]

The appellant was convicted of second degree murder after the jury
    trial. He was sentenced to life imprisonment with no parole for 16 years. He
    appeals his conviction and seeks leave to appeal his sentence, in particular,
    the period of parole ineligibility.

[5]

The conviction appeal raises three issues.

[6]

The first issue is whether the trial judges error in instructing the
    jury on the intent for murder, which the Crown acknowledges, vitiates the
    conviction. At several points in his charge, the trial judge told the jury that
    to find the intent for murder, they had to be satisfied that the appellant
    intended to kill L.B., or to cause bodily harm that he knew was likely to cause
    death
or

was reckless whether or not L.B.
    would die. The appellant says that the trial judges error, in saying or
    instead of and in describing the second possible intent for murder, led to
    the very real possibility that the jury convicted the appellant, who was
    highly intoxicated at the time of the killing, based on mere recklessness. The
    Crown says the error was insignificant in the context of the case, and the case
    against the appellant for second degree murder was overwhelming. The Crown relies
    on the curative proviso under s. 686(1)(b)(iii) of the
Criminal Code,
R.S.C.
    1985, c. C-46
.

[7]

The remaining two issues in the conviction appeal concern the trial
    judges refusal to give a
Vetrovec
instruction with respect to one
    Crown witness (G.S.), and the adequacy of his
Vetrovec
instruction
    with respect to J.G.

[8]

The issue in the sentence appeal is whether the trial judge failed to
    give effect to the appellants Aboriginal background, as set out in the
Gladue
report, in determining his period of parole ineligibility. The appellant
    says that ten years, the minimum parole ineligibility period, should be
    substituted for the 16 years ordered by the trial judge.

[9]

For the reasons that follow, I would dismiss the conviction appeal. There
    is no reasonable possibility that the jury convicted the appellant of second
    degree murder based on a finding that he was reckless. The evidence that the
    appellant was the shooter, and that he had the correct required intent for
    murder, was in any event overwhelming. This is a proper case for the
    application of the proviso.

[10]

With
    respect to the
Vetrovec
issues, I find no basis to interfere with the
    trial judges proper exercise of discretion.

[11]

While
    I would grant leave to appeal sentence, I would dismiss the sentence appeal.
    There is no indication that the trial judge overlooked or failed to consider
    the appellants Aboriginal status and history in fixing the period of parole
    ineligibility, and there is no question that the period of 16 years he imposed
    was fit in all the circumstances of this case.

B.

Facts

[12]

Because
    the conviction appeal turns in large part on determining the effect of an
    admitted legal error in the trial judges charge, it is necessary to set out,
    in some detail, a summary of the relevant evidence at trial. This evidence
    concerns the events before, during, and after L.B.s killing, as well as the
    appellants level of intoxication. Intoxication was a central issue at trial, relevant
    to both the identity of the appellant as the person who shot and killed L.B., and
    his intention.

[13]

Again,
    the theory of the defence was that the shooter was in fact J.G. because the
    appellant was too intoxicated to have been the shooter, and that, if the
    appellant was the shooter, he lacked the
mens rea
for first degree and
    second degree murder.

[14]

J.G.
    was in Van Everys company before and after the shooting, and claimed to have
    been in the basement when L.B. was killed. Although he fled with Van Every, and
    was stopped by police days later in Montreal, he was never charged with any
    offence. His evidence identified the appellant as the shooter, and supported a
    finding the appellant had the intent for murder. Other witnesses included the
    other two adults who were at the victims house at the time of the shooting (L.B.s
    mother-in-law D.H., and his cousin J.W.), and a couple (G.B.S. and G.S.) with
    whom the appellant and J.G. spent a few days in Montreal before their arrest.
    The Crown also relied on expert evidence connecting the victim to the appellant
    and as to the mechanism of death.

[15]

The
    appellant did not testify. In his defence he called two expert witnesses. Based
    on the evidence of J.G. about how much the appellant had drunk, they testified
    on the issue of the degree of intoxication and the level of impairment to his
    physical and cognitive abilities resulting from his consumption of alcohol.

[16]

A
    review of the key evidence at trial follows.

(1)

Evidence of J.G.

[17]

J.G.
    testified that for much of the evening of January 24, 2006, L.B. was playing
    video games in his main floor bedroom, at times with his young son. At one
    point L.B. and Van Every cooked crack cocaine in the kitchen, and for one batch
    used some 151 proof rum (which is 75.4% alcohol).

[18]

L.B.s
    wife was in hospital, after giving birth to their third child. His
    mother-in-law, D.H., was taking care of the other two children and spent much
    of the evening watching TV in the living room with the children and two other
    people. L.B.s cousin, J.W., was also there at some point during the night.

[19]

The
    appellant and J.G. were impatient to go to the crack house to sell drugs, but
    they needed L.B.s permission. L.B. ignored them, preferring to continue
    playing his video game.

[20]

L.B.
    had talked about using a sawed-off shotgun to deal with people in Brantford who
    were cutting in on his turf. Earlier that day, on L.B.s instruction, J.G.
    retrieved the gun from where it was hidden and brought it to the house. Van
    Every cleaned it, and they kept it in the basement.

[21]

According
    to J.G., he and Van Every had drunk a couple of beers earlier that evening at a
    bar. At the house, Van Every continued drinking all night from the bottle of
    rum that was about three quarters full when J.G. first saw it. He said that Van
    Every pretty much had a drink in his hand all night long and was almost slurring
    his words. As he got more and more drunk, he became angrier with L.B., who
    refused to let them go out to sell crack. L.B. said Van Every was too
    intoxicated to go, and he would not send J.G. because he would have taken the
    drugs for himself. At one point Van Every threatened to rip L.B.s TV out of
    the wall.

[22]

J.G.
    testified that shortly before L.B. was shot, Van Every came down to the
    basement where J.G. was watching TV, and asked him where the gun was. Van Every
    took the gun, loaded it and told J.G.: Youre going to ride with me tonight.
    He told J.G. to wait downstairs, and walked upstairs with the gun.

[23]

A
    couple of seconds later, J.G. heard L.B. say something to Van Every, and then
    he heard a gunshot. Van Every opened the basement door and told J.G. to come
    upstairs. J.G. saw L.B. on the ground, wounded, with Van Every standing in L.B.s
    bedroom holding the gun. Van Every was asking where is the money?, and L.B.
    was saying, help, help. Van Every then stood over L.B. and threatened to put
    another bullet in him if he did not tell him where the money was.

[24]

Van
    Every asked J.G. if he knew where the money was. J.G. grabbed a wad of bills
    from an entertainment stand in the living room, and threw it to Van Every, who
    picked up the money. Van Every told him to get the keys to L.B.s truck.

[25]

J.G.
    and Van Every left in L.B.s truck, with J.G. driving and Van Every in the
    passenger seat. The gun was on the floor of the truck. When they stopped in
    Burlington for gas, Van Every paid. Van Every decided they would go to
    Montreal. When J.G. stopped for more gas, Van Every was passed out in the back
    seat and J.G. had to wake him up for money.

[26]

At
    some point, J.G. nodded off and crashed the truck into a rock cut. Van Every
    woke up and tried to drive the truck, but found it was not driveable. They
    accepted a ride to Montreal from a passing driver. Before they climbed into the
    car, Van Every told J.G. to get rid of the gun, and J.G. threw it on top of the
    rock cut.

[27]

After
    arriving in Montreal around 7:30 a.m. on January 25, Van Every and J.G. were picked
    up by G.B.S., a cousin of Van Everys girlfriend. They bought new boots and
    clothes at a local mall, and J.G. threw away his boots. The three spent the
    night at a hotel with escorts and drugs, and then they moved to G.B.S. and G.S.s
    house. For the next few days, they partied with drugs and alcohol. Van Every
    paid for everything, using L.B.s cash, and when they started to run low on
    money, Van Every made J.G. pawn a gold chain that belonged to L.B. (L.B.s
    blood was identified on the chain).

[28]

J.G.
    said he and Van Every talked once about what had happened. J.G. said Van Every
    felt bad for what happened, but at the same time, what was done was done.

[29]

J.G.
    and G.S. were pulled over by police while out on a drug run a few days after they
    got to Montreal. J.G. was brought to the police station, but was not charged
    with any offence. He gave a statement identifying Van Every as L.B.s killer.

[30]

L.B.s
    blood was splattered on the pair of jeans that J.G. was wearing when he was
    arrested. He said they belonged to Van Every and he was wearing them because he
    did not have much clothing of his own. He left his old boots, which may have
    had blood on them, at the store in Montreal because they were old and heavy. J.G.
    denied that he was the one who killed L.B. because he was jonesing for crack
     that is, coming down from a high and looking for more. He had stayed with Van
    Every rather than going to the police for help because he was more terrified of
    the situation than of Van Every. J.G. agreed with defence counsel that, as an
    addict, he lied a lot, and that he would do whatever it took to get crack.

(2)

Evidence of D.H.

[31]

D.H.
    was L.B.s mother-in-law, and was staying at his house the night of January 24,
    2006. L.B.s wife had just given birth to their third child and was still in
    hospital, and D.H. was keeping an eye on the other two children. During the
    evening, she watched a movie in the living room with her two grandchildren and
    two of L.B.s friends, who left around 11 p.m.

[32]

Between
    11 p.m. and midnight, D.H. saw L.B. in his bedroom playing video games with her
    grandson. D.H. took her granddaughter upstairs to bed around midnight, and she
    fell asleep. She was awoken by a bang. She grabbed her granddaughter and ran
    downstairs, where she saw her grandson standing in the living room, crying. L.B.
    was lying on the ground, and she saw Van Every pointing a gun up at the
    ceiling. Van Every was looking right at D.H. but did not say anything. She did
    not see J.G. before she gathered the children and ran out the door. As she
    called 911 from a pay phone, D.H. saw L.B.s truck drive by.

[33]

D.H.
    agreed with defence counsel that Van Every was staring kind of blankly when
    she saw him holding the gun. In her police statement, she did not say she saw
    Van Every standing over L.B.s body, or that he was holding a gun. Rather, she told
    police she was upstairs when she heard a bang and that she gathered the
    children and ran from the house.

(3)

Evidence of J.W.

[34]

J.W.,
    L.B.s cousin, testified that he arrived at L.B.s house sometime after
    midnight on January 25, 2006, to pick up some DVDs. L.B. was engrossed in a
    video game in the bedroom with his son. While he was waiting for L.B. to stop
    playing, J.W. saw Van Every and J.G. pass by the bedroom door a few times. He could
    tell they had been drinking. Van Every was staggering and J.G. looked annoyed
    or something. At some point, he told L.B. he had to go, and the two walked
    into the kitchen together.

[35]

After
    getting the DVDs, J.W. saw L.B. walking back into the hallway, where he
    stopped. J.W., who is taller than L.B. and was behind him, saw Van Every over L.B.s
    shoulder, standing about four-and-a-half feet away and facing L.B. He saw and
    heard Van Every say bang, and then he heard a shot. He did not actually see Van
    Every with a gun or see him pull the trigger. He did not see J.G. anywhere at
    the time. J.W. turned, ran out the back door, and called 911.

[36]

J.W.
    acknowledged that he had not initially told police that he saw Van Everys face
    over L.B.s shoulder or told them that he heard Van Every say bang right
    before the gun went off. His explanation was that he had been in shock.

(4)

Evidence of G.S.

[37]

G.S.
    testified that after spending the first night  a Wednesday  in a hotel with
    her husband (G.B.S.), Van Every and J.G. came to stay at their house in
    Montreal. Van Every carried a very thick bundle of bills. Over the next two
    days, Van Every, J.G., G.S. and G.B.S. drank alcohol and consumed drugs. J.G.
    helped around the house and did Van Everys laundry and whatever else Van Every
    told him to do. On Friday, Van Every sent G.B.S. and J.G. to a pawn shop to
    sell a gold chain that Van Every took off his neck. That night, Van Every
    bought a bag of Ecstasy pills, and consumed a lot himself. On Saturday, when
    Van Every was high on drugs, he rambled on about how this guy was
    disrespecting me, so I blew him away and I smoked his ass. Van Every made
    similar comments more than ten times for sure that day and the next, and at
    least once in her husbands presence. Van Every also said he was looking for
    another place to stay and was discussing what kind of places he should try to
    find and go and hide. G.S. helped Van Every to dye his hair to change his
    appearance.

(5)

Evidence of G.B.S.

[38]

G.B.S.
    testified that he picked up Van Every and J.G. when they arrived in Montreal
    and took them to buy new clothes and boots. He and J.G. went to pawn the gold
    chain on Van Everys instructions. He said there was nothing unusual in Van
    Every and J.G.s relationship but pretty much it was [Van Every] telling [J.G.]
    whatever to do. Van Every paid for all the drugs and alcohol they consumed
    that weekend. He understood that someone had been killed in Hamilton, but did not
    ask for details.

(6)

The Crowns Expert Evidence

[39]

According
    to the evidence of the forensic pathologist who performed L.B.s autopsy, the
    cause of his death was a single gunshot wound straight to the left side of the
    chest. A firearms expert testified that, based on the lack of gunshot residue
    on L.B.s shirt, the gun was shot from at least five feet away, and adding in
    the length of the gun, the shot would have been fired from at least six feet
    away.

[40]

A
    forensic biologist testified that L.B.s blood was found on the boots, jeans
    and jacket that Van Every was wearing the night of the shooting (as confirmed
    by security camera footage captured when Van Every, J.G. and G.B.S. were in the
    mall the morning of January 25). The only detectible DNA on the gun was L.B.s.
    No DNA was detected on the bullet shells.

(7)

Defence Expert Evidence

[41]

The
    defence called expert evidence directed to the issue of Van Everys
    intoxication and probable level of physical and cognitive impairment resulting
    from his consumption of alcohol.

[42]

Dr.
    Amy Peaire, a forensic toxicologist, testified as to the appellants possible
    blood alcohol concentration at the time of the killing, assuming he drank three-quarters
    of a bottle of 151 proof rum, less a cupful (about 20 to 30 ounces in total).
    She testified that an individual of similar weight to the appellant who
    consumed 20 to 30 ounces of rum and two beers between 5 p.m. and 1 a.m. would
    have a blood alcohol level between 330 and 655 milligrams in 100 millilitres of
    blood. The low end of that range is over four times the legal limit. Dr. Peaire
    stated that a light-to-moderate drinker would probably be unconscious and may
    be comatose and at risk of death at a blood alcohol level of 330, while a
    chronic user of alcohol may be conscious but still show a few signs of
    intoxication, such as slurring of speech and stumbling when walking. As the
    complexity of the task increases, it is expected to be a much better indicator
    of the persons level of impairment. Dr. Peaire characterized walking up and
    down stairs as a more complex task and loading a shotgun as a relatively
    complex task requiring fine motor coordination.

[43]

Dr.
    Julian Gojer, a forensic psychiatrist, testified about the impact of alcohol on
    a persons behaviour. He testified that one would expect an intense impact on
    the thought processes, emotions and motor activity of a person with a blood
    alcohol level of 330, and that would be consistent with a seriously compromised
    capacity.

[44]

Dr.
    Gojer testified that a person with a blood alcohol level in that range would be
    fairly severely intoxicated, experience aggressive outbursts and that he or
    she would pass out or go into a deep sleep afterwards. He confirmed that
    staring off into space and looking dazed is consistent with a high level of
    intoxication. Defence counsel also put various hypothetical actions to Dr.
    Gojer, such as walking up and down a flight of stairs, loading a shotgun,
    catching money, and getting out of a vehicle and paying for gasoline, and Dr.
    Gojer testified that these actions would be highly inconsistent with a person
    who is severely intoxicated. In cross-examination, Dr. Gojer agreed that if
    someone puts thought into events following a shooting, such as running away, it
    indicates a level of cognitive reasoning.

C.

ERROR IN INSTRUCTION ON INTENT FOR MURDER

(1)

The Legal Error

[45]

Pursuant
    to s. 229(a) of the
Criminal Code
, there are two possible intents for
    murder:

229. Culpable homicide is murder

(a) Where the person who causes the death of a human
    being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows
    is likely to cause his death, and is reckless whether death ensues or not.

[46]

In
    this case, the trial judge referred on a number of occasions in his charge to
    the two intents for murder. He described the two alternative intents erroneously
    early in his charge, when he stated that the intent required for murder is an
    intent to kill someone or to cause them bodily harm knowing that it will kill
    them,
or
you are reckless as to whether that it
    does do so (emphasis added). He later stated the two intents correctly in his
    instruction on
mens rea,
when he said that the Crown must prove that
    the accused meant to kill L.B. or meant to cause L.B. bodily harm that Van
    Every knew was likely to kill L.B.
and
was
    reckless about whether L.B. died or not (emphasis added). Overall, on a total
    of eight occasions, he told the jury that to find the intent for murder, they
    had to be satisfied that the appellant intended to kill L.B., or that he
    intended to cause bodily harm that he knew was likely to cause death
or

was reckless whether death ensued, replacing
    the word and by or each time in describing the second intent.

[47]

There
    is no question that the trial judge erred in his recitation of the intent for
    murder in so doing.

[48]

The
    requisite intent under s. 229(a)(ii) consists of the subjective intent to cause
    bodily harm and the subjective knowledge that bodily harm is of such a nature
    that it is likely to result in death. Subjective foresight of death is a
    requirement. As for the element of recklessness in the last phrase of
    s. 229(a)(ii), the aspect of recklessness can be considered an
    afterthought, since [o]ne who causes bodily harm that he knows is likely to
    cause death must, in those circumstances, have a deliberate disregard for the
    fatal consequences which are known to be likely to occur. That is to say he
    must, of necessity, be reckless whether death ensues or not:
R. v. Cooper,
[1993] 1 S.C.R. 146, at pp. 154-155. See also
R. v. Moo
, 2009 ONCA
    645, 253 O.A.C. 106, at paras. 45-46.

(2)

The Effect of the Error

[49]

The
    appellant submits that the trial judges repeated use of the phrase or was
    reckless in his formulation of the requisite intent for murder created the
    very real possibility that the jury convicted him of murder based on a third
    type of intention: that of mere recklessness.

[50]

The
    Crown acknowledges that the trial judge erred in describing the intent for
    murder, but contends that the error was harmless and that this is an
    appropriate case to apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
. In all the circumstances, there is no realistic possibility that the
    jury convicted the appellant of murder on the basis of recklessness, and in any
    event, the case against the appellant for second degree murder was overwhelming.

(3)

The Error in Context

[51]

The
    point of departure is to consider the effect of the legal error in the context
    of what transpired at trial. As Watt J.A. observed in
Moo
,

at
    para. 66: [T]here is an essential step between legal error and appellate
    reversal  was there a substantial wrong or miscarriage of justice caused by
this
error, on
this
evidence, in
this
trial? (emphasis in
    original).

[52]

As
    I will explain, in the context of the evidence at trial, the trial judges
    instructions on intent, considered as a whole, and the positions taken by the
    Crown and defence, it is inconceivable that the jury would have understood the
    instruction the way the appellant now contends  that they could find the
    appellant guilty of murder if he had recklessly caused L.B.s death, and that
    they would have found him guilty of second degree murder on that basis. There
    are four reasons why.

[53]

First,
    the trial judges erroneous words must be read in the context of how he framed
    the required intent. On every occasion the trial judge instructed the jury on
    the
mens rea
for murder, he framed the intent as having
two
alternatives. He explained that the mental element
    for murder has two possible elements. He went on to say that the Crown does
    not have to prove both, one is enough. He explained that the jury had to be
    satisfied that the accused had either intent. The trial judge even used shorthand
    on a couple of occasions during his charge, describing the requisite intent as
    intent to kill or intent to cause bodily harm. This is inconsistent with a
    third and freestanding intent for murder, that of recklessness, which the
    trial judge did not further explain.

[54]

Second,
    no one noticed the error in the charge, although it was made repeatedly. This suggests
    that in the context of the real issues in the case, it was not material.

[55]

The
    Supreme Court held that [t]he failure to register a complaint about the aspect
    of the charge that later becomes the ground for the appeal may be indicative of
    the seriousness of the alleged violation:
R. v. Daley
, [2007] 3
    S.C.R. 523, at para. 58; see also
R. v. Jacquard
, [1997] 1 S.C.R. 314,
    at para. 38. As this court held, [i]t is all the more so when counsel have
    received a copy of the proposed charge in advance of delivery and make no
    complaint about the completeness of the instruction:
R. v. Salah
,
    2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 112.

[56]

In
    this case, counsel had a copy of the draft charge that contained the erroneous
    wording. There was no objection to that part of the charge at any time during
    the trial: not in the pre-charge conference, not when the trial judge reviewed
    the draft decision tree with counsel and repeated the erroneous wording three
    times, not when the trial judge solicited comments from counsel during one of
    several breaks in reading his charge, and not after the charge was given.

[57]

Third,
    a review of the closing arguments and the balance of the jury charge makes it
    clear that recklessness as its own route to prove an intent to kill, or even
    as part of the second available intent for murder under s. 229(a)(ii), could
    not reasonably have been at play.

[58]

Both
    counsel, in closing arguments, made only brief and perfunctory references to
    the
mens rea
for murder. Neither counsel made anything more than a
    passing reference to manslaughter as an available verdict, and neither said
    anything about recklessness, other than as part of the Crowns correct
    recitation of the
mens rea
for murder.

[59]

The
    principal defence theory at trial was that the appellant was not the shooter,
    and this was the focus of trial counsels closing argument. He challenged the
    credibility and reliability of the evidence of the various Crown witnesses, in
    particular, J.G., J.W. and D.H. He emphasized that no one actually saw the
    appellant shoot L.B., and, placing the empty bottle of 151 proof rum before the
    jury, argued that the appellant could not have shot L.B. because he was too
    intoxicated. The focus of the evidence on intoxication was on the appellants
    motor skills the night L.B. was shot. If he had consumed as much as three
    quarters of that bottle of rum, how could he have loaded the shotgun, navigated
    the stairs and shot L.B.? This lent further credence to the argument that J.G.
    must have been the killer.

[60]

While
    intoxication figured largely in the argument of defence counsel at trial, it
    was primarily to negate the identity of the appellant as the shooter; that is,
    it went to the
actus reus
. His focus was on intoxication as robbing
    Van Every of the ability to commit the act of shooting, at least in the way J.G.
    had described how the events unfolded.

[61]

Defence
    counsels comments about intoxication negating the intent for murder are
    contained in short and rather boilerplate paragraphs, one right at the
    beginning of his closing address, and the other at the end. Defence counsel
    suggested that intoxication would have deprived the appellant of the ability to
    plan and deliberate, necessary for first degree murder. Importantly, however,
    defence counsel never suggested that if the jury was satisfied that the
    appellant was the shooter, they should go on to conclude that he lacked
    subjective foresight that shooting L.B. in the chest from a few feet away would
    kill him. Counsel made no attempt to link the idea that intoxication could
    negate
mens rea
to the evidence of how L.B. actually died. As the
    Supreme Court noted in
R. v. Daley
, at para. 42, for certain
    homicides, where death is the obvious consequence of an accuseds act, he would
    have to establish a very advanced degree of intoxication to avail himself of an
    intoxication defence.

[62]

The
    evidence was that L.B. was shot from a short distance away, with a single
    straight shot to the chest. The trial judge correctly instructed the jury that
    one can infer that a sane and sober person intends the natural consequences of
    his act, and that in determining whether this was the case, they should
    consider the evidence of the appellants intoxication. He then carefully
    reviewed the evidence respecting the appellants alcohol consumption and intoxication,
    including the expert evidence.

[63]

Obviously,
    the jury was satisfied that the appellant was not so drunk that he failed to
    appreciate the consequences of his actions. The predictable consequence of
    shooting someone in the chest at close range is that the victim will die. This
    is not a case where the mechanism of death left any realistic scope for doubt
    about intent.

[64]

During
    argument of the appeal, the appellants counsel suggested that a conviction
    based on recklessness could have occurred in the following way: the notion that
    the appellant intended the natural consequences of his actions (discharging a
    gun from a short distance) had to be diluted by (1) the evidence of
    intoxication; and (2) the unreliability of the eyewitness evidence,
    particularly that of J.W. about seeing Van Every over L.B.s shoulder and
    hearing him say bang. If the jury disbelieved J.W., but convicted on the
    basis of other evidence, such as post-offence conduct, they had no direct
    evidence of what happened at the moment of the shooting. Counsel submitted that
    it then became more likely that the jury might have convicted on the basis of
    recklessness. He explained that the appellant could have gone upstairs with the
    intention of threatening L.B. or shouting at him, and then waved the gun
    recklessly so that it ended up discharging.

[65]

There
    was however no evidence at all, and no suggestion by anyone at trial, that the
    appellant behaved in this manner. Further, even if the jury had disregarded J.W.s
    evidence, there was other compelling evidence that the appellant had the
mens
    rea
for murder. He was angry with L.B. He told J.G. before going upstairs,
    youre going to ride with me tonight. He took L.B.s gold chain and cash, and
    fled with J.G. to Montreal. According to G.S., Van Every confessed, repeatedly,
    in a way that left no room for doubt about intent: This guy was disrespecting
    me, so I blew him away, I smoked his ass.

[66]

R.
    v. Esrabian
, 2013 ONCA 761, 308 C.C.C. (3d) 362, involved the same error
    as here in the instruction for s. 229(a)(ii), albeit in the context of a first
    degree murder conviction. As in that case, on a consideration of all of the
    evidence at trial, the balance of the charge and the positions of counsel, only
    s. 229(a)(i) could possibly have been engaged, and any error in the trial
    judges formulation of s. 229(a)(ii) could not have played any role in the
    jurys verdict.

[67]

Fourth,
    although one can never know precisely how the jury arrived at its verdict in
    the present case, its recommendations on parole ineligibility shed some light
    on how they viewed the case. Five jurors recommended 25 years before Van Every
    was eligible for parole. Two recommended 20 years. Three recommended between 15
    and 18 years. Two abstained. As the trial judge noted at the sentencing
    hearing: Now obviously from that statistic, the jury, the members of this community
    were of the view that this was a serious second degree murder and it would
    indicate seriousness which became closely akin to that associated with first
    degree murder. This belies appellate counsels suggestion that the jury may
    well have convicted Van Every based on mere recklessness.

(4)

The Evidence of Guilt was Overwhelming

[68]

Finally,
    the case against Van Every was overwhelming that Van Every was the shooter, and
    that he had the requisite intent for murder.

[69]

J.G.s
    account of the killing was corroborated in important respects by both J.W. and D.H.
    While J.W. did not see Van Every actually shoot L.B., because he was behind L.B.
    at the time, he saw him facing L.B., and he saw and heard him say bang before
    he was shot. D.H. saw Van Every holding the gun after she heard the shot. Neither
    saw J.G. anywhere near the shooting. Neither D.H. nor J.W. had any motive to
    falsely accuse Van Every. The appellants post-offence conduct, including
    stealing L.B.s cash and necklace, fleeing to Montreal, buying new clothing and
    dyeing his hair, points to his having the mental and physical wherewithal to
    flee the scene in L.B.s truck. It also points to his consciousness of guilt. And,
    of course, there were the statements the appellant made to G.S.

(5)

Applying the Proviso

[70]

Section
    686(1)(b)(iii) of the
Criminal Code
provides that where an appellate
    court is of the opinion that a conviction appeal
could be decided in favour of an appellant on the ground that
    the trial court made a wrong decision on a question of law, it may nevertheless
    dismiss the appeal
if it is of the opinion that no
    substantial wrong
or miscarriage
    of justice has occurred. As Moldaver J. noted in
R. v. Sekhon
, 2014
    SCC 15, [2014] 1 S.C.R. 272, at para. 53, there are two situations where the
    curative proviso is appropriate: the first is where the error is harmless or
    trivial and the second is where the evidence is so overwhelming that,
    notwithstanding that the error is not minor, the trier of fact would inevitably
    convict. The proviso can only be applied where there is no reasonable
    possibility that the verdict would have been different had the error  not been
    made. The Crown bears the burden of demonstrating that the curative proviso is
    applicable and satisfying the court that the conviction should be upheld
    notwithstanding the legal error:
R. v. Van
, 2009 SCC 22, [2009] 1
    S.C.R. 716, at para. 34.

[71]

In
    this case, the acknowledged legal error meets the test for application of the
    proviso. There is no realistic possibility that the error was understood by the
    jury as the appellant now contends  of creating a third option for intent for
    murder based on recklessness, and nothing at trial was consistent with a
    reckless shooting resulting in L.B.s death. Even if the error were not
    inconsequential, the jury would inevitably have convicted the appellant. The
    case against the appellant, both as the killer and with the intent for murder,
    was overwhelming. Accordingly, I would dismiss this ground of appeal.

D.

The
Vetrovec
Issues

[72]

As
    the second and third grounds of appeal of his conviction, the appellant asserts
    that the trial judge erred in failing to warn the jury about the danger of
    accepting the testimony of G.S., without some corroborating evidence, in
    accordance with the principle set out in
R. v. Vetrovec,
[1982] 1
    S.C.R. 811. He also asserts that the trial judge gave an inadequate
Vetrovec
caution with respect to the evidence of J.G.

[73]

Whether
    to give a
Vetrovec
warning, and if so, the content of the warning, are
    discretionary decisions for the trial judge, and are accorded substantial
    deference on appellate review:
R. v. Mariani
, 2007 ONCA 329, 220
    C.C.C. (3d) 74, at paras. 23-24;
R. v. Carroll
, 2014 ONCA 2, 304
    C.C.C. (3d) 252, at paras. 60 and 67;
R. v. Brooks
, 2000 SCC 11, [2000]
    1 S.C.R. 237, at paras. 1-2, 24.

(1)

Adequacy of the
Vetrovec
Instruction for J.G.

[74]

The
    trial judge provided the following reasons as to why the jury should exercise
    caution in accepting J.G.s evidence: he was addicted to crack cocaine; he
    aided Van Every in fleeing and disposing of the murder weapon; he admitted to
    having stashed that weapon on a previous occasion; he had not been charged with
    an offence for his involvement in the drug business as well as the murder
    itself; and he admitted he did not want to go to jail. The trial judge
    instructed the jury that in light of these circumstances, there was good
    reason to look at J.G.s evidence with the greatest care and caution, and he
    encouraged the jury to look for some confirmation of J.G.s evidence.

[75]

The
    appellant says that the list of reasons for caution in connection with J.G.s
    evidence was incomplete. What the trial judge missed was the most important
    cause for applying scrutiny, namely that J.G. could have been the shooter. As
    such, the caution did not drive home to the jury the most important reason why
    it would be dangerous to rely on his unsupported evidence.

[76]

In
    my view, the
Vetrovec
warning with respect to J.G.s evidence was
    sufficient. The defence argued in closing and intimated through his
    cross-examination of J.G. and other witnesses that J.G. was more likely to have
    killed L.B., which would have made it abundantly clear to the jury why his
    evidence should be approached with caution. Further, trial counsel did not
    object to the substance of the
Vetrovec
warning for J.G. after
    reviewing the draft jury charge, or after the charge was delivered. While not
    determinative, the failure to raise any concern about the content of the
    instruction is an important consideration, suggesting that, in the context of
    the trial, the instruction that was given was considered adequate:
R. v.
    Shand
, 2011 ONCA 5, 104 O.R. (3d) 491, at para. 220;
R. v. Salah
,
    at para. 112.

(2)

Refusal to Give a
Vetrovec
Instruction for G.S.

[77]

With
    respect to G.S., a
Vetrovec
warning was requested by trial counsel,
    but opposed by the Crown and refused by the trial judge.

[78]

The
    appellant asserts that a warning was warranted, as G.S. was clearly an
    unsavoury witness: she was a drug user with a criminal record, she lied at the
    preliminary inquiry, and she had provided a statement to police with the hope
    of consideration in charges pending against her. G.S. was a key Crown witness
    who testified that the appellant confessed to the murder and that he dyed his
    hair in order to evade police detection. There was no confirmatory evidence on
    either point.

[79]

The
    trial judge explained why he had decided against a
Vetrovec
warning
    for G.S. He noted that he would give a warning about her prior inconsistent
    statement at the preliminary inquiry, that her criminal record was covered in
    the charge about the criminal records of all witnesses, and that her request
    for some kind of consideration for her co-operation with police was met by the
    response that the police could not do anything for her because the matter took
    place in Hamilton. He concluded that he was not convinced that there were
    inherent dangers in her evidence such that a
Vetrovec
warning should
    be given, and that her evidence could be fairly judged by the jury on its own,
    without a special charge in that regard and inviting them to be cautious. They
    would be cautious in any event, knowing that both G.S. and her husband were
    not exactly model citizens.

[80]

The
    trial judge proceeded as intended. He cautioned the jury about witnesses who
    have criminal records, and referred to G.S.s criminal record of unlawful
    possession of tobacco products and failure to appear, and of the fine and jail
    sentence she had received. In instructing the jury about prior inconsistent
    statements, the trial judge gave as an example G.S.s lie at the preliminary
    hearing about going out with J.G. to purchase drugs, and that she gave no
    explanation for her lie. The trial judge pointed out aspects of G.S.s
    evidence, including the appellants inculpatory statements, which were not
    corroborated by other evidence. The trial judge pointed to the various problems
    with G.S.s evidence in his summary of the defence theory: G.S. sought
    consideration for her co-operation in giving her statement, which led to the
    incrimination of the appellant; he referred to G.S.s evidence that on her
    arrest, she had asked for some help regarding prior problems with the
    authorities, and that when refused, she stated that she made her statement
    anyway regardless of whether [she] was helped or not.

[81]

I
    see no reason to intervene here. The trial judges assessment that no
Vetrovec
warning was required and his reasons for refusing such a warning are sensible.
    The totality of the charge drew the jurys close attention to all of the
    factors that the defence argued were problematic about G.S.s evidence.

[82]

I
    would not therefore give effect to the
Vetrovec
grounds of appeal.

E.

Sentence appeal

[83]

The
    appellant seeks leave to appeal his sentence on one ground: that the trial
    judge failed to give tangible consideration to his Aboriginal background in
    imposing a parole ineligibility period of 16 years. The appellant asserts that
    the trial judge placed undue emphasis on deterrence and denunciation to the
    detriment of restorative justice and rehabilitation. The appellant argues that
    the minimum period of parole ineligibility, ten years, ought to have been imposed.

[84]

The
    Crown asserts that there was no such error, and that the trial judges reasons
    demonstrate that he gave detailed consideration to the appellants Aboriginal
    background as set out in the
Gladue
report, as well as the
    comprehensive presentence report.

[85]

The
    relevant legal principles can be briefly stated.

[86]

Section
    745.4 of the
Criminal Code
provides that a judge may increase parole
    ineligibility above the normal ten-year period for an offender convicted of
    second degree murder up to 25 years, having regard to: the character of the
    offender, the nature of the offence and the circumstances surrounding its
    commission, and the recommendation of the jury, if any. To justify such an
    order, the court may consider the future dangerousness of the offender and
    denunciation, as well as deterrence:
R. v. Shropshire
, [1995] 4 S.C.R.
    227.

[87]

A
    sentencing judge is obliged, under s. 718.2(e) of the
Criminal Code
,
    to consider the unique circumstances of Aboriginal offenders, and it is an
    error for a sentencing judge to fail to factor into a sentencing decision the
    accuseds Aboriginal status:
R. v. Ipeelee
, 2012 SCC 13, [2012] 1
    S.C.R. 433, at para. 87. Section 718.2(e) and the principles enunciated in
R.
    v. Gladue
, [1999] 1 S.C.R. 688, apply to decisions on parole eligibility:
R.
    v. Jensen
(2005), 74 O.R. (3d) 561 (C.A.), at para. 28.

[88]

As
    the court noted in
Gladue
, at para. 79: Generally, the more violent
    and serious the offence the more likely it is as a practical reality that the
    terms of imprisonment for aboriginals and non-aboriginals will be close to each
    other or the same, even taking into account their different concepts of
    sentencing. However, this is not to be taken as a statement that
Gladue
factors need not be considered in the context of violent crimes. To the contrary,
    they apply to all offences, even the gravest of offences. While it is not a
    mechanical race-based discount, judges must craft sentences that are
    meaningful to Aboriginal people by emphasizing the use of principles of
    restorative justice and restraint:
Ipeelee
, at para. 75;
Gladue
,

at para. 48.

[89]

This
    is not a case where the trial judge refused to consider the
Gladue
factors
    or considered them to be irrelevant to his task on sentencing. The sole
    question is whether the trial judge took into consideration the
Gladue
factors in making his decision about parole ineligibility.

[90]

The
    appellants trial counsel sought a period of parole ineligibility of ten to 12
    years. He argued (unsuccessfully) that the court ought not to take into
    consideration the appellants considerable criminal record from offences
    committed in the United States. That issue was not pursued on appeal.

[91]

The
    Crown sought a period of parole ineligibility of 16 to 18 years.

[92]

As
    noted earlier, the jurys recommendations (which are a factor to be considered,
    and were based simply on their view of the circumstances of the offence) were
    as follows: 25 years (five jurors), 20 years (two jurors), 18 years (one
    juror), 15 years (two jurors), with two abstentions.

[93]

The
    trial judge reviewed the circumstances disclosed in the appellants
Gladue
report,
    which included the appellants membership in the Six Nations at Grand River and
    his move with his family from the reserve to Buffalo as a child  a separation
    from community described as a loss of positive guidance. The trial judge
    accepted that it was likely that many of the appellants problems arose from
    intergenerational harm from his grandmothers attendance at residential school.
    He noted that the
Indian Act
requirement that the appellants mother give
    up her membership in the Muncie Reserve to be a member at Six Nations likely
    contributed to the weakening of social bonds and the appellants alcohol abuse.
    The
Gladue
report noted that the appellant had benefitted from
    cultural teaching and self-learning. The author concluded with the wish that
    the appellant be able to spend his time in an institution with access to
    opportunities to pursue the traditional ways.

[94]

The
    trial judge noted that the pre-sentence report revealed a criminal record with
    numerous alcohol-related offences, including crimes of violence, namely robbery
    and second degree assault. The appellant had a childhood marred by his fathers
    violence towards the appellant and his mother. He was exposed to alcoholism as
    a child, and left home as an adolescent. He supported himself by selling drugs.
    He became a father at age 15, but no longer had contact with that child. He has
    other children, and sold drugs to support his family. One of his sisters is
    serving time for murder; two other siblings were killed at ages 19 and 20. The
    appellants education and employment are limited, but he wants to study
    counseling to help Aboriginal youth. The author of the pre-sentence report
    noted that alcohol has been a theme through the appellants life. The author also
    noted that the appellant had opportunities to turn his life around, but is not
    amenable to court orders or community supervision.

[95]

Having
    reviewed the
Gladue
report and the pre-sentence report, the trial
    judge concluded that there were no positive signs that the appellant would turn
    his life around. There was no psychological assessment or pursuit of further
    education, as in other cases. He concluded that there were no real prospects
    for rehabilitation. The appellant, at 33 years old, was not a troubled youth,
    but a dangerous adult. There were no mitigating factors. The jury
    recommendations of 15 to 25 years parole ineligibility reflected the
    seriousness of the offence. The trial judge, after considering all the
    circumstances, the appellants antecedents, the circumstances of the offence,
    the
Gladue
report, the pre-sentence report, and the jury
    recommendations, imposed parole ineligibility of 16 years.

[96]

There
    are a number of factors in this case that justified increasing the period of
    parole ineligibility above the ten-year minimum. These included the
    circumstances of the offence, described by the trial judge as the summary
    execution of an unarmed man in front of his child in his own home, followed by
    robbing the victim of his drug proceeds and gold chain; the jurys
    recommendations, which reflected their view of the seriousness of the offence;
    the fact the appellant was 33 at the time of sentencing and not a youthful offender;
    the appellants criminal record of 23 prior convictions in the U.S.; the fact
    that the appellant had absconded from the U.S. where he was on parole for
    robbery at the time of the offence; and the victim impact statements.

[97]

The
    question here is whether it can be concluded from the sentencing reasons that
    the trial judge failed to give attention to the unique background and systemic
    factors which may have played a part in bringing [the appellant] before the
    courts:
Gladue,
at para. 69.

[98]

I
    found no error of law here and would not interfere with the trial judges
    decision, which was a proper exercise of discretion. He recognized the
    obligation to consider the appellants Aboriginal background  and he did so.
    While there is no question that the emphasis on sentencing was on deterrence,
    denunciation and isolation of the offender, as was warranted in the
    circumstances, the trial judge gave appropriate consideration to the
    appellants prospects for rehabilitation. He concluded, however, that notwithstanding
    the opportunities that had been provided to the appellant in the past to turn
    his life around, he was not amenable to court orders or community supervision.
    As the trial judge noted, any rehabilitation, any hope of his reformation is
    completely in his hands. He will no doubt continue what he has done to this
    point, despite his roots, his growing awareness of his traditions until he
    embraces those traditions. The trial judge did recommend that the appellant be
    considered for all and any Aboriginal heritage programs which are available at
    the institutions in which he is maintained.

[99]

On
    a fair reading of the reasons for sentence, the trial judge recognized the Aboriginal
    status and history of the appellant, and expressly stated that he took them
    into consideration. The circumstances of the offence and the offender, without
    considering the
Gladue
factors, might well have justified a longer
    period of parole ineligibility. As in
R. v. Sunshine
, 2014 BCCA 318,
    [2014] B.C.J. No. 2045, leave to appeal refused, [2015] S.C.C.A. No. 185, at
    para. 28, while the trial judge could have said more, I would not criticize his
    reasons for failing to particularize how the information of disadvantage was
    precisely factored into his analysis. The trial judge had no obligation to
    quantify the effect of each factor, and there is no reason in this case to
    doubt his statement that he did consider the
Gladue
factors, or to go
    behind that statement.

[100]

I see no error
    either in the sentencing judges application of
Gladue
or in his
    conclusions concerning the appropriate period of parole ineligibility.
    Accordingly, I would grant leave to appeal sentence but dismiss the sentence
    appeal.

F.

CONCLUSION

[101]

For the
    foregoing reasons, I would dismiss the conviction appeal. I would grant leave
    to appeal sentence and would dismiss the sentence appeal.

Released: (J.L.) February 1, 2016

K. van Rensburg
    J.A.

I agree John Laskin
    J.A.

I agree E.E. Gillese
    J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

6.

(2.2) In proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Veysey, 2016 ONCA 97

DATE: 20160202

DOCKET: C52815

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy Wayne Veysey

Appellant

Julie Santarossa and Jessyca Greenwood, for the
    appellant

Marcy Henschel, for the respondent

Heard: February 1, 2016

On appeal from the conviction entered on March 19, 2008 and
    the sentence imposed on June 28, 2010 by Justice Robert M. Thompson of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant sexually assaulted two boys (aged 14 and 16) after
    threatening to cut them.  He was convicted of two counts of sexual assault with
    a weapon.  These convictions followed a 30 year history of convictions for
    predatory, violent and sexually sadistic offences against boys between the ages
    of 10 and 17.  The appellant also admitted to offending against countless other
    young male victims.

[2]

The Crown brought a dangerous offender application.  In that proceeding,
    the only question was whether the appellant should be declared a dangerous
    offender or a long term offender.

[3]

The trial judge was not satisfied that there was a reasonable
    possibility of eventual control in the community of the risk that the appellant
    posed.  He expressly recognized the evidence indicating that if Lupron, an
    anti-androgen medication, were administered to the appellant and the appellant
    participated and co-operated with a sound treatment plan, this would go a long
    way towards reducing his risk of re-offending.  Although the appellant stated
    his desire to fully participate in various treatment plans, the trial judge was
    dubious that the appellant would be co-operative, pointing to the fact that the
    appellant is manipulative, challenging and deceptive, and capable of using the
    right words to please his caregivers.  Moreover, the trial judge emphasized
    that there was no assurance that Lupron would be administered as a condition of
    the appellants release.  The trial judge noted that he could not order its
    administration and nor could the National Parole Board or Correction Services
    Canada.  He also noted that the appellant could withdraw his consent to the
    administration of Lupron at any time, in which case no physician would
    administer it.

[4]

Accordingly, he declared the appellant a dangerous offender.  At that
    time, the appellant was 63 years of age.

[5]

On appeal, the appellant seeks to introduce as fresh evidence a report
    by Dr. Bradford, a forensic psychiatrist.  The report shows, among other
    things, that the appellant has voluntarily taken Lupron for a lengthy period.

THE ISSUES

[6]

The appellant contends that the trial judge erred in:

1.

his analysis of the impact of age and the passage of time on the
    appellants risk of reoffending;  and

2.

assessing his risk on the basis that the appellant would be released
    into the community, unmedicated and unsupervised.

ANALYSIS

[7]

The court found it unnecessary to call upon the Crown.  It indicated
    that the appeal was dismissed, with reasons to follow.  These are the promised
    reasons.

The Fresh Evidence

[8]

We see nothing in the fresh evidence that would justify its admission.

[9]

The fresh evidence is an update of Dr. Bradfords report which the
    defence relied on at the dangerous offender proceedings.  With the exception of
    the information that the appellant is now using a wheelchair, the evidence is
    basically that which was adduced at sentencing.  In particular, we note that at
    the time of his designation, the appellant had been voluntarily taking Lupron
    for at least two years.  In any event, it is not sufficiently cogent that if
    believed, the fresh evidence could be expected to have affected the result.

Control in the Community

[10]

The
    trial judge properly articulated the critical question, at para. 80 of his
    reasons: is there a reasonable possibility of control in the community of the
    risk that the appellant will reoffend by committing a sexual assault?  His
    reasons make clear that he focused on whether the appellants risk could be
    controlled, not eliminated. Nowhere in his reasons did the trial judge suggest
    that the appellant could be designated a long term offender only if his sexual
    deviance could be eliminated entirely or if his risk of sexually reoffending
    could be reduced to zero.

[11]

The
    appellant submits that the trial judge erred in failing to find that the
    combination of the appellants age and the certainty of administration of
    Lupron would control his risk to the community to a manageable level.

[12]

We
    do not agree.

[13]

At
    para. 58 of his reasons, the trial judge notes that the concept of diminishing
    sexual drive with age is a generalisation and that the appellant has shown that
    his sexual drive did not diminish even after the age of 60 because he
    reoffended while incarcerated, as act for which he was convicted and
    sentenced.  We see no error in his finding on this matter.

[14]

Nor
    do we see any error in the trial judges finding regarding reliance on Lupron
    as a means to protect the community.  The evidence was clear  including that
    from the appellant  that without Lupron, he would re-offend.  The trial judge
    did not assess the appellants risk to the community on the basis that he would
    be released unmedicated and unsupervised.  Rather, in light of the appellants
    history, the trial judge was not satisfied that the appellant would remain
    co-operative in terms of the administration of Lupron and there would be
    enforcement difficulties should he choose to discontinue that treatment.

DISPOSITION

[15]

The
    appeal is dismissed.

E.E. Gillese
    J.A.

David Watt J.A.

M. Tulloch J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any document
    or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainant's sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Warren, 2016 ONCA 104

DATE: 20160205

DOCKET: C52923

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geoffrey Warren

Appellant

Kristin Bailey, for the appellant

Jessica Smith Joy, for the respondent

Heard: October 28, 2015

On appeal from the conviction entered on February 23,
    2009 by Justice Raymond Harris of the Superior Court of Justice, sitting with a
    jury.

L.B. Roberts J.A.
:

Overview

[1]

The appellant, Geoffrey Warren, appeals
    from his conviction by a jury of the offence of sexual interference for acts
    involving the complainant contrary to s. 151(a) of the
Criminal Code
    of Canada
, R.S.C. 1985, c. C-46. His conviction
    for sexual assault of the complainant was stayed in accordance with
R.
    v. Kienapple
, [
1975]
1 S.C.R. 729.

[2]

The appellant advances two grounds of
    appeal:

(1)

The
    trial judge erred in failing to give a limiting instruction on the
    complainant's prior consistent statements.

(2)

The
    jury charge was unbalanced and favoured the Crown's position.

(3)

As
    I would allow the appeal on the first ground, it is unnecessary to deal with
    the second ground.

The complainant's evidence

[3]

The complainant was almost 13 years old
    when she testified at trial. She said that the appellant touched her "private
    parts" with his "private parts" on more than 10 occasions when she was 6 or 7
    years old, during the times that the appellant babysat her with her younger
    sister at the appellant's apartment.

[4]

The complainant was thoroughly
    cross-examined by defence counsel on the major inconsistencies present in her
    prior statements to her grandmother and the police, and in her evidence at the
    preliminary inquiry and at trial. Those inconsistencies included the
    perpetrator, nature and severity of the assaults.

[5]

In the re-examination of the
    complainant, the examination of her grandmother, and in closing argument, the
    Crown referenced the complainant's prior consistent statements of her complaint
    to rehabilitate the complainant's credibility and reliability.

Analysis

Positions of the parties

[6]

The appellant concedes that the
    complainant's prior consistent statements were admissible for the purpose of
    showing the narrative and context of the complainant's complaints. No issue is
    taken with the Crown's use of the statements.

[7]

The focus of the appeal is on the absence
    of a limiting instruction. The appellant submits that the trial judge erred in
    failing to warn the jury that the complainant's prior consistent statements
    could not be used for their truth, to prove that sexual contact had occurred.

[8]

The Crown argues that a warning was
    unnecessary, as it was the defence that elicited most of the prior statements. Defence
    counsel did not request the limiting instruction at trial.

Standard of review

[9]

To succeed on this appeal, the
    appellant must establish that a jury instruction concerning the use that the
    jury could make of the complainant's prior consistent statements should have
    been given and that its omission amounted to legal error. See
R. v.
    Sarrazin
, 2010 ONCA 577,
259 C.C.C. (3d) 293,
at para. 65,
    aff'd 2011 SCC 54, [2011] 3 S.C.R. 505.

Use of prior consistent statements

[10]

Prior consistent statements are
    presumptively inadmissible because they lack probative value and constitute
    hearsay when adduced for the truth of their contents. They are potentially
    dangerous because they may mislead the trier of fact into thinking that, because
    a person said the same thing on more than one occasion, it is more likely to be
    true. See
R. v. Dinardo
, 2008 SCC
    24, [2008] 1 S.C.R. 788, at paras.
36-37;
R. v. Divitaris
(2004), 188 C.C.C. (3d) 390 (Ont. C.A.),
    at para.
28.

[11]

Where prior consistent statements are
    admitted to rebut recent fabrication or defence allegations of inconsistency,
    or as narrative, a warning against substantive use of the statements is usually
    required. This instruction should indicate that the prior complaints are not
    admitted for the truth of their contents and that the jury is to consider only
    the fact that the complainants were made to assist them in understanding what
    occurred and why:
Dinardo
, at para.
    37;
R. v. B. (C.)
, 2008 ONCA 486, 237
    O.A.C. 387, at para. 48;
R. v. F. (J.E.)
(1993),
85 C.C.C. (3d) 457 (Ont. C.A.)
, at p. 476.

[12]

There are some exceptions to the
    general rule. A limiting instruction is not always necessary and may be
    confusing where "the defence was relying on the prior statement to support its
    theory," "where it was clear to the jury that the prior statement was not
    offered as proof of the underlying facts, or where the concern about
    self-corroboration is simply not present":
R. v.

Demetrius
(2003),
    179 C.C.C. (3d) 26 (Ont. C.A.), at paras. 21-22 [citations omitted].

Whether a limiting instruction was necessary in this case

[13]

The complainant's prior statements
    played a major role at trial. They went to the core question of the reliability
    and credibility of the complainant's evidence.  As a result, a limiting
    instruction was necessary to avoid the real risk that the jury would rely on
    the complainant's prior statements for an impermissible purpose.  Its omission
    was an error of law.

[14]

There were major inconsistencies in the
    complainant's various versions of relevant events that were contained in her
    statements to her grandmother and police, and in her testimony at the preliminary
    inquiry and at trial. In particular, between the complainant's first disclosure
    at age 11 to her grandmother and the police, and her evidence at trial, the
    nature and severity of the alleged assaults dramatically lessened from allegations
    of the appellant's attempted intercourse with the complainant to his touching her
    over her clothes. Further, the complainant's statement that "they" (meaning the
    appellant and his friend, James) touched her narrowed to her trial evidence
    that only the appellant touched her.

[15]

The complainant's prior inconsistent
    statements were introduced by defence counsel during her cross-examination of
    the complainant in order to impeach her credibility and reliability as a
    witness. Defence counsel challenged the complainant's credibility and
    reliability by comprehensively cross-examining her on the inconsistencies in
    her statements. The complainant was not asked to and did not adopt as true her
    prior statements. Rather, she acknowledged that they were incorrect. In her
    closing submissions to the jury, defence counsel described the complainant's
    inconsistencies in considerable detail.

[16]

During his re-examination of the
    complainant, his examination in chief of her grandmother, and in closing
    argument, Crown counsel sought to counteract the damaging effects of the
    complainant's cross-examination by referring to her prior consistent complaints.
    Crown counsel referenced the complainant's prior consistent statements of her
    complaint as part of the narrative and logical framework of her disclosure of
    the allegations of sexual abuse. In this way, Crown counsel asserted the
    consistency of the complainant's core evidence about the assaults, and
    contended that her prior inconsistent statements were not inconsistent on
    material matters.

[17]

Relying heavily on
Demetrius
, the Crown argues that a limiting jury instruction was not
    necessary in this case. Defence counsel introduced and relied on the
    complainant's prior inconsistent statements during the complainant's
    cross-examination and in closing submissions to the jury. That defence strategy
    opened the door to the Crown's referring to the complainant's prior consistent
    statements.  In those circumstances, a limiting instruction would have confused
    the jury.

[18]

I do not accept these submissions.

[19]

Demetrius
is distinguishable
    from the present case. The complainant made a statement that identified Mr.
    Demetrius as the person who shot him. As part of his defence, Mr. Demetrius
    relied on the contents of the complainant's prior consistent statement, in
    order to show that the complainant had come up with a quick lie. The complainant's
    prior consistent statement was essential to the defence theory of the case that
    he was falsely implicating Mr. Demetrius to exculpate himself from liability
    for a robbery. The defence strategy made the truth of the complainant's prior
    consistent statement relevant and the Crown was entitled to rely on it for that
    purpose.

[20]

That is not the present case. Here, defence
    counsel only referenced the complainant's prior statements for the permissible
    goal of impeaching the complainant's credibility and reliability because of the
    inconsistencies in her various statements and her evidence at trial, and not
    for the truth of the statements' contents.

[21]

The present case is akin to the
    circumstances of
R. v. Lajoie
(1993),
64 O.A.C. 213, leave to appeal refused, [1993] S.C.C.A. No. 188
. In that case, the trial judge had allowed the Crown to
    admit evidence of the complainant's prior complaint of sexual assault. The prior
    complaint was admitted, not as a prior consistent statement to rebut an allegation
    of recent fabrication, but as evidence of the fact that the complainant had
    complained. This use was necessary to counter the defence, which was an "all-out
    attack on credibility": para. 11.

[22]

This court held in
Lajoie
, at para. 12, that the trial judge erred in failing to
    instruct the jury as to the limited evidentiary value of the complainant's
    prior complaint, notwithstanding that no such instruction was requested, for
    the following reasons:

[L]eft as it was the jury may well
    have used the evidence for the very purpose they were not to use it, a form of
    self-corroboration. The jury should have been told that the evidence could not
    be used as proof of the truth of the facts stated, but was evidence of the fact
    that she had complained and so, depending on the view the jury took of that
    evidence, conduct consistent with her story. There was non-direction amounting
    to misdirection.

[23]

Those reasons apply equally to the
    present case.  Looking at the charge as a whole and considering it in the
    context of the closing submissions, there were unresolved gaps that gave rise
    to the risk that the jury would use the complainant's prior statements for the
    truth of their contents to bolster the complainant's credibility.

[24]

The Crown maintains that the failure of
    defence counsel to object to the charge indicates that the omission of the
    instruction was insignificant and could not have affected the outcome of the
    trial.

[25]

The failure of trial counsel to object
    to the charge is a factor in appellate review, for the following reasons as
    explained by Bastarache J. for the majority of the court in
Daley
, at para. 58:

While not decisive, failure of
    counsel to object is a factor in appellate review. The failure to register a
    complaint about the aspect of the charge that later becomes the ground for the
    appeal may be indicative of the seriousness of the alleged violation. See
Jacquard
, at para. 38:  "In my opinion, defence counsel's failure
    to object to the charge says something about both the overall accuracy of the
    jury instructions and the seriousness of the alleged misdirection."

[26]

However, counsel's failure to object is
    not determinative because the trial judge is ultimately responsible for the
    charge to the jury. If, as in the present case, the charge contains legal
    error, counsel's failure to object to the erroneous charge does not change the
    nature or effect of the legal error:
R. v. Polimac
, 2010 ONCA 346,
254 C.C.C. (3d)
    359,
at para. 97, leave to appeal refused,
    [2010] S.C.C.A. No. 263.  As a result, defence counsel's failure to object in
    the case at bar was immaterial in light of the legal error in the jury charge.

[27]

The failure of the trial judge in this
    case to give a limiting instruction left the jury without the analytical
    framework necessary to understand how they were to use the complainant's prior
    consistent statements. In particular, without this instruction, Crown counsel's
    reference to the complainant's prior consistent statements in his closing
    submissions was effectively the last word on the subject.

[28]

In his closing submissions, Crown
    counsel referred to the complainant's consistency in reporting her allegations
    over the years. This was done to counter the defence suggestion that the
    complainant's evidence was inconsistent and therefore incredible and
    unreliable. To make the point, Crown counsel emphasized the number of times
    that the complainant had "the guts" to repeat her version of events to her
    grandmother and to the police, at the preliminary inquiry, and at trial. In
    particular, Crown counsel highlighted the complainant's consistent repetition
    that "every time it's Geoff and James and those two girls and the details  [
s]
he testified that it
    happened on the couch and on the floor, repeatedly, her privates being rubbed
    by Geoff".

[29]

However, without a limiting instruction,
    the jury could easily have misunderstood the significance of the complainant's
    prior consistent complaints, namely, that the complainant's repetition of
    events meant that her statements were true. This would contradict the premise
    for the rule that excludes prior consistent statements - that repetition does
    not make the statement more likely to be true:
Divitaris
, at para. 34.

[30]

The lack of a limiting instruction was particularly
    harmful in the present case because the complainant's prior statements served
    to shore up the complainant's trial evidence about the assaults that was
    otherwise questionable.

[31]

The complainant testified that the
    appellant molested her when she was sitting on the couch or on the floor, with
    her legs out straight and slightly parted.  When she was sitting on the couch,
    she said that her feet would not be over the side of the couch or touch the
    floor, although her back was not up against the couch.

[32]

The complainant said that when she was
    sitting on the couch or on the floor, the appellant would crouch down, his
    knees bent, his bottom not touching the floor, and his face level with hers. From
    that position, the appellant would touch the complainant's private parts with
    what she thought were the appellant's private parts. The complainant did not
    see the appellant's penis; she did not even look at the appellant, because she
    said that she was watching her sister being molested by the appellant's friend,
    James.

[33]

The complainant confirmed that the
    appellant did not otherwise touch her.  When defence counsel questioned her about
    her prior inconsistent statement to her grandmother about the appellant
    touching the complainant's bottom, the complainant clarified that if she had
    said it to her grandmother, she would have meant that she was being spanked and
    that there was nothing sexual about it.

[34]

As defence counsel submitted to the
    jury in her closing address, the complainant's trial version of the assaults
    was almost physically impossible.

[35]

Without a limiting instruction, there
    was a real risk that the jury assessment would use the complainant's prior
    consistent statements as evidence of the sexual contact, that is to say, for
    their truth.

[36]

In the circumstances of this case, the
    absence of a limiting instruction in the jury charge was an error of law.

Disposition

[37]

Accordingly, the appeal is allowed, the
    appellant's conviction and sentence are set aside, and a new trial is ordered.

Released: February 5, 2016

"L.B. Roberts J.A."

"I agree John Laskin J.A."

"I agree G. Pardu J.A."