C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Café, 2019 ONCA 775

DATE: 20191001

DOCKET: C61422

Lauwers,
    van Rensburg and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Loujack Café

Appellant

Kristin Bailey and Jessica Zita, for
    the appellant

Elise Nakelsky, for the respondent

Heard: April 25, 2019

On appeal from the conviction entered by
    Justice James Ramsay of the Superior Court of Justice, sitting with a jury, on
    August 24, 2015.

Trotter
    J.A.:

A.

introduction

[1]

Loujack Café was convicted of the first degree
    murder of George Washington Burnett, contrary to s. 235(1) of the
Criminal Code
, R.S.C. 1985, c. C-46. He
    appeals his conviction.

[2]

The appellant and Mr. Burnett were neighbours
    and acquaintances. One afternoon, the appellant let himself into Mr. Burnetts
    home and viciously attacked him with knives and a blunt object (possibly a rock
    or brick). The appellant disposed of his shoes and clothes in a dumpster. He
    subsequently sent text messages to friends in which he boasted about the
    killing. He wrote incriminatory rap lyrics and posted photographs of the crime
    scene on his Facebook page.

[3]

The appellants online activity caused the
    police to link him to Mr. Burnetts murder. The appellant eventually provided a
    full confession. He said that he killed Mr. Burnett in order to mock or insult
    God. In his trial testimony the appellant again admitted the killing, but this
    time blamed it on obedience to voices in his head.

[4]

The sole issue at trial was whether the murder
    was planned and deliberate. The appellant submits that the trial judge erred in
    his instructions on the elements of second degree and first degree murder. He
    further argues that the trial judge erred in his instructions on the
    appellants after-the-fact conduct. The following reasons explain why I would
    dismiss the appeal.

B.

factual overview

(1)

Introduction

[5]

To provide a proper framework for the discussion
    of the issues on appeal, it is necessary to provide further detail about some
    of the evidence adduced at trial.

[6]

Mr. Burnett lived in a house in Hamilton,
    Ontario. The appellant lived in a rooming house directly behind Mr. Burnetts
    home. Mr. Burnett was 82 years old. His health was in decline. He converted his
    dining room into a bedroom in order to avoid using the stairs. Mr. Burnett was
    a religious man who often sat on his porch and engaged passers-by in conversation.
    He and the appellant had conversations about religion. On Sunday, September 4,
    2011 Mr. Burnett went to church and then returned home. He was found dead in
    his house two days later.

[7]

Mr. Burnett suffered 46 knife wounds, three
    fractured ribs, as well as three blunt force injuries to his head that were
    consistent with being struck by a brick or a rock. A large knife was found near
    the fold of his neck. A second bloody knife was found on the kitchen counter
    just above the cutlery drawers. This knife was broken. There were bloody
    footprints on the kitchen floor and along the hallway to the front door, from
    which the perpetrator left the house.

[8]

When Mr. Burnetts body was discovered, the
    appellant was among the people watching outside. The police took the
    appellants name for follow-up. However, the appellant proved elusive. He did
    not cooperate with police efforts to follow up with him, even though an
    officer, Detective Easto of the Hamilton Police Service, left a business card
    for him at his residence. In late November of 2011, during an unrelated police
    investigation, another police officer came across one of the appellants
    Facebook pages. He had posted a photo of Det. Eastos business card with the
    caption: The coroners and homicide be asking me questions nowno witnesses no
    fingerprints no evidenceunsolved murder cases.

[9]

The police soon found the appellant. He agreed
    to an interview, which occurred on December 1, 2011. He denied involvement in
    the murder. He was released, but was arrested the following month, at which
    time he confessed. The appellants statements are discussed below.

(2)

The Appellants Conduct After the Offence

(a)

Facebook Posts and Rap Lyrics

[10]

After their initial interview with the appellant,
    the police discovered more incriminatory Facebook posts, including photographs
    and rap lyrics related to devils, demons, the demise of God, and the homicide.
    Among the photographs were images of the deceased, taken before the police had
    arrived on the scene. There was a photo of the soles of the appellants shoes,
    a photo of the appellant posing, with a smile, at the rear of Mr. Burnetts
    home (after the murder), and another of a glove over a figure (presumably Mr.
    Burnett) with the caption meet the Beast, the new God.

[11]

On January 27, 2012, the appellant was arrested.
    He had several papers in his pockets which contained handwritten rap lyrics.
    Some of the lyrics seemed to relate to the murder, including the line: Red,
    red, red rum, whys my hands covered in dead mans blood.

(b)

Text Messages

[12]

In the weeks after the murder of Mr. Burnett,
    the appellant sent text messages to friends in which he claimed responsibility
    for the murder and boasted about it. On September 15, 2011 he sent the
    following texts:

·

So how u feel seeing real life murder after the fact
    face pics nigga?

·

Second murder of the year belongs to me my nigga
    what you on lmao goodnight.

·

Second murder of the year belongs to me my nigga
    and i laugh cause we got 9 months in.

·

Shit was all over the news second m of the year
    9 mnths in lol and guess who got the only pics of the m scene.

·

Yeah search up george washington burnett if u
    need an m1 done holla at me fam  lol a joke i aint do that.

On September 16, 2011, the appellant
    sent the following text message:

·

Whent from a soldier to a killing g rest in
    peace George B he was a straight o g. [i.e., an old school gangster]

On September 26, 2011, the appellant
    sent the following text to another contact:

·

Zod tell me how to solve a murder scene no
    fingerprints no witnesses no evidence just a dead body with several holes in
    it? Ima predator and i pray on singularities. I Can show u how its done
    anytime.

(c)

Asking Others to Lie

[13]

On April 12, 2012 the appellant wrote (but did
    not send) a kite letter (i.e., a contraband letter between inmates) to his
    friend, Mwanza, asking him to lie to the appellants lawyer. In the letter, the
    appellant said that Mwanza was his alibi. He told Mwanza to say that they saw
    two Zoba mountalays (i.e., two stupid white people) run out of the back of
    the old mans crib and then gave their bricks to us then they made a right
    out of sight. Mwanza was also asked to say that the appellant went inside to
    look in on the old man, was in his home for 30 seconds, and then came out to
    report that Mr. Burnett was watching television.

[14]

While in custody, the appellant phoned his
    girlfriend, Isabelle Roy, and asked her to lie in court by saying that the
    beast was the appellants drug dealer. At trial the appellant testified that
    the beast was one of the voices that he heard.

(d)

Letter to the Trial Judge

[15]

In February 2014, over a year before the trial
    started, the appellant sent a letter to the trial judge. The appellant
    explained that, although he told police officers he heard voices, he in fact
    did not hear voices. He attributed his misstep to the Detectives 5 hours of
    mental abuse. At trial, the appellant testified that he heard voices; indeed,
    they commanded him to kill Mr. Burnett.

(3)

The Appellants Statements

[16]

The appellant gave his first statement on
    December 1, 2011. He denied any involvement in Mr. Burnetts killing. However,
    he said that Mr. Burnett was a religious man. The appellant suggested that the
    murder was committed by white supremacists.

[17]

On the day of his arrest, January 27, 2012, the
    appellant provided a second statement. It was a full confession. The appellant
    told the police that he heard voices every day. He started hearing voices after
    a head injury a few years earlier. The voices made fun of him, challenged him,
    and called him small and insufficient. One voice proclaimed itself to be God.

[18]

The appellant told the police: [Y]es, I did
    murder George Washington Burnett. Yeah, thats not a lie. Ill confess it to
    you. He killed Mr. Burnett out of anger towards God  because he [Mr.
    Burnett] said he was a man of God right, he was a church man. When he saw that
    Mr. Burnett had left his back door open, he took advantage of the situation to
    repay God.

[19]

The appellant said that he went to his own room
    and got dressed in certain clothes and he wore gloves from work. The
    appellant said that he took a knife and got two knives from Mr. Burnetts
    kitchen. The appellant then described how and where he stabbed Mr. Burnett;
    this description was largely consistent with the state in which Mr. Burnett was
    found. The appellant said that he took a photo of Mr. Burnett to mock God
    and I told myself I was going  to do it in front of peoples faces.

[20]

The appellant explained that, in addition to
    taking his own knife, he had a secondary weapon  it was like a rock or
    something in a plastic bag. The appellant said that he stabbed Mr. Burnett in
    the neck and he got up. He then swung the bag with a rock in it and hit Mr.
    Burnett in the head. Because his knife broke, the appellant retrieved two
    knives from the kitchen and went back to continue the attack. He said, I
    knocked him back down on the bed  and completed the job.

[21]

As discussed below, the appellant focuses on
    certain aspects of this statement to suggest that, when he was preparing to go
    to Mr. Burnetts home, he did not plan to kill him.

[22]

For example, the appellant told the police: It
    was very quick. I made sure it was quick, cause I, I, I did it very  on the
    point. I didnt really  it was  I didnt go in there to assault him, I went
    in there with the mind to, you know, finish him. And thats the truth. And
    thats all I wanted to get off my chest you know.

[23]

Later in the interview, when the appellant was
    asked what he was thinking when he went into his own apartment, he said: Now I
    wanted to go take advantage of him  I wanted to hurt him. The appellant
    denied robbing Mr. Burnett. The officer queried the appellants intention in
    entering Mr. Burnetts house, asking, [J]ust to hurt him? The appellant confirmed,
    It was just to hurt him. Finally, when asked about how he felt after he had
    killed Mr. Burnett and taken photos of him, the appellant said, I laughed at
    God  I was like, you were talking shit and then I killed him.

[24]

The appellant recalled stepping in blood. He
    took photos of the soles of his shoes. He left through the front door because
    he knew that it would lock from the inside. The appellant told the police that
    he got rid of his gloves, shoes, and some of his clothing, as well as his
    cellphone. He placed them in a dumpster in a random area of town. The
    appellant posted photographs to his Facebook page because the voices were still
    bothering him and he was insulting God.

[25]

Many of the details in this statement had never
    been released to the public. The police had withheld certain aspects of their
    investigation from the media.

[26]

The appellant made further statements (on
    February 7, 2012; February 28, 2012; and January 18, 2013) claiming that he had
    falsely confessed. At trial, he disavowed these protestations of innocence.

(4)

The Appellants Testimony at Trial

[27]

The appellant testified and admitted that he
    killed Mr. Burnett. He knew Mr. Burnett to be a religious man. They had
    religious conversations in the past. He attributed his attack on Mr. Burnett to
    voices in his head. The appellant said that Mr. Burnett had left his door open.
    The appellant snuck inside and saw Mr. Burnett lying on his bed. The voices
    told him, Kill him or die now. During the attack, the voices continued and
    said: Stop fuckin around; kill him or, or die. The voices also instructed
    him to do other things, including: taking photographs of the deceased; closing
    the back door and leaving through the front door; disposing of his clothes and
    shoes in a dumpster; writing the kite letter to Mr. Mwanza; and taking a selfie
    with Det. Eastos business card and posting it online. The voices also told him
    that he was the chosen one, who was above the law, and that the voices were
    protecting him. In short, the appellant admitted to everything contained in his
    confession, except those aspects that pointed to planning and deliberation,
    such as bringing his own gloves, knife, and a rock or brick in a bag.

C.

the instructionS on liability for murder

(1)

Introduction

[28]

The appellant argues that the trial judges
    instructions on the definition of murder in s. 229(a)(ii), as well as planning
    and deliberation in s. 231(2), were flawed. In his factum, the appellant argued
    that the trial judges error in relation to s. 229(a)(ii) required a new trial.
    However, this position changed by the time of the oral hearing of the appeal.
    No longer was it alleged to be fatal. Instead, it was argued that the flawed
    explanation of s. 229(a)(ii) had a serious impact on the appellants liability
    for first degree murder, based on a theory of the case that was not relied upon
    by either party at trial.

(2)

The Theories at Trial and the New Theory on
    Appeal

[29]

At trial, defence counsel relied on the
    appellants testimony and downplayed his January 27, 2012 statement, which evidenced
    planning and deliberation. He submitted that the appellants version at trial
    pointed to a murder that was spontaneous, not planned and deliberate. The
    defence emphasized that the appellant was following voice commands when he
    killed Mr. Burnett; he was not attempting to mock God, as the appellant had
    said in his statement to police.

[30]

In its closing address, the Crown relied on the
    appellants January 27, 2012 statement in which he said that, having noticed
    Mr. Burnetts door was open, he went home to make certain preparations. The
    appellant then returned to Mr. Burnetts home to carry out his plan to take
    advantage of, finish, or hurt Mr. Burnett, in order to mock God. The Crown
    said, The elements of planning and deliberation are, in this case, pre-arming
    himself, suiting up back in his apartment, wearing gloves, and entering the
    house with the pre-existing intention to kill. This is all evidence of a simple
    plan.

[31]

Essentially, the dispute at trial came down to
    the following: if the appellant formed his plan to attack Mr. Burnett in his
    apartment before entering Mr. Burnetts home, he would be guilty of first
    degree murder; if the jury had a doubt about this part of the narrative, and
    concluded that the appellant formed an intention to hurt Mr. Burnett only after
    he entered his home, the appellant would be guilty of second degree murder.

[32]

For the first time on appeal, the appellant
    argues that some of the utterances from the appellants January 27, 2012
    statement (reproduced in paras. 22-23, above) suggest that, when he was in his
    room, the appellant may only have planned to hurt Mr. Burnett, not to kill him.
    Based on this new theory, the appellant contends that the trial judges
    instructions on s. 229(a)(ii) were flawed in a way that led to an erroneous guilty
    verdict on first degree murder. Moreover, the appellant now argues that his
    statement  I didnt go in there to assault him, I went in there with the mind
    to, you know, finish him  was ambiguous. The appellant submits that the jury
    could have understood the words go in there, not to mean entering Mr.
    Burnetts house, but as a reference to the appellants state of mind when he
    went into Mr. Burnetts kitchen to retrieve knives. The appellant submits that
    this brief plan was incapable of amounting to planning and deliberation. I
    would reject both arguments.

(3)

Instructions on Second Degree Murder

[33]

Section 229(a) of the
Criminal Code
defines murder as
    follows:

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. [Emphasis added.]

[34]

The trial judges instructions on the elements
    that must be proved for second degree murder were brief:

Now, Im going to talk about the elements of
    the offence. Mr. Café is charged with first degree murder. For you to find him
    guilty of murder, the Crown must prove beyond a reasonable doubt that: Mr. Café
    caused the death of George Burnett; that he caused Mr. Burnetts death
    unlawfully; and, that Mr. Café had the state of mind required for murder.

The requisite state of mind is either, intent
    to kill, or intent to cause serious bodily harm
that one knows
is likely
    to cause death, not caring whether death ensues or not. In addition, to be
    found guilty of first degree murder, the Crown must prove that the murder was
    planned and deliberate on Mr. Cafés part. [Emphasis added.]

[35]

Consistent with the competing theories of counsel,
    the trial judge addressed liability for second degree murder later in his
    instructions, when he said:

Mr. Café testified that he stabbed Mr. Burnett
    to death.
It is implicit in his evidence that he meant to kill him
and that
    there was no lawful justification for killing him. He said that he killed Mr.
    Burnett because the voices in his head told him to do so. He knew that it was
    against the law but he was answering to higher justice, a human justice.

He has therefore admitted to committing
    second degree murder. You may, then, move straight to the contentious issue.
    Has the Crown proven beyond a reasonable doubt that the murder was planned and
    deliberate
? [Emphasis added.]

The trial judge then instructed the
    jury on planning and deliberation, which is discussed below.

[36]

The appellant submits that, by virtue of the
    underlined portion of the instruction (in para. 34, above)  that one knows
    the jury was not properly instructed on the requirement of subjective foresight
    of death in s. 229(a)(ii) of the
Criminal Code
. The appellant submits that the phrase that one knows is likely to
    cause death could have left the jury with the impression that guilt for second
    degree murder is based on an objective standard, rather than the actual state
    of mind of the appellant. I disagree.

[37]

The trial judges instructions on second degree
    murder were not erroneous. It must be clear to the jury that to convict under s.
    229(a)(ii), the accused must intend to cause serious bodily harm which he or
    she
subjectively knows
is likely to cause death: see
R. v. Nygaard
, [1989] 2 S.C.R. 1074, at
    pp. 1087-88;
R. v. Cooper
, [1993] 1 S.C.R. 146, at pp. 155-56.

[38]

The trial judges phrase  that one knows is
    likely to cause death  adequately conveyed this subjective standard. One can
    find examples of courts referring to the mental element in s. 229(a)(ii) in
    similar language: see, e.g.,
Nygaard
, at p. 1083;
R. v. Boyd
(1999), 118 O.A.C. 85, at para. 16.

[39]

It would have been preferable for the trial
    judge to instruct the jury that the requisite state of mind is either the
    intent to kill, or the intent to cause serious bodily harm that
he [or Mr.
    Café]
 knew was likely to cause death. This is the recommended approach in
    David Watt,
Watts Manual of Criminal Jury
    Instructions
, 2nd ed. (Toronto: Carswell, 2015),
    at p. 657. However, the trial judges use of language in this case was not
    problematic.

[40]

The appellant relies heavily on this courts
    decision in
R. v. McIntyre
, 2012 ONCA 356, 291 O.A.C. 359. McIntyre was found guilty of first
    degree murder on the basis that she was an aider or abettor in a murder
    committed by Jonathan Ebanks. In his instructions on party liability, the trial
    judge instructed the jury as follows:

To prove second degree murder on either or
    both of the aiding or abetting modes of participation, the Crown must prove
    beyond a reasonable doubt that Ms. McIntyre actually knew that Jonathan Ebanks
    intended to kill Karl OReggio
or cause Karl OReggio bodily harm that would
    likely kill Karl OReggio
and not care whether or not Karl OReggio died. [Emphasis
    added
by
Goudge
J.A.]

[41]

The appellant submits that the same error was
    made in this case. It was not. In
McIntyre
, the trial judge failed to provide any link between the likelihood
    of death and Ebankss state of mind. It would have been open to the jury to
    conclude that Ms. McIntyre was guilty based on her knowledge of Ebankss
    intention to cause serious bodily harm, even if Ebanks did not know the harm
    was likely to be fatal: at para. 19. The same error was identified in
R. v. Zoldi
, 2018 ONCA 384, 360 C.C.C.
    (3d) 476, at paras. 26-29, 39-40 (also involving party liability).

[42]

Unlike
McIntyre
and
Zoldi
,
    the jury in this case was not required to consider the relative states of mind
    of a putative principal and an aider or abettor, a scenario that risks
    overlooking the compounded subjective elements in s. 229(a)(ii).

[43]

The circumstances of this case made the
    instruction straightforward. Mr. Burnett was killed by one person, acting
    alone. The identity of the killer was beyond dispute. The trial judges words
    The requisite state of mind is either, intent to kill, or intent to cause
    serious bodily harm that one knows is likely to cause death  could only have
    been interpreted as referring to the appellants state of mind, both in terms
    of the intent to kill or cause serious bodily harm, as well as knowledge that
    the serious bodily harm was likely to cause death. Thus the jury was clearly
    instructed that liability for second degree murder is subjective.

[44]

Second, even if the trial judges instruction
    had been erroneous, s. 229(a)(ii) was not realistically in play. The evidence
    at trial established beyond all doubt that the appellant intended to kill Mr.
    Burnett. All counsel and the trial judge proceeded on the basis that the
    killing was intentional and that, if believed, the appellants January 27, 2012
    statement pointed to a plan to kill; his evidence at trial suggested a killing
    that was spontaneous and inspired by voice commands  but intentional
    nonetheless. In his closing address, defence counsel stated that the intent to
    kill is clearly evident and proven. He repeatedly acknowledged this point. And
    although he complained that the trial judges charge was rapid, defence
    counsel did not object to the trial judges instructions on second degree
    murder. This was undoubtedly due to the fact that the requisite intent for
    second degree murder was satisfied under s. 229(a)(i), and s. 229(a)(ii) was
    not at issue.

(4)

The Instructions on Planning and Deliberation

[45]

I am not persuaded that the trial judge erred in
    his instructions on planning and deliberation. His instructions were properly
    tailored to the live issues at trial, as framed by the positions of the Crown
    and the defence.

[46]

The trial judge explained first degree murder in
    the following passage:

Murder is first degree murder if it is planned
    and deliberate. Planning and deliberation are two distinct things and the Crown
    has to prove both.

A plan is a calculated scheme or design that
    has been carefully thought out and the nature and consequences of which have
    been considered and weighed. It does not need to be complicated. It may be a
    very simple one, and the simpler it is, perhaps the easier it is to formulate.

The important element as far as time is
    concerned, is the time involved in developing a plan. Once youve developed a
    plan you could execute it immediately or you could wait some time before doing
    so. Deliberate means considered, not impulsive, slow in deciding and cautious.
    It implies that the accused must take time to weigh the advantages and
    disadvantages [of] his intended action.

[47]

The trial judge referred to planning and
    deliberation later in his instructions. He said:

Mr. Café is guilty of first degree murder only
    if the murder was planned and deliberate. If you have a reasonable doubt on
    this question, then Mr. Café is only guilty of second degree murder. The
    evidence that relates specifically to planning and deliberation may be
    summarized as follows, although it is for you to say what evidence is
    important.

[48]

The trial judge reviewed the appellants
    evidence in which he spoke of voices commanding him to kill Mr. Burnett. He
    provided the jury with the
W.(D.)
instruction at this juncture:
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742.

[49]

The trial judge then reviewed the appellants
    January 27, 2012 statement, concluding with the following: Mr. Café also said,
    I didnt go in there to assault him, I went in there with the mind, you know,
    to finish him. That is direct evidence of planning and deliberation. To what
    extent you act on it, is up to you.

[50]

Defence counsel objected to this passage,
    arguing that it was taken out of context, omitting other statements that were
    not necessarily consistent with planning and deliberation. The trial judge
    re-instructed the jury and reminded them to consider all of the things said by
    the appellant on January 27, 2012, including: I wanted to go take advantage of
    him; I wanted to hurt him  because he was a man of God, and God is, uh, has
    been causin me trouble.

[51]

Defence counsels request that the
    utterance I went in there to finish him be placed in its proper context was
    appropriate, and the trial judge was right to provide further instructions.
    However, it was not incumbent upon the trial judge to go further and instruct
    the jury that it was precluded from finding the appellant guilty of first
    degree murder on the basis of the finish him utterance alone. It was for the
    jury to draw inferences from the evidence as a whole: see
R. v. McGregor
, 2019 ONCA 307,
145 O.R. (3d) 641,
at
    para. 100. It was not the trial judges role to foreclose lines of reasoning
    the appellant found unfavourable to his position. Moreover, the jury would not
    have thought that it could convict the appellant of first degree murder based
    on a plan to kill formed at the time the appellant fetched knives from the
    kitchen, moments before the attack was completed. As noted in para. 30 above,
    the Crowns theory of first degree murder rested on a plan to kill Mr. Burnett
    that was conceived before the appellant entered his house. This was also the
    understanding of the defence and the trial judge.

[52]

As for the other
    new argument raised on appeal, there is no merit in the appellants submission
    that he may have been convicted of first degree murder based on a plan to
    merely hurt Mr. Burnett. As discussed above, it was common ground at trial that
    the January 27, 2012 statement pointed to an intent to
kill
. Defence
    counsel submitted that the decision to kill was spontaneous because it had just
    been commanded by the voices. Liability for first degree murder predicated on a
    s. 229(a)(ii) killing was not a live issue. It is clear that the appellant was
    found guilty of first degree murder because the jury was satisfied beyond a
    reasonable doubt that the appellant went into Mr. Burnetts house with the
    intention of killing him. Had the trial judge also outlined a route to first
    degree murder based on s. 229(a)(ii), it would have had the effect of
    expanding, not narrowing, the appellants liability exposure for first degree
    murder.

[53]

I would dismiss
    this ground of appeal.

D.

after-the-fact
    Conduct

(1)

Introduction

[54]

As set out above, the Crown relied heavily on
    the appellants conduct after he killed Mr. Burnett, including his text
    messages and internet activity, which contained his rap lyrics. The appellant
    argues that the trial judge erred in two respects in dealing with this body of
    evidence. First, he submits that the judge erred in ruling that some items of
    after-the-fact conduct were relevant to planning and deliberation. Second, he argues
    that the trial judge failed to provide the jury with adequate assistance on how
    to deal with this body of evidence. I would reject both arguments.

(2)

Admissibility

[55]

The admissibility of after-the-fact conduct
    evidence, and the use to be made of it by the trier of fact, depends on the
    nature of the evidence, the issues in the case, and the positions of the
    parties. Sometimes, this type of evidence may be probative of a persons
    participation in a crime, but of no value in determining the that persons
    level of culpability. In other cases, as a matter of common sense and human
    experience, the evidence will be capable of supporting an inference that an
    accused had a particular state of mind:
R. v.
    MacKinnon
(1999),
43 O.R. (3d) 378 (C.A.)
, at pp. 383-84;
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42; and
R.
    v. S.B.1
, 2018 ONCA 807,
143 O.R. (3d) 81,
at paras. 68-71. This court
    recently confirmed that evidence of after-the-fact conduct
may assist a jury in distinguishing between different levels of
    culpability, including second degree and first degree murder:
McGregor
, at para. 102;
R. v. Adan
, 2019 ONCA 709, at para. 69,
    citing
R. v. Calnen
,
    2019 SCC 6, 374 C.C.C. (3d) 259, at para. 119,
per
Martin J. (dissenting, but not on this point);
R. v. Rodgerson
, 2015 SCC 38, [2015] 2
    S.C.R. 760, at para. 20; and
R. v. Jackson
, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20.

[56]

In
MacKinnon
, at para. 15, Doherty J.A. wrote that the after-the-fact conduct
    evidence adduced in that case, in the context of the evidence viewed in its
    entirety, supported the inference that the appellants had done exactly what
    they had planned to do  commit a robbery and shoot Mr. Chow. The same line of
    reasoning was utilized in
R. v. Aravena
, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 129-30, leave to
appeal refused,
[2015]
    S.C.C.A. No. 497
. In
both cases, evidence of
    after-the-fact conduct was left to the jury to consider on the issue of whether
    the murders were planned and deliberate. In this case, the Crown relied on some
    aspects of the appellants after-the-fact conduct for the same purpose.

[57]

Before counsel delivered their closing
    addresses, the trial judge ruled that the following items of evidence were only
    probative of whether the appellant committed the offence: the kite letter; the
    appellants disposal of his clothing and the rock (if there was one); and his
    discussion with Ms. Roy about the beast. However, the trial judge held that
    the photographs that the appellant posted on his Facebook page, as well as his
    texts about the murder, some of which purported to mock God, were relevant to
    planning and deliberation. As the trial judge stated:

As in
Aravena
, they could show that the
    accused did what he intended to do. They could show that he was telling the
    truth when he told the police that his motive was to mock or insult God, as
    opposed to obeying God, which could be relevant on the question of whether he
    chose Mr. Burnett for a particular purpose ahead of time and therefore planned
    and deliberated on his murder. It is only relevant on that basis, and I think
    the jury will also have to be told that carefully, that thats the only way
    they can use it.

[58]

I see no error in the trial judges analysis. It
    was tailored to the manner in which the evidence unfolded at trial,
    particularly how the appellants testimony differed from his January 27, 2012
    statement to the police. The posts and text messages, in which the appellant
    seemed pleased with himself and bragged about the killing, were capable of
    being evidence of motive. It was open to the jury to conclude that the evidence
    was more consistent with the appellants statement (i.e., the killing was to
    insult God) than his trial testimony (i.e., the appellant was obeying voice
    commands). The evidence was consistent with someone who had achieved the goal
    to which he had aspired by singling out Mr. Burnett for the purpose of mocking
    God. As a matter of logic and common sense, the appellants conduct was
    relevant to whether the murder was planned and deliberate:
Aravena
, at paras. 129-30.

[59]

Relying on
Aravena
and
MacKinnon
, the appellant argues that his after-the-fact conduct was not
    sufficiently proximate in time to Mr. Burnetts murder to have any probative
    value. I disagree. Although both cases involved conduct that occurred in the
    immediate aftermath of the offences,
Aravena
and
MacKinnon
do not limit admissibility to these circumstances. This court
    recently acknowledged in
McGregor
, at para. 107, that after-the-fact conduct is often removed
    temporally from the event to which it is said to relate. The probative value
    of the conduct derives from the logical inferences that may be drawn when
    situated in the context of a pre-existing motive and post-conduct pleasure in
    having accomplished the premeditated killing.

[60]

In any event, some of the appellants conduct
    did take place in the immediate aftermath. The appellant took photographs of
    Mr. Burnetts body before he left the scene. He also took photographs of the
    soles of his shoes with which he tracked Mr. Burnetts blood through the house.
    As the appellant said in his confession on January 27, 2012, he did it to mock
    God and do it in front of peoples faces.

(3)

Instructions to the Jury

[61]

The appellant argues that the trial judges
    instructions on the after-the-fact conduct evidence were deficient. They failed
    to explain to the jury the specific and limited use of the various items of
    evidence that fell into this category. Specifically, the appellant submits that
    the trial judge should have given a no probative value instruction in relation
    to first degree murder. More generally, the appellant submits that the trial
    judge failed to focus the jury on the proper and limited use of this evidence,
    nor did he caution the jury to look for alternative explanations for the
    appellants conduct after Mr. Burnett was killed.

[62]

In
McGregor
, this court confirmed that in a jury trial, the trial judge must
    explain the permitted and prohibited uses of after-the-fact evidence. Watt J.A.
    observed, at para. 106, that jury instructions concerning the limited use of
    evidence typically include three elements: (i)
identification
of the evidence to which the instruction applies; (ii) an
    instruction on the
permitted
use of the evidence; and (iii) an instruction on the
prohibited
use of the evidence
    (emphasis in original). With after-the-fact conduct evidence, the jury must be
    told to take into account alternative explanations for the conduct to avoid
    mistaken or premature inferences of guilt:
McGregor
, at para. 108. In this case, the trial judges instructions
    provided the jury with sufficient guidance to properly deal with this evidence.

[63]

In terms of planning and deliberation, the trial
    judge was right not to provide a no probative value instruction for the items
    of evidence he ruled were relevant to this issue. With respect to the other
    items of evidence, that were not relevant to the appellants level of
    culpability, the trial judge properly restricted the use of this evidence in
    the following passage:

There are three items in this category that
    might have helped you on the issue of whether Mr. Café committed the crime, but
    will not help you on the issue of planning and deliberation, and you may not
    use them on the issue of planning and deliberation
.
    There are the kite that he composed for Mwanza, getting rid of his clothes,
    gloves and shoes and rock, if there was one, and telling Isabelle Roy to say
    that Beast was a drug dealer, not the creature from Revelation.

As things turn out, these items will not be
    important to your deliberations except that they could be considered by you,
    not as items of evidence, but only in connection with your assessment of the
    reliability of Mr. Café as a witness.
As evidence, they could, at most,
    suggest that Mr. Café is the author of a killing, not that it was planned and
    deliberate
. [Emphasis added.]

[64]

Although his instructions were brief, the trial
    judge properly instructed the jury to consider alternative explanations for the
    appellants after-the-fact conduct. The trial judge told the jury:

What a person does after a crime is committed
    may help you decide whether it is he who committed it. The conduct may suggest
    that the accused committed the crime, or it may be conduct of an innocent
    person who simply wants avoid involvement in a police investigation, or
    embarrassment for him, or others.

[65]

The trial judge also reminded the jury of the
    appellants explanations for some of his text messages, as they related to his
    internal struggle with the voices. The trial judge said: Sometimes they wanted
    him to incriminate himself. Sometimes he rebelled against that. If you reject
    Mr. Cafés explanation, it would be open to you to find that it was boasting. The
    trial judge underscored the fact that the evidence was subject to different
    interpretations when he said, Again, whether you find it helpful or not, and
    to what extent, is up to you, and, again, this is the only way you can use this
    evidence.

[66]

The last sentence in the previous paragraph was
    a reference to the trial judges earlier caution not to use the after-the-fact
    evidence as bad character evidence. This was accompanied by a caution about the
    rap lyrics posted online by the appellant. The trial judge told the jury:

I stress the following instruction of law.
    Many of the posts are offensive. Those of you whose children are too young, or
    too old for you to be familiar with rap lyrics, may even be shocked.
You
    must put any such feelings aside when you consider this evidence. Again, you
    must not use any of feelings or conclusions about Mr. Cafés character in view
    of these posts as evidence. You must not reason that someone who would make
    these posts is the sort of person who would commit the offence charged. That
    sort of reasoning is absolutely prohibited.
It is not evidence. You must
    decide the case on the evidence. [Emphasis added.]

[67]

In conclusion, the trial judge identified the
    after-the-fact evidence to which the instruction applied, instructed the jury
    on the permitted and prohibited uses of various items of this
evidence, suggested that the jury consider
    alternative explanations, and cautioned against bad character or propensity
    reasoning.
Taking a functional approach to the review
    of the trial judges instructions, I am satisfied that they were adequate:
Adan
, at paras. 60-61;
R. v. Jacquard
, [1997] 1 S.C.R. 314, at
    para. 62. My conclusion is bolstered by the fact that trial counsels
    post-charge objections focused more on the admissibility of the evidence than
    the trial judges instructions. While a failure to make a specific objection is
    not decisive, in this case, it is a factor I would consider in concluding that
    the jury was properly instructed on the use of this body of evidence:
Adan
, at para. 63.

[68]

I would dismiss this ground of appeal.

E.

ineffective assistance of counsel?

[69]

Before concluding these reasons, it is necessary
    to address a theme that was evident throughout the trial: the appellants
    mental state. In his January 27, 2012 statement, the appellant referred to
    hearing voices, just as he did during his evidence at trial. The appellant
    testified that he had suffered a head injury and heard voices ever since.
    However, no medical evidence was adduced at trial.

[70]

After the jury had returned its verdict, the
    trial judge thanked the jurors for their service. The trial judge then asked
    counsel: Is there any reason why I should not discharge the jury at this
    point? When both counsel said no, the jury was discharged.

[71]

As the trial judge was about to turn to the
    issue of sentence, defence counsel requested a hearing to determine whether, at
    the time he killed Mr. Burnett, the appellant was not criminally responsible on
    account of mental disorder (NCRMD), under s. 16 of the
Criminal Code
. The trial judge advised
    defence counsel that, given that the appellant was tried by judge and jury,
    only the jury could make the determination under s. 16. Defence counsel was of
    the view that the trial judge could decide the issue. The trial judge disagreed
    and imposed the mandatory life sentence for first degree murder: ss. 235(1) and
    745(a).

[72]

The trial judge was correct. When the jury was
    discharged, jurisdiction to determine whether the appellant was NCRMD did not
    pass from the jury to the trial judge. In these circumstances, a trial judge has
    no jurisdiction to interfere with the jurys verdict and the case must proceed
    to sentence: see
R. v. Head
, [1986] 2 S.C.R. 684,
per
Lamer J. (concurring in the result), at p. 698. Any remedy that an
    accused person may have is on appeal: Joan Barrett and Riun Shandler,
Mental Disorder in Canadian Criminal Law
(Toronto: Thomson Reuters Canada Ltd., 2006, 2017) (loose-leaf
    updated 2018, release 4), at pp. 4-44.3 to 4-44.7.

[73]

The issue of NCRMD was raised in the Notice of
    Appeal as an alleged error of the trial judge, but it was not addressed in the
    appellants factum. At the outset of the oral hearing, concerned about the
    possibility of a miscarriage of justice, members of the panel inquired into what
    happened at the end of the trial: see
R. v.
    Pietrangelo
, 2008 ONCA 449, 233 C.C.C. (3d) 338,
    at para. 78. Counsel for the appellant was asked about the effectiveness of the
    assistance provided to the appellant by defence counsel at trial. Experienced
    counsel for the appellant advised that an ineffective assistance of counsel
    claim would not be made, largely because, even if the missed opportunity to
    pursue the s. 16 issue at trial was due to a lack of competence, it was highly
    unlikely that evidence would have been available to substantiate the NCRMD
    claim. In other words, if there was a misstep in professional judgment, it was
    inconsequential. Satisfied with this explanation, the panel did not pursue the
    issue further.

F.

conclusion

[74]

I would dismiss the appeal.

Released: GTT OCT 01 2019

Gary Trotter J.A.

I agree. P. Lauwers
    J.A.

I agree. K. van Rensburg
    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.

(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. Cooper, 2019 ONCA 829

DATE: 20191018

DOCKET: C66042

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashdon Cooper

Appellant

Paul J.I. Alexander, for the appellant

Erica Whitford, for the respondent

Heard and released orally:
    October 7, 2019

On appeal from the conviction entered on
    May 7, 2018, and the sentence imposed on August 14, 2018, by Justice John
    McInnes of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario
    Court of Justice, the appellant was convicted of sexual interference, invitation
    to sexual touching, and breach of recognizance arising out of an approximately
    two-week-long relationship with a 14-year-old first year high school student.
    The appellant was 23 years of age.

The Background Facts

[2]

The complainant gave evidence about the history
    of her relationship with the appellant. She described its beginnings, its swift
    progression to sexual intercourse, and repeated occurrences of sexual
    intercourse and related sexual activity, much of it in the appellants motor
    vehicle, over the following ten days to two weeks. Her account was vigorously
    challenged in cross-examination.

[3]

The defence position at trial was that the
    events described by the complainant never took place. The complainant had never
    been in the appellants motor vehicle. No sexual relationship of any kind had
    occurred. The appellant did not testify.

The Grounds of Appeal

[4]

The appellant advances two grounds of appeal
    against his conviction. He says that the trial judge erred:

i.

in failing to address inconsistencies and conflicts
    in the evidence; and

ii.

by drawing an inference of guilt from circumstantial evidence
    without considering whether the underlying facts from which that inference was
    drawn were properly established.

Discussion

[5]

In our view, the trial judges reasons, taken as
    a whole, grappled appropriately with the inconsistencies in the complainants
    evidence, and as between her evidence and the testimony of R.D. and W.R., the
    appellants then girlfriend.

[6]

The record at trial furnishes ample confirmation
    of the core of the complainants testimony. In particular, the significant
    number of communications passing between the parties during the period of the
    relationship; the complainants accurate description of the appellants
    apartment; her similarly accurate description of the appellants vehicle, in
    which she alleged several of the acts took place; and the confirmation afforded
    by the testimony of R.D.

[7]

The appeal from conviction is dismissed.

[8]

Leave to appeal sentence is granted, and the
    sentence varied to the extent that the victim surcharge imposed at trial is set
    aside.

David Watt J.A.

P. Lauwers J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gauthier-Carrière, 2019 ONCA
    790

DATE: 20191004

DOCKET: C64427

Feldman, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marco Gauthier-Carrière

Appellant

Marco Gauthier-Carrière, in person

Delmar Doucette, appearing as duty
    counsel

Jessica Smith Joy, for the respondent

Heard: April 11, 2019

On appeal from the sentence imposed on
    July 13, 2017 by Justice Hugh R. McLean of the Superior Court of Justice.

Feldman J.A.:

[1]

The appellant was convicted by a jury on April 5,
    2017 of impaired driving causing death contrary to what was then s. 255(3) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, and criminal negligence
    causing death contrary to s. 220 of the
Criminal Code
. He was 21 years
    old at the time the offences occurred. He had consumed alcohol and marijuana
    before getting behind the wheel with his girlfriend as the front seat
    passenger.

[2]

The appellant was driving on Montreal Road in
    Ottawa when his car crossed the median and the two opposing lanes of traffic.
    The car then travelled onto the adjoining grass area where it hit a concrete
    light standard. The light standard fell onto the car, killing the appellants
    girlfriend. The appellant was also seriously injured.

[3]

The appellant was released on an undertaking
    after arrest. One of the conditions of his release prohibited him from driving.
    He was subject to this condition for 3 years and 3 months. During this period, on
    March 27, 2016, the appellant drove. As a result, he was charged with breach of
    undertaking. He pled guilty to the breach after he was sentenced on the two
    driving offences on July 13, 2017, and received a 21-day sentence concurrent to
    the sentences imposed for impaired driving causing death and criminal
    negligence causing death.

[4]

With respect to those offences, the appellant
    was sentenced to 5 years in prison concurrent on each count as well as a
    10-year driving prohibition. This sentence appeal relates only to the driving
    prohibition.

[5]

In his reasons for sentence, the sentencing
    judge concluded as follows:

Therefore, when I
    consider the evidence that is before me with regard to sentence and the
    incident itself, the Court is of the view that a sentence of five years in the
    penitentiary will meet the ends of justice. There will also be an order
    prohibiting you from driving for a period of 10 years. Thank you. There will be
    no DNA. And the sentence will be five years on count 1 concurrent to a five
    year sentence on count 2.

[6]

Because the sentencing judge did not state in
    the reasons when the driving prohibition would take effect, and the order that
    he signed on that day provided that the driving prohibition was [f]or a period
    of 10 years, commencing on todays date, the appellant submits, and the Crown
    agrees, that the sentencing judge committed the error identified by the Supreme
    Court of Canada in
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
    by ordering that the driving prohibition commence on the date of sentencing
    rather than at the end of the period of imprisonment.

[7]

In
Lacasse
, the court pointed to the
    wording of what was then s. 259(2)(a.1) of the
Criminal Code
, which
    had been amended to specifically add the words plus any period to which the
    offender is sentenced to imprisonment to the period of the driving prohibition
    in cases where the offender is liable to imprisonment for life but receives a
    sentence other than life. By adding these words, the court in
Lacasse
concluded that Parliament was making it clear that it intended driving
    prohibitions to commence at the end of the period of imprisonment, not on the
    date of sentencing: at para. 109. Therefore, an order that the driving
    prohibition commence on the day the sentence commences rather than on the date
    of release is an error in law.

[8]

Because the Crown agreed with duty counsel on
    this inmate appeal that the sentencing judge made the
Lacasse
error,
    the court was not asked to rule on the meaning or effect of the wording of the
    prohibition order.

[9]

In
Lacasse
, at para. 110, the court
    described the remedy for the error as a simple mathematical operation: the term
    of imprisonment imposed is subtracted from the period of the driving
    prohibition, which then commences at the time of the offenders release.

[10]

In addition, the Supreme Court in
Lacasse

addressed
    the issue of whether credit should also be given for time spent subject to a
    presentence driving prohibition that was imposed as a condition of release. On
    that point, the Supreme Court stated, at para. 113:

In short, where a
    driving prohibition is not only one of the release conditions imposed on an
    accused but also part of the sentence imposed upon his or her conviction, the
    length of the presentence driving prohibition must be subtracted from the
    prohibition imposed in the context of the sentence.

[11]

On this appeal, duty counsel and the Crown agree that in order to
    calculate the accurate effective period for the driving prohibition in
    accordance with
Lacasse
, the period of incarceration of 5 years must
    be subtracted from the 10-year driving prohibition. Subject to the issue
    discussed below, this would leave a driving prohibition of 5 years, commencing
    upon the appellants release from custody.

[12]

The one outstanding issue on which they do not agree is whether
Lacasse
also requires the deduction of the entire period of the presentence driving
    prohibition, or whether the court has the discretion to modify the size of the
    deduction, because, in this case, the appellant breached that condition.

[13]

The appellant was subject to a driving prohibition while on presentence
    release for 3 years and 3 months. Duty counsel submits that the appellant is
    entitled to credit for this full amount, with the result that the 5-year
    driving prohibition running from the time of the appellants release would be
    reduced to 1 year and 9 months.

[14]

The Crown submits that the appellants breach of his release
    conditions disentitles him to any credit because the release condition
    prohibiting him from driving failed to have its intended effect. As a secondary
    position, the Crown submits that at least the period of the presentence driving
    prohibition following the breach should not form part of the credit.

[15]

While the Supreme Court in
Lacasse
did not discuss the
    issue whether a sentencing judge has a residual discretion with respect to the
    amount of credit to be given for a presentence driving prohibition that was
    breached, its analysis of the fresh evidence of other breaches by M. Lacasse
    and their potential effect on his sentence is instructive.

[16]

M. Lacasse pled guilty to two breaches of his recognizance
    subsequent to his sentencing for the impaired driving causing death offences. Although
    M. Lacasses breaches were not driving breaches, the Supreme Court noted that
    they are evidence of a lack of respect on the respondents part for court
    orders and for the law, which relates directly to the conditions for his
    rehabilitation: at para. 118. The Crown sought to introduce evidence of these
    breaches as fresh evidence on the sentence appeal but the Court of Appeal
    refused.

[17]

The Supreme Court found that to be an error by the Court of Appeal
    because the evidence of the two breaches of the recognizances could have
    affected the weight given to the favourable presentence report and could
    therefore have affected the final sentencing decision. In particular, the Court
    of Appeal might have reached a different conclusion if it had admitted that
    evidence, which would have helped it in assessing the fitness of the sentence
    that had been imposed at trial: at para. 120.

[18]

In my view, applying similar reasoning, the fact that the appellant
    breached the driving prohibition that was a condition of his presentence
    release also demonstrated a lack of respect for court orders and the law. As
    this was an inmate appeal, this court was not given full information about the
    circumstances of the breach. Duty counsel stated that the appellant was driving
    someone to the hospital at the time, but it was not part of the record before
    the court. The appellant pled guilty and was sentenced to 21 days concurrent
    for the breach. That sentence would have taken into account the circumstances
    of the breach.

[19]

The Crown submitted that this court not follow the British Columbia
    Court of Appeal decision in
R. v. Burke
, 2017 BCCA 381, 21 M.V.R. (7th)
    43. There the court rejected a similar Crown submission on the basis that,
    whether or not the court retains any residual discretion after
Lacasse
to modify the extent of the deduction for time spent subject to a presentence
    driving prohibition, there was no basis to deny the credit where the appellant
    had been sentenced separately for a breach of a driving condition.

[20]

I would accept the submission of the Crown because it does not
    appear that the British Columbia Court of Appeal considered the portion of the
Lacasse
decision that discussed the fresh evidence and the effect that breaches of
    recognizance could have on a courts sentencing decision. In
Lacasse
,
    there had also been a guilty plea to the breaches, and M. Lacasse was sentenced
    to an additional 15 days imprisonment. But that did not prevent the Supreme Court
    from saying that the Court of Appeal should have taken the breaches into
    account when assessing the fitness of the sentence imposed at trial.

[21]

In conclusion, the Crowns position was that this court should
    exercise its discretion by according no credit for the period of the driving
    prohibition following the breach, approximately 1 year, 3 months. Duty counsel
    responded that if there were to be any reduction in the credit, it be a maximum
    of 3 months, bringing the total driving prohibition to 2 years following the
    appellants release.

[22]

I would accept the submission of the Crown
.
    In the context of serious driving offences that resulted in the death of a
    passenger in the car, the appellants failure to strictly abide by the driving
    prohibition that was a condition of his release indicates that the appellant
    did not accept the seriousness and reason for the driving prohibition, and his
    obligation to obey the law.
I would therefore grant leave to appeal the sentence
    and order that the period of the driving prohibition be 3 years following the
    appellants release from custody. On consent, I would also set aside the
    imposition of the victim surcharge.

Released: K.F. October 4, 2019

K. Feldman
    J.A.

I agree. M.L.
    Benotto J.A.

I agree. David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Herdman, 2019 ONCA 863

DATE: 20191031

DOCKET: C65704

Fairburn, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor Jesse Herdman

Appellant

Andrew Furgiuele, for the appellant

Brian G. Puddington, for the respondent

Heard and released orally:
    October 29, 2019

On appeal from the conviction entered by
    Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury, on
    April 3, 2018.

REASONS FOR DECISION

[1]

The appellant was convicted of dangerous
    driving, possession of a stolen vehicle and licence plates, possession of
    cocaine for the purposes of trafficking and two counts of failing to comply
    with a probation order. He represented himself at trial.

[2]

The appellant claims that the trial judge failed
    to provide him with adequate assistance resulting in a miscarriage of justice. He
    focuses his objection upon the trial judges instruction to the jury, following
    closing addresses, to disregard a double hearsay statement that the appellant relied
    upon in his closing.

[3]

The appellants mother was said to have been
    acting on the appellants behalf on the appellants Facebook account when the
    statement was made. That statement was said to have been made by a Matthew
    Parks, who apparently suggested that he had loaned the stolen vehicle to the
    appellant. The appellants mother sent a printed copy of the purported
    communication to the appellant at the detention facility where he was being
    held. It was intercepted and a copy was provided to the police.

[4]

When the appellant put the purported contents of
    the communication to a police officer in cross-examination, that officer did
    not confirm the contents of the communication, suggesting instead that, at its
    highest, it was some type of a conversation. The officer also said that the
    police were unable to verify that Matthew Parks exists.

[5]

The appellant says that the trial judge erred
    by:

1)

failing to inform the appellant about the need
    for a
voir dire

to make the purported communication admissible
    for the truth of its contents; and

2)

failing to assist the appellant with his
    cross-examination.

[6]

We disagree.

[7]

The suggestion about what Matthew Parks said
    was put in cross-examination after the appellant had already been reminded,
    more than once, about the presumptive inadmissibility of hearsay evidence. At
    best, this was a double hearsay statement. Not only was it of uncertain origin,
    but it was of uncertain content, the officer failing to confirm what was
    actually contained in the communication.

[8]

Moreover, context is important. The questioning
    came out during the appellants efforts to demonstrate animus between the
    appellant and the officer being questioned, the focus being on concerns he had
    over the seizure of his mail. Accordingly, at the time that the purported
    statement came out, it was not at all clear that the appellant would want to
    use the purported statement for the truth of its contents. When the appellant
    had the officers answer, that it was some type of a conversation, he simply
    moved on, trying to reinforce the animus point.

[9]

In these circumstances, there was nothing to
    have alerted the trial judge to the fact that the appellant would attempt to
    use the purported statement during his closing for the truth of its contents. Accordingly,
    the trial judge did not fail in his duty to assist the appellant and correctly
    instructed the jury to disregard the statement for the truth of its contents.

[10]

We are satisfied that the trial judge provided
    reasonable assistance to the appellant. Against the context of the record as a
    whole, we are satisfied that the trial judge met his duty to ensure the trial
    was effective, efficient, and fair to both sides:
R. v. Forrester
,
2019
    ONCA 255, 375 C.C.C. (3d) 279, at para 16. Nothing more was required here.

[11]

The appeal is dismissed.

Fairburn J.A.

Harvison Young J.A.

Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jiang, 2019 ONCA 782

DATE: 20191002

DOCKET: C65331

Strathy C.J.O., Doherty and
    Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lin Michael Jiang

Applicant/Appellant

Mindy Caterina, for the appellant

Lisa Csele, for the respondent

Heard: September 30, 2019

On appeal from the conviction entered on
    April 6, 2018 and the sentence imposed on April 6, 2018 by Justice Joseph F.
    Kenkel of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown consents to the admission of the fresh
    evidence and concedes that a new trial should be ordered. We agree.

[2]

The appeal is allowed, the conviction is
    quashed, and a new trial is ordered.


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.

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.

(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. J.R.S., 2019 ONCA 852

DATE: 20191025

DOCKET: C66977

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

J.R.S.

Respondent

Jeremy D. Tatum, for the appellant

Ian R. Smith, for the respondent

Heard: October 21, 2019

On appeal
    from the sentence imposed on April 30, 2019 by Justice G. Mark Hornblower of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

In fairness to the trial/sentencing judge, the
    issue of serious bodily harm was not litigated in front of him. That said,
    based on his own findings, including

that it is an understatement to
    say that the [sexual] assault has been life altering and the impact is
    profound, his conclusion that the offence was not one where serious bodily
    harm was caused is a clear error. See, for example,
R. v. McCraw
,
    [1991] 3 S.C.R. 72. In the circumstances, a deferred custody order was not
    available under s. 42(5) of the
Youth
Criminal Justice Act
,

S.C. 2002, c. 1,
and
    the sentence imposed was illegal.

[2]

We acknowledge the
    respondent has made some progress. Nonetheless the illegal sentence has not
    expired.
Given the seriousness of this offence that
    involved force and both anal and vaginal penetration, this is not a case for a
    stay of the proper sentence. In the circumstances the appeal is allowed, the
    deferred custody order and probation order imposed are set aside. The Crown
    concedes one for one credit is appropriate. Accordingly while we agree a 12 month
    custody and supervision order would have been fit, giving appropriate credit,
    we impose a six month nine day custody and supervision order, two months of
    which shall be community supervision, together with a one year probation order
    on the same terms as in the prior probation order. The mandatory two year weapons
    prohibition is also imposed. All other terms of the prior sentence to remain
    the same.

[3]

The respondent shall surrender as soon as
    practicable to the King Street Detention Centre at 583 King Street West, London
    to serve the supervised custody portion of his sentence.

[4]

If the respondent has not surrendered by 11:59
    p.m. on Tuesday, October 22, 2019, a warrant shall issue for his arrest.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2019 ONCA 815

DATE: 20191009

DOCKET: C66631

Rouleau, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Jeffrey Johnson

Appellant

Robert Johnson, acting in person

Jessica Smith Joy, for the respondent

Richard Litkowski, duty counsel

Heard: October 2, 2019

On appeal from the sentence imposed by
    Justice on Joseph A. De Filippis of the Ontario Court of Justice on January 31,
    2019.

APPEAL BOOK ENDORSEMENT

[1]

The appellant entered pleas of guilty to a
    number of offences involving theft, threatening, fail to stop, break and enter,
    and others.

[2]

The Crown submitted an appropriate sentence was
    two years in addition to pre-sentence custody credited at five months. The
    defence submitted that 18-24 months less pre-sentence custody was appropriate.
    The sentencing judge said he accepted the defence range, deduced pre-sentence
    custody and arrived at a sentence of 21 months. Duty counsel submits this was a
    mathematical error.

[3]

The appellant also submits that the sentencing
    judge did not take into account his Indigenous background.

[4]

The trial judge makes no express reference to
    the appellants Indigenous background in his very brief reasons for sentence.
    It is impossible for us to determine whether he took this factor into account.
    Combined with what we consider to be a misapprehension of the range proposed by
    defence counsel, this failure must result in a reduction of the appellants
    sentence. In all of the circumstances, and after taking into account five
    months credit for pre-sentence custody, the appellants total sentence should
    be 17 months. This is achieved by reducing the sentences for theft and threats
    to Mr. Rinaldi on Information #N18-4749. On the plea to theft and threatening
    offences, the sentences are reduced by four months on each count. For greater
    clarity, the sentences on both counts are reduced from nine months to five
    months, one concurrent one to the other. The remainder of the sentence remains
    the same.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kupec, 2019 ONCA 851

DATE: 20191025

DOCKET: C62767

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Kupec

Appellant

Brian Weingarten, for the appellant

Kelly Simpson, for the respondent

Heard: October 21, 2019

On appeal from the sentence imposed on June
    27, 2016 by Justice John Desotti of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

Even assuming the trial judge made the error
    alleged by referring to the impugned aggravating factor in our view it had no
    impact on the global sentence imposed.

[2]

Given the appellants lengthy record, the
    circumstances of the offences and their catastrophic impact
the ten-year two-month sentence
was entirely fit. It
    was not an error to impose consecutive sentences for arson causing bodily harm
    and arson causing property damage as they involve different elements.

[3]

Leave to appeal sentence is granted and any
    victim fine surcharge is set aside. Appeal is otherwise dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawrence, 2019 ONCA 794

DATE: 20191001

DOCKET: C66815

Rouleau, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Lawrence

Appellant

Brian Snell, duty counsel

Andre Lawrence, in person

Michael Fawcett, for the respondent

Heard: September 30, 2019

On appeal from the sentence imposed on February
    28, 2019 by Justice Paul Monahan of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that the sentence is too
    harsh. Duty counsel on his behalf argues that the sentencing judge effectively
    double counted by treating offence elements as aggravating factors resulting in
    an excessive sentence. He also argues that insufficient weight was placed on the
    plea of guilty.

[2]

The sentencing judge set a global sentence for
    all the offences. In our view, the sentence of 46 months less pre-sentence
    custody credited at 660 days was fit in the circumstances. The appellant pled
    guilty to three robberies. The victims were vulnerable businesses. In one case,
    he showed a knife and in another, threatened bodily harm. His face was masked
    in all three. The appellant has a long criminal record albeit not involving
    prior robberies.

[3]

In these circumstances, we agree that the
    sentencing judge was correct in emphasizing general deterrence and denunciation
    and he arrived at a fit sentence. As a result, leave to appeal sentence is
    granted but the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGaw, 2019 ONCA 808

DATE: 20191009

DOCKET: C64435

Strathy C.J.O., Doherty and
    Tulloch JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Jennifer Gladys McGaw

Appellant

Robert Sheppard, for the appellant

Karen Papadopoulos, for the respondent

Heard: October 1, 2019

On
    appeal from convictions entered at London, Ontario by Justice A.T. McKay of the
    Ontario Court of Justice on May 2, 2017, and from the sentence imposed on June
    30, 2017.

REASONS FOR DECISION

[1]

The appellant and Michael McCaughey had a
    romantic relationship. Mr. McCaughey ended that relationship in 2012. He
    continued to have some contact with the appellant and her two children. Mr.
    McCaughey met, and eventually married, another woman.

[2]

The appellant would not accept Mr. McCaugheys
    decision to terminate their relationship. In the words of the trial judge, she
    reacted by:

[c]onducting an intense, prolonged,
    multi-faceted and vicious campaign against her former domestic partner and his
    new partner.

[3]

The appellant was charged with several offences
    arising out of the ongoing harassment of Mr. McCaughey and his wife. The
    charges included counselling murder. The Crown alleged that the appellant had
    separately incited her brother, Billy, and her ex-husband, Rick, to murder Mr.
    McCaughey. The other charges against the appellant involved allegations of the
    breaching of court orders and the ongoing criminal harassment of Mr. McCaughey
    and his wife.

[4]

The appellant pled guilty to some of the
    charges. The trial on the other counts, including the counselling murder charge,
    proceeded before a judge alone. Both Billy and Rick testified that the
    appellant had asked them to murder Mr. McCaughey. According to both men, the
    appellant told them that Mr. McCaughey had sexually assaulted her young
    daughter who was also Ricks daughter. The Crown argued that the allegation was
    false and that the appellant had used it to incite both men to kill Mr.
    McCaughey.

[5]

The appellant did not testify.

[6]

The trial judge convicted on all counts, save
    one count of criminal harassment. He imposed a sentence of 7 years plus 1 month
    on the counselling murder charge, having given the appellant credit of 35
    months for pretrial custody. The effective sentence on the counselling murder
    charge was 10 years. The sentences on the other counts were made concurrent.

[7]

The appellant appeals conviction and, if leave
    is granted, appeals from the sentence imposed.

[8]

The appeals are dismissed for the following
    reasons.

The Conviction Appeal

(i)

The trial judges assessment of the evidence on the counselling murder
    charge

[9]

There was a great deal of evidence against the appellant on the
    counselling murder charge. Much of it came from her brother Billy and her
    ex-husband, Rick, the two men the Crown alleged the appellant had asked to kill
    Mr. McCaughey. The credibility of both men was vigorously challenged at trial.

[10]

The
    trial judges reasons demonstrate that he was alive to the credibility concerns
    in respect of both witnesses. He correctly characterized them as
Vetrovec

    witnesses and highlighted the problems associated with their credibility and
    reliability. The trial judge appreciated that one
Vetrovec
 witness
    could confirm the evidence of another. He also found substantial other
    confirmatory evidence. For example, the trial judge concluded that the
    overwhelming evidence of the appellants unbridled longstanding animus toward
    Mr. McCaughey and his new wife and her many efforts to physically harm them and
    ruin their lives provided confirmation of Billys evidence that the appellant
    asked him to murder Mr. McCaughey. We agree that the evidence of the
    appellants strong and unrelenting animus toward Mr. McCaughey was capable of making
    the evidence of Billy more credible.

[11]

Ultimately,
    the trial judge accepted the evidence of Billy to the effect that the appellant
    sought over several months to get Billy, whom she knew to be a very violent
    man, to kill Mr. McCaughey. The efforts culminated in December 2014 when, on
    Billys evidence, he went to the McCaughey home intending to kill him.
    Fortunately for Mr. McCaughey, Billy changed his mind.

[12]

The
    trial judge also indicated that while the evidence of Rick, the ex-husband,
    could not, on its own, support a conviction on the counselling charge, its
    striking similarity with the evidence of Billy made Ricks evidence
    confirmatory of the evidence given by Billy. In other words, on the trial
    judges findings, Ricks evidence, while not sufficiently credible to carry the
    full burden of the Crowns case, was sufficiently credible to render the
    strikingly similar evidence given by Billy more credible. This analysis reveals
    no legal error and was reasonably open on the evidence.

[13]

Not
    surprisingly, given the nature of the witnesses and the length of this trial,
    there were many inconsistencies in the evidence of some witnesses. Different witnesses
    also had different versions of the relevant events. Many of the differences
    were in respect of factual issues that were not central to the charge of
    counselling murder.

[14]

The
    trial judges detailed review of the evidence, and his somewhat briefer analysis,
    shows that he was aware of the inconsistencies and contradictions. He addressed
    the main ones. For example, he acknowledged that Billys evidence in respect of
    several events was quite different than the evidence of his girlfriend.
    Ultimately, the trial judge found that the girlfriends evidence was not
    credible. He gave reasons for that finding.

[15]

The
    trial judge was not obliged to go through each and every inconsistency and
    contradiction and offer an explanation for its impact on his analysis of the
    evidence. The reasons provide ample explanation for the credibility assessments
    and factual findings made by the trial judge.

(ii)

Did the trial judge err in allowing the Crown to amend the counselling
    murder charge to conform with the evidence?

[16]

The
    count in the information charging counselling murder initially alleged that the
    offence occurred between April and July 2015. After evidence was called
    indicating that the appellant counselled Billy to commit murder in December
    2014, the Crown moved to amend the information to conform with the evidence.

[17]

The
    trial judge allowed the amendment and gave careful reasons for his ruling. We
    agree with those reasons.

[18]

Section
    600 of the
Criminal Code
sets out broad powers of amendment. If the
    amendment is supported by the evidence, the amendment must be allowed, unless
    the accused can demonstrate irreparable prejudice: see
R. v. Bidawi
,
    2018 ONCA 698, at paras. 30-33, leave to appeal refused 2019 SCCA No. 145.

[19]

The
    amendment caused no possible prejudice to the appellant. She had full
    disclosure of all of the relevant evidence long before trial. The appellant
    also had ample notice from the Crown of the proposed amendment and a full
    opportunity to mitigate any potential prejudice by, for example, seeking a
    brief adjournment or postponing cross-examination of Billy. No mitigating steps
    were requested, no doubt because there was no prejudice. Finally, the amendment
    in no way expanded the scope of the evidence. All of the evidence relevant as a
    result of the amendment of the counselling murder charge was already properly
    before the court in respect of another count in the information.

(iii)

The admissibility of statements attributed to the appellants daughter,
    Hailey, to the effect that she had been sexually assaulted by Mr. McCaughey

[20]

Billy
    and Rick testified that the appellant told them that Mr. McCaughey had sexually
    assaulted Hailey. It was the Crowns position that she did so in an effort to
    get Billy or Rick to kill Mr. McCaughey. Both men and one other witness also testified
    that Hailey also told them that she had been sexually assaulted. They further testified
    that she later said she had not been assaulted.

[21]

Hailey
    did not testify.

[22]

The
    appellant submits that the evidence of Haileys statements constitutes
    inadmissible hearsay.

[23]

We
    accept the Crowns position that the evidence was not offered for its truth,
    but rather as evidence of the state of mind of Billy and Rick and, in
    particular, their animus towards Mr. McCaughey which, in part, led them to agree
    to kill Mr. McCaughey.

[24]

The
    Crown contended that the animus arose, in part, out of what they were told by
    Hailey about the sexual assaults. The truth of Haileys statements was
    irrelevant to their admissibility as evidence of the state of mind of Billy and
    Rick and, in particular, their animus towards Mr. McCaughey.

(iv)

Was the trial judges analysis clouded by findings of the appellants
    bad character?

[25]

Clearly,
    on the trial judges findings, the appellant engaged in a barrage of
    vindictive, cruel and criminal activity, all directed at Mr. McCaughey and his
    new wife. The findings made against the appellant flow from the evidence which
    obviously painted the appellant in a very bad light.

[26]

There
    is, however, nothing in the reasons to support the contention that the trial
    judge improperly inferred guilt from the appellants bad character. Indeed, the
    trial judge cautioned himself against misusing the evidence in that fashion.

[27]

The
    trial judge reviewed the entirety of the evidence and made factual findings
    grounded in the evidence. His verdicts reflect those factual findings. The
    nature of those findings and the convictions they warranted inevitably shows
    the appellant as a person of very bad character. That consequence does not,
    however, cloud the trial judges findings of fact, or the legal correctness
    of his analysis.

(v)

Was the conviction on count 7 unreasonable?

[28]

Count
    7 charged the appellant with harassing Mr. McCaughey by besetting or watching
    him at his home on July 30, 2015. The evidence revealed that the appellant
    drove slowly past Mr. McCaugheys home at about 10:00 p.m. on July 30
th
.
    She had been previously charged with harassing conduct toward Mr. McCaughey and
    had been designated by the police as a high risk domestic offender. The
    police were following the appellant when she drove slowly past Mr. McCaugheys
    home.

[29]

As
    of July 30
th
, the appellant was on bail for various offences
    relating to her harassment of Mr. McCaughey. She was with a young person named
    Darren Weston. According to his evidence, the appellant had spoken to him many
    times about different ways they could terrorize Mr. McCaughey in his own home. At
    the appellants request, Mr. Weston had slashed Ms. McCaugheys tires. As of
    July 30
th
, Mr. McCaughey had also learned from the police that the
    appellant had tried to have him murdered.

[30]

Mr.
    McCaughey did not know that the appellant was driving slowly past his home at
    10:00 p.m. When the police told him about it the next day, Mr. McCaughey
    expressed serious concern for his and his wifes safety.

[31]

In
    oral argument, counsel for the appellant did not suggest that there was no
    evidence of the
actus reus
required for the
    crime of criminal harassment as defined in s. 264(2)(c) of the
Criminal Code
. He submitted, however, that there was no
    evidence from which it could be inferred that the appellant knew that her
    conduct would harass Mr. McCaughey. Knowledge in this context includes
    recklessness or willful blindness. Knowledge is part of the fault component of
    the offence.

[32]

The
    brief factual outline set out above provides ample basis upon which the
    required knowledge or recklessness could be inferred. Indeed, having regard to
    the entirety of the appellants conduct toward Mr. McCaughey, the inference is irresistible.

[33]

There
    was ample evidence to support the conviction on this count.

The Sentence Appeal

[34]

The
    trial judge imposed a lengthy sentence, especially given that the appellant had
    virtually no criminal record. However, the offence was a very serious one. The
    harassment was vicious, long-term and relentless. It culminated in genuine
    attempts by the appellant to get two men to kill Mr. McCaughey. She knew both
    men were capable of doing so.

[35]

The
    counselling charge was clearly the most serious charge. However, several of the
    other charges were also serious and warranted significant jail terms. In
    considering the fitness of sentence, it is appropriate to look at the totality
    of the conduct, even though the trial judge chose to impose concurrent
    sentences on all charges.

[36]

In
    addition to the seriousness of the offence, the trial judge found that the
    appellant showed no remorse, no empathy for her victims, and no real
    appreciation for what she had done. According to the trial judge, she posed a
    significant risk to offend. These findings were open to the trial judge and
    properly played an important role in determining the fit sentence. These
    factors also distinguish this case from
R. v. Shier
,
    2018 ONSC 5624, the authority relied on by the appellant.

[37]

The
    trial judge made no error in principle. Nor is the sentence manifestly
    excessive. We would grant leave to appeal sentence, but would dismiss the
    appeal.

Conclusion

[38]

The appeal from conviction is dismissed, leave to appeal sentence
    is granted, and the appeal is dismissed.

G.R.
    Strathy C.J.O.

Doherty
    J.A.

M.
    Tulloch J.A.