COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Boucher, 2022 ONCA 40

DATE: 20220120

DOCKET: C65137

Watt, Benotto and Harvison Young
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Boucher

Appellant

Richard Posner and Alexander Ostroff
, for the appellant

Jennifer Trehearne
, for the respondent

Heard: May 20, 2021 by video conference

On appeal from the
    conviction entered by Justice Ian A. MacDonnell of the Superior Court of
    Justice, sitting with a jury, on June 14, 2017.

Watt J.A.:

[1]

Scott Savoy had a business. He operated his
    business from his home, a basement apartment. His customers came to his place
    of business. At all hours of the day and night. They bought what he had for
    sale. Crack cocaine.

[2]

Scott Savoy was careful in his business
    dealings. About whom he admitted to his apartment. And to whom he sold crack
    cocaine.

[3]

Jason Boucher was a customer of Scott Savoy. He
    bought crack cocaine from Mr. Savoy. On occasion, they partied together in the
    basement apartment. Smoking and drinking.

[4]

Early one February morning several years ago, Scott
    Savoy died in his apartment. He died because someone had beaten and strangled
    him. Jason Boucher was the last person seen with Scott Savoy when Mr. Savoy was
    last seen alive.

[5]

A jury found Jason Boucher guilty of second
    degree murder arising out of the death of Scott Savoy.

[6]

Jason Boucher appeals his conviction. These
    reasons explain why I have concluded that his appeal should be dismissed and
    his conviction affirmed.

The Background Facts

[7]

The central issue at the appellants trial was
    the identity of the deceaseds killer. It was common ground at trial that the
    deceased was killed early in the morning of February 1, 2015. No one gave
    direct evidence about the circumstances in which the deceased was killed. The
    case for the Crown consisted of evidence of:

i.

opportunity;

ii.

statements made by the appellant during recorded
    interviews with investigators;

iii.

after-the-fact conduct; and

iv.

a bloodstain containing the deceaseds blood on
    the appellants coat sleeve.

[8]

The position of the defence at trial was that
    some unknown person had been admitted to the deceaseds apartment and killed
    the deceased while the appellant was passed out from the effects of alcohol and
    drug consumption.

[9]

The appellant did not testify at trial, nor call
    any witnesses in his defence.

[10]

An overview of the evidence adduced at trial
    will furnish the background necessary to understand the grounds of appeal
    advanced and how I propose that they be resolved.

The Principals and Their Relationship

[11]

The deceased lived in the basement apartment of
    a house owned by a married couple who occupied the other floors of the
    residence with their two adult sons. The deceaseds mobility was restricted.
    Sometimes, he used crutches or a cane to move around. He had an electric
    scooter he used outside to travel longer distances. Friends often took him
    shopping and to various appointments. He was awaiting a hip transplant when he
    was killed.

[12]

In addition to his trafficking business, the
    deceased abused alcohol and drugs, including crack cocaine and fentanyl. Often,
    he drank, got high, and socialized with his friends in his apartment.

[13]

The appellant was also addicted to alcohol and
    drugs. He bought drugs from the deceased, who, on occasion, would front the
    appellant the drugs and collect payment later. Despite his addictions, the
    appellant worked at a body shop, often under the influence of drugs. He and the
    deceased were friends.

The Drug Business

[14]

The deceaseds place of business, his basement
    apartment, was accessible from the exterior of the house through a set of
    double doors on the side of the house. These doors gave access to a foyer where
    the deceased kept his electric scooter. A set of stairs led from the foyer to
    the main floor in the house. And a second set of stairs led to the basement.

[15]

The deceaseds apartment was generally organized
    with everything in its place. He kept his drugs and money in different hiding
    places throughout the apartment. He often misplaced his drugs and his cash.
    This annoyed the deceased who would frequently accuse his guests of theft, only
    to find what he was looking for later where he had left it earlier.

[16]

The deceased kept the door to his apartment and
    the exterior double doors locked. He always verified the identity of anyone who
    came to the exterior doors of the house. Either he or a friend would go
    upstairs to determine who was outside. The deceaseds business had no fixed
    hours of operation. Purchasers could bang on the doors at any time of the day
    or night. On weekdays and on weekends. Residents upstairs would often hear loud
    voices, of people, including the deceased, yelling in his apartment. And of
    some visitors being thrown out of the apartment.

The Furnace Repair

[17]

During the morning of January 31, 2015, the
    adult sons of the homeowners entered the deceaseds apartment to fix the
    furnace. Other men were in or arrived at the apartment while the furnace
    repairs progressed. When someone came to the outside door, the deceased walked
    upstairs and admitted the visitors to his apartment.

More Visitors

[18]

Around 6 p.m., Kerry Burnett, a friend of the
    deceased, came to the apartment. She cooked dinner for the deceased and
    socialized with him. Another woman, who was already in the apartment, admitted
    Ms. Burnett. At twenty-minute intervals, more drug purchasers would arrive.
    Each would stay a few minutes, smoke a puff, then leave the apartment.

[19]

Around 11:30 p.m. or midnight, the appellant and
    two others arrived at the deceaseds apartment. They brought some beer with
    them. The appellant repaid the deceased money that he owed him and bought more
    drugs from him. The men smoked, drank beer, and socialized with the deceased.
    The appellants companions left about 30 minutes or an hour after they had
    arrived. Nobody else came into the apartment.

The Last Visitor

[20]

Around 1:30 or 1:45 a.m., Kerry Burnett called a
    taxi to take her home. The appellant escorted her upstairs and locked the door
    as she left. The only persons left in the apartment when Ms. Burnett departed
    were the appellant and the deceased.

[21]

No one saw, spoke to, or heard from the deceased
    again.

The Rent Collectors

[22]

At different times over the next two days, the
    adult sons of the owners of the house where the deceased lived tried to collect
    the monthly rent from the deceased. No one answered the door. On February 1,
    2015, when they were outside shovelling snow, the brothers noticed that the
    double doors had blown open. They locked them from the inside.

The Friends Inquiries

[23]

Later the same day, a friend of the deceased
    knocked on the door at the side of the house. He had brought a sandwich for the
    deceased. No one answered the door. He left the sandwich inside a barbeque that
    was outdoors. He called the deceaseds cellphone, but his call was directed to
    voicemail. The same friend returned the following day with another friend.
    Again, no answer at the door. The sandwich remained in the barbeque.

Finding the Body

[24]

The deceased was scheduled to have hip surgery
    on February 4, 2015. Two of his friends went over to his apartment that day.
    Unable to get any response to their knocks, they persuaded the owners sons to
    break open the outside and inside doors. The deceased was on the kitchen floor,
    a bit of blood under his head. Footprints were visible on the floor. The
    apartment was uncharacteristically messy. Part of the couch had been ripped
    open.

[25]

One of the landlords sons called 911 and began
    CPR. The deceaseds shirt was already moved upward on his chest.

The Scene

[26]

First responders found the deceased lying faceup
    on the kitchen floor. Red marks were apparent on his neck as was blood in his
    left ear. Two crackpipes sat on a table, beer cans and Gatorade containers were
    strewn on the floor. Police found no money, except for a few coins. No drugs.
    And no keys. The apartment was in disarray. Furniture had been knocked over and
    couch cushions pulled up. A photograph had been crumpled and torn.

The Footwear Impressions

[27]

The lead forensic investigator, Det. Cst. Greavette,
    found several footwear impressions on the kitchen floor. Some could be seen
    with the naked eye, others required the application of powder or a reagent to
    make them visible. Two of the eight footwear impressions had been made when wet
    blood on the bottom of a pair of shoes had come into contact with the floor.
    One of these impressions was close to the body of the deceased, the other
    further away. No evidence was given about the state of the blood on the floor
    when the body was discovered. On previous days, it had snowed.

[28]

Several people were in the deceaseds apartment
    after the 911 call. Paramedics. Police officers. The deceaseds friends and the
    landlords sons who discovered the body. And later, the coroner, pathologist,
    and body removal personnel. Police obtained impressions of the footwear worn by
    some but not all of those who attended. By comparison to the impressions on the
    floor, police eliminated first responders and investigators as the source of
    the impressions.

[29]

Forensic analysis could not determine the size
    of the shoe that left the impression, nor whether it was a complete or only
    partial image. The appellant provided police with the shoes he said he had been
    wearing at the deceaseds apartment. Those shoes did not create the bloody
    impressions on the kitchen floor.

[30]

The forensic pathologist who conducted the
    post-mortem on the deceased noticed some parallel lines on the deceaseds neck.
    The pattern was similar to the tread pattern on the footwear impression in blood
    on the floor. But any pattern with the same number of parallel lines could be
    similar.

The Cause of Death

[31]

The deceased died from blunt force injury and
    manual strangulation. During the attack leading to his death, blood from the
    deceased would be transferred to his assailant. A drop of the deceaseds blood
    was found on the appellants coat sleeve. Blood can be transferred during CPR.

The Appellant Calls the Police

[32]

On February 9, 2015, eight days after the
    deceased was killed, the appellant called the police. He left a voicemail
    message for one of the investigating officers. The appellant identified himself
    and the deceased and left a phone number at which the officer could reach him.
    The appellant said he wanted to meet the officer. He explained that he had a
    lot of pertinent information about the death of the deceased because he had
    been there, although he was not sure that he was involved.

[33]

About a half hour later, the appellant called
    again. He spoke to another officer. He told her that he woke up at the
    deceaseds place. He had been the last to leave. He presumed the deceased was
    dead and that he (the appellant) was involved. The appellant explained that he
    was going to his fathers place to say goodbye. He wanted to meet the police at
    a McDonalds restaurant at 2:30 p.m. that afternoon.

The Meeting at McDonalds

[34]

Two police officers met the appellant at
    McDonalds. They bought him some food and spoke with him. The officers then
    drove the appellant back to 41 Division where he participated in a videotaped
    interview with one of the investigating officers.

[35]

On the way from McDonalds to 41 Division, the
    appellant told the officers that he had been there that night and was pretty
    sure that he was involved, even though he couldnt remember a lot. He explained
    that when he gets drunk, he does stupid shit. He said that he was prepared to
    make a full and honest confession about what hed done in his life and what
    hed done regarding the events that he was being questioned about.

[36]

The escorting officers cautioned the appellant
    that he could be charged with murder. He responded I am a hundred percent
    certain, regardless of any memory or anything else, Im pretty sure Im guilty
    of the charges that are presented in front of me and the charges that Im facing,
    whether my recollection is great or not. He claimed not to remember what had
    occurred and provided no details of any events that resulted in the death of
    the deceased.

The Appellants Version of Events

[37]

About an hour after he had met police at McDonalds,
    the appellant was interviewed at 41 Division by D/S Ryan, the officer for whom
    he had left his original message. The appellant confirmed that he had been on a
    bender since he had finished work on the preceding Friday. He had consumed
    large quantities of alcohol and drugs, including that morning prior to meeting
    police at McDonalds. He repeated what he told officers earlier about suffering
    from a serious ear infection that required treatment.

[38]

The appellant provided a lengthy, rambling and,
    at times, disjointed account to D/S Ryan. He repeatedly talked over the officer
    despite the officers persistent attempts to ask questions. In essence, the
    appellants account was that he had passed out after drinking and taking drugs
    with the deceased. When he woke up the following morning, the deceased was
    dead. The appellant realized that he was involved, but did not know what, if
    anything, he had done. The appellant referred to his narrative at different
    times as recollections, dreams, and images, but declined to disclose
    their content.

[39]

The appellant told D/S Ryan that, when he woke
    up, he saw the deceased lying dead on the kitchen floor. He thought the
    deceased might have died from a drug overdose. He claimed to have checked the
    deceaseds neck and wrist for vital signs and attempted CPR without success.

[40]

At the end of the interview with D/S Ryan, the
    appellant was arrested on a charge of second degree murder. Shortly thereafter,
    officers took the appellant to a local hospital. There, a doctor removed a piece
    of black rubber from an earbud that had been embedded in the appellants ear.
    The appellant also received Valium to manage his high and to alleviate the
    effects of drug withdrawal.

[41]

Police escorted the appellant from the hospital
    back to 41 Division after the removal of the earbud component from his ear and
    the dosage of Valium. A second police officer from the Homicide Squad
    interviewed the appellant. The interview, like that with D/S Ryan, was video recorded.

[42]

The appellant told Det. Singh that he and his stepbrother,
    Paul Duck, went to the deceaseds apartment a couple of times on January 31,
    2015. They had been on a drug and alcohol bender from the previous day. During
    one of their visits, the deceaseds landlord was repairing the furnace. The
    appellant owed the deceased $80 for drugs the deceased had sold him earlier.
    The appellant wanted to buy more crack cocaine. He, Duck and a friend of Ducks
    returned to the deceaseds apartment later. They brought a case of beer. The
    appellant paid the deceased the money he owed him, together with $20 in
    interest, and bought more crack cocaine. He smoked crack cocaine and drank some
    vodka and tall boy cans of beer. The appellant remained after Duck and his
    friend left so that he (the appellant) could hook up with Ms. Burnett who was
    also there.

[43]

The appellant told the police that the
    deceaseds drug dealer showed up to collect payment. At first, the deceased
    could not find his money or drugs. When he found them, the deceased paid what
    he owed and the dealer left. The appellant, the deceased and Ms. Burnett then
    smoked more crack cocaine in the stairwell. The appellant wanted to leave when
    Ms. Burnett left, but the deceased persuaded him to stay in case the dealer
    returned. Later, according to the appellant, the deceased had another tantrum
    when he couldnt find his drugs. He accused the appellant and Ms. Burnett of
    stealing them. They tore his place apart before the deceased found the drugs
    in the room where he kept his scooter. The deceased cut a chunk from his supply
    for the appellant, another for someone who was on her way over.

[44]

After he consumed some more alcohol and drugs,
    the appellant told police that he passed out on the deceaseds sofa. When he
    awakened at 6 a.m., the appellant drank some vodka and smoked a blast of crack
    cocaine. He headed towards the kitchen where he saw the deceased lying on his
    back wearing only his shirt and underwear. The deceaseds head and face were
    purple, his tongue was sticking out, and he was not breathing. The appellant thought
    the deceased had overdosed. He drank some more beer and vodka, did a few
    blasts of crack cocaine and left. He locked the apartment door, left the key
    on the stairs next to the scooter, and left.

The Forensic Evidence

[45]

Forensic investigators did not find the appellants
    DNA under the deceaseds fingernails, nor the deceaseds DNA on the appellant
    or his clothing except for a drop a blood from the deceased on the sleeve of
    the appellants jacket. The appellant told police that he had only three sets
    of Lululemon clothing and two pairs of shoes. He wore one set of clothing when
    he met the police and brought the other two sets with him to their meeting
    eight days after the deceased was killed. Apart from the shoes that he was
    wearing, which did not match the footwear impressions on the floor in the
    deceaseds kitchen, the appellant said his only other footwear was his work
    boots.

The After-the-Fact Conduct

[46]

The appellant explained to investigators that,
    after he found the deceased dead on the floor in his kitchen, he drank some of
    the deceaseds alcohol and smoked some of his crack cocaine. The appellant did not
    call 911. Instead, he left the apartment, locked the door behind him, and
    disposed of the key. He called the police eight days later.

The Grounds of Appeal

[47]

The appellant advances five grounds of appeal that
    he submits warrant a new trial. He says that:

i.

the trial judge erred in failing to give the
    jury a modified
W.(D.)
instruction about the exculpatory effect of
    evidence of the footwear impression and the neck injury;

ii.

the trial judge erred in failing to correct
    improprieties in the trial Crowns closing address which invited the jury to
    speculate in concluding guilt had been established;

iii.

the trial judge erred in admitting the
    appellants references to dreams, flashbacks, recollections, and images in his
    police interviews;

iv.

the trial judge erred in his instructions to the
    jury on the evidentiary value of the appellants dreams; and

v.

the jurys verdict is unreasonable.

Ground #1: The
W.(D.)
Instruction

[48]

The first ground of appeal alleges non-direction
    about footwear impression evidence received at trial. A brief summary about
    some features of that evidence, coupled with a reference to the positions of
    the parties at trial, will provide the background necessary to evaluate the
    merits of the claim.

The Evidence in Issue

[49]

The deceaseds body was lying on the kitchen
    floor of his apartment. On the same floor, two impressions created by wet blood
    transferred from the soles of shoes were detected and examined. One impression
    was adjacent to the deceaseds body, the other, further away. The impressions
    had been left at or around the time the deceased was killed. Several persons
    were in and out of the apartment when and after the body was found. No one gave
    evidence about the state of the blood (wet, dry, or drying) at the time.
    Although police examined and eliminated the footwear worn by many who were
    present, all of the footwear was not examined. The shoes the appellant told
    police that he was wearing the night the deceased was killed were eliminated as
    the source of the footwear impressions. The size of the shoe that made the two
    impressions could not be determined.

[50]

A pattern of parallel lines also appeared on the
    deceaseds neck. The pattern was similar to that in the footwear impression on
    the kitchen floor. But there was nothing unique about either pattern. The
    forensic pathologist, who conducted the post-mortem examination of the deceased
    and had visited the deceaseds apartment, considered that any parallel
    impression could be similar to the pattern he saw on the deceaseds neck.

The Positions of the Parties at Trial

[51]

The trial judge distributed drafts of his
    proposed charge to counsel. He sought their input about its contents. Neither
    Crown nor defence counsel made any complaint about the proposed instructions on
    the evidence of footwear impressions.

[52]

The trial judges final instructions extended
    over parts of two days. As the judge was about to begin on the second day,
    defence counsel (not counsel on appeal) asked the trial judge to include a
W.(D.)
instruction on the footwear impressions. Counsel asked that the trial judge
    direct the jury that if they found that the footwear impressions had been made
    by the deceaseds killer, or had a reasonable doubt on that issue, the
    appellant should be found not guilty.

[53]

The trial judge discussed the request with
    counsel. He declined to give the instruction. The trial judge pointed out that
    the
W.(D.)
instruction referred to the evidence as a whole, not to
    individual items of evidence. In addition, he was satisfied that the balance of
    the charge was sufficient to ensure the jurys appreciation of the consequences
    of a reasonable doubt about the appellant as the source of the footwear
    impressions.

The Arguments on Appeal

[54]

The appellant begins by pointing out that the
    trial judge gave a
W.(D.)
instruction concerning the exculpatory parts
    of the appellants police interviews. He told the jury that if they had a
    reasonable doubt about the truth of the appellants disclaimers of
    responsibility, they should find the appellant not guilty. The trial judge
    should have given the same instruction when asked to do so in connection with
    the equally exculpatory footwear impression evidence.

[55]

The authorities establish that the principles in
W.(D.)
extend to exculpatory or potentially exculpatory evidence from
    sources other than an accused where credibility findings are required. It
    follows, according to the appellant, that a modified
W.(D.)
instruction becomes essential where, on a vital issue, the jury is required to
    make findings of credibility or reliability on conflicting evidence.

[56]

In this case, the appellant continues, the
    footwear impression evidence was relevant to the central issue at trial, the
    identity of the killer. And the evidence was exculpatory. The impressions were
    left at the time of the killing. No evidence was given that the blood remained
    wet when the body was found. The similarities between the impressions on the
    floor and those on the deceaseds neck were a robust indicator that the same
    person  the killer  left both. And this was not the appellant. Even if he had
    discarded his shoes, the size differential between his shoe size and the
    dimensions of the impressions made it clear that he was not their author.

[57]

The appellant contends that the omission of the
    direction requested created a substantial risk that the jury would approach its
    task in an all or nothing manner. Even if the jury did not believe this
    evidence, it could have raised a reasonable doubt about the appellants guilt.
    Yet, without a direction pointing this out, this is not the kind of reasoning
    jurors would apply. The failure to provide the instruction was a serious legal
    error requiring direction of a new trial.

[58]

The respondent supports the trial judges
    conclusion that the requested instruction, raised for the first-time
    mid-charge, was not required. A
W.(D.)
instruction ensures that the
    jury understands the relationship between credibility and proof beyond a
    reasonable doubt. As trial counsel conceded, no issue of credibility arose in
    connection with the footwear impression evidence. The only issue of credibility
    was whether the jury believed the appellants claim that he turned over the
    shoes he was actually wearing when the deceased died. And the trial judge gave
    a
W.(D.)
instruction on the appellants credibility.

[59]

The issue on which trial counsel sought a
    modified
W.(D.)
instruction was not a vital issue. A finding in the
    appellants favour did not require an acquittal. Even if the jury found or had
    a reasonable doubt whether the footwear impressions were made by the
    perpetrator, there remained a body of evidence that casts substantial doubt on
    the appellants claim that he turned over the relevant footwear to police.

[60]

In addition, the respondent says the argument
    advanced here was not what was urged at trial, which fastened exclusively on
    the footwear impressions on the kitchen floor. The issue raised here is equally
    not one involving credibility, thus implicating the need for a
W.(D.)
instruction. Further, such an instruction would have the effect of isolating
    this item of evidence and subjecting it, rather than the evidence as a whole,
    to the legal standard of proof.

[61]

The respondent argues that the charge, taken as
    a whole, made clear to the jury the burden and standard of proof and the
    relationship between credibility and proof beyond a reasonable doubt. The
    charge explained that the standard of proof beyond a reasonable doubt applied
    to the evidence as a whole, not to individual items of evidence. What had to be
    established beyond a reasonable doubt before a finding of guilt could be made
    was the essential elements of the offence charged, second degree murder. The
    trial judge repeated the
W.(D.)
formula twice in connection with the
    appellants exculpatory statements during his police interviews. Further, the
    trial judge pointed out the circumstantial nature of the case for the Crown and
    the requirement that the appellants guilt must be the only reasonable
    inference available from that evidence before a finding of guilt could be made.
    The jury was properly instructed.

The Governing Principles

[62]

Several principles inform my decision on this
    ground of appeal. None excite controversy.

[63]

To establish the guilt of an accused of an
    offence, the Crown must prove the accused committed the essential elements of
    that offence beyond a reasonable doubt:
R. v. Morin
, [1988] 2 S.C.R. 345,
    at pp. 361-362;
R. v. D.(B.)
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at
    para. 96. Nothing more is required. But nothing less will do.

[64]

To determine whether the Crown has proven the
    essential elements of an offence beyond a reasonable doubt, the trier of fact
    considers the whole of the evidence. It is the whole of the evidence that must
    meet the standard of proof settled upon the Crown. Not individual items of
    evidence. The jury is not to examine the individual items of evidence piecemeal
    by reference to the criminal standard of proof. Nor is the jury to apply the
    criminal standard of proof to each individual item of evidence. And it is
    legally wrong for a judge to instruct them to do either:
Morin
, at p. 354;
R. v. Stewart
, [1977] 2 S.C.R. 748, at pp. 759-761;
R. v. Ménard
,
    [1998] 2 S.C.R. 109, at para. 23;
R. v. White
, [1998] 2 S.C.R. 72, at
    paras. 56-57;
Thomas v. The Queen
, [1972] NZLR 34 (C.A.), at pp. 36,
    37.

[65]

Sometimes, issues of credibility arise between
    evidence tendered by the Crown and that tendered or relied upon by the defence.
    Where credibility is an essential issue in a jury trial, the judge must explain
    the relationship between the assessment of credibility and the ultimate burden of
    the Crown to prove the guilt of the accused to the criminal standard of proof.
    It is uncontroversial that a general instruction on reasonable doubt that pays
    no heed to its relationship to credibility, or the lack of credibility of the
    witnesses, leaves open too great a possibility of confusion or
    misunderstanding:
R. v. S.(J.H.)
, 2008 SCC 30, [2008] 2 S.C.R. 152, at
    para. 8.

[66]

The well-known formula in
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742, at pp. 757-758, unpacks for the benefit of a jury what
    reasonable doubt means in the context of evaluating conflicting testimonial
    accounts. This alerts the jury to the credibility contest error. The teaching
    of
W.(D.)
for trial judges is that they are required to impress on the
    jury that the burden never shifts from the Crown to prove every element of the
    offence, but no more, beyond a reasonable doubt:
S.(J.H.)
, at para. 9.

[67]

The message from
W.(D.)
is straightforward.
    A trial judge must make it crystal clear to the jury that the burden of proof
never
shifts from the Crown to prove every essential element of the offence beyond a
    reasonable doubt:
S.(J.H.)
, at para. 13. In any case where credibility
    is important, the trial judge must ensure not to leave the jury with the
    impression that, to make its decision, it had (simply) to choose between
    competing versions of events. Nothing said or left unsaid should leave the
    impression with the jury that an accuseds lack of credibility is the
    equivalent of proof of guilt beyond a reasonable doubt:
S.(J.H.)
, at
    para. 13, citing
R. v. Avetysan
, 2000 SCC 56, [2000] 2 S.C.R. 745, at
    para. 19.

[68]

Of importance in assessing the applicability of
W.(D.)
are the opening words of one of its critical passages:

In a case where credibility is important

Sometimes, credibility is not
    important, as where no one questions the sincerity of the relevant defence
    evidence. Thus the need for a
W.(D.)
instruction is questionable:
R.
    v. McClenaghan
, 2010 ABCA 222, 258 C.C.C. (3d) 178, at paras. 26, 29, 31,
    leave to appeal refused, [2010] S.C.C.A. No. 353.

[69]

A trial judge is not required to relate their
    instructions on reasonable doubt to specific pieces of evidence. It is of no
    moment whether the evidence is consistent with the defence or Crowns theory of
    the case. A thorough instruction on reasonable doubt and a direction on the
    approach to circumstantial evidence may meet what is required:
R. v. R.(M.)
(2005), 195 C.C.C. (3d) 26 (Ont. C.A.), at para. 46.

[70]

In
D.(B.)
the appellant challenged her
    conviction of incest on the ground that the trial judge had erred in failing to
    give a modified
W.(D.)
instruction where there was conflicting
    testimony between Crown and defence witnesses. The specific error alleged was a
    failure to relate the burden of proof to exculpatory evidence adduced on behalf
    of the appellant. The exculpatory evidence was the testimony of the appellants
    son who testified that the appellants co-accused was his stepfather, not his
    brother (thus not the appellants son) as alleged by the Crown. In other words,
    the evidence on both sides was testimonial. Credibility determinations were in
    play.

[71]

The
D.(B.)
court reiterated the basic
    principle that the standard of proof beyond a reasonable doubt is not to be
    applied piecemeal to individual or categories of evidence, rather to the
    evidence as a whole:
D.(B.)
, at para. 96. The Crown is not required to
    prove or disprove beyond a reasonable doubt any single fact, or any item of
    evidence, unless that fact or item of evidence is an essential element of the
    offence or of a defence. Different considerations emerge when conflicting
    evidence is adduced on an essential element and the jury must make credibility
    findings about that conflicting evidence:
D.(B.)
, at para. 96.

[72]

The circumstances in
D.(B.)
involves
    sworn testimony by a defence witness who contradicted the testimony of
    witnesses called for the Crown. The court extended the principles of
W.(D.)
beyond the paradigmatic he/she said cases, to cases in which the accused does
    not testify but other defence evidence is adduced contradicting the case for
    the Crown and/or conflicting evidence favourable to the defence emerges in the
    Crowns case and the jury must make credibility findings as a result:
D.(B.)
,
    at para. 105. The court concluded that where, on a vital issue, credibility
    findings are required between conflicting evidence called by the defence, or
    arising out of evidence favourable to the defence in the case for the Crown,
    the trial judge must relate the concept of reasonable of doubt to those
    credibility findings. The instructions must make it clear that the jury does
    not have to believe the defence evidence on the vital issue. If the conflicting
    evidence leaves the jury with a reasonable doubt about the accuseds guilt, the
    jury must return a verdict of not guilty:
D.(B.)
, at para. 114.

The Principles Applied

[73]

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

[74]

The principal issue for the jury to determine at
    the appellants trial was whether the Crown had proven beyond a reasonable
    doubt that it was the appellant who killed the deceased. The case for the Crown
    consisted of several strands of circumstantial evidence. Among those strands
    was evidence that, by his own admission, the appellant was the last person seen
    with the deceased when the deceased was last seen alive, in the place where the
    deceased was killed, and was also there alone when the deceased was found dead.
    On its own, this can be powerful evidence pointing to the appellant as the
    deceaseds killer. In addition, expert evidence identified a drop of the
    deceaseds blood on the sleeve of the appellants clothing. Evidence of
    after-the-fact conduct disclosed that the appellant did not call 911, locked
    the deceaseds apartment from the outside with a key, and, it could be
    inferred, got rid of the key.

[75]

The defence position at trial was a denial of
    any involvement in the killing. The appellant relied upon some portions of his
    police interviews conducted on and after his arrest. He also invoked evidence
    about a footwear impression found in blood on the floor in the kitchen where
    the body of the deceased was also found. This impression did not match the
    tread pattern on the shoes the appellant told police eight days later that he
    was wearing the night the deceased was killed. That there was not a match was
    not contested at trial although the evidence did not indicate whether the
    impression observed was a full or only a partial impression.

[76]

The appellants position at trial, repeated here
    in terms not advanced at trial, was that this footwear impression evidence was
    exculpatory, relevant to the vital issue of identity, and should have attracted
    a
W.(D.)
instruction on its own.

[77]

The criminal standard of proof applies to the
    evidence taken as a whole, not to individual items of evidence taken in
    isolation from the balance of the evidence. It follows from this foundational
    principle that it is wrong for a trial judge to instruct a jury, in express
    terms or by necessary implication, that they are to scrutinize individual items
    of evidence individually and apart from the rest and are to apply the criminal
    standard of proof to each item and acquit if the evidence falls short of that
    standard. Instructions along these lines are wrong for two reasons. The
    standard of proof applies to the evidence taken as a whole, which is often
    greater than the sum of its individual parts, not to individual items of
    evidence few if any of which could meet such a standard. Second, while a jury
    should be instructed to consider each piece of evidence carefully, a case is
    not decided by a series of separate and exclusive judgments on each item of
    evidence. Nor is it decided by asking what does that item of evidence prove, or
    does it prove guilt. It is the cumulative effect of the evidence that requires
    evaluation and assessment in light of the criminal standard of proof.

[78]

As a matter of general principle, it is wrong
    for a trial judge to invite a jury to apply the criminal standard of proof to
    an individual item of evidence and to acquit if that evidence fails to prove
    guilt beyond a reasonable doubt where that item of evidence is not dispositive
    of guilt or proof of an essential element of the offence charged.

[79]

In this case, the first issue the trial judge
    framed for the jury to decide was whether the appellant caused the death of the
    deceased. After defining the issue and explaining what the Crown had to
    establish beyond a reasonable doubt to prove it, the trial judge reviewed the
    essential features of the evidence that were relevant to the jurys decision on
    that issue. The evidentiary catalogue included the appellants denials in the
    recorded police interviews and the forensic evidence eliminating the
    appellants shoes as the source of the bloodied footwear impressions. The trial
    judge left this issue of participation or authorship to the jury, explaining
    the consequences of the findings available to them, including that which
    followed a reasonable doubt on the issue  a finding of not guilty.

[80]

From these instructions, the jury would
    understand their obligation to consider the evidence as a whole in deciding
    whether the Crown had proven beyond a reasonable doubt that the appellant
    killed the deceased. In addition, the jury would understand that among the
    items of evidence that were relevant to their decision, thus to whether the
    Crown had proven this essential element of the offence beyond a reasonable
    doubt, was the evidence that excluded the appellants footwear as the source of
    the bloodied footwear impression. And they would also understand that a
    reasonable doubt arising from this evidence as a whole required them to find
    the appellant not guilty.

[81]

In this case, I am satisfied that the trial
    judges instructions to the jury were sufficient as they were given to apprise
    the jury about the impact of the footwear impression evidence on their decision
    on the threshold issue of whether the Crown had proven beyond a reasonable
    doubt that the appellant killed the deceased.

[82]

The authorities the appellant invokes in support
    of his submission that a discrete
W.(D.)
instruction was required for
    the footwear impression evidence are readily distinguishable and of no
    assistance in these circumstances.

[83]

The authorities the appellant summons require a
W.(D.)
instruction where, on a vital issue,
credibility findings
are required
    between conflicting evidence called by the defence or arising out of the case
    for the Crown favourable to the defence. It is in these circumstances that the
    trial judge must relate the concept of reasonable doubt to these credibility
    findings to ensure that the jury understands that they need not believe the
    defence evidence on that vital issue. Rather it is sufficient if the
    conflicting evidence leaves them in a reasonable doubt on the vital issue in
    the context of the evidence taken as a whole.

[84]

In this case, the footwear impression evidence
    was uncontroversial: the impressions were not created by the shoes the
    appellant produced for the police eight days after the deceased was killed. No
    credibility findings were required, except in connection with the appellants
    assertion that those were the shoes he was in fact wearing when the deceased
    was killed. The trial judge on at least two occasions included a
W.(D.)
instruction in connection with the appellants denial of involvement. By their
    verdict, the jury did not believe or have a reasonable doubt about the
    appellants denial. A further instruction related specifically to the footwear
    impression evidence was not required, but, even if required, would have made no
    difference in the result.

Ground #2: The Closing Address of the Crown

[85]

This ground of appeal focuses on a single
    passage in the closing address of the trial Crown (not counsel on appeal). The
    appellant says that the trial Crown invited the jury to engage in speculative
    and prejudicial reasoning in reaching their verdict.

[86]

A brief reference to the relevant portion of the
    closing address and the position of counsel at trial will provide the framework
    necessary to ground the discussion that follows.

The Closing Address

[87]

In her closing address, the trial Crown made
    this submission:

Remember that Mr. Boucher had already taken
    steps to avoid any connection with what happened to Scott Savoy. Specifically,
    he did not call 9-1-1, he did not report Scott Savoys death at a later time,
    he locked the door to Scotts apartment and then removed the keys Its a
    reasonable inference that Mr. Boucher took another step to avoid being linked
    to Scotts death by getting rid of the shoes he was wearing when he killed
    Scott.

[88]

The trial Crown relied on four instances of
    after-the-fact conduct as relevant evidence for the jury to consider in
    determining whether the Crown had established that the appellant killed the
    deceased:

i.

the failure to call 911;

ii.

the minimal, if any, effort to perform CPR;

iii.

locking the apartment door and disposing of the
    key on leaving the apartment; and

iv.

taking the deceaseds drugs and money from his
    apartment.

This conduct all took place on
    February 1, 2015, the day the deceased was killed.

The Defence Position

[89]

Defence counsel urged the jury to accept the
    appellants explanation for this conduct. He did not object to or suggest any
    ameliorative response to the closing address of the Crown.

The Arguments on Appeal

[90]

The appellant contends that the trial Crown
    invited the jury to speculate and engage in prejudicial reasoning. It was
    improper, the appellant says, for Crown counsel to invite the jury to infer the
    appellant destroyed evidence by getting rid of the shoes he wore at the time of
    the killing before arranging his meeting with the police eight days later.

[91]

The submission made by the trial Crown was
    improper, the appellant urges, for three reasons. It was unsupported by the
    evidence, the product of pure speculation to fill in an evidentiary gap. It was
    dangerous because it had been included in the closing address. This tempted the
    jury to view this evidence as an additional item of after-the-fact conduct
    evidence relevant on the critical issue of the appellants responsibility for
    the killing. And it was unfair because the footwear evidence which counsel
    attacked was powerful exculpatory evidence due to the disparity between the
    size of the impression and of the appellants shoes. As a consequence, a
    miscarriage of justice occurred and can only be remedied by an order for a new
    trial.

[92]

The respondent points out that the case for the
    Crown was entirely circumstantial. It included four items of evidence of
    after-the-fact conduct all of which took place on the day on which the deceased
    was killed. Defence counsel focused on the same four items and urged the jury
    to accept the appellants explanation for them as disclosed in his police
    interviews: the appellant was a drug addict with a criminal record and was the
    last person seen with the deceased when the deceased was last seen alive.
    Neither lawyer made a submission that the footwear evidence should be
    considered as evidence of after-the-fact conduct.

[93]

In another part of her closing address, the
    respondent contends, the trial Crown argued that there were reasons to
    disbelieve the appellants claim that the shoes he turned over to police were
    those that he wore when the deceased was killed. The trial Crown submitted that
    the appellant had done or failed to do several other things to distance himself
    from the killing. Thus, the trial Crown submitted, it was a reasonable
    inference that the appellant would get rid of the shoes he wore on the date of
    the killing, rather than wear them to an arranged meeting with the police. All
    the more so, the trial Crown said, when the appellant admitted getting rid of
    his socks.

[94]

The respondent invites our consideration of two
    other aspects of the trial proceedings as indicative of the absence of any
    actual or apparent unfairness arising from the trial Crowns closing, thus no
    miscarriage of justice having occurred. Defence counsel did not object to the
    trial Crowns closing address. And in the instructions to the jury on evidence
    of after-the-fact conduct and its relevance to the jurys decision on the
    appellants participation in the killing of the deceased, the trial judge made
    no reference to disposal of the shoes. Thus, the jury would understand that the
    Crown was not relying on it as evidence of after-the-fact conduct on the issue
    of the identity of the appellant as the deceaseds killer.

The Governing Principles

[95]

An improper closing address by Crown counsel is
    among the many trial irregularities that can affect the actual or apparent
    fairness of a criminal jury trial, thus cause or contribute to a miscarriage of
    justice. The gravity of these irregularities, among them improper closings, is
    a variable, not a constant. Each requires an individual evaluation according to
    its unique circumstances:
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R.
    823, at para. 74.

[96]

If a trial judge concludes that an irregularity
    has occurred in the closing address of Crown counsel, and that irregularity has
    jeopardized the actual or apparent fairness of the trial, the trial judge must
    consider all the circumstances. This requires a balancing of the interests of
    the accused against several other considerations, among them, the public
    interest:
R. v. Al-Enzi
, 2014 ONCA 569, 121 O.R. (3d) 583, at para.
    63.

[97]

The remedies available to a trial judge when an
    irregularity such as an improper closing by Crown counsel occurs at a jury
    trial vary according to the nature and quality of the error or combination of
    errors. The trial judge is in a privileged position in choosing the appropriate
    remedy. In most situations, an irregularity in a closing address may be
    remedied by a limiting instruction:
R. v. Rose
, [1998] 3
    S.C.R. 262, at para. 125. Although the discretion about remedial choice is not
    absolute, the decision is owed significant deference and is not to be routinely
    second-guessed on appeal:
Al-Enzi
, at para. 64.

[98]

An important factor in our
ex post facto
evaluation of what is now said to have been a fatal wounding of the fairness of
    the trial proceedings is the position of defence counsel when the source of the
    alleged unfairness arose:
Khan
, at para. 85. The failure of
    experienced defence counsel to object to a trial event now said to have
    compromised the actual and apparent fairness of the trial may toll heavily
    against the claim of unfairness viewed through the lens of an adverse verdict.

[99]

The subject-matter of the trial Crowns
    submission  the destruction or disposal of evidence linking the appellant to
    the killing  is evidence of after-the-fact conduct. Circumstantial evidence of
    after-the-fact conduct may assist in proof of an accuseds participation in a
    prior offence. It is also relevant to impugn the credibility of the accused:
R.
    v. Jaw
, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 39, citing
White
,
    at para. 26;
R. v. Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579, at para.
    154.

The Principles Applied

[100]

In combination, several reasons persuade me that this ground of
    appeal cannot be sustained.

[101]

To begin, I am not satisfied that the submission about which the
    appellant complains invokes speculative reasoning and, as a result, was
    improper.

[102]

The line between inference and speculation is often not readily
    identifiable. What one would characterize as speculation, another would assess
    as inference. In this case, the appellant was the last person with the deceased
    when the deceased was last seen alive. The deceased was killed at that place
    when the appellant was present. No sign of forced entry was apparent until
    those who came to check on him broke in. Footwear impressions in blood were
    visible on the floor near the deceaseds lifeless body.

[103]

The appellant took several steps to distance himself from any
    involvement in the deceaseds death. He did not call 911. He made only minimal
    attempts at CPR. He locked the apartment and disposed of the key. He bought new
    socks. He did not contact police until eight days after the death of the
    deceased. All of these steps occurred after the deceased was killed. In
    combination, this evidence was relevant to the credibility of the appellants
    account to police which included his statement about then wearing the same
    shoes that he had worn the night the deceased was killed. It could also furnish
    a foundation for an inference of disposal of the footwear actually worn at that
    time.

[104]

Second, neither Crown counsel nor the trial judge suggested that
    disposal of the footwear actually worn at the time the deceased was killed was
    an item of evidence of after-the-fact conduct that the jury could consider in
    deciding whether the Crown had proven beyond a reasonable doubt that it was the
    appellant who killed the deceased. Nor was it left as relevant to the
    credibility of the appellants disclaimer of responsibility for the deceaseds
    death.

[105]

Third, and relatedly, the trial Crown and the trial judge limited
    the evidence of after-the-fact conduct to evidence that the appellant did not
    call 911, made a minimal if any effort at CPR, and locked the door and disposed
    of the key to impede efforts to contact the deceased. And each restricted
    evidentiary use to the issue of whether the appellant caused the deceaseds
    death. This limitation ensured that the scope of the after-the-fact evidence
    did not extend to disposal of the footwear and that its evidentiary use did not
    reach the appellants credibility. Thus, Crown counsels submission was removed
    from consideration on the issue of identity and the relevance of the evidence
    of after-the-fact conduct was limited in a matter that enured to the
    appellants benefit.

[106]

A final point concerns the position of defence counsel at trial. As
    an ear and eye witness to the proceedings and vigilant in his protection of the
    appellants interests, trial counsel did not object to Crown counsels closing
    address. Failure of objection is not dispositive of the claim of impropriety
    now advanced, but it delivers a telling blow to the claim now made of actual
    and apparent unfairness caused by the closing submission.

Grounds #3 and #4: Dreams, Flashbacks, Recollections and
    Images

[107]

The appellant advances two grounds of appeal in connection with his
    references to dreams, flashbacks, recollections and images in his police
    interviews on and after arrest. The first has to do with the admissibility of
    those references, more specifically, with the failure of the trial judge to
    edit those references from the recordings the jury heard. The second concerns
    the correctness of the trial judges instructions about how the jury could use
    those references in their deliberations.

[108]

For discussion purposes, I will deal with these related issues as a
    single ground of appeal beginning with a brief background about how they
    emerged and were determined at trial.

The Procedural Background

[109]

Prior to jury selection, Crown counsel sought a ruling permitting
    her to introduce evidence of a total of six statements made by the appellant
    before and after his arrest on February 9, 2015. The statements began with a
    voicemail the appellant left for D/S Ryan asking to meet with the police about
    his involvement in the deceaseds death and concluded with statements made
    shortly after his videotaped interview with Det. Singh.

[110]

The trial judge found each of the statements was voluntary, a ruling
    not challenged on appeal, thus admissible subject to editing. An issue then
    arose about editing in the videotaped interview with Det. Singh at 41 Division.
    Counsel were unable to resolve the issue themselves, thus turned to the trial
    judge for assistance.

The Application at Trial

[111]

The issue that divided counsel was whether what the appellant
    characterized variously as memories, recollections, flashbacks, vivid images
    and dreams about what happened to the deceased should be excised from the
    interview as it would be played and admitted as an exhibit for the jury.

[112]

Defence counsel sought editing on the ground of lack of relevance.
    His argument was twofold. The appellant told the police that he was unsure
    whether the images he had of relevant events were actual recollections of what
    occurred or simply dreams. The jury would be in no better position to decide
    about their authenticity. It followed, counsel said, that the references to
    dreams were irrelevant. And since the appellant never said what the images
    were, even if the jury were to find that what the appellant said were
    recollections and not dreams, the jury could not draw any inferences of
    culpable conduct because of the lack of detail. This left only speculation,
    which also warranted exclusion for want of relevance.

The Ruling of the Trial Judge

[113]

At the conclusion of argument, the trial judge held that the
    references were admissible.

[114]

The trial judge reasoned that in assessing the meaning to be
    assigned to this evidence, it was appropriate to consider the entirety of the
    appellants statements to the police on February 9, 2015. The issue to be
    resolved was what inferences the jury could draw from the appellants remarks.
    An available inference, the trial judge considered, was what the appellant
    described as images were, in fact, recollections. The jury could also conclude
    that what was said was an implicit acknowledgment by the appellant of
    involvement of the death of the deceased. This was a piece of evidence the jury
    could consider, together with the balance of the evidence, in determining
    whether the appellant killed the deceased.

[115]

In written reasons released later, the trial judge acknowledged that
    the evidence supported two inferences:

i.

that the images were not recollections, only
    dreams; and

ii.

that the images were actual recollections or
    memories of what had happened to the deceased.

He added that despite the lack of
    specifics, the evidence could ground an inference of culpable involvement in
    the death of the deceased.

The Jury Instructions

[116]

The trial judge provided drafts of his proposed instructions for
    counsel to review and discuss at pre-charge conferences. He described the
    positions of the parties in these terms:

The parties take different positions in
    relation to what Mr. Boucher said about the images. The defence says that
    on a reading of everything that Mr. Boucher said in this respect it is clear
    that what he was talking about were merely dreams; the Crown says, again on a
    reading of everything that Mr. Boucher said, that they were more than dreams,
    that Mr. Boucher was having recollections.

[117]

After this introduction, the trial judge continued:

Throughout Mr. Bouchers statements there were
    many, many exchanges in relation to what he recalled or what he may have merely
    dreamed. I dont propose to pick and choose among those exchanges. You have
    listened to the recordings of the statements. You will have those recordings
    and the transcripts of them with you in your jury room. It is for you to assess
    what Mr. Boucher said, to decide what he meant, and to determine what the
    significance of it all is. I would caution you, of course, to be careful not
    to, as it were, cherry-pick his statements. Rather, you must carefully consider
    the entirety of what he said in this regard.

Unless you decide that the images that Mr. Boucher
    was talking about were more than dreams, that they were actual recollections,
    you cannot take what he said about them into account in deciding this case. To
    put it another way, if they were merely dreams, then even if they made him feel
    guilty they are irrelevant in relation to whether he is the person who caused
    Scott Savoys death and you must set them aside.

One thing I want to be clear about. As I have
    said, Mr. Boucher repeatedly declined to reveal the contents of these
    images. He had a constitutional right to decline to answer Singhs questions in
    that respect. Every one of us has the right to decline to answer questions put
    to us by a police officer, whether or not we are charged with an offence. That
    is, each of us has the right to silence. The exercise of that right cannot give
    rise to an adverse inference against a person who exercises it. To draw some
    sort of adverse inference against a person who is exercising a constitutional
    right would turn that right into a trap. It would make the right something that
    you exercise at your peril. So, the fact that Mr. Boucher declined to tell Detective
    Singh what the images were is of no significance.

What Mr. Boucher did say about the images,
    however, is something you can take into account in relation to whether the
    image were dreams or recollections, and in relation to whether they were about
    doing something in relation to what happened to Scott Savoy. As I have said,
    you have the parties positions in that regard. It is for you to say, based on
    your careful assessment of the entirety of Mr. Bouchers statements.

The Arguments on Appeal

[118]

The appellant sought excision at trial on three grounds. He
    contended that there was no basis upon which the images were recollections, as
    opposed to dreams, thus they were irrelevant. He argued that even if the images
    were recollections, they remained irrelevant because they lacked any reference
    to harming the deceased. And, the appellant urged, use of the appellants
    refusal to disclose the content of his images violated his right to silence.

[119]

The appellant says that the references to the various terms were
    prejudicial. This is particularly so in connection with the term dreams.
    While a reference to dreams may be admitted as part of the narrative, it cannot
    be received as an admission of guilt in the absence of evidence of adoption of
    which there was none.

[120]

In his instructions to the jury, the appellant submits, the trial
    judge was wrong to provide the jury with a binary choice  dreams or
    recollections. The effect of this direction was that if the jury found that the
    appellants remarks were recollections, this was tantamount to a finding of
    guilt. The instruction should have included a reference to reasonable doubt,
    even if the jury was satisfied that what was said was a recollection and not a
    dream.

[121]

The respondent says that where an issue arises about the reliability
    or truth of a statement made by an accused to a person in authority, it is for
    the jury to determine the issue. A statement should only be excluded where it appears
    that the statement, as a whole, is so plainly the product of fantasy or
    delusion that it bears no relation to the evidence. To determine whether the
    appellant was actually recounting memories as opposed to dreams could only be decided
    in conjunction with all the other evidence adduced at trial. And that was a
    question to be decided by the jury.

[122]

In addition, the respondent urges, the appellant has not articulated
    any prejudice caused by the reception of this evidence. Modern jurors would
    know well that dreams were not real, not reflective of reality. And the trial
    judge cautioned the jury that the appellants refusal to disclose any details
    could not be used against him.

[123]

In his instructions to the jury, the respondent says, the trial
    judge did not direct the jury that they had to choose whether the images the
    appellant spoke about were dreams or recollections. The instruction was that
    unless the jury made a specific finding that the images were recollections,
    they were to discard the evidence, assigning it no role in their decision. As a
    result, a finding that the images were dreams, or uncertainty about whether
    they were recollections, would mean to the jury that this evidence could not be
    used in deciding whether the appellant killed the deceased.

The Governing Principles

[124]

Several basic principles guide our evaluation and determination of
    this ground of appeal.

[125]

As a matter of general principle, a statement or record of interview
    of an accused tendered in evidence by the Crown and found to be voluntary may
    be edited to excise parts that are irrelevant to the issues in play at trial or
    unfairly prejudicial to the accused:
R. v. Beatty
, [1944] S.C.R. 73,
    at p. 76;
R. v. Holcomb
(1973), 12 C.C.C. (2d) 417 (N.B.S.C., A.D.),
    at pp. 420-421, affd [1973] S.C.R. vi.

[126]

A trial judge who admits a statement or record of interview that
    requires editing must ensure not only that irrelevant or unnecessarily
    prejudicial contents are excised, but also make certain that what remains
    retains its proper meaning when considered in relation to the whole of the
    statement:
R. v. Kanester
, [1966] 4 C.C.C. 231 (B.C.C.A.), at pp. 244-245,
    revd on other grounds, [1966] S.C.R. v.

[127]

When evidence of a statement or police interview of an accused is
    received at trial, it is for the jury, as the exclusive trier of fact, to
    determine the weight to be assigned to it. This includes whether some, none, or
    all of its contents are true or reliable:
R. v. Hodgson
, [1998] 2
    S.C.R. 449, at para. 21;
R. v. McAloon
(1959), 124 C.C.C. 182 (Ont.
    C.A.), at pp. 185-187.

[128]

The final point concerns the admissibility of forms of expression
    other than traditional speech. Various forms of artistic expression, such as poems
    and songs, are not necessarily probative of the truth of what is expressed. The
    motives underlying the expression may be many. Sometimes, reciting what the
    author actually did is one of them. But not always. Yet these forms of
    expression may be capable of significant prejudice, as for example where their
    contents reveal a factual congruity or resemblance to what their author is
    alleged to have done:
R. v. Terry
, [1996] 2 S.C.R. 207, at
    para. 29.

[129]

Evidence of some forms of artistic expression may be received as
    part of the narrative, a link in the chain of inferences tending to establish
    guilt. The strength of the link is for the jury to decide based on the cogency
    of the available inferences. These forms of artistic expression should not be
    considered in isolation as direct proof of any conduct to which they may refer and
    require careful jury instructions to ensure no improper use:
Terry
, at
    para. 30.

[130]

Where the subject matter narrated is a dream, it too may give rise
    to different inferences if its contents are revealed in evidence. The limited
    value of a dream narrated in evidence would be apparent to a 21st century lay
    trier of fact. Nothing said or left unsaid in jury instructions about dreams
    should leave the impression with the jury that they could be treated as an
    admission of guilt:
Terry
, at para. 31.

The Principles Applied

[131]

I would not accede to either aspect of this ground of appeal. I am
    satisfied that the trial judge did not err in failing to edit the references to
    dreams, flashbacks, recollections, and images in the police interviews of the
    appellant. Nor am I persuaded that the jury instructions about the use of this
    evidence reflect an error.

[132]

Prior to jury selection, the Crown asked the trial judge to
    determine the admissibility of what the appellant said to various police
    officers on six different occasions on the day of his arrest. The trial judge
    conducted a
voir dire
. At its conclusion, the judge was satisfied that
    anything said by the appellant on any of those six separate occasions was
    voluntary, thus admissible in evidence as part of the Crowns case-in-chief and
    available for impeachment purposes should the appellant testify and say
    something different than what he had told police. So far as I can determine,
    defence counsel did not seek exclusion of this otherwise admissible evidence on
    the basis that its prejudicial effect exceeded its probative value.

[133]

Defence counsel then sought excision of references to the images the
    appellant claimed to have experienced. The argument advanced was grounded on
    lack of relevance:

i.

the lack of any basis upon which the jury could
    conclude that the images were recollections or memories of events rather than
    dreams; and

ii.

even if the images were recollections or
    memories, the absence of any detail about harming the deceased deprived them of
    any probative value.

The appellant also contended that to
    use the appellants failure to provide details of the contents of the images
    violated his right to silence.

[134]

Editing otherwise admissible evidence involves the exercise of
    discretion. As an exercise of discretion, it falls to be decided in the unique
    circumstances of the case in which it arises. Absent an error of law or
    principle, a material misapprehension of the evidence, or a decision that is
    plainly unreasonable, the trial judges conclusion is entitled to significant
    deference in this court. No error has been demonstrated.

[135]

In this case, the appellant used various terms to describe what he
    told police about the circumstances surrounding his involvement with the
    deceased contemporaneous with his death. As the trier of fact, the jury was not
    bound by how the appellant chose to characterize the events he described. The
    jury was entitled to draw their own inferences from the various statements
    taken as a whole in the context of the other evidence adduced at trial. The
    appellants descriptors did not pre-empt the jurys authority.

[136]

Recasting the argument as an error in settling the balance between
    probative value and prejudicial effect does not assist the appellant. This too
    involves an exercise of case-specific judicial discretion which is subject to
    deference in this court. The language of images, dreams, flashbacks, and
    recollections is not itself inherently prejudicial or apt to mislead a 21st
    century Canadian jury who can be presumed to know the difference among the
    terms and between fantasy and reality. This is not the same as the prejudice
    apt to arise when a symmetry exists between the words used in some forms of
    artistic expression, such as a poem or a song, and the circumstances of the
    offence with which an appellant is charged.

[137]

Nor do the jury instructions reflect error.

[138]

The trial judge made it clear to the jury that unless they found
    what the appellant said about the circumstances surrounding the death of the
    deceased were his actual recollections, they could
not
use what the
    appellant said as evidence in deciding whether the Crown had proven beyond a
    reasonable doubt that he killed the deceased. If the jury concluded that what
    the appellant said were merely dreams, they were irrelevant and had to be put
    aside in deciding whether the appellant killed the deceased.

[139]

To ensure that the jury attached no significance to the failure to
    provide any specifics of events surrounding the death of the deceased, the
    trial judge explained to the jury that:

i.

the appellant had a constitutional right to
    decline to answer questions seeking details and not to provide details;

ii.

the exercise of that right cannot support an
    adverse inference against the appellant; and

iii.

the failure of the appellant to provide details
    was of no significance to the jurys decision.

[140]

These grounds of appeal fail.

Ground #5: Unreasonable Verdict

[141]

The final ground of appeal alleges that the jurys verdict was
    unreasonable and not supported by the evidence adduced at trial. No further
    reference to the evidence is necessary in order to evaluate the merits of this
    claim. A brief summary of the positions of counsel will provide an adequate
    framework for the discussion that follows.

The Arguments on Appeal

[142]

The appellant characterizes the case for the Crown at trial as
    composed entirely of circumstantial evidence. This is so because the
    appellants statements about dreams and flashbacks during the police interviews
    were not admissible as admissions of guilt. They constituted part of the
    narrative of relevant events, but evidence admitted as narrative does not
    establish the truth of what is said. It follows that, in assessing whether the
    verdict rendered at trial was unreasonable or unsupported by the evidence, the
    issue to be resolved here is whether the evidence, as a whole, was such that
    the jury, acting judicially, could reasonably be satisfied that the appellants
    guilt was the only reasonable inference arising from the whole of the evidence.

[143]

The appellant contends that the evidence adduced at trial cannot
    meet the standard required of it to resist an allegation of unreasonableness. The
    Crown relied on evidence of opportunity, motive, and after-the-fact conduct to
    prove the appellants guilt. The appellant was the last person seen with the
    deceased when the deceased was last seen alive. On its own, this does not
    establish that the appellant killed the deceased. The motive alleged was the
    possibility of animus arising out of the deceaseds allegations about his drugs
    being stolen. But this was a constant refrain from the deceased when he
    couldnt immediately find where he had hidden his drugs in his apartment. Nor
    was it unique to the appellant. And the evidence of the appellants after-the-fact
    conduct  taking steps to distance himself from the unlawful killing of the
    deceased  was consistent with what would be expected of a drug addict with a
    previous criminal record.

[144]

However, the appellant continues, the balance of the evidence must
    also be included in the analysis. The deceased was a drug trafficker whose
    trade was conducted in his apartment. Customers attended at all hours of the
    day and night. The deceased indicated that he was expecting someone, a female, to
    arrive later. And he wanted the appellant to remain in case his own supplier
    returned. The bloodied footwear impression was small, inconsistent with the
    appellants shoe size, and not made by the shoes the appellant voluntarily surrendered
    to police on arrest. The appellants DNA was not found under the nails of the
    deceased, despite evidence that a violent struggle preceded the deceaseds
    death. And the single bloodstain on the appellants sleeve was consistent with
    his failed attempt at CPR. The totality of the evidence gave rise to inferences
    other than guilt. The verdict was unreasonable.

[145]

The respondent resists the claim of unreasonableness in the jurys
    verdict. The totality of the evidence met the standard required of it to
    establish guilt. The assertion of unreasonableness should fail.

[146]

Evidence that an accused was the last person seen with the deceased
    when the deceased was last seen alive varies in its cogency. Admittedly, on its
    own, evidence that an accused was the last person seen with the deceased when
    the deceased was last seen alive would fall short of proving that the accused
    caused the deceaseds death. But that is not this case. Here, there is much
    more. The deceased was killed in the very place where they were seen together.
    A significant struggle preceded the deceaseds death, something that the
    appellant was unlikely to sleep through. The deceased, a cautious man in his
    drug dealings, was unlikely to have admitted anyone he didnt know or trust. No
    signs of forced entry were visible apart from those taken when the deceaseds
    body was discovered.

[147]

In addition to the evidence of near exclusive opportunity, the
    appellants after-the-fact conduct enhanced the probative value of the evidence
    of the circumstances in which the appellant and deceased were last seen
    together. The appellant did not call 911. He made, at best, a minimal effort at
    CPR. He locked the door to delay discovery of the body and disposed of the key.
    And it was open to the jury to conclude that he either consumed or stole the
    deceaseds drug cache and took his money. The finding of guilt was reasonable
    and supported by the evidence.

The Governing Principles

[148]

No serious dispute arises about the principles we are to apply in
    our assessment and determination of this ground of appeal. Needless to say, the
    controversy between the parties has to do with the result the application of
    those principles compels.

[149]

Section 686(1)(a)(i) of the
Criminal Code
, R.S.C., 1985, c.
    C-46, permits a court of appeal to allow an appeal from conviction if the court
    is satisfied that the verdict is unreasonable or cannot be supported by the
    evidence received at trial. The question, as framed by the enabling provision, is
    whether the verdict is unreasonable on the evidence admitted at trial, not
    whether it is unjustified on that same evidence:
R. v. Corbett
, [1975]
    2 S.C.R. 275, at p. 282. See also,
R. v. Yebes
, [1987] 2 S.C.R. 168,
    at pp. 185-186.

[150]

The test an appellate court applies in its response to a claim that
    a trial verdict is unreasonable or unsupported by the evidence is whether the
    verdict is one that a properly instructed jury, acting judicially, could
    reasonably have rendered. The inquiry requires the reviewing court to determine
    what verdicts a reasonable jury, properly instructed, could judicially have
    rendered by reviewing, analyzing, and, within the limits of appellate
    disadvantage, weighing the evidence. This involves not only objective, but also
    subjective assessments:
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R.
    381, at para. 36.

[151]

A verdict is unreasonable or unsupportable on the evidence if the
    verdict is one that a properly instructed jury, acting judicially, could not
    reasonably have rendered:
R. v. H.(W.)
, 2013 SCC 22, [2013] 2 S.C.R.
    180, at para. 26, citing
Yebes
, at p. 185 and
Biniaris
, at
    para. 36.

[152]

In a case like this where the evidence received at trial is wholly
    or substantially circumstantial, the question to be answered when the verdict
    is challenged as unreasonable is whether the trier of fact, acting judicially,
could
reasonably be satisfied that the appellants guilt was the only reasonable
    inference available on the totality of the evidence:
R. v. Villaroman
,
    2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, citing
Yebes
, at
    p. 186. The circumstantial evidence does not have to totally exclude other
    conceivable inferences. Likewise, a verdict is not unreasonable simply
    because the alternatives did not cause the jury to have a reasonable doubt
    about the appellants guilt. For it is fundamentally for the trier of fact to
    decide whether any proposed alternative way of looking at the case was
    reasonable enough to raise a doubt about the accuseds guilt:
Villaroman
,
    at para. 56.

[153]

To succeed on a claim of unreasonable verdict under s. 686(1)(a)(i)
    of the
Criminal Code
, an appellant must persuade the appellate court
    that no properly instructed jury, acting judicially, could reasonably have
    found the appellants guilt established:
R. v. Arias-Jackson
, 2007 SCC
    52, [2007] 3 S.C.R. 514, at para. 2.

[154]

Two further points require brief mention before turning to the
    application of the controlling principles to the evidence adduced at trial.

[155]

The first has to do with the value of evidence that an accused was
    the last person seen with the deceased when the deceased was last seen alive in
    proving the accuseds guilt for killing the deceased.

[156]

Without more, evidence that an accused was the last person seen with
    the deceased when the deceased was last seen alive, is not sufficient to
    establish the accuseds guilt on a charge of murdering the deceased:
R. v.
    Stevens
(1984), 11 C.C.C. (3d) 518 (Ont. C.A.), at p. 534, leave to appeal
    refused, 15 W.C.B. 157. However, the probative value of this evidence varies
    with the circumstances in which the accused and deceased were last seen
    together. As for example, in a case of child murder where the accused and
    deceased child were last seen together in a motor vehicle of the deceased, who
    was a stranger to the child, a short distance from where the body of the child was
    found:
Stevens
, at p. 535. Evidence of the accused after-the-fact
    conduct may also be important in enhancing the cogency of the last living sighting
    evidence:
Stevens
, at p. 533.

[157]

The second has to do with a factor we may consider in assessing the
    merits of the appellants allegations of unreasonableness in the verdict
    rendered. We are entitled to consider the appellants failure to testify in the
    face of the circumstantial case arrayed against him, thus his failure to
    provide the basis for an alternative inference inconsistent with guilt:
R.
    v. George-Nurse
, 2018 ONCA 515, 362 C.C.C. (3d) 76, at para. 33, affd
    2019 SCC 12.

The Principles Applied

[158]

This ground of appeal lacks persuasive force.

[159]

In my assessment of this ground of appeal, I acknowledge that the
    case for the Crown at trial was entirely circumstantial. As a result, the
    evidence, considered as a whole, was required to satisfy the jury that the
    appellants guilt was the only reasonable inference available on that evidence.
    The evidence did not have to exclude
all
inferences, as for example,
    all conceivable inferences, only reasonable inferences based on the evidence or
    lack of evidence inconsistent with guilt. And, it was fundamentally for the
    trier of fact to decide whether any alternative inference was reasonable enough
    to raise a reasonable doubt about the appellants guilt.

[160]

In this case, the evidence adduced permitted the jury to make
    several findings of fact.

[161]

The appellant was the last person seen with the deceased when the
    deceased was last seen alive at about 2:00 a.m. on February 1, 2015. At that
    time, the appellant and deceased were alone in the deceaseds apartment. The
    deceased was killed in that same apartment, apparently the result of a concerted
    and violent attack. The appellant was there at the time. The deceased was a
    drug dealer. His place of business was his apartment. He kept the door locked.
    He admitted only those he knew and trusted. The appellant was the only person in
    the apartment with the deceaseds body. There were no signs of forced entry.
    The appellant had the deceaseds blood on the sleeve of his jacket. For all
    practical purposes, the appellants opportunity to kill the deceased was
    exclusive.

[162]

In addition, evidence of the appellants after-the-fact conduct
    enhanced the probative value of the evidence of near exclusive opportunity. The
    appellant did not call 911. His attempts at CPR were minimal. He locked the
    door to the apartment and disposed of the key, delaying discovery of the body
    of the deceased and putting some distance between his presence and the
    discovery of the deceaseds death. He gave inconsistent accounts about whether
    the apartment door was locked or unlocked when he left. And he had been involved
    in a dispute with the deceased about missing drugs earlier that same evening or
    morning. Some aspects of his police interviews could be considered inculpatory
    admissions.

[163]

The evidence I have just marshalled, as a whole, afforded a basis on
    which the jury, acting judicially, could reasonably be satisfied that the
    appellants guilt was the only reasonable inference available on that evidence.
    The evidence about the footwear impression does not mandate a contrary
    conclusion. After all, the evidence did not reveal whether the print was
    partial or complete and the similarity between the footwear and neck impression
    was, at best, tenuous. And whether the appellant was truthful about the shoes
    he surrendered depended on his credibility in a case in which he did not
    testify.

Disposition

[164]

For these reasons, I would dismiss the appeal.

Released: January 20, 2022 D.W.

David
    Watt J.A.

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

I
    agree. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Zhan (Re), 2022 ONCA 42

DATE: 20220119

DOCKET: C69200

Fairburn A.C.J.O., Feldman and
    Harvison Young JJ.A.

IN THE MATTER OF:
Tiun Hui (Jeff) Zhan

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Michael Dineen, for the respondent

Heard and delivered orally:
    December 3, 2021

On appeal against the disposition of the
    Ontario Review Board, dated February 4, 2021.

REASONS
    FOR DECISION

[1]

In January 2021, the ORB concluded that a
    conditional discharge order was not appropriate for the appellant at this time.
    Although there was no dispute as to his risk to safety, the appellant submits
    that this order was incorrect and unreasonable because his risk factors could
    be safely managed under the rubric of a properly crafted conditional discharge.
    We do not agree and would dismiss the appeal for the following reasons.

[2]

In 2010, while on probation, the appellant attacked
    and fatally stabbed a stranger on the street in Glasgow, Scotland, responding
    to voices telling him the man was a zombie who would kill him. He was
    subsequently diagnosed with schizophrenia and treated with anti-psychotic
    medication. He was detained in a hospital in Scotland until February 2019, when
    he was repatriated to Canada and came under the jurisdiction of the Ontario
    Review Board.

[3]

In January 2021, in accepting the
    hospitals recommendation, the ORB found that, although the issue of
    significant threat was not contested at the hearing, there was ample evidence
    to support such a finding. The appellant suffered from a major mental illness and
    had significant history of failing to comply with treatment and failing to
    comply with supervisory orders prior to confinement. The Board noted that
    although the appellant had a very positive reporting year, he had only been
    discharged into the community a few days before the hearing and after many
    years of confinement, and it was unknown how he would react to the new
    stressors of life in the community.

[4]

The Board specifically considered and
    rejected the appellants submission that a conditional discharge was the least
    onerous and restrictive disposition available. It thoroughly considered the
    evidence before it. The Board stressed that the appellant had a tendency to
    minimize negatives and overemphasize positives, which supported the view that
    he might not fully grasp the impact of negative stressors as he adjusted to
    life in the community, which could result in decompensation.

[5]

Put another way, his treatment team was
    concerned that he could be slow to detect or acknowledge any problems arising
    from the additional stresses of his new independence. Given the demonstrated
    risk that the appellant could pose to the public if his symptoms returned and
    his documented history of minimizing negatives and overemphasizing positives,
    the ability to return him quickly to the hospital during the period of
    adjustment was important. In our view, the Boards reasons met the
    reasonableness standard. We do not agree with the appellant that the Board
    discounted or did not meaningfully consider or analyze much of the evidence that
    is favourable to him. Both the treatment team and the Board seriously
    considered this.

[6]

We do not agree that the concerns expressed by
    the hospital and accepted by the Board were speculative. They were well
    documented in the record. The Board accepted and reiterated the significant and
    enormous progress the appellant has made. In the context of the risks to public
    safety, however, it was within the range of reasonable outcomes to continue the
    detention order to offer a window of opportunity to test him in the community.
    The fact that he had been living in the community for only a few days at the
    time of his Board hearing was critical to its determination. The Boards
    refusal to order a conditional discharge in January 2021 was reasonable and the
    appeal is therefore dismissed.

Fairburn
    A.C.J.O.

K.
    Feldman J.A.

A.
    Harvison Young 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. G.F., 2022 ONCA 44

DATE: 20220121

DOCKET: C65125 & C65126

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.F. and R.B.

Appellants

Richard Posner and Alexander Ostroff, for the appellants

Philippe G. Cowle, for the respondent

Heard: in writing

On appeal from the sentences imposed by Justice Edward J.
    Koke of the Superior Court of Justice on September 6, 2017, with reasons
    reported at 2017 ONSC 5203.

REASONS FOR DECISION

[1]

On June 9, 2016, the appellants were convicted of sexual assault of the
    complainant, C.R. On September 6, 2017, G.F. was sentenced to three and one‑half
    years incarceration and R.B. was sentenced to three years incarceration. On
    June 14, 2019, this court allowed their appeal against conviction and ordered a
    new trial.
[1]
As a result, this court did not address the appellants sentence appeal. The
    Crown then successfully sought leave to appeal that decision to the Supreme
    Court of Canada. On May 14, 2021, that appeal was allowed, and the appellants
    convictions were restored.
[2]
Consequently, this court is now called upon to hear and decide the sentence
    appeals. For reasons that need not be detailed, the parties written
    submissions, that were filed a few months ago, were only recently received by
    the panel.

[2]

The facts underlying the convictions are set out in detail in this
    courts earlier reasons and in the reasons of the Supreme Court of Canada. They
    do not need to be repeated in detail. The appellants were convicted of engaging
    in the sexual assault of a 16-year-old complainant at a campground. The
    complainant was there with her parents and her younger brother. Her parents and
    the appellants were friends. The complainant had been provided with alcohol by
    G.F. and was intoxicated at the time of the sexual assault.

[3]

In terms of personal background, G.F. was born in the United Kingdom and
    immigrated to Canada when he was six years old. He never sought Canadian
    citizenship. He was 42 years old at the time of the offence. He had no criminal
    record. R.B., upon her graduation from high school, entered the workforce and
    always maintained gainful employment. She was 38 years old at the time of the
    offence. She also had no criminal record.

[4]

In his reasons for sentence, the trial judge noted that both counsel
    agreed that deterrence and denunciation are primary objectives in sentencing
    for offences such as those committed by the appellants. In terms of aggravating
    circumstances, the trial judge noted:

·

the complainant was only 16 years old, and both of the appellants
    were more than twice her age;

·

the complainant was under the influence of alcohol and most of
    the alcohol she drank was given to her by G.F. without the consent or approval
    of her parents;

·

the sexual activity was a violation of trust. The complainants
    parents trusted that their 16-year-old daughter would be treated with respect
    and consideration when they agreed to let her sleep in the trailer with the two
    appellants;

·

the sexual activity took place without any protection. This
    naturally gave rise to concerns about STIs and pregnancy; and

·

the extent of the sexual activity was not low-end conduct. The
    appellants manipulated the complainant into several physical positions, over
    the course of some time, and the complainant was completely objectified and
    degraded as a sexual object.

[5]

In terms of mitigating factors, the trial judge noted that neither of
    the appellants had a criminal record; they did not have any history of
    inappropriate conduct with young persons; and they were both hardworking
    individuals. The trial judge was concerned, however, by the fact that neither
    of the appellants had accepted any responsibility for their conduct.

[6]

The Crown had sought a four year custodial sentence for G.F., and a
    three year custodial sentence for R.B. The appellants both sought two year
    suspended sentences, with three years probation. As earlier noted, the trial
    judge imposed a sentence of three and one-half years on G.F. and three years on
    R.B.

[7]

The appellants raise a number of complaints with respect to the trial
    judges approach to the sentences. These include:

·

the trial judge used his own personal objection to the type of
    conduct involved, that is, group sexual activity along with sexual activity
    involving persons of very different ages, to increase the sentence;

·

the trial judges use of the appellants failure to take
    responsibility penalized them for maintaining their innocence;

·

the trial judge erred in finding that there was a breach of trust
    involved in this case;

·

the trial judge did not adequately distinguish between the appellants
    relative culpability;

·

the trial judge erred by failing to consider collateral
    immigration consequences for G.F.;

·

the trial judge erred by failing to consider collateral
    consequences for R.B. involving her history of mental health issues; and

·

the sentences were outside the range for similarly situated
    offenders.

[8]

We do not accept any of these complaints. In particular, while we accept
    that some of the language used by the trial judge in describing the sexual
    activity was inappropriate and unnecessary, we do not view it as having
    impacted the ultimate sentences imposed. We believe that it was open to the
    trial judge to find that there was an element of a breach of trust in this case
    given the particular circumstances. In that regard, we note that trust
    relationships can arise in varied circumstances and they fall along a spectrum:
R. v. Friesen
, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 125. The
    immigration consequences were not ones that could have driven the appropriate
    sentence down to the point where they would have had any impact. Immigration
    consequences cannot be used to justify the imposition of inappropriate and
    artificial sentences:
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739, at
    para. 15.

[9]

In advancing their argument about similarly situated offenders, the
    appellants have relied on case law that does not reflect facts that are similar
    to the ones here. The Crown points to a collection of different cases more
    closely resembling the facts of this case, which justify a sentence in the
    range of three to four years. It is this reality that often makes reference to
    other cases of limited use in determining an appropriate sentence. What is
    important is that the sentences imposed in this case are clearly far from being
    demonstrably unfit.

[10]

An
    appellate court may only interfere with a sentence if the sentencing judge
    erred in principle, failed to consider a relevant factor or erroneously considered
    an aggravating or mitigating factor, and the error had an impact on the
    sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    44. The appellants have failed to show that any of these errors occurred in
    this case.

[11]

In
    our view, the trial judge imposed sentences that were proportionate to the
    activities underlying the offences committed. His differentiation between the
    two appellants in terms of sentencing was reasonable and is entitled to deference.

[12]

While
    we would grant leave to appeal the sentences, the appeals are dismissed.

David Watt J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.

[1]

R. v. G.F.
, 2019 ONCA 493, 146 O.R.
    (3d) 289.

[2]

R. v. G.F.
, 2021 SCC 20, 404 C.C.C.
    (3d) 1.