COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ching, 2019 ONCA 619

DATE: 20190722

DOCKET: C63031

Strathy C.J.O., Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Willy Palmes Ching

Appellant

Howard L. Krongold and Philippe Michaud-Simard, for the
    appellant

Howard Leibovich, for the respondent

Heard: March 6, 2019

On appeal from the conviction entered by Justice Leonard
    Ricchetti of the Superior Court of Justice, sitting with a jury, on October 3,
    2013.

Rouleau J.A.:

OVERVIEW

[1]

The appellant planned and deliberated the murder of his ex-wife Maria
    Ching. In the course of carrying out the plan to murder Ms. Ching, Ernesto
    Agsaulio, Ms. Chings uncle, intervened to prevent the appellants entry into
    the house where Ms. Ching was staying. A struggle ensued in the course of which
    the appellant mortally wounded Mr. Agsaulio.

[2]

Mr. Agsaulios intervention prevented the appellant from reaching Ms.
    Ching. The appellant alleges several errors in the trial judges instructions
    to the jury. Central among these is the instruction on first degree murder wherein
    the trial judge told the jury that if it concluded that the appellant had
    planned and deliberated the murder of Ms. Ching, this finding could operate to
    raise the murder of Mr. Agsaulio from second to first degree murder provided
    that Mr. Agsaulios murder was committed in the course of carrying out his plan
    to murder Ms. Ching.

[3]

For the reasons that follow, I would dismiss the appeal but substitute a
    conviction for second degree murder in lieu of the conviction entered for first
    degree murder.

FACTS

[4]

The appellant had a long history of mental illness and attempted
    suicide. In 2009, his marriage with Ms. Ching fell apart, and on September 2,
    2009, Ms. Ching moved out of their shared home and went to live with her uncle
    Mr. Agsaulio and his family. The appellant did not accept that the marriage may
    have been over and repeatedly tried to speak to Ms. Ching.

[5]

In the years leading up to the murder, the appellant had been on
    medication for depression. On October 4, his medication was changed and he was
    prescribed a new drug. He was also prescribed sleeping pills. Three days later,
    the appellant attempted suicide by an overdose of sleeping pills and was
    hospitalized for three days.

[6]

On October 24, the appellant tried to access Ms. Chings email account
    but could not get past the security question. He was upset as he suspected that
    she was having an affair. Later that day, he went to a Canadian Tire store and
    bought a knife and a hatchet.

[7]

The following day, he rented a car and drove to Mr. Agsaulios house to
    see Ms. Ching. He parked a block away. The appellants daughters, having
    realized the appellant was going to see Ms. Ching, called their mother to warn
    her. Ms. Ching then called the appellant, who was sitting in the car nearby, and
    told him to go home. He asked her to come outside so they could talk, which she
    refused to do. After she hung up, Ms. Ching told Mr. Agsaulio that the
    appellant was on his way.

[8]

The appellant arrived and rang the doorbell. Mr. Agsaulio opened the
    door but refused to allow the appellant to see Ms. Ching. The appellant and Mr.
    Agsaulio conversed for a few minutes. The appellant then drew the knife and
    hatchet and began hacking and slashing at Mr. Agsaulio. Mr. Agsaulio and his
    son managed to restrain him and, with the help of some neighbours, he was
    subdued.

[9]

The police arrived and the appellant was arrested for assault, as Mr.
    Agsaulio was still alive at that time. The appellant gave his first statement
    to the police on the day of his arrest, saying that he only wanted to talk to
    his wife and that he did not try to kill anyone. He repeatedly stated that the
    judge should give him a death sentence.

[10]

At
    the end of the interview, the police officers informed the appellant that Mr.
    Agsaulio had died from his injuries and that he would be charged with first
    degree murder. The appellant asked to use the washroom. He suddenly ran toward
    the stairwell and attempted to fling himself headfirst over the railing. One of
    the police officers grabbed the appellants waistband and hauled him back.

[11]

On
    the next day, the appellant gave a second statement to the police. He said he
    had gone to the house to see his wife and not to hurt anyone. He stated that he
    had brought the weapons in order to threaten to hurt himself, so that Ms. Ching
    would get back together with him. He also stated that he had bought the knife
    and hatchet a long time ago.

ISSUES

[12]

The
    appellant raises three grounds of appeal:

1.

the trial judge
    erred by instructing the jury that the appellant could be guilty of first
    degree murder if he planned and deliberated to kill Ms. Ching and killed Mr.
    Agsaulio during the execution of his plan;

2.

the trial judge
    ought to have given a no probative value instruction concerning the appellants
    attempt to jump over the railing; and

3.

the trial judge
    misdirected the jury on the use of the appellants conflicting statements.

ANALYSIS

(1)

The instruction on first degree murder

[13]

The
    trial judge instructed the jury that it could find the appellant guilty of
    first degree murder, second degree murder, or manslaughter, or that it could
    find that the appellant was not criminally responsible (NCR) on account of
    mental disorder. The appellant only takes issue with the trial judges
    instruction on first degree murder.

[14]

In
    his charge, the trial judge told the jury that, in order to find the appellant
    guilty of first degree murder, it had to be satisfied beyond a reasonable doubt
    of each of the following elements:

1.

the appellant
    committed an unlawful act;

2.

the unlawful act
    caused Mr. Agsaulios death;

3.

the appellant
    had the specific intent required for murder;

4.

the appellant
    had planned and deliberated the murder of Ms. Ching; and

5.

during the
    course of carrying out the plan to murder Ms. Ching, Mr. Agsaulio was killed.

[15]

The
    Crown maintains that the instruction was in accordance with the Supreme Court
    of Canadas direction in
R. v. Droste
, [1984] 1 S.C.R. 208. According
    to its submission,
Droste
established that an accused must have the
    requisite intent for murder and that the murder must be preceded by planning
    and deliberation in order to be guilty of first degree murder. The identity of
    the victim is irrelevant. The wording of the trial judges charge to the jury closely
    tracks the concluding paragraphs of the courts reasons in
Droste
and,
    in the Crowns view, is proper.

[16]

The
    appellant submits that, in the absence of a finding that Mr. Agsaulios murder
    itself was planned and deliberated, he could not be found guilty of the first
    degree murder of Mr. Agsaulio.

[17]

For
    the reasons that follow, I agree with the appellants submission. A finding
    that the appellant had planned and deliberated the murder of Ms. Ching and that
    Mr. Agsaulios murder was committed while carrying out that plan does not
    satisfy the statutory requirement for first degree murder. As I will explain,
    the trial judges reliance on
Droste
for the wording of his charge to
    the jury was misplaced.

[18]

Murder
    is defined in s. 229 of the
Criminal Code
, R.S.C. 1985, c. C-46
. Section 229(a) provides the
    following:

Culpable homicide is murder

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

(i) means to cause his death, or

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

[19]

Section
    229(b) provides that a culpable homicide is murder where the intent required in
    s. 229(a) is present but, by accident or mistake, a person other than the
    intended victim is killed. For the application of this provision, the fact that
    the ultimate victim was never intended to be killed is irrelevant. The section
    is commonly referred to as the transferred intent provision.

[20]

Section
    231 of the
Criminal Code
sets out the requirements for a murder to
    constitute first degree murder. As explained in
R. v. Farrant
, [1983]
    1 S.C.R. 124, at p. 140, this provision does not create a separate substantive
    offence, but classifies murder into two categories: first degree murder and
    second degree murder. The subsection that is relevant to the present case is s.
    231(2), which provides the following:

Murder is first
    degree murder when
it
is
    planned and deliberate. [Emphasis added.]

[21]

In my view, the text of s. 231(2) is quite clear. It is the murder that
    was planned and deliberate that can be raised to first degree murder. In this
    case, the murder referred to in the section, the it, is the murder of Mr.
    Agsaulio. For his murder to constitute first degree murder, it must have been
    planned and deliberate.

[22]

The charge to the jury did not ask the jurors to consider whether Mr.
    Agsaulios murder had been planned and deliberate. The charge only asked them
    to consider whether Ms. Chings murder had been planned and deliberate and
    whether Mr. Agsaulio was killed in the course of the execution of that plan.
    The fact that Ms. Chings murder was planned and deliberate, however, does not satisfy
    the requirement of s. 231(2). Her murder was not carried out and cannot qualify
    as the it in s. 231(2).

[23]

The circumstances in this case are quite different from the ones in
Droste
. In
Droste
, the transferred intent
    provision of the
Criminal Code
, s. 229(b), was used
    as the basis for the finding of first degree murder. In that case, the
    appellants children were killed by accident or mistake as he was trying to
    kill his spouse. The court reasoned that, since the intent needed to make the
    culpable homicide of his children a murder was the transferred intent to kill
    his wife, the same reasoning should apply to the planning and deliberation.
    Since the appellant had planned and deliberated the murder of his wife, the
    murder could be raised to first degree murder. The
mens rea
element needed for first degree murder that attached to the intended
    victim effectively transferred to the unintended ones. In the present case, the
    transferred intent provision was not argued or applied.

[24]

I do not, as the Crown suggests, accept that a proper reading of
Droste

confirms the broad proposition that the identity of the victim is
    irrelevant to classify the murder as first degree and all that is required is that
    the murder takes place in the course of carrying out the original plan. The reasons
    in
Droste

must be read while keeping in mind that
    the court was dealing with an accused who was found guilty of murder pursuant
    to s. 229(b), the transferred intent provision.

[25]

The confusion flows from a reading, out of context, of the final
    paragraph of the reasons of Dickson J. (as he then was) in
Droste
. In that paragraph, he states:

In the result,
    whether one approaches the question on an analysis of the relationship of [s.
    231(2)] to the substantive offence in [s. 229(b)], or on the basis of the
    underlying policy
rationale
of [s. 231(2)], or,
    even if it were relevant, on the basis of transferred intent, one arrives at
    precisely the same conclusion: planning and deliberation with relation to the
    killing of a specific person makes the offence first degree murder when in the
    course of carrying out the plan the accused in fact kills someone else: at p.
    223.

[26]

I acknowledge that, read literally and denuded of its context, the last
    part of the paragraph suggests that if an accused commits the murder of person
    B at any point in the course of carrying out the planned and deliberate murder
    of Person A, the murder of person B would constitute first degree murder. I
    might conclude that it would not matter that person A was not killed nor that
    the accused never even reached the point where a physical attack on person A
    occurred. Considered in light of the reasons as a whole, however, it is
    apparent to me that the phrase when in the course of carrying out the plan should
    be read as when in the course of carrying out the plan, he caused the death of
    the victim by accident or mistake. This reading is consistent with Martin J.A.s
    reasons in the court below. In
R. v.

Droste

(1981), 34 O.R. (2d) 588 (C.A.), at p. 592, Martin J.A. explained that
    the trial judge properly instructed the jury that, in order to find the accused
    guilty of first degree murder, it had to be satisfied beyond a reasonable doubt
    that,

the appellants
    intention to kill his wife was planned and deliberate and that in the course of
    carrying out that intention he caused the death of the children by accident or
    mistake.

[27]

The Court of Appeal and the Supreme Court of Canada were both saying,
    in
Droste
,
that where the transferred intent provision provides the basis of the
    murder conviction, the transferred intent should logically operate to supply
    the planned and deliberate requirement of s. 231(2). In other words, where person
    B is killed while the accused was carrying out the planned and deliberate killing
    of person A such that the transferred intent provision in s. 229(b) applies to
    make the killing a murder, the plan was, in effect, executed and it is only by
    accident or mistake that someone else died. As the planned and deliberate
    murder was executed, it attracts the higher level of moral culpability required
    for first degree murder.

[28]

As explained by Dickson J., the
mens
    rea
required for murder under s. 229(b) is intending
    the death or grievous bodily harm likely to cause death, to person A:
Droste
, at p. 221. The
actus reus
is causing
    the death of person B. When applying s. 231(2) to determine whether the murder
    is first or second degree, the it in s. 231(2) is the s. 229(b) murder
    and it is the
mens rea
for
    that offence that must be considered. This means that the element of planning
    and deliberation required by s. 231(2) to elevate the murder to first degree
    must be related to the specific
mens rea
of the applicable section:
Droste
, at p. 222. In other words, the
mens
    rea
on which the murder is grounded
    must be the same
mens rea
that elevates the murder to first degree pursuant to s. 231(2). The
    accused must have executed the murder he planned and deliberated, and it is
    only by accident or mistake that an unintended person was the victim.

[29]

In
Droste
, the intent to kill Ms. Droste provided the
mens
    rea
necessary under s. 229(b) to make
    the killing of the children a murder. That
mens rea
, the intent to kill Ms. Droste, was therefore the
    killing that, pursuant to s. 231(2), had to be planned and deliberate in order
    to raise the childrens murder to first degree. In the present case, the jury
    found that the appellant intended to kill Mr. Agsaulio. This was the
mens
    rea
supporting the appellants
    conviction for murder pursuant to s. 229(a). The planning and deliberation,
    however, was in respect of a different intended killing, the killing of Ms.
    Ching. The plan to kill Ms. Ching never reached the point where the appellant
    executed the killing. Ms. Ching remained on the second floor of the house well
    beyond the reach of the appellant. One will never know whether, had the
    appellant been allowed into the house, he would have carried out his plan.

[30]

Contrary to the Crowns
    submission, there is a sound policy reason for concluding that an accused who
    intentionally kills person B when in the course of carrying out the planned and
    deliberate murder of person A will be guilty of second degree murder, whereas
    an accused who accidentally or mistakenly kills person B when person A was the
    target will be convicted of first degree murder. This result reflects the fact
    that in the first case the actual killing may well have been impulsive while in
    the second, it was the result of a planned and deliberate act.

[31]

This interpretation
    is supported by existing case law. For example, in
R. c. Belzil
, [1989] R.J.Q. 1117 (C.A.), the Quebec Court of
    Appeal substituted convictions for second degree murder on an appeal from
    convictions for first degree murder. In that case, three co-accuseds planned to
    kill Mr. Désormiers. As one of the co-accused, Mr. Dubeau, was carrying out the
    planned killing of Mr. Désormiers, a second co-accused, Mr. Lavoie, killed
    another person, Mr. Bourassa, who tried to intervene. On appeal, the court
    concluded that the killing of Mr. Désormiers was first degree murder as it had
    been planned and deliberate. The murder of Mr. Bourassa, however, constituted second
    rather than first degree murder. The court found that the transferred intent
    situation that existed in
Droste
could not be used. It was Mr. Bourassas
    intervention and not the plan to kill Désormiers that led to Mr. Bourassas
    death. His death was never planned by the co-accused. As the court explained:

[M]ême si les
    accusés étaient prêts à tuer dautres personnes si nécessaire, le seul meurtre
    planifié était celui de Désor
miers. Ce nest aucunement
    lacte planifié visant à tuer Désormiers qui causa la mort de Bourassa. La mort
    de ce dernier découle dun acte totalement différent, dun auteur différent: at
    p. 1129.

[32]

Moreover, this courts decision in
R.
    v. Dipchand
, [1991] O.J. No. 1775 (C.A.), leave to appeal abandoned, [1991]
    S.C.C.A. No. 479, has some similarity to the present case. In
Dipchand
, the trial judge directed the verdict of
acquittal
    from the charge of first degree murder of the accuseds sister-in-law, Ms. Ramdai.
    The Crown appeal was allowed. On appeal, the court found that the record
    allowed for two routes to first degree murder of Ms. Ramdai. First, there was
    evidence upon which a jury properly instructed could in fact find that the
    respondent had planned and deliberated to kill Ms. Ramdai. It is, however, the second
    route to reaching a verdict of first degree murder that is of interest. The court
    determined that it was open to the jury to find that the accused had planned
    and deliberated to kill his wife and that the plan also included the plan to
    kill any person who tried to stop him from carrying out the plan to kill his
    wife. Implicit in the decision, therefore, is that the jury would have to have been
    instructed in that regard. The jury would be told that, in order to find the
    accused guilty of first degree murder, it would have to find that the plan was
    not simply a plan to kill his wife, but also that the accused planned and
    deliberated the killing of any person who got in his way. No such instruction
    was given in the present case.

[33]

In
    its submissions, the Crown relied on two cases in support of its interpretation
    of
Droste
:
R. v.
    Nygaard
, [1989] 2 S.C.R. 1074 and
R. v. Kluke
(1987), 22 O.A.C.
    107 (C.A.). The Crown maintains that these cases confirm that where a murder is
    planned and deliberated, the identity of the victim is irrelevant.

[34]

The
    Crown directed us to p. 1087 of
Nygaard
, where the court stated the
    following:

In
Droste v. The Queen
,
    the issue was whether the planning and deliberation to kill A which resulted in
    the killing of B should be classified as murder in the first degree. It was
    found that the requirement of planning and deliberation was a requirement that
    related to the intention to take a human life and not to the identity of the
    victim. On the facts of that case there could be no doubt that Droste meant to
    cause death to a human being and planned and deliberated the death of a human
    being. In the result, Dickson J. (as he then was) writing on behalf of the
    Court concluded that [s. 231(2)] could operate in conjunction with [s. 229(b)]
    to sustain a first degree murder conviction. However, that decision centred on
    requirements of a section of the
Code
that are different from [s. 229(a)(ii)].
    The
Droste
decision cannot be determinative of the issue in the case
    at bar.

[35]

The
    first portion of the passage from
Nygaard
could support the Crowns position.
    When the paragraph is read as a whole, however, it is clear that the court
    recognized that the application of
Droste
was restricted to murders
    based on s. 229(b).

[36]

The
    Crown also argued that
Kluke
stands for the proposition that, provided there is a planned and deliberate
    killing, the identity of the victim does not matter. It relied, in particular, on
    para. 26 of
Kluke
where the court explained the following:

If the appellant had the requisite
    intent under s. [229(a)], the killing would constitute murder regardless of his
    previous knowledge of the ultimate identity of his victim. If that intent was
    preceded by planning and deliberation as defined in s. [231(2)], then the
    identity of the victim was irrelevant for the purpose of classifying the
    murder.

[37]

This
    statement must also be read in context. The court in
Kluke
was
    concerned that the trial judge had instructed the jury on s. 229(b) murder in
    the absence of any evidence that the victim was killed by accident or mistake.
    The Crown sought to support the propriety of that aspect of the charge on the
    basis that if the appellant planned in a deliberate way to kill any homosexual
    who would approach him in the park, then the identity of the person killed was
    irrelevant: at para 24. In other words, the planning and deliberation being
    discussed in the passage relied on by the Crown was a plan to kill
any
homosexual in the park. The target, the planned
    victims, were, in that case, a class of persons. The murderer need not therefore
    know the specific identity of the actual victim, only that the victim was in
    the class he set out to kill. This approach bears some similarity to the
    approach outline above in
Dipchand
, where the appellant would need to
    plan the killing of any person who comes in his way.

[38]

Based
    on my reading of s. 231(2) and the case law, therefore, I have concluded that
    the trial judges charge on the requirement for first degree murder was in
    error.

(2)

The instruction on the suicide attempt

[39]

The
    trial judge instructed the jury that the appellants post-offence conduct may
    or may not help it decide whether he committed the alleged offence. The trial
    judge then referred to the evidence that, after being told that Mr. Agsaulio
    died, the appellant ran from the police officers, went to the nearby railing,
    and started to go over it. The trial judge instructed the jury that the first
    step it should take was to determine whether the appellant went to the railing
    to commit suicide or to try to escape. The second step was to decide whether
    the appellant went to the railing because he was conscious of having committed
    the offence. The trial judge then said the following:

If you do not or cannot find that Mr.
    Ching did go to the railing because he was conscious of having done what is
    alleged against him, you must not use this evidence in deciding or in helping
    you decide that Mr. Ching committed the offence charged. On the other hand, if
    you find that Mr. Ching did go to the railing because he was conscious of
    having done what is alleged against him, you may consider this evidence, this
    post-offence conduct, together with all of the other evidence in reaching your
    verdict.

The trial judge did not give a limiting instruction on
    the use the jury could make of the appellants post-offence conduct.

[40]

The
    appellant argues that his apparent suicide attempt was irrelevant to his degree
    of culpability and the trial judge ought to have given a no probative value
    instruction or another form of limiting instruction. He had acknowledged that
    he killed Mr. Agsaulio unlawfully and it was clear from the evidence that the
    appellant suffered from severe depression. It is in that context that the
    appellant argues that logic and human experience would suggest that the
    appellants suicide attempt was as consistent with his having unlawfully but
    unintentionally killed Mr. Agsaulio as it was with the appellant having
    intentionally killed him. As a result, the appellant submits that the trial
    judge erred in leaving this evidence with the jury without a limiting
    instruction.

[41]

I
    disagree. I acknowledge that an accuseds post-offence conduct can be probative
    of his or her culpability but not necessarily of the level of that culpability.
    As explained by this court in
R. v. Angelis
, 2013 ONCA 70, 296 C.C.C.
    (3d) 143, at para. 53:

[O]rdinarily, trial judges have been obliged to instruct juries
    that post-offence conduct evidence cannot be used to infer that the accused
    committed murder rather than manslaughter.

It is not, however, always necessary for a trial judge
    to tell a jury both the permissible and impermissible uses of after-the-fact
    evidence: see
R. v. Robinson
, 2017 ONCA 645, 352 C.C.C. (3d) 503, at
    para. 63.

[42]

Jury
    instructions must be understood as a whole and viewed in the context of the
    evidence led at trial and the positions advanced by the parties: see
R. v.
    Badgerow
, 2019 ONCA 374, at paras. 17-19. In the circumstances of this
    case, the relevance of the appellants apparent suicide attempt related
    principally to his claim that he was NCR. The appellant relied on the apparent
    suicide attempt as evidence to support his position that he was suffering from
    mental illness, such that he was either NCR or incapable of forming the intent necessary
    for murder. For its part, the Crown pointed to the suicide attempt as evidence
    that the appellant was capable of processing information, was aware of the
    nature and consequences of his actions and thus, criminally responsible for his
    act.

[43]

When
    the charge is read as a whole, the jury would have understood that the Crown
    and defence were both relying on this incident principally to support their
    respective theories regarding the appellants capacity to understand the consequences
    of his actions and his capacity to form the requisite intent for murder.

[44]

Notably,
    in the portion of the charge where the trial judge related to the jury the
    defence position that he was suffering from severe mental illness rendering him
    either NCR or incapable of forming the necessary intent for murder, the trial
    judge specifically referenced the appellants attempt to jump over the railing.

[45]

In
    my view, therefore, there is no reasonable possibility that the jury would, as
    the appellant alleges, have made improper use of the apparent attempted suicide
    in reaching its verdict. The appellant did not request a limiting instruction
    and he took no issue with the charge, a draft copy of which he had been
    provided with in advance. The appellant was in no way prejudiced by the trial
    judges failure to give a limiting instruction. In the circumstances of the
    case, therefore, such an instruction was not necessary.

(3)

The instruction on contradictory statements

[46]

There
    was evidence at trial that the appellant lied in his statements to the police, in
    information he gave to doctors who assessed him prior to trial, and in his
    trial testimony. It is well settled that, in the event that the jury found one
    or more of these statements to be lies, it could use them in its assessment of
    the appellants credibility. Absent independent evidence of concoction,
    however, disbelief of the appellant could not be used as evidence of guilt: see
R. v. Selvanayagam
, 2011 ONCA 602, 281 C.C.C. (3d) 3, at para. 27.

[47]

Independent
    evidence of concoction can, however, be found in the very content of the impugned
    statements, depending on the context in which they were made. Independent, in this
    sense, means that the evidence of concoction is separate from the evidence of
    guilt, not necessarily separate from the statements themselves. For example, where
    an accused has made contradictory exculpatory statements, the
    self-contradiction of an accused may constitute independent evidence of
    fabrication: see
R. v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d) 354, at
    para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17.

[48]

The
    instruction to the jury on the use it could make of the appellants
    inconsistent statements was a significant issue at trial. The trial judge
    therefore consulted counsel during pre-charge discussions and settled on the
    following wording for his charge:

If you conclude that Mr. Ching was
    not truthful to the police, psychiatrist, or this court, you cannot use that
    determination to conclude or assist you to conclude that Mr. Ching is guilty of
    an offence or that the Crown has proven an essential element beyond a
    reasonable doubt. The only use you can make of such a determination is to use
    it to determine whether to rely on all, none, or some of Mr. Chings statements
    or evidence in deciding this case, or may use it to assist in determining what
    Mr. Chings intentions were on October 25, 2009.

[49]

The
    appellant submits that by telling the jury that it could use the evidence of
    the appellants lies in determining what Mr. Chings intentions were on
    October 25, 2009, the trial judge was, in effect, improperly suggesting that
    the jury could use these lies to infer the appellants guilt, and that it could
    do so absent an independent finding of concoction.

[50]

The
    appellant argues that the impact of this error was particularly significant
    given that, in its closing, the Crown repeatedly told the jury that the
    appellants true intention on the day in question could be inferred from his
    many lies.

[51]

I
    reject this ground of appeal. The alleged untruths and lies of the appellant
    encompassed a great deal of evidence, some more significant than others. For
    example, the contradictions and inconsistencies in the appellants trial
    evidence and statements he gave to police and psychiatrist with respect to his
    purchase of the hatchet and knife used in the attack were significant.
    Similarly, the various explanations the appellant gave as to what happened when
    he arrived at Mr. Agsaulios house were contradictory and equally significant.
    Those contradictions and the circumstances in which they were told strongly
    supported the inference that some of the explanations proffered were concocted
    to avoid culpability. In the circumstances, if the jury found that the
    statements were lies, it was entitled to conclude that they were fabrications and
    draw an inference that the appellant went to the victims house to kill his
    ex-wife and not, as he alleged, to threaten to kill himself.

[52]

In
    the pre-charge discussions, the Crown requested that the trial judge give an
OConnor
instruction. This would have involved telling the jury the circumstances in
    which the disbelief of an accuseds statements could be used to support a
    conclusion that these statements were fabricated to deflect guilt. As part of
    such an instruction, however, the trial judge would have had to review the
    numerous inconsistencies in the appellants trial and pre-trial statements,
    thereby highlighting and emphasizing the evidence suggestive of concoction.

[53]

In
    response to the Crowns suggestion, the trial judge proposed to say something
    soft enough without getting into the lies and without having to articulate
    all the evidence going back and forth. He suggested giving maybe just a one-liner
    or a one paragraph. Defence counsel sensibly agreed. The impugned paragraph
    was later agreed to by counsel. The precise line that the jury may use the
    statements in determining what Mr. Chings intentions were on October 25,
    2009 was also specifically agreed to by defence counsel after some discussion
    between the trial judge and the Crown.

[54]

This
    is not a case where the trial judge acted unilaterally in deciding how to put
    the issue to the jury. Counsels vetting and endorsement of the charge is a
    significant factor in assessing whether the jury was properly instructed. As
    explained by Doherty J.A. in
R. v. Polimac
, 2010 ONCA 346, 254 C.C.C.
    (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, at para. 96:

Counsels duty to assist the court
    in fulfilling its obligation to properly instruct the jury, referred to by Fish
    J. in
R. v. Khela
, [2009] 1 S.C.R. 104 at para. 49, takes on added
    significance where counsel has been given a full copy of the proposed
    instructions and an ample opportunity to vet them, and has engaged in a
    detailed pre-trial dialogue with the trial judge. In those circumstances,
    counsels position at trial becomes very important when evaluating complaints,
    raised for the first time on appeal, that matters crucial to the defence were
    not properly addressed by the trial judge in her instructions.

[55]

In
    the present case, counsel agreed with the charge on this issue. By accepting
    the jury instruction that the trial judge ultimately gave, the appellants
    trial counsel made a tactical decision. It would not have served the
    appellants purpose for the trial judge to provide a formal
OConnor
instruction,
    given the damaging evidence that would necessarily have to be reviewed in this
    instance. As a result, I do not consider that the instruction given by the
    trial judge prejudiced the appellants right to a fair trial.

CONCLUSION

[56]

Other
    than with respect to the charge relating to first degree murder, I would
    dismiss the grounds of appeal. With respect to the instruction on first degree
    murder, I have concluded that the instruction was incorrect. Counsel advised
    the court that in such an eventuality, they had agreed that a verdict of not
    guilty of first degree murder and a verdict of guilty of second degree murder
    should be substituted. As a result, I would dismiss the appellants conviction
    appeal under s. 686(1)(b)(i) of the
Criminal Code
and substitute a
    conviction for second degree murder in lieu of the conviction for first degree
    murder pursuant to s. 686(3) of the
Criminal Code
. I would ask the parties
    to contact the court office within thirty days to arrange a conference call
    with me to set a schedule for submissions on the appropriate period of parole
    ineligibility.

Released: July 22, 2019

PR

Paul Rouleau J.A.

I agree G.R. Strathy
    C.J.O.

I agree B.W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Claros, 2019 ONCA 626

DATE: 20190724

DOCKET: C65699

Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Christopher Marcelo Claros

Respondent

Linda Shin, for the appellant

Delmar Doucette, for the respondent

Heard: June 7, 2019

On appeal from the sentence imposed by Justice Frederic
    M. Campling of the Ontario Court of Justice on June 29, 2018.

Paciocco J.A.:

[1]

The Crown seeks leave to challenge the sentence imposed on Christopher
    Claros for six offences he committed in the course of shooting a drug dealer on
    a Hamilton street.

[2]

The trial judge attempted to impose a total sentence of five years in
    prison for all six offences, before taking into account pre-sentence custody.
    He sought to achieve this by imposing a sentence of five years imprisonment on the
    offence of discharging a firearm with intent to wound, contrary to
Criminal
    Code
,

s. 244(2) [the discharging offence], and then imposing
    concurrent sentences on the other five offences.

[3]

The concurrent sentences he imposed for the five other offences consist
    of:

1)

Possession of a weapon
    for the purpose of committing an offence, contrary to
Criminal Code
,
    s. 88(2) (2 years);

2)

Possession
    of a firearm without a licence contrary to
Criminal Code
, s. 92(3) (2
    years);

3)

Unauthorized
    possession of a firearm in a motor vehicle, contrary to
Criminal Code
,
    s. 94(2) (2 years);

4)

Aggravated
    assault, contrary to
Criminal Code
, s. 268(2) (3 years); and

5)

Possession of a
    firearm while prohibited, contrary to
Criminal Code
, s. 117.01(3) (2
    years).

[4]

The Crown contends that the total sentence the trial judge arrived at is
    unfit, and that the trial judge made other legal errors in sentencing Mr.
    Claros.

[5]

Mr. Claros concedes one of the alleged legal errors. Specifically, he
    agrees that the trial judge made mathematical errors that resulted in Mr.
    Claros receiving less than a sentence of five years imprisonment. For the
    discharging offence, the trial judge imposed an effective sentence of 3 years
    and 101 days in custody, after accounting for enhanced credit of 466 days for the
    pre-sentence custody or dead time Mr. Claros spent incarcerated on the Hamilton
    charges awaiting the completion of his trial and sentencing. The parties agreed
    that the correct amount of enhanced pre-sentence custody is 416 days, and that
    the trial judge also erred in quantifying the effective sentence. The actual
    effective sentence should have been 3 years and 314 days in custody, in order to
    achieve a total sentence of 5 years. Mr. Claros invited the court to leave the
    sentence undisturbed despite the difference of 213 days, because of the time
    that has passed.

[6]

In my view, we need not decide whether to fix this error, nor determine
    whether the sentence is unfit, because I agree with the Crown that the trial
    judge committed material legal errors. As a result, I would grant leave to
    appeal the sentence, set aside some of the sentences, and substitute sentences
    that will achieve a total sentence of eight years in custody.

[7]

Specifically, I would set aside the sentences imposed on the discharging
    offence and the possession of a firearm while prohibited offence. I would substitute
    a sentence on the discharging offence of seven years imprisonment, and I would
    substitute a custodial sentence of one year consecutive on the possession of a
    firearm while prohibited offence.

[8]

I would not disturb the other sentences imposed, other than the victim
    surcharges, which should also be set aside.

THE MATERIAL FACTS

[9]

On May 25, 2016, Mr. Claros had a mutual friend arrange a meeting with
    David Fafinski at 9:00 p.m. in Hamiltons east end. Mr. Fafinski was asked to
    bring $14,000 worth of cocaine to that liaison. Mr. Fafinski thought he was
    meeting the mutual friend when he showed up, but Mr. Claros was there instead.

[10]

At
    some point after encountering Mr. Claros, Mr. Fafinski attempted to flee. As he
    ran down a Hamilton street near an intersection, Mr. Claros shot him with a
    sawed-off shotgun. The shotgun was loaded with buck shot, not bird shot.

[11]

Mr.
    Fafinski was lucky. His lower extremities were sprayed and he was knocked down,
    but his injuries were not serious.

[12]

Immediately
    after the shooting, Mr. Claros fled. As a result, he was not arrested at the
    scene. That arrest happened two days later after he and his girlfriend, Halley
    MacPhee, tried to outrun the police in the car Ms. MacPhee was driving near
    Thunder Bay. The chase ended when Ms. MacPhee stopped to avoid a spike belt, and
    the pair was arrested.

[13]

During
    the police chase, Mr. Claros threw the shotgun out of the moving vehicle. It
    seems the pursuing officers did not see this happen. The shotgun was found on
    the side of the road by a concerned citizen who called the police. The
    recovered shotgun proved to have been stolen. It also proved to have Mr. Claross
    DNA on its surface. As a result, Mr. Claros was charged with firearms offences
    related solely to the Thunder Bay incident.

[14]

Mr.
    Claros pleaded guilty and was convicted of three of those Thunder Bay offences:
    (1) possession of a firearm while prohibited; (2) possession of a firearm
    obtained by crime, contrary to
Criminal Code
, s. 96(2); and (3)
    unauthorized possession of a firearm in a motor vehicle. Mr. Claros received a
    total sentence of two years in custody. After credit for 303 days of
    pre-sentence custody, Mr. Claross effective sentence was 14 months in custody.

[15]

Almost
    a month and a half later, Mr. Claros was charged separately with ten offences
    arising from the Hamilton shooting of Mr. Fafinski. The trial on those charges
    was not held until his Thunder Bay prison sentence expired. But, Mr. Claros was
    not released when he completed the Thunder Bay sentence. He was held on the
    Hamilton charges.

[16]

On
    January 26, 2018, Mr. Claros was convicted of the six Hamilton offences I have
    described above. He was sentenced on June 29, 2018. As indicated, the trial
    judge intended to impose a sentence of five years in custody before taking into
    account the dead time Mr. Claros served awaiting his trial and sentencing.

[17]

During
    the sentencing hearing, the trial Crown sought a sentence of ten years imprisonment
    on the Hamilton charges. In stark contrast, trial counsel for Mr. Claros sought
    a sentence of approximately three and a half years in custody, which would
    result in an effective sentence of time served.

[18]

Mr.
    Claross trial counsel made this submission notwithstanding that the
    discharging offence carried a mandatory minimum sentence of five years
    imprisonment in the case of a first offence. She argued that, based on the
    authority of
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, the
    trial judge was entitled to impose a total sentence below the mandatory minimum
    to remedy
Charter
disclosure breaches that had occurred. Specifically,
    it was not until the eve of the trial that significant, required disclosure was
    provided. Then a surveillance video and text messages between Mr. Claros and
    Ms. McPhee were disclosed only after the trial was underway. These
Charter
breaches resulted in two failed stay applications prior to sentencing.

[19]

Mr.
    Claross trial counsel maintained that when all of the circumstances were
    considered, this three and a half year sentence would be fit given the totality
    of the sentence Mr. Claros would serve for the Hamilton offences, coupled with
    the sentence he had already received for the directly related Thunder Bay offences.

[20]

She also
    urged that the usual practice of imposing a consecutive sentence for a possession
    of a firearm while prohibited offence should not be followed.

[21]

It
    is not in contest that the trial judge ultimately agreed with Mr. Claross
    counsel that a consecutive sentence should not be imposed for the possession of
    a firearm while prohibited offence. Instead, the trial judge imposed a
    concurrent sentence for that offence.

[22]

The
    parties also agree that the trial judge accepted the defence submission that
    the length of the Hamilton sentence should be reduced because of the Thunder
    Bay sentence Mr. Claros served on directly related charges. I will describe
    the trial judges reasoning in more detail shortly.

[23]

The
    parties disagree, however, over whether the trial judge gave Mr. Claros a
    sentencing reduction because of the
Charter
breaches, as his counsel
    requested. The Crown contends that the trial judge did not do so, but Mr.
    Claros urges that he did. I agree with Mr. Claros. The trial judge indeed gave
    a sentencing reduction for the
Charter
breaches.

[24]

To
    be sure, the trial judge did not identify the amount of the sentence reduction.
    But, in the course of sentencing, he reaffirmed that when he denied a stay of
    proceedings during trial, he was rather shocked by the shortcomings in
    disclosure and felt that there should be some remedy. He commented that of the
    two remedies he had been considering  either a costs award or a sentence
    reduction  a costs award would be pointless as Mr. Claros was defended on a legal
    aid certificate.

[25]

In
    his submissions, the trial Crown agreed that the trial judge was entitled to remedy
    the
Charter
breaches by reducing the sentence. He asked the trial
    judge not to do so, and argued that, in any case, this was not one of the
    exceptional cases recognised in
Nasogaluak
as justifying a sentence
    reduction below a mandatory minimum sentence.

[26]

The
    trial judge evidently agreed with the latter point, concluding that in this
    case, the five-year minimum is one that I think is justified. But, it is clear
    to me that he also acted on the trial Crowns concession that he could lower
    the sentence because of the
Charter
breaches. The trial judge said as
    much when he explained to Mr. Claros that [c]onsidering everything about what
    you did and about your circumstances, including the disclosure
Charter
breach[es], I do not think you deserve a sentence less than five years, after
    taking into account your dead time that you have accumulated since serving your
    Thunder Bay sentence.

[27]

In
    coming to the decision that a five year sentence was justified, the trial judge
    placed considerable emphasis on the time that Mr. Claros had already served for
    the related Thunder Bay offences. In the course of his reasons, he said:

You have served your prison sentence for those three offences
    that you pled-out to in Thunder Bay, and it was a substantial prison sentence,
    especially considering the credit you were given for your dead time. And two of
    the three charges are among the offences for which I have convicted you,
    namely, possessing the firearm in a motor vehicle, and possessing it contrary
    to a
Criminal Code
prohibition order.

The other thing that you pled to in Thunder Bay, possessing a
    firearm obtained by crime, was not among the charges here. I did not, as I
    recall, hear anything about it being a stolen firearm, although it probably
    was, if you pled guilty to that in Thunder Bay. The point, though, is that you
    have already done a fair bit of time for virtually some of the same things I
    convicted you of.

[28]

The
    trial judge did not settle on the five year sentence for these reasons alone. He
    also considered the circumstances of the offence and the offender.

[29]

He situated
    the seriousness of the offence, concluding that although shooting a gun with the
    intent to wound deserves a substantial prison sentence, this was not the most
    serious of gun offences, as Mr. Fafinski was not significantly wounded after
    being shot at some distance.

[30]

The
    trial judge expressed the view that the worst thing about the evening shooting
    was the risk to innocent people in the area, given the stores and apartment
    buildings at the intersection where the shooting occurred. But, he went on to
    note that the street was not a main artery, and the shotgun would only be
    likely to cause serious injury at close range.

[31]

The
    trial judge noted Mr. Claross personal circumstances without elaboration,
    beyond accepting the defence submission that Mr. Claross extensive criminal
    record was not generally for violent offences. He also said:

I take into account as well that although you do not get the
    benefit that someone pleading guilty would get, you did not testify in your own
    defence, you did not lie about anything or try to mislead me.

[32]

He
    then said:

If it were not for the time you have already done on Thunder
    Bay charges, your sentence on the discharging firearm with intent to wound
    charge, it will be something greater than the five-year minimum, and there
    would be a consecutive sentence on the charge of possessing the firearm while
    prohibited contrary to s. 117.01 of the
Criminal Code
.

However, because of those convictions and the time you have
    already served, it is my view that the minimum five years is appropriate and
    that the sentence for the s. 117.01 offence should be concurrent because you
    have already served a sentence for effectively the same thing.

[33]

The
    trial judge then noted that Mr. Claros had some success working a couple of
    jobs when living in Alberta, and that he was proud of certificates he earned
    when imprisoned. The trial judge then said, I am hopeful that you will go back
    to working and stay away from this kind of nonsense in the future.

ISSUES

[34]

The
    Crown on appeal has raised a number of issues for consideration, namely:

A.

Did
    the trial judge err in reducing the sentence because of the time Mr. Claros
    served in Thunder Bay?

B.

Did
    the trial judge err in imposing a concurrent sentence for the conviction of
    possession of a firearm while prohibited?

C.

Did
    the trial judge fail to consider relevant facts and consider irrelevant facts?

D.

Did
    the trial judge impose a demonstrably unfit sentence?

[35]

Mr.
    Claros does not concede any of these errors, but the parties are in agreement
    that two additional errors did occur.

[36]

They
    agree that the victim surcharges of $200 per conviction imposed by the trial
    judge must be set aside. Those orders subsequently proved to be unconstitutional
    while Mr. Claross appeal was still in the system.

[37]

As
    explained, the parties also agree that the trial judge miscalculated the
    sentence on the discharging offence.

[38]

As I
    have said, I need not address whether this error should be remedied because I
    would set aside that sentence in its entirety due to other material errors. As
    I will explain, I propose a substituted sentence, and in doing so have the
    benefit of agreement between the parties with respect to the credit for pre-sentence
    custody.

ANALYSIS

A.

The trial judge Erred in reducing the sentence for time served in
    tHUNDER BAY

[39]

The
    Crown argues that it was improper for the trial judge to even consider the time
    Mr. Claros spent in custody in Thunder Bay. Although I am of the view that the
    trial judge used the Thunder Bay time improperly, I do not share the Crowns
    view that the time Mr. Claros spent in custody on the Thunder Bay offences is
    entirely irrelevant in sentencing his Hamilton offences. In my view, the
    principle of totality applies. The problem here is that the trial judge did not
    apply the principle of totality. He improperly gave credit to Mr. Claros
    because he had already served time for distinct but related offences. In the
    result, he gave undue emphasis to the time served in Thunder Bay.

[40]

In
    recognizing that the principle of totality applies, I appreciate that this case
    does fall outside of the familiar application of that principle. The principle
    of totality ordinarily operates where an offender is sentenced at the same time
    for offences occurring at different times, or when an offender is being
    sentenced while still serving a sentence imposed for other offences.

[41]

However,
    Mr. Claross situation is analogous. At the time of the Hamilton sentencing he
    had served, without interruption, the Thunder Bay dead time, the Thunder Bay
    sentence, and then the Hamilton dead time. The Hamilton dead time was
    credited as part of the sentence for the discharging offence. In substance, the
    custody Mr. Claros would serve as the result of the Hamilton sentence began
    when the Thunder Bay sentence ended. The two sentences were therefore consecutive
    sentences with the meaning of
Criminal Code
, s. 718.2(c). They engaged
    the goals of the principle of totality, namely, to ensure that the aggregate
    sentence is just and appropriate and that the effect of the combined sentence
    is not crushing:
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500, at para. 42.

[42]

As
    indicated, the difficulty here is that the trial judge did not apply totality
    considerations. These considerations include whether the combined sentences,
    calculated individually and sentenced consecutively, would be longer than
    required to serve the principles of sentencing, or whether the combined
    sentence would be apt to crush the offender by undermining the hope for
    rehabilitation. Instead, the trial judge appears to have treated the Thunder
    Bay time as if it was being served in connection with the Hamilton events. His
    reasoning improperly reflects double jeopardy overtones. Specifically, the
    trial judge spoke of the Thunder Bay sentence being for effectively or
    virtually the same thing as the Hamilton sentence.

[43]

First,
    Mr. Claros was not being sentenced in Hamilton for effectively or virtually the
    same thing he was sentenced for in Thunder Bay. The relevant offences were
    committed at different times and hundreds of miles apart, separately
    endangering two different communities. The fact that the same firearm was
    possessed and that the offences fell within a few days of each other does not
    undercut the fact that they were different crimes.

[44]

Second,
    and more importantly, apart from totality considerations, there is no
    principled reason for reducing Mr. Claross sentence because he had previously
    been sentenced for the same kind of conduct, or because the distinct offences
    involved the same weapon or were temporally linked. Put bluntly, there is no
    sentencing discount for repeated or temporally linked, but distinct, criminal
    behaviour.

[45]

Things
    may have been different if the length of the Hamilton sentence was materially
    influenced by specific deterrence considerations and a case could be made that
    Mr. Claross Thunder Bay sentence had already discouraged him from wanting to
    engage in similar conduct again, but this was not the trial judges reasoning.
    He improperly mitigated Mr. Claross Hamilton sentence simply because Mr.
    Claros had already served time for similar or linked, but distinct, behaviour.
    In my view, this was an error in principle.

[46]

I
    would therefore allow this ground of appeal.

B.

The Trial Judge erred In Imposing a concurrent sentence for the
    Possession of a firearm while Prohibited Offence

[47]

Relatedly,
    the trial judge sentenced Mr. Claros to two years in custody to be served
concurrently
for the possession of a firearm while
    prohibited offence. The trial judge recognized that ordinarily, possession of a
    firearm while prohibited offences are sentenced consecutively. Yet the trial
    judge chose to impose a concurrent sentence, because Mr. Claros had already served
    a sentence for effectively the same thing.

[48]

In
    my view, the trial judge erred in principle in imposing a concurrent sentence
    on this basis. Again, the offences committed were the same, but the crimes were
    different.

[49]

First,
    the Hamilton offence occurred when Mr. Claros took the shotgun to his meeting
    with Mr. Fafinski. The Thunder Bay offence arose from Mr. Claross possession
    of the shotgun in a motor vehicle two days later.

[50]

Second,
    the prohibition orders breached were different. The Hamilton offence was
    predicated on the violation of a 2013 prohibition order made in Calgary. The
    Thunder Bay offence was based on the contravention of a 2011 prohibition order
    made in Hamilton.

[51]

More
    importantly, the fact that two offences relating to the breach of a prohibition
    order occur in close succession, or even at the same time, is not a basis for
    imposing concurrent sentences. The principle that such offences should be
    served consecutively is intended to ensure that disregard of firearm
    prohibition orders, imposed in the interest of public safety, does not go
    unpunished. This principle also recognizes the fact that the breach of a
    prohibition order is different behaviour than the associate offences, engaging
    different social interests:
R. v. McCue
, 2012 ONCA 773, 299 O.A.C. 14,
    at paras. 21-22;
R. v. Addow
, 2014 ONSC 3225, at paras. 29-35;
R.
    v. Callaghan
, 2017 ONSC 1853, at para. 80, affd on different grounds,
    2018 ONCA 969; and by analogy,
R. v. Clouthier
, 2016 ONCA 197, 129
    O.R. (3d) 481, at paras. 55, 60.

[52]

Similarly,
    two or more separate violations of prohibition orders generally require their
    own distinct sentences, unless there is cogent reason to do otherwise given the
    principles and objectives of sentencing. As I have said, there is no bulk
    discount.

[53]

To
    be fair to the trial judge, there is no doubt that his decision to impose a
    concurrent sentence on this charge was influenced by totality considerations,
    and totality considerations can provide a cogent reason for imposing a
    concurrent sentence or adjusting the length of consecutive sentences:
Clouthier
,
    at paras. 55, 60;
McCue
, at para. 20. But as I have just explained, in
    coming to his conclusion the trial judge focused improperly on the similarity
    of the crimes. His reasons for imposing a concurrent sentence in this case were
    therefore not cogent given the principles or objectives of sentencing.

[54]

I
    would therefore allow this ground of appeal, as well.

C.

The Trial Judge Erred in Considering Irrelevant Facts

[55]

I
    agree with the Crown that the trial judge erred in principle in treating as
    mitigating the fact Mr. Claros did not testify in his own defence and did not
    lie about anything or try to mislead [the court]. The trial judge said he took
    this into account. He should not have done so.

[56]

First,
    it is improper to assign sentencing benefits because accused persons have
    foregone their right to testify in their own defence. This sends an
    inappropriate message.

[57]

With
    respect to the reliance on the absence of lies or misleading testimony, honesty
    with the court is something that is expected. It is a crime to do otherwise. The
    fact that an accused person has not misled the court should not mitigate or
    lower the sentence otherwise imposed.

[58]

I
    would therefore allow this ground of appeal, as well.

[59]

The
    Crown urged that the trial judge considered other irrelevant material and
    failed to consider relevant information. I will not address these arguments, given
    that the errors I have already identified will require that the sentences
    imposed by the trial judge on key offences be set aside, and these arguments do
    not raise broader issues of principle that would profit the profession to
    address.

[60]

Nor
    is it necessary that I address the general challenge made to the fitness of the
    sentence imposed.

D.

THE SUBSTITUTED SENTENCES

[61]

In
    my view, the legal errors the trial judge committed materially affected the
    sentence he imposed. Most obviously, the sentence for the possession of a
    firearm while prohibited offence should have been consecutive and not
    concurrent.

[62]

The legal
    errors also resulted in an improper and excessive reduction in the sentence
    imposed for the discharging offence. The trial judge himself said that if it
    had not been for the time already served in Thunder Bay, Mr. Claross sentence
    on that offence would have been something greater than the five-year minimum. I
    agree.

[63]

The
    offences Mr. Claros committed are extremely serious. The precise reason for the
    shooting was unknown, but Mr. Claros set up that meeting, linked to the promise
    of a drug deal, and for whatever reason, chose to bring an easily concealed and
    dangerous shotgun loaded with buck shot, by design capable of killing a deer.

[64]

In
    my view, the trial judge improperly minimized the danger that the shooting
    presented, not only to Mr. Fafinski but to other members of the public. This
    shooting took place in an east end Hamilton intersection with businesses and
    nearby apartment buildings and houses. One of those houses was struck with
    errant buck shot and sustained window damage. Not only did Mr. Claros discharge
    that firearm with intent to wound Mr. Fafinski as he fled, Mr. Claros successfully
    shot Mr. Fafinski, endangering his life in the process. The fact that Mr.
    Fafinski gained distance before the shot was fired does not reduce the danger
    that Mr. Claross conduct presented. Moreover, one bystander at a nearby
    apartment building fled inside when he heard the shot, fearing that he might be
    the target of the shooting.

[65]

There
    were no meaningful, mitigating circumstances relating to this brazen and
    disturbing offence.

[66]

In
    terms of the offender, Mr. Claros, although only approaching his 27th birthday
    at the time of the shooting, had already amassed a significant criminal record
    of more than 50 convictions in an unbroken string of offending. He has been in
    custody or under court orders since he was 12.

[67]

The
    fact that only one of his adult offences was a violent offence does temper the
    required sentence. However, his long list of driving offences reveals a history
    of disregard for the safety of others that is relevant in sentencing his
    reckless behaviour during the Hamilton shooting. His numerous breaches of court
    orders are also relevant to a proper sentence for breaching the firearm prohibition
    order.

[68]

While
    Mr. Claross exceedingly difficult family history and personal circumstances do
    reduce his level of moral fault, the sentencing objectives of deterrence and
    denunciation remain the paramount considerations.

[69]

Simply
    put, this was an aggravated form of the discharging offence, and the principles
    of sentencing, including the principle of proportionality, require an
    aggravated sentence.

[70]

I would
    not allow a sentence reduction for the
Charter
disclosure breaches
    that occurred. I appreciate that the trial Crown told the trial judge that he
    could properly order such a reduction. However, the legal foundation required
    for a sentence reduction was not present, and so the Crown concession should
    not have been acted upon.

[71]

Specifically,
    as Lebel J. pointed out in
Nasogaluak
, at para. 48, the ordinary
    principles of sentencing may support a sentencing reduction where a
Charter
violation bear[s] the necessary connection to the sentencing exercise. He
    said that to be a mitigating sentencing factor, the
Charter
breach
    must bear upon the circumstances of the offence or the offender.

[72]

In
    this case, I agree with the comment made by the trial judge during sentencing
    submissions that [i]t would seem difficult to call the
Charter
breach[es]
     a circumstance of the offence or the offender. The
Charter
breaches
    had nothing to do with the offence, and no persuasive theory has been offered
    by the defence as to how they impacted on the circumstances of the offender
    that are relevant in identifying a fit sentence.

[73]

Trial
    counsel did argue that the disclosure breaches delayed the trial, which prolonged
    pre-sentence custody and thereby warranted a sentencing reduction. In my view,
    it would not ordinarily be appropriate to grant a sentencing reduction on this
    basis where, as here, credit is already being given for pre-sentence custody.
    Things might be different where there is specific evidence that the
    pre-sentence custody caused by the
Charter
breaches was particularly
    onerous, but no such evidence was presented here.

[74]

Certainly,
    the trial judge did not explain how he ultimately came to the view that the
Charter
breaches related to the principles of sentencing. If he was going to grant
    a sentencing reduction for the
Charter
breaches, he should have done
    so and quantified a fit reduction.

[75]

For
    my part, I can see no connection between the
Charter
breaches and a
    fit sentence as there may have been, for example, had the
Charter
breaches
    deprived Mr. Claros of the opportunity to receive information that could
    reasonably have prompted the mitigating benefit of a guilty plea before trial. I
    see nothing comparable to the punitive effect that police brutality or an
    arbitrary detention might have on an offender. Here there is simply no link
    between the
Charter
breaches and the determination of a fit sentence. In
    my view, this is therefore not a case for a sentencing reduction.

[76]

I do
    believe, however, that the principle of totality should inform the appropriate
    sentence for this offence, given that between the Thunder Bay and Hamilton
    offences, Mr. Claros will be serving sequentially a sentence of two years
    followed by the total sentence imposed for the Hamilton offences. The ultimate
    sentence should not be rendered disproportionate nor should it be crushing for
    Mr. Claros, still a young man.

[77]

In
    all of the circumstances of this case, bearing in mind that Mr. Claros should receive
    a one year consecutive sentence for the possession of a firearm while
    prohibited offence, it is my view that the proper sentence for the discharging offence
    is seven years imprisonment. This produces a total sentence of eight years
    imprisonment for the Hamilton offences, an outcome that fits into the
    established sentencing range and is sufficient to respect the material
    principles and goals of sentencing.

DISPOSITION

[78]

I
    would therefore grant leave to appeal the sentence and allow the appeal.

[79]

I
    would set aside the sentence imposed on Mr. Claros by the trial judge for the discharging
    offence and substitute a sentence of 7 years imprisonment, resulting in an
    effective sentence of 5 years and 314 days after Mr. Claros is credited with 416
    days for pre-sentence custody.

[80]

I
    would also set aside the sentence imposed on the possession of a firearm while
    prohibited offence and substitute a sentence of one year in custody to be
    served consecutively.

[81]

Finally,
    I would allow the appeal from the victim surcharges, setting those orders
    aside.

[82]

I
    would not disturb the other features of the sentence imposed.

Released: DW July 24, 2019

David M. Paciocco J.A.

I agree. Alexandra Hoy
    A.C.J.O.
I agree. C.W. Hourigan 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. D.C., 2019 ONCA 553

DATE: 20190702

DOCKET: M50558 (C62938)

Brown J.A. (Motions
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

D.C.

Appellant

Dana Achtemichuk, for the appellant

Catherine Weiler, for the respondent

Heard: June 25, 2019

REASONS FOR DECISION

[1]

This is an application to the Court of Appeal for interim release
    pending the new trial ordered by this court.

[2]

In 2016, the applicant was convicted on three counts of assault with a
    weapon, one count of aggravated assault, and one count of assault. He received
    a sentence of 4.5 years, less 10 months credit for presentence custody.

[3]

He appealed his conviction.

[4]

The applicant was released from custody on statutory release on January
    18, 2019. However, upon his release he was arrested and held in immigration
    detention pending his deportation.

[5]

By decision dated May 28, 2019, this court allowed the appeal, set aside
    the convictions, and ordered a new trial: 2019 ONCA 442.

[6]

At some point after this court released that decision, the applicant was
    released from immigration detention but continued to be detained.

[7]

The Crown is re-prosecuting the applicant. That proceeding is taking
    place in the Superior Court of Justice (SCJ) in a region outside of Toronto.
    The first appearance before the SCJ took place on June 11, 2019. A judicial
    pre-trial was scheduled for June 26, 2019.

[8]

Around the middle of June, 2019, applicants counsel sought a date to
    bring a bail application before the SCJ but was advised that the application
    had to be brought before the Court of Appeal.

[9]

When the application was brought in this court, Crown counsel took the
    position that it should have been brought before the SCJ. Nevertheless, Crown
    counsel worked out terms of interim release with applicants counsel.

[10]

The
    matter proceeded before me on June 25, 2019. I expressed the view that the
    application properly lay to the SCJ. However, I heard it and endorsed the
    record: For written reasons to follow, application for pre-trial release
    granted on terms set out in consent order filed.

[11]

I
    write simply to observe that this application for bail should have been
    accepted by the SCJ for hearing.

[12]

In
R. v. Manasseri
, 2017 ONCA 226, Watt J.A. observed, at paras. 40 and
    41, that judicial decisions have interpreted the phrase "pending the new
    trial" in s. 679(7.1) of the
Criminal Code
:

[T]o
encompass two discrete time
    periods with implications for the forum in which the application for release is
    heard and determined. Those time periods are:

i. the time between the order for a new trial and the
    successful appellant's first appearance in the trial court; and

ii. the time between the first appearance in the trial court
    and the start of the new trial.

See,
R. v. Barbeau
(1998), 131 C.C.C. (3d) 350
    (Que. C.A.) (Fish J.A., in chambers, at p. 352;
R. v. Ranger
(2003),
    180 O.A.C. 138 (C.A.) (Feldman J.A., in chambers, at para. 9.

In the first time period, a judge of the court of appeal has
    exclusive jurisdiction over release pending a new trial:
Barbeau
, at
    p. 352;
Ranger
, at para. 10;
R. v. Vincent
, 2008 ONCA 76,
    [2008] O.J. No. 534, (Sharpe J.A., in chambers), at para. 7;
R. v. Geddes
,
    2012 MBCA 31, 100 W.C.B. (2d) 817 (Chartier J.A., in chambers), at para. 3. In
    the second time period, a judge of the court of appeal and a judge of the trial
    court have concurrent jurisdiction over release pending a new trial:
Ranger
,
    at paras. 19, 21;
Vincent
, at para. 8.

[13]

Watt
    J.A. went on to identify, in para. 43, a number of considerations to take into
    account in determining the most appropriate forum for the hearing and
    determination of the interim release application.

[14]

In
    the present case, by the time the applicant sought to arrange a date for a
    pre-trial interim release hearing in this matter, the period of exclusive
    jurisdiction of this court under s. 679(7.1) of the
Criminal Code
was
    at an end: this court had directed a new trial by reasons dated May 28, 2019
    and the applicant had had his first appearance before the Superior Court of
    Justice on June 11, 2019. By the time the applicant sought to schedule a
    hearing date with the SCJ for his interim release application, the SCJ and this
    court had concurrent jurisdiction to hear the application.

[15]

Where
    concurrent jurisdiction over judicial interim release exists, the message of
    this court has been consistent and clear: courts of appeal should deal with
    bail pending appeal and superior courts should deal with bail prior to and
    during a trial. Any departure from that clear division of labour requires an
    applicant to demonstrate special circumstances that would justify an
    appellate court exercising its concurrent jurisdiction under s. 520 of the
Criminal
    Code
:
R. v. Durrani
, 2008 ONCA 856, at para. 34;
R. v. George
,
    2018 ONCA 314, at paras. 18 and 19.

[16]

These
    principles apply equally when considering the appropriate forum in which to
    hear a bail application following the ordering of a new trial.

[17]

As
    I read the decision in
Manasseri
,
    in that case
this court determined, in effect, that special
    circumstances in that case made this court the appropriate forum in which to
    hear and determine the application for release pending the new trial. However,
    where a new trial has been ordered by this court and the SCJ has concurrent
    jurisdiction, the general division of labour set out in
Durrani
should guide counsels selection of the appropriate forum in which to bring a
    bail application. In the present case, the SCJ should have acceded to counsels
    request to schedule a bail hearing.

David Brown 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. D.C.M., 2019 ONCA 562

DATE: 20190703

DOCKET: C63651

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.C.M.

Appellant

Nicholas A. Xynnis, for the appellant

Erica Whitford, for the respondent

Heard: July 2, 2019

On appeal from the convictions entered on November 15,
    2016 by Justice M. Garson of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

Following a trial before Garson J. of the Superior Court of Justice,
    sitting with a jury, the appellant was convicted of three offences  invitation
    to sexual touching, sexual assault and sexual interference. He was acquitted of
    the offence of assault.

[2]

The criminal charges were historical in nature. The complainant was the
    appellants step-son. He alleged that the appellant had engaged in
    inappropriate sexual behaviour, including asking him to watch him masturbate,
    sexual touching, and one incident of oral sex. The sexual incidents allegedly
    occurred when the complainant was between the ages of 8 and 13.

[3]

The appellants first trial ended in a mistrial in October 2015 because
    the jury was unable to reach a verdict. At the second trial, in November 2016,
    the convictions, and acquittal, set out above were entered.

[4]

The appellant appeals his convictions on five grounds. Two are
    stand-alone grounds and three relate to alleged errors in the trial judges
    jury charge.

[5]

First, the appellant contends that the jury reached inconsistent
    verdicts in acquitting the appellant of assault, but in finding him guilty of
    the three sexual offences.

[6]

We do not accept this submission. In our view, the jurys verdict of not
    guilty on the assault charge is not inconsistent with the findings of guilt on
    the sexual offence charges. The guilty verdicts for all three sexual offences
    are reconcilable with the not guilty on the assault count based on the
    differences between the elements of the offences, the nature of the evidence
    applicable to each count, and the scope of the credibility findings the jury
    was entitled to make. To cite but one example, because of the complainants
    age, consent was not an issue with respect to the sexual offences. On the other
    hand, on the assault charge, the complainants own testimony about play
    fighting with the appellant on occasion made consent a live issue on the
    assault charge. The jurys verdicts on the various counts in the indictment is,
    easily, supportable on any theory of the evidence consistent with the legal
    instructions given by the trial judge: see
R. v. Pittiman
, 2006 SCC 9,
    at para. 7.

[7]

Second, the appellant asserts that the trial judge erred in admitting
    into evidence the appellants videotaped statement to police following his
    arrest. In that statement, there was this exchange:

Officer: Asking that  asking someone you know to touch you or
    asking if you can touch them, thats invitation to sexual touching.

Appellant: That happened.

[8]

The appellant went on to admit that he had asked if he could touch the
    complainant, but the complainant had said No. He also admitted that he
    propositioned the complainant to engage in oral sex, but the complainant had
    declined. The appellant maintained that no actual sexual contact had occurred.

[9]

The appellants statement to police was admitted at his first trial
    after a contested voluntariness
voir dire
.

[10]

At
    the appellants second trial, counsel explicitly agreed that the previous
    ruling would apply. This agreement was based on s. 653.1 of the
Criminal
    Code
, which provides:

653.1 In the case of a mistrial, unless the court is satisfied
    that it would not be in the interests of justice, rulings relating to the
    admissibility of evidence  that were made during the trial are binding on the
    parties in any new trial.

[11]

For
    the purposes of the appeal, we assume that appeal counsel is entitled to raise
    this issue. We see nothing in the interests of justice to suggest that
    counsels shared position at trial should be overturned. Specifically, we note
    that the judge at the first trial watched the video of the appellants
    statement and was, therefore, in a perfect position to assess it.

[12]

Third,
    the appellant asserts that the trial judge erred in his instruction to the jury
    about how to consider and assess evidence that might be relevant to more than
    one count in the indictment. Specifically, the appellant says that the trial
    judge should have instructed the jury that if it did not believe the
    complainants evidence that he had been assaulted in a non-sexual manner (the
    jury acquitted the appellant on the assault charge), then it was entitled to
    use that disbelief in assessing the sexual assault allegations. In other words,
    the trial judge should have expressly instructed the jury that it was entitled
    to assess the complainants credibility with reference to evidence across all
    the counts.

[13]

We
    disagree. Nothing in the trial judges instructions suggested that the jury
    should compartmentalize its credibility findings. The jury was told that they
    must not use evidence that relates only to one charge in making their decision
    on any other charge. In
R. v. A.W.B.
, 2015 ONCA 185, this court said
    that this precise formulation did not prevent the jury from applying findings
    of the complainants general credibility to all counts (paras. 35-36).

[14]

In
    addition, the jury was instructed to consider the evidence in its entirety in
    deciding how much or little to rely on a witness evidence. The jury was also
    told to use common sense in deciding whether to believe none, some or all of a
    witness evidence.

[15]

Fourth,
    the appellant contends that the trial judge provided a confusing and unhelpful
    instruction on the issue of consent as it related to the sexual assault charge.

[16]

We
    agree that a small portion of the jury charge, relating to only the sexual
    assault charge, was potentially confusing. However, read in its entirety, the
    trial judges charge made it clear that because of the complainants age at the
    time of the offences, consent was not an element the Crown needed to prove to
    ground a conviction for sexual assault. Moreover, the trial judge provided a
    draft jury charge to counsel. Neither counsel objected to the charge on this
    issue. Indeed, both counsel agreed during the pre-charge conference that
    consent was not a live issue on the sexual assault count. In any event, the
    small confusion could not have prejudiced the appellant; indeed, if anything it
    worked to his benefit.

[17]

Fifth,
    the appellant submits that the trial judge erred in his instruction to the jury
    about how to use the appellants prior inconsistent statement, especially in
    relation to the statements he allegedly made at the family meeting that was
    called after the complainant made allegations about the appellants behaviour
    toward him.

[18]

We
    do not accept this submission. With respect to what the appellant said at the
    family meeting, the trial judge instructed the jury:

Unless you decide that [the appellant] made a particular remark
    or statement you must not consider it in deciding this case. You may give
    anything that you find [the appellant] said as much or as little importance as
    you think it deserves in deciding this case. It is for you to say.

We see no problem with this instruction.

[19]

The
    conviction appeal is dismissed. The appellant has abandoned his sentence
    appeal.

Doherty J.A.

J.C. MacPherson J.A.

M.L. Benotto J.A.