COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kish, 2014 ONCA 181

DATE: 20140310

DOCKET: C53904

Goudge, Cronk and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicole Yvonne Kish

Appellant

Philip Campbell and Zachary Kerbel, for the appellant

Susan Reid, for the respondent

Heard: October 29, 2013

On appeal from the conviction entered by Justice Ian
    Nordheimer of the Superior Court of Justice, sitting without a jury, dated
    March 1, 2011, with reasons reported at 2011 ONSC 1303.

MacFarland J.A.:

[1]

The appellant appeals her conviction on a charge of second degree murder.
    The appellant, with the consent of the Attorney General, was tried by judge
    alone. She was sentenced to life imprisonment with parole ineligibility set at 12
    years. The appellant had also initiated an appeal of her sentence, but the
    court was informed by her counsel that the sentence appeal should be dismissed
    as abandoned.

OVERVIEW

[2]

In the early morning hours of August 9, 2007, Ross Hammond, a 32 year
    old married man, was stabbed on the north side of Queen Street West in the City
    of Toronto. He received multiple stab wounds to his chest and back as well as
    defensive wounds to his hands and arms. The most serious of his injuries were
    five stab wounds to his chest, two pierced his heart and one of those entered
    the chamber of his heart and ultimately proved fatal. Hammond died as the
    result of those stab wounds two days after he was attacked.

[3]

Hammond was stabbed during a fight with a number of street kids.  No
    one saw Hammond stabbed, and there was no direct evidence of who stabbed him.
    The identity of the person who stabbed him was the principal issue at trial.

[4]

This case involved the following types of circumstantial evidence:
    testimony from 17 civilian eyewitnesses, who saw the events of the evening from
    various vantage points; photographic aids and diagrams to establish sight-lines
    and illustrate the relevant locations; surveillance videotape recording
    portions of the events; forensic blood spatter and DNA evidence; a dying
    declaration; autopsy results; audio recordings of 911 calls and City TV video
    recordings which captured the immediate aftermath of the events and
    importantly, the appearance of the principal participants at the time.

[5]

The events of the evening can be roughly organized into three
    categories:

1.

The initial
    confrontation at the TD Bank ATM, located at the northwest corner of Euclid
    Avenue and Queen Street West, where a female street kid approached Hammond and
    his friend and co-worker, George Dranichak, and asked for $20.

2.

The fight at the
    stopped streetcar on the south side of Queen Street West that involved Hammond,
    a male street kid (Douglas Fresh) and two female street kids (the appellant and
    Faith Watts).

3.

The final fight
    on the north side of Queen Street West that involved Hammond and three street
    kids (Jeremy Wooley, an unidentified male and the appellant).

DEFENCE
    CONCESSIONS

[6]

The appellant does not dispute:

1.

that whoever
    stabbed Ross Hammond is guilty of second degree murder;

2.

that if she
    brought the knife to the fight and passed it to one of her friends with the
    intent that it be used on Hammond, she is guilty of second degree murder as an
    aider;

3.

the trial judges
    finding that the appellant and Faith Watts were involved in the south side
    altercation;

4.

that it was
    Faith Watts who stayed on the south side of Queen Street to tend to Fresh after
    he had been beaten by Hammond; and

5.

that the
    appellant was involved in the fight on the north side.

THE FACTS

(1)

The Initial Confrontation at the TD Bank ATM

[7]

Ross Hammond and his friend and co-worker George Dranichak had been out
    for the evening with other co-workers. They parted company with the others and
    went to a club together at Queen and Bathurst Streets. On leaving the club they
    proceeded along Queen Street West looking for a place to have something to eat.
    The trial judge found they were both under the influence of alcohol. Dranichak
    decided he needed cash and they headed to the ATM machine located at the
    northwest corner of Queen Street West and Euclid Avenue. Either before or after
    he used the machine, he and Hammond were approached by a female who asked them
    for $20. They responded to her request with rude, offensive remarks. The female
    responded loudly and with anger. The trial judge found that she began to yell
    at the two men using equally obscene language  and that her response was
    also fueled by the alcohol she had consumed that day with her friends Faith
    Watts, Douglas Fresh and Jeremy Wooley.

[8]

The trial judge found that this female street kid who had asked for the
    $20 was the appellant, and that she was soon joined by her friend and fellow
    street kid, Douglas Fresh.

[9]

The dispute between Hammond and Dranichak on the one hand and the
    appellant and Fresh on the other moved westward along the north side of Queen
    Street West. The female was loud and angry. At one point either Dranichak or
    Hammond threw Fresh into a storefront window and knocked the appellant to the
    ground. She and Fresh pursued Dranichak and Hammond, yelling at them and
    throwing bags of garbage at them.

[10]

There
    was a stopped eastbound streetcar just west of the intersection of Queen and Niagara
    Streets. Dranichak and Hammond crossed diagonally from the north to the south
    side of Queen Street West in the direction of that streetcar.

(2)

The Fight at Stopped Streetcar on the South Side of Queen Street

[11]

By
    now, Faith Watts, Douglas Freshs girlfriend, had joined Fresh and the
    appellant. It was at this point that Fresh attacked Hammond. The trial judge
    reasonably concluded that it was more likely Hammond who had thrown Fresh into
    the window because it was Hammond who Fresh attacked. Dranichak left the scene
    when the fight on the south side of the streetcar began. As the trial judge
    concluded, no other witnesses observed Dranichaks presence after this fight
    started. The trial judge noted that while [Fresh] may have intended to even
    the score, he failed in that objective as Mr. Hammond quickly got the better of
    Mr. Fresh in the fight. Hammond beat Fresh to the point where he was no longer
    defending himself and appeared to some to be unconscious.

[12]

While
    Hammond was beating on Fresh, two female street kids, the appellant and Watts
[1]
,
    were trying to get him off their friend, Fresh. They were described as pulling
    and punching Hammond on the back. Their efforts did not seem to be having much
    of an effect on Hammond, he tried to push them away, seemed to swat at them,
    but did not stop.

[13]

These
    findings of the trial judge were supported by the evidence of Cam Bordignon,
    who observed the fight from the southwest corner of Queen Street West and
    Niagara Street, and the evidence of Molly Stopford and Jonathan Paget, who
    observed the fight from within the streetcar that had stopped on Queen Street
    West at Niagara Street.

[14]

Molly
    Stopford was sitting on the passenger side of the stopped streetcar and
    Jonathan Paget was beside her, she had the window seat, he the aisle. The fight
    was ongoing immediately below where they were sitting. Stopford said that
    although both females were engaged in the effort to stop Hammond, one was more involved
    than the other. She said she assumed the two women were friends of Fresh
    because they were similarly attired, wearing baggy clothes and seemed to be
    yelling at the jock, trying to get him to stop fighting with their friend.

[15]

Stopford
    said that these women were similar in appearance. Both white, of medium height,
    slim build, light brown hair  and importantly, said: I didnt really
    differentiate between the two of them too much in my mind in terms of looks.
    Stopford distinguished the women by the roles they played  there was one woman
    that was more involved than the other one were her words.

[16]

Stopford
    observed the more involved female to have a knife. The handle was in her mouth,
    only the blade of the knife was exposed. She made this observation from only
    about four feet away through the open window of the streetcar. It is
    significant that within a few days of the stabbing, Stopford drew a diagram of
    the blade of the knife that she had observed in this womans mouth, including a
    round circle that marks a distinguishing feature of the knife that was used to
    fatally wound Hammond. In my view, it adds a certain weight to Stopfords
    evidence that she was able to accurately draw the knife that she said she saw,
    and that it very closely resembled the murder weapon.

[17]

In
    any event, when she saw the knife Stopford became upset and at that point she
    closed the window of the streetcar and deliberately turned her attention away
    from the fight.

[18]

When
    she next looked out to the south, she did not see the woman who had had the
    knife; she saw Fresh with blood on his face and noted that someone had helped
    him to the sidewalk. By the time Stopfords attention was turned back to the
    north side of Queen Street West, the fight on that side was clearly over. She
    noticed that one woman appeared to have suffered an injury to her arm and that
    she was being tended to by another woman.

[19]

Specifically,
    Stopford said that she saw the woman whom she had seen with the knife now on
    the north side of the street, and noted that another female had taken off her
    shirt and was wrapping it around the arm of the woman who had had the knife. Stopford
    thought these two females were the same two she had seen earlier, in the first
    fight. She also believed that the woman who was helping the woman who had had
    the knife was the other woman who had been the less involved female in the
    efforts to get Hammond off Fresh.

[20]

Stopford
    conceded on cross-examination that there was nothing in the descriptions of the
    two women that she could point to in order to distinguish between the two of
    them. It was by the roles they played in the first fight that she distinguished
    them.

[21]

Stopford
    next saw Hammond on the hood of a taxi cab on the north side of Queen Street
    West and at that point he was holding a knife in his right hand. She thought it
    was the same knife she had previously seen in the mouth of the more involved
    female. As it turned out, she was right about that. The weapon had obviously
    been used by Hammond on the appellant. Both Hammonds blood and the appellants
    blood were found on the area of the knife where the blade joins the handle.

[22]

Jonathan
    Paget was seated beside Stopford, and his evidence largely supported hers. The
    two were friends. They had been out together for the evening and were on their
    way home.

[23]

Paget
    observed two females in close proximity to where the fight between Hammond and
    Fresh was taking place. He said one of the women approached the fight and
    ended the fight and as she approached he very clearly recalled her yelling at
    the parties who were fighting in an effort to get them to stop. He described
    her as being dressed in street fashion.

[24]

He
    said that this female approached the fight with intent, moving toward the two
    male fighters very briskly with her arms out ready to help stop the fight. And
    she was able to stop the fight and got the short-haired male (Hammond) off the
    street kid (Fresh). Paget said that at some point during these events he
    noticed this female was holding a knife in her right hand. He only saw the
    blade of the knife, which he estimated to be about three inches long, the
    handle was concealed by the womans hand and fingers.

[25]

Paget
    saw the knife twice during the events of that evening. The first time was when
    he saw it in the females hand. He could not say if it was before or after the
    fight between Hammond and Fresh, but he recalled the knife in her hand as she
    walked from the front of the streetcar toward where he (Paget) was sitting.

[26]

The
    second time he saw that knife was when it was in Ross Hammonds hand as he lay
    on the hood of a taxi on the north side of Queen Street West. Paget also noted
    that when the female with the knife first approached, she was with a second female.
    At the end of the altercation, he noticed this second female tending to the
    first females cut arm. The woman who had been cut, who we know to be the
    appellant, was very upset about having been cut on the arm. Paget believed the
    woman who was tending to the appellant after the fight was the same female who
    accompanied her at the beginning of the fight on the south side of the street.

[27]

Paget
    was clear in his evidence that the woman who brought the knife to the fight on
    the south side of the streetcar was the same woman who ended up with the cut
    arm on the north side of the street.

[28]

He
    said it stuck in his memory because he had heard many times you should not
    bring a knife or a weapon into a fight because you may end up the one injured
    by it. He was reminded of that saying at the time because the woman whom he had
    seen bringing the knife to the fight was the one who ended up with a cut arm.

[29]

He
    was fairly certain in his evidence that it was the same girl. Neither Stopford
    or Paget could assist further in terms of descriptions of the two women.

[30]

The
    evidence is clear that the appellant was the person who ended up with the cut
    arm on the north side, that it was Faith Watts who was assisting her, and that this
    was at the very end of the events that took place on the north side of the
    street.

[31]

The
    trial judge accepted the evidence of Stopford and Paget. He concluded that the
    appellant had the knife on the south side and used it to get Hammond off Fresh
    by inflicting superficial wounds to his back.

[32]

The
    trial judge concluded that Watts stayed behind with Fresh after he was pulled,
    unconscious, to the south sidewalk, while the appellant went around the front
    of the streetcar in pursuit of Hammond.

[33]

Hammond
    was caught on video surveillance from the One of a Kind Pasta Shop between the
    south and north side altercations. He does not appear in that video to have suffered
    any debilitating injury and he does not have a knife in his hands.

(3)

The Final Fight on the North Side of
    Queen Street

[34]

After
    the fight with Fresh, Hammond moved around the streetcar to the north side of
    Queen Street West and became involved in a second fight. This time he was
    outnumbered  two men and a woman set upon him and he was put to the ground. He
    suffered stab wounds to his chest that would cause his death two days later.

[35]

The
    trial judge concluded that Jeremy Wooley, an unknown male and the appellant
    were engaged in that second fight with Hammond.

[36]

Melissa
    Gallately had a birds eye view of the fight on the north side. She lived in an
    apartment over the Select Mart, on the south side of Queen Street. The
    apartment consisted of the second and third floors above the store. On the
    evening in question, Gallately was in bed on the third floor with her infant
    son, trying to settle him, when her attention was drawn to the street by
    screaming and yelling. She went out onto the balcony for a closer look and saw
    three people  two males and a female  on top of one person. The taller of the
    two men wore a shirt that was totally unbuttoned and he wore nothing underneath
    it. The other male was shorter, with shorter hair and he wore shorts. The
    female was wearing a longer black skirt and a black tank top. Her hair was
    either in dreadlocks or it was matted and half-pulled up. Her hair was dark.

[37]

There
    was no one else around the group when Gallately first looked out, other than
    the man on the ground, who she described as being in almost a fetal position.
    He was trying to cover himself and protect his head from the beating that was
    being inflicted on him. She described the three attackers, the two men and the
    woman in the black skirt, as looking like street kids in dirty, disheveled
    clothing. The male on the ground who was receiving the beating looked older
    than the street kids and more conservative.

[38]

She
    observed both men punch, stomp and kick Hammond, but said that the man with the
    open shirt was being the more aggressive of the two men.  The woman was hunched
    over the man on the ground facing his stomach and chest area. She described the
    woman as kind of flailing toward his body  her arms were moving constantly and
    she was very angry. Gallately estimated that about thirty seconds into the
    fight, this same woman began to scream about being bloody and being stabbed. She
    saw nothing in the hands of either of the two men or the woman. Although the
    woman had screamed about being stabbed, it did not slow her down, Gallately described
    her as very aggressive. Although Hammond was making an effort to get up, the
    blows kept coming and knocked him to the ground. He tried several times and
    eventually got up and stumbled away. Gallately went on to describe Hammonds
    effort to stop a cab for assistance, but her attention was more focused on the
    girl who had been involved in the fight. She remained screaming on the sidewalk
    with the two men  calling for an ambulance and yelling that she was bleeding.
    All three were soon approached by a police officer.

[39]

The
    CTV video taken in the immediate aftermath of the events clearly show the main
    characters, the appellant, Faith Watts, Jeremy Wooley and Douglas Fresh. How
    they were attired and how they looked that night is captured on film.

[40]

The
    appellant, distinctly, is the only one wearing a long black skirt and black
    halter top and her hair is in dreadlocks. Faith Watts on the other hand, is
    wearing gray shorts and Doc Marten style calf length boots.

ISSUES

[41]

The
    appellant raises two grounds of appeal:

1.

The trial judge
    accepted and relied on manifestly unreliable evidence in concluding that the
    appellant was the female armed with a knife on the south side of the street and
    was the person who took that knife to the north side of the street where she
    used it to fatally stab Hammond. This resulted in an unreasonable verdict.

2.

The trial judge misapprehended, or failed to confront,
    items of exculpatory evidence that could have contributed to the existence of a
    reasonable doubt. Most significantly, he did not consider the possibility that
    Faith Watts, Jeremy Wooley or the unknown third man involved in the final fight
    on the north side of Queen Street could have been the stabber.

(1)

First
    Ground of Appeal  Unreasonable Verdict

[42]

The
    appellant argues that the verdict is an unreasonable one. She says the evidence
    upon which the trial judge relied to conclude that the woman bleeding on the
    north side was the woman with the knife on the south side did not meet the
    criminal standard of proof and was insufficient to satisfy a reasonable trier of
    fact beyond a reasonable doubt. The critical and key issue on this ground of
    appeal is: who was the woman on the south side with the knife? The appellant or
    Faith Watts? In short, the appellant submits that the trial judge erred when he
    concluded that the female at the ATM machine in the initial confrontation was
    the appellant rather than Faith Watts; that the trial judge erred in accepting Stopford
    and Pagets identification of the appellant as the female armed with a knife on
    the south side of the street because it was manifestly unreliable; and that the
    trial judge erred in accepting the evidence of Melissa Gallately in relation to
    the appellants observed actions during the north side fight. The appellant
    argues that the trial judges reliance on the above-listed evidence resulted in
    an unreasonable verdict.

[43]

The
    test for finding an unreasonable verdict is well-settled. In
R. v. Biniaris
,
    2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, Arbour J. said:

The test for an appellate court determining whether the verdict
    of a jury or the judgment of a trial judge is unreasonable or cannot be
    supported by the evidence has been unequivocally expressed in
Yebes
as
    follows:

[C]urial review is invited whenever a jury goes beyond a reasonable
    standard [T]he test is whether the verdict is one that a properly instructed
    jury acting judicially, could reasonably have rendered.

and at para. 37:

The
Yebes
test is expressed in terms of a verdict
    reached by a jury.  It is however, equally applicable to the judgment of a
    judge sitting at trial without a jury.

The review for unreasonableness on appeal is different,
    however, and somewhat easier when the judgment under attack is that of a single
    judge, at least when reasons for judgment of some substance are provided.  In
    those cases, the reviewing appellate court may be able to identify a flaw in
    the evaluation of the evidence, or in the analysis, that will serve to explain
    the unreasonable conclusion reached, and justify the reversal.

[44]

The
    application of the test was explained by Watt J.A. in
R. v. Roks
, 2011
    ONCA 526, stating, at para. 122:

Under s. 686(1)(a)(i), an appeal court is entitled to review
    the evidence adduced at trial, to re-examine that evidence and to reweigh it,
    but only for the purpose of determining whether the evidence, as a whole, is
    reasonably capable of supporting the trial judges conclusion:
R. v. Burns
,
    [1994] 1 S.C.R. 656, at p. 663.  We must bring to bear on the exercise of
    evidentiary review, re-examination and reweighing, our assessment, informed by
    judicial training and experience, not simply our own personal experience and
    insight:
Biniaris
, at para. 42.

[45]

The
    appellant concedes that the test is a high one. She argues firstly that the
    trial judge erred in finding that it was the appellant who asked Dranichak and
    Hammond for $20 at the ATM machine. She submits that Dranichak identified the
    female at the ATM as Faith Watts rather than the appellant. He did so within a
    few days of August 9, 2007 and from police photographs shown to him. The trial
    judge rejected his evidence as unreliable.

[46]

Dranichaks
    iteration of events was at odds with the evidence of many other witnesses whose
    evidence the trial judge accepted. Dranichak testified that he and Hammond
    moved to the south side of Queen Street almost immediately after they left the
    ATM.  At this point he testified that he, Dranichak, was attacked by a male and
    a female on a bike. He was able to fight them off and make his escape in a
    taxi. Dranichak said he didnt know where Hammond was when he left and he was
    certain that they never got as far west as Niagara Street.

[47]

Contrary
    to Dranichaks evidence, the argument between he and Hammond and the male and
    female street kids who were following them moved westward along the north side
    of Queen Street  a fact witnessed by a number of witnesses. No other witness
    saw anyone on a bike who was actively involved in the initial dispute.

[48]

Mystica
    Cooper and Laura Quigley both described the angry, loud female street kid, who
    along with a male street kid was pursuing Dranichak and Hammond along the north
    side of Queen Street West, as wearing a long skirt with her hair in dreadlocks.
    The appellant was the only one wearing a long skirt with her hair in
    dreadlocks. The trial judge concluded that Cooper and Quigley could not both be
    mistaken. He was aware that they both had described the appellants hair colour
    as blondish when it was in fact brown. He noted that a number of witnesses had
    described many of the persons involved as being blond. The trial judge did not
    consider the misdescription as being significant. As he explained, the
    artificial lighting in the area distorted colour as some of the surveillance
    video evidence clearly demonstrated. The trial judges finding is supported by
    the evidence of Cooper, Quigley and Shawn Park. Their descriptions of the
    appellant match her appearance in fact, as captured on the CTV video as well as
    the police booking video.

[49]

The
    identification of the female street kid in the ATM confrontation as the appellant
    was a finding the trial judge was entitled to make on the evidence before him.
    Dranichaks evidence was at odds with that of many other witnesses. It was open
    to the trial judge to reject his evidence as unreliable.

[50]

Next,
    the appellant submits that the evidence of both Molly Stopford and Jonathan Paget
    was manifestly unreliable and the trial judge erred in relying on that evidence
    to identify the appellant as the woman with the knife on the south side.

[51]

The
    appellant places particular reliance on the following exchange between defence
    counsel and Molly Stopford:

Q.      So the woman that you thought was cut and the woman who
    was tending to the injury may or may not have been the same two that you had
    seen in the fight.

A.      Yes. I thought they were but its possible that I was
    wrong.

Q.      I gather your first instinct was that the girl who was
    cut was also the girl whod had the knife in the fight, is that right?

A.      Yes.

Q.      And I also understand that youve examined that idea
    closely, is that right?

A.      Mm, yeah, I guess so.

Q.      Its possible youre interchanging the two women that
    are in the fight in your mind?

A.      Yes, its possible.

and further on:

Q.      Between the two girls, youre not even 100 percent sure
    which one took the shirt off, which one was cut.

A.      Thats right.

Q.      Do you recall being asked by the police, Do you think
    you can tell them apart, and answering, Honestly, I dont know. I have no idea.

A.
Yes.

Q.      You agree with that again
    today?

A.      Yes.

Q.      Youre not 100 percent positive that the girl who was
    cut was the girl with the knife?

A.      Thats right.

Q.      Youre not 100 percent positive that the girl who took
    her shirt off was the second girl?

A.      Thats right.

[52]

In
    re-examination by the Crown, Stopford was questioned about what influence the media
    coverage of the event may have had on her evidence. She responded:

A.      I specifically tried to not let the media influence any
    of my memory.  But I suppose that  I hope that it didnt but I guess its
    possible that it created  it filled in some of the blanks, but I very strongly
    believe that I am only saying exactly what I saw.

[53]

I
    start by noting that it is unhelpful generally in cross-examination to repeat a
    witnesses statement to them that had been made in chief and ask if they are
    100 percent certain of that statement. First, it is not necessary for a
    witness to be 100 percent certain  that is not the criminal standard.
    Secondly, most reasonable persons would usually agree to a
possibility
they could be wrong or as the
    saying goes anything is possible. The trial judge was alive to this, stating
    in his reasons:

Our reliance on the evidence of any eyewitness also
    recognizes that an eyewitness does not have to be certain in his or her
    identification. To the contrary, it is well-recognized that there is a weak
    link between the certainty of an eyewitness and the accuracy of that witness
    evidence:
R. v. Hibbert
, [2002] 2 S.C.R. 445 at para. 52.

Rather than detracting from their evidence, in my
    view, their willingness to acknowledge the reality that they might be wrong
    only serves to enhance the genuineness with which they gave their evidence.
    Ultimately, it is the trier of fact who must assess the evidence and decide
    what evidence to act on.

[54]

I
    would also note that the trial judge was clear in his reasons that he was very
    much aware of the frailties of eyewitness evidence, and explained that trial
    judges caution jurors very strongly about these frailties and the need to take
    special caution in approaching such evidence. The trial judge elaborated:

[E]very witness will see events from their own
    perspectives. They will remember some aspects of the events better than others.
    In my view, those inconsistencies are minor in nature and, rather than
    detracting from the honesty of the witness evidence, they enhance it because
    they are precisely the type of inconsistencies that one would expect to see
    when asking multiple people to recall the same event. It does, however, further
    explain why we exercise the caution that we do when we approach the evidence of
    eyewitnesses and why we look for corroboration in other evidence.

[55]

There
    is no doubt the trial judge was aware that Stopford conceded in
    cross-examination that she may have been interchanging the two females and that
    her recollection may have been influenced by the media. The trial judge said
    [s]he also admits that she might be interchanging the two females in terms of
    which one had the cut arm, and Ms. Stopford does acknowledge that her
    recollection of the events may have been influenced by media coverage that she
    saw of the story.

[56]

As
    for Paget, on cross-examination he maintained that he was fairly certain the
    woman hed seen with the knife in her hand on the south side was the same woman
    he saw with the cut arm on the north side of the street. He was vague on any
    details which could help to identify the appellant.  He said that a saying had
    stuck in his mind at the time, that you should never bring a knife or a weapon
    to a fight because it may end up being used on you. He was struck by the irony
    that the appellant took the knife to the fight and ended up being cut by it.

[57]

Paget
    thought this at the time the events occurred, and while it is not
    identification
per se
, it is an indication of the impression made on
    his memory at the time  that the woman with the knife on the south side was
    the same woman who got stabbed on the north side. It is unlikely his memory
    would have been jogged that way if it had been someone other than the woman he
    had seen with the knife on the south side who ended up wounded on the north
    side.

[58]

In
    my view it was open to the trial judge to accept the evidence of Stopford and Paget.
    While their evidence was not identical, each was corroborative of the others
    on the material points. Both said the woman they had seen with the knife on the
    south side was the same woman who ended up with the cut arm on the north side
    and there is no doubt the woman with the cut arm was the appellant.

[59]

The
    trial judge found, and his finding is not challenged, that the two women
    involved in the south side fight were Faith Watts and the appellant. Faith
    Watts admitted in her video evidence that the knife, ultimately found to be the
    murder weapon, was her knife. She said she pulled it out during the south side
    fight and was almost immediately disarmed by  she thought Richard Hammond.
    She described the knife as one she had stolen in Montreal. Her boyfriend Fresh
    had also stolen an identical knife at the same time. Freshs matching knife was
    found among his belongings when he was searched following these events.

[60]

The
    evidence is clear, however, that Watts remained on the south side and did not go
    to the north side until the fight on the north side was over. At that time, she
    went over to assist her friend, the appellant, who was bleeding.

[61]

There
    were only four people involved in the fight on the south side of the streetcar
    Watts, the appellant, Fresh and Hammond. The knife is seen by both Paget and
    Stopford on the south side. Watts and Fresh stay on the south side, which
    leaves only the appellant or Hammond to take the knife to the fight on the
    north side. Hammond, as indicated earlier, is captured on video between the two
    fights  he does not have a knife in either hand and does not appear to be
    seriously injured at that point. By process of elimination, that leaves only
    the appellant who could have taken the knife to the north side. This fact,
    coupled with the evidence of Stopford and Paget, is strongly persuasive that it
    was the appellant who had the knife on the south side and the only one who could
    have taken it to the north side.

[62]

That
    this was the knife, identified by both Stopford and Paget, that was used to
    stab Hammond fatally and wound the appellant cannot be doubted on this record.

[63]

The
    nature of this evidence is not identification evidence in the strict sense.
    Neither Stopford or Paget were able to identify the appellant by a description
    of her features or what she was wearing at the time, other than in general
    terms  her clothing was baggy  her hair messy.

[64]

In
    dealing with Stopfords evidence, the trial judge specifically noted that she
    admitted she might be interchanging the two females. He did not specifically
    refer to the entire cross-examination about whether, for example, she was one
    hundred percent sure. It was not necessary for him to do so here. The point
    that he did mention was the common theme of the cross-examination and the trial
    judge was aware of it. But, as he was entitled to do, he accepted her evidence
    and that of Paget. As indicated earlier, their evidence was mutually corroborative
    and when considered with the rest of the evidence was powerfully persuasive
    overall.

[65]

The
    appellant submits that no one saw Watts transfer the knife to her. She suggests
    that it is equally plausible that Watts could have passed the knife to Jeremy
    Wooley or the unidentified third man who participated in the fight on the north
    side. The difficulty with this argument is that there was no reliable evidence
    that either of those men were ever on the south side of Queen Street at the
    material time. The only shred of evidence is that of Cam Bordignon, who gave a
    vague description of one of the onlookers to the south side fight, which might
    describe Wooley. It defies logic, however, to suggest that Wooley would simply
    stand by and witness his friend Fresh being pummelled into unconsciousness by
    Hammond, while doing nothing to help.

[66]

Finally,
    the appellant submits that the trial judge did not adequately deal with the
    inconsistencies in the evidence of Melissa Gallately. Had he done so, he would
    have rejected her evidence in relation to her observations of the appellant,
    who while engaged in the north side fight, was flailing her arms and hand
    toward the victims stomach and chest area.

[67]

Gallately
    gave a statement to the police the morning after the stabbing, and was
    cross-examined on that statement by defence counsel. She did not use the word
    flail in her statement to the police and did not specifically state that the
    female was beating the gentleman on the ground. She said that what she meant
    when she described the female as being on him was that she was crouched over
    him and that they were clearly landing blows, she was on top of him moving and
    flailing.

[68]

At
    the preliminary inquiry, Gallately also gave evidence and was cross-examined in
    relation to that. She again had explained that the two men were kicking and
    punching Hammond and that the female was on top of him. She  explained, when
    asked if she had seen the girl punch or kick:

Well, it was kind of a scuffle and I know she was on him.  She
    wasnt helping him.

[69]

She
    agreed that she had not mentioned the flailing of arms by the woman in either
    her statement to the police or in her evidence at the preliminary inquiry. When
    asked if she had any doubt about the arm flailing, she said:

No, I have a recollection to it. Just since I didnt say it
    before. Her motions and arm movements towards him were very aggressive.

[70]

Defence
    counsel took Gallately to both her statement to the police, which she gave the
    morning after the stabbing, and to the evidence she gave at the preliminary
    inquiry. In relation to her statement to the police, Gallately testified at
    trial that at the time she thought it had just been another bar fight, a common
    occurrence in the neighbourhood. She said if she had known that someone had
    died she may have, as she put it, been a little more, you know, diligent about
    coming up with extreme details.

[71]

In
    relation to her evidence at the preliminary inquiry, Gallately agreed that she
    had said the female assailant was on him and on top of him and that she had
    not said, then, that the female was flailing and moving her arms.

[72]

Defence
    counsel tried to have Gallately agree that the female was the least aggressive
    of the three who were attacking Hammond. She responded:

A.

No. Maybe
    physically but not verbally.

Q.      So physically shes

(counsel interjects)

A.      She was quite angry, quite aggressive verbally and her
    mannerisms towards him were very aggressive.

and the cross-examination continued:

Q.      Okay. So from a verbal point of view, she was not the
    least aggressive.

A.      No.

Q.      But from a physical point of view she was the least
    aggressive.

A.      Yes. Yes. If youre taking the arm flailing out, yes.

Q.      If were taking the arm flailing out. Well, are we
    taking the arm flailing out?

A.      I dont know.

Q.      Do you have some doubt about the arm flailing?

A.      No, I have a recollection to it. Just since I didnt
    say it before.  Her motions and arm movements towards him were very aggressive.

[73]

The
    trial judge accepted the evidence of Melissa Gallately. In his reasons, he referred
    only to the statement she had given to the police and her evidence to the
    effect that she may have been more forthcoming and provided greater detail, had
    she known that someone had died. The trial judge accepted that explanation as
    honest and forthright. He did not specifically reference the preliminary
    inquiry evidence and appellants counsel argues that by then, Gallately knew
    that someone had died and the trial judge should have dealt with this
    inconsistency.

[74]

I
    do not agree. This experienced trial judge was well aware that on another
    occasion this witness had said something different from the evidence she provided
    at trial. She specifically had not mentioned the flailing of the female
    assailants hands and arms on the either of the earlier occasions. The trial
    judge only referred to the police statement, and he accepted her explanation.
    The appellants complaint is with respect to Gallatelys failure to mention the
    flailing on a second occasion. However, Gallately was not asked at trial why
    she had failed to mention the flailing arms at the preliminary inquiry as she
    had been asked about the statement to the police. Instead, defence counsel
    reviewed with her the evidence she had given at the preliminary inquiry and Gallately
    explained what she had meant when she said the female was on top of him.  She
    agreed she had not mentioned the flailing of arms but had no doubt, at trial,
    about what she had observed.

[75]

There
    was no blatant contradiction of her evidence on an earlier occasion, in the
    strict sense. She merely elaborated at trial. The trial judge was fully aware
    of and appreciated that, although having had the opportunity to do so, this
    witness had not mentioned the flailing arms on at least one of those earlier
    occasions.

[76]

In
    my view, the trial judges failure to mention the fact that Gallately had also
    failed to mention the flailing of arms at the preliminary inquiry is of no
    consequence. The shortcoming of her evidence was the same failure to mention
    the same conduct. He accepted her evidence despite her failure on the one
    occasion he referenced in his reasons, as he was entitled to do. As the trial
    judge, it was his call; I would not interfere with his finding.

[77]

I
    would also note that the testimony of Nataja DeSilvia and Saad Mir generally supports
    the evidence of Gallately.

[78]

DeSilvia,
    who worked at a restaurant on the north side of Queen Street West, witnessed
    the fight on the north side of the street. She described the female involved in
    the fight as younger, wearing a tank top, and with dreadlocked hair. She saw
    punches being thrown by all involved in the fight. When the fight ended,
    DeSilvia saw the man who had been beaten hook his arm into a taxi, and saw the
    taxi carry him west on Queen Street. She heard the female yell that he had
    stabbed her, and she said that the female who had been involved in the fight was
    bleeding and calling for an ambulance. DeSilvia saw another female come to
    help, and then DeSilvia called 911.

[79]

Saad
    Mir was driving a taxi on the night of the stabbing. He witnessed the fight on
    the north side of Queen Street, and testified that he saw a male being attacked
    by a female and two other males. Mir testified that the male being attacked was
    on top of the female, while the other two males were kicking at him. Mir said
    that the male and the female were struggling, and that the female was making
    punching motions, although Mir could not testify as to the force of the blows.
    After about ten seconds, Mir said that the male who was being attacked got up
    and tried to get into another taxi, but could not get in. That male then
    approached Mirs taxi. Mir saw that he had a knife in his hands, and locked his
    doors. However, the windows were open, and the male locked his arm around the
    centre post of the car on the passenger side. Mir drove slowly, as there was
    traffic, and the male fell from the car as they passed by the church. Mir
    testified that he made a U-turn and drove back towards Niagara Street and
    alerted a police officer to Hammonds condition. He then made another U-turn
    and drove west along Queen Street. At that time, he saw the female who had been
    involved in the fight. He said she was holding her left wrist and saying that
    she had been stabbed.

[80]

Based
    on all of the above, I would not give effect to this ground of appeal.  In my
    view, the verdict is a reasonable one and is amply supported by the evidence.

(2)

Second Ground of Appeal - Failure
    to Apprehend and Address Exculpatory Evidence

[81]

The
    appellant argues that the trial judge misapprehended the evidence in that he
    did not consider exculpatory evidence which may have raised a reasonable doubt
    about the appellants guilt.

[82]

In
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 217,
    Doherty J.A. noted:

Submissions premised on an alleged misapprehension of evidence
    are commonplace in cases tried by a judge sitting without a jury. A
    misapprehension of the evidence may refer to a failure to consider evidence
    relevant to a material issue, a mistake as to the substance of the evidence, or
    a failure to give proper effect to evidence.

[83]

Both
Morrissey
and the recent decision of this court in
R. v.
    Alboukhari
, 2013 ONCA 581 are examples of cases where trial judges have
    misstated what the evidence in fact was. In both
Morrissey
and
Alboukhari,
this court quashed the convictions and ordered a new trial, as the
    misstatements were found to have played an important role in the trial judges reasoning.

[84]

This
    case is different in that the principal misapprehension alleged here is the
    trial judges failure to consider that Faith Watts, Jeremy Wooley or the
    unidentified third man could have been the killer.

[85]

Counsel
    for the appellant argues that this case is, on its facts, more like the case
    that was the subject of this courts decision in
R. v. Clouthier,
2012
    ONCA 636. In
Clouthier
the appellant was convicted of robbery and
    disguise with intent to commit an indictable offence. The offences arose from
    the robbery of a Macs Milk Store in Arnprior by a man wearing a balaclava. As
    the court put it, at para. 1:

The sole issue at trial was identity. The appellants principal
    ground of appeal is that in his reasons for conviction, the trial judge failed
    to give any consideration to evidence that the appellants DNA did not match
    that detected on a balaclava that was found near the scene of the robbery.

[86]

Sharpe
    J.A. writing for the court noted, at paras. 12-16:

In the circumstances of this case, the failure of the trial
    judge to address the significance of the DNA evidence is highly problematic.
    The Crown offered some evidence pointing to the appellant as the robber, but
    the Crowns evidence was far from compelling. While the evidence of the DNA on
    the balaclava did not conclusively demonstrate the appellants innocence, it
    was a significant piece of evidence that potentially exculpated the appellant
    and it therefore deserved some consideration by the trial judge.

The robbery took place on an October evening when one would not
    expect to see or find a balaclava.  This made it more probable that the
    balaclava found near the scene was the same one worn by the robber.  The
    balaclava covered part of the robbers mouth making it possible that the robber
    would have deposited DNA on the balaclava.

In my view the trial judge erred in law by failing to explain
    why the DNA and balaclava evidence did not raise a reasonable doubt as to the
    appellants guilt.

Another element in the evidence not dealt with by the trial
    judge was the store clerks evidence as to the height of the robber.  She
    testified that she is five feet five inches tall and that she was standing on a
    six inch platform behind the counter.  From that perspective, she was face to
    face with the robber and she estimated that he would have appeared an inch or
    less than an inch taller than her while she stood on the six-inch platform.
    This suggests that the robber could have been approximately six feet tall. The
    appellant is five feet seven or eight inches tall. The point was not emphasized
    by defence counsel in his closing submissions but it was mentioned and was
    clearly raised in the evidence.

While trial judges are not required to make reference to every
    piece of evidence, there is a duty to consider the evidence in its entirety,
    not simply the evidence that inculpates the accused.  In my view, the failure
    to deal with two items that tended to exculpate the appellant  the balaclava
    and the evidence as to the height of the robber  amounts to an error of law
    sufficient to justify setting aside these convictions.

[87]

The
    question raised here is whether there was a duty on the part of the trial judge
    to consider the alternate theories of liability raised by the appellant on this
    appeal  namely, the possibility that Faith Watts, Jeremy Wooley or the
    unidentified third man involved in the north side fight was the stabber  two
    of which were never raised in argument before the trial judge.

(a)

Faith
    Watts as the possible stabber

[88]

The
    appellant argues that the trial judge did not give the evidence that suggested
    Faith Watts was the actual killer the attention it deserved. She argues that
    the case against Watts was as strong as the case against her, and that the
    trial judges failure to deal with that evidence is a misapprehension of
    evidence amounting to an error in law. The misapprehension is the trial judges
    failure to consider what would amount to exculpatory evidence vis-à-vis the
    appellant.

[89]

This
    same argument was advanced at trial and rejected by the trial judge.

[90]

In
    this court, we begin with two important defence concessions:

1.

The appellant
    does not dispute the trial judges finding that it was the appellant and Faith
    Watts who were involved in the south side altercation; and

2.

The appellant
    does not dispute that it was Faith Watts on the south side tending to Fresh
    after he was beaten by Hammond.

[91]

The
    appellant points to the following evidence in support of her assertion that it
    is as likely that Faith Watts was the stabber as it is that she was:

1.

Watts owned the
    knife;

2.

Watts testified
    that she introduced the knife into the fight;

3.

All of the stabbing
    could have been performed on the south side;

4.

Dranichak
    identified Watts as the enraged female at the bank machine;

5.

Fresh, who was
    beaten, was Watts boyfriend; and

6.

DNA evidence
    strongly implicates Watts.

Watts Owned the Knife

[92]

As
    the trial judge noted in his reasons, that fact did not preclude his finding
    that the appellant had the knife in both the south side and north side fights. He
    rejected most of Watts evidence as unreliable given that, as she said, she had
    been drinking most of the day and at one point injected oxycontin. The mere
    fact that she was likely the owner of the weapon does not necessarily lead to
    the conclusion that she was the one who used it.

Watts Testified
    She Introduced the Knife into the Fight

[93]

The
    trial judge inferentially rejected the evidence of Watts that she introduced
    the knife into the fight by concluding, as he did, that the appellant either
    borrowed the knife earlier in the day or took it at the time Hammond beat
    Fresh.

[94]

Faith
    Watts had testified that she had her knife in her hand and almost immediately
    after opening the knife she was disarmed by, she thought, Hammond.

[95]

First,
    the only fight Watts was involved in was the fight on the south side and no
    issue is taken with the trial judges finding that after that fight Watts
    remained on the south side to tend to Fresh.

[96]

Second,
    Hammond is caught on the video from the One of a Kind Pasta Shop, after the
    south side fight and before the north side fight, and he is unarmed and
    apparently uninjured.

[97]

Third,
    if Hammond had taken the knife during the fight on the south side, it is
    unlikely events would have turned as they did.

[98]

Fourth,
    the suggestion contradicts the evidence of Stopford and Paget, which was evidence
    the trial judge accepted, that it was the appellant who had the knife in the
    south side fight.

Watts Could
    Have Performed all of the Stabbing on the South Side

[99]

Again,
    the video evidence from the One of a Kind Pasta Shop would suggest that Hammond
    was uninjured between the south side and north side fights.

[100]

The blood spatter
    from Hammond, and indeed the appellant, is all on the north side of the street.
    The only blood spatter on the south side belongs to Fresh.

[101]

Finally, Hammond
    comes into possession of the knife only after the north side fight  at which
    point he is obviously seriously wounded and the appellant has been stabbed.

Dranichak
    Identified Watts as the Enraged Female at the ATM

[102]

I have dealt
    with this evidence. The trial judge was entitled to reject Dranichaks evidence
    as unreliable for the reasons he gave.

[103]

There was a
    preponderance of evidence identifying the appellant as the woman with Fresh on
    the north side of the street in pursuit of Hammond and Dranichak before the
    fight on the south side of the street began.

[104]

I note that in
    his closing submissions to the trial judge, defence counsel (not Mr. Campbell) pointed
    to the lies and fabrications in Dranichaks evidence, and said:

I submit this court must be very cautious in using any of the
    evidence of Mr. Dranichak in your findings of fact.

Fresh, the
    man who was beaten by Hammond, was Watts Boyfriend

[105]

While this may
    have provided Watts with a motive, the fact remains and the evidence is
    undisputed that she remained on the south side with Fresh after he was beaten
    by Hammond. There is no evidence that places Watts on the north side while the
    fight there is ongoing.

DNA
    Strongly Implicates Watts

[106]

The trial judge
    dealt with this point as follows:

It is at this point that I will again refer to the DNA evidence.
    It established that there was more of Mr. Hammonds blood found on the footwear
    of Ms. Watts than was found on the footwear of Ms. Kish. The defence relies on
    this evidence to direct attention to Ms. Watts as the more likely perpetrator
    of Mr. Hammonds murder than Ms. Kish. The fact is that the amount of blood
    found on the footwear and clothing of many of the persons involved, including
    these two, is miniscule. It does not provide a solid foundation for making the
    type of distinction urged by the defence especially given that  there was blood
    on the street that all of these people could have stepped in or collected on
    their footwear after the stabbing of Mr. Hammond. This again shows some of the
    limitations of physical evidence.

[107]

In my view, this
    was a matter for the trial judge. He was there, he saw the amount of blood that
    was deposited on Watts boots and the very bottom edge of her shorts  he
    called the amounts miniscule.

[108]

There is no
    doubt that Watts walked the area of the stabbing after it was over while tending
    to her friend, the appellant, who had been stabbed on the arm. Not only is she
    observed by a number of witnesses doing so, she is captured on the CTV video. The
    crime scene was not preserved. Monica Sloan of the Centre of Forensic Sciences
    rejected defence counsels suggestion that the higher you go up on someones
    body the greater the investigative value of the sample, if it turns out to be
    someone other than the person?  This suggestion, of course, was in relation to
    the location of the victims blood found on the shorts worn by Faith Watts.

[109]

In my view, the
    trial judges conclusion that the DNA evidence was of little assistance in this
    case in terms of assisting in the identification of the person who stabbed Ross
    Hammond is well supported in the evidence.

[110]

I see no
    misapprehension by the trial judge. He considered the defence suggestion that Ms.
    Watts was the female with the knife in the fights.  He did not fail to
    consider or address this exculpatory evidence. To the contrary, he considered
    it and rejected it for the reasons he gave.

(b)
Jeremy Wooley as the possible stabber

[111]

I would note
    that defence counsel did not argue or suggest at trial that Jeremy Wooley may
    have been the stabber. That being the case, it is hardly surprising that the
    trial judge did not deal with this theory in his reasons. Such a theory is in
    my view utter speculation and is without foundation in the evidence.

[112]

There is no
    reliable evidence that places Wooley on the south side at the time that the fight
    between Hammond and Fresh took place. The trial judge found that it was Fresh,
    the appellant, and Watts who were in pursuit of Hammond and Dranichak after the
    initial confrontation at the ATM. Dranichak left the scene, leaving Fresh, the
    appellant, Watts and Hammond as the four people involved in the fight on the
    south side of Queen Street. The only evidence concerning Wooley is a vague
    suggestion by Cam Bordignon about a bigger, husky guy being an onlooker as
    the south side fight took place.

[113]

Bordignon was
    heading to a bar with two of his friends after having had a few drinks at a
    friends place. He said he had a good buzz going to the bar.

[114]

He said he
    observed three or four street kids moving in the same direction after the two
    jocks. One was a male that initially went to fight one of the jock guys  a
    tall and skinny street kid.

[115]

Bordignon also
    recalled a bigger, husky guy, maybe about 200 pounds. He thought he had a
    scruffy appearance and was unshaven. He said he remembered these two street
    kids because of the fights, plural, that he had seen.

[116]

Bordignon did
    not know if any of the street kids he had seen crossing from the north side of
    the street to the south side were women. He watched the fight between Hammond
    and Fresh  they were the only two he recalled being in that fight. Bordignon said
    that the skinnier street kid was tended to after the fight by a female street kid
    who appeared to be his girlfriend.

[117]

Asked where the
    bigger, huskier street kid went he responded:

Um, I really noticed him when the fight moved across the street
    north.

[118]

On the north
    side he remembered two or three street guys beating on the jock guy  they had
    the jock on the ground and were punching and kicking him.  He remembered the
    huskier street kid saying you die tonight.

[119]

There is no
    evidence that Wooley was involved in the south side fight. The only fight he was
    involved in was the north side fight.

[120]

If Wooley was
    the stabber, someone had to get the knife to him, and the only person it could
    have been logically, was the appellant.

[121]

It was Faith
    Watts knife. Stopford and Paget saw the knife in the appellants possession on
    the south side. Watts remained on the south side with Fresh. Only the appellant,
    who went to the north side in pursuit of Hammond, could have transferred the
    knife to Wooley.

[122]

If she did transfer
    the knife, the evidence is that the statement by Wooley you die tonight is
    made as the beating of Hammond is underway, and the beating continues for a
    time after the statement is made.

[123]

The evidence is
    clear and the appellant concedes that she was the woman involved in the north
    side fight where she herself was stabbed.

[124]

The fact is that
    the appellant was an active participant in the north side fight  where a
    vicious beating was administered to Hammond  from its start to its finish and she
    continued her participation after hearing Wooley utter the words you die
    tonight.

[125]

If Wooley
    administered the fatal stab wounds, the appellant would still be guilty of
    second degree murder as a party.

[126]

However, there
    is no evidence that places Wooley in such close proximity to the south side
    fight that he could have received the knife from Watts.

[127]

To suggest he
    was the stabber is, on the record, speculative at best.

(c) Third man as
    possible stabber

[128]

There is
    evidence that a third unidentified male was involved in the north side fight. However,
    there is simply no evidence to support an inference that he was the stabber
    other than his involvement in that fight.

[129]

There is no
    evidence he was ever seen on the south side while that altercation was ongoing.

[130]

The fact that
    the unidentified male left the scene after the north side fight does not make
    it any more likely that he was the stabber.

[131]

We know an
    unknown male was involved and that an unknown male told Shawn Park that he had
    been stabbed in a fight. That is the extent of the evidence and it is hardly
    enough to raise any doubt let alone a reasonable one.  Further, it was not a
    ground argued at trial.

[132]

In my view,
    there is no basis to conclude that the trial judge misapprehended the evidence
    by failing to deal with exculpatory evidence as the appellant has argued.

[133]

The trial judge
    dealt with, and rejected for the reasons he gave, the submission that Faith
    Watts was the stabber. That is not a misapprehension of evidence.

[134]

Further, the
    suggestion that either Wooley or the unidentified third man were possible
    stabbers was not argued at trial.

[135]

In any event,
    for the reasons given, in my view there is simply no evidentiary basis on which
    to make such an argument.

DISPOSITION

[136]

I would dismiss
    the appeal.

Released: March 10, 2014 STG

J.
    MacFarland J.A.

I
    agree S.T. Goudge J.A.

I
    agree E.A. Cronk J.A.

[1]
The trial judge concluded that the two females who were attempting to assist
    Fresh were the appellant and Watts. The appellant does not dispute this
    finding.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Knies, 2014 ONCA 224

DATE: 20140324

DOCKET: C57780

Doherty, Laskin and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cody Knies

Appellant

Diane Condo, for the appellant

Greg Skerkowski, for the respondent

Heard: March 20, 2014

On appeal from the sentence imposed on September 19, 2013
    by Justice

D. Kent
Kirkland of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

In our view the sentencing judge erred in principle by failing to
    consider totality when imposing consecutive sentences for the two death threats
    and criminal harassment. Although the two assaults were very serious offences,
    having regard to the youth of the offender and the principle of totality, a fit
    sentence is 18 months less pre-sentence custody of 5 months.

[2]

To be clear our intent is to reduce the 22 months sentence imposed by
    the trial judge to 18 months less pre-sentence custody of 5 months.  The breakdown
    of the 13 months is as follows:

·

Count 1  I month

·

Count 2  1 month concurrent

·

Count 6  6 months consecutive

·

Count 7  3 months concurrent

·

Count 9  3 months concurrent

·

Count 10  3 months concurrent

·

Count 11  2 months consecutive

·

Count 13  3 months consecutive

·

1 month consecutive for the breach of recognizance

[3]

Accordingly, leave to appeal sentence is granted and the custodial
    sentence is reduced from 17 months to 13 months, having regard to the
    pre-sentence custody of 5 months.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonough, 2014 ONCA 197

DATE: 20140314

DOCKET: C55765

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas McDonough

Appellant

Douglas  McDonough, in person

Marie  Comiskey, for the respondent

Heard and released orally: March10, 2014

On appeal  from the order of Justice Gisele M. Miller, dated June 22, 2012 dismissing a  summary conviction appeal from conviction entered on October 31, 2011 by  Justice S.R. Clark of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of one count of making false or deceptive
statements and one count of evading or attempting to evade compliance with report
of goods provisions contrary to the
Customs Act
, R.S.C. 1985, c. 1 (2
nd
Supp.), s. 160. The charges arose from the importation of an exotic car that
was illegal to import into Canada because of safety standards. The appellant
arranged for the importation by describing the components of a single car as
parts and dividing the shipment into two stages.

[2]

The appellant raises a number of grounds of appeal, all of which relate
to the provisions of the
Customs Act
relating to the procedures to be
followed with respect to classification and appraisal of goods imported and
determination of applicable tariffs. He argues first, that the administrative
process under the
Customs Act
must be exhausted before criminal
charges are laid and second, he relies a number of sections of the
Customs
Act
, in particular, ss. 20(1), 48(1) and 58(2), which deal specifically
with classification, levy of duties and appraisal of transaction value. He alleges
that as those provisions were not invoked, the charges were not validly brought.

[3]

The appellants arguments were thoroughly considered and rejected by
both the trial judge and the summary conviction appeal judge.

[4]

In our view, there is no basis in law for the proposition that the
administrative provisions under the
Customs Act
must be followed or concluded
before any criminal charges for deceptive conduct can be brought. The
provisions of the
Customs Act
dealing with classification, levy of
duties and appraisal of transaction value simply do not relate to the essence
of the charges on which the appellant was convicted, namely, making false
statements and committing evasion under the
Customs Act
.

[5]

The trial judge found that the appellant had taken elaborate steps to
organize separate shipments in order to deceive customs officials as to what
was being imported and that he made false statements to customs officials that
parts in the second shipment were meant for his own vehicle. There was ample
evidence to support those findings.

[6]

In our view, there is no merit to the application for leave to appeal
which we dismiss.

Robert J. Sharpe J.A.

E.E.
Gillese J.A.

Paul
Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meiz, 2014 ONCA 209

DATE: 20140320

DOCKET: C55769

Doherty, Laskin and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Haytham Ayman Meiz

Appellant

Tyler Botten, for the appellant

Moiz Rahman and Moray Welch, for the respondent

Heard and released orally:  March 17, 2014

On appeal from the conviction entered by Justice Toscano
    Roccamo of the Superior Court of Justice, dated June 30, 2011.

ENDORSEMENT

[1]

As ably argued by counsel for the appellant, this appeal turns on the
    lawfulness and, therefore, the constitutionality of the arrest that took place
    at the door to the appellants apartment.  The applicable law is not in
    dispute:  see
R. v. Storrey
, [1990] 1 S.C.R. 241; and the trial
    judges factual findings are not challenged.

[2]

Despite some confusion in the trial judges terminology between the
    grounds for detention and the grounds for arrest, the findings of fact made by
    the trial judge provided ample grounds for the appellants arrest.  Those
    findings included:

·

the marihuana smoke coming from the room when the police
    questioned the appellant at the door;

·

the appellants suspicious conduct at the door when being
    questioned by the police; and

·

the items (a weigh scale, white powder on the weigh scale, and a
    pill beside the weigh scale) observed on the shelf in the appellants room by
    the officer when he was standing at the door.

[3]

This constellation of facts, viewed reasonably and cumulatively by
    someone with the experience of the police officer in question, provided ample
    grounds for the appellants arrest.

[4]

As the arrest was lawful and, therefore, not a breach of s. 9, the
    subsequent conduct of the police, although clearly improper, could not impact
    on the admissibility of the evidence in question.  We stress that we come to
    this conclusion in the circumstances of this case.

[5]

The appeal is dismissed.

Doherty J.A.

John Laskin J.A.

K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Proulx, 2014
    ONCA 254

DATE: 20140317

DOCKET: C57928

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Proulx

(Accused/Appellant)

Paul Calarco, for the appellant

Christine Josic, for the respondent

Heard: March 13, 2014

On appeal from the sentence imposed by Justice Carpenter
    Gunn of the Superior Court of Justice, dated October 25, 2013.

ENDORSEMENT

[1]

The Crown conceded that the circumstances of the appellants confinement
    justify 1.5 to 1 credit for pre-trial custody and that the sentence should be
    reduced to time served. We so order.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Redman, 2014 ONCA 249

DATE: 20140331

DOCKET: C52937

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Inskip Redman

Appellant

Richard Litkowski, for the appellant

Rick Visca, for the respondent

Heard: March 28, 2014

On appeal from the conviction entered on March 8, 2010
    and the sentence imposed on October 14, 2010 by Justice Gisele M. Miller of the
    Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the appellant that there was no air of reality to wilful
    blindness and it should not have been left with the jury as a root of
    culpability. In addition the trial judge failed to refer to any evidence from
    which the jury could make a determination based on wilful blindness.

[2]

We cannot be satisfied that the jury did not consider wilful blindness
    in reaching its verdict.

[3]

Accordingly, the appeal is allowed, the conviction is set aside and a
    new trial is ordered.


COURT OF APPEAL
    FOR ONTARIO

CITATION:
    R. v. Robinson, 2014 ONCA 176

DATE: 20140306

DOCKET: C51957

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Robinson

Appellant

Joseph S. Wilkinson, for the appellant

Robert Gattrell, for the respondent

Heard in writing

On appeal from the conviction for
    second degree murder entered against Eric Robinson by Justice John R. Sproat of
    the Superior Court of Justice, sitting with a jury, on June 26, 2009, and the
    sentence imposed on November 13, 2009.

Simmons J.A.:

A.

Overview

[1]

These reasons address the sentence to be imposed on a substituted
    conviction for manslaughter.

[2]

In June 2009, following a trial by judge and jury, Eric Robinson was
    convicted of second degree murder. In reasons released on January 24, 2014, this
    court substituted a manslaughter conviction for the second degree murder
    conviction.

[3]

At the appeal hearing, Robinson asked this court to impose a sentence of
    time served in the event of a substituted conviction for manslaughter. As we
    decided not to remit sentencing to the trial judge, and as the Crown did not
    make sentencing submissions concerning a substituted conviction for
    manslaughter, in our January 24, 2014 reasons, we directed the Crown to file written
    submissions on sentence and permitted Robinson to file a written reply.

[4]

In their written submissions, neither the Crown nor Robinson requested
    an oral sentencing hearing. In all the circumstances, I consider it unnecessary
    to convene an oral sentencing hearing.

[5]

Robinson was sentenced to life imprisonment for second degree murder on
    November 13, 2009. He was arrested on October 9, 2007 and thus had served about
    two years and one month in pre-sentence custody. Robinson submits that, in
    accordance with the general practice prevailing in November 2009, his
    pre-sentence custody should be credited on a two-for-one basis. The Crown does
    not oppose Robinsons position. I would credit Robinson with four years and two
    months of pre-sentence custody.

[6]

In addition, Robinson has now served four years, three months and 23
    days in the penitentiary. This yields total time served as of the date of these
    reasons of eight years, five months and 23 days.

[7]

For the reasons that follow, I conclude that, had Robinson been
    sentenced for manslaughter on November 13, 2009, a sentence of eight years,
    five months and 23 days imprisonment would have been fit. In the
    circumstances, I would sentence Robinson to one day of imprisonment (in
    addition to time served) plus one year of probation on the terms set out below.

B.

The Circumstances of the Offence

[8]

The circumstances of the offence are more fully set out in my reasons
    relating to Robinsons conviction appeal, reported at 2014 ONCA 63, [2014] O.J.
    No. 272, and in my reasons concerning a related appeal,
R. v. White
, 2014
    ONCA 64, [2014] O.J. No. 273. For the purpose of these reasons, the following
    summary is sufficient.

[9]

Robinson was one of four young men partying outside the home of a friend
    in late September 2007. At around four oclock in the afternoon, the four young
    men noticed a 16-year-old walking down the street wearing headphones. They
    decided to rob him. For that purpose, the four young men followed the youth
    down a catwalk connecting their friends subdivision to an adjacent street. At
    some point, the four young mens pursuit turned into a running four-on-one
    chase. Just as the youth reached the adjacent street, one of Robinsons companions
    caught up with the fleeing youth, grabbed him from behind and held him in a
    bear hug. Within seconds, another of Robinsons companions caught up with the
    grabber and the youth, and stabbed the youth once in the chest, inflicting a
    fatal wound. Robinson and his remaining companion arrived on the scene seconds
    after the stabbing. Almost immediately, Robinson and two of his companions (the
    grabber and the stabber) fled back down the catwalk to their friends basement apartment.

[10]

Two
    days after the killing, Robinson gave a statement to the police in which he
    provided himself with a false alibi that his former girlfriend supported. In
    the same statement, Robinson offered to provide the police with assistance in
    finding out who was responsible for the stabbing. He also told police that he
    knew that one of his companions (the stabber, Omari White) typically carried a
    knife in his pocket, but that he did not know whether White was present on the
    day of the stabbing or if White was responsible for the stabbing.

[11]

Robinson
    and two of his companions (the grabber and the stabber) were tried together on
    charges of first degree murder. Robinson refused to testify at the preliminary
    inquiry of the fourth young man charged in relation to the stabbing.

[12]

As
    noted above, the victim of the offence was a 16-year-old youth. He was an
    honours student and was walking to his part-time job at Tim Hortons when he was
    killed. He was a young man of impeccable character and great promise. His senseless
    and tragic death had a devastating impact on his parents and his two younger
    brothers.

C.

The Offender

[13]

Robinson
    was 19 years old on the date of the killing, and had a minor non-violent
    criminal record. While incarcerated, he was moved to a medium security facility
    and has completed his high school credits.

D.

procedural issues

[14]

This
    court is entitled to substitute a conviction for manslaughter and impose a
    sentence that is warranted in law under ss. 686(1)(b)(i) and 686(3)(b) of the
Criminal
    Code
.
[1]

[15]

Section
    719(1) of the
Criminal Code
provides that [a] sentence commences when
    it is imposed, except where a relevant enactment otherwise provides.

[16]

In
R. v. Boyd
, [1979] O.J. No. 499, 47 C.C.C. (2d) 369 (C.A.), Martin
    J.A. noted an argument that there may be an implied power to backdate a
    sentence to the date on which the original sentence was imposed. However, in
Boyd
,
    this court imposed a sentence for a substituted offence commencing as of the
    date of the courts reasons.

[17]

Consistent
    with the disposition in
Boyd
, the weight of authority from this court supports
    the view that where an appeal court imposes a sentence for a substituted
    offence under s. 686(3)(b) of the

Criminal Code
, the sentence
    should commence on the date on which it is imposed:
R. v. Conway
,
    [1997] O.J. No. 5224, 36 O.R. (3d) 579 (C.A.), at para. 58;
R. v. Carrière
,
    [2002] O.J. No. 1429, 158 O.A.C. (C.A.), at paras. 6, 9 and 18;
R. v. Roks
,
    2011 ONCA 618, [2011] O.J. No. 4266, at paras. 24-25.
[2]

[18]

The
    starting point for determining a fit sentence for a substituted offence is to
    consider what would have been an appropriate sentence as of the date of the
    original sentencing:
Carrière
, at para. 9;
Roks
, at para. 26.
    Varied approaches have been adopted to determine how such a sentence should be
    implemented. For example, in
Carrière
, this court took account of what
    would have been the mandatory release date had the sentence been imposed as of
    the date of the original sentencing. In
Roks
, this court determined
    the appropriate sentence as of the original sentencing date, and then credited
    pre-sentence custody to the original sentencing date on a two-for-one basis,
    and time served subsequent to the original sentencing date on a one-for-one
    basis.

E.

the Crowns position on sentence

[19]

The
    Crown asks for a 10-year sentence of imprisonment to run from the date of
    imposition less credit for pre-sentence custody on a two-for-one basis to the
    original sentencing date, and on a one-to-one basis from the original
    sentencing date to the date of imposition. In seeking this sentence, the Crown
    relies on the following aggravating factors:

·

the appellant was a willing and active participant in a group
    robbery;

·

the killing was the culmination of a completely random attack on
    a total stranger in broad daylight in a residential neighbourhood;

·

the victim was vulnerable in that he was unarmed, outnumbered,
    younger than his attackers and had no reason to be on guard;

·

while the attack was impromptu, it was nevertheless co-ordinated
    in the sense that the attackers timed their approach so that it would happen in
    the catwalk;

·

Robinson knew that the stabber typically carried a knife;

·

after the stabbing, Robinson fled the scene, concocted a false
    alibi and recruited others to support that alibi; and

·

the crime had a devastating impact on the victims family and is
    the type of crime that shocks the community.

[20]

The
    Crown acknowledges that Robinsons youth and prospects for rehabilitation are
    mitigating factors on sentencing. However, the Crown urges that, despite these
    factors, the circumstances of the offence require a strong deterrent message.

F.

Robinsons Reply Submissions

[21]

Robinson
    disputes the Crowns submissions concerning the impact of various aggravating
    factors and, in particular, disputes the Crowns submission that he knew that
    the stabber typically carried a knife. Robinson also points to the fact that
    prior to trial he offered a plea to manslaughter, which the Crown refused.

[22]

Robinson
    contends that the appropriate range of sentence for manslaughter, where the
    offender did not directly participate in causing the death of the victim, is
    four to eight years imprisonment. He concedes that proper balancing of the
    aggravating and mitigating factors in this case should place the sentence in
    the middle to upper end of this range (i.e. six to eight years imprisonment).

[23]

To
    facilitate his transition to the community, Robinson asks that a sentence of
    one day of imprisonment plus six months probation be imposed.

G.

Discussion

[24]

I
    agree with the Crowns submission that despite his youth and his prospects for
    rehabilitation, the sentence imposed on Robinson should strongly reflect the
    sentencing principles of denunciation and deterrence. Robinson joined three
    others in an attempt to rob a defenceless victim. He and his companions chased
    the victim down. He was aware that these events could lead to harm to the
    victim that was more than minor or trifling. Moreover, despite Robinsons
    submissions to the contrary, I accept the Crowns position that the evidence at
    trial demonstrated that Robinson knew that the stabber typically carried a
    knife. He acknowledged that fact in his statement to the police.

[25]

Overall,
    the circumstances of this offence reveal the senseless and tragic killing of a
    vulnerable youth who held much promise; that this crime occurred in broad
    daylight and in a residential area is also shocking to the community.

[26]

At
    the same time, Robinsons sentence must reflect his level of culpability. He
    was not present when the killing occurred and, unlike the grabber and the
    stabber, he was not a physical participant in the killing. Moreover, the
    substituted conviction for manslaughter reflects the reality that the Crown was
    unable to prove that Robinson had the
mens rea
for murder. The Crown
    did not prove that Robinson either intended death to occur, or that Robinson
    realized death was likely to occur from the common purpose in which he engaged.

[27]

Having
    regard to all the circumstances, I am satisfied that a sentence in the range of
    eight years and five months imprisonment would have been a fit sentence as of
    November 2009.

[28]

However,
    as the sentence imposed by this court will run from the date it is imposed, an
    appropriate sentence should account for the time Robinson has served to date, as
    well as facilitate his reintegration into the community. Accordingly, I would
    impose a sentence of one day of imprisonment (in addition to time served), plus
    one year of probation on the following terms:

·

keep the peace and be of good behaviour;

·

report to a probation officer within 48 hours after release and
    thereafter weekly as directed by a probation officer; and

·

reside in a place approved by a probation officer.

H.

Conclusion

[29]

Based
    on the foregoing, I would impose a sentence of one day of imprisonment (in addition
    to time served), plus one year of probation on the terms set out above. This
    sentence shall run from the date of the release of these reasons.

Released:

MAR -6 2014                                    Janet
    Simmons J.A.

EAC                                                 I
    agree John Laskin J.A.

I
    agree E.A. Cronk J.A.

[1]

In my reasons dated January 24, 2014, I said I would allow
    Robinsons appeal, set aside his conviction and substitute a conviction for
    manslaughter. In accordance with ss. 686(1)(b)(i) and 686(3), I should have said
    I would dismiss his appeal and substitute a conviction for manslaughter.

[2]
In
R. v. Salt
, [2007] O.J. No. 1344 (C.A.), this court directed that
    the sentence for a substituted offence commence on the date of the original
    sentence. However, it appears that the parties had agreed on that disposition.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Slim, 2014 ONCA 228

DATE: 20140325

DOCKET: C58046

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Behnam Slim

Appellant

Frances S. Brennan, for the appellant

Mary-Ellen Hurman, for the respondent

Heard: March 24, 2014

On appeal from the sentence imposed on July 24, 2013 by
    Justice Gregory A. Pockele of the Ontario Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

We have not been persuaded that the total sentence was excessive. The
    abduction that lasted 10 years was serious with almost no physical contact
    during that time. The 3 year sentence was appropriate. The 18 months
    consecutive for fail to appear was high but this was a particularly aggravating
    set of circumstances. The respondent not only failed to appear, but he breached
    an undertaking to the court to return the children after the case was
    adjourned.

[2]

Accordingly, while leave to appeal sentence is granted, the
    appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Solano, 2014
    ONCA 185

DATE: 20140310

DOCKET: C52560

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Solano

Appellant

Michael A. Crystal, for the appellant

Elise Nakelsky, for the respondent

Heard: March 6, 2014

On appeal from the sentence imposed on June 4, 2010 by
    Justice R. Pelletier of the Superior Court of Justice.

By the Court:

A.      Introduction

[1]

On June 4, 2010, the appellant was designated a dangerous offender and
    sentenced to an indeterminate detention.  The predicate offences of which he
    was convicted included: possession of a knife for a purpose dangerous to the
    public peace; assaulting a peace officer with intent to resist arrest; breaking
    and entering and attempting to commit robbery; breaking and entering and
    committing robbery; three counts of robbery; attempted robbery; and hostage
    taking.

[2]

The appellant appealed from his designation as a dangerous offender.  He
    argued that the sentencing judge erred: (1) by failing to exercise his
    discretion not to designate the appellant as a dangerous offender, as then
    permitted under s. 753(1) of the
Criminal Code
; and (2) by finding
    that the appellant did not fit the description of a long-term offender under s.
    753.1 of the
Criminal Code
.  We note that his specific complaints
    regarding the sentencing judges decision were narrowed somewhat during oral
    argument of the appeal.  In addition, at the outset of oral argument, the
    appellant abandoned his fresh evidence application.

[3]

At the conclusion of oral argument, we dismissed the appeal for reasons
    to follow.  These are those reasons.

B.      Discussion

(1)

Designation as a Dangerous Offender

[4]

We see no reversible error in the sentencing judges decision to
    designate the appellant as a dangerous offender.

[5]

The designation in this case was based on evidence of: the violent
    nature of the appellants predicate offences; his lengthy and virtually
    uninterrupted history of criminal conduct (more than 50 criminal convictions,
    including numerous crimes involving severe violence and multiple convictions
    for breaches of court orders (some while he was on bail or parole)); his proven
    repeated unsuccessful attempts at reintegration into the community; his
    psychiatric diagnosis as a psychopath with anti-social personality disorder and
    substance dependence, together with possible schizophrenia; his historical lack
    of response to anti-psychotic medications; his assessed moderately high to
    high-risk of reoffending; his past refusals to continue prescribed or
    recommended treatment; and the absence of any evidence accepted by the
    sentencing judge that the risk the appellant posed to the public could
    eventually be controlled in the community.  Based on all this evidence, which
    was carefully considered and evaluated by the sentencing judge, it was open to
    the sentencing judge to designate the appellant as a dangerous offender.

[6]

Contrary to the appellants submission, a dangerous offender designation
    is not restricted to offenders who commit the gravest of crimes.  There is no
    requirement under the
Criminal Code
that the serious personal injury
    offence required to trigger a dangerous offender application meet a specified
    threshold of seriousness.  As this court recognized in
R. v. M.B.H.
(2004),
    70 O.R. (3d) 257, 186 C.C.C. (3d) 62 (C.A.), a worst offender/worst offence
    characterization is not a precondition to the imposition of an indeterminate
    sentence under s. 753.1 of the
Criminal Code
.  To the contrary, a
    dangerous offender designation and an indeterminate sentence are properly
    imposed in cases where, as here, the offender meets the statutory criteria for
    such a designation and his or her future risk cannot be controlled through a
    determinate sentence or the imposition of a long-term supervision order.

[7]

In this case, the sentencing judge considered the suitability of a
    long-term supervision order and concluded, on the evidence accepted by him,
    that the appellants risk of re-offence is very high and there is no reasonable
    possibility of eventual control of that risk in the community.  These findings
    were amply grounded in the evidentiary record, in particular, by the evidence
    of: the appellants lack of insight into the seriousness of his violent
    offences and their consequences; his continuing rationalization of the violent
    crimes he was found to have committed; his repeated reintegration failures; his
    continuing substance abuse, specifically, his admitted addiction to crack
    cocaine; his lack of familial supports; and his unresolved, serious mental
    health issues.

[8]

This ground of appeal fails.

(2)

Ruling that the Appellant is not a Long-Term Offender

[9]

The appellant challenges the sentencing judges ruling that he does not
    fit the description of a long-term offender.  As advanced during oral argument,
    this challenge has two components.

[10]

First,
    the appellant submits that the sentencing judge erred by failing to make a
    definitive finding as to whether the appellant suffers from schizophrenia.

[11]

We
    do not accept this submission.  Both psychiatrists who testified at the
    sentencing hearing (one of whom testified for the defence) essentially agreed that
    a determination whether the appellant suffers from schizophrenia
in
    addition
to his other agreed multiple psychiatric disorders was not a
    crucial factor given that the treatment for schizophrenia and the appellants
    type of psychosis are the same.  In addition, the appellant acknowledges that a
    diagnosis of schizophrenia would not materially lower his risk assessment.
    Even if schizophrenia formed part of his diagnosis, he would remain in the
    moderately high risk of reoffending category.

[12]

It
    was not the sentencing judges role to medically diagnose the appellant.  His
    role was to assess the appellants risk of violent recidivism and whether there
    was a reasonable possibility that this risk could eventually be controlled in
    the community.  The sentencing judge properly fulfilled these tasks.

[13]

Second,
    the appellant contends that the sentencing judge erred by failing to provide
    reasons for rejecting the evidence of two psychiatric nurses that the
    appellants risk could be managed to an acceptable level if he participated in
    community-based programs offered by Corrections Services Canada (CSC) and his
    participation in those programs was appropriately monitored.

[14]

Again,
    we disagree.  The sentencing judge was entitled to reject the evidence of the
    defence witnesses regarding the appellants prospects for effective treatment
    and risk reduction and to accept, as he did, the expert opinion evidence of Dr.
    Hucker regarding the prospects for eventual control of the appellants risk to
    the public.  Further, both nurses acknowledged during their evidence that the
    appellants past efforts at reintegration into the community had failed.  The
    record established that the appellant had failed to take full advantage of
    measures available to him while detained and, as well, on various release
    programs.  Indeed, he had a history of refusing treatment recommendations while
    on statutory release and his past conduct while under community supervision had
    prompted revocation of his parole.

[15]

Resort
    to the long-term offender regime is appropriate only where there is evidence
    that an offender can be meaningfully treated, so that the offenders risk to
    the public can be controlled at an acceptable level, within a determinate
    period of time.  A mere hope that treatment will be successful, or simple
    optimism that there is a reasonable possibility of eventual control of the
    offenders risk in the community, is insufficient to ground a determinate
    sentence:
R. v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357.

[16]

In
    this case, the sentencing judge did not err in concluding that the proposed
    untested CCS programming was no more than an expression of hope that the
    appellants risk could eventually be contained in the community.  Nor did he
    err in holding that the trial treatment of a relatively new anti-psychotic
    medication  Clozapine  as proposed by the defence psychiatrist (Dr.
    Federoff), was too speculative a measure of future risk reduction.  On the
    evidence before the sentencing judge, it was uncertain whether the appellant is
    a suitable candidate for this drug, the drug has a relatively low to moderate rate
    of success (33%) and there is no way to guarantee that the appellant would
    comply with a Clozapine-treatment regime while in the community, unless the
    drug was administered by injection.  Notwithstanding his claims to the
    contrary, the appellants past responses to treatment in the community strongly
    undercut any suggestion of future compliance with a prescribed treatment regime
    of the type identified by Dr. Federoff.

[17]

At
    the end of the day, after evaluating the risk assessment and treatment evidence
    pertaining to the appellant, the sentencing judge held on the totality of the
    evidence that there was no adequate basis for concluding that there was a
    reasonable possibility that the appellants risk could eventually be controlled
    in the community.  His reasons clearly reveal the basis for this holding.

C.      Disposition

[18]

Accordingly,
    for these reasons, the appeal is dismissed.

Released:

MAR 10 2014                                   E.A.
    Cronk J.A.

EAC                                                Gloria
    Epstein J.A.

M.L.
    Benotto J.A.