COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McCullough, 2021 ONCA 71

DATE: 20210203

DOCKET: C63642

Huscroft, Miller and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James McCullough

Appellant

Lance Beechener, for the appellant

Elise Nakelsky, for the respondent

Heard: October 19, 2020

On appeal from the conviction entered on
    April 25, 2016 by Justice Renee M. Pomerance of the Superior Court of Justice,
    sitting with a jury.

Huscroft J.A.:

OVERVIEW

[1]

There is no doubt that James McCullough killed
    Alexander Fraser. He admitted to stabbing him numerous times and dismembering
    his body. The issues at trial were whether he intended to do so; whether he was
    provoked; and whether the killing was planned and deliberate.

[2]

The appellant was convicted of first-degree
    murder and committing an indignity to a human body. He appealed both the
    convictions and the sentence but has abandoned the sentence appeal. He raises
    two issues in relation to his convictions. First, he argues that the trial
    judge erred in failing to instruct the jury concerning his post-offence
    conduct. Second, he argues that the trial judge erred in admitting evidence of
    his desire to commit cannibalism, evidence he says was prejudicial. The
    appellant contends that, as a result of these errors, he was denied his right
    to a fair trial.

[3]

In my view, the trial judge made no such errors.
    I would dismiss the appeal for the reasons that follow.

BACKGROUND

[4]

The background facts are not in dispute.

[5]

On September 8, 2013, following an evening spent
    drinking, the appellant and his friend Alexander Fraser decided to take a cab
    from Orangeville to London and rent a hotel room. A cab was dispatched to the appellants
    home and the appellant informed the driver that he and Fraser were heading to
    Motel 6 in London. The appellant gave the cab driver $320 cash for the trip.
    Shortly after leaving for London, the appellant directed the cab driver to return
    to his home and to wait for him. The appellant exited the cab and entered his
    home. He returned to the cab a few minutes later carrying two bags  a large
    hockey bag and a smaller duffle bag. The cab then proceeded to London.

[6]

The appellant and Fraser spoke with the cab
    driver throughout the trip. The appellant insisted that Fraser call him by the
    pseudonym, Josh Childress, rather than call him by name, but Fraser often referred
    to the appellant as James. Fraser told the driver he was drunk and asked her to
    stop the cab several times during the trip in order to allow him to urinate.

[7]

Although the appellant and Fraser were driven to
    Motel 6 and entered the motel, they did not stay there. They left that motel
    and headed to the nearby Ramada Inn. The appellant spoke with the clerk. Fraser
    was behind him, carrying both bags. The Ramada was full so they went to the
    Travelodge, where they got a room. By this point, it was around midnight. The
    Travelodge clerk testified that the appellant gave the name Josh Childress, did
    not provide any identification, and paid for the room in cash. The two men went
    to their room, each carrying one of the bags.

[8]

Early the following morning, the appellant
    registered for another night at the hotel and asked the clerk to inform
    housekeeping that he did not need to have his room cleaned. That afternoon, he
    sent a text message to a college friend, Lucas Verscheure, inviting him to the
    hotel, asking him to bring shoes, and telling him to come alone. Verscheure
    attended but brought along a mutual friend, Colby McGee. The appellant met them
    at the front door of the hotel and took them to his room. Verscheure described
    the appellants behaviour during the visit as highly disturbed and said that
    his behaviour became weirder and weirder. Verscheure did not consume alcohol or
    drugs during the visit, but McGee had beer and used cocaine with the
    appellant.

[9]

The appellant told the men that the two bags in
    the room contained stolen documents he needed to dispose of and offered
    Verscheure $600 to drive him to North Bay to dump the bags. The appellant then
    informed Verscheure that there were some body parts in the bags and asked him to
    help dump the bags in the Peterborough area or in London. Verscheure refused
    and he and McGee left the hotel.

[10]

Later that afternoon, the appellant called his
    uncle and told him that he had killed someone. His uncle described the
    appellant as distraught and in tears. He was concerned that the appellant was
    contemplating suicide and told him to call a lawyer and the police. The
    appellant called 911 at approximately 7:56 pm and said that there was a body in
    his room. He said that he had spoken with a lawyer, was unarmed, and wanted to
    turn himself in. He provided no further information.

[11]

The police entered the hotel room. They found an
    empty bottle of tequila and empty beer cans along with some full beer cans in
    the refrigerator; cigarette butts; and empty take-out bags from Kentucky Fried
    Chicken and Wendys with receipts dated that day. Two bags, two backpacks, and
    two belts were on the floor.

[12]

The police found Frasers torso stuffed into the
    large bag. His head, legs, arms, and penis were in the smaller duffle bag along
    with a 20 cm knife. The knife was in a paper bag and the head and penis were in
    a garbage bag. A piece of a leg bone was in a resealable Ziploc bag in one of
    the two backpacks. A small arm muscle was the only part of Frasers body that
    was missing.

[13]

The second backpack had personal items belonging
    to Fraser as well as the appellants knife sharpener. No cellphones were found.
    The Crown suggested that there was inculpatory evidence on the appellants
    cellphone and that he gave it to his mother before the police arrived but the
    appellant denied this.

[14]

Police examination of the room suggested that
    Fraser had lain between the two beds for a period of time and had been
    dismembered in the bathtub. He had been stabbed 29 times before being
    dismembered. There was no blood on the appellants clothes, save for a spot of
    blood on the back of his pants. There was no damage to Frasers clothes,
    suggesting that he had not been wearing them when he was stabbed. Fraser had
    both marijuana and a substantial amount alcohol in his system, well over the
    legal limit for driving.

THE EVIDENCE

Psychiatric evidence

[15]

The appellant had been seeing a psychiatrist before
    the killing as part of a psychosis intervention program. A psychiatric nurse,
    Brendan Carmichael, met with him on several occasions. Carmichael testified
    that the appellant told him of the need to slay celebrities as a sacrifice and told
    him that he had killed three cats and had been fascinated when he cut one of
    them open. The appellant told him he had thought of doing this to a human and
    would consider eating human flesh, expressing the view that by doing so you
    could acquire a persons traits. However, the appellant told Carmichael that he
    had no plans to do so and Carmichael thought that it was a fantasy.

[16]

Carmichael testified that the appellant told him
    on another occasion prior to the killing that he had exaggerated some things in
    an attempt to appear badass. He had killed only one cat, not three, and had
    only imagined killing and eating a human.

The rap lyrics

[17]

During a search of the appellants home the
    police found the following rap lyrics written by the appellant:

U no its me when i come thru the scene, homie

Another day another dollar
my only dream is
    get [illegible]

Yall faggotz soft being rich is only dream

Only things in my dreams is your girl and

Your money, homie thinks im joking but

aint a damn thang funny, Ill dig ur pockets

break your jaw and ram a knife thru

your tummy, you aint been thru half the

shit I been through, Ill go through,

Your whole crew, a routine Im

used to, chop em up mail their parts

to you, Im so fucking sick my favurite

drink is the blood of a jew, always in

the kitchen cooking but its never

stew, homie pass the pipe time for this rock
    to brew

The appellants testimony

[18]

The appellant admitted that he wrote the rap
    lyrics over one year prior to the offence and that the lyrics referenced
    chopping up people and drinking blood. He described the lyrics as death
    rap, which was designed to be as violent as possible, but he denied that the
    reference to stew was a reference to cooking body parts. He said it was a reference
    to cooking cocaine into crack cocaine but added that he had never in fact
    cooked crack cocaine.

[19]

The appellant said that he and Fraser planned to
    commit a home invasion robbery in London and had gone there for that reason.
    This explained the cab ride and hotel stay, the empty duffle bags, paying for
    everything with cash, and using the alias Josh Childress. The appellant
    testified that he regularly carried a knife in his backpack because he was a
    drug dealer and that his backpack also included a knife sharpener along with a
    bottle of tequila, cocaine, and two belts.

[20]

The appellant testified that he and Fraser
    chatted, drank, and smoked after they checked into their hotel room and that he
    consumed some cocaine. He took a shower about one hour later and when he went
    outside the bathroom to get his towel, he saw Fraser standing there nude. According
    to the appellant, Fraser informed him that he was attracted to him and wanted
    to have sex. The appellant said that he freaked out and that he grabbed his knife
    and started stabbing Fraser after Fraser attempted to grab his penis. The
    appellant said he remembered stabbing him in the chest only twice before blacking
    out. The appellant testified he had no memory of his actions after this. He
    said that he awoke to find Frasers dismembered body in the bathtub. He was
    upset and his first reaction was to attempt to cover it up. He cleaned the
    room, put the body parts into the two bags and Frasers personal items into the
    backpacks. At this point he sought the assistance of Verscheure.

[21]

The appellant gave a statement to the police,
    which was not in evidence, but portions of the statement were put to him in
    cross-examination. The appellant told the police that he had acted in self-defence
    after Fraser brandished the knife and attempted to sexually assault him. The
    appellant said: He [Fraser] was like some fucking monster, rapist. I dont
    even know how to describe. I was scared. At trial, however, the appellant
    testified that the narrative given to the police was untrue. He explained that
    he tried to make Fraser look as terrible as possible because he was trying not
    to take any responsibility. In particular, he claimed that he omitted to
    mention he was naked because he didnt want to police to think there was
    anything sexual going on. He said that he was lying in order to persuade the
    police he had acted in self-defence and that the death was an accident.

THE ARGUMENTS AT TRIAL

The defence theory

[22]

Counsel for the appellant conceded to the charge
    of manslaughter but argued that the appellant did not intend to kill or
    dismember Fraser and that he did so only suddenly, in immediate reaction to an
    unexpected sexual advance and sexual attack.

[23]

Counsel said that the appellant made his comments
    to Nurse Carmichael in an attempt to obtain a personality disorder diagnosis,
    which he wanted in order to obtain disability benefits from the Ontario
    government, and that his comments did not relate to or demonstrate a plan to
    kill Fraser. Nor did the rap lyrics demonstrate a plan to kill him. They were a
    red herring. The appellant was a drug dealer and carried a knife and knife
    sharpener because of his dangerous occupation.

[24]

The trip to London was explained by the appellants
    testimony that he and Fraser had gone there to party, perform a home invasion,
    and to go shopping. The bags were for use in the home invasion and one bag was
    also used to carry a box of beer. The intention to perform the home invasion
    explained the appellants use of the pseudonym Josh Childress.

[25]

The absence of cuts on Frasers clothing
    supported the appellants testimony that he was naked when he was stabbed and
    the absence of any significant blood on the appellants clothing suggested that
    he was also naked. Counsel argued that the appellants actions in cleaning up
    the scene, putting the body parts into the bags, and calling his uncle and
    Verscheure demonstrated a frantic reaction rather than a prior plan.

The Crowns theory

[26]

The Crown argued that Nurse Carmichaels
    evidence and the rap lyrics demonstrated that the appellant had a fantasy about
    killing a person and dismembering him. The appellant had obtained a work visa
    and was going to Australia shortly; he planned to kill and dismember Fraser
    before he left.

[27]

The plan involved taking Fraser to London,
    paying for the trip in cash, and using a pseudonym to avoid detection. The
    appellant had Fraser carry the bags into the motel so that if he were caught,
    he could claim that Fraser had brought them and that Fraser had intended to
    kill him. The Crown argued that the appellant brought the knife and knife
    sharpener for the purpose of dismembering Fraser. The belts were brought to
    restrain him if necessary.

[28]

The Crown theorized that Fraser did not live long
    after he arrived in the hotel room. He was stabbed while he lay between the two
    beds and was then dragged to the bathtub, where he was dismembered. The Crown
    argued that the appellant kept a piece of bone from Frasers leg in a Ziploc
    bag as a souvenir, then cleaned the hotel room to get rid of the evidence.

[29]

The Crown argued that the appellant lied to the
    police and at trial and that he had never blacked out. The sexual attack was a
    story he created to deny his plan to kill and dismember Fraser.

ISSUES ON APPEAL

[30]

The appellant raises two issues on appeal.
    First, he argues that the trial judge erred in failing to caution the jury
    about his post-offence conduct and the limited use to which it could be put. He
    submits that the judge had to inform the jury that this evidence had no
    probative value in relation to the appellants level of culpability and should
    have cautioned the jury concerning what he describes as bizarre demeanour
    evidence. This argument was the focus of the appellants submissions at the
    hearing. Second, the appellant argues that the trial judge erred in admitting
    evidence of his desire to commit cannibalism, evidence that he says was
    prejudicial.

THE POST-OFFENCE CONDUCT EVIDENCE

[31]

The post-offence conduct in question includes
    the following:

1)

The dismemberment of the victim;

2)

The extensive cleanup of the motel room;

3)

The attempt to dispose of the body;

4)

The appellants lies to the police and his
    acquaintances; and,

5)

The appellants calmness and ability to make
    rational decisions the day after the killing.

[32]

It also includes conduct the appellant characterizes as demonstrating
    his bizarre demeanor following the offence, including:

1)

Eating two fast food meals in the motel room
    with the dismembered body of the victim beside him;

2)

Laughing during the 911 call; and,

3)

Putting a piece of the victims leg bone into a
    resealable Ziploc bag.

The appellants position

[33]

The appellant notes that the Crown referred to
    the post-offence conduct evidence throughout her cross-examination of the
    appellant. The Crown also referred to the appellants post-offence conduct
    throughout her closing address, emphasizing that the appellant ate fast-food meals
    alongside the bags containing the dismembered remains of Fraser and that he
    kept a piece of Frasers leg bone, an action the Crown described as akin to
    keeping a trophy or souvenir of having lived out his fantasy. The appellant
    complains that the jury was given neither a post-offence conduct caution nor a
    no-probative-value instruction in respect of this evidence. He says that in the
    pre-charge conference the trial judge specifically asked the Crown, but not the
    defence, if she wanted a post-offence conduct instruction.

[34]

The appellant argues that the probative value of
    the post-offence conduct was equivocal at best, yet the jury would have been
    tempted to focus on this evidence  especially the dismemberment and the
    appellants ability to eat beside the dismembered body  and it could have
    played a powerful role in the jurys deliberation. The appellant submits that
    an instruction to the jury cautioning them about this evidence and explaining
    to them the limited uses to which it could be put was required. The lack of any
    instruction on the post offence conduct is a major error that requires a new
    trial.

The respondents position

[35]

The Crown acknowledges the absence of a specific
    instruction on post-offence conduct but says that none was necessary: the trial
    judge mitigated the main reasoning risk associated with post-offence conduct by
    instructing the jury to consider alternative explanations for the appellants
    conduct and carefully reviewing the alternative explanations provided by the
    appellant. The appellants conduct after killing Fraser was relevant to ascertaining
    his intent and to whether the murder was planned and deliberate; a no-probative-value
    instruction was not warranted. Although a caution concerning the risks of
    demeanour evidence would have been ideal, the failure to give one had minimal
    impact.

The principles governing review of the trial
    judges instructions

[36]

The general principles governing review of the
    trial judges instructions to the jury were recapitulated by Moldaver J. in
R.
    v. Calnen
, 2019 SCC 6, [2019] S.C.R.
    301,

at paras. 8-9:

An appellate court undertakes a functional
    approach in reviewing a jury charge, asking whether the charge as a whole
    enabled the trier of fact to decide the case according to the law and the evidence:
R.
    v. Mack
, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49;
R. v. Jaw
,
    2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J. wrote in
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30:

The cardinal rule is that it is the general
    sense which the words used must have conveyed, in all probability, to the mind
    of the jury that matters, and not whether a particular formula was recited by
    the judge. The particular words used, or the sequence followed, is a matter
    within the discretion of the trial judge and will depend on the particular
    circumstances of the case.

In short, the test is whether the jury was
    properly, not perfectly, instructed:
R. v. Jacquard
, [1997] 1
    S.C.R. 314, at para. 62. At the end of the day, the overriding question is
    whether the jury was properly equipped to decide the case absent a limiting
    instruction against general propensity reasoning.

[37]

The dangers posed by post-offence conduct
    evidence are well known. The question is, did the trial judge provide the jury
    with what they needed to decide the case according to the law and the evidence?

DISCUSSION

[38]

The essential premise of the appellants
    position  that the appellants post-offence conduct was not probative of his
    level of culpability  is, as the Crown submits, simply incorrect. Post-offence
    conduct is a form of circumstantial evidence that may be relevant to a
    particular issue. In this case, regardless of the appellants concession to
    manslaughter, the impugned post-offence conduct was relevant to the issues of
    intention and planning and deliberation, and the trial judge made no error in
    instructing the jury in regard to it.

[39]

The appellant argued that he was distressed and
    remorseful for having killed his friend  that his post-offence behaviour was a
    frantic reaction to what had suddenly happened. The Crowns closing can be
    understood as highlighting the inconsistencies with this narrative. But more
    than this, by emphasizing the appellants calm and calculated actions following
    the killing, the Crown suggested that the appellant was untroubled by what he
    had done  that, far from being a frantic reaction to what the defence
    characterized as an attempted sexual assault, the appellants post-offence
    conduct logically suggested that the killing was intentional, planned and
    deliberate. This suggestion was made plain by the question the Crown posed to
    the jury in her address:

Use your good common sense. Does that sound
    like a man who is distressed and remorseful for killing his friend? Or does it
    sound like a man who cold bloodedly killed his friend for his own twisted
    interest and enjoyment. And who, therefore, has no problem sitting and enjoying
    a couple of meals beside his friends dismembered body or has any problem with
    drinking Tequila from a bottle splattered with his friends blood.

[40]

The Crown fairly put this suggestion to the
    appellant in cross-examination and he denied it:

Q.      Im going to suggest, sir, you would
    never, if you had been distraught, overwhelmed, frantic because youre so upset
    that you killed you [sic] friend accidentally or in a drunken rage, Im going
    to suggest you would never have been able to eat not one but two meals while
    sitting in the hotel room with his dismembered remains during the course of
    that day?

A.      Well I was hungry, so.

Q.      So you clearly werent bothered enough
    by [the deceaseds] death or dismemberment to have lost your appetite?

A.      Not everyone loses their appetite when
    theyre under stress. That only happens in some people.

Q.      Im going to suggest, sir, you were
    quite interested in eating and concerned about eating throughout the course of
    that day because [the deceaseds] murder didnt bother you at all?

A.      No, cause I didnt know what jail was
    like. I didnt know when Id get my next meal and all that.

Q.      Im going to suggest to you, sir, it
    didnt bother you at all because you had wanted to kill him?

A.      No.

[41]

The appellant submits that the trial judge ought
    to have instructed the jury that the post-offence conduct evidence could not be
    used to establish planning and deliberation; it could be used only to rebut the
    appellants narrative of a frantic reaction.

[42]

This submission must be rejected.

[43]

The admissibility of post-offence conduct
    evidence and the formulation of limiting instructions are governed by the same
    principles that govern circumstantial evidence generally:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 31,
per
Rothstein J. It is
    well established that post-conduct evidence may be relevant not only to
    contradict the defence narrative, but also to prove intention and planning and
    deliberation: see e.g.,
R. v. S.B.1
,
    2018 ONCA 807, 143 O.R. (3d) 81
;
R. v. McLellan
, 2018 ONCA
    510, 362 C.C.C. (3d) 183, leave to appeal to S.C.C. refused, [2019] S.C.C.A.
    No. 338;
R. v. Aravena
, 2015 ONCA 250, 333 O.A.C. 264, leave to appeal
    to S.C.C. refused, [2015] S.C.C.A. No. 497 (
Aravena
), [2015] S.C.C.A.
    No. 509 (
Gardiner
), [2015] S.C.C.A. No. 516 (
Mather
);
R. v.
    Khan
, 2007 ONCA 779, 230 O.A.C. 174; and
R. v. MacKinnon

(1999),
    132 C.C.C. (3d) 545 (Ont. C.A.).

[44]

In light of these authorities, there was nothing
    improper about the Crowns closing argument and nothing inappropriate about the
    jury being allowed to draw an inference of intention, planning and deliberation
    from the substantial body of post-offence conduct evidence. The evidence
    complemented the considerable body of pre-offence conduct. The post-offence
    conduct evidence demonstrates that the appellant acted in a cool and
    calculating manner after he killed and dismembered Fraser  not franticly, as
    he claimed. Not only could this evidence be used to refute the defences
    frantic reaction narrative; as a matter of common sense and experience it was
    also relevant to the inference of planning and deliberation. This inference
    arises most clearly from the appellants action in dismembering Frasers body
    and saving the bone fragment. Moreover, the defence relied on other aspects of
    the appellants post-offence conduct to suggest the
absence

of
    a plan. There was no basis to limit the jurys consideration of this evidence
    in the manner suggested by the appellant.

[45]

The appellant emphasized that, during the
    pre-charge conference, the trial judge stated, and trial counsel agreed, that
    many aspects of the after-the-fact conduct were of no probative value if the
    appellant admitted to manslaughter  including acts of concealment, cleaning up
    the room and so on  as they were equally likely to reflect cognition of
    manslaughter as murder.

[46]

The trial judges remarks in the pre-charge
    conference reflected what appears to have been a shared understanding that
    after-the-fact conduct was referring only to the post-offence conduct that
    supported an inference of consciousness of guilt. No unfairness resulted from
    this shared understanding. It is clear from the discussions concerning the
    post-offence conduct evidence  and in particular the dismemberment and bone
    fragment evidence  that it was accepted that the post-offence conduct evidence
    could be used to support inferences other than consciousness of guilt. The
    appellants actions following the killing were properly addressed by Crown
    counsel in her closing and by the trial judge in her charge.

No special caution was required

[47]

The appellant focuses on three aspects of his
    post-offence conduct that he characterizes as bizarre: evidence that he laughed
    during the 911 call; ate two fast-food meals alongside the dismembered body of
    the victim; and put a piece of the victims leg bone into a resealable Ziploc
    bag. He submits that the need for a caution concerning this evidence is clear
    from the findings from the inquiry into the wrongful conviction of Guy Paul
    Morin. Accused persons may act strangely or do stupid things following a
    traumatic experience. Or their behaviour may simply appear to be different from
    normal behaviour  a matter that is difficult to assess in any event given
    different cultural backgrounds and possible mental health issues.

[48]

In my view, it was not necessary to caution the
    jury specifically concerning the bizarre aspects of the appellants
    post-offence demeanour.

[49]

The appellants alleged laughter was not
    significant evidence. He denied laughing and neither party referred to the
    matter in their closing addresses.

[50]

As for keeping a bone fragment in a Ziploc bag,
    the Crown did not rely on this simply as evidence of bizarre behaviour or as post-conduct
    evidence that indicated consciousness of wrongdoing. The Crown suggested that
    the appellant had kept the bone fragment as a trophy or souvenir of the killing.
    The appellant denied that it was a souvenir, testifying that he put the bone
    fragment in the Ziploc and into his backpack because he was trying to get rid
    of evidence and wasnt thinking straight. The trial judge instructed the jury
    that this evidence had to be considered in determining whether the killing had
    been intentional and reminded them of the alternative explanations for this
    evidence. Trial counsel expressed no concerns about how this evidence was
    handled, and I see no basis to impugn the trial judges instructions on appeal.

[51]

The evidence that the appellant ate two meals
    alongside the dismembered remains of the victim is bizarre but, again, it was
    not proffered as evidence that the appellant was more likely to be guilty
    simply because his actions were bizarre or abhorrent, nor was it proffered as
    post-conduct evidence that indicated consciousness of wrongdoing. Instead, as
    with the other evidence showing that the appellant acted calmly following the
    killing and dismemberment, the evidence that the appellant ate two meals
    alongside the dismembered remains of the victim countered the appellants
    narrative that he was distraught and overwhelmed following the killing and logically
    supported the inference invited by the Crown that the killing was intentional, planned
    and deliberate. It would have been wrong for the judge to have cautioned the
    jury
not
to consider it regardless of whether it could be characterized
    as bizarre.

[52]

It was not disputed that the appellant killed
    Fraser and dismembered his body. All that was at issue was whether the killing
    was intentional and, if so, whether it was planned and deliberate. The appellants
    behaviour in putting the bone fragment into a Ziploc bag and eating fast-food
    meals beside the dismembered remains of the victim was probative of these
    issues. Although it was open to the trial judge to instruct the jury that they
    should not infer guilt simply from the apparent oddity of the appellants actions,
    the question is not whether the charge might have been improved; the question
    is whether the jury was charged properly.

[53]

I am satisfied that it was. There was no danger
    that the jury might wrongly conclude that the appellant was guilty simply
    because his actions following the killing and dismemberment were bizarre.
    Indeed, it is possible that an instruction as to the bizarre nature of these
    particular actions may have prejudiced the appellant by highlighting them. Perhaps
    that is why no such instruction was requested. In any event, the trial judge
    did not give such an instruction and did not err in not doing so.

[54]

Nor did the trial judge err in not providing a
    caution concerning the risks of demeanour evidence generally. The evidence of
    the appellants demeanour following the killing did not depend on witnesses
    powers of observation and interpretation. The subjective interpretation risk
    associated with demeanour evidence therefore did not arise. A general
    instruction on demeanour evidence might have been ideal, as the Crown
    suggested, but it was not necessary. In any event, even assuming that the trial
    judge erred in failing to provide such an instruction, in my view the error
    would be inconsequential and the curative proviso in s. 686(1)(b)(iii) would
    apply. The relevance of the appellants actions following the killing to the
    issues of intention and planning and deliberation was clear and
    straightforward, and the jury was aware of the alternate explanations. There was
    no substantial wrong or miscarriage of justice.

The trial judge properly instructed the jury
    about alternative explanations

[55]

The trial judges primary responsibility in
    regard to the appellants post-offence conduct evidence was to ensure that the
    jury was aware of alternative explanations for that conduct in order to guard
    against the danger that the jury might jump to an inference of guilt. It is
    clear that she did so. For example, concerning the dismemberment  which the
    defence conceded was relevant to planning and deliberation  the trial judge
    instructed the jury as follows:

You may consider the act of dismemberment. Was
    this part of the original plan that was carried out? Had he planned to
    dismember the body after killing Mr. Fraser? If so, is this evidence that the
    plan was actually implemented? Or was the dismemberment something that was not
    planned. Was it a panicked reaction to the realization that he had killed his
    friend and he did not wish to be discovered with the body? If the decision to dismember
    the body only arose after the killing, then it was not a planned event and does
    not shed light on whether the murder itself was planned and deliberate.

[56]

With respect to the appellants efforts to clean
    up, the trial judge instructed the jury:

The same may be said of the decision to clean
    up the room and remove visible signs of blood. Was that part of an original
    plan to kill Alex Fraser? Or was that an after-the-fact reaction? It is for you
    to decide.

[57]

As for the appellants decision to keep a bone fragment
    in a Ziploc bag, the trial judge instructed the jury:

Was this a souvenir that Mr. McCullough was
    keeping to remind himself of the murder? If so, does that suggest that the
    killing was intentional? In answering the question, consider Mr. McCulloughs
    testimony that he kept the shard of bone as part of his effort to clean up the
    scene. He clearly did clean up the scene and was sufficiently successful that
    very little blood was visible to the naked eye. Is that a reasonable
    explanation? That is a question for you to decide.

[58]

The trial judge was fair and balanced in her
    treatment of the evidence. She ensured that the jury was aware of alternative
    explanations for the conduct in question. Nothing more was required.

The trial judges process

[59]

I conclude my consideration of the appellants
    arguments with these observations.

[60]

This is yet another case in which jury
    instructions have been impugned on appeal, despite trial counsel having raised
    no objection when the charge was made. As always, this court acknowledges that
    responsibility lies with the trial judge to get the charge right. But in this
    case not only did experienced trial counsel not object to the charge that is
    now impugned; she was consulted at every step in a cooperative process employed
    by the trial judge in crafting that charge.

[61]

There is no merit to the appellants submission
    that the trial judge treated the parties unequally by asking only the Crown
    whether she wanted a post-offence conduct instruction. The trial judge sought
    input from both counsel on the matter and simply raised the post-offence
    conduct instruction as an example of the input she sought from both counsel.

[62]

The trial judge provided the parties with a
    draft of her charge and reviewed the draft point by point, seeking and
    obtaining their comments and submissions and, ultimately, their agreement.

[63]

The trial judge informed the parties that she would
    instruct the jury that they must consider the evidence in an objective and
    dispassionate manner, free of any emotional reaction to unusual, graphic
    and potentially disturbing evidence, and that they must analyze the case
    based on logic, common sense, and good judgment. Defence counsel indicated that
    she was very content with that. Finally, the trial judge asked the parties
    whether they required anything further  whether there were any items on your
    shopping lists that we havent addressed or anything in particular that you
    would like to request. Both the Crown and defence stated that they needed
    nothing further.

[64]

The result was a charge that should have
    satisfied both parties and surprised neither. There was no reason to object to
    the charge and there is no basis to impugn the charge on appeal.

THE EVIDENCE OF CANNIBALISM

[65]

The appellant argues that the trial judge erred
    in admitting evidence of his desire to commit cannibalism. It was not relevant
    to motive because it would be pure speculation to find that the appellant had
    committed the offence in order to eat the victim, as there was no evidence of
    cannibalism having occurred. The evidence was prejudicial and should have been
    edited out of the nurses statement.  Additionally, the appellant argues, the
    rap lyrics were prejudicial and should have been excluded as a whole, as there
    was a very weak connection between the content of the lyrics and the offences
    with which the appellant was charged.

[66]

The starting point for assessing this argument is
    that this was evidence of bad character/extrinsic misconduct and as such it was
    inadmissible if proffered to show only that the appellant was the sort of
    person likely to have committed the offence. But bad character evidence is
    admissible if it is relevant and material, is not otherwise covered by an
    exclusionary rule, and its probative value outweighs its prejudicial effect:
R.
    v. J.A.T.
,
2012 ONCA 177, 290
    O.A.C. 130, at para. 51.

[67]

The trial judge found that the appellants
    statements to the nurse had significant probative value on the issues the jury
    had to decide. Whether the appellant had killed three cats, as he told his
    nurse initially; only one, as he said in a later interview; or in fact any cats
    at all was beside the point. The probative value of the statements lay in the appellants
    fantasies linked to killing a cat  specifically, what he fantasized about
    doing to a human being  and their relationship to the Crowns theory of
    planning and deliberation. As a practical matter, it was not possible to edit
    his statement about cats from his statement about what he wanted to do to a
    human being. The trial judge recognized the potential for prejudice but
    concluded that it was outweighed by the probative value of the evidence and
    that the prejudice could be addressed with a proper limiting instruction.

[68]

As
    for the rap lyrics, the trial judge acknowledged that they were open to
    different interpretations and that many listen to songs with violent imagery.
    Nevertheless, it was a reasonable interpretation of the appellants lyrics that
    they meant what they literally said. To the extent that the lyrics refer to
    knifing and chopping up people, drinking blood and cooking in the kitchen, they
    were probative of the central issue at trial  whether the killing was
    intentional, planned and deliberate. Ultimately, it was for to the jury to
    determine whether the rap lyrics referred to killing, dismemberment, and
    cannibalism. Again, the trial judge recognized the potential for prejudice, but
    concluded that it was outweighed by the probative value of the evidence and
    could be addressed by a proper limiting instruction.

[69]

Having admitted the appellants statements to
    the nurse and the rap lyrics on the issues of motive, intention, and planning
    and deliberation, the trial judge also addressed whether the evidence was
    admissible on a propensity basis  that is, whether the evidence of the appellants
    fantasy of killing, dismembering, and cannibalizing could help establish that
    he killed Fraser and dismembered the body. This was necessary because the
    appellants position on dismemberment was not clear at the time, and the Crown
    might be put to the proof of each element of the charge, including identity. The
    trial judge found that there was insufficient evidence of cannibalism to place
    the allegation before the jury; there was no evidence that the appellant had
    consumed the victims flesh and the theory that he had done so was too
    speculative. However, the trial judge also found that the evidence disclosed a
    specific rather than general propensity in regard to the dismemberment and that
    the appellants statements to the nurse and the rap lyrics were probative both of
    his intention and the voluntariness of his actions. The evidence, she found,
    posited not a general tendency to violence, but a highly specific and unusual
    manifestation of violence  the dismemberment of a human body. The trial judge
    found that the prospect of prejudice was outweighed by the probative value of
    the evidence and admitted it.

[70]

The trial judge carefully weighed the probative value of the
    evidence and the potential prejudice to the appellant in deciding whether or
    not to admit the bad character evidence. Her decision was neither unreasonable
    nor marred by legal error or a misapprehension of the evidence. It is entitled
    to deference.

[71]

The appellant says that the absence of evidence
    that he engaged in cannibalism after the killing and dismemberment suggests
    that his interest in cannibalism formed no part of his motive to kill and
    dismember the victim. But this is illogical. The absence of evidence that he
    engaged in cannibalism does not preclude a finding that he had been motivated
    to do so initially.

There are any number of possible explanations for
    not following through on a motivation to act in a particular way, none of which
    negates the existence of the initial motivation.

[72]

The trial judges mid-trial and closing
    instructions on the use of the evidence were impeccable. She instructed the
    jury that they could not find that there was an act of cannibalism and instructed
    the jury not to speculate about the missing muscle tissue. The trial judge limited
    the use of the ideation and rap lyric evidence to issues of motive, intention,
    planning, and deliberation, in response to the Crowns argument.

[73]

It goes without saying that lyrics are open to
    different interpretations and that, in any event, the writers of songs are not
    to be presumed to share the views they present in their songs. The trial judge instructed
    the jury to consider whether the rap lyrics were a form of artistic expression
     specifically, whether the appellant was interested in the lyrics as a form of
    art or entertainment, as he testified. If the appellants interest was purely
    artistic, the rap lyrics were not to be used to determine whether or not the
    appellant was guilty of the offences charged. If, however, the jury determined
    that his interest was more than purely artistic, they were required to consider
    what the lyrics referred to  cooking drugs, as the appellant testified, or
    killing, dismemberment, and cannibalism.

[74]

The trial judge instructed the jury that if it
    found that the lyrics referred to drugs, they were not to be used to determine
    whether the appellant was guilty. Even if the jury found the lyrics referred to
    killing, the evidence could be considered only as it related to the appellants
    motive, intention, and state of mind when he killed Fraser. The trial judge
    went on to admonish the jury not to allow emotional reactions to the graphic
    and morbid nature of the lyrics to affect their assessment of the evidence. She
    specifically instructed the jury not to conclude that the appellant was a bad
    person more likely to have committed the offences, or the kind of person likely
    to have committed the crimes, and to convict on either basis. The trial judge
    reiterated that meaning of the lyrics was to be assessed in an objective and
    dispassionate manner. Nothing more was required.

[75]

This ground of appeal must also be rejected.

Conclusion

[76]

I would dismiss the appeal.

Released: February 3, 2021 (G.H.)

Grant
    Huscroft J.A.

I agree.
    B.W. Miller J.A.

I agree.
    Harvison Young J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Medford, 2021 ONCA 27

DATE: 20210118

DOCKET: C62998

Fairburn A.C.J.O., Watt and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Medford

Appellant

Sonya Shikhman, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard: October 14, 2020 by video conference

On appeal from the conviction entered on
    April 29, 2016 by Justice Carole J. Brown of the Superior Court of Justice, with
    reasons reported at 2016 ONSC 2298.

Fairburn A.C.J.O.:

A.

OVERVIEW

[1]

This is an appeal from conviction on a number of
    counts, including sexual assault with a weapon and uttering a threat to cause
    bodily harm.

[2]

The complainant agreed to engage in sexual acts
    with a man in exchange for money. They went to a carport to fulfill that exchange.
    The complainant had never been to that location before.

[3]

She placed a blue condom on the mans penis and
    started fellating him. The complainant became frustrated when, in her view, the
    man was taking too long to complete the act. She decided that she needed to leave.
    The man thought otherwise. He removed the blue condom from his penis, threw it
    to the carport floor, pulled out a knife and threatened the complainant as
    follows: if I split you from your asshole to your back, maybe the open flesh
    will turn me on.

[4]

Although the complainant was a little foggy
    about the order of events that followed, she was clear that the same man she
    had been fellating, was the man who threatened her and then penetrated her
    vagina and bum area with his penis. He then strangled her into
    unconsciousness. When the complainant regained consciousness, she realized that
    she was naked and being dragged across the street by the same man. She started
    to scream for help.

[5]

A good Samaritan, Mr. Messelhi, heard the
    complainants cries for help. At around 2:30 a.m., he saw the complainant and
    assailant from his seventh-floor balcony. He yelled out to them and called for
    emergency assistance. The man fled the scene just before the police arrived.

[6]

While Mr. Messelhi was being interviewed by the
    police, a man by the name of Ashton Cater walked by where the complainant and
    assailant had been seen. Mr. Messelhi thought that Mr. Cater looked similar to
    the assailant. The police arrested Mr. Cater, but he was later excluded as a
    suspect on the basis of the DNA evidence found on the blue condom located on
    the floor of the carport.

[7]

It was only a few years later, after the
    appellants DNA was obtained in an unrelated matter, that the DNA on the blue condom
    was connected to him. The condom also contained the complainants DNA.

[8]

The appellant did not testify at trial, but
    accepted that it was his DNA on the condom. Through closing submissions, he acknowledged
    that he had engaged in a sexual act with the complainant in the carport on the
    night in question. His defence was that, after that sexual act finished, he
    left the complainant behind in the carport. On the appellants theory, some
    other man, likely Mr. Cater, must have come along after he had left the carport
    and attacked the complainant.

[9]

To get around the complainants evidence that
    she was attacked by the same man who wore the blue condom, the appellant said
    she was either confused or hallucinating as a result of the drugs and alcohol
    she had consumed prior to the attack. He also suggested that the complainant
    was just generally untruthful.

[10]

The trial judge rejected the defence theory as
    entirely speculative. She also accepted the complainants evidence as credible
    and reliable, ultimately concluding that a single perpetrator committed all of the
    acts, starting with the blue condom and ending with flight from the scene.

[11]

The appellant was convicted across all counts.
    He appeals from conviction on the basis that the trial judge erred:

(a)

in how she dealt with identification evidence;

(b)

in how she resolved credibility issues;

(c)

in how she approached the question of motive;
    and

(d)

in how she dealt with the burden of proof.

[12]

The appellant also argues that the verdict is
    unreasonable and that he suffered from the ineffective assistance of counsel at
    trial.

[13]

For the reasons that follow, I would dismiss the
    appeal.

B.

ALLEGED ERRORS RELATING TO IDENTIFICATION
    EVIDENCE

[14]

The appellant raises a number of concerns over
    how the trial judge dealt with the identification evidence. I would not accept
    any of these submissions. As with many of the other issues raised on appeal,
    the concerns expressed largely reflect an attempt to relitigate the trial.

(i)

Mr. Messelhis identification evidence

[15]

The appellant makes numerous complaints about
    how the trial judge dealt with Mr. Messelhis identification evidence. In
    particular, he objects to the fact that what Mr. Messelhi told the police about
    the assailants appearance and what he testified to in court was different. He
    says that the trial judge was duty bound to address and resolve each
    difference.

[16]

I do not intend to address each complaint that
    the appellant raises because, looked at in context, none of them can succeed.

[17]

The fact is that the trial judge accurately
    reviewed Mr. Messelhis evidence. She understood how it fluctuated in some ways
    from what he had previously said to the police. In the end, though, she concluded
    that she could not place any significant weight on Mr. Messelhis description
    of the assailant given his vantage point from the seventh-floor balcony across
    the street  [in the] middle of the night  [when] the lighting was poor. It
    was open to the trial judge, as the trier of fact, to reach this conclusion.
    And it is one to which I would defer.

[18]

Accordingly, Mr. Messelhis evidence about what
    the assailant looked like was largely neutralized by the trial judges
    conclusion that Mr. Messelhi was not in a position to make reliable
    observations. Therefore, even assuming (without suggesting) that there was some
    merit to the appellants submission that the trial judge failed to adequately
    deal with the witness alleged prior inconsistent statements, it would have had
    no impact on the outcome of the case.

[19]

In any event, the most significant alleged error
    made by the trial judge relates to what the appellant argues is her failure to
    resolve the fact that Mr. Messelhi told the police that the assailant was a
    black male, but in court suggested that the assailant was of mixed
    heritage. The appellant argues that the failure to resolve that inconsistency undermined
    the defence theory, particularly given that the appellant says Mr. Cater is
    black and that the appellant is closer to a mixed heritage.

[20]

This objection cannot succeed. The fact is that
    Mr. Messelhi told the 9-1-1 operator that the assailant was kind of black or
    mixed black. Therefore, there was no inconsistency between how Mr. Messelhi
    first described the assailant to the 9-1-1 operator and his evidence at trial,
    where he testified that there are different gradients of black and that when
    he says black, he includes brown. In these circumstances, there was nothing
    for the trial judge to resolve.

(ii)

Mr. Messelhi did not adopt his prior statement

[21]

The appellant also contends that the trial judge
    erred by failing to appreciate that Mr. Messelhi adopted a prior statement,
    where he is alleged to have told a police officer that he was 100 percent
    certain that Mr. Cater was the assailant. The appellant also contends that,
    even if Mr. Messelhi did not adopt his prior statement, the trial judge still
    erred because she failed to turn her mind to whether he had done so. I do not
    accept either of these submissions.

[22]

Mr. Messelhi testified in-chief that while he
    was being interviewed by the police, he saw a man walking by the crime scene
    and thought that the man looked like the assailant, but that the man also looked
    slightly different. (That man was Mr. Cater.) During cross-examination, defence
    counsel suggested to Mr. Messelhi that he had told the officer who was interviewing
    him that the man walking by was 100 percent the same man that he had seen
    attacking the woman. In my view, Mr. Messelhi did not adopt that prior alleged
    statement.

[23]

A witness only adopts a prior statement where
    the witness agrees, based upon present memory, that the statement is true. Only
    where that prior statement is adopted, does it become part of the witness
    evidence at trial, available to the trier of fact for the truth of its
    contents:
R. v.
McCarroll
, 2008 ONCA 715, 238 C.C.C. (3d) 404,
    at para. 39;
R. v. Candir
, 2009 ONCA 915, 250 C.C.C. (3d) 139, at
    para. 113;
R. v. Abdulle,
2020 ONCA 106, at paras. 136-38, leave to
    appeal to S.C.C. refused, 39175 (August 20, 2020);
R. v. Tat
(1997)
, 117 C.C.C. (3d) 481 (Ont. C.A.),
    at p. 493.

[24]

A review of Mr. Messelhis cross-examination
    demonstrates anything but adoption. While defence counsel repeatedly tried to
    have Mr. Messelhi adopt the alleged prior statement, he failed in achieving
    that goal. Here are some highlights from that exchange:

Q.  at the time you were 100 percent sure
    that that was the person because

A. I  I was not. I was  again, it was
    someone that walked by that had similar characteristics.

Q. Okay.

A. But again, I dont believe that it was  I
    wasnt 100 percent

Q. So if you told the police that the guy that
    they were investigating is the same guy 100 percent, thats obviously what you
    believed at the time, right? Im talking about at that moment.

A. Yeah. At the time they  they looked
    similar.

Q. Right. The only detail you gave them was
    thats the guy, 100 percent. Thats what you told them, right? Its in the
    notes.

A. I dont recall saying that

Q. Okay.

A.  to be honest with you. I recall pointing
     I recall pointing down to the  to the street level from my balcony.  I
    dont recall  Ill be honest with you, I dont recall saying, yeah, thats him
    100 percent.

[25]

Nothing in this exchange points toward adoption
    of the prior alleged statement. Indeed, it does not even point toward
    acknowledgement that the statement was made. In these circumstances, I see no
    error in the trial judges decision not to address the issue of adoption.

(iii)

There was no contemporaneous identification

[26]

The appellant also suggests that the trial judge
    erred by accepting Mr. Messelhis trial evidence regarding what he said the
    assailant looked like, instead of what he had previously told the police that
    the assailant looked like. He argues that a description contemporaneously made
    must be accepted over a description at trial.

[27]

I see no basis in law or on the record for this
    suggestion. Mr. Messelhi did not purport to identify the appellant in the
    courtroom and was never asked to do so. In any event, the trial judge did not
    prefer one version over the other. Indeed, as previously addressed, she
    discounted Mr. Messelhis identification evidence altogether because of the
    distance from which he was making his observations and the lighting conditions
    involved. It was open for her to come to that conclusion.

(iv)

Failure to resolve the height differential

[28]

The appellant also argues that the trial judge
    erred by failing to resolve another issue: that he is only five feet, five inches
    tall, which is much shorter than how Mr. Messelhi and the complainant described
    the assailant. Mr. Messelhi thought the assailants height was around six feet
    tall and the complainant thought his height was around the same as hers, about five
    feet, nine inches tall.

[29]

For the reasons already mentioned, given the
    limitations on Mr. Messelhis ability to make accurate observations, the trial
    judge resolved that she could place little weight on how he described the
    assailant. Accordingly, there was little need for the trial judge to resolve
    the difference between Mr. Messelhis description of the assailants height and
    the appellants actual height.

[30]

That is equally true when it comes to the
    complainants evidence about her assailants height, being about four inches
    taller than the appellants actual height. Although the trial judge did not squarely
    resolve that issue in her reasons, she was clearly aware of it as she adverted
    to that evidence in her reasons.

[31]

When considered against the factual backdrop of
    this case, it is understandable why the trial judge did not see a pressing need
    to resolve the difference. After all, it was agreed that the man in the blue
    condom was in fact the appellant. As the complainant said that the man who wore
    the condom was the same man who attacked her, she was describing the height of
    the man who wore the condom  that being the appellant.

[32]

Therefore, what was critical from an identity
    perspective was not that the complainant suggested that her assailant was
    around five feet, nine inches, but that she said that the man in the blue
    condom was the same man who attacked her. The reasons make clear that the trial
    judge accepted the complainants evidence on this point. Therefore, given the
    agreement that the appellant was the man in the blue condom, it can be inferred
    that the trial judge was satisfied that the complainant simply misjudged the appellants
    height.

(v)

Did the trial judge err by failing to consider
    circumstantial evidence?

[33]

The appellant points to four pieces of evidence
    that are said to have been overlooked by the trial judge, but that bolstered
    the identification of Mr. Cater as the assailant. I do not agree that the trial
    judge was under any obligation to specifically turn her mind to these pieces of
    evidence.

[34]

First, a wrapper from a box of gloves was found
    on the ground not far from where the complainant was dragged. That packaging
    matched packaging that was found in the bag that Mr. Cater was carrying at the
    time of arrest. The appellant argues that this piece of circumstantial evidence
    pointed toward Mr. Cater being the person who dragged the complainant across
    the road.

[35]

There was no suggestion that the assailant wore
    gloves during the attack. Nor is there any suggestion that these were rare or
    unusual gloves. While the packaging appears to have matched, it does nothing
    more than provide a tenuous link between Mr. Cater and the geographical area
    where the complainant was ultimately found. Of course, Mr. Cater was already
    associated to that area, being the area where he was arrested.

[36]

Second, the appellant points to the fact that
    Mr. Messelhi testified that the assailant was wearing a do-rag. Mr. Caters bag
    contained a black do-rag. The appellant again argues that this pointed toward
    Mr. Cater being the assailant.

[37]

The difficulty with this submission is that the
    trial judge believed the complainant that she was attacked in one continuous
    event, by the man who she said she had placed the blue condom on. The
    complainant did not think that her assailant was wearing any type of head
    covering. Her credibility was accepted by the trial judge.

[38]

Moreover, for reasons that I have already given,
    the trial judge discounted the accuracy of Mr. Messelhis observations as they
    related to the assailants appearance. It was open for her to do so. Thus, the
    fact that Mr. Cater had a do-rag in his bag did not advance the defence,
    particularly given that there was no evidence that he was wearing that do-rag
    at the time in question or, indeed, at any point during the night of the
    offence.

[39]

Third, the appellant argues that the trial judge
    erred by failing to consider what happened to a bicycle that the appellant was
    said to have had with him when he and the complainant went to the carport.

[40]

The complainant testified that her attacker brought
    a bicycle with him to the scene of the attack, but could not recall what
    happened to that bicycle. The police did not find a bicycle at the crime scene.

[41]

The appellant claims that the absence of a
    bicycle at the scene supported his position, as advanced only in oral
    submissions at trial, that he had left the carport on his bicycle and the
    complainant was later attacked by someone else. Of course, there was no
    evidence about the appellant leaving the carport after the initial sexual
    encounter because, as was his right, the appellant did not testify.

[42]

Therefore, at its highest, the evidence came
    from two sources: (a) the complainant who testified that her assailant had a
    bicycle at some point when they first met up; and (b) that the police did not
    see a bicycle around the scene of the crime. Against this factual record, the
    trial judge was under no obligation to resolve anything regarding the fact that
    a bicycle was not found at the crime scene.

[43]

Finally, the appellant claims that the trial
    judge erred by not addressing the length of time over which the attack was said
    to have taken place. The complainant said that she initially met the man around
    10:00 p.m. Yet the 9-1-1 call was not received until just after 2:30 a.m.
    According to the appellant, that means that the assault went on for about 4.5
    hours. He says that it defies common sense that the assailant would remain with
    the complainant while she was unconscious for that length of time. The failure
    of the trial judge to turn her mind to this issue is said to reflect error.

[44]

This argument was not put to the trial judge in
    closing submissions and therefore, it is with little surprise she did not
    address it. In any event, the complainant was clear that she did not know how
    long she was unconscious for. The appellant and complainant could have been
    together for a long period of time or the complainant could have been wrong
    about the time at which she first went to the carport. Indeed, as I will soon
    address, it appears that she was wrong about the timing.

C.

CREDIBILITY ISSUES

[45]

The appellant maintains that the trial judge erred
    by failing to turn her mind to details undermining the complainants
    credibility. In my view, the appellant is really asking this court to
    substitute its own view of credibility for that of the trial judge. There is no
    basis upon which to do so.

[46]

The appellant suggests that the complainant
    should be disbelieved because she said that, at one point, she was being
    dragged with her face on the pavement, yet she did not have facial injuries to
    match that evidence. This is incorrect. An officer noted a scrape or scrapes on
    her face and the nurse who saw the complainant after the incident noted a
    visibly red and swollen nose.

[47]

The appellant also suggests that the trial judge
    failed to address the discrepancy between the complainant and Mr. Messelhi as
    to whether the assailant was wearing a do-rag. This is said to have adversely
    impacted the complainants credibility. Not so. For reasons already given, the
    trial judge refused to place meaningful weight upon Mr. Messelhis evidence about
    the assailants description. In these circumstances, the differences between
    his evidence and hers, as to whether the assailant was wearing a do-rag, could
    not have impacted the complainants credibility.

[48]

The appellant also claims that the trial judge
    failed to properly consider the complainants level of intoxication at the time
    of the events. In doing so, she is said to have failed to understand that the
    complainant did not unequivocally reject the possibility of hallucinations. I
    do not agree.

[49]

The complainant was clear about what she had
    ingested prior to the events: alcohol, marihuana, and crack cocaine. She was
    equally clear that she was not hallucinating during the attack. Moreover, the
    trial judge was alive to the issue, specifically noting that the complainant
    was muddled about the order of events. Even so, it was open to the trial
    judge to conclude as she did, that being muddled about the order of events was
    not in any way determinative of the complainants credibility or reliability.

[50]

To the extent that the complainant may have had
    some gaps in her memory, her evidence makes clear why that was the case. As is
    clear from the transcript, the complainant was highly resistant to testifying
    and being required to recount the terrifying events that occurred almost five
    years before trial. In these circumstances, some gaps in memory may well be
    expected.

[51]

The complaint here is nothing more than a
    request to have this court reassess the complainants credibility. That was the
    job of the trial judge. I see no error in her approach and would defer to her
    findings.

D.

MOTIVE

[52]

The appellant argues in writing only that the
    trial judge erred by concluding that the complainant was credible because she
    had no motive to lie. He also claims that the trial judge erred in failing to
    find that the complainant did have a motive to lie, one that arose from the
    fact that she needed money for her next drug hit and the man she was
    fellating took the money back when she said she did not wish to complete that
    act. I would not accept either of these submissions.

[53]

First, the trial judge held that she was
    satisfied that [the complainant] had no exterior or ulterior motivation to lie
    and was attempting throughout to be truthful. I interpret the trial judges
    comments as doing nothing more than stating her conclusion that there was no
    motive to lie and, therefore, the complainants evidence could not be rendered
    suspect by virtue of any such suggestion. I do not read the trial judge as
    placing affirmative weight on the complainants evidence because of her
    conclusion that there was no motive to lie.

[54]

For the first time on appeal, the appellant says
    that the complainant had a motive to lie which arose from her upset that the
    man in the blue condom took his money back after she refused to complete the
    fellatio. I agree with the respondent that there are numerous difficulties with
    this theory, including that the alleged motive was never put to the complainant
    when she was testifying. It also runs contrary to her evidence, that she
    offered to give the man in the blue condom his money back  not that he stole
    the money back  when she decided she did not wish to complete the act.

[55]

I would not accede to this ground of appeal.

E.

BURDEN OF PROOF

[56]

The appellant also suggests that the trial judge
    reversed the burden of proof. In particular, he points to a passage in the
    lengthy reasons for judgment, where the trial judge found that the defence
    theory was speculative and unpersuasive given all the evidence. He seems to
    suggest that this passage demonstrates that the trial judge was requiring that
    there be actual evidence supporting the defence theory before it could succeed.
    I do not read the passage that way.

[57]

I start by observing that the trial judge
    accurately reviewed the burden of proof at the outset of her reasons. There is
    no complaint about how she did so. Therefore, the appellants objection is made
    in circumstances where the reasons for judgment demonstrate a correct summary
    of the legal principles pertaining to the burden of proof.

[58]

In my view, the impugned passage from the
    reasons for judgment demonstrates nothing more than the trial judges
    acknowledgement that the defence theory did not raise a reasonable doubt in her
    mind. She saw it as entirely speculative in nature, particularly because she
    accepted the complainants evidence that the same man who wore the blue condom
    (the appellant), was the same man who attacked her and dragged her across the
    street. There is nothing in the reasons to suggest that she applied the wrong
    burden of proof.

F.

THE REASONABLENESS OF THE VERDICT

[59]

The appellant claims that the verdict is unreasonable
    in these sense that a trier of fact could not have reasonably reached the
    conclusion that the trial judge reached. I do not agree.

[60]

Taking into account the totality of the
    evidence, the trial judges conclusion is one that a properly instructed trier
    of fact acting judicially could have reasonably rendered:
R. v. Mendez,
2018
    ONCA 354, at para. 21. At this stage of these reasons, to unpack the
    reasonableness of the verdict would risk serious repetition. Suffice to say
    that it was open for the trial judge to accept the complainants credibility as
    to the one, continuous series of events involving the same man who wore the
    condom, which man was the appellant.

G.

COMPETENCE OF COUNSEL

[61]

The appellant claims that his trial counsel was
    ineffective and that this resulted in a miscarriage of justice.

[62]

During oral submissions, the appellant focussed
    upon a few specific complaints involving trial counsels performance. I too
    will focus upon those complaints. First, though, I will address the operative
    legal principles when it comes to competence of counsel claims.

[63]

The burden falls to the appellant to establish
    the facts underpinning the claim of ineffectiveness. Those facts must address
    both the performance and prejudice components of the test. The performance component
    involves establishing how counsels representation was inadequate. The
    prejudice component involves establishing how those inadequacies resulted in a
    miscarriage of justice:
R. v. Cherrington,
2018 ONCA 653, at paras.
    25-27;
R. v. B. (G.D.)
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26;
R.
    v. Joanisse
(1995), 102 C.C.C. (3d) 35 (Ont. C.A.) pp. 59-62, leave to
    appeal refused, [1996] S.C.C.A. No. 347
.

[64]

The performance component requires the court to
    consider counsels conduct of the defence against a standard of reasonableness,
    one that includes a presumption that counsels conduct falls within a wide
    degree of reasonable professional assistance. Strategic tactical decisions
    should be viewed through a lens of deference, rather than a lens of hindsight.

[65]

The prejudice component is fulfilled where there
    is a miscarriage of justice arising from either some form of procedural
    unfairness or an unreliable result or both:
R. v. Shafia,
2016 ONCA 812,
    341 C.C.C. (3d) 354, at para. 177, leave to appeal refused, [2017] S.C.C.A. No.
    17.

[66]

The appellant claims that trial counsel was
    incompetent by failing to put to the complainant the original description she
    gave to the police of the assailant. She originally told the police that she
    thought that her attacker was six feet tall. That is said to more closely match
    Mr. Caters height than the appellants height.

[67]

On appeal, trial counsel has explained why he
    chose not to focus upon the first description given by the complainant as to
    her assailants height. Suffice to say that it was a strategic call on his part.
    I see no need to explore the underlying rationale for that decision given that,
    for reasons already set out, the complainants description of her assailants
    height did not matter to the end result in this case. This case turned on the
    trial judges acceptance of the complainants evidence that the man who wore
    the blue condom was her attacker. Accordingly, whatever height the complainant
    ascribed to the man in the condom, one thing was accepted at trial: the man in
    the condom was the appellant.

[68]

The appellant also points to the fact that the
    complainant told the police her assailant was carrying a bag. Counsel did not
    confront her with that previous statement. The failure to do so is said to
    reflect incompetence because of the fact that Mr. Cater was also carrying a bag
    when he was arrested.

[69]

Trial counsel acknowledges that, in hindsight,
    he ought to have put the complainants statement about the assailant carrying a
    bag to her. While that would have been better, in my view, the failure to do so
    changes nothing. The complainant did not tell the police anything about the
    appearance of the bag, what it looked like, or its size. Moreover, and again,
    there is no dispute that the man with the bag who the complainant met, on whom
    she placed the blue condom, was the appellant. In these circumstances, the
    circumstantial value of the bag is highly questionable.

[70]

The appellant also claims that his trial counsel
    was incompetent by failing to put to the complainant that she had described her
    attacker to the police as a black male. As before, that description is said
    to have matched Mr. Cater better than it matched the appellant.

[71]

It is true that counsel did not put that
    statement to the complainant, but the value of doing so would have been highly
    questionable. This is especially true given that three days after the attack,
    and a couple of years before the appellant was apprehended for this offence, in
    a detailed statement, the complainant told the police that her attacker had a light
    complexion, was mixed, half and half and with black in him. In these
    circumstances, a miscarriage of justice could not have resulted from the
    failure to put the earlier description to the complainant.

[72]

The appellant also suggests incompetence arising
    from the fact that counsel did not put to Mr. Messelhi his prior statement to
    the police, where he had told them that he was unsure about what the assailants
    hair looked like because he was wearing a do-rag. At trial, Mr. Messelhi
    suggested that he could see braids coming out from underneath the do-rag.

[73]

Again, trial counsel agrees that it would have
    been better had he put Mr. Messelhis prior statement to him. Even so, nothing
    turns on the failure to do so given that the trial judge discounted the value
    of Mr. Messelhis observations.

[74]

Finally, the appellant focusses on one alleged
    failure by the trial counsel that is said to be dispositive of a miscarriage of
    justice.

[75]

Trial counsel was aware from police notes that
    the police had observed a security video at a gas station, close to the scene
    of the crime, that showed someone who the police thought was the complainant
    walking with a man holding a bicycle. The mans identity was not discernable on
    the video. The video showed a time stamp of 1:46 a.m. (about 45 minutes before
    the 9-1-1 call).

[76]

The appellant argues that the failure of trial counsel
    to obtain that video and play it at trial demonstrates ineffectiveness. The
    appellant contends that the video would have undermined the credibility of the
    complainant who said that she met her assailant around 10:00 p.m. The video
    would have shown that, in fact, she met her assailant over three hours later in
    time.

[77]

Trial counsel admits on appeal that he knew of
    the existence of the video, but explains that he did not request a copy of the
    video out of a concern that it would undoubtedly assist the Crowns case. In
    trial counsels view, the longer the time between when the complainant and
    appellant first went to the carport and when Mr. Messelhi called 9-1-1, the
    greater the support for the defence theory that a second man came along and
    attacked the complainant after the appellant had left the scene. The video
    could undermine that theory by demonstrating very clearly that the complainant
    was simply wrong about the time that she and the appellant engaged in the
    sexual act in the carport. It would have taken what was, on the complainants
    evidence, an over 4-hour gap from beginning to end, and truncated it to about a
    45-minute window.

[78]

Trial counsels decision to avoid any steps that
    may highlight the importance of the video to the Crowns case was a tactical
    one and is entitled to deference.

[79]

In conclusion, while there are some aspects of
    counsels performance that in hindsight could have been better executed,
    perfection is not the standard:
Joanisse
, at p. 61. To the extent that trial
    counsel fell short in this case, it was on minor details that had no impact on
    the reliability of the verdict.

CONCLUSION

[80]

I would dismiss the appeal.

Released:
JMF
JAN 18 2021

Fairburn
    A.C.J.O.

I
    agree David Watt J.A.

I agree Thorburn J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohammed, 2021 ONCA 301

DATE: 20210506

DOCKET: C68857

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohanned Muawia Khalil Mohammed

Appellant

Mohanned Muawia Khalil Mohammed, acting in
    person

Nicole Rivers, for the respondent

Heard and released orally: May 3, 2021 by videoconference

On appeal from the decision of Justice B.P. OMarra of
    the Superior Court of Justice dated June 25, 2020, dismissing an appeal from
    the conviction entered on May 6, 2019, and from the sentence imposed on July 5,
    2019, by Justice Ruin Shandler of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual
    assault and sentenced to 18 months imprisonment, followed by three years
    probation.

[2]

At trial, he testified in his defence.
    The trial judge made findings of fact contrary to his evidence and explained
    why the appellants evidence did not leave him with a reasonable doubt. He also
    held that on the evidence of the complainant, which he did accept, the appellant
    was guilty beyond a reasonable doubt.

[3]

The appellant appealed to the Superior
    Court of Justice, primarily alleging errors regarding the trial judges
    application of
R. v. W.(D.)
, [1991] 1
    S.C.R. 742, and insufficient reasons. The summary appeals court judge found
    that the trial judge properly applied the
W.(D.)
test. Further, he found that the trial judges reasons
    sufficiently articulated how credibility concerns and contradictory evidence
    were resolved. Accordingly, the summary appeals court judge dismissed the
    appeal.

[4]

The appellant seeks leave to appeal to
    this court. He submits that (1) the summary appeals court judge erred in giving
    deference to credibility and reliability findings, despite errors made by the
    trial judge; and (2) the summary appeals court judge erred in concluding that
    the trial judge provided sufficient reasons, despite not resolving all the live
    issues in the case.

[5]

A second appeal in summary conviction
    proceedings is the exception, not the rule. Leave to appeal should not be
    granted merely because an issue of law alone is raised. Access to the Court of
    Appeal, for a second appeal, should be limited to those cases in which the
    applicant can demonstrate some exceptional circumstance justifying the further
    appeal. There is no single litmus test that can identify all the cases in which
    leave should be granted. There are, however, two key variables, being the
    significance of the legal issues raised to the general administration of
    criminal justice, and the merits of the proposed grounds of appeal:
R.
    v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, at
    paras. 37-38.

[6]

On the one hand, if the issues have
    significance to the administration of justice beyond the particular case, then
    leave to appeal may be granted even if the merits are not particularly strong,
    although the grounds must be at least arguable. On the other hand, where the
    merits of the appeal are very strong, leave to appeal may be granted even if
    the issues have no general importance, especially if the convictions in issue
    are serious, and the application is facing a significant deprivation of his or
    her liberty: see
R.R.
, at paras.
    37-38.

[7]

We are not satisfied that the appellant
    has met the test for leave to appeal. The grounds of appeal are weak. The summary
    appeals court judge carefully considered and rejected the same arguments that
    the appellant seeks to argue before this court. We see no error in that
    analysis. In addition, this case does not raise issues that impact the general
    administration of criminal justice.

[8]

The application for leave to appeal is
    dismissed.

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohiadin, 2021 ONCA 122

DATE: 20210226

DOCKET: C68130

MacPherson, Huscroft and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdirahman Mohiadin

Appellant

Abdirahman Mohiadin, acting in person

Danielle Robitaille, appearing as duty
    counsel

Hannah Freeman, for the respondent

Heard: February 8, 2021 by
    video conference

On appeal from the sentence imposed on January
    10, 2020 by Justice Sean F. Dunphy of the Superior Court of Justice, with
    reasons reported at 2020 ONSC 47.

REASONS FOR DECISION

[1]

The appellant, Abdirahman Mohiadin, was convicted
    of six counts arising from his possession of a loaded handgun in a car and sentenced
    to 38 months custody, less 54 days credit for pre-sentence custody (36 days grossed
    up at
the rate of
1.5:1). He abandoned his
    conviction appeal but continues his sentence appeal.

[2]

Late on the night of October 10, 2017, the appellant,
    then aged 19, was sitting in a parked car outside an apartment building in
    Etobicoke. The police were at the building investigating an unrelated matter
    and saw and smelled clouds of marijuana smoke coming from the open car window. Although
    this was just before marijuana was legalized, they thought this was too
    flagrant a violation of the law to ignore. As the police approached the car, they
    saw the appellant with a thick marijuana blunt in his hand and a satchel
    around his neck. The police saw the handle of a handgun inside the satchel.
    They immediately arrested the appellant without resistance and seized the
    handgun.

[3]

At trial the
appellant raised a preliminary
Charter
challenge to the
    seizure of the gun, but when he lost that challenge his counsel invited the
    court to make findings of guilt based on the findings made on the
Charter
challenge.

[4]

At sentencing the parties agreed on the credit
    for pre-sentence custody, but disagreed on the sentence range. The sentencing
    judge stated in his reasons
that
he understood
    the Crown sought a custodial sentence in the range of 32 to 36 months less
    presentence custody, while the defence urged a sentence of no greater than 21
    months  less
Downes
credit for more than two years spent under
    house-arrest release conditions:
R. v. Mohiadin
, 2020 ONSC 47, at paras.
    16-17. The sentencing judge imposed a sentence of 38 months  two months above
    the range he identified as having been proposed by the Crown  less 54 days
    credit for pre-sentence custody: at paras. 45-46.

[5]

On the sentence appeal, duty counsel argues that
    the sentencing judge erred by (1) exceeding the Crowns position on sentence
    without giving the appellant notice and an opportunity to make further
    submissions, and (2) refusing to give the appellant any credit, under the principles
    in
R. v. Downes
(2006), 79 O.R. (3d) 321 (C.A.), for over two years
    spent under restrictive house arrest while on bail.

[6]

Having reviewed the transcript of the sentencing
    hearing
, in our view
the sentencing judge misapprehended
    the Crowns proposed sentence. He then erred by imposing a sentence greater
    than the sentence sought by the Crown without giving notice to counsel or allowing
    them to address whether such a sentence should be imposed.

[7]

The transcript of the sentencing hearing reveals
    that the Crown first proposed a range of 32 to 36 months, without addressing whether
    the appellant should be provided with
Downes
credit for the over two years
    he spent under house arrest. In response, the defence proposed a sentence of no
    more than 21 months and
Downes
credit of 8.5 months (255 days). The sentencing
    judge then asked for the Crowns position on
Downes
credit. Crown counsel
    (not appeal counsel) responded by stating that although
Downes
credit
    is discretionary and not governed by a prescribed formula, the Crown suggested
    5 months of credit for what it acknowledged was a restrictive house arrest. The
relevant
exchange
is
    as follows
:

THE COURT: All right. So I want to hear from
    you on
Downes
credit.

[CROWN COUNSEL]: Okay. So on
Downes
credit, my friend expressed it absolutely correctly. There is no ratio. Its a
    case by case situation. There are numerous cases in which one for four is
    granted. One for five; sometimes one for three, depending on the, the severity
    of the circumstances.
[The appellant], yes, he was under a house arrest for
the entirety of the
time
that
he was on bail. Yes, he had some opportunity to leave with the surety,
    but it was restrictive;
Im not going to dispute
that
.
    But there is no automatic, one  granting it one and a third. Thats just not a
    principle in law. And Im not sure

THE COURT: What credit
,
    if any,
would, what credit
, if any,
would
    you be suggesting?

[CROWN COUNSEL]: Well, Your Honour, I would
    suggest something
in the range of
one in, one
    out of five, to one, to one third. Given Mister....

THE COURT: How many months?

[CROWN COUNSEL]: Pardon me?

THE COURT:
How many months would you
    suggest? Make it simple
.

[CROWN COUNSEL]:
Five months
.

THE COURT:
Okay
.

[CROWN COUNSEL]:
Thats, thats my
    submission
. The, the last thing, Your Honour, is I know
that
this is part of that is that if the
Downes
credit is given, and depending on
what
the
sentence is
, it
may or may
    not
bring the balance of the sentence to under two years. And if thats
    the case
, then,
the Crown would be asking for
    probation. [Emphasis added.]

[8]

After the Crown suggested
Downes
credit
    of five months, the Crowns proposed sentence was not 32 to 36 months, but 27
    to 31 months. The 38-month sentence imposed thus exceeded the Crowns position by
    7 months.

[9]

In
R. v. Blake-Samuels
, 2021 ONCA 77, at
    paras. 30-33, 36-38,
per
MacPherson J.A., this court recently held
    that it is an error in principle and contrary to fundamental fairness for a
    sentencing judge to exceed the Crowns proposed sentence without giving the
    parties a chance to make further submissions. MacPherson J.A. explained, at
    para. 33, that [i]t is not appropriate to deny procedural fairness during the
    sentencing process with the expectation that any error can be cured on appeal.
    This court intervened with the sentence in
Blake-Samuels
because it concluded
    that it was impossible to say that the sentence was not impacted by the
    unavailability of submissions: at para. 36.

[10]

The same is true here. The sentencing judge did
    not give the parties a chance to address a sentence seven months longer than what
    the Crown proposed. It is impossible to say that the sentence was not
impacted
by the unavailability of submissions.

[11]

Because the sentencing judge made an error in
    principle that
impacted
the sentence, this
    court must perform its own sentencing analysis to determine a fit sentence:
R.
    v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 27;
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. The court must apply the
    principles of sentencing afresh to the facts, without deference to the existing
    sentence, even if that sentence falls within the applicable range:
Friesen
,
    at para. 27. In doing so, the court will defer to the sentencing judges
    findings of fact or identification of aggravating and mitigating factors, to
    the extent that they are not affected by an error in principle:
Friesen
,
    at para. 28.

[12]

In sentencing afresh, we begin by reiterating
the observations
of Doherty J.A. in
R. v. Nur
,
    2013 ONCA 677, at para. 206, affd 2015 SCC 15, [2015] 1 S.C.R. 773, that [i]ndividuals
    who have loaded restricted or prohibited firearms
that
they have no business possessing anywhere or at any time, and who are
    engaged in criminal conduct or conduct that poses a danger to others should
    continue to receive exemplary sentences that will emphasize deterrence and
    denunciation. In
Nur
,
both this court and
the
    Supreme Court of Canada declined to interfere with a 40-month sentence imposed on
    a 19-year-old first-time offender who tried to flee the police, was chased, and
    threw his loaded handgun under a parked car. McLachlin C.J. underscored, at
    para. 120, that [i]t remains appropriate for judges to continue to impose
    weighty sentences in appropriate circumstances.

[13]

Here, in proposing a three-year sentence before
    credit for pre-trial custody and
Downes
credit, the Crown was mindful
    of these and other authorities. Crown counsel fairly noted that some cases have
    imposed longer sentences than this for similarly serious gun possession offences
    by youthful first-time offenders, while other cases have imposed shorter
    sentences. The Crown was satisfied that its proposed sentence was appropriate having
    regard to
the following factors
: (1) the
    appellant was a youthful first-offender; (2) while there was no evidence that
    the appellant was involved in gang activity, there was also no evidence of any
    direct threat to the appellant; (3) the appellant had witnessed gun violence, his
    older brother had died in gun violence, and he lived in a part of Toronto where
    gun violence is commonplace; (4) the appellant had prospects for rehabilitation;
    and (5) although the appellant did not plead guilty, he saved several days of
    court time by effectively inviting a guilty verdict after losing a preliminary
Charter
challenge.

[14]

In our view, there is no basis to depart from
    the sentence that the Crown proposed at first instance, even though on appeal
    the Crown urges us to uphold the sentencing judges sentence despite the lack
    of procedural fairness. We recognize that, in properly balancing all the
relevant
factors, some courts might impose higher sentences
    while others might impose lower sentences. However, we are satisfied that the Crowns
    original proposal properly balanced all the
relevant
factors
    and is therefore fit.

[15]

Leave to appeal sentence is granted and the
    sentence appeal is allowed. The sentence is reduced to the Crowns original proposal,
    which is 36 months, less 54 days credit for pre-sentence custody and 5 months or
    150 days as
Downes
credit for restrictive house arrest conditions. The
    ancillary orders made by the sentencing judge remain unchanged.

J.C.
    MacPherson J.A.

Grant
    Huscroft J.A.

M. Jamal
    J.A.