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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. R. D., 2019 ONCA 951

DATE: 20191204

DOCKET: C56617 and C58709

Lauwers, van Rensburg and
    Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. D.

Appellant

R. D., in person

Lisa Jørgensen, counsel for the
    appellant on the sentence appeal and duty counsel on the conviction appeal

Deborah Krick, for the respondent

Heard: November 13, 2019

On appeal from the convictions entered on October 21, 2009 by Justice Robert Maranger of the Superior Court of Justice, sitting with a jury, and the sentence imposed on January 16, 2013.

Hourigan J.A.:

I.

Overview

[1]

R.D. appeals his convictions and sentence for
    unlawful confinement, sexual assault causing bodily harm, and choking with
    intent.

[2]

Two grounds of appeal are asserted on the
    conviction appeal. First, the appellant submits that the trial judge erred in
    dismissing his application to prohibit Crown cross-examination on his prior
    convictions, pursuant to
R. v. Corbett
, [1988] 1 S.C.R. 670.
    Specifically, he argues that the trial judge should not have permitted
    cross-examination on his previous conviction for attempted murder. Second, the appellant
    argues that the trial Crowns cross-examination and closing argument
    compromised his right to a fair trial.

[3]

For reasons I will explain, I would not give
    effect to either ground of appeal. On the facts of this case, where the defence
    mounted an all-out attack on the complainants credibility and character, the
    trial judge properly exercised his discretion to allow cross-examination on the
    attempted murder conviction. Further, the Crowns cross-examination and closing
    were not improper and did not compromise the appellants right to a fair trial.

[4]

Regarding the sentence appeal, the Crown
    concedes that the trial judge erred in conducting the dangerous offender
    application pursuant to provisions in the
Criminal Code
, R.S.C., 1985, c. C-4,
that had been
    repealed and replaced. However, the Crown submits that the trial judge applied
    the correct legal test for the designation, since the legislative amendments
    did not change the criteria for a dangerous offender designation. It relies on
    the curative proviso and argues that the dangerous offender designation should
    remain in place. The Crown acknowledges that a new hearing should be ordered to
    consider the issue of sentence.

[5]

I conclude that the curative proviso is
    unavailable. It would be fundamentally unfair to the appellant to limit his
    submissions on a new hearing to sentence. The fresh evidence on sentence will
    undoubtedly touch on some of the same issues as the original dangerous offender
    hearing. It is unclear whether this fresh evidence will conflict with the
    evidence that was relied on in making the original designation approximately
    eight years ago. In the circumstances, it cannot be said that the trial judges
    error was inconsequential. I would order a new hearing on the dangerous
    offender designation and sentence.

II.

Analysis

(a)

Conviction Appeal

(i)

Corbett
Application

[6]

Credibility was a critical issue in this case
    because the complainant and the appellant testified and gave diametrically
    opposing accounts of what happened in the early morning hours of August 2,
    2008.

[7]

The complainants evidence was that she went out
    with the appellant and a group of friends and ended up at the appellants
    apartment. She says that she passed out at about 4 a.m. and awoke to the
    appellant choking her. The complainant testified that over the course of a
    lengthy assault, the appellant repeatedly forced vaginal intercourse and
    attempted anal intercourse. Police photographs of the complainant show
    extensive bruising.

[8]

The appellant testified that it was the
    complainant who initiated the sexual activity. His evidence was that they
    engaged in consensual vaginal and anal intercourse. According to the appellant,
    when he and the complainant parted, she did not look like she did in the police
    photographs.

[9]

The appellant brought a
Corbett
application to prohibit cross-examination on certain convictions. In 1993, he was
    convicted of attempted murder, possession of a weapon, break and enter to commit
    assault, and sexual assault. Defence counsels submission was that because the
    previous violent offences were very similar to the charges then before the
    court, the records prejudicial effect far outweighed any probative value.

[10]

In his reasons on the application, the trial
    judge quoted extensively from
Corbett
, including a review of the
    factors to consider on the application. He noted that the complainants credibility
    and character had been front and centre. The trial judge concluded that
    excluding the convictions in their entirety would leave the jury with the
    mistaken impression that the appellant had an unblemished record.

[11]

The trial judge noted that there was some prejudice
    in allowing the criminal record to go before the jury, but he found that a
    strong direction to the jury and a limited amount of the criminal record to go
    before the jury is the fairest way to deal with this matter. He ruled that the
    conviction for attempted murder could be the subject of cross-examination and
    that all other entries on the record should be excluded.

[12]

The appellant submits that the trial judge erred
    in permitting cross-examination on his conviction for attempted murder. He
    argues that its admission was highly prejudicial because it would lead to
    propensity reasoning by the jury that could not be cured by a direction. This ruling
    is also said to be prejudicial because it involved his most serious conviction
    and because the complainant testified that she feared for her life during her
    encounter with the appellant.

[13]

The legal principles underlying
Corbett
applications are well settled and need not be repeated here. However, two
    points are worth emphasizing for present purposes. First, there is no
    presumption that an accused will not be cross-examined on his or her record. To
    the contrary, cross-examination on the accuseds criminal record will be the
    usual course:
R. v. N.A.P.
(2002)
,
    167 O.A.C. 176, at para. 20. Second, deference is owed to a trial judges
    determination of a
Corbett
application, except where there is an error
    in principle, misapprehension of the material facts, or unreasonable exercise
    of discretion:
R. v. McManus
, 2017 ONCA 188, 353 C.C.C. (3d) 493, at
    para. 84;
R. v. Paul
, 2009 ONCA 443, 249 O.A.C. 199, at para. 13,
    leave to appeal refused, [2009] S.C.C.A. No. 45.

[14]

In considering whether the trial judge erred in
    exercising his discretion, this courts decision in
N.A.P.
is
    instructive. In that case, the accused was charged in a ten-count indictment
    with various offences against his wife and daughter, including assault,
    threatening death, and unlawful confinement. The defence brought a successful
Corbett
application to exclude his criminal record, which included an attempted murder
    conviction. The accused was convicted on only one count and the Crown appealed.

[15]

On appeal, Doherty J.A., writing for the court,
    ruled that the trial judge made an error in principle in her ruling on the
Corbett
application, which necessitated this court reviewing the merits of the
    application afresh. Doherty J.A. referenced
R. v. Saroya
(1994), 76
    O.A.C. 25, (Ont. C.A.) for the proposition that a conviction for attempted
    murder has significant probative value in a credibility analysis. Attempted
    murder is such a serious offence that it may indicate a conviction for perjury
    is unlikely to keep the witness honest. It is also open to the jury to find
    that the witness is unlikely to have more respect for the truth than he or she
    has shown for human life.

[16]

Doherty J.A. balanced the convictions probative
    value against the risk that the jury would conclude that someone who had
    actually tried to kill another person was dangerous and would certainly not
    hesitate to threaten and assault others:
N.A.P.
, at para. 25. He
    noted that in cases where credibility is central to the outcome of a trial, the
    balance may favour cross-examination where the accused mounts an all-out attack
    on the credibility and character of the Crown witnesses. Doherty J.A. found
    that the defence had made such an attack on the complainants. However, that
    factor was neutralized because the Crown had presented a great deal of evidence
    that established that, throughout an eighteen-year marriage, the accused had physically
    and emotionally abused his wife and children. Accordingly, there was no risk
    that the failure to permit cross-examination on the attempted murder conviction
    would leave the jury with the mistaken impression that the accused had an
    unblemished record. Doherty J.A. concluded that although it was a close case,
    the proper exercise of discretion favoured prohibiting cross-examination on the
    attempted murder conviction.

[17]

In the case at bar, similar to the situation in
N.A.P.
,
    the defence mounted an all-out attack on the complainants credibility and
    character. The nature and extent of that attack is best captured in the
    following excerpt from the defences closing argument:

But the fact of  of a conviction for an
    assault, especially one thats described by her, certainly shouldnt make you
    think in terms of truthfulness. But its interesting because it shows the type
    of behaviour she was exhibiting during that time period, and her attitude
    towards the police, and some of the outrageous things she said to them. Now
    another factor in her evidence is she talks about how she had chlamydia from
    some previous incident. Thats of some interest when we get to -to the actual
    incident itself. She talks about that thats probably from a  a abusive
    boyfriend she used to live with.

[18]

It is evident that the defence strategy was to
    attack the complainants character and credibility. Her previous conviction for
    assaulting a police officer and her lifestyle were relied on to paint her as a
    person whose testimony was unworthy of belief.

[19]

Unlike the situation in
N.A.P.
,
    however, in this case there was no other evidence about the appellant to
    neutralize his attack on the complainants character and credibility. In these
    circumstances, the trial judge did not err in principle in failing to exclude
    cross-examination on the attempted murder conviction. In my view, its inclusion
    permitted a more informed credibility assessment of the competing versions of
    events.

[20]

The appellant submits that the trial judge
    should have exercised his discretion differently by excluding cross-examination
    on the attempted murder and sexual assault convictions but permitting it on the
    convictions for possession of a weapon and break and enter to commit assault. I
    would not give effect to this argument. As in
N.A.P.
, the potential
    probative value and prejudicial effect of cross-examination on the attempted
    murder conviction were both relatively high. The appellants desired order
    would certainly reduce any potential prejudice, but it would also significantly
    reduce the probative value of the cross-examination on the appellants record.
    It was for the trial judge to determine where the appropriate balance should be
    struck, and that balancing is owed deference on appeal.

[21]

I am not satisfied that the trial judge erred in
    exercising his discretion. Appellate interference is not warranted and I would
    therefore dismiss this ground of appeal.

(ii)

Cross-Examination and Crown Closing

[22]

The appellant argues that the trial Crowns
    cross-examination was improper and that the prejudice arising from it was
    exacerbated by her closing address. Specifically, the appellant submits that
    the cross-examination and closing were improper because the trial Crown: (i)
    required the appellant to explain the evidence against him, thereby suggesting
    a reverse onus; (ii) insinuated that the appellant was knowledgeable about the
    criminal justice system; (iii) breached the appellants right to silence and
    solicitor-client privilege; and (iv) intimidated the appellant into not giving
    full answers.

[23]

Before analyzing these complaints, some context
    is helpful. In considering a claim of improper Crown conduct, it is often
    difficult for an appellate court to understand the dynamics of a trial. A
    transcript may not accurately convey what was happening in the courtroom. The
    words are all written down, but the tone is lost. Fortunately, in this case we
    have the benefit of comments from trial defence counsel. He brought an
    unsuccessful motion for a mistrial and in the course of his submissions, he
    commented on the way the trial Crown was prosecuting the case. It was his
    position that the trial Crown had done nothing improper. He even went as far to
    say, not only is my friend not straddling the line of misconduct, shes not
    even close to the line of misconduct.

[24]

With that comment in mind, I turn to the first
    complaint about the trial Crowns cross-examination. The appellant submits that
    the trial Crown was asking the appellant to explain the evidence against him,
    which suggested to the jury a reverse onus on the appellant. In addition, the
    appellant argues that the trial Crown, in her closing, continued to suggest to
    the jury that the appellant had an obligation to explain the evidence against
    him.

[25]

I would not give effect to this argument. In one
    instance, the trial Crown asked the appellant to comment on what the
    complainant was thinking. The defence objected and the Crown agreed to rephrase
    the question. Otherwise, my reading of the impugned questions is that the Crown
    was challenging the appellant on his version of events. There is nothing
    improper in that. Indeed, it is part of the Crowns responsibilities to test
    the defence evidence. Similarly, the parts of the closing submission contested
    on this basis are instances where the trial Crown is inviting the jury to
    reject the appellants evidence. Such submissions in criminal trials are
    commonplace and are not improper.

[26]

During a question about what the appellant did
    as the complainant was leaving, the Crown stated the reason why you didnt
    give her money for a cab was that to keep track of her because
you know how
    it is
, and you  you were afraid she was gonna go to the police because of
    what had happened on that day? (emphasis added). The appellant argues that the
    underlined words suggested he was knowledgeable about the criminal justice
    system.

[27]

I see no merit in this submission. There was no
    overt reference to the appellants experience with the criminal justice system
    and it does not necessarily follow from this question that the appellant was
    known to the police. In any event, the jury was aware of his previous
    conviction for attempted murder. The appellant could not have suffered any
    prejudice by the inclusion of this phrase in the impugned question.

[28]

Next, the appellant objects to questions about
    why the appellant did not speak to his friends after the incident. When answering
    on this topic, the appellant referenced having a communication with his lawyer.
    The appellant argues that, at this point, the Crown should have abandoned this
    line of questions and that the failure to do so breached solicitor-client
    privilege and his right to remain silent.

[29]

I reject this submission. At no point was the
    appellant questioned about his communications with his lawyer. The Crown was
    trying to establish that the appellants post offence conduct was relevant.
    Accordingly, the Crown was obliged to cross-examine the appellant on his
    actions and that was the purpose of the questions. There was nothing improper
    about this area of cross-examination.

[30]

As mentioned above, the defence brought an
    unsuccessful mistrial application. The basis of the application was that the
    appellant was prevented from making full answer and defence as a result of the
    manner in which the cross-examination took place. The appellant makes a similar
    argument before us. To understand that argument some background is required.

[31]

At trial, the Crown requested a direction be
    given to the appellant that he answer the questions asked and not get into
    tirades about things that are irrelevant to the question. The trial judge
    directed the appellant to answer the questions asked and not go on tangents
    about collateral matters. The appellant submits this direction effectively made
    him reluctant to give full answers, thus impairing his right to a fair trial.

[32]

The trial judge rejected a similar argument on
    the mistrial application. After reviewing the transcript, he could not find any
    instance where the appellant was prevented from answering a material question.

[33]

I agree with the trial judges analysis. It is
    evident from the transcript that the appellant had no difficulty in answering
    the questions put to him. Indeed, on occasion he was combative with the trial
    Crown, as he forcefully put his position to her. In support of this argument, the
    appellant primarily relies on a single example  a question about where the
    appellant put his shirt that night. The appellant wanted to provide details
    about the fact that he had earlier in the evening been wearing a different
    shirt. He was permitted to do so and ultimately answered the question asked. Again,
    I fail to see how the appellants ability to answer questions was compromised.

[34]

The appellant next complains that the trial
    Crown used inflammatory language in both her cross-examination of him and her
    closing address to the jury. I am not persuaded by this argument. In my view,
    there was nothing inflammatory in the cross-examination of the appellant.
    Questions were put to him that challenged his version of events. The challenged
    portions of the closing are primarily instances where the trial Crown was
    responding to submissions made by defence counsel. I am not persuaded that the
    trial Crown in responding to very aggressive defence submissions used
    inflammatory language.

[35]

Finally, the appellant submits that the trial
    Crown improperly submitted that the complainant had no motive to fabricate her
    evidence and should therefore be believed. This is a troubling argument. The
    impugned portion of the closing does not contain any reference to the
    complainant having no motive to fabricate. Rather, the trial Crown is simply
    responding to arguments made by the appellants counsel in his closing as to
    why the complainant may have lied. The trial Crown quite properly submitted to
    the jury that defence theories about why the complainant may have lied are just
    allegations and not evidence.

[36]

Overall, the difficulty with the appellants
    argument on this ground of appeal is that it fundamentally misconceives the
    Crowns role, seeking to relegate the Crowns status to that of a passive
    observer at trial. It is true that the Crown cannot adopt a purely adversarial
    role towards the defence, but the adversarial process is an accepted tool in
    our search for truth. The Crown must act as a strong advocate within this
    process, and it is both permissible and desirable that it vigorously pursue a
    legitimate result to the best of its ability:
R. v. Cook
,
[1997] 1 S.C.R. 1113, at para. 21.

[37]

Every participant in a criminal trial has a role
    to play. A Crown attorneys role is not to secure a conviction but to fairly
    present to the trier of fact credible evidence of an alleged crime. They do so as
    advocates and they fail in their duty when they do not do their utmost to
    present as strong a case as possible. The execution of this duty includes
    cross-examinations that highlight for the trier of fact the weaknesses in the
    accuseds exculpatory evidence. Where a Crown attorney leaves unchallenged what
    should be challenged, he or she breaches a public obligation to ensure that a
    clear picture of the evidence is presented to the court. In short, a Crown
    attorney must vigorously present a case without fear or favour in order for our
    justice system to function.

[38]

I agree with the submission of trial counsel for
    the appellant, the Crowns conduct in this case did not come close to crossing
    the line of misconduct. This was a hard-fought trial, where both the defence
    and Crown presented their respective cases forcefully. Nothing in Crown counsels
    conduct is worthy of censure by this court and nothing she did compromised the
    appellants right to a fair trial. For these reasons, I would reject this
    ground of appeal.

(b)

Sentence Appeal

[39]

It is common ground between the parties that the
    appellants dangerous offender proceeding should have proceeded under the
    post-2008 dangerous offender legislation. The relevant amendments of the
Tackling
    Violent Crimes Act
, S.C. 2008, c. 6, came in to force on July 2, 2008. The
    predicate offences were committed on August 2, 2008. The appellant was
    convicted on October 21, 2009 and his dangerous offender hearing commenced on
    September 6, 2011.

[40]

Under the previous dangerous offender scheme, a
    trial judge had discretion to designate an offender as dangerous, but there was
    no discretion at the sentencing stage. Once a designation was made, an
    indeterminate sentence had to be imposed.

[41]

The current version of the scheme establishes a
    two-stage process wherein the first stage determines whether a dangerous
    offender designation will be made. In the second stage, the court considers the
    appropriate sentence. This new scheme removes the discretionary language from
    the designation stage, such that if the statutory criteria have been met, the
    designation must follow. However, there is some discretion at the sentencing
    stage. A sentencing judge must impose an indeterminate sentence on a designated
    offender
unless
there is a reasonable expectation that a lesser measure
    will adequately protect the public:
Criminal Code
, s. 753(4.1).

[42]

The 2008 amendments only changed the opening
    words of s. 753(1) of the
Criminal Code

to remove a sentencing
    judges discretion regarding a dangerous offender designation. The amendments
    did not impact the criteria that must be established to impose the designation.
    Since the language for the criteria is the same between the two legislative
    schemes, the Crown relies on the curative proviso and asks that this court
    uphold the designation as a dangerous offender. The Crown does not seek to rely
    on the curative proviso for the imposition of an indeterminate sentence because
    the 2008 amendments introduced changes to the sentencing of dangerous
    offenders.

[43]

I would not give effect to this submission. My
    concern is that a hearing focussed only on the issue of sentence could be
    unfair to the appellant. I say this because of the overlap in the evidence in
    the two stage process.

[44]

In
R. v. Boutilier
, 2017 SCC 64, [2017]
    2 S.C.R. 936, the Supreme Court considered several issues regarding the
    dangerous offender provisions, including their constitutionality. One of the
    issues before the Court was whether a sentencing judge is entitled to consider
    evidence of future treatment prospects when deciding whether to designate an
    offender as opposed to when imposing a sentence. Côté J., writing for the Court,
    concluded that a sentencing judge could have regard to future treatment
    prospects when deciding whether to designate an offender.

[45]

In reaching this conclusion, Côté J., at paras.
    44 and 45, commented on the overlap in evidence between the two stages of the
    dangerous offender process:

Given that a dangerous offender application is
    typically conducted in one hearing, it would be artificial to distinguish
    evidence that should be considered to designate an offender as dangerous from
    evidence that should be considered to determine the appropriate sentence. All
    of the evidence adduced during a dangerous offender hearing must be considered
    at both stages of the sentencing judges analysis, though for the purpose of
    making different findings related to different legal criteria. During the
    application hearing, the Crown or the accused must present any prospective
    evidence concerning risk, intractability, or treatment programs, including the
    required assessment report addressing prospective treatment options. Many
    aspects of clinical evaluations provide evidence going to both the assessment
    of the offenders future risk and the sentence necessary to manage this risk

The same prospective evidence of treatability
    plays a different role at the different stages of the judges decision-making
    process. At the designation stage, treatability informs the decision on the
    threat posed by an offender, whereas at the penalty stage, it helps determine
    the appropriate sentence to manage this threat. Thus, offenders will not be
    designated as dangerous if their treatment prospects are so compelling that the
    sentencing judge cannot conclude beyond a reasonable doubt that they present a
    high likelihood of harmful recidivism or that their violent pattern is
    intractable. However, even where the treatment prospects are not compelling
    enough to affect the judges conclusion on dangerousness, they will still be
    relevant in choosing the sentence required to adequately protect the public.
    [Citations omitted.]

[46]

It is evident from the foregoing that there is
    significant evidentiary overlap between the two stages of the dangerous offender
    process. If we accede to the Crowns submission, the decision on the first
    stage of the process would be based on evidence that was current as of 2011.
    The second stage would necessarily require fresh evidence that would update the
    court on what has happened since the designation.

[47]

It is possible that a judge conducting a new sentencing
    only hearing would be placed in a position where fresh evidence would lead the
    judge to find that the appellant should not be designated a dangerous offender.
    Yet, the Crowns proposal means that the trial judges designation, which is based
    on evidence that may be out of date, would bind the sentencing judge.

[48]

In my view, the Crown has not established that
    the error was harmless such that no substantial wrong or miscarriage of justice
    would result. Nor has the Crown established that the evidence is so
    overwhelming that a dangerous offender designation would inevitably follow. To
    the contrary, we do not know at this stage what the evidence will be regarding
    the appellant's current and future prospects and cannot say that he would
    inevitably be designated a dangerous offender. Therefore, this is not a case
    for application of the curative proviso.

III.

Disposition

[49]

For the forgoing reasons, I would dismiss the
    conviction appeal. I would grant leave to appeal sentence and, pursuant to s.
    759(3) of the
Criminal Code
, order a new hearing on the issues of the
    appellants designation as a dangerous offender and sentence.

Released: K.M.v.R. December 4, 2019

C.W. Hourigan J.A.

I agree. P. Lauwers J.A.

I agree. K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Richardson, 2019 ONCA 996

DATE: 20191217

DOCKET: C65285

Brown, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lance Richardson

Appellant

Jeffrey Carolin and Nicolas Rouleau, for the appellant

Linda Shin, for the respondent

Heard and released orally: December 16, 2019

On appeal from the convictions entered on June 21, 2017 by
    the Honourable Alfred J. OMarra of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2017 ONCA 3779.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of robbery (
Criminal Code
,
    s. 343), one count of use of an imitation firearm in the commission of an
    indictable offence (s. 85(2)(a))
[1]
,
    two counts of assault causing bodily harm (s. 267(b)), and one count of
    threatening to cause death (s. 264.1(1)(a)). He received a global sentence of
    four years imprisonment.

[2]

The case arose from the violent robberies of a man and a woman who were
    having a late night picnic behind the Yorkdale Subway Station in Toronto. There
    were two masked assailants. One carried an imitation firearm, while the other wielded
    a cleaver-like knife. They assaulted and threatened both victims. The trial
    judge was satisfied beyond a reasonable doubt that the appellant was one of the
    assailants.

[3]

After he was arrested, the appellant protested his innocence and pointed
    to voicemail messages exchanged on the Voxer App as proof that: (1) he was not
    present when the victims were robbed; and (2) that another named individual was
    the second assailant. A police officer listened to the messages but found them
    to be unhelpful to her investigation.

[4]

The appellant testified at trial and referred to these messages.
    However, at the time, he no longer had access to his phone and the messages
    were unavailable. The trial judge rejected the appellants evidence, finding
    that it did not raise a reasonable doubt.

[5]

The appellant appeals his convictions. He initially raised numerous
    grounds of appeal. However, he now challenges his conviction solely on the
    basis of an application to adduce fresh evidence. The core of the fresh
    evidence is an expert forensic report that authenticates the Voxer messages. Properly
    authenticated, they establish that the appellant was not one of the assailants.

[6]

The Crown consents to the admission of this fresh evidence. She
    acknowledges that it is relevant, credible and could reasonably have been
    expected to affect the result at trial when considered with the other trial
    evidence. The Crown also concedes that the appellants convictions amount to a
    miscarriage of justice and she invites this court to set aside the convictions
    and enter acquittals.

[7]

We accept the Crowns reasonable concessions. Accordingly, we admit the
    fresh evidence, set aside the convictions, and enter acquittals on all counts.

[8]

We thank all counsel for their diligence and professionalism in working
    together to correct this wrongful conviction.

David Brown J.A.

Grant Huscroft J.A.

Gary Trotter J.A.

[1]

In his reasons for judgment, at para. 1, the trial judge notes
    that there were two counts under s. 85(2)(a) of the
Criminal Code
. The
    Indictment contains just one  Count #3.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ronald, 2019 ONCA 971

DATE: 20191211

DOCKET: C63798 & C65191

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gurpreet Ronald

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Bhupinderpal Gill

Appellant

Catriona Verner and Lance Beechener, for the appellant, Gurpreet
    Ronald

James Harbic and Robert Harbic, for the appellant, Bhupinderpal
    Gill

Christine Bartlett-Hughes and Michael S. Dunn, for the
    respondent

Heard: November 13, 2019

On appeal from the convictions
    entered by Justice Julianne A. Parfett of the Superior Court of Justice,
    sitting with a jury, dated July 20, 2016.

Doherty J.A.:

I

introduction

[1]

Jagtar Gill was home alone recovering from an operation in the early
    afternoon of January 29, 2014. Someone entered her home, beat her with a metal bar,
    stabbed her many times, and slashed her throat. She died almost immediately.

[2]

The appellants were charged with first degree murder. They were both
    convicted and they both appeal.

[3]

There are various issues raised on appeal, however, ultimately both
    appeals turn on whether the trial judge erred in failing to leave potential
    liability on the included offence of second degree murder with the jury in
    respect of Gurpreet Ronald. As I am satisfied the trial judge did err, and that
    the error requires a new trial for both appellants, I need not address the
    other grounds of appeal. In my view, none of the other grounds of appeal could
    succeed, absent the error in failing to leave a conviction on second degree
    murder for Ms. Ronald as a possible verdict.

II

overview

[4]

At trial, the Crown argued that the appellant, Bhupinderpal Gill (Mr.
    Gill), who was Ms. Gills husband, had conspired to murder Ms. Gill with the
    appellant, Gurpreet Ronald (Ms. Ronald). Mr. Gill and Ms. Ronald had been
    romantically involved for years. The Crown submitted that in furtherance of the
    plan, Ms. Ronald had gone to the Gill residence around noon on January 29
,
2014, under the pretense of borrowing some tools and visiting Ms. Gill. Ms.
    Ronald and Mr. Gill had arranged that Mr. Gill would run some errands with his
    daughter, leaving Ms. Gill alone. Before leaving his home, Mr. Gill had removed
    the weights and fixtures from a weight bar he kept in the basement and took the
    bar upstairs to the family room so Ms. Ronald could use it in her attack on Ms.
    Gill. The Crown argued that, when Ms. Ronald arrived at the Gill home, she used
    the bar to repeatedly strike Ms. Gill. She also stabbed Ms. Gill many times.
    The attack ended with Ms. Ronald slashing Ms. Gills throat.

[5]

After killing Ms. Gill, Ms. Ronald left the Gill home, contacted Mr.
    Gill and met him briefly at a nearby store. Mr. Gill returned home with his
    daughter and found his wifes body in the family room on the main floor. He
    called 911. Mr. Gill found the bloody weight bar near the body and hid it in
    the basement. There was also evidence that he attempted to wash blood from two
    knives he found near his wifes body.

[6]

Mr. Gill testified in his own defence. He acknowledged the long-running
    affair with Ms. Ronald, but indicated that it had ended a few months before the
    murder. He had told Ms. Ronald he would not leave his wife. Mr. Gill testified
    that his relationship with his wife was improving at the time of her death and
    that his marriage had not been better for quite some time. He insisted that he
    had nothing to do with his wifes death.

[7]

Mr. Gill admitted hiding the bloody weight bar in his basement and later
    attempting to dispose of the weight bar. He testified that, when he realized that
    the bloody bar used to kill his wife was his own weight bar, he feared that he
    would be blamed for her death by her family, so he tried to get rid of it.

[8]

In his closing submissions, counsel for Mr. Gill urged the jury to find
    that Ms. Ronald had killed Ms. Gill, but that she had acted alone, perhaps in
    furtherance of her own plan, or perhaps as a result of a spontaneous decision
    made by her when she was at the Gill home. Counsel submitted to the jury that
    something may have happened between Ms. Ronald and Ms. Gill that caused Ms.
    Ronald to go berserk. Counsel pointed to evidence that, on at least three prior
    occasions, Ms. Ronald had threatened her husband with a knife when they were
    arguing.

[9]

Ms. Ronald also testified. She, too, denied any involvement in the
    killing. According to her, she went to the Gill home to borrow some tools and
    visit with the convalescing Ms. Gill. This kind of visit by someone who knew
    the family was expected in Ms. Ronalds culture. Ms. Ronald testified that the
    front door was open and when she went inside, she found Ms. Gills bloody body on
    the floor in the family room.

[10]

Ms. Ronald testified that she panicked, thinking that she would be
    blamed because she had been Mr. Gills lover. In the course of this panic, she picked
    up a large kitchen knife that was near the body. She took a pair of disposable
    gloves from a box on a nearby table and tried to clean blood from the knife, but
    cut her finger. She then went to various parts of the house looking for a Band-Aid.
    Ms. Ronald testified that she left the house with the knife, the gloves, and
    the box. The knife and the box had blood on them. According to Ms. Ronald, she
    later threw the large knife and the gloves into a snowbank. The police later recovered
    the knife and gloves. One of the gloves was missing a finger.

[11]

Ms. Ronald testified that she left the Gill home shortly after
    discovering the body. She immediately drove to her own home nearby. Ms. Ronald
    called Mr. Gill to find out if he knew what had happened at his house. They
    spoke very briefly. Ms. Ronald and Mr. Gill met at a nearby store about 10
    minutes later. Once again, they spoke briefly. Mr. Gill then headed to his
    house with his daughter. His daughter found the body when she went into the
    house ahead of Mr. Gill.

[12]

The trial judge told the jury that Mr. Gill was either guilty of first degree
    murder, or not guilty. This all or nothing instruction, as it applies to Mr.
    Gill, was not challenged at trial or on appeal. There was no evidence that Mr.
    Gill participated in his wifes murder, except as a co-conspirator in a plan to
    murder his wife that was carried out by Ms. Ronald. If the jury accepted that
    evidence, Mr. Gill was guilty of first degree murder. If the jury had a doubt
    about his participation in the plan, Mr. Gill had to be acquitted.

[13]

The trial judge also instructed the jury that there were only two
    verdicts available with respect to Ms. Ronald. She, too, was either guilty of first
    degree murder or not guilty. This instruction was challenged by counsel for Ms.
    Ronald at trial and is the main focus of the appeal.

[14]

Counsel for Ms. Ronald accepts that the evidence pointed strongly to her
    as the killer. Counsel contends, however, that there was an evidentiary basis upon
    which a properly instructed jury could realistically have a doubt as to whether
    the murder was planned and deliberate. To take that possibility into account,
    the trial judge had to instruct the jury on Ms. Ronalds possible liability for
    the offence of second degree murder, the correct verdict if the jury was
    satisfied that Ms. Ronald was the killer, but had a doubt about whether the
    murder was planned and deliberate.
[1]

[15]

Counsel submits that the failure to leave a conviction for second degree
    murder as a possible verdict for Ms. Ronald constitutes reversible error. Counsel
    contends that any jury faced with the strong evidence that Ms. Ronald killed Ms.
    Gill would be most reluctant to find Ms. Ronald not guilty. A jury presented
    with only two possible verdicts, guilty of first degree murder or not guilty,
    would almost inevitably choose the verdict that holds Ms. Ronald responsible
    for Ms. Gills death. She asks the court to order a new trial on the charge of first
    degree murder.

[16]

Counsel for Mr. Gill contends that the failure to leave the possibility
    of a conviction for second degree murder in respect of Ms. Ronald seriously
    prejudiced his defence. At trial, counsel for Mr. Gill argued that Ms. Ronald
    had killed Ms. Gill, and had acted alone in doing so. Counsel acknowledged that
    Ms. Ronald may have planned and deliberated before committing the murder, but stressed
    that she may have formed the intention to kill while involved in some kind of
    verbal altercation with Ms. Gill that caused Ms. Ronald to go berserk. On
    this version of events, the murder was intentional, but not planned and
    deliberate. Ms. Ronald would properly be convicted of second but not first degree
    murder.

[17]

Mr. Gill submits that, by failing to leave the possibility of a
    conviction for the included offence of second degree murder as it relates to
    Ms. Ronald, the trial judge took away a crucial part of Mr. Gills argument
    that Ms. Ronald had acted alone. By removing the possibility that the murder by
    Ms. Ronald was intentional, but not planned and deliberate, the trial judge
    effectively neutered the best argument Mr. Gill had in support of the claim
    that Ms. Ronald acted alone. He submits that this court should conclude that
    his defence was not fully and fairly left with the jury and that the failure to
    leave the defence properly constitutes an error in law entitling him to a new
    trial.

[18]

The Crown submits that the trial judge correctly refused to leave the
    possibility of a conviction for second degree murder in respect of Ms. Ronald. The
    Crown contends that, on the totality of the evidence, there was no air of
    reality to a finding that Ms. Ronald was not guilty of a planned and
    deliberate murder, but guilty of murder.

[19]

The Crown further submits that, even if the trial judge erred in not
    leaving second degree murder as a possible verdict for Ms. Ronald, the error
    occasioned no substantial wrong or miscarriage of justice in respect of either appellant.
    The Crown maintains that the jurys conviction of Mr. Gill on first degree
    murder was untainted by any error in respect of the possible verdicts
    applicable to Ms. Ronald. The jury was told to consider the case against each
    appellant separately and the instructions, as applied to Mr. Gill, were faultless.
    The Crown submits that there is no reason to think that the failure to leave second
    degree murder as a possible verdict for Ms. Ronald somehow affected the verdict
    returned by the jury in respect of Mr. Gill.

[20]

Insofar as Ms. Ronald is concerned, the Crown submits that the jurys
    verdict of first degree murder as against Mr. Gill demonstrates that the jury
    was satisfied, beyond a reasonable doubt, that Mr. Gill and Ms. Ronald planned
    and deliberated the murder together. The Crown contends that this factual
    finding against Mr. Gill, and by implication Ms. Ronald, is not tainted by the
    failure to leave second degree murder as a possible verdict for Ms. Ronald. This
    finding demonstrates that, even if second degree murder had been left with the
    jury, it would not have affected the result, as the jury clearly decided that
    Ms. Ronald planned and deliberated the murder with Mr. Gill, precluding any possibility
    of a conviction for second degree murder.

[21]

I would allow the appeals of both appellants. There was a basis in the
    evidence upon which the jury could reasonably conclude that Ms. Ronald, acting
    alone, had murdered Ms. Gill, but have a doubt as to whether the murder was
    planned and deliberate. On that view, Ms. Ronald was guilty of second degree
    murder. The failure to leave that possible verdict with the jury is an error in
    law. I am also satisfied that, in the circumstances of this case, the failure
    to leave the included offence with the jury in respect of Ms. Ronald unfairly
    undermined the defence of Mr. Gill, resulting in a further error of law. The
    Crown has not satisfied me that the
curative proviso
can be applied in
    respect of either appellant. New trials on the charge of first degree murder
    are necessary for both.

III

the evidence

(i)

The relationships

[22]

The Gills married in 1997 in India. They had three children. Their eldest
    daughter, Dilpreet, was 15.

[23]

Mr. Gill worked as a bus driver; Ms. Gill was employed at times but was
    unemployed in January 2014. Both had medical problems and, over time, they had stopped
    having sexual relations. Their marriage was not a happy one in many ways,
    although, according to one witness who was a friend of the family, the marriage
    seemed to be improving at the time of Ms. Gills death.

[24]

Ms. Ronald married her husband in 2001. Their marriage had also been a
    rocky one. On at least three occasions when they had fought, Ms. Ronald had
    threatened her husband with a knife. By early 2014, Mr. Ronald had decided to
    leave Ms. Ronald for good. She continued to profess her love for him and was
    angry about his planned move.

[25]

Ms. Ronald worked for the same bus company as Mr. Gill. She was also a hairdresser.
    Ms. Gill was one of her clients. Their families were friendly and visited with
    each other from time-to-time over the years. In addition to her two jobs, Ms.
    Ronald invested in real estate, buying properties, fixing them up, and selling
    them.

[26]

Mr. Gill met Ms. Ronald at their shared workplace in 2007. They became
    close friends and eventually sexual partners. According to both, the sexual
    component of their relationship waned and had stopped by the fall of 2013. They
    remained friends. According to Ms. Ronald, she remained emotionally very close
    to Mr. Gill.

[27]

The Crown called evidence from one witness who testified to a
    conversation she had with Ms. Ronald and Mr. Gill in April 2012. Ms. Ronald
    indicated that she and Mr. Gill would do anything to stay together. Mr. Gill was
    nodding, and he further indicated that divorce was not an option for him.

[28]

In addition to her relationship with Mr. Gill and her ongoing
    relationship with her husband, Ms. Ronald was also having a sexual relationship
    with a man named Singh in late 2013 and early 2014. He was married and
    apparently not inclined to leave his family.

[29]

Ms. Gill was aware of the relationship between her husband and Ms.
    Ronald.

(ii)

The events of January 29, 2014.

[30]

Ms. Gill had surgery on January 28, 2014 and was home convalescing. The
    29
th
was her wedding anniversary. By 10:00 a.m., her children, with
    the exception of Dilpreet, had gone to school. A short time later, Mr. Gill and
    Dilpreet left the home to run errands.

[31]

Ms. Ronald, who lived near the Gills, saw Mr. Gill drive by with his
    daughter. She immediately called Mr. Gill and they spoke. They spoke several
    times that day.

[32]

Mr. Gill was in a store with his daughter and his nephew, who had been
    picked up from school, at about 12:36 p.m. when he received a call from Ms.
    Ronald. He did not answer. She called two more times within the next 15
    minutes. A short time later, Ms. Ronald arrived at the store. Mr. Gill and Ms.
    Ronald had a very brief conversation. According to him, Ms. Ronald was asking
    him to go to a furniture store. According to Ms. Ronald, she mentioned the
    furniture store, but also told Mr. Gill that something very bad had happened at
    his home. Ms. Gill was dead by this time.

[33]

Mr. Gill drove home with his daughter and nephew, arriving shortly
    before 1:00 p.m. Dilpreet went in the house first. She saw her mother lying on
    the floor in the family room. At first, she did not know what had happened, but
    then she saw a great deal of blood. She screamed. Mr. Gill came running and saw
    his wife lying on the floor. He was very upset and did not know what to do.
    Dilpreet tried to call 911 on the landline but the phone was dead. Mr. Gill
    called 911 on his cell phone. The 911 operator described Mr. Gill as frantic.

[34]

Mr. Gill testified that he saw two small knives by the body. Without
    thinking, he picked them up, threw them in the kitchen sink, and washed his
    hands in the sink. The police found the knives in the sink. Forensic testing
    revealed Ms. Gills DNA on both and visible blood on one.

[35]

Mr. Gill also testified that he was concerned that there might be an
    intruder in the house. He picked up the bloody weight bar that was lying beside
    his wifes head to use as a weapon, if necessary. Armed with the weight bar, he
    went looking for the intruder in the house. According to him, at some point he
    realized that the bloody weight bar, which was in all likelihood one of the
    murder weapons, was his personal weight bar. He feared that this might look
    suspicious, so he hid the weight bar in a Christmas tree box in the basement.
    The police discovered and seized the weight bar and replaced it with a replica.
    The tree box was placed under video surveillance under the authority of a
    warrant. A few days later, Mr. Gill removed the replica from the tree box, eventually
    attempting to get rid of it. Unfortunately for him, the police were watching.

[36]

On Ms. Ronalds version of the events on January 29
th
, she
    saw Mr. Gill drive by at about 11:00 a.m., went to visit her father, and then
    went to the Gill home some time shortly after 12:30 p.m. Ms. Ronald indicated
    that the door was open so she went into the house. She walked into the family
    room and saw the body of Ms. Gill. Ms. Ronald stepped on a knife and then
    picked it up. She was stunned. Realizing she had touched what was probably the
    murder weapon, she retrieved some Nitrile gloves from a box on a nearby table
    in an effort to wipe the blood off the knife. She cut herself. She went to
    various parts of the house on the main floor and upstairs, looking for a Band-Aid,
    dripping her blood as she went. She then left the home, taking the knife, the
    gloves, and the box with her. She did not call 911, but she did call Mr. Gill
    at 12:36 p.m. and again at 12:38 p.m. Ms. Ronald testified that she feared she
    would be blamed for the murder, so she threw the knife and the gloves away into
    a snowbank in a nearby park. She was unable to say what happened to the box.

[37]

Ms. Ronald returned to the Gill home at around 2:00 p.m., offering to
    look after the children. Mr. Gill declined her offer. A police officer at the
    scene noted that when Ms. Ronalds name was mentioned to Mr. Gill, he appeared
    to become angry and yelled that he should not have left his wife alone.

(iii)

The forensic evidence

[38]

The autopsy revealed that Ms. Gill had been struck some 30 times with
    the weight bar. There were over 20 cuts to her body, including a very
    significant deep wound across her neck. That wound was likely inflicted with a
    large knife while Ms. Gill was kneeling or lying face down. Ms. Gill put up a
    fight. There were several defensive wounds. All of the wounds were pre-mortem
    and Ms. Gill died quickly after her throat was slashed.

[39]

There was a great deal of forensic evidence linking both appellants to
    the murder. The evidence included the following;

·

the
    weight bar had Ms. Gills blood on it;

·

the
    large kitchen knife that was found in the park after the snow melted had Ms.
    Gills blood on it;

·

two
    gloves were found in the same park, one was missing a finger. DNA from Ms. Gill
    and Ms. Ronald was found on the intact glove. Ms. Gills blood was found on the
    glove that was missing a finger;

·

part
    of the missing glove finger was found beside Ms. Gills body. Ms. Ronalds DNA
    was on that finger fragment;

·

two
    of the knives found in the kitchen sink had Ms. Gills DNA on them. One had
    visible blood on it;

·

Ms.
    Gills blood was found not only in the den where her body was located, but on
    the outside of a kitchen drawer and on the doorframe to the master bedroom on
    the second floor; and

·

drops
    of Ms. Ronalds blood were found very near Ms. Gills body. Her blood was also
    found at the base of the kitchen sink, and in various locations on the second
    floor of the home. There was evidence of an attempt to wipe the blood away in
    some locations.

(iv)

The after-the-fact conduct

[40]

Both Mr. Gill and Ms. Ronald acknowledged lying to the police and
    attempting to hide and destroy important physical evidence. Most of that
    evidence is summarized above. Both claimed they acted as they did because they
    were afraid they would be falsely accused of murdering Ms. Gill.

IV

the failure to leave second degree
    murder as a possible verdict for ms. ronald

(i)

When should a jury be instructed on an included offence?

[41]

In many first degree murder trials, it will be necessary to instruct the
    jury on the included offences of second degree murder and manslaughter: see
R.
    v. Romano
, 2017 ONCA 837, 41 C.R. (7th) 305, at paras. 13-14. In some
    circumstances, however, an all or nothing charge leaving only verdicts of
    guilty on the main charge and not guilty will be appropriate: e.g. see
R.
    v. Buxbaum
(1989), 70 C.R. (3d) 20 (Ont. C.A.), leave to appeal refused,
    [1989] S.C.C.A. No. 239;
R. v. Chenier
(2006), 205 C.C.C. (3d) 333, at
    p. 367 (Ont. C.A.). The case against Mr. Gill provides an example. Everyone
    agrees that the jury should not have been instructed in respect of any included
    offences when considering the case against Mr. Gill.

[42]

There should be no instruction on potential liability for an included
    offence only when, on a consideration of the totality of the evidence and
    having due regard to the position of the parties and the proper application of
    the burden of proof, there is no realistic possibility of an acquittal on the
    main charge and a conviction on an included offence: see
R. v.
Aalders
,
    [1993] 2 S.C.R. 482, at pp. 504-505;
R. v. Grewal
, 2019 ONCA 630, at
    para. 36;
R. v.
Chalmers
, 2009 ONCA 268, at paras. 51-58;
R.
    v.
Wong
(2006), 209 C.C.C. (3d) 520, at para. 12 (Ont. C.A.);
R.
    v.
Wade
, 18 O.R. (3d) 33, at pp. 49-50, revd on other grounds,
    [1995] 2 S.C.R. 737;
R. v. Sarrazin
, 2010 ONCA 577, 259 C.C.C. (3d)
    293, at para. 64, affd 2011 SCC 54, [2011] 3 S.C.R. 505.

[43]

During argument, there was some discussion about the difference, if any,
    between the air of reality test applied when deciding whether to leave a
    positive defence such as provocation with the jury, and the test to be applied when
    deciding whether to leave the possibility of a verdict on an included offence
    with the jury. Both inquiries seek to focus the jurys attention on the live
    issues actually raised by the evidence. By doing so, the risks of unreasonable
    verdicts, juror confusion, or improper compromise by jurors, are reduced: see
Wong
;
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16;
R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3, at para. 56. The term air of reality is used
    by this court as the applicable standard for both inquiries:
R. v. Durant
,
    2019 ONCA 74, 144 O.R. (3d) 465, at para. 175. I think, however, the approach
    to the evidence is somewhat different in the two inquiries.

[44]

The air of reality inquiry, as directed to the availability of positive
    defences, requires a determination of whether the defence can point to
    something in the evidence capable of reasonably supporting the factual inferences
    that would at least leave the jury with a reasonable doubt about the existence
    of each of the essential factual elements of the defence: see
R. v. Suarez-Noa
,
    2017 ONCA 627, 139 O.R. (3d) 508, at paras. 41-43, leave to appeal refused,
    [2018] S.C.C.A. No. 142;
R. v. Cormier
, 2017 NBCA 10, at para. 40;
R.
    v. Curran
, 2019 NBCA 27, at para. 13.

[45]

For example, if the defence claims that provocation should be put to the
    jury, the defence must be able to point to something in the evidence that would
    reasonably allow the jury to draw the necessary inferences to at least raise a reasonable
    doubt as to whether the conduct of the victim amounted to provocation as
    defined in the
Criminal Code
, R.S.C. 1985, c. C-46.

[46]

When the question is should an included offence be left with the jury,
    the issue is whether, on the totality of the evidence, the jury could reasonably
    be left in doubt with respect to an element of the main charge that
    distinguishes that charge from an included offence: see
Wong
, at paras. 11-12.
In the context of this
    case, it is the presence of planning and deliberation which distinguishes first
    from second degree murder. Second degree murder must be left with the jury if
    there is a reasonable possibility that the jury could have a doubt as to
    whether the murder was planned and deliberate. When, as here, there is more
    than one accused, that question must be answered separately for each accused
    and the answers may be different.

[47]

When the defence, or the Crown, argues that a jury should be instructed
    on the possibility of a conviction on the included offence of second degree
    murder, it is not essential that the party seeking the instruction point to
    evidence capable of supporting inferences that are inconsistent with planning
    and deliberation. Unlike positive defences, there is no evidentiary burden on
    the defence, or the Crown, to put the possibility of a conviction for the included
    offence of second degree murder in play. It is sufficient if, on the totality
    of the evidence, a reasonable jury could be left unconvinced, beyond a
    reasonable doubt, that the murder was planned and deliberate. That potential uncertainty
    can provide the basis for a proper verdict of not guilty of first degree
    murder, but guilty on the included offence of second degree murder.

[48]

The trial judge, when deciding if the included offence of second degree
    murder should be left with the jury, must look to the totality of the evidence to
    consider not only what inferences could reasonably be drawn, but also the
    possibility that a reasonable jury might not draw any inference from certain
    evidence, perhaps because the jury regards the underlying evidence as untrustworthy
    or equivocal. A jurys decision that it will not draw an inference or
    inferences from certain evidence can open the door to a doubt on the issue of
    planning and deliberation. The trial judge must consider whether that is a
    realistic possibility in deciding whether to leave the included offence of second
    degree murder with the jury.

(ii)

The trial judges reasons

[49]

The trial judge was initially inclined to leave second degree murder as
    a possible verdict for Ms. Ronald. After extensive submissions, she accepted
    the Crowns argument that there was no air of reality to a verdict of not
    guilty of first degree murder, but guilty of second degree murder. In her
    reasons, she said:

In this case, I find
    there is no air of reality to evidence that could permit leaving the included
    offence of second degree murder to the jury. If the jury has rejected Ms. Ronalds
    assertion that she had nothing to do with the death of Jagtar Gill and they
    have found beyond a reasonable doubt that she killed Jagtar Gill, it is
    accepted by defence that the evidence demonstrates an intention to kill. There
    is incontrovertible evidence indicating the following:

·

The
    assailant unplugged the phone jack in the den rendering Jagtar Gill unable to
    call for assistance. Mr. Gill could not have done this and there is no evidence
    anyone else did this. There is no one else who would have done this other than
    the assailant; and

·

The
    assailant either used the bar prepared by Mr. Gill or it was retrieved and
    prepared by the assailant. There is no evidence that this bar was ever left
    without its weights attached. To suggest it is possible someone else took off
    the weights for reasons not associated with the murder is to speculate.

This evidence, both separately and taken as a whole, leaves no
    air of reality to the proposition that the killing was both intentional and
    spontaneous.

[50]

With respect to the trial judge, who ably conducted a difficult trial,
    her reasons reveal three errors. First, she wrongly equated any murder that was
    not spontaneous with a planned and deliberate murder. Not every act
    indicative of some preparation prior to the murder, or some degree of planning,
    points only to a finding that the murder was planned and deliberate, as that
    phrase is defined in the case law. A planned and deliberate murder must be the
    product of a scheme or plan that is carefully thought out and considered before
    it is implemented: see
R. v. Nygaard

and

Schimmens
, [1989] 2 S.C.R. 1074, at p. 1084;
R.
    v. Robinson
, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34.

[51]

The unplugging of the phone line in the den, one of the two pieces of
    circumstantial evidence emphasized by the trial judge in her ruling, provides
    an example of the kind of evidence that suggests preparation, but not
    necessarily planning and deliberation. The jury would almost certainly conclude
    that the person who killed Ms. Gill unplugged the phone jack. That action,
    considered with the rest of the evidence, could support an inference that the
    murder was planned. However, a jury could also take the view that the
    unplugging of the phone, while indicative of some preparation, did not support
    the assertion that the murder was the product of a careful and considered
    scheme of the sort required to establish planning and deliberation. It was for
    the jury to decide what to make of the evidence that the phone line was
    unplugged.

[52]

Second, the trial judges treatment of the evidence concerning the
    weight bar demonstrates that the trial judge trespassed on the jurys
    fact-finding function. She concluded that the evidence allowed for only two
    possible inferences if Ms. Ronald was the assailant: either Mr. Gill removed
    the weights from the weight bar in the basement and took the bar up to the
    family room so that Ms. Ronald could use it as a weapon in her attack on Ms.
    Gill, or Ms. Ronald went to the basement, removed the weights and took the bar
    to the family room, where she used it to murder Ms. Gill. In the trial judges
    view, either inference was consistent only with planning and deliberation.

[53]

The trial judges analysis ignores the reasonable possibility that the
    jury would not draw any inference from the evidence concerning the weight bar. The
    evidence about the location of the bar and the timing of the removal of the
    weights from the bar was not necessarily compelling. That evidence came almost
    exclusively from Mr. Gill.
[2]
He testified that the bar was normally in the basement with the weights
    attached. Clearly, the jury was not impressed with a great deal of Mr. Gills
    evidence.

[54]

The inferences about the weight bar referred to by the trial judge were certainly
    reasonable inferences. However, the trial judges approach assumes that the
    jury would inevitably accept the evidence on which those inferences were based
    and draw either of the two inferences identified by the trial judge. The jury
    was not obliged to do so. It was reasonably open to a jury on this evidence to
    draw no inference about how the weight bar came to be in the family room on the
    morning of the homicide. Juries are not obliged to draw all inferences that are
    reasonably available on the evidence.

[55]

The trial judges treatment of the evidence about the weight bar
    suggests to me that the trial judge was looking to the defence to offer some reasonable
    explanation, inconsistent with planning and deliberation, to explain how the
    bar came to be upstairs with the weights removed. Absent that reasonable, innocent
    explanation, the trial judge appears to have been satisfied that the jury would
    be compelled to accept one of the reasonable inferences she identified, both of
    which were consistent with planning and deliberation.

[56]

That line of reasoning comes close to putting an onus on the defence to
    explain away potentially incriminating evidence. It also fails to capture the approach
    that the jury must take when considering whether the Crown has met its burden.
    The jury is not obliged to draw any inference or make any positive finding
    about how the weight bar came to be in the family room. If the jury chose not
    to draw the inferences urged by the Crown, the presence of the weight bar in
    the family room offered no support for the Crowns theory that the murder was
    planned and deliberate. The trial judge excluded this possibility.

[57]

Third, the trial judges analysis focuses almost exclusively on the two
    pieces of circumstantial evidence identified in the reasons. The trial judge
    does not take into account the totality of the evidence. In fact, when putting
    Mr. Gills defence to the jury, the trial judge put to the jury, as a viable
    version of the events, the possibility that Ms. Ronald had gone to the Gill home,
    not planning to kill her, but had decided to do so at some point after she
    arrived. On that scenario, a verdict against Ms. Ronald of not guilty of first
    degree murder, but guilty of second degree murder was realistically available.

[58]

Counsel for Ms. Ronald has effectively outlined evidence that could
    support a finding that Ms. Ronald murdered Ms. Gill, but did not plan and
    deliberate on the murder. That evidence includes:

·

the
    relationship between Mr. Gill and Ms. Ronald was over as far as Mr. Gill was
    concerned. He was making efforts to distance himself from Ms. Ronald and save
    his marriage. On that evidence, jealousy or anger may have motivated Ms.
    Ronald;

·

Ms.
    Ronalds propensity to act very violently and use knives when she became angry
    with persons close to her;

·

the
    nature of the attack on Ms. Gill suggested that the killer acted in a frenzied
    rage;

·

Mr.
    Gill anticipated that his sister would be visiting Ms. Gill at the Gill home at
    about the time Ms. Ronald committed the homicide, suggesting he did not know
    Ms. Ronald was going to kill Ms. Gill; and

·

Mr.
    Gills emotional reaction upon finding his wifes body, which could be seen as inconsistent
    with him being a party to a plan to kill Ms. Gill with Ms. Ronald.

[59]

I do not suggest that the evidence outlined above excluded the
    possibility that Ms. Ronald killed Ms. Gill pursuant to a plan she had formed
    with Mr. Gill. Far from it. That inference was undoubtedly strong and available
    on the evidence. However, when deciding whether second degree murder should be
    left with the jury, the trial judge does not ask if the evidence points more
    strongly to second degree murder than to planning and deliberation, but instead
    asks whether a reasonable jury, properly instructed, could have a doubt as to
    whether Ms. Ronald had planned and deliberated the murder. The evidence
    reasonably allowed for that possibility.

[60]

Crown counsel, in their factum (at paras. 52-53), argue that the trial
    judge was required, in deciding whether the included offence of second degree
    murder should be left with the jury for Ms. Ronald, to proceed on the basis
    that the jury accepted that both Gill and Ronald had unlawfully killed Jagtar
    Gill.

[61]

I accept that the trial judge, in deciding whether the jury should be
    instructed on the included offence of second degree murder, must assume that
    the jury would find that Ms. Ronald killed Ms. Gill. The trial judge was then
    required to go on and determine whether a jury, having concluded that Ms.
    Ronald killed Ms. Gill, could realistically, on the totality of the evidence,
    have a reasonable doubt about whether the killing was planned and deliberate,
    the factual issue which distinguishes first from second degree murder.

[62]

I do not agree, however, that the trial judge was required to make any
    assumption about Mr. Gills involvement in the killing. In my view, an assumption
    that Mr. Gill unlawfully killed Jagtar Gill could play no role in determining
    whether a possible verdict on the included offence of second degree murder
    should be left with the jury in respect of Ms. Ronald.

[63]

It was Mr. Gills defence that Ms. Ronald acted entirely on her own. I
    see no basis, in law or logic, for assuming that Mr. Gills defence would fail
    entirely when deciding whether to leave the included offence of second degree
    murder as against Ms. Ronald. The Crowns argument, that the trial judge should
    have assumed both appellants were involved in the killing in addressing Ms.
    Ronalds potential liability for second degree murder, is really an argument that
    there was no air of reality to Mr. Gills defence that Ms. Ronald acted alone.
    The Crown had a strong case, but it was not that strong.

[64]

For the reasons outlined above, the trial judge erred in law in failing
    to leave with the jury the possibility of finding Ms. Ronald not guilty of first
    degree murder, but guilty of second degree murder. That error in law entitles
    Ms. Ronald to a new trial, unless the Crown can demonstrate that the error
    caused no substantial wrong or miscarriage of justice.

V

can the
curative proviso
be applied in respect of ms. ronald?

(i)

When can the
proviso
be applied?

[65]

Section 686(1)(b)(iii) of the
Criminal Code
provides that this
    court may dismiss an appeal despite an error in law if satisfied that the error
    caused no substantial wrong or miscarriage of justice. The burden is on the
    Crown to show either that the legal error was so minor as to be harmless, or
    the evidence was so overwhelming as to satisfy the court that the verdict would
    necessarily have been the same had the error not been committed: see
R. v.
    Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 26-31;
Sarrazin
    (ONCA)
, at para. 65.

[66]

The erroneous failure to leave a possible verdict on an included offence
    can seldom be held to have caused no substantial wrong or miscarriage of
    justice:
R. v. Haughton
, [1994] 3 S.C.R. 516, affg (1992), 11 O.R.
    (3d) 621 (C.A.). That error is usually beyond the reach of the
curative
    proviso
for two reasons. First, it
cannot be said, in the face of a determination that the included offence should
    have been left with the jury  which involves a determination that there was a
    realistic possibility of an acquittal on the full offence  that the evidence
    supporting the conviction on the full offence was overwhelming. The two
    conclusions are incompatible.

[67]

Second, the error can seldom be said to be harmless. The failure to
    leave the full menu of legally available verdicts will often have a potential
    impact on the verdict selected by the jury. This case provides an excellent
    example. The evidence pointed strongly to Ms. Ronald as the killer. There is a real
    likelihood that a jury, left only with the choice of convicting Ms. Ronald of first
    degree murder or declaring her not guilty, would opt for the verdict that recognized
    Ms. Ronalds responsibility for Ms. Gills death. It cannot be said that, had the
    jury been left with a third possible verdict that would also have held Ms.
    Ronald accountable for murder, the jury would necessarily have still convicted
    of first degree murder:
Haughton
,
    at pp. 516-517
;
Sarrazin (SCC)
, at para. 31.

[68]

There is, however, at least one situation in which the court has applied
    the
curative proviso
to the erroneous failure to leave a possible
    verdict on an included offence. In considering the applicability of the
proviso
,
    the court can take into account findings of fact implicit in the verdict or
    verdicts returned by the jury as long as those verdicts are not tainted by the legal
    error, and those findings are unambiguously revealed by the verdict:
Haughton
;
R. v. Elkins
(1995)
, 26
    O.R. (3d) 161, at pp. 170-172, leave to appeal refused, [1996] S.C.C.A. No. 62;
R. v. Mulligan
(2006)
,
    80 O.R. (3d) 537, at para. 60 (C.A.);
Sarrazin (ONCA)
, at paras. 70-72;
Sarrazin (SCC)
, at paras. 30-31;
R. v. Pilon
, 2009 ONCA 248,
    243 C.C.C. (3d) 109, at paras. 76-80;
R. v. Humaid
(2006), 81 O.R. (3d)
    456, at paras. 88-90 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 232.

[69]

Cases in which an accused is convicted of first degree murder and the
    trial judge has instructed the jury on the included offence of second degree
    murder but has erroneously failed to instruct on the possibility of manslaughter
    based on provocation provide an example of a situation in which the
curative
    proviso
has been applied. In those cases, a court may find that there was
    a basis for a finding of manslaughter based on provocation and that the jury
    should have been instructed accordingly. The court may go on to apply the
curative
    proviso
on the basis that the finding of planning and deliberation, as
    reflected in the conviction on the first degree murder, was unaffected by the
    non-direction with respect to provocation and effectively precluded the
    possibility of a successful provocation defence. In short, the jurys verdict
    indicated a factual finding that the murder was planned and deliberate, the
    antithesis of a provoked murder: see e.g.
Humaid
, at paras. 87-90.

[70]

The Crown submits that the jury was properly instructed in respect of
    Mr. Gills potential liability for first degree murder. They were also told on
    at least three occasions that they must consider the verdicts with respect to
    Ms. Ronald and Mr. Gill separately. The Crown contends that Mr. Gills conviction
    for first degree murder demonstrates that the jury found, beyond a reasonable
    doubt, that Mr. Gill was a party to a plan to kill Ms. Gill and that she was
    killed in furtherance of that plan. The Crown further argues that, on the
    evidence, the only person Mr. Gill could have planned the murder with was Ms.
    Ronald. Consequently, urges the Crown, the first degree murder verdict against
    Mr. Gill unambiguously demonstrates that the jury was satisfied, beyond a
    reasonable doubt, that the murder was committed pursuant to a plan to which Mr.
    Gill and Ms. Ronald were parties.

[71]

The Crown further contends that the finding of fact on which Mr. Gills
    conviction rests, that is that he and Ms. Ronald planned and deliberated the
    murder, is untainted by any error in relation to the failure to charge the jury
    on second degree murder as it related to Ms. Ronald. The Crown submits that the
    findings of fact implicit in the first degree murder verdict against Mr. Gill
    can leave no doubt that the jury was satisfied that Ms. Ronald was also guilty
    of a planned and deliberate murder. As the jury would inevitably have convicted
    Ms. Ronald of first degree murder, even if the possibility of a conviction on second
    degree murder had been left with the jury, the failure to leave that possible
    verdict was harmless and caused no substantial wrong or miscarriage of justice.

(ii)

Was the verdict against Mr. Gill tainted by legal error?

[72]

To succeed on this argument, the Crown must demonstrate that Mr. Gills
    conviction on the charge of first degree murder was not tainted by the failure
    to leave the possibility of a conviction on second degree murder with the jury
    in respect of Ms. Ronald. The Crown cannot meet that burden.

[73]

By not leaving second degree murder with the jury, the trial judge
    effectively removed from the jurys consideration the possibility that Ms.
    Ronald formed the intention to kill at some point shortly before she killed Ms.
    Gill, but without planning and deliberation. It was central to Mr. Gills defence
    that Ms. Ronald acted alone. He offered two scenarios, one in which she planned
    and deliberated the murder on her own, and another in which she murdered Ms.
    Gill, but without planning and deliberation. I think it is fair to say that
    counsel for Mr. Gill stressed the latter over the former, no doubt because the
    suggestion that Ms. Ronald planned and deliberated on her own was a difficult
    proposition on this evidence. By not leaving second degree murder with the jury
    and explaining to the jury how they could arrive at a verdict of second degree
    murder with respect to Ms. Ronald, the trial judge effectively removed one of
    the two bases upon which Mr. Gill had asked the jury to conclude that Ms.
    Ronald acted alone.

[74]

Mr. Gills defence was further undermined by the trial judges
    instruction to the jury that, if they were satisfied beyond a reasonable doubt
    that Ms. Ronald killed Ms. Gill, the jury should have no difficulty in
    determining that the killing was planned and deliberate. This instruction,
    combined with the absence of any instruction on second degree murder,
    effectively invited the jury to go straight from the strongly likely finding
    that Ms. Ronald killed Ms. Gill, to a finding that the murder was planned and
    deliberate. That finding all but excluded any possibility that the jury would
    have a doubt as to whether Ms. Ronald acted on her own and without planning and
    deliberation.

[75]

Accordingly, the
proviso
cannot be applied to affirm Ms. Ronalds
    conviction. She is entitled to a new trial.

VI

IS MR. GILL ENTITLED TO A NEW TRIAL?

[76]

Not only did the trial judges instructions taint the first degree
    murder verdict against Mr. Gill, for the purposes of deciding whether the
proviso
can be applied to affirm Ms. Ronalds conviction, the instruction also compels
    the conclusion that Mr. Gills defence was not adequately and fairly put to the
    jury. The trial judges failure to fairly and fully put Mr. Gills defence to
    the jury constitutes an error in law:
R. v. Daley
, 2007 SCC 53, [2007] 3
    S.C.R. 523, at paras. 54-58.

[77]

Although Mr. Gills defence that Ms. Ronald acted alone ran against the
    weight of the evidence, I cannot say that the evidence was so overwhelming that
    the verdict against him would necessarily have been the same had part of that
    defence not been eliminated by the trial judges instructions. The
proviso
cannot be applied to overcome the failure to adequately put Mr. Gills defence
    to the jury.

[78]

For the reasons outlined above, I am satisfied that both appellants have
    established errors in law that directly affected the verdicts returned against
    them. I am also satisfied that the Crown cannot demonstrate that the errors
    caused no substantial wrong or miscarriage of justice.

[79]

However, even if I am wrong in concluding that the failure to adequately
    put Mr. Gills defence to the jury constituted an error in law, I think he is
    still entitled to a new trial, assuming I am correct in holding that Ms. Ronald
    is entitled to a new trial. The order requiring a new trial for Ms. Ronald
    carries with it, in the circumstances of this case, the requirement that Mr.
    Gill also receive a new trial. If only Ms. Ronald was retried, there is a risk
    that Ms. Ronald, who the Crown alleged was the actual killer, could end up
    convicted of second degree murder, while Mr. Gill, the alleged co-conspirator
    but not the perpetrator, would remain convicted of first degree murder.

[80]

A very similar situation arose in
Nygaard and Schimmens
. Both were
    charged with first degree murder. The Crown maintained that Schimmens had beat
    the victim to death with a baseball bat and that Nygaard was present and had
    aided and abetted Schimmens. At trial, Schimmens testified and advanced an
    alibi defence. Nygaard did not testify. Both men were convicted.

[81]

On appeal, the Supreme Court of Canada held that Schimmens had been
    subject to improper cross-examination on certain wiretap interceptions. The
    cross-examination potentially undermined his alibi. The court held that
    Schimmens was entitled to a new trial. The court was satisfied that the
    improper cross-examination did not affect Nygaard and that there was no error
    in respect of the proceedings as against Nygaard.

[82]

Cory J., for eight of nine members of the court on this point, held that
    there should be a new trial for both Nygaard and Schimmens. He said, at p. 1094:

If Nygaard did not also have a new trial, the incongruous and
    unacceptable result might be that Schimmens, the prime mover in the crime, was
    found guilty of second degree murder while Nygaard, the party to the crime, was
    found guilty of murder in the first degree.

[83]

The words of Cory J. have direct application to this case. If only Ms.
    Ronald were to receive a new trial, she, as the prime mover in the murder,
    could be found guilty of second degree murder, while Mr. Gill, whose liability
    lay as an aider or abetter, would remain guilty of first degree murder. Those
    verdicts would represent an incongruous and unacceptable result.

VII

conclusion

[84]

I would allow the appeals, quash the convictions, and order a new trial
    on the charge of first degree murder.

Released: AH DEC 11 2019

Doherty J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree B. Zarnett
    J.A.

[1]

No one argues that manslaughter was a possible verdict on the facts
    of this case.

[2]

The only other witness who gave evidence about the weight bar
    was Dilpreet, who said that the bar was usually in the basement but could not
    say where it was on January 29
th
.


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. S.L., 2019 ONCA 990

DATE: 20191213

DOCKET: C67304

MacPherson, Sharpe and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.L.

Appellant

S.L., acting in person

Erin Dann, duty counsel

Michael Fawcett, for the respondent

Heard: December 9, 2019

On appeal from the sentence imposed on June
    7, 2019 by Justice Philip A. Downes of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant contends that the global sentence
    of two years is too harsh and that it should be reduced to one year by making the
    sentence for the two offences concurrent rather than consecutive.

[2]

We do not accept this submission. The
    appellants conduct in relation to her own very young daughter is entirely
    deserving of a two year global sentence.

[3]

The weapons prohibition is mandatory. We cannot
    change it.

[4]

On the basis of the fresh evidence only,
    relating to the appellants likely employment prospects after her sentence is
    served, we are prepared to change the word sixteen and the number 16 in
    paragraphs b and c of the Prohibition Order to fifteen and 15.

[5]

So ordered.