COURT
    OF APPEAL FOR ONTARIO

CITATION:
Quickie
    Convenience Stores Corp. v. Parkland Fuel Corporation, 2020 ONCA 453

DATE: 20200710

DOCKET: C67832

Feldman, Fairburn and Nordheimer
    JJ.A.

BETWEEN

Quickie
    Convenience Stores Corp.

Applicant (Appellant)

and

Parkland
    Fuel Corporation

Respondent (Respondent)

William C. McDowell and Brian Kolenda,
    for the appellant

Linda  M. Plumpton and Jonathan Silver,
    for the respondent

Heard: June 24, 2020 by video
    conference

On appeal from the judgment of Justice Paul
    B. Kane of the Superior Court of Justice dated November 14, 2019, with reasons
    reported at 2019 ONSC 6520.

Nordheimer J.A.:

A.

Overview

[1]

Quickie Convenience Store Corp. appeals from the
    dismissal of its application for declaratory relief arising out of a proposed commercial
    transaction
. The proposed
    commercial transaction involved several contracts, including leases and credit/debit
    card agreements, all relating to fuel stations in Ontario and Quebec. The
    appellant had put those fuel stations up for sale. Completion of the sale
    required that the appellant be able to assign these contracts. Parkland Fuel
    Corporation, the respondent, refused to consent to the assignments. The
    appellant sought a declaration that the respondent had refused its consent
    unreasonably. The application judge dismissed the application.

[2]

For the following
    reasons, I would allow the appeal, set aside the order below, and substitute an
    order granting the declaratory relief.

B.

Background

[3]

It is not necessary to go into every detail
    concerning the dealings and relationships between the appellant and the
    respondent. The basic facts are that the appellant is an Ontario corporation
    that owns and operates a chain of 52 convenience stores located in Ontario and
    Quebec. Gasoline service stations are located at 22 of these stores. At issue
    in this proceeding are 15 of those gasoline service stations which receive
    their fuel from the respondent. The respondent is a large fuel supply company.

[4]

Of these 15 stations, eight are located in
    Ontario and seven are located in Quebec. For 12 of the 15 stations, the
    appellant owns the fee simple interest in the land. For the other three stations,
    the appellant has a leasehold interest on the land.

[5]

The stations and their fuel supply are governed
    by various lease and sublease agreements. Typically, the appellants interest
    in the land is leased to the respondent, and then sub-leased back to the
    appellant. In addition to these leases, the appellant and the respondent are
    also parties to 14 credit/debit card agreements.

[6]

As already mentioned, the appellant is seeking
    to sell these 15 stations. To do so, it needs to assign the leases and, in some
    cases, the credit/debit card agreements.

[7]

The leases contain certain terms that are
    relevant to the relief sought. Specifically, the leases contain an assignment
    clause, and, in most instances, both a forum selection clause and a choice of
    law clause. Many of these terms are identical, or substantially similar, in
    wording. In all but one case, the leases require the respondents prior written
    consent in order to be assigned. In the case of 12 of the 15 sites, the leases
    provide that the appellant shall not assign [the] lease without the prior
    written consent of the respondent and cannot assign [the] sublease nor
    sub-sublet the Leased Premises without the respondents prior written
    consent. In one instance, the lease expressly provides that consent to the
    assignment may not be unreasonably withheld.

[8]

Schedule A to these reasons outlines the forum
    selection and choice of law clauses for the 15 stations. In summary, 11 leases
    stipulate that the governing law shall be Ontario, two stipulate that the
    governing law shall be Quebec, and two contain no stipulation. Similarly, 11
    leases have a forum selection clause naming Toronto, two name Montreal, and two
    contain no stipulation. It should be noted that the two leases that do not
    contain a choice of law clause are the same two leases that do not contain a
    forum clause. Both of the stations that are the subject of those two leases are
    located in Quebec.

[9]

When the appellant decided to sell these
    stations, it notified the respondent of the sales process, as it was
    contractually bound to do. The respondent expressed a willingness to waive its rights
    of first offer to purchase, and consent to the appellants assignment of the
    agreements. However, the respondent made its waiver and consent contingent on the
    appellant agreeing to a five-year extension to the existing leases and credit/debit
    card agreements. The appellant declined to provide that extension.

[10]

As the sale process progressed, in January 2018,
    the appellant received an offer to purchase the 15 stations (among the
    appellants other assets) from a prospective purchaser. The appellant advised
    the respondent of this offer. The respondent maintained its refusal to consent
    to the assignment of the leases and the credit/debit card agreements.

[11]

The appellant then brought an application in the
    Superior Court of Justice in which it sought:

(a) a declaration that the Respondent has
    unreasonably withheld its consent to the Applicant's assignment of its rights,
    interests, title, benefits, burdens and liabilities under the:

(i) Lease and Sublease Agreements
    for the 15 convenience stores listed in Schedule A hereto; and

(ii) Credit/Debit Card Agreements
    for the 14 convenience stores listed in Schedule B hereto;

(b) an order compelling the Respondent to
    consent to the Applicant's assignment of its rights, interests, title,
    benefits, burdens and liabilities under the:

(i) Lease and Sublease Agreements
    for the 15 convenience stores listed in Schedule A hereto; and

(ii) Credit/Debit Card Agreements
    for the 14 convenience stores listed in Schedule B hereto.

[12]

In bringing its application, the appellant
    relied on s. 23(2) of the
Commercial Tenancies Act
,
R.S.O.
    1990, c. L.7, and r. 14.05(3)(d) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

C.

THE DECISION BELOW

[13]

The application judge gave lengthy reasons for
    dismissing the appellants application. In those reasons, the application judge
    made various findings including that:

(i)

the respondents notice of refusal to consent to
    the proposed assignment of leases and subleases was a prohibited attempt to
    obtain benefits exceeding its rights in those contracts, such as a five-year
    extension of all category of contracts or the right to purchase the assets of
    five sites; and

(ii)

the respondent unreasonably refused to consent
    to the proposed assignment to the purchaser of the 14 leases and subleases and
    the one letter of intent which included a lease provision, pursuant to s. 23(1)
    of the
Commercial Tenancies Act
and did not thereby act reasonably as
    a contractual party pursuant to the common law duty to act in good faith as to
    those leasing contracts.

[14]

However, the application judge then went on to
    consider the impact of the choice of law and forum selection clauses. He found
    that:

(i)

the respondent had shown that there is no reason
    such as fraud or public policy for the reasons stated below, to not enforce the
    Quebec law and forum selection clauses as to the lease and sub-lease agreements
    located in that jurisdiction; and

(ii)

the respondent at the first step of the above
    test has demonstrated the validity of the election of Quebec as the governing
    law contractual term, as they are valid, clear, enforceable and apply to the
    cause of action involving the Quebec sites before the court.

[15]

The application judge concluded that the
    appellant had the onus to show strong reason or cause why this court should
    not enforce these commercial parties selection of Quebec as the governing law
    as to the contracts which involve the leasing of Quebec property to carry on
    business in that Province.

[16]

The application judge found that the appellant
    had failed to discharge its onus. Specifically, the application judge said that
    the appellant had not presented any evidence as to why the parties had selected
    Quebec as the governing law for some sites and Ontario for other Quebec sites.
    He also said that the appellant had not presented any evidence as to Quebec law
    including whether it was the same as or different on the issues before the
    court.

[17]

Consequently, the application judge held that he
    could not grant the relief sought with respect to the two leases that contained
    the Quebec choice of law terms and he was hesitant to grant the relief with
    respect to the two leases where there were no choice of law or forum selection
    terms.

[18]

The application judge then dismissed the
    application.

[19]

After the application judge released his
    reasons, counsel for the appellant wrote to the application judge and inquired
    whether he had, in fact, intended to dismiss the application in its entirety.
    Counsel for the respondent wrote and advised the application judge that there
    was no need to clarify the reasons. The application judge responded by advising
    counsel that [g]iven the decision is now under appeal on undisclosed grounds
    and the fact that Parkland objects to the court providing clarification to the
    questions posed, it would be inappropriate to issue supplementary reasons at this
    point.

D.

Analysis

[20]

In my view, the application judge erred both in
    his analysis of the issues that were before him and in his conclusion. Even if
    his reasoning was correct, and I conclude that it was not, his conclusions
    regarding the choice of law and forum selection clauses did not address any of
    the 11 leases that related to the gas stations that were either located in
    Ontario, or were located in Quebec but had Ontario choice of law, and Toronto
    forum selection, clauses (collectively the Ontario gas stations). Indeed,
    given his conclusion that the respondent had unreasonably withheld its consent
    to the assignment of the leases, it ought to have followed that the appellant
    would have been entitled to the declarations that it sought, at least with
    respect to the leases applicable to the Ontario gas stations.

(i)

The partial relief issue

[21]

The respondent attempts to sustain the
    application judges decision to dismiss the application as a whole by
    submitting that the appellant had pitched its case, and the relief that it
    sought, on an all or nothing basis. In my view, that submission is inconsistent
    with the reality of the situation and is also contrary to the prevailing rules
    regarding the scope of a judges authority to grant relief in this type of
    situation.

[22]

The appellant wanted relief with respect to all of
    the leases. It had agreed to sell the 15 gas stations to its prospective
    purchaser and needed relief respecting all of the gas stations to do so. Understandably,
    therefore, the appellant cast the relief that it sought at its highest, that
    is, declarations for all 15 gas stations. However, there is nothing in the
    record, nor is there any sensible commercial approach, that would hold that the
    appellant either had to score a complete victory or leave without any remedy at
    all, especially in the circumstances here where the transaction spanned two
    provinces. Given that fact, and given the presence of the choice of law and
    forum selection clauses, it should have been clear to all parties that there was
    the potential for a court to conclude that it could address the Ontario gas
    stations but not the Quebec gas stations, for example. Further, it makes no
    sense for the Ontario court not to deal with the Ontario gas stations since, on
    the application judges own analysis, the Quebec court would not deal with the
    Ontario gas stations.

[23]

This approach is also consistent with the
Rules
    of Civil Procedure
, specifically r. 38.10(1) which provides, in part:

On the hearing of an application the presiding
    judge may,

(a) grant the relief sought or dismiss or
    adjourn the application,
in whole or in part
and with or without terms[.]
    [Emphasis added.]

[24]

At a minimum, the application judge should have
    dealt with the application as it related to the Ontario gas stations. He erred
    in failing to do so. The respondents reliance on
Sobeski v. Mamo
,
    2012 ONCA 560, 112 O.R. (3d) 630, to advance its submission, on this point, is
    misplaced. Given the application judges findings about the respondents
    conduct, the appellant should have been granted the declaratory relief that it
    sought with respect to at least the 11 Ontario gas stations, even if the
    appellant then had to go to Quebec to deal with the other four gas stations.

[25]

In fact, two of the Quebec gas stations did not
    have forum selection or choice of laws clauses. Even on the application judges
    reasoning, only the two gas stations with Montreal forum selections clauses and
    Quebec choice of law clauses would have been properly excluded.

(ii)

The Quebec gas station leases

[26]

That leads to the issue respecting the four
    Quebec gas stations. Two of those gas stations had leases where there was no
    choice of law or forum selection clause. Consequently, there was no impediment,
    of the type found by the application judge, to him dealing with those two gas
    stations as part of dealing with the Ontario gas stations. Given what I will
    have to say in a moment about the impact of the choice of law clause, the
    appellant ought to have obtained the declaratory relief that it sought with
    respect to those two gas stations as well.

[27]

I turn to the last two gas stations, the ones
    that had a Quebec choice of law clause and a Montreal forum selection clause.
    Should those clauses have prohibited the application judge from granting relief
    with respect to those gas stations? I find that they should not.

[28]

The application judge erred in his analysis of
    these clauses in a number of respects. First, the application judge conflated
    the analysis of these two different clauses. The application judge took the
    test that relates to when a court will depart from a forum selection clause and
    used it in determining the impact of the choice of law clause.

[29]

Second, the application judge erred in finding
    that the appellant bore the onus of establishing whether Quebec law was the
    same as, or different from, Ontario law. That onus rested with the respondent,
    if it was going to allege that the foreign law was different from the local
    law. Indeed, the respondent acknowledged before us that it bore that onus. However,
    the respondent did not lead any evidence that Quebec law differed from Ontario
    law with respect to the issues that were before the application judge. In the
    absence of such evidence, the application judge ought to have proceeded on the
    basis that the Quebec law was the same as Ontario law: Lord Collins of
    Mapesbury et al., ed.,
Dicey, Morris & Collins on the Conflict of Laws
,
    15th ed. (London: Sweet & Maxwell, 2012), at p. 332; see also
Uber Technologies
    Inc. v. Heller
, 2020 SCC 16, at para. 50.

[30]

Third, the application judge failed to properly
    apply the strong cause test to determine whether he ought to give effect to the
    forum selection clause. The law on this is set down in
Z.I. Pompey Industrie
    v. ECU-Line N.V.
, 2003 SCC 27, [2003] 1 S.C.R. 450. In that decision, the
    Supreme Court of Canada confirmed that foreign selection clauses are generally to
    be enforced unless the party seeking to avoid the forum selection clause shows
    strong cause why the clause should not be enforced.

[31]

In my view, the appellant has satisfied the
    strong cause test. In saying that, I am cognizant of the factors relevant to
    the strong cause test set out in
Z.I. Pompey Industrie
, at para. 19, as
    quoted by the Supreme Court of Canada from
The
Eleftheria

,
    [1969] 1 Lloyd's Rep. 237 (Adm. Div.). I reach my conclusion for the following
    reasons.

[32]

First, this is not a case of a single contract
    with a single forum selection clause. Here we have 15 contracts  11 of them select
    Toronto as the forum, two select Montreal, and two have no selection. Second,
    the contemplated transaction was for the sale of the 15 gas stations as a
    whole. Commercial reality strongly favours having any issues raised with
    respect to the transaction dealt with in a single forum. Requiring the parties
    to litigate the same issue twice, in two different courts, does not advance
    that commercial reality. Third, there is a general principle that courts will strive
    to avoid a multiplicity of proceedings. Indeed, that principle is reflected in
    s. 138 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. Fourth, as
    I have already noted, there was no evidence that the law as between Quebec and
    Ontario was any different, nor was there any other evidence that would have
    established that the respondent would lose any juridical advantage by having to
    litigate the issue in Toronto, instead of Montreal. On that latter point, I
    would note that the parties in fact litigated the issues in Ottawa and no one
    raised any objection to that. I would also note that the parties were as
    connected to Ontario, if not more so, than they were to Quebec. Fifth, there is
    no evidence that the respondent genuinely desired to have the issues
    surrounding these two gas stations determined in Quebec, as opposed to simply engaging
    in an effort to gain a procedural advantage.

[33]

In summary, the factual situation here presented
    the type of exceptional circumstances that justified a departure from the
    general principle that forum selection clauses will be enforced:
Expedition
    Helicopters Inc. v. Honeywell Inc.
,
2010 ONCA 351, 100 O.R. (3d)
    241, at para. 23, leave to appeal refused, [2010] S.C.C.A. No. 258.

[34]

In the end result, neither the choice of law
    clause nor the forum selection clause posed any true impediment to the
    application judge deciding the issues that were before him with respect to the
    Quebec gas stations.

(iii)

The credit/debit card agreements

[35]

This leaves the issue regarding the credit/debit
    card agreements. They are not subject to the
Commercial Tenancies Act
,
and the provision therein prohibiting the unreasonable withholding of consent
    to an assignment.

[36]

The credit/debit card agreements contained a
    clause that simply said that the appellant could not assign the agreement
    without prior written consent. The respondent submits that, absent an express
    provision in the credit/debit card agreements providing that consent cannot be
    unreasonably withheld, the respondent was entitled to withhold its consent in
    this case. The appellant submits that the prohibition against withholding
    consent unreasonably should be implied into the credit/debit card agreements on
    the principles of good faith bargaining, as set out in
Bhasin v. Hrynew
,
    2014 SCC 71, [2014] 3 S.C.R. 494.

[37]

Before addressing the substance of this issue, I
    must address the respondents preliminary objection that the appellant ought
    not to be able to advance this argument because they did not make it before the
    application judge. The appellant acknowledges that counsel below did not rely
    on
Bhasin
to argue that the respondent unreasonably withheld consent
    to the credit/debit card agreements. However, it submits that the general issue
    of whether the respondent unreasonably withheld consent was before the judge,
    as were the principles established in
Bhasin
.

[38]

In my view, the respondent takes an unduly restrictive
    approach to whether this is the type of argument that this court will generally
    decline to hear for the first time on an appeal. To begin, the principle that
    courts should generally decline to hear a new issue on appeal is not an absolute
    rule. It is a discretionary decision to made based on the facts of the
    individual case:
Kaiman v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at
    para. 18. Further, it is clear that the issue of whether the respondent
    unreasonably withheld consent to an assignment of the credit/debit card
    agreements was squarely before the application judge. The fact that the
    appellant invokes different authority now, than it did before the application
    judge, does not offend the principle:
R. v. Sweeney
(2000), 50 O.R.
    (3d) 321 (C.A.) at para. 32.

[39]

In considering the issue, the application judge
    was obliged to apply any law that was applicable and binding on him. On that
    point, the principles in
Bhasin
were directly before the application
    judge. I would note that it was the respondent who drew the application judges
    attention to that case, albeit for a different purpose. I would not give effect
    to the respondents procedural objection.

[40]

The question then is whether an agreement that
    requires consent to be assigned carries with it an implicit understanding that
    consent to an assignment will not be withheld unreasonably. I agree with the
    appellant on this point. I conclude that a provision in a contract that requires
    one party to consent to the assignment of the contract by the other party, has
    implicit in it the requirement that the party, whose consent is necessary, will
    not withhold that consent for an improper or ulterior purpose. In my view, the
    imposition of a good faith obligation, on the decision whether or not to
    consent, is consistent with the approach to be taken to contracts generally, as
    enunciated in
Bhasin
.

[41]

In
Bhasin
, Cromwell J. outlined the
    organizing principle of good faith that applies to all contracts. It requires
    that parties to a contract act honestly in the performance of their
    obligations. In that decision, Cromwell J. established certain duties that rest
    on parties to a contract. These include:

(i)

parties generally must perform their contractual
    duties honestly and reasonably and not capriciously or arbitrarily; and

(ii)

a contracting party should have appropriate
    regard to the legitimate contractual interests of the contracting partner:
Bhasin
,
    at paras. 63 and 65.

[42]

The application judge found that the
    respondents refusal to consent to the assignment of the leases was a
    prohibited attempt to obtain benefits exceeding its rights in those contracts.
    More specifically, the respondent was attempting to leverage its refusal to
    consent to force the appellant to agree to a five year extension of their
    contractual arrangements.

[43]

The application judge did not make any separate
    finding regarding the respondents reason for refusing to consent to the
    assignment of the credit/debit card agreements, but it follows that the same
    conclusion regarding the respondents motive, that he found regarding the
    leases, would apply. The parties were not drawing any distinctions between
    these agreements when it came to the issue of assignment. All of the agreements
    between the parties were the subject of the appellants proposed sale. They
    were all to be assigned to the prospective purchaser as part of the sale
    transaction. The respondents objective in withholding its consent was the same
    regardless of whether we are speaking about the leases or about the
    credit/debit card agreements. Its objective was to extract an extension of the
    existing contractual arrangements, something to which it was not otherwise
    entitled. The same conduct that underpins the trial judges findings about the
    respondents dealings in relation to the leases applies to its dealings in
    respect of the credit/debit card agreements. It reflected bad faith dealing. It
    is not unlike the conduct in which the defendants engaged in
Bhasin
.

[44]

The respondents refusal to consent to the
    assignment of the credit/debit card agreements was as unreasonable or improper
    as was its refusal to consent to the assignment of the leases. It was
    inconsistent with the duty of good faith that the respondent owed to the
    appellant. It was also inconsistent with giving appropriate regard to the legitimate
    contractual interests of the appellant, that is, the appellants legitimate
    interest in wishing to sell these gas stations. The appellant was entitled to
    expect that the respondent would act fairly and honourably in deciding whether
    to consent to the assignment of these agreements as part of a sale of the appellants
    businesses to a third party. On that point, there was no evidence that the
    prospective purchasers performance of the leases and the credit/debit card
    agreements would pose any financial or other risk to the respondent.

[45]

There was no principled basis for the
    respondents refusal to consent to the assignment of the credit/debit card
    agreements. I would also observe that there would be a measure of inconsistency
    in a conclusion that the respondent had unreasonably withheld its consent to
    the assignment of the leases but not to the assignment of the credit/debit card
    agreements.

E.

Conclusion

[46]

I would allow the appeal, set aside the order
    below and, in its place, grant an order providing the appellant with the
    declaratory relief that it sought in its Notice of Application.

[47]

The appellant is entitled to its costs of the
    appeal fixed in the agreed amount of $3
5,000
inclusive of disbursements and HST. It would seem that the
    appellant ought to be entitled to its costs of the original application as well
    but if the parties cannot agree on that point, they may make written
    submissions. The appellants submissions shall be delivered within 10 days of
    the date of these reasons and the respondents submissions shall be delivered
    within 10 days thereafter. Each partys submissions shall be limited to three
    pages.

Released: JUL 10, 2020 KF

I.V.B.
    Nordheimer J.A.

I
    agree. K. Feldman J.A.

I
    agree. Fairburn J.A.

Schedule A

Site

Store No.

Store Address

Store Location

Choice of Law Clause

Forum Selection Clause

1

4

24 Boulevard du Mont-Bleu

Gatineau, Quebec

N/A

N/A

2

8

2 Boulevard Louise- Campagna

Gatineau, Quebec

Quebec

Montreal

3

12

9 Du Barry Street

Gatineau, Quebec

Ontario

Toronto

4

16

882 Maloney Boulevard

Gatineau, Quebec

Ontario

Toronto

5

18

3332 McCarthy Road

Ottawa, Ontario

Ontario

Toronto

6

21

108 Greber Boulevard

Gatineau, Quebec

N/A

N/A

7

22

1 Rideau Crest

Nepean, Ontario

Ontario

Toronto

8

23

2335 St-Louis Street

Gatineau, Quebec

Quebec

Montreal

9

24

60 William Street

Brockville, Ontario

Ontario

Toronto

10

28

1034 Pleasant Park Road

Ottawa, Ontario

Ontario

Toronto

11

36

207 Mont Bleu Boulevard

Gatineau, Quebec

Ontario

Toronto

12

43

1661 Hunt Club Road

Ottawa, Ontario

Ontario

Toronto

13

45

800 Stonehaven Drive

Ottawa, Ontario

Ontario

Toronto

14

49

4505 Bank Street

Ottawa, Ontario

Ontario

Toronto

15

61

1780 Heron Street

Ottawa, Ontario

Ontario

Toronto


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(a) is guilty of an indictable
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WARNING

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An order restricting
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Criminal Code
shall continue.  These sections of
the
Criminal
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486.4(1)       Subject
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(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. A.K., 2020 ONCA 435

DATE: 20200702

DOCKET: C66198

Doherty, MacPherson and Benotto
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.K.

Appellant

Julie Santarossa, for the appellant

Elizabeth Kozak, for the respondent

Heard: In writing

On appeal from the findings of guilt
    made on August 14, 2018 by Justice Lynda S. Ross of the Ontario Court of
    Justice, sitting in Youth Criminal Justice Court.

REASONS FOR DECISION

[1]

The appellant, A.K., is K.H.s (the complainant)
    half-brother. They have the same father. In 2017, the appellant was charged
    with two counts of sexual assault. The offences allegedly occurred in 2008 or
    2009, when the appellant was 14 or 15 and the complainant was between 6 and 8.
    After a brief trial, in which the complainant and the appellant were the only
    witnesses, the trial judge found the appellant guilty on both charges. She
    imposed conditional discharges on both counts with 18 months probation.

[2]

The appellant appeals from the findings of
    guilt. For the reasons that follow, we allow the appeal and order a new trial.

[3]

At the time of the alleged offences, the
    complainant resided with her mother and two older brothers, E. and A., in
    Leamington, Ontario. Her father, who was also the appellants father, had access
    visits with the complainant. On occasion, the complainants father and his two
    sons, the appellant and C., would sleep over at the complainants home in
    Leamington.

[4]

The complainant testified one night when the
    appellant was sleeping over with his father, he came into her bedroom. She was
    lying in bed facing away from the door. She awoke to find the appellant standing
    beside her bed. He touched her legs, butt and vagina over her clothing. When he
    tried to put his hands in her pants, the complainant rolled over away from the
    contact. The appellant left her room. Neither the appellant, nor the
    complainant said anything during the incident. It lasted about two to five
    minutes.

[5]

The complainant described a second assault about
    a month or two after the first. She and her mother were staying overnight at the
    fathers home in Kingsville, Ontario. The complainant went there on weekends to
    visit her father, often with her mother. The complainant testified the
    appellant, who lived with his mother, would sleep over at his fathers home when
    the complainant was there now and then. Because of the earlier incident in
    Leamington, the complainant tried to avoid being at her fathers home overnight
    if the appellant was going to be there.

[6]

When the complainant stayed at her fathers, she
    slept on a recliner in the living room. One evening, when she was lying on the
    recliner, she saw the appellant sitting on the couch watching television close
    by. She felt the appellant touching her chest, her bum and her back. The
    touching was over her clothing. The complainant stirred in response to the
    touching. The appellant stopped and went back to watching television. Shortly
    afterward, the complainant got up from the recliner and went into her fathers bedroom.

[7]

In addition to the two alleged sexual assaults,
    the complainant described another incident, which she recalled occurred before
    the assaults. She was in her bedroom at her mothers house playing with her Barbie
    dolls. The appellant walked by and asked her if the dolls were having sex. She
    said no. He put the dolls in a sex position and walked out of the room.

[8]

The complainant testified some time after the
    alleged assaults when she was nine, she was removed from her mothers care by
    the Childrens Aid Society. Her mother suffered from serious mental health problems.
    The complainant went to live with her grandmother. She told her grandmother
    about the assaults and she thought her grandmother spoke to somebody about
    them.

[9]

The complainant suffers from depression and
    anxiety. She has been hospitalized as a result of suicidal ideation and takes
    medication. The complainant came to believe that the appellants assaults had contributed
    to her developing depression and anxiety.

[10]

The appellant testified and denied sexually
    assaulting the complainant.

[11]

The appellant testified he had slept over at the
    mothers residence in Leamington on only one occasion. He recalled sleeping
    there so he and his father could drive his brother to the bus station to attend
    a cadet camp in Barrie the next day. The appellant denied he went to the complainants
    bedroom and sexually assaulted her during the night. The appellant recalled
    other brief visits at the home in Leamington when he and his father went to
    that town for the appellants lacrosse games.

[12]

The appellant lived with his mother. He testified
    he visited his father on occasion, although at times their relationship was
    strained. He recalled when his father lived in Kingsville, he would stay at his
    fathers on the weekend, so he could get up early and go to work with his
    father and grandfather at the produce market in Detroit. According to the
    appellant, the complainant did not stay overnight at the fathers residence in
    Kingsville on any occasion when the appellant stayed there overnight.

[13]

The appellant also denied the Barbie doll
    incident. He testified he had no interest in playing with Barbie dolls or
    talking to his much younger half-sister about Barbie dolls.

[14]

According to the appellant, there was not much
    of a relationship between him and the complainant. They seldom saw each other,
    and he was much older than her. In the appellants mind, there had never been any
    problem between himself and the complainant. The complainant also described her
    relationship with the appellant as kind of distant. She rarely saw him. There
    was never any animosity between them.

[15]

The trial judge properly instructed herself on
    the burden of proof. She acknowledged that this was a he said/she said
    situation with little, if any, independent evidence confirming or refuting the
    different versions of events given by the two witnesses. The trial judge
    acknowledged that both the complainant and appellant gave their testimony in a
    forthright manner and were unshaken in cross-examination.

[16]

The trial judge concluded the complainant was a
    credible witness. She found the complainant had no motive to fabricate the
    allegations and the evidence showed there was an opportunity for the assaults
    to have occurred, as described by the complainant. The trial judge also
    considered and rejected certain arguments made on behalf of the appellant. Some
    of those arguments she found to be predicated on myths about how victims
    react to sexual assaults. Others were premised on assumptions about how parents
    do and do not arrange sleeping accommodations during access visits.

[17]

There can be no quarrel with the trial judges
    treatment of the complainants evidence. Nor did she err in her forceful
    rejection of some of the submissions made by counsel for the appellant in
    support of the contention the complainant was not a credible witness.

[18]

The appellant submits, however, the trial
    judges treatment of, and outright rejection of, the appellants evidence does
    reveal error. The trial judge gave four reasons for rejecting the appellants
    evidence:

·

the appellant couched his denials in tentative
    or conditional language such as I wouldnt have been there or that would
    never have happened;

·

the appellant repeatedly emphasized he had no
    relationship with the complainant, in an apparent effort to distance himself
    from the complainant;

·

the appellant absolutely denied the Barbie
    doll incident, insisting he would never go into the complainants room to talk
    with her; and

·

the appellant professed to have a remarkably detailed
    recollection of his fathers home, including the furnishings and where his
    father habitually sat.

[19]

There are problems with each of the reasons
    advanced by the trial judge for rejecting the appellants evidence.

(i)

The appellants phraseology

[20]

The appellant used phrases like that would
    never have happened when asked about events, including the alleged sexual
    assaults. On many occasions, in the same answer, he used direct unqualified
    language in making his denials. For example, when asked whether he had any
    recollection of the incident at his fathers home, the appellant replied:

No I do not, that would not have happened.

[21]

The trial judge offers no explanation for her
    conclusion that the appellants phraseology was indicative of a lack of
    credibility. It must be borne in mind the appellant was being asked about
    events that may or may not have occurred about 10 years earlier. Some of those
    events were not memorable. It is not surprising a witness, when asked about
    events from long ago, would, in attempting to answer honestly, not speak in
    definitive terms, but rather speak in terms of what would have or would not
    have happened. The phraseology used by the appellant from time-to-time in some
    of his answers could not reasonably offer any insight into his credibility.

(ii)

The appellants description of his relationship
    with the complainant

[22]

The trial judge found that the appellant, in his
    testimony, emphasized over and over again the non-relationship that he had
    with [the complainant]. The trial judge saw this as an attempt to distance
    himself from the complainant.

[23]

There are two difficulties with this analysis.
    First, a reading of the transcript does not support the characterization of the
    appellants evidence as a repeated emphasis of the nature of his relationship
    with the complainant. He was asked about that relationship, just as the
    complainant was asked about it. He answered those questions.

[24]

Second, and more importantly, the appellants
    description of his relationship with the complainant was essentially the same
    as the complainants description of the relationship. Both described the
    relationship as distant and largely non-existent, because they seldom saw each
    other, and the appellant was several years older than the complainant. The
    trial judges finding the appellant misrepresented the nature of his
    relationship with the complainant is inconsistent with the complainants
    evidence, the only other evidence about the nature of the relationship, and
    inconsistent with the trial judges finding that the complainants evidence was
    credible.

(iii)

The Barbie doll evidence

[25]

As outlined above (see para. 17), the trial
    judge found the qualified or conditional nature of some of the appellants
    answers demonstrated he was not a credible witness. The trial judge took the
    opposite approach in respect of the appellants evidence about the Barbie
    doll incident. The trial judge determined that the appellants absolute
    denial he would ever go into the complainants room to speak to her while she
    was playing with her Barbie dolls indicated he was not a credible witness.
    Bearing in mind the age difference, the distant nature of the relationship
    between the appellant and complainant, and the evidence the appellant did not
    visit the complainants home very often, it is not apparent why the trial judge
    treated the appellants unqualified rejection of the suggestion he would go
    into the complainants room to speak with her while she was playing with her
    Barbie dolls as a basis for finding the appellant was not a credible witness.

(iv)

The appellants recollection of his fathers
    home

[26]

The trial judge found it absolutely
    unbelievable the appellant would recall, some 10 years after the relevant
    events, details about his fathers home, the furnishings, and where his father sat
    to watch television. There are two difficulties with that finding. First, the
    appellants recollection was not significantly more detailed than the
    complainants recollection of the furnishings in the room. The appellant and
    complainant did disagree about the number of recliners in the living room. She
    said there were two, he said there was one. Apart from that, the descriptions
    were not dissimilar. Second, apart from the complainants evidence about the
    number of recliners in the living room, there was no evidence to suggest any of
    the other detail provided by the appellant was inaccurate. The trial judge
    simply assumed because the description was detailed, it was fabricated by the
    appellant in an effort to buttress his credibility. Based on this record,
    everything the appellant said about the house, with the exception of the number
    of recliners in the living room, may well have been entirely correct.

[27]

Counsel for the Crown correctly submits that a
    trial judge is not obliged to find fault with an accuseds testimony in order
    to convict. A conviction may flow from a considered and reasoned acceptance,
    beyond a reasonable doubt of the complainants evidence:
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252, at para. 53 (Ont. C.A.).

[28]

The trial judges examination of the
    complainants evidence can be described as considered and reasoned. She did
    not, however, rest her rejection of the appellants evidence, or her ultimate
    verdicts, only on her analysis of the complainants evidence. Instead, the
    trial judge went on to reject the appellants evidence as untrue, citing four reasons
    for that determination. None of those reasons can support or justify her
    assessment. The trial judges reliance on factors that could not reasonably negatively
    impact on the appellants credibility must have played a significant role in
    her ultimate determination that, not only did she not believe the appellant,
    but his evidence did not leave her with a reasonable doubt.

[29]

The appeal is allowed. The errors in respect of
    the assessment of the appellants credibility require that the findings of guilt
    be set aside. A new trial is ordered.

Doherty
    J.A.
J.C. MacPherson J.A.
M.L. Benotto J.A.


WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect of whom the
    proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c.
    27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdalla, 2020 ONCA 470

DATE: 20200716

DOCKET: M51556

Fairburn
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Applicant

and

Jabril Abdalla

Respondent

David Friesen, Eric Taylor and Nicole
    Rivers, for the applicant

Gary Grill and Leora Shemesh, for the
    respondent

Heard: June 26, 2020
by
    video conference

[1]

A non-publication order under ss. 517 and 522(5)
    of the
Criminal Code
was imposed in this matter at the bail hearing in
    the court below. That order precludes the publication, broadcast or
    transmission of any evidence taken, information given, representations made and
    reasons given.

[2]

The decision in
R. v. Abdalla
, 2020 ONCA 470
, contains information
    covered by that order.

[3]

Accordingly, the decision will be available on
    the Court of Appeal for Ontarios website once the non-publication order ceases
    to be in effect.

[4]

In the interim, a copy of the full decision is
    available at the Registry of the Court of Appeal for Ontario at 130 Queen
    Street West, Toronto.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Antrobus, 2020 ONCA 455

DATE: 20200710

DOCKET: C68003

Benotto, Fairburn and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Mark Antrobus

Appellant

Jason Mark Antrobus, acting in person

David Parry, as duty counsel

Rebecca De Filippis, for the respondent

Head: July 6, 2020 by
    teleconference

On appeal
    from the conviction entered on November 15, 2019 by Justice Maureen D.
    Forestell of the Superior Court of Justice, with reasons reported at 2019 ONSC 6552.

REASONS
    FOR DECISION

[1]

The appellant was convicted of two firearm-related
    offences. He was given a global sentence of three years incarceration before
    credit. He appeals the convictions on the grounds that identification was not
    established beyond a reasonable doubt.

[2]

The police breached the door of an apartment
    building in order to execute a
Feeney
warrant. Several police officers
    watched as an occupant threw a package from the balcony. The package was
    recovered and contained a Smith & Wesson handgun.

[3]

Although one of the officers testified that he
    recognized the appellant as the person who threw the package off the balcony,
    the trial judge did not rely on his identification evidence. Instead, she concluded,
    based on the circumstantial evidence, that the only reasonable inference was
    that the appellant threw the package from the balcony.

[4]

The appellant submits that there were reasonable
    inferences other than that it was the appellant who threw the package from the
    balcony, meaning that the Crowns circumstantial identification evidence did
    not meet the standard of proof beyond a reasonable doubt:
R. v. Villaroman,
2016 SCC 33, at para. 35.

[5]

We do not agree.

[6]

As officers entered the apartment, there was a
    loud bang which was temporally connected to when the officers outside of the
    apartment saw the package being thrown from the balcony.

[7]

In satisfying herself beyond a reasonable doubt
    that it was the appellant who had thrown the package, the trial judge accepted
    and relied on the circumstantial evidence that:

1.

After the door was breached, officers had an
    immediate view of the apartment;

2.

There was only one person on the balcony;

3.

P.C. DaSilva (who was outside) saw the person
    throw the item;

4.

P.C. Moore called for the appellant by name;

5.

P.C. Riegert and P.C. Christodoulu were watching
    the balcony door and saw the appellant come through to the apartment.

[8]

The trial judge also found that there was
    insufficient time for any of the other persons in the apartment to have thrown
    the package from the balcony and to have re-entered the apartment.

[9]

We also conclude that the trial judge was
    entitled to find that the only reasonable inference was that the appellant knew
    that the package contained a prohibited firearm when he threw it, that he had
    the requisite knowledge and control of the firearm, and that he was in
    possession of it. She found that the appellant threw the gun from the balcony
    to avoid it being found by the police, and that the shape and weight of the gun
    would have been evident to anyone handling it. She also found that there would
    have been no reason to throw away a BB gun to avoid its detection.

[10]

Under these circumstances, it was open to the
    trial judge to conclude that the only reasonable inference available is that
    the appellant had possession of the gun and threw it over the balcony.

[11]

The appeal against conviction is dismissed.

M.L.
    Benotto J.A.

Fairburn
    J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2020 ONCA 462

DATE: 20200716

DOCKET:
    C64901

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shaune Brown

Appellant

Alexander Ostroff, for the appellant

Elise Nakelsky, for the respondent

Heard: July 3, 2020 by
    Videoconference

On appeal from a conviction on a charge
    of second-degree murder, returned on February 2, 2017 by a jury presided over
    by Justice B.A. Glass of the Superior Court of Justice, and an appeal from the
    sentence imposed on March 2, 2017 and reported at 2017 ONSC 1441.

Doherty J.A.:

A.

overview

[1]

On the afternoon of August 30, 2012, the
    appellant repeatedly stabbed Cory Fleetwood at Mr. Fleetwoods home in
    Peterborough. Mr. Fleetwood had invited the appellant to come from Toronto for
    a visit. Mr. Fleetwood died from his wounds.

[2]

The appellant was charged with second-degree
    murder. He admitted killing Mr. Fleetwood. He claimed he acted in self-defence
    and did not mean to kill Mr. Fleetwood or cause him serious bodily harm that he
    knew was likely to cause Mr. Fleetwoods death. The evidence also gave rise to
    the defence of provocation.

[3]

The jury convicted the appellant of second-degree
    murder. The trial judge imposed a life sentence with no parole eligibility for
    13 years. The appellant appealed conviction and sentence.

[4]

On the conviction appeal, the appellant advanced
    five grounds. Two alleged misstatements of parts of the evidence by the trial
    judge, and in one instance by the Crown. The other grounds of appeal alleged
    misdirection in the jury instructions.

[5]

The sentence appeal focused on the trial judges
    finding the appellant was the aggressor in the confrontation with Mr.
    Fleetwood.

[6]

At the end of oral argument, the court advised
    counsel the conviction appeal was dismissed with reasons to follow. The court
    reserved judgment on the sentence appeal. These reasons set out the basis upon
    which both the conviction and sentence appeals are dismissed.

B.

the evidence

[7]

On August 30, 2012, the appellant travelled from
    his home in Toronto to Peterborough to visit Mr. Fleetwood. They had known each
    other since they were teenagers and got together from time-to-time to drink and
    play video games.

[8]

The appellant arrived at Mr. Fleetwoods home
    around 2:00 p.m. They set up their Xbox consoles, had a few drinks and smoked
    some marihuana. The appellant described himself as buzzed, but not drunk. A
    short time later, Mr. Fleetwood lay dead in his bedroom, having suffered 30
    knife wounds, several of which were potentially fatal. The appellant had fled
    Mr. Fleetwoods home and made his way back to Toronto. Mr. Fleetwoods body was
    not found until four days later on September 3, 2012.

[9]

Mr. Fleetwood and the appellant were the only
    people in Mr. Fleetwoods home when the appellant killed Mr. Fleetwood. The
    only direct evidence of what happened came from the appellant.

[10]

The appellant testified, while he and Mr.
    Fleetwood were playing video games and chatting, he mentioned to Mr. Fleetwood
    his house was very cluttered and messy. The appellant meant nothing by the
    comment, but Mr. Fleetwood took offence. He told the appellant the stuff
    cluttering his home belonged to his deceased father. The appellant assured Mr.
    Fleetwood he had not intended to disrespect his father.

[11]

According to the appellant, Mr. Fleetwood went
    into the kitchen and returned with a large kitchen knife. He scratched the
    appellants Xbox. The appellant responded by grabbing Mr. Fleetwoods hard
    drive and slamming it to the floor. The appellant decided it was time to leave
    and went upstairs to retrieve his bag and cellphone. His cellphone was charging
    in Mr. Fleetwoods bedroom.

[12]

As the appellant was leaving Mr. Fleetwoods
    bedroom with his cellphone, Mr. Fleetwood confronted him at the door. He was
    angry and yelling at the appellant. The appellant pushed Mr. Fleetwood and he
    tripped and fell to the floor.

[13]

Mr. Fleetwood got up and came aggressively toward
    the appellant, swinging at him. The appellant was still standing in Mr.
    Fleetwoods bedroom. He put his right hand up to block what he thought was a
    punch coming from Mr. Fleetwood. In fact, Mr. Fleetwood had the large knife in
    the hand he was swinging toward the appellant. The appellant instinctively
    grabbed the knife blade with his right hand, as it came toward him. He suffered
    a deep cut between his thumb and forefinger. The appellant went to the hospital
    in Toronto later that night and received ten stitches to close the wound.

[14]

The appellant testified when he grabbed the
    blade of the knife, he immediately felt intense pain. He could not, however,
    let go of the blade as he feared Mr. Fleetwood would stab him. They wrestled on
    the floor of the bedroom. The struggle went on and intensified. The appellant
    could not remember many of the details but did recall poking Mr. Fleetwood in
    the eye and eventually gaining control of the knife with his left hand.

[15]

The appellant swung the knife with his left hand
    in Mr. Fleetwoods direction. He also made stabbing motions toward Mr.
    Fleetwood. According to the appellant, his eyes were closed most of the time.
    He was in extreme pain from the cut on his hand, overwhelmed by the
    circumstances, and very afraid.

[16]

The appellant knew he struck Mr. Fleetwood in
    the chest with the knife at least once. He could not say how many times he hit
    him with the knife, or where those blows landed on Mr. Fleetwood.

[17]

The appellant did not know exactly how the
    struggle with Mr. Fleetwood ended. He was able to make his way from the bedroom
    to the bathroom. He closed the door in an effort to get away from Mr.
    Fleetwood. The appellant believed Mr. Fleetwood was still alive, because he heard
    him make gurgling sounds in the bedroom. The appellant passed out in the
    bathroom. When he regained consciousness, he washed his hands and placed a
    facecloth around the cut on his right hand. He tried to clean up the blood in
    the bathroom using water and cleaning products he found in the bathroom.

[18]

The appellant next returned to the bedroom and
    saw Mr. Fleetwoods body lying on the floor. He appeared to be dead. There was
    blood everywhere. The appellant made no effort to determine whether Mr.
    Fleetwood was dead or alive.

[19]

The appellant did not call 911 or otherwise seek
    any help. Instead, he set about cleaning up the blood in the bedroom, hallway
    and bathroom using water and cleaning products. There was evidence from which
    it could be inferred the appellant showered, although he denied doing so.

[20]

The appellant put various bloodstained items,
    including Mr. Fleetwoods Xbox, his cellphone, the appellants own clothing,
    and blood-soaked towels, into two garbage bags and a smaller bag. The appellant
    took the bags with him when he left Mr. Fleetwoods home. As he headed to the
    bus station, he dropped the bags full of the bloodied material beside other
    garbage bags on the curb awaiting garbage pick-up.

[21]

The appellant acknowledged in his evidence he
    attempted to clean up his blood at the scene and removed various bloodied items
    from the residence. When asked why he did so, he replied:

Cuz my blood was on itbecause I was scared, I
    was confused, and I just didnt want no part of what just happened.

[22]

The appellant returned to Toronto. He lied to
    his ex-girlfriend about his whereabouts that afternoon. He lied to his brother
    about the cause of the injury on his hand. He repeated that lie to the doctor
    who stitched him up that night at a Toronto hospital.

[23]

The large kitchen knife used to kill Mr.
    Fleetwood was found about four feet from his body. DNA testing linked blood on
    the blade and the handle to the appellant. DNA testing also linked blood found
    on the knife to Mr. Fleetwood. The copious amounts of blood in the bedroom were
    linked to Mr. Fleetwood only.

[24]

While the defence case rested on the testimony
    of the appellant, the Crowns case relied on the evidence of the number,
    location, and nature of the wounds inflicted on Mr. Fleetwood by the appellant,
    and the appellants conduct after he killed Mr. Fleetwood. I have summarized
    his after-the-fact conduct. The Crown argued the appellants failure to call
    for help, his attempt to clean up the scene, his flight, his removal of
    material evidence from the scene, and the lies he told to various people were
    all consistent with the appellant having unlawfully killed Mr. Fleetwood, and
    inconsistent with the appellants claim he acted in self-defence. The trial
    judge instructed the jury the after-the-fact conduct, although relevant to
    whether the appellant acted in self-defence, could not assist the jury in
    differentiating between murder and manslaughter.

[25]

The evidence about the many wounds suffered by
    Mr. Fleetwood came primarily from Dr. Rose who performed the post-mortem. She
    located 30 wounds, all consistent with having been inflicted by a sharp knife.
    Mr. Fleetwood had wounds on his face, head, hands, the front and back of his
    torso, and his arms.

[26]

Dr. Rose explained she followed the usual protocol
    in describing the many wounds suffered by Mr. Fleetwood. She characterized all
    of the wounds as sharp force injuries, meaning injuries inflicted by an
    object that had a pointed tip and a sharp edge. A sharp knife is the most
    common example of a weapon that causes sharp force injuries.

[27]

Dr. Rose divided the sharp force injuries into
    two categories. One category, incised wounds, consists of wounds that are
    longer than they are deep. Incised wounds are inflicted with a slashing motion.
    They are not, however, necessarily shallow wounds. By definition, they are
    longer than deep, meaning a long incised wound might also be quite deep.

[28]

The second category of wounds, stab wounds, are
    wounds that are deeper than they are long. Those wounds are inflicted with a
    thrusting or stabbing motion.

[29]

Dr. Rose testified the decomposition of Mr.
    Fleetwoods body made it difficult to characterize some of the wounds as
    incised or stab wounds. She also indicated the decomposition of the body and
    the number of wounds to the torso made it impossible to match specific wounds on
    the torso to specific internal injuries.

[30]

Dr. Rose identified the following knife wounds
    on Mr. Fleetwoods body:

·

Two incised wounds on his scalp. Both wounds pierced
    all layers of the scalp down to the skull;

·

Four wounds to the face, including one that cut
    through the cartilage composing the nasal septum;

·

Twelve wounds to the torso, four to the front,
    one to the side, and seven to the back; and

·

Ten incised wounds on Mr. Fleetwoods arms and
    two on the hand. Dr. Rose characterised these as defensive type injuries.

[31]

Dr. Rose could not opine on the order in which
    the many blows were inflicted. Nor could she identify a specific wound as the
    cause of death. Several of the wounds to the torso caused significant damage to
    various internal organs, including the liver, both lungs, the heart and the
    thoracic aorta.

[32]

Various injuries to Mr. Fleetwoods internal
    organs were potentially fatal on their own. The stab wound piercing the front
    and back walls of Mr. Fleetwoods thoracic aorta would have caused his death
    within a few minutes. Dr. Rose testified the wounds to the torso, considered as
    a group, caused Mr. Fleetwoods death.

[33]

Dr. Rose observed some of the wounds, including
    some of the wounds to the torso, cut through bone, cartilage or muscle,
    indicating the appellant used significant force to inflict those wounds.

[34]

In cross-examination, Dr. Rose confirmed the
    decomposed state of the body made it impossible to characterize some of the
    wounds as either incised or stab wounds. Dr. Rose also agreed some of the
    wounds on Mr. Fleetwoods torso could have been caused by knife wounds
    inflicted using a swinging rather than a stabbing motion.

C.

the grounds of appeal

(i)

Did the Crown and the Trial Judge Misstate the
    Forensic Evidence?

[35]

Crown counsel, in the course of cross-examining
    the appellant and in her closing argument, repeatedly referred to 30 stab
    wounds when describing Mr. Fleetwoods injuries. The trial judge also referred
    to 30 stab wounds from time-to-time in his instructions when referring to the
    evidence of the wounds suffered by Mr. Fleetwood.

[36]

The appellant contends the reference by the
    Crown and the trial judge to 30 stab wounds amounted to a serious misstatement
    of Dr. Roses evidence. The appellant argues, on Dr. Roses evidence, only some
    of the knife wounds were stab wounds. As outlined above, Dr. Rose described all
    30 knife wounds as sharp force injuries, some of which she characterized as
    incised wounds (longer than deeper); some she characterized as stab wounds (deeper
    than long); and some she could not definitively characterize as either incised
    or stab wounds.

[37]

Counsel submits the Crown and the trial judge
    were required to distinguish between incised wounds and stab wounds when
    referring to the knife wounds in cross-examination, closing argument, or the
    instructions to the jury. The appellant submits the distinction drawn by Dr.
    Rose was important to the defence in that Dr. Roses description of the manner
    in which incised wounds were inflicted was consistent with the appellants
    description of swinging the knife blindly in an effort to defend himself.

[38]

The distinction between incised wounds and stab
    wounds, as articulated by Dr. Rose, offered some support for the defence
    position concerning the manner in which the injuries occurred. I observe,
    however, that support seems limited. The many internal injuries inflicted on
    Mr. Fleetwood by the appellant clearly indicate he was doing more than blindly waving
    the knife about. It is also significant experienced trial counsel did not rely
    on the distinction between incised wounds and stab wounds in his closing argument.
    Instead, counsel relied on the 20 or 30 blows struck by the appellant with
    the knife as indicative of the appellants desperation.

[39]

Whatever the value to the defence case of the
    distinction between incised wounds and stab wounds might have been, I do not
    accept Crown counsel or the trial judge were required to use exclusively Dr.
    Roses nomenclature when referring to the knife wounds. Dr. Rose used the
    terminology commonly employed by pathologists to help her describe the contours
    of individual knife wounds. To the extent counsel or the trial judge were
    referencing Dr. Roses evidence, it is incumbent on them to do so accurately. However,
    in referring to the wounds themselves, ordinary parlance allows for the
    description of all wounds inflicted with the knife as stab wounds. I see
    nothing misleading in referring to 30 stab wounds when describing the number of
    wounds, or the location of the wounds on Mr. Fleetwoods body.

[40]

For example, in cross-examination, Crown counsel
    sought to stress the number and location on Mr. Fleetwoods body of the many
    knife wounds inflicted by the appellant. The Crown did so to rebut the
    appellants evidence he swung wildly and defensively with his eyes closed, not
    meaning to cause Mr. Fleetwood serious harm. For the purposes of the Crowns
    questions, it did not matter whether any particular wound was characterized by
    Dr. Rose as an incised wound or a stab wound. What mattered to the Crowns
    questions was the number of wounds and the location of the wounds on Mr.
    Fleetwoods body. In that context, there is nothing misleading in the use of
    the more generic phrase stab wounds. The same observation applies to the
    trial judges reference to 30 stab wounds in the course of his summarizing
    parts of the evidence relevant to the various issues.

[41]

There was no objection by counsel for the
    appellant to the Crowns questioning or to the language used by the trial judge
    in reference to the 30 stab wounds.

[42]

Counsel for the appellant also argues some of
    the appellants answers to Crown counsels questions about 30 stab wounds indicate
    those questions were misleading. I disagree. On occasion when answering
    questions in which the Crown had made reference to 30 stab wounds, the
    appellant referred to Dr. Roses distinction between incised wounds and stab
    wounds. To the extent the appellant regarded that distinction as relevant to
    his answer, he was entitled to make the distinction as part of his answer.
    However, the Crown was not obliged to incorporate the distinction, which the
    Crown viewed as irrelevant for its purposes, into the question.

[43]

Not even Dr. Rose maintained the distinction
    between incised wounds and stab wounds throughout her evidence. She used the
    phrase stab wounds when referring to all of the wounds to the torso, although
    she testified she could not characterize some of those wounds as incised or stab
    wounds due to the decomposition of the body. The stab wounds to Mr. Fleetwoods
    torso caused his death.

[44]

It goes without saying that all counsel and
    trial judges do their best to state the evidence accurately.  Neither the Crown
    nor the trial judge are, however, required to use terminology that best accords
    with the defence position. Considered in the context in which the trial judge
    and the Crown used the phrase 30 stab wounds, and bearing in mind the limited
    purpose underlying the distinction drawn by Dr. Rose between incised wounds and
    stab wounds, the use of the phrase 30 stab wounds did not misstate her
    evidence or mislead the jury.

(ii)

Was the W.(D.) jury instruction adequate?

[45]

The appellant makes three arguments:

·

the jury was not told it must consider the
    appellants testimony in accordance with the three-step process described in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742
;

·

the
W.(D.)
instruction on self-defence
    was misplaced, incomplete and potentially confusing; and

·

there was no
W.(D)
instruction with
    respect to the defence of provocation or the
mens rea
requirement.

[46]

The trial judge gave a thorough instruction
    on the presumption of innocence and the burden of proof at the outset of his
    charge. He did not give the
W.(D.)
instruction typically given when an accused testifies: see D. Watt,
Watts
    Manual of Criminal Jury Instructions
, 2
nd
ed., Carswell (2015): Final Instruction #16. The trial judge was not asked to
    give that instruction.

[47]

The customary
W.(D.)
instruction may well have been unhelpful, if not
    confusing. On that instruction, a jury is told to acquit, either if it believes
    the accuseds denial, or has a reasonable doubt, based on his evidence. That
    instruction does not accurately describe the application of reasonable doubt to
    the accuseds evidence when the defences of self-defence or provocation are
    advanced. Those defences have objective as well as subjective components. A
    jury may believe an accuseds testimony, or at least not reject it as untrue, and
    still find the accused did not act in self-defence or under provocation, as
    those terms are defined in the criminal law. The appellant relied on both
    self-defence and provocation. Neither could be properly assessed using the
    standard
W.(D.)
instruction: see
R. v. Reid
,
    [2003] O.J. No. 2822 (C.A.), at paras. 72-73;
R.
    v. Sadiqi
, 2013 ONCA
    250, at paras. 21-22.

[48]

The absence
    of a
W.(D.)
instruction does not necessarily amount to an error
    in law. As appellate courts have repeatedly stated, their assessment of the
    adequacy of jury instructions must proceed on a functional basis. Did the
    instructions, considered as a whole, adequately equip the jury to properly
    apply the law to the facts as found by the jury?: see
R. v. Colnen
,
    2019 SCC 6, at para. 8;
R. v. Vassel
, 2018 ONCA 721, at para. 151.

[49]

The jury
    instructions in this case repeatedly
reminded the jury the burden of proof remained on the
    Crown throughout and applied to each element of the offence of murder and each
    element of the defences of self-defence and provocation. I am satisfied, by the
    end of the instruction, the jury understood it must give the accused the
    benefit of any doubt, regardless of the evidentiary source of that doubt.

[50]

The trial judge did give a
W.(D.)
instruction in respect of the defence of
    self-defence. He gave the instruction, as counsel for the appellant submits,
    after his instruction on the first of the three elements of the defence of self-defence.
[1]
The trial judge told the jury
:

Now, if you accept the accuseds evidence and
    on the basis of it, you believe or have a reasonable doubt that he was acting
    in lawful self-defence as I have defined that term to you, you will find the
    accused man, Mr. Brown, not guilty.

Even if you do not accept Mr. Browns
    evidence, if, after considering it alone or in conjunction with the other
    evidence, you believe or have a reasonable doubt that he was acting in lawful
    self-defence as I have defined that term to you, you will find the accused not
    guilty.

[51]

The trial judges language reflects the modified
W.(D.)
instruction described in
R. v. Reid
. The appellant
    contends the instruction would have confused the jury, as the trial judge had
    not yet defined self-defence for the jury, but had addressed only the first of the
    three elements of that defence. It is true, although the trial judge had
    outlined all three elements of self-defence before he gave the modified
W.(D.)
instruction, he had not explained the
second
    and third elements.

[52]

The trial judges placement of the
W.(D.)
instruction after his description of the first element of the defence and
    before his description of the second and third may strike those familiar with the
    format of Model Jury Charges as awkward and even confusing. I do not think it
    would have that effect on 12 reasonable jurors unfamiliar with Model Jury
    Charges. The instruction was simple and straightforward. The jury was told it
    must take the definition of self-defence from the trial judge and, if  based on
    the jurys acceptance of the accuseds evidence, or a consideration of the
    accuseds evidence in conjunction with the other evidence, the jury had a doubt
    about the applicability of self-defence, the jury had to acquit the appellant.

[53]

The appellant next submits the
W.(D.)
instruction, as it relates to self-defence, was
    incomplete as it failed to refer to the third prong of the
W.(D.)
instruction. That prong requires the trial judge to
    instruct the jury, even if the appellants evidence does not leave the jury
    with a doubt, the jury can convict only if, based on the evidence it does
    accept, the Crown has proved guilt beyond a reasonable doubt. Although the
    trial judge repeatedly instructed the jury the Crown had the burden on each
    essential element of the defence of self-defence, he did not instruct the jury
    in the terms of the third prong in
W.(D.)
.

[54]

On the evidence in this case, if the jury totally
    rejected the appellants evidence, I see no reasonable prospect of any result
    other than a conviction on the charge of second degree murder. The appellant
    admitted he stabbed Mr. Fleetwood 30 times. Several of the wounds to the torso were
    potentially fatal. The appellants post-offence conduct strongly suggested he
    did not act in self-defence. If the jury rejected the appellants version of
    events outright, there was virtually nothing left in the evidence to offer any
    reasonable support for the defences of self-defence and provocation, or the
    claim the appellant did not act with the necessary intent.

[55]

There was no objection to the trial judges
W.(D.)
instruction on self-defence, either in the
    pre-charge discussions or after the charge was given
. Counsels
    silence at trial accurately reflects the reality of the evidence. The defences advanced
    depended entirely on the jury at least being uncertain about the truth of
    crucial portions of the appellants testimony. If the jurys credibility
    assessment effectively removed the appellants evidence from the mix, I see no
    prospect of anything but a conviction on the murder charge. If the failure to
    recite the third prong of the
W.(D.)
instruction amounts to a legal error, it was
harmless legal error
    in this case.

[56]

I also reject the appellants submission the
    trial judges failure to give a specific
W.(D.)
instruction in respect of provocation and intent
    amounts to reversible error. The trial judge could have given a modified
W.(D.)
instruction in respect of provocation, although it
    must be said it was not the appellants evidence, but the other evidence in the
    case, that lent some air of reality to the provocation defence. The trial judge
    could also have given the typical
W.(D.)
instruction in respect of intent. Instead, he
    repeatedly reminded the jury of the burden of proof and thoroughly reviewed the
    evidence relevant to provocation and intent. To the extent that evidence was
    exculpatory, it came almost entirely from the appellant. I am confident the
    jury appreciated it had to carefully consider the appellants evidence, on its
    own and in the context of the rest of the evidence. I am equally satisfied the
    jury understood that any doubt with respect to the essential elements of
    provocation, or the issue of intent, had to be resolved in the appellants
    favour.

(iii)

The instruction on the
mens rea
for murder

[57]

The trial judge described the appellants state
    of mind as the third essential element to be proved by the Crown to establish
    guilt on the murder charge. After addressing the first two elements (causation
    and the unlawful act requirement), the trial judge turned to the mental state
    required for murder. He said:

Earlier, I instructed you that to decide
    whether Crown counsel had proved beyond a reasonable doubt that Shaune Brown
    meant either to kill Cory Fleetwood, or meant to cause Cory Fleetwood bodily
    harm that Mr. Brown knew was likely to kill Mr. Fleetwood and was reckless
    whether Mr. Fleetwood died or not, you must consider all of the evidence.

[58]

The trial judge correctly identified the
mens
    rea
for murder in the above-quoted passage. Unfortunately, he misspoke
    when he indicated he had already instructed the jury on the
mens rea
required for murder. He had not.

[59]

The trial judge went on to review the evidence relevant
    to intent in detail, and to remind the jury of the Crowns burden of proof. He
    emphasized the need to examine the evidence as a whole. The trial judge
    returned to the
mens rea
requirement, repeating the instruction the
    Crown must prove either the appellant meant to kill Mr. Fleetwood or meant to
    cause him bodily harm he knew was likely to kill Mr. Fleetwood and was reckless
    as to whether death ensued.

[60]

During deliberations, the jury asked the trial
    judge to clarify the state of mind required for murder. The trial judge
    provided a succinct and accurate response. There was no objection.

[61]

Instructions to the jury must be considered as a
    whole, including any answers to questions posed by the jury. Assuming the trial
    judges misstatement in his initial instructions could potentially have caused
    some confusion, his concise and correct answer to the specific question posed by
    the jury removed any possibility of confusion as to the requisite
mens rea
for murder
.

(iv)

Did the trial judge err in his response to the
    jurys question on provocation?

[62]

The trial judge correctly left provocation with
    the jury, even though the appellant resisted any suggestion he lost control of
    himself during the fatal encounter with Mr. Fleetwood. The appellant does not take
    issue with the initial instructions on provocation.

[63]

The jury asked three questions relating to the
    instructions on provocation. The appellants argument on appeal focuses on the
    third question. In that question, the jury asked for the legal definition of
    loss of self-control.

[64]

The trial judge, after hearing submissions from
    counsel, interpreted the jurys question as directed at the second of the four
    elements of the defence of provocation, outlined by the trial judge in his
    initial instructions. In describing that element, the trial judge had told the
    jury to determine whether the wrongful act or insult was sufficient to deprive
    an ordinary person of the power of self-control.

[65]

The trial judge told the jury the words should
    be given their ordinary meaning. He went on to remind the jury of the
    ordinary person standard to be applied in addressing loss of self-control. In
    answering the question as he did, the trial judge followed the submissions of
    counsel for the appellant. The Crown had requested a wider response which
    included reference to the appellants state of mind. The Crown took the
    position the appellant had all but denied losing self-control in his testimony.
    On this view of the evidence, any reference to the subjective component of
    provocation could not help the appellant.

[66]

On appeal, the appellant argues the trial judge
    erred in focusing exclusively on the ordinary person standard when answering the
    question. He submits the jury should have been instructed on the other elements
    of the defence that engage the appellants subjective state of mind.

[67]

I interpret the question as the trial judge did.
    The trial judge properly focused his answer on the specific question asked. That
    question did not invite further instructions on other elements of the
    provocation defence.

(v)

Did the trial judge misstate the appellants
    evidence?

[68]

The appellant submits the trial judge repeatedly
    told the jury the appellant went to the bathroom after the struggle with Mr.
    Fleetwood ended to clean up. The appellant testified he made his way from the
    bedroom to the bathroom and closed the bathroom door in an effort to get away
    from Mr. Fleetwood. The appellant submits the trial judges misstatement of his
    purpose in going to the bathroom significantly undermined his self-defence
    claim.

[69]

I have outlined the appellants evidence on this
    point earlier in my reasons (see para. 17). It was common ground the appellant,
    after stabbing Mr. Fleetwood many times, made his way to the bathroom and,
    while in the bathroom, attempted to clean the blood in the bathroom and from
    his hands (at least) before he returned to the bedroom, where Mr. Fleetwood lay
    dead or dying. The appellant then set about trying to clean up his blood in the
    bedroom. The appellant maintained, however, that his purpose in going into the
    bathroom was not to clean up, but to get away from Mr. Fleetwood, who he
    believed was still alive.

[70]

The trial judge referred to the evidence
    relating to the appellants movement to the bathroom and his actions in the
    bathroom on four occasions during his instructions. On one of these occasions,
    when reviewing the position of the defence, the trial judge accurately set out
    the appellants evidence he went to the bathroom to try to get away from Mr.
    Fleetwood.

[71]

On the other three occasions, the trial judge
    made briefer references to the evidence and related it to certain issues
    pertaining to self-defence or the required
mens rea
. At least one of
    those references, and perhaps two, could be understood as the trial judge
    indicating the evidence was the appellant had gone to the bathroom to clean up.
    While that was the inference urged by the Crown, it was contrary to the
    appellants evidence.

[72]

I accept at least one, and perhaps two, of the
    trial judges references to the evidence can reasonably be characterized as a potentially
    misleading description of the appellants evidence. I do not, however, agree
    these statements vitiated the verdict.

[73]

The trial judge reminded the jury that it was
    their responsibility to determine the facts and their recollection of the
    evidence that mattered. I see no reason to think the jury did not follow that
    instruction.

[74]

I also do not share the appellants view as to
    the significance of the trial judges misstatement of the evidence. The
    after-the-fact conduct, considered as a whole, provided powerful evidence
    pointing away from self-defence. Assuming the appellant initially went to the
    bathroom to get away from Mr. Fleetwood, there remained a formidable body of
    after-the-fact conduct supporting the Crowns position. On the appellants own
    evidence, he remained in the bathroom, attempting to clean up the blood without
    making any effort to assist Mr. Fleetwood, even though he knew he had stabbed
    Mr. Fleetwood and Mr. Fleetwood was making gurgling sounds in the bedroom. Even
    after the appellant returned to the bedroom, he focused on attempts to destroy potential
    evidence, rather than making any effort to assist Mr. Fleetwood.

[75]

There no doubt may be a case in which a trial
    judge misstates the evidence on a single crucial point in a manner that so
    prejudices the appellant, as to result in a miscarriage of justice. That is not
    this case.

D.

the sentence appeal

[76]

The trial judge increased the period of parole
    ineligibility from the minimum of 10 years to 13 years because of the very
    violent nature of the murder, his finding the appellant was the aggressor, and
    the appellants significant criminal antecedents.

[77]

This court defers to the sentence imposed by the
    trial judge, absent a demonstrated error in law or principle, or a
    determination the sentence is demonstrably unfit: see
R. v. Lacasse
,
    2015 SCC 64, at paras. 11, 43-44, 52;
R. v. M.(C.A.)
, [1996] S.C.J.
    No. 28, at paras. 89-91.

[78]

The appellant contends the jurys rejection of
    his provocation and self-defence claims did not provide a basis upon which the
    trial judge could find the appellant was the aggressor. I accept the jurys
    verdict does not necessarily compel the conclusion the appellant was the
    aggressor. Nor, however, does the verdict preclude the trial judge from finding
    the appellant was the aggressor. That factual finding is not inconsistent with
    any factual finding implicit in the jurys verdict: see
R. v. Ferguson
,
    2008 SCC 6, at paras. 16-18;
R. v. Landry
, 2016 NSCA 53, at para. 48;
Criminal
    Code
, s. 724(2).

[79]

The physical evidence and the appellants
    post-offence conduct offered ample support for the trial judges conclusion the
    appellant was the aggressor. Although the trial judge did not specifically
    indicate he made the finding on the reasonable doubt standard, there is nothing
    in his reasons to suggest he applied the wrong standard.

[80]

The trial judge did not err in law or principle
    and the sentence is not demonstrably unfit.

E.

conclusion

[81]

The appeal from conviction is dismissed. The
    appeal from sentence is dismissed.

Released:

DD
JULY 16
    2020

Doherty J.A.

I agree J.C. MacPherson J.A.

I agree M.L. Benotto J.A.

[1]

The trial judge charged the jury on the applicable
    self-defence provision, as it existed at the time of the homicide. That section
    has been repealed and replaced by the present s. 34:
S.C. 2012
, c. 9, s. 2.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chumbley, 2020 ONCA 474

DATE: 20202107

DOCKET: C68277

MacPherson, Pardu and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Chumbley

Appellant

Mark Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard and released orally:
    July 17, 2020 by video conference

On appeal from the sentence imposed on March
    9, 2020 by Justice Pamela Borghesan of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant asks this court to consider fresh evidence about the
    conditions she endured during presentence custody, and to reduce her sentence
    to reflect those hardships.

[2]

The appellant says she asked her counsel on the guilty plea to obtain
    the institutional records to show the extent of lockdowns and the other
    conditions of her detention. She says her lawyer told her that Legal Aid would
    not pay to get those records. Because of this refusal to get the records, the
    appellant terminated that counsels retainer and made submissions on her own
    behalf. She only mentioned the conditions under which she had been held, and
    asked for some credit because of that, after the sentencing judge delivered the
    decision on sentence.

[3]

The Crown and duty counsel have now cooperated to get those records. They
    reveal that the combination of mental illness, the institutional housing
    offered to transgender inmates who identify as female, and the appellants
    continuing trauma resulting from a childhood with a drug addicted Aboriginal father
    who introduced her to drugs at an early age, have created exceptional suffering
    for this appellant. She was in lockdown for approximately 33 days during
    presentence custody. She was confined to her cell for 22 hours a day. She tried
    to hang herself twice and was hospitalized as a result of the injuries she
    sustained in the suicide attempts. Rehabilitative programs were not available
    to her because of her transgender identity.

[4]

The sentencing judge sentenced her to eight months, after a seven-month
    credit for presentence custody. This credit was short 3 days, calculated on a
    1.5 to 1 ratio.

[5]

The appellants statutory release date is just one month away, on August
    18, 2020.

[6]

We admit the fresh evidence. This should have been before the sentencing
    judge and would have had an impact on the sentence imposed. This is different
    from evidence of rehabilitative progress or difficulties which could properly
    be considered by the parole authorities. The interests of justice require that
    we consider this evidence of intense human suffering. The appellant submitted
    to the sentencing judge,

Im falling apart right now. Since
    Ive identified as female Im in 22 hour lockup. Im segregated by myself. I
    dont get the programs that other inmates get. Um, before I got out last time I
    hung myself. Got tooken to the hospital for 8 days. Um, since being
    reincarcerated, Ive hung myself again. And got took to the hospital again. This
    is the scar from the noose. Um, I Im mentally falling apart right now

[7]

Given the impact on this offender,
    it is an appropriate case to give some credit against sentence to reflect the
    harsh conditions of presentence detention and the consequences for this
    appellant: see
R. v. Duncan
, 2016 ONCA 754. In light of the fast-approaching statutory
    release date, we allow the appeal, reduce the custodial portion of the sentence
    to time served and the probation order will remain in force on the terms
    ordered by the trial judge.

J.C.
    MacPherson J.A.

G.
    Pardu J.A.

Gary
    Trotter J.A.