COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tutiven, 2022 ONCA 97

DATE: 20220203

DOCKET: C68453

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Max Edwin Tutiven

Appellant

Anil K. Kapoor and Dana Achtemichuk,
    for the appellant

Tracy Kozlowski, for the respondent

Heard: January 19, 2022 by video conference

On appeal from the conviction entered on
    October 10, 2017 and the sentence imposed on November 8, 2017 by Justice Maureen
    D. Forestell of the Superior Court of Justice, sitting with a jury, with
    reasons for sentence reported at 2017 ONSC 6689.

Thorburn J.A.:

[1]

Max Edwin Tutiven (the appellant) appeals his conviction for second
    degree murder and seeks leave to appeal his sentence of life imprisonment with
    parole ineligibility for 16 years.

BACKGROUND

[2]

On September 15, 2012, the appellant went to a gas station on Roselawn
    Avenue in Toronto to steal gasoline. He filled his vehicle and several
    cannisters with gasoline. He had done this many times before and had a lengthy
    criminal record.

[3]

Mr. Prajapati, the gas attendant, noticed that the appellant appeared to
    be leaving without paying. He ran across a lane of vehicles near the gasoline
    pumps toward the appellant with his arms outstretched and shouted hey hey in
    an apparent attempt to try and stop him.

[4]

Mr. Prajapati was struck by the front passenger side of the appellants
    vehicle. CCTV footage does not show the moment of impact but it is clear that
    Mr. Prajapati was quickly pulled under the appellants vehicle while
    several people yelled at the appellant to stop.

[5]

Mr. Prajapati remained trapped under the vehicle as the appellant sped
    down Roselawn Avenue for approximately 78 metres before his body was dislodged
    from the vehicle. Mr. Prajapati died of multiple blunt and crush injuries.

[6]

Witnesses heard screeching tires or the sounds of a loud engine. They
    described the loud dragging sound of Mr. Prajapatis body. One said the sound
    was akin to a vehicle hitting a pylon, and the pylon getting lodged under the
    vehicle and kicked around, followed by a softer dragging sound. Another witness
    described the sound as terrible and sounding very loudly like a piece of
    cardboard being dragged on  asphalt.

[7]

The appellant said he intended to leave the gas station after stealing
    the gasoline but another car parked in front of his car, making it difficult
    for him to leave. The appellant says he was focused on the other car and did
    not see Mr. Prajapati approach but did hear a hey, hey. He says he did
    not feel or hear the impact of hitting Mr. Prajapati. The appellant drove out
    of the gas station and onto Roselawn Avenue, hitting the curb as he left the
    station. He said he heard something like stop, stop as he was leaving. He
    said he heard what he thought sounded like a pylon dragging under his vehicle.
    He said he was worried about being caught for gasoline theft and his only
    thought was to get out of there as quickly as possible.

[8]

The appellant said that after driving home that night, he received a
    call from his father advising that the police were looking for him. He assumed
    it was about the gasoline theft and went back to bed. The next day he drove to
    Kingston to see his friend. His friend told him he was wanted by police because
    the gas attendant had died. The appellant said that he went into hiding in
    Montréal because he knew that he was unlikely to get bail, due to his numerous
    prior convictions. He was arrested three years later.

[9]

There was no dispute at trial that the appellant struck Mr. Prajapati
    with his vehicle and that Mr. Prajapati died. The appellant conceded that he
    was guilty of manslaughter. Therefore, the only issue was whether the appellant
    intended to kill Mr. Prajapati.

[10]

The
    Crown contended that the appellant made a continuous, deliberate, and seamless
    departure from the gas station and that the appellant saw Mr. Prajapati
    before he hit him. The Crown noted that there was no evidence of pylons at the
    gas station and the appellant admitted to seeing no pylons. The Crown argued
    that the appellants testimony was created to hide the truth.

[11]

The
    appellant admitted to manslaughter, on the basis that he drove dangerously, it
    was objectively foreseeable that there was a risk of bodily harm, and it caused
    Mr. Prajapatis death. He claimed however that he did not know he hit and was
    dragging Mr. Prajapati, and there were other reasonable inferences for his
    conduct that were inconsistent with the intent for murder.

[12]

The
    appellant submitted that his post-offence conduct
before
he learned he
    was wanted for murder, supported his submission that he did not have the intent
    for murder. He submitted that his post-offence conduct
after
he
    learned he was wanted for murder, was not relevant in determining whether he
    was guilty of murder or manslaughter.

[13]

The
    jury convicted the appellant of second-degree murder.

[14]

At
    the sentencing hearing, the Crown sought a period of parole ineligibility of 17
    years. In the Crowns view, this period of parole ineligibility was warranted
    as the offence demonstrated a callous disregard for life, it was committed by
    the appellant while he was committing other criminal offences, the appellants
    long criminal record demonstrated a commitment to a criminal lifestyle, and
    this offence was committed while he was on a life-time driving prohibition and
    probation.

[15]

The
    appellant submitted that a 17-year period of parole ineligibility was too harsh
    given that he admitted responsibility and expressed remorse at trial. He
    submitted that a 10 to 12-year period of parole ineligibility should be imposed
    instead.

[16]

The
    sentencing judge held that [t]here are virtually no mitigating factors in this
    case and imposed a period of parole ineligibility of 16 years.

THE ISSUES ON APPEAL

[17]

The
    appellant appeals his conviction and seeks leave to appeal his sentence on the
    basis of his assertion that:

a.

The trial judge failed to inquire into evidence
    of juror impartiality;

b.

The trial judge failed to instruct the jury that
    post-offence conduct could be used to negate the
mens rea
for murder;

c.

The trial judge erred in her
W.(D.)
instruction
    by failing to instruct the jury that rejection of the appellants evidence
    could not be used to strengthen the Crowns case;

d.

The verdict of second-degree murder was
    unreasonable; and

e.

The sentencing judge erred by failing to
    consider a relevant mitigating factor.
[1]

ANALYSIS OF THE ISSUES

A.

Juror Impartiality

The appellants
    submission about juror partiality

[18]

During
    the challenge for cause process in the selection of jurors, a prospective juror
    said that this case actually did bother me a lot given her work with new
    immigrants to Canada. The prospective juror said she did not know whether she
    would be able to set aside her preconceived notions and decide the case fairly.
    The two jurors acting as triers found the prospective juror acceptable. The
    defence exercised a peremptory challenge to exclude the prospective juror.

[19]

The
    appellant submits that the conduct of the two jurors in finding the prospective
    juror to be acceptable, created a reasonable apprehension of bias on the part
    of the two jurors. He therefore submits that the trial judge should have
    conducted an inquiry into their impartiality and possibly discharged them. The
    appellant claims that by failing to conduct an inquiry, the trial judge made an
    error of law.

[20]

The
    appellant submits that the verdict should be set aside on the basis of the
    trial judges failure to inquire into juror partiality.

Analysis of the
    issue of juror partiality

[21]

To
    demonstrate partiality, it must be clear that a jurors beliefs, opinions or
    biases will prevent them from setting aside their preconceptions and deciding
    the case based solely on the evidence:
R. v. S. (R.D.),
[1997] 3
    S.C.R. 484, at para. 107. Impartiality does not require jurors to be
    neutral, but jurors life experiences cannot interfere with their
    responsibility to approach the case with an open mind, one that is free from
    bias, prejudice, or sympathy:
R. v. Chouhan
, 2021 SCC 26, at para.
    48, citing
R. v. Barton,
2019 SCC 33, [2019] 2 S.C.R. 579, at para.
    195.

[22]

There
    is a strong presumption of juror impartiality:
R. v. Dowholis,
2016
    ONCA 801, 133 O.R. (3d) 1, at para. 18. The presumption of juror impartiality
    can be rebutted only if a reasonable observer would conclude that the jurors
    conduct made it more likely than not that the juror, whether consciously or
    unconsciously, would not decide fairly:
Dowholis,
at para. 17.

[23]

The
    test for the reasonable apprehension of bias is what would an informed person,
    viewing the matter realistically and practically  and having thought the
    matter through  conclude:
Committee for Justice and Liberty et al. v.
    National Energy Board et al.,
[1978] 1 S.C.R. 369, at p. 394, per

de
    Grandpré J.;
Dowholis,
at para. 19.

[24]

The
    threshold for establishing reasonable apprehension of bias is high:
S. (R.D.),
at paras. 112-113. Further, safeguards are in place to protect against
    potential sources of juror partiality. In
R. v. Find,
2001 SCC 32,
    [2001] 1 S.C.R. 863, at para. 107, the Supreme Court explained these safeguards
    as follows:

[T]he safeguards of the trial process and the
    instructions of the trial judge are designed to replace emotional reactions
    with rational, dispassionate assessment. Our long experience in the context of
    the trial of other serious offences suggests that our faith in this cleansing
    process is not misplaced. The presumption of innocence, the oath or
    affirmation, the diffusive effects of collective deliberation, the requirement
    of jury unanimity, specific directions from the trial judge and counsel, a
    regime of evidentiary and statutory protections, the adversarial nature of the
    proceedings and their general solemnity, and numerous other precautions both
    subtle and manifest  all collaborate to keep the jury on the path to an
    impartial verdict despite offence-based prejudice.

[25]

The
    triers acceptance of a juror who expressed uncertainty about whether she was
    able to decide the case fairly but did not say that her uncertainty would
    impede her ability to decide the case fairly, does not meet the high threshold
    of reasonable apprehension of bias.

[26]

Moreover,
    the trial judge did everything necessary to ensure juror impartiality.

[27]

Before
    each trier began to perform their task, the trial judge correctly instructed
    them that, having preconceptions about a case does not necessarily disqualify a
    potential juror and that what is important, is whether the potential juror
    would likely be able to put their opinions aside and decide the case fairly
    and only on the evidence and legal instructions.

[28]

Each
    juror swore an oath or made an affirmation to decide the case impartially.

[29]

After
    all the jurors were selected, the trial judge reminded the jury panel of their
    duty to decide the case only on the basis of the evidence they saw and heard
    and to make their decision without sympathy, prejudice or fear.

[30]

The
    appellants experienced defence counsel raised no concerns and neither party
    asked the judge to conduct a further inquiry into the conduct of the triers.

[31]

Lastly,
    although following jury selection, the appellant told the court there were a
    couple things that Im very, very uncomfortable with, specifically with jury
    selection, he made no reference to the two jurors who were triers, their
    conduct, or any allegation of possible bias. Concerns about the reasonable
    apprehension of bias should be voiced as soon as reasonably possible:
R. v.
    Nero,
2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 33, 36, leave to
    appeal refused, [2016] S.C.C.A. No. 184.

[32]

The
    appellant relies on
R. v. Budai
, 2001 BCCA 349, 154 C.C.C. (3d) 289,
    leave to appeal refused, [2001] S.C.C.A. No. 415, to submit that once aware of
    circumstances which raise a question as to the impartiality of a juror, the
    trial judge must conduct an inquiry into the circumstances.

[33]

However,
    this case is distinguishable from
Budai
as in
Budai,
unlike
    this case,

the jurors conduct raised a real possibility of juror misconduct.
    The trial judge had received reports of improper and continuous eye contact
    in the courtroom between a juror and an accused, to which the juror made an
    improper response, this had been going on for one to two months, and the
    parties had nodded at and recognized one another outside the courtroom: at
    para. 42. This was sufficient to provide a basis for the trial judges exercise
    of discretion to conduct an inquiry.

[34]

For
    these reasons there was no reasonable apprehension of bias on the part of the
    triers and no error of law committed by the trial judge. This ground of appeal
    fails.

B.

The Instruction On
    The Proper Use Of Post-Offence Conduct

The appellants
    submission about the post-offence conduct

[35]

The
    jury heard evidence about post-offence conduct which the appellant claims can
    be categorized in two stages: (1) the appellants conduct after leaving the gas
    station until the time he learned he was wanted for murder in Kingston (the
    first stage), and (2) his conduct from the time he knew he was wanted for
    murder, until the time of his arrest in Montréal three years later (the second
    stage).

[36]

The
    evidence adduced on the first stage post-offence conduct was relevant to the
    issue of his awareness of being involved in a serious crime, and thus whether he
    had the intent for murder. Given that the appellant admitted he was guilty of
    manslaughter, the evidence adduced in respect of the second stage post-offence
    conduct was irrelevant to the issue of whether the death was a manslaughter or
    a murder.

[37]

The
    appellant claims the trial judges instruction about the use of post‑offence
    conduct was confusing and erroneous.

[38]

He
    claims the jury were told they could not use the post-offence conduct to
    determine the question of intent for murder (which was the sole issue of
    contention), but were not told how the post-offence conduct could assist in
    determining whether the Crown had proven its case if it did not apply to
    intent. Specifically, they were not told how a finding that the appellants
    actions were consistent with innocence, or consistent with someone who is not
    aware of having committed any serious offence, should factor into their
    deliberations.

Analysis of the
    post-offence conduct issue

[39]

The
    trial judge correctly instructed the jury that the post-offence conduct evidence
    could be used to decide whether the Crown had proven Mr. Tutivens guilt beyond
    a reasonable doubt.

[40]

They
    were then told
how
they could use that evidence as follows: [I]f you
    agree with [appellants trial counsel] Mr. Sapiano's position that manslaughter
    has been proven and
the only issue is to decide whether the Crown has proven
    the intent for murder, the post-offence conduct evidence cannot be used by you
    at all
as evidence pointing to guilt. In those circumstances you should
    ignore it because, in law, it has no probative value in deciding between murder
    and manslaughter (emphasis added).

[41]

The
    trial judge went on to say, however, that,
You must consider the
    post-offence conduct evidence that is consistent with innocence
. This is
    the evidence that Mr. Tutiven went to his rooming house, left his car parked at
    his rooming house, left when he planned and did not take any steps to hide his
    whereabouts, went to a restaurant in Kingston with his friend. If believed,
    this may be seen as conduct that is consistent with someone who is not aware of
    having committed any serious offence (emphasis added).

[42]

The
    question is whether the jury instruction, read in its entirety, in the context
    of the case, properly equipped the jury to decide the case based on the application
    of the applicable legal principles to the evidence:
R. v. Badgerow,
2019
    ONCA 374, 146 O.R. (3d) 35, at paras. 17-18. This court held in
R. v. Adan,
2019 ONCA 709, at para. 35, Whether a trial judges instructions were
    sufficient depends on the significance of the nature of the conduct involved;
    the use made of the evidence at trial; the instructions given about its use;
    and the positions of the parties about the adequacy of those instructions.

[43]

Further,
    a failure by trial counsel to object is not decisive, but is a factor
    warranting consideration on appellate review:
Adan,
at para. 63;
R.
    v. Jacquard
,

[1997] 1 S.C.R. 314
,
at para. 38. A failure
    to object to an instruction later advanced as erroneous on appeal may say
    something about the overall accuracy of the instructions, the fairness of the
    charge, and the seriousness of the alleged misdirection:
Aden,
at
    para. 63; see also
Jacquard,
at para. 38.

[44]

Looking
    at the charge as a whole, there was no prejudice to the appellants right to a
    fair trial.

[45]

The
    appellant, through his counsel, conceded that he was guilty of manslaughter
    although that was ultimately a matter for the jury to decide.

[46]

The
    jurors were told they could not use the evidence to determine that the
    appellant had the intent necessary for murder, but they could use the evidence,
    to the extent it was consistent with innocence, to support a finding that the
    appellant was not aware of having committed any serious offence. Those
    instructions were correct.

[47]

The
    jury would have understood that they could use the evidence to negate
mens
    rea
for murder as they were clearly instructed that they must consider
    this evidence insofar as it is consistent with the appellants innocence both
    of the act and the intention to commit the act.

[48]

The
    appellants experienced trial counsel did not object to this instruction.
    During pre-charge discussions, the appellants trial counsel initially
    requested that the trial judge include after-the-fact conduct consistent with
    innocence in the portion of the charge on intent for murder, but then abandoned
    the request.

[49]

For
    these reasons, this ground of appeal fails.

C.

The Adequacy of the
W.(D.)
Instruction

The appellants
    submission about the trial judges failure to give an OConnor-type instruction

[50]

The
    standard
W.(D.)
instruction is appropriate when the trier of fact
    makes credibility findings based on conflicting evidence going to the essential
    elements of the offence:
R. v. W.(D.)
, [1991] 1 S.C.R. 742, at pp.
    757-758.

[51]

In
    this case, the trial judge provided the standard instruction on the third step
    of the
W.(D.)
analysis as follows:

Even if the testimony of Mr. Tutiven does not
    raise a reasonable doubt about his guilt, if after considering all the evidence
    and the lack of evidence, you are not satisfied beyond a reasonable doubt of
    his guilt, you must find him not guilty of second degree murder.

[]

Even if you reject his evidence and it does
    not raise a reasonable doubt you can only find that he assaulted Mr Prajapati
    if the rest of the evidence satisfies you beyond a reasonable doubt that he
    intended to apply force.

[]

Even if you reject his evidence on this point
    and it does not raise a reasonable doubt, you may only convict him of murder if
    the whole of the evidence satisfies you of his guilt beyond a reasonable doubt.

[52]

The
    appellant suggests that this instruction was insufficient. He claims that the
    jury should have been given a modified
OConnor
instruction such as
    the following:

If you disbelieve the accuseds evidence you
    should disregard it. Your rejection of or disbelief in the evidence of the
    accused is not evidence that you may use in determining whether the Crown has
    proven its case beyond a reasonable doubt. It has no probative value. You must
    ignore the testimony and treat it as if it had never been given.

[53]

The
    appellant suggests this instruction was necessary to ensure that if the jury
    disbelieved the appellants testimony, their disbelief was not used as
    additional evidence in support of the Crowns case because disbelieving the
    appellants evidence does not mean it was fabricated.

Analysis of the
    trial judges failure to give an OConnor-type instruction

[54]

An
OConnor
instruction is given where the Crown seeks to have the trier
    of fact
draw an adverse inference
on the basis of an alleged fabrication
    of an exculpatory statement by the accused, and the Crown can prove fabrication
    based on independent evidence:
R. v. OConnor
(2002), 62 O.R. (3d) 263
    (C.A.), at paras. 35-37;
R. v. Al-Enzi
, 2021 ONCA 81, 401 C.C.C. (3d)
    277, at para. 41.

[55]

The
    law distinguishes between an exculpatory statement given by an accused that is
    disbelieved, and one that is determined to have been fabricated to avoid
    culpability:
R. v. Wright
, 2017 ONCA 560, 354 C.C.C. (3d) 377, at
    para. 38;
Al-Enzi,
at para. 38.

[56]

A
    statement that is disbelieved is not evidence that strengthens the Crowns
    case. It is simply determined to be untrue:
Al-Enzi,
at para. 38. On
    the other hand, a statement that was deliberately fabricated can support an
    inference of guilt because the trier of fact can draw an inference that the
    accused lied to conceal their guilt:
Al-Enzi
,

at para. 38.

[57]

In
R. v. Coutts
(1998), 40 O.R. (3d) 198 (C.A.), at p. 203, leave to
    appeal refused, [1998] S.C.C.A. No. 450, Doherty J.A. explained the basis for
    the distinction between disbelief and fabrication:

If triers of fact were routinely told that
    they could infer concoction from disbelief and use that finding of concoction
    as evidence of guilt, it would be far too easy to equate disbelief of an
    accuseds version of events with guilt and to proceed automatically from
    disbelief of an accused to a guilty verdict. That line of reasoning ignores the
    Crowns obligation to prove an accuseds guilt beyond reasonable doubt. By
    limiting resort to concoction as a separate piece of circumstantial evidence to
    situations where there is evidence of concoction apart from evidence which
    contradicts or discredits the version of events advanced by the accused, the
    law seeks to avoid convictions founded ultimately on the disbelief of the
    accused's version of events.

[58]

Where
    the Crown asserts fabrication, the Crown must not only adduce evidence that
    disproves the exculpatory statement, but also adduce independent evidence that
    proves that the exculpatory statement was made to deflect from the accuseds
    guilt:
Al-Enzi
,

at para. 39. Where independent evidence of
    fabrication exists, the trier of fact should be made aware of the principles
    governing the use to which they can put the statement:
Al-Enzi,
at
    para. 41.

[59]

The
    question to be addressed when an appellant asserts that an
OConnor
instruction
    was warranted is not whether an
OConnor
instruction would have been
    appropriate, but whether the instruction given prejudiced the appellants right
    to a fair trial:
R. v. Polimac,
2010 ONCA 346, 254 C.C.C. (3d) 359,
    at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 263;
Al-Enzi,
at
    para. 43. An appellate court should undertake a functional assessment of the
    charge, read as a whole in the context of the specific case, giving significant
    weight to the position advanced by trial counsel:
R. v. Badgerow,
2019
    ONCA 374, 146 O.R. (3d) 35, at paras. 17-19;
Al-Enzi,
at para. 44.
    Further, this court has recognized that a trial judges instruction
    highlighting the circumstances supporting fabrication may in fact work to the
    detriment of the accused as it may serve to emphasize the powerful case
    supporting fabrication:
Polimac,
at para. 106;
Al-Enzi,
at
    para. 45.

[60]

In
    this case, no
OConnor
instruction was required as the Crown was not
    seeking to have the trier of fact draw an inference of guilt on the basis of an
    alleged fabrication of an exculpatory statement.

[61]

In
    closing submissions, Crown counsel referenced the appellants false narrative
    and characterized his account of events as incredible, suggesting that he was
    hiding the truth. Crown counsel stated that, you should reject Mr. Tutivens
    false narrative.

[62]

Crown
    counsel submitted that, Throughout his testimony, rather than answering simple
    questions, Mr. Tutiven repeatedly chose to provide what the Crown would
    characterize as unresponsive answers filled with extra details to camouflage
    the truth. Crown counsel stated that Mr. Tutivens evidence was,

[A]n unbelievable story from an unbelievable
    storyteller.

[]

Mr. Tutiven, in his evidence, was
    argumentative, evasive, he was regularly unresponsive to even simple questions.
    His evidence was convoluted and often contradictory. He was inconsistent, and
    the Crown would say, incredible. He demonstrated no commitment to tell the
    truth. On the contrary, his testimony had all the hallmarks of an individual
    providing untruths and an unreliable witness.

[63]

However,
    while Crown counsel asserted that the appellant did not tell the truth, he did
    not encourage the jury to draw an inference of guilt from their disbelief of
    the appellants evidence.

[64]

Moreover,
    although the trial judge summarized the Crowns position, including that the
    appellant demonstrated no commitment to tell the truth, the trial judge did
    not include anything in the jury charge from which the jury could have
    understood that they could draw a negative inference if they disbelieved the
    appellants account.

[65]

On
    the contrary, she emphasized the requirement that the jury be convinced of the
    appellants guilt beyond a reasonable doubt on the entirety of the evidence
    even if the appellant's evidence failed to raise a reasonable doubt. Further,
    trial counsel for the appellant did not request an instruction on the fact that
    evidence of disbelief could not be used to infer guilt.

[66]

In
R. v. Badiru,
2012 ONCA 124,

this court held that an
OConnor
instruction on the distinction between disbelief and a finding of
    fabrication was not necessary, despite the fact that the Crown had stated in
    closing submissions that the appellants testimony was fabricated: at para. 23.
    This court held that an instruction was not mandatory as the allegedly false
    statement was part of defence evidence, the trial judge gave an adequate
W.(D.)
instruction, the Crown did not ask the jury to infer guilt from disbelief,
    and the defence at trial did not request the instruction sought on appeal: at
    para. 23.

[67]

For
    similar reasons, the instructions given in this case did not prejudice to the
    appellant's right to a fair trial:
Polimac,
at para. 106;
Al-Enzi
,
    at para. 43.

[68]

This
    ground of appeal therefore fails.

D.

Whether the Verdict
    was Reasonable

The appellants
    submission about the reasonableness of the verdict

[69]

The
    appellant submits that the verdict is unreasonable, and a verdict of
    manslaughter should be substituted.

[70]

The
    appellant notes that the Crowns case on the intention to commit murder was
    entirely circumstantial and the jury was invited to convict the appellant based
    on a series of common-sense propositions about what the reasonable person
would
    have
perceived on the night in question: that the appellant must have seen
    Mr. Prajapati, must have heard the impact, and must therefore have been aware
    that he had hit and/or was dragging Mr. Prajapati under his car to his untimely
    death.

[71]

The
    appellant submits however, that there were other reasonable inferences
    inconsistent with guilt and that he should therefore have been found guilty of
    manslaughter but not second-degree murder.

Analysis of the
    reasonableness of the verdict issue

[72]

A
    verdict is reasonable if it is a verdict that a properly instructed jury
    acting judicially could reasonably have rendered:
R. v. Villaroman,
2016
    SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[73]

The
    Crowns case for establishing the
mens rea
for murder was entirely
    circumstantial. In circumstantial cases, the trier of fact must be satisfied
    that the appellants guilt is the only reasonable conclusion available on the
    totality of the evidence:
Villaroman,
at para. 55.

[74]

When
    assessing circumstantial evidence, the trier of fact should consider other
    reasonable possibilities inconsistent with guilt. Other possibilities must be
    reasonable given the evidence and the absence of evidence, assessed logically,
    and in light of human experience and common sense, and not based on
    speculation:
Villaroman,
at paras. 36-37.

[75]

However,
    the evidence does not have to completely exclude other conceivable inferences
    and a verdict is not unreasonable simply because the alternatives do not
    raise a doubt in the jurys mind:
Villaroman
, at para. 556. It is
    ultimately for the trier of fact to determine if a proposed inference is
    reasonable enough to raise a doubt:
Villaroman,
at para. 56.

[76]

The
    trial judge properly cautioned the jury against too readily drawing inferences
    of guilt based on the circumstantial evidence:
Villaroman,
at para.
    30. She instructed them that,

[Y]ou cannot reach a verdict of guilty based
    on circumstantial evidence unless you were satisfied beyond a reasonable doubt
    that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn
    from the whole of the evidence. In this case, the evidence relied upon by the
    Crown to prove Mr. Tutivens state of mind is entirely circumstantial. It is
    important that in considering the circumstantial evidence of Mr. Tutivens
    state of mind  you consider other reasonable conclusions that are consistent
    with the evidence or with the lack of evidence.

[]

The evidence of his intention, other than his
    own evidence of what he intended, is entirely circumstantial. You can rely on
    circumstantial evidence to conclude that Mr. Tutiven intended to apply force.
    You should remember, however, that before relying on circumstantial evidence to
    infer guilt you must be satisfied beyond a reasonable doubt that the guilt of
    Mr. Tutiven is the only reasonable conclusion to be drawn from the whole of the
    evidence on this issue of his intention to apply force. Before inferring guilt,
    you must consider whether there are other reasonable inferences available from
    the evidence or lack of evidence.

[]

The evidence of intent that could point to
    guilt is wholly circumstantial. You are entitled to rely on the circumstantial
    evidence to infer guilt but you must be satisfied beyond a reasonable doubt
    that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn
    from the whole of the evidence. It is important that in considering the
    circumstantial evidence relating to Mr Tutivens state of mind that you
    consider other reasonable conclusions that are consistent with the evidence or
    with the lack of evidence.

[77]

In
    order to decide whether the appellant was guilty of manslaughter or murder, the
    only issues the jury had to decide were whether (a) the appellant saw Mr.
    Prajapati before he ran him over, or (b) the appellant became aware sometime
    after hitting Mr. Prajapati that he was dragging a person underneath his car
    and did not stop driving. If the Crown proved either, the requirement of intent
    for murder pursuant to s. 229(a)(ii) of the
Criminal Code
was
    satisfied.

[78]

The
    instant that Mr. Prajapati was run over was not captured on CCTV footage.
    However, before he was hit, Mr. Prajapati can be seen in CCTV footage moving
    forward toward the appellants vehicle after seeing the appellant fill his tank
    with gasoline and appearing to leave without paying. The gas station was
    brightly lit and Mr. Prajapati wore a bright yellow and red Shell uniform that
    was plainly visible. A witness testified that Mr. Prajapati shouted hey in an
    apparent attempt to stop the appellant.

[79]

CCTV
    footage shows that the appellants vehicle briefly flashed its brake lights,
    then moved forward from pump five, in lane three, into lane two in the very
    direction Mr. Prajapati was running. In another CCTV video, Mr. Prajapati
    appeared running toward the front passenger side of the appellants vehicle,
    with his hands raised. The CCTV footage suggests that the appellant was not
    engaged in complex driving manoeuvres at the moment Mr. Prajapati was struck
    and therefore was not distracted before he sped away.

[80]

As
    the appellant sped away from the gas station, Mr. Prajapatis body was under
    the appellants vehicle. Mr. Prajapati weighed approximately 70 kilograms and
    his body was dragged approximately 78 metres before it was dislodged from the
    vehicle.

[81]

Two
    witnesses who were at the gas station testified that they saw Mr. Prajapati
    stand in front of the appellants vehicle with his hands raised trying to stop
    the vehicle when the vehicle accelerated. The witnesses testified that the vehicle
    hit him, and then kept driving, dragging Mr. Prajapati.

[82]

One
    of the witnesses, who was inside his car with the window down during the
    incident, said that as Mr. Prajapati was dragged down the street, he could hear
    people screaming for the driver to stop from their balconies in a nearby
    apartment building on Roselawn Avenue. Another witness in the apartment
    building, heard the vehicle leave the scene, dragging something, and then heard
    the dragging stop and someone yell, Call 911.

[83]

The
    appellant said that he heard what he thought was a pylon under the vehicle but
    he agreed that he did not see a pylon in or around the gas station.

[84]

The
    appellant suggests that Mr. Prajapati could have tripped and fallen in front of
    the appellants vehicle. The appellants trial counsel did not raise this
    suggestion to any of the Crown witnesses. This suggestion was advanced for the
    first time in the defence closing address. Further, there is no evidence or
    lack of evidence to support this submission. A witness described that Mr.
    Prajapati was upright, with his hands up to stop the vehicle, when he was hit,
    and that his hands made contact with the hood of the vehicle. The jury,
    properly instructed, was entitled to reject this submission as not being a
    reasonable possibility.

[85]

Taken
    together, the fact that Mr. Prajapati was hit from the front passenger side of
    the appellants vehicle in a well-lit area wearing brightly-coloured clothing,
    that Mr. Prajapatis 70 kilograms were dragged under the appellants vehicle
    for approximately 78 metres, many witnesses heard the body being dragged,
    people screamed that he stop, the appellant heard a hey, hey before he left
    the gas station and something like stop, stop as he was leaving, and that he
    felt his vehicle dragging something as he left, were sufficient to enable the
    jury to conclude that the appellant was guilty of second degree murder.

[86]

There
    was ample evidence to allow the jury to (a) reject the possibility that Mr.
    Prajapati tripped and fell in front of the appellants vehicle just as the
    appellant was speeding away, and (b) be satisfied beyond a reasonable doubt
    that the appellant either saw Mr. Prajapati and deliberately ran him over, or
    realized after he struck Mr. Prajapati that he was dragging someone under his
    vehicle and continued to speed away without stopping.

[87]

For
    the above reasons, this ground of appeal fails.

E.

The Sentence Appeal

[88]

The
    Crown sought 17 years parole ineligibility, the appellant sought 10 to 12
    years, and the sentencing judge imposed a period of 16 years parole
    ineligibility. The appellant claims this is excessive and fails to consider his
    remorse and acceptance of responsibility as a mitigating factor.

[89]

Sentencing
    decisions are subject to deference and will only be varied where (i) the
    sentence is demonstrably unfit, or (ii) the sentencing judge made an error in
    principle that had an impact on the sentence imposed, including an error of
    law, a failure to consider a relevant factor, or erroneous consideration of an
    aggravating or mitigating factor on sentencing:
R. v. Lacasse,
2015
    SCC 64, [2014] 3 S.C.R. 1089, at paras. 41-44;
R. v. Friesen
, 2020 SCC
    9, at paras. 25-26.

[90]

In
    this case, the sentencing judge did not fail to consider that the appellant
    took some responsibility for what he had done. She determined however that no
    mitigating value attached to it, as his was a late admission of some limited
    responsibility after three years spent evading arrest.

[91]

She
    committed no error in principle in arriving at this conclusion nor is the
    sentence demonstrably unfit.

[92]

This
    ground of appeal fails.

CONCLUSION

[93]

For
    the above reasons, I would dismiss the conviction appeal. While leave to appeal
    the sentence is granted, I would dismiss the sentence appeal.

Released: February 3, 2022 K.F.

J.A.
    Thorburn J.A.

I agree.
    K. Feldman J.A.

I agree. J.C. MacPherson J.A.

[1]
In
    oral argument, the appellant abandoned his argument that the trial judge should
    not have left the jury with dangerous driving as a route of liability for
    second degree murder.


COURT OF APPEAL FOR ONTARIO

CITATION:
Asghar v. Toronto (City), 2022 ONCA 98

DATE: 20220203

DOCKET: C68901, C68902 & C68903

Pepall, Brown and Thorburn JJ.A.

DOCKET: C68901

BETWEEN

Sajjad Asghar

Plaintiff (Appellant)

and

The City of Toronto, The Mayor
John Tory, The Toronto Police Service Board (Members Chair) Jim Hart, Marie
Moliner (Vice-Chair), Mayor John Tory, Lisa Kostakis, Michael Ford Councilor,
Councilor Frances Nunziata, Ainsworth M. Morgan, The Toronto Police Chief
(Interim) James Ramer and The Toronto Police Deputy Chief Peter Yuen

Defendants (Respondents)

DOCKET: C68902

AND BETWEEN

Sajjad Asghar

Plaintiff (Appellant)

and

The Toronto Police Service Board
(Members Chair) Jim Hart, Marie Moliner (Vice-Chair), Mayor John Tory, Michael
Ford Councilor, Councilor Frances Nunziata, Ainsworth M. Morgan, Lisa Kostakis,
The Toronto Police Chief (Ex-Incumbent) Mark Saunders and The Toronto Police
Special Constable Joseph Pihura # 90483

Defendants (Respondents)

DOCKET: C68903

AND BETWEEN

Sajjad Asghar

Plaintiff (Appellant)

and

The City of Toronto, The Mayor
John Tory, The Toronto Police Service Board (Members Chair) Jim Hart, Marie
Moliner (Vice-Chair), Mayor John Tory, Lisa Kostakis, Michael Ford Councilor,
Councilor Frances Nunziata, Ainsworth M. Morgan, The Toronto Police Chief
(Interim) James Ramer, The Toronto Police Deputy Chief (Ex-Incumbent) Mark
Saunders, The Toronto Police Deputy Chief Peter Yuen

Defendants (Respondents)

Sajjad Asghar, acting in person

Jonathan Thoburn, for the respondents

Heard: January 31, 2022 by
video conference

On appeal from the order of Justice Jane
Ferguson of the Superior Court of Justice, dated November 19, 2020.

REASONS FOR DECISION

[1]

The appellant, Sajjad Asghar, appeals from the November 19, 2020
dismissal of his actions numbered CV-20-645467, CV-20-647046 and CV-20-648878
pursuant to Rule 2.1.01 of the Rules of Civil Procedure.

[2]

Under that Rule, the court may stay or dismiss a proceeding if the
proceeding appears on its face to be frivolous or vexatious or otherwise an
abuse of the process of the court.

[3]

The motion judge followed the correct procedures, received and reviewed
the parties submissions, and determined that each of the actions was
frivolous, vexatious and an abuse of the process of the court. Each was
incapable of success. She accordingly dismissed the three actions.

[4]

We agree with her findings and her conclusion. These were the clearest
of cases and the motion judges decision was fully justified.

[5]

The motion judge also granted ancillary relief relating to fee waivers.
Prior to doing so, she advised the parties in three identical endorsements
dated November 5, 2020 that she was considering revoking the fee waivers and
requiring the appellant to obtain permission of a judge prior to obtaining any
further fee waivers in this or in any related proceedings, and requested the
appellant to make written submissions in response. In her dismissal of the
three actions, she incorporated those terms relating to fee waivers.

[6]

Such a determination was not unlawful as alleged by the appellant.
Rather, it was a legitimate and necessary exercise of the motion judges
jurisdiction.

[7]

We dismiss all three appeals. The appellant is to pay the respondents
costs fixed in the amount of $2,500 inclusive of disbursements and applicable
tax.

S.E.
Pepall J.A.

David
Brown J.A.

J.A.
Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Biya, 2022 ONCA 99

DATE: 20220201

DOCKET:
M53046 (C66597)

Lauwers
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

(Moving
    Party)

and

Abadula
    Biya

Appellant

(Responding
    Party)

Abadula Biya, acting in person

Lula Ahmed, acting in person

Biya Abajabel, acting in person

Jeremy Tatum, for the moving party

Heard: January 13 and 28, 2022 by video
    conference

REASONS
    FOR DECISION

[1]

Abadula Biya was convicted and sentenced for charges
    relating to the unauthorized possession of a firearm and ammunition, possession
    of a Schedule 1 controlled substance (MDEA) for the purposes of trafficking,
    and possession of the proceeds of crime. His appeal was successful:
R. v.
    Biya
, 2021 ONCA 171. The conviction was quashed, and a new trial was
    ordered.

[2]

The Crown applies for forfeiture of the July 16,
    2020 release order that Mr. Biya and his sureties entered into under s.
    771 of the
Criminal Code
, R.S.C.
    1985, c. C-46
. Mr. Biyas two named sureties are his father, Biya
    Abajabel, and his mother, Lula Ahmed. The sureties pledged $20,000 in support
    of Mr. Biyas release.

[3]

The sureties confirmed when entering into the
    release orders their understanding that: [F]ailure on the part of [Mr. Biya]
    to follow any of the conditions in this release order could lead to the
    forfeiture of the amount of money that has been promised or deposited.

[4]

One of the terms of the release order was:

You must remain in your residence at all times
    except:

i.

for medical emergencies involving you or a
    member of your immediate family (spouse, child, parent, sibling) or

ii.

for attending court, or meeting with your
    lawyer, or for purposes of complying with this or any other court Order or

iii.

for purposes of travelling directly to, from and
    while at work or school or

iv.

when you are in the presence of your surety.

[5]

The Crown states that on at least October 3 and
    6, 2020, Mr. Biya did not comply with that condition of the release order and breached
    his bail. On December 16, 2020, he pleaded guilty to the October 3, 2020 breach
    charge. The October 6, 2020 breach facts, and other facts forming part of the
    circumstances of the offence, were read into the record as part of the plea
    agreement and the sentence to be imposed. Mr. Biya was sentenced to 59 days of
    custody less 29 days of enhanced pre-trial custody credit.

[6]

On November 12, 2021, this court endorsed the
    default of the July 16, 2020 release order. Section 771 of the
Criminal
    Code

mandates a forfeiture
    hearing for the $20,000 that Mr. Biya and his sureties pledged in support of
    his release on bail pending appeal. They must now show cause why full
    forfeiture should not be ordered in the circumstances.

[7]

A concern came to light in the writing of this
    decision, which led the Executive Legal Officer of the court to send a letter to
    the Crown, Mr. Biya and his parents inviting further submissions. The letter
    stated:

The order dated July 16, 2020 indicates
    at p. 2 that the sureties promised to pay the amount of $20,000 (without
    deposit). However, while the order notes a corresponding $20,000 obligation on
    the part of Mr. Biya, the box confirming that obligation has not been checked
    off.

The Crown seeks to have the forfeiture
    enforced against Mr. Biya as well as his parents, despite the absence of a
    check in the box for Mr. Biya.

[8]

In the release order I made on March 15, 2019,
    and in subsequent release orders by Nordheimer J.A. dated October 4, 2019 and by
    Paciocco J.A. dated December 13, 2019, the following provision appears:

IT IS ORDERED that the said appellant [Mr.
    Biya] shall forthwith be brought before a Justice of The Peace, and upon
    entering into a recognizance in the amount of $20,000.00, without a deposit,
    with the following sureties Biya Abajabel $20,000.00, Lula Ahmed $20,000.00, be
    admitted to bail upon the following conditions

[9]

An amendment to s. 515 of the
Criminal Code
came into force on December 18, 2019, which provided that it was no
    longer mandatory that the accused promise to pay a specified amount for failing
    to comply with the conditions of the order. This led to a change in the form of
    the release order. The order of Hourigan J.A. dated April 9, 2020 and, as the
    Executive Legal Officers letter notes, the order of Pardu J.A. dated July 16,
    2020 did not check off the box requiring Mr. Biya to be personally liable
    for the specified amount.

[10]

I do not accept Mr. Biyas submission that he
    always understood that it was only the sureties and not him who were responsible
    for forfeiture. All of the release orders other than the last two make it very
    clear that he had personal financial obligations.

[11]

In the synopsis read into the record on Mr.
    Biyas prosecution for breaching his recognizance, the additional information
    provided to the court states:

From September 5th, 2019 to October 6th, 2020
    police have conducted 12 bail compliance checks in which they spoke to the
    accuseds parents (sureties) and his brother. The family members told police
    that the accused was at work at Birchmount and Eglinton. The accused has not
    worked at his place of employment since August of 2019.

[12]

This was a breach and is within the time frame
    of my original release order, dated March 15, 2019, when Mr. Biya was plainly
    liable to pay the recognizance upon a breach. Mr. Biya admitted to the truth of
    the facts in the synopsis when he pleaded guilty to breaching his recognizance.
    In the circumstances, I conclude that I have jurisdiction to require forfeiture
    of bail from Mr. Biya and his parents.

[13]

The legal principles applicable to bail
    forfeiture were set out in this courts decision in
Canada (Attorney
    General) v. Horvath
, 2009 ONCA 732, 248 C.C.C. (3d) 1 and summarized by
    Durno J. in
R. v. Griffiths
, 2019 ONSC 4044, at paras.  22-31.

[14]

The onus is on the sureties to show on a balance
    of probabilities that they should not be required to pay the full amount:
Horvath
,
    at para. 27. The court has discretion in determining how much of the amount
    should be forfeited:
Horvath
, at para. 5. Trotter J.A., in his text,
The
    Law of Bail in Canada
, loose-leaf, 3rd ed. (Toronto: Thomson Reuters
    Canada, 2010), describes the role of sureties as effectively guarantee[ing] that
    the accused will attend in court and will abide by the conditions imposed: at para.
    6-8. The pull of bail is an expression used to capture the expectation that an
    offender will comply with the bail conditions rather than subject the sureties
    to personal liability:
Horvath
, at para. 40. The realistic prospect of
    actual forfeiture when bail is breached is needed to maintain the effectiveness
    of the system:
Horvath
, at para. 41. Trotter J.A. noted,
at
para. 13-1, that the effect of
    potential forfeiture would be seriously diluted by widespread knowledge that
    the procedure is only invoked sporadically.

[15]

However, the court noted in
Horvath
, at
    paras. 45-46, that where a large amount is posted for bail, the pull of bail
    can sometimes be satisfied with less than full forfeiture while maintaining the
    credibility and effectiveness of the bail system.

[16]

In
Horvath
the court noted, at para. 51,
    that the diligence of the surety is only one factor relevant to a forfeiture
    hearing. Durno J. assembled a list of factors in
Griffiths
,

at para. 31, that a judge may consider
    at a forfeiture hearing. I pick out several that are relevant to this
    proceeding:

(a)

The nature of the relationship between the sureties
    and the accused, as well as the level of control they had over the accuseds
    behaviour;

(b)

The sureties intended role in the supervision
    where more than one surety signs;

(c)

The sureties diligence;

(d)

The sureties post-breach conduct, especially
    attempts to assist the police in apprehending the accused;

(e)

The amount of the recognizance;

(f)

The sureties means at the time the release
    order was signed; and

(g)

Any significant change in the sureties
    financial situation between the time the recognizance was entered and the
    breach, and particularly between the breach and the forfeiture hearing.

[17]

Mr. Biya, his father and his mother all spoke at
    the hearing.

[18]

Mr. Biya was contrite and remorseful. He admitted
    to actively misleading his parents about his going to school and his working
    long after he ceased both activities. He has been struggling to find a job, but
    his criminal record now stands in the way, quite apart from the economic
    conditions and the influence of COVID-19. He is hoping to return to school and
    in the meantime is looking for a minimum wage job. He would be well advised to
    speak to the John Howard Society, Dixon Halls Employment Services, or The
    Career Foundation.

[19]

His mother Ms. Ahmed stated that she is on
    disability, and that she and her family, including four other children, have
    come through a bout with COVID-19. Mr. Biyas father Mr. Abajabel is
    currently 68 years old and retired. This is a poor family. Both Mr. Biyas
    parents were apologetic. His mother explained that she drove him to school and
    to work on occasions in the early days of his bail, but that both she and her
    husband trusted their son.

[20]

It is quite clear to me that full forfeiture,
    which the Crown is not seeking in this case, would be a crushing financial
    blow, one from which this family could not recover. While maintaining the
    credibility of the bail system means that forfeiture must have teeth, that is a
    matter of proportionality.

[21]

The Crown submits that Mr. Biyas parents could
    have been more diligent in their supervision, but he believes that they assisted
    in locating Mr. Biya and having him present himself to the police for arrest.

[22]

In my view, Mr. Abajabel and Ms. Ahmed must bear
    some financial responsibility for failing to attend to their duties with
    sufficient diligence. I also believe that Mr. Biya himself must pay something.
    But the familys circumstances, and the general economic conditions, do not
    justify a large forfeiture.

[23]

I therefore order Mr. Biya to pay by way of
    forfeiture of bail $1,500 over the course of two years, subject to further
    order of the court if his financial circumstances change, and I order that Mr.
    Abajabel and Ms. Ahmed each forfeit the sum of $750 and pay the amount over one
    year, subject to further order of this court if their financial circumstances
    change. I will remain seized of this matter and require the reattendance of the
    parties before me at a date to be fixed by the court in about six months.

[24]

Mr. Biya may be served at his email address:  *
    . His parents may be served at the email address provided to the court. If
    those email addresses change in the future, Mr. Biya and his parents must email
    the court at
coa.e-file@ontario.ca or call the Motions
    Desk at 416-327-5025
.

P.
    Lauwers J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.O., 2022 ONCA 103

DATE: 20220204

DOCKET: C69144 & C69145

Doherty, Trotter and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.O. and N. P.

Appellants

Paul Calarco, for the appellant C.O.

Gideon McMaster, for the appellant N.P.

Jennifer Trehearne, for the respondent

Heard: June 4, 2021 by video conference

On appeal from the order of Justice Faye E. McWatt of the Superior Court of Justice, dated July 3, 2020, and reported at 2020 ONSC 4076, allowing an appeal from the acquittals entered on October 11, 2019, by Justice R. Silverstein of the Ontario Court of Justice.

Doherty J.A.:

I.

OVERVIEW

[1]

The appellants, C.O. and N.P., are common-law partners.
    J. is their daughter. She was four years old at the time of the relevant
    events.

[2]

In June 2017, the police executed a search
    warrant on the appellants apartment in Toronto. The search warrant was
    unrelated to the offences which are the subject of this appeal. The apartment
    was appallingly filthy and J.s personal hygiene was equally bad. The police
    took J. and turned her over to the child welfare authorities.

[3]

The appellants were charged with the failure to provide
    J. with the necessaries of life contrary to s. 215(2)(a)(i), and with forcibly
    confining J. contrary to s. 279(2) of the
Criminal Code
, R.S.C., 1985, c. C-46
. On the failure
    to provide necessaries charge, the Crown alleged the appellants failure to
    attend to J.s personal hygiene, coupled with the very unsanitary conditions in
    the apartment, put J.s health and safety at risk, and demonstrated a marked
    departure from the conduct of a reasonably prudent parent. On the unlawful
    confinement charge, the Crown alleged the appellants effectively locked J. in
    the filthy bedroom at night. The Crown maintained, that in doing so, the
    appellants went well beyond the lawful authority defence in s. 279(2) of the
Criminal
    Code
.

[4]

The Crown proceeded summarily. The trial judge
    acquitted the appellants on both counts.

[5]

The Crown appealed the acquittals to the
    Superior Court. The Summary Conviction Appeal Court Judge (the SCAJ) allowed
    the appeals and quashed the acquittals of both C.O. and N.P. She entered
    convictions against both on the necessaries of life charge and ordered a new
    trial on the unlawful confinement charge.
[1]

[6]

The appellants applied for, and obtained, leave
    to appeal to this court from the judgment of the SCAJ. They seek an order
    restoring the acquittals.

II.

THE FACTS

[7]

When the police entered the appellants
    apartment they found partially eaten food throughout the apartment and cigarettes
    and garbage all over the living room floor. Some of the closets were full of bags
    containing garbage. The apartment reeked of urine and feces. There were flies
    everywhere and the walls were covered with fly feces.

[8]

J.s bedroom was particularly dirty. Her pillow and
    her bed smelled of urine. There was food on the mattress and insects buzzing
    around the food. The police found urine and feces on J.s bedroom floor and a
    pile of old feces in her closet. J.s pants were wet with urine and covered in
    grime. She was so dirty she had to be bathed before she could be medically
    examined. One of the officers testified that it was impossible to breathe in
    J.s bedroom because the stench was so overpowering.

[9]

The evidence did not show exactly how long J.
    had been living in the conditions observed by the police when they executed the
    search warrant. The trial judge did, however, accept the evidence that the
    conditions in the apartment, 11 days before the warrant was executed, were much
    the same as the conditions at the time the warrant was executed. There was also
    some evidence the appellants and J. had lived in very unsanitary conditions at another
    residence, about two or three years earlier.

[10]

A psychologist who prepared a report for the
    Childrens Aid Society about four months after J.s apprehension described J.s
    cognitive functioning and motor skills as within the average range. J. showed
    lower levels of self-regulation and adaptive functioning as well as poor
    socialization. Her hyperactivity, impulsivity, and distractibility suggested
    she was at risk to develop an attention deficit disorder.

[11]

It is unclear whether the psychologist was aware
    of the extremely unsanitary conditions in J.s home. In any event, he was not
    asked to offer any opinion as to what effect, if any, those conditions had on J.s
    psychological status.

[12]

J.s great-grandfather described J. as a bubbly,
    energetic and happy child before her apprehension by the authorities. He had
    been in the appellants apartment about four months before the police executed
    the search warrant. He described the apartment as untidy. He also indicated
    that whenever he saw J. she seemed clean and well dressed.

[13]

J.s great-grandfather assumed custody of J. sometime
    after she was apprehended by the child welfare authorities. He took steps to improve
    her socialization and her interpersonal skills. She was diagnosed with ADHD
    after she started to live with her great-grandfather.

[14]

When the police executed the warrant they found J.s
    bedroom door closed. The doorknob on J.s bedroom was attached by a rope to the
    doorknob on the bathroom across the hall. The rope prevented J. from opening
    her door from the inside. Js inability to open her bedroom door when the rope
    was in place led to the unlawful confinement charge.

[15]

Neither appellant testified but both gave
    statements to the police that were admitted at trial. They explained that J. s
    door was tied shut during the evening because she had a tendency to leave her
    bedroom and get into things in the apartment, including laundry detergent and other
    dangerous materials. Sometimes, J. would scatter the material about her bedroom,
    but sometimes she would put it in her mouth. The appellants told the police they
    had taken J. to the Poison Control Centre more than once.

[16]

According to the appellants, if J. needed to go
    to the bathroom during the night she would call out and one of the appellants
    would come from their bedroom and take her to the bathroom. As the condition of
    J.s bedroom demonstrates, there were times when she urinated and defecated in
    her bedroom. She may not have called out to her parents, or she may have called
    out and the appellants either did not hear J., or chose to ignore her.

[17]

In their statements to the police, the
    appellants explained that J. was a very active and somewhat destructive child
    with a tendency to get into things, some of which were dangerous. She would
    also smear her own feces on the wall of her bedroom. The appellants insisted
    they repeatedly tried to clean up the mess J. made.

[18]

Although both appellants tended to understate
    the extremely unsanitary conditions in the apartment, and to fixate on J.s
    conduct when explaining those conditions, both ultimately acknowledged in their
    statements that they were responsible for letting matters get so out of hand.

[19]

There was no evidence that J. was malnourished,
    ill, or had been physically abused. There was also no evidence J. was ever locked
    in her bedroom when her parents were not in the apartment.

[20]

The appellants were extremely poor. They had
    real difficulty making ends meet and keeping food on the table.

III.

THE REASONS OF THE TRIAL JUDGE

(i)

The unlawful confinement charge

[21]

As indicated above, the unlawful confinement
    charge was based on the confinement of J. in her bedroom during the evenings. The
    trial judge accepted that the appellants confined J. in her bedroom. He recognized
    that the confinement of a child by a parent was justified if the confinement
    was in accordance with the best interests of the child:
R. v. Magoon
,
    2018 SCC 14, [2018] 1 S.C.R. 309, at para. 68. The best interests of the child
    can include health and safety concerns.

[22]

The trial judge also acknowledged that the confinement
    of a child by a parent for whatever purpose could not be justified if the
    conduct surpasses any acceptable form of parenting and reflects the
    exploitation of authority for an improper purpose:
Magoon
, at para. 68.

[23]

The trial judge, at para. 37, accepted the
    explanation offered by the appellants for confining J. in her bedroom at night.
    He acquitted on the unlawful confinement charge stating, at para. 39:

I am not convinced beyond a reasonable doubt
    that this confinement falls outside the category of the restriction of liberty
    that parents are lawfully entitled to resort to in accordance with the best interests
    of their child.

(ii)

The failure to provide necessaries charge

[24]

The failure to provide necessaries charge arose
    out of the state of J.s personal hygiene and the extremely unsanitary
    conditions in the apartment. It was common ground that the appellants owed a legal
    duty under s. 215(1)(a) of the
Criminal Code
to provide J. with the
    necessaries of life. The Crown alleged the appellants failure to attend to
    J.s personal hygiene needs, and to maintain even minimally sanitary conditions
    in the apartment, constituted a failure to provide the necessaries of life,
    leaving J. in destitute or necessitous circumstances. The Crown further maintained
    that leaving four-year-old J. in a filthy room over many days demonstrated a
    marked departure from what a reasonable parent would do.

[25]

The trial judge held, that to establish the
    offence under s. 215(2)(a)(i), the Crown had to prove that J.s personal
    hygiene and the extremely unsanitary conditions in which she lived posed a risk
    of harm to J. The trial judge noted the Crown had led no evidence that J. was
    either harmed by the unsanitary living conditions or that those conditions
    created a risk of harm to J. The trial judge declined the Crowns invitation to
    take judicial notice that living in the extremely unsanitary conditions in the
    apartment posed a risk to J.s health. The trial judge said, at para. 63:

Although I personally strongly suspect that
    the unsanitary environment created by the defendants posed a non-trifling risk
    of harm to [J.], for the reasons set out above, I refuse to take judicial
    notice of that fact. It should also be noted that whether a judge takes notice
    of adjudicative facts is discretionary. [citation omitted]. Expert evidence on
    these questions was readily available to the Crown in this prosecution. Any
    public health professional could have addressed these issues.

[26]

The trial judge held that the failure to prove a
    risk of harm to J. necessitated the acquittal of the appellants on the failure
    to provide necessaries charge.

IV.

THE REASONS OF THE SCAJ

(i)

The unlawful confinement charge

[27]

The SCAJ concluded the trial judge failed to
    consider the conditions of J.s confinement when determining whether the
    confinement was a lawful restriction of J.s liberty. She held the appellants
    explanation that they had confined J. to protect her, even if true, was not
    determinative on the unlawful confinement charge. She said, at para. 64:

While the reason behind confining J. was
    relevant, the trial judge erred in not considering the condition of the room
    and the state of J. as factors in the analysis of whether this was an
    acceptable form of parenting. By simply accepting that the respondents were
    lawfully entitled to confine J. to prevent her from getting into cleaning
    supplies ignores the context in which she was confined.

[28]

The SCAJ quashed the acquittals on the unlawful
    confinement charge and ordered a new trial.

(ii)

The failure to provide necessaries charge

[29]

The SCAJ found that the trial judge made three
    errors in relation to the failure to provide necessaries charge. First, the
    trial judge erred in holding the Crown had to prove a risk of harm to J. as an
    essential element of a charge under s. 215(2)(a)(i): Reasons, at para. 26.
    Second, if proof of some risk of harm was required, the trial judge erred in failing
    to consider the risk of psychological harm to J.: Reasons, at paras. 49-50.
    Third, the trial judge erred in holding he needed evidence quantifying the
    degree of risk to J. posed by the extremely unsanitary environment in which she
    was living: Reasons, at paras. 56-57. The SCAJ concluded that even if, contrary
    to her conclusion, the Crown was required to prove the conditions posed a risk
    of harm to the child, the trial judges finding that the conditions were
    potentially harmful to J., was enough to establish a risk of harm to J. and justify
    a conviction under s. 215(2)(a)(i).

[30]

The SCAJ quashed the acquittals and entered
    convictions on the failure to provide necessaries charge.

V.

THE GROUNDS OF APPEAL

Ground #1: Did the SCAJ err in law in setting
    aside the acquittals on the unlawful confinement charge?

[31]

The appellants submit that the SCAJ ignored the
    trial judges finding that the appellants locked J. in her bedroom at night to
    prevent her from getting into the dangerous cleaning products kept in other
    parts of the apartment. Counsel submits that it was open to the trial judge to
    accept the appellants explanation, and to find, based on that explanation, that
    the appellants restricted J.s liberty to protect her health and safety. The
    appellants therefore acted within the lawful authority defence in s. 279(2).

[32]

Counsel further contends that the SCAJ made
    findings of fact that were unsupported by the evidence and used those findings
    to support her conclusion that J. was unlawfully confined. Counsel points to
    the following as unsupportable findings of fact made by the SCAJ:

·

J. had no access to the toilet at night;

·

J. was confined without access to food; and

·

J. was confined for disciplinary purposes.

[33]

There is merit to the appellants claim that the
    SCAJ went beyond her limited authority to review findings of fact and made
    factual findings that were unsupported by the evidence. I need not, however,
    wrestle those submissions to the ground.

[34]

The appeal, as it relates to the unlawful
    confinement convictions, can be resolved by addressing the argument that once
    the trial judge accepted the appellants evidence that they had confined J. to
    protect her health and safety, the confinement was lawful and it was
    unnecessary to consider the conditions of the confinement.

[35]

The lawful authority defence at s. 279(2) in
    cases involving parents and their children recognizes that parents are entitled,
    if not obligated, by virtue of their parental duties and responsibilities to
    confine their children in the best interests of the children. The lawful
    authority defence however extends only to conduct which is a reasonable
    exercise of parental authority done in furtherance of parental duties and
    responsibilities. Parental conduct that is abusive, harmful to the child, degrading
    or otherwise beyond the bounds of acceptable parenting cannot shelter under the
    lawful authority defence:
Magoon
,
at paras. 64-68;
R. v. Bottineau
, 2006 O.J. No. 1864 (Ont. S.C.), at
    para. 121, affd 2011 ONCA 194, 269 C.C.C. (3d) 227, at paras. 101-103, leave
    to appeal refused, [2011] S.C.C.A. No. 455.

[36]

It flows from the focus on the reasonableness of
    the parental exercise of authority that the lawful authority defence in s.
    279(2) as applied in the parent/child situation must address not only the
    reason behind the confinement but also the factual context in which the
    confinement occurs. The court must consider the purpose, nature, and extent of
    the confinement in determining whether that confinement was a lawful exercise
    of parental authority over the child:
R. v. Kematch,
2010
    MBCA 18, 252 C.C.C. (3d) 349, at para. 104.

[37]

The parents reason for imposing the restraint
    on the childs liberty will obviously be a key consideration. It is not however,
    the only relevant consideration. Other factors such as the location, manner,
    and duration of the confinement will also be potentially relevant, as no doubt
    will other considerations.

[38]

I agree with the SCAJ that the conditions of the
    room in which the appellants confined J. was relevant to whether the
    confinement was lawful. J.s room was the dirtiest room in a very dirty
    apartment. There is an obvious difference when measuring the legitimacy of the exercise
    of parental authority, between confining a young child at night in a normal
    bedroom in which the child routinely sleeps and confining that same child in that
    same room when the room has become more akin to a garbage can or a toilet than
    a bedroom.

[39]

A trier of fact could well conclude, even if the
    appellants acted out of legitimate concern for J.s safety, that locking her in
    a filthy, foul-smelling room, replete with human feces, decaying foods, and countless
    flies, was harmful, degrading and well beyond the bounds of acceptable
    parenting. The appellants failure to attend to J.s personal hygiene while she
    was locked in her room only added to the degrading nature of the confinement.

[40]

I would dismiss the appeal on the unlawful
    confinement charge.

Ground #2: Did the SCAJ err in quashing the
    acquittals on the failure to provide necessaries charge?

(a)

Is risk of harm an element of the offence
    created by s. 215(2)(a)(i)?

[41]

The trial judge and the SCAJ differed as to
    whether the Crown had to prove a risk of harm to J. to establish an offence
    under s. 215(2)(a)(i). For the reasons that follow, I agree with the trial judge
     risk of harm is an element of the offence. Indeed, on a close analysis of the
    elements of the offence in s. 215(2)(a)(i), it is plain that risk of harm as a
    consequence of the parents dereliction of duty is woven throughout the conduct
    and fault requirements of that offence.

[42]

Section 215 is found in the part of the
Criminal
    Code
headed Duties Tending to Preservation of Life. Among the duties
    identified in s. 215 is the obligation on a parent to provide the necessaries
    of life to a child:
Criminal Code
, s. 215(1)(a). The duty placed on
    parents  to provide the necessaries of life to their children  is intended to
    protect children under the charge of their parents. It requires parents to protect
    children from the harm to their health and safety associated with the failure
    to provide the necessaries of life to children. Clearly, the duty puts a
    positive obligation on parents to act to protect their children from harm. The
    duty is reinforced by criminal sanctions for the failure to perform the duty in
    some circumstances. As I will explain, protection of children from harm in the
    context of the duty created by s. 215(1)(a) must include protection of children
    from the risk of harm associated with the failure to provide necessaries: see
R.
    v. S.J.
, 2015 ONCA 97, 124 O.R. (3d) 595, paras. 64-65, leave to appeal
    refused, [2015] S.C.C.A. No. 146.

[43]

Section 215(2) creates two offences. Subsection
    (i), the charge under which the appellants were prosecuted, makes it an offence
    for a parent, who owes a duty to provide the necessaries of life to a child
    under 16, to fail to perform that duty, if the child is in destitute or
    necessitous circumstances.

[44]

Section 215(2)(a)(ii) is not directly in play on
    this appeal. It is, however, closely related to the offence created under
    subsection (i). An understanding of the elements of the offence under (ii) is
    important to a proper reading of the offence created in (i). Just as with subsection
    (i), the offence under subsection (ii) requires proof of the duty to provide
    the necessaries of life and proof of the failure to perform that duty.
    Subsection (ii) goes on, however, to require the Crown to prove one of three
    consequences flowing from the failure to provide necessaries. The Crown must
    prove:

·

the failure to perform the duty endangered the
    life of the child;

·

the failure to perform the duty caused permanent
    endangerment to the health of the child; or

·

the failure to perform the duty was likely to
    cause permanent endangerment to the health of the child.

[45]

As is evident from a reading of s. 215(2), the
    conduct forbidden by the two offences created by that section differs in one
    way. Under subsection (i), the Crown must prove the child was in destitute or
    necessitous circumstances when the parent failed to provide a necessary of
    life. Under the offence created by subsection (ii), the Crown must prove that
    the failure to provide the necessaries of life led to one of the three consequences
    to the child described in subsection (ii).

[46]

Although both offences are punishable by the
    same penalty, the consequences forbidden by subsection (ii) make it the more
    serious of the two offences. It is also the most commonly charged of the two offences.

[47]

I turn next to a more detailed consideration of
    the essential elements of the offence created by s. 215(2)(a)(i). I will begin
    with the three elements of the conduct component (the
actus reus
) and
    then turn to the fault component (the
mens rea
) of the offence.

[48]

The first element, the duty on the appellants to
    provide necessaries of life to J., is acknowledged.

[49]

The second element of the conduct component
    requires proof of a failure to provide the necessaries of life. That phrase
    is not defined in the
Criminal Code
.
    It is
probably impossible to provide an exhaustive list of the
    things that could constitute the necessaries of life. The meaning and scope of
    the phrase is informed by the purpose of the statutory duty created and
    depends, to some extent, on the specific circumstances. Necessaries of life
    capture those things which are integral to the health and safety of the child.
    Some specifics, like food, are self-evidently necessaries of life. Other
    things, like protection of children from physical harm, are also necessaries of
    life, but their meaning is situation specific. A necessary is something which,
    if not provided by the parent, will result in harm to the childs health or
    safety. Protection of a child from harm is itself a necessary of life:
R.
    v. Popen
(1981), 60 C.C.C. (2d) 232 (Ont. C.A.), at p. 240;
R. v.
    Peterson
(2005), 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 34, leave to
    appeal refused, [2005] S.C.C.A. No. 539;
S.J.
, at paras. 50-51.

[50]

Defining the phrase necessaries of life by
    reference to those things necessary to protect a child from harm to the childs
    health or safety must include protection from
risk of that harm
if the
    sections protective purpose is to be served. A reading of the phrase
    necessaries of life that triggered the obligation to provide necessaries only
    after harm had occurred to the child, would neuter much of the protective
    purpose of the duty created by s. 215(1)(a). On this view, a parents duty to protect
    the child from harm would arise only after the parents failure to act had
    caused harm to the child. The protection would come too late for the child.

[51]

The duty to protect, which underlies the duty to
    provide the necessaries of life, does not demand that a parent protect a child
    from risk of all harms, no matter how minor or speculative. The harm in
    question must be reasonably foreseeable in the circumstances. One cannot
    meaningfully talk of a duty to protect from a harm in the absence of any
    reasonable basis to conclude there is at least a risk of that harm. The harm
    must also relate to the childs ongoing health and safety, and not merely the
    childs comfort or wellbeing. The duty imposed by s. 215(1)(a) is not to be the
    ideal parent. If the foreseeable harm to the child is minor and transitory, a
    failure to protect against that harm will not constitute a failure to provide
    the necessaries of life.

[52]

The third element of the conduct component of s.
    215(2)(a)(i) requires that the Crown demonstrate that the child was in destitute
    or necessitous circumstances when the parent failed to provide protection from
    harm. The words destitute or necessitous must mean more than a child who has
    not been provided with the necessaries of life. Otherwise, the requirement that
    the child be in destitute or necessitous circumstances would add nothing. The
    offence would consist solely of failing to provide the necessaries of life. On
    the language of s. 215, a parents failure to provide the necessaries of life,
    standing alone, is clearly not a crime.

[53]

There is relatively little authority on the
    meaning of the phrase destitute or necessitous circumstances: see
S.J.
,
    at para. 56. Both words refer to the childs condition when the parent fails in
    the duty to provide the necessaries of life. Both words refer to a child who is
    in need of the necessary that was not provided by the parent. The childs need is
    assessed by the impact of the failure to provide that necessary on the childs health
    and safety. If the failure to provide the alleged necessary harms the childs
    health or safety, or puts the childs health or safety at risk, it can be said the
    child is in need of protection from that harm, and therefore in destitute or necessitous
    circumstances: see
S.J.
, at para. 64.

[54]

I accept there is an overlap in subsection (i)
    between the definition of necessaries of life and the condition of being in
    destitute or necessitous circumstances. This overlap makes it somewhat
    difficult to parse out the separate elements of the conduct prohibited by
    subsection (i). However, given that neither offence in s. 215(2) makes it a
    crime to fail to provide the necessaries of life without more, the duty of the
    parent to provide the necessaries of life must be addressed separately from the
    further requirement that the child be in destitute or necessitous
    circumstances.

[55]

Even though the two elements must be considered
    separately, I would think that, in most cases, a child who is not provided with
    a necessary of life will be in necessitous circumstances. There may, however,
    be situations in which a parent has failed to provide a necessary, but that failure
    has not resulted in the child being harmed or facing the risk of harm. For
    example, a parent may fail to provide a child with food over several days.
    However, the child may be old enough, and have sufficient resources and
    independence, to attend to her own food needs. In those circumstances, while the
    parent has failed to provide a necessary of life, the child is not harmed or at
    risk of harm as a consequence of that failure. Consequently, the child is not in
    destitute or necessitous circumstances.
[2]

[56]

It is not clear to me how the SCAJ defined necessitous
    circumstances. Parts of her reasons (paras. 41-45) suggest that the SCAJ moved
    directly from a determination that J. had not been provided with the
    necessaries of life to a further finding that she was in necessitous
    circumstances. As outlined above, this approach effectively creates the offence
    of failing to provide the necessaries of life.

[57]

I am also satisfied that the SCAJ misinterpreted
    this courts judgment in
S.J.
At para. 64, Pepall J.A. said:

Section 215(2)(a)(i) addresses the situation
    in which the parents failure to perform their duties under s. 215(1)(a) puts
    the child to whom the duty is owed at risk of harm because of the childs dire
    circumstances (destitute or necessitous).

[58]

The SCAJ described the above passage as
    referable to the purpose of the offence creating provisions in s. 215(2).
    With respect, in this part of her reasons, Pepall J.A. was identifying the
    elements of the two offences and differentiating between the elements required
    by each offence. Her description of necessitous circumstances, as referable
    to a child who was at risk of harm, was a description of the essential
    element of the offence under subsection (i), which differentiated that offence
    from the offence under subsection (ii). The SCAJ was obliged to accept and
    apply the interpretation of the elements of the offence created by subsection
    (i), provided by Pepall J.A.

[59]

The SCAJ also rejected the submission that risk
    of harm was implicit in the requirement of necessitous circumstances because,
    in her view, that interpretation would make s. 215(2)(a)(i) somewhat
    redundant: Reasons, at para. 39. The SCAJ viewed the requirement that the
    Crown prove risk of harm to the child under subsection (i) as being very
    similar to the requirement in subsection (ii) that the Crown prove one of the three
    consequences identified in that provision.

[60]

I cannot agree. The offence created by
    subsection (ii) speaks to specific identified consequences to the child. Those
    consequences are all potentially different from, and more serious than, the
    risk to the childs health or safety required to show necessitous
    circumstances. I see no difficulty distinguishing between the two offences.

[61]

The SCAJ also rejected the trial judges
    interpretation of necessitous circumstances, in part, because she read the
    trial judge as requiring that the Crown prove the circumstances were extremely
    serious before the child could be said to be in necessitous circumstances:
    Reasons, at paras. 32-35. With respect, the SCAJ misread the trial judges
    reasons. He rejected an interpretation of serious harm in favour of one that
    would require the Crown to prove some risk of harm: Reasons, at paras. 49-55. The
    SCAJs misreading of the trial judges reasons may explain why the SCAJ saw the
    trial judges interpretation as creating a significant overlap or redundancy in
    the two offences created by s. 215(2).

[62]

In addition to the conduct component (
actus
    reus
) of the offence, the Crown is also required to prove a fault
    component (
mens rea
). The Supreme Court of Canada has fashioned a constitutionally-compliant
    level of objective conduct-based fault premised on a comparison, using the marked
    departure metric, between the accuseds conduct and the conduct of a reasonably
    prudent parent.

[63]

The approach to fault finding under s. 215(2)(a)
    is set out by Lamer C.J. in
R. v. Naglik
, [1993] 3 S.C.R. 122, at p.
    143. That case involved a charge under s. 215(2)(a)(ii). The Chief Justice
    described the fault component in these terms:

Section 215(2)(a)(ii) punishes a marked
    departure from the conduct of a reasonably prudent parent in circumstances where
    it was objectively foreseeable that the failure to provide the necessaries of
    life would lead to a risk of danger to the life, or a risk of permanent
    endangerment to health, of the child.

[64]

Adapting the language of Lamer C.J. to the
    offence created by s. 215(2)(a)(i), the fault component consists of conduct
    which shows a marked departure from the conduct of a reasonably prudent parent in
    circumstances in which it was objectively foreseeable the child was in
    necessitous circumstances. That is, circumstances in which the childs health
    or safety were at risk and the child was in need of protection. The requirement
    that the Crown prove, as part of the harm element, that it was reasonably
    foreseeable to a prudent parent that the child was in need of protection,
    dictates that there must be some foreseeable risk of harm. Foreseeable risk of
    harm is, therefore, integral to the fault requirement for the offences created
    by s. 215(2)(a).

[65]

In summary, risk of harm to the childs health
    or safety informs both the scope of the duty to provide the necessaries of life
    in a given circumstance, and the childs need for those necessaries.
    Furthermore, the objective fault requirement inevitably leads to a risk
    assessment on the way to determining whether the accused conduct constituted a
    marked departure from the conduct of a reasonably prudent parent in the same circumstances.

(b)

Did the trial judge err in refusing to take
    judicial notice of the risk posed to J.s health and safety?

[66]

The Crown chose not to lead any evidence, expert
    or otherwise, about the risk posed to J.s health and safety by her living
    conditions. Instead, the Crown asked the judge to take judicial notice that the
    conditions posed a risk to J.s health and safety. The trial judge was prepared
    to take judicial notice that bacteria from human waste caused disease. The
    trial judge was not, however, prepared to go any further. Specifically, he was
    not prepared to quantify the risk of disease or take judicial notice that the
    risk of harm to J., as a result of the conditions in the apartment, was beyond
de minimis
: Reasons, para. 58.

[67]

The trial judge referred to the leading
    authorities on judicial notice. He correctly pointed out that taking judicial
    notice was ultimately an exercise in the discretion of the trial judge. He also
    observed that trial judges should be less inclined to take judicial notice of
    adjudicative facts at the centre of the dispute. The nature of the risk, if
    any, posed to J.s health and safety by her living conditions was at the very
    heart of the factual dispute in this trial.

[68]

I share the trial judges surprise that the
    Crown did not lead expert evidence about specific health threats faced by J. as
    a consequence of her living conditions. I also acknowledge this court owes
    deference to the trial judges conclusion that he would not resort to judicial
    notice. The trial judges decision to not take judicial notice is not, however,
    beyond appellate review.

[69]

With respect, I think the trial judge took an
    unreasonably narrow view of the application of judicial notice in this case. He
    did so by focusing individually on factors relevant to J.s living conditions.
    The question was not whether he could take judicial notice that the presence of
    feces of a certain age posed a risk to J.s health, the question was whether
    the totality of the conditions described posed a risk. The trial judges focus
    on individual items referenced in the description of J.s living conditions led
    him to fail to consider whether he could take judicial notice of a risk to J.s
    health posed by the overall conditions.

[70]

Second, the trial judge considered whether to
    take judicial notice in the abstract, rather than by contextualizing that
    question, having regard to certain unchallenged facts. There were at least
    three features of the evidence that the trial judge should have specifically
    factored into his determination of the extent to which he could take judicial
    notice of the risk to J.s health posed by her living conditions.

[71]

First, and I think most importantly, J. was four
    years old. The trial judge should have taken judicial notice that a young child,
    like J., is much more susceptible to bacteria-borne diseases than is an adult,
    not only for physiological reasons, but because a four-year-old child is ill-equipped,
    emotionally and intellectually, to take any steps to reduce the risks posed by
    those conditions.

[72]

Second, J. was not exposed to the unsanitary
    conditions momentarily or intermittently. J. lived in these conditions for at
    least 11 days. Nor does the evidence suggest, that but for the arrival of the
    police on another matter, anything would have changed. There is no reason to
    think J. would not have continued to live in these conditions. In considering
    whether to take judicial notice, the trial judge should have taken into account
    the length and nature of J.s exposure to the bacteria-infected conditions.

[73]

Third, there was unchallenged evidence that,
    while J. was in her filthy room, she would smear her hands with feces and rub
    them on the wall. She also ate in her room. The trial judge should have taken
    into account, when deciding whether to take judicial notice, the nature of the
    activities engaged in by J. and whether those activities substantially increased
    the risks associated with J.s living conditions.

[74]

I am satisfied that had the trial judge considered
    the cumulative effect of the conditions in J.s room, and had the trial judge
    contextualized his judicial notice assessment by reference to J.s age, the
    length and nature of her exposure to the conditions, and the activities in
    which she was engaged while in those conditions, he would inevitably have taken
    judicial notice that J.s personal hygiene and her living conditions posed a
    real risk to her health.

(c)

Will psychological harm suffice under s.
    225(2)(a)(i)?

[75]

It is not necessary to decide this question to
    resolve this appeal. Nor do I think the question should be decided on this
    record. There is virtually no evidence that could connect any psychological
    difficulty J. might have with her living conditions at the relevant time. The psychologist
    who saw J. did not draw any such connection.

(d)

Could the appellants poverty provide a defence?

[76]

Both appellants suggest that their poverty had
    something to do with their culpability. The appellants were poor. However,
    there was no evidence suggesting the appellants poverty prevented them from
    providing the necessaries of life in issue here.

Conclusion

[77]

I would dismiss the appeals. I would remit the
    matter to the trial court for sentencing.

Released: February 4, 2022 DD

Doherty
    J.A.

I
    agree. G.T. Trotter J.A.

I
    agree Thorburn J.A.

[1]
The SCAJ ordered a new trial on the confinement charge as the Crown
    did not seek a conviction on that charge. The Crown also indicated that if a
    conviction was entered on the failure to provide necessaries charge, it would
    not proceed with the re-trial on the unlawful confinement charge.

[2]

Section 215(4)(d) creates an exception to the requirement
    that the Crown prove the child was necessitous. Even if the child is being
    provided with necessaries by another person, the parent will still be
    convicted. While s. 215(4)(d) eliminates many of the situations in which a
    child would not be necessitous, even though not provided with the necessaries
    of life by their parents, the existence of the exception does confirm, to some
    extent, the interpretation of the phrase destitute or necessitous circumstance
    advanced above, otherwise there would be no need for the exception.