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information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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the victim shall not be published in any document or broadcast or transmitted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.L.,
2020 ONCA 258

DATE: 20200416

DOCKET: C66746

Hoy A.C.J.O., Paciocco and
Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.L.

Appellant

Matthew B. Day, for the appellant

Lisa Joyal, for the respondent

Heard: March 9, 2020

On appeal from the conviction entered on
October 19, 2018 by Justice Julianne A. Parfett of the Superior Court of
Justice, sitting with a jury.

Paciocco J.A.:

OVERVIEW

[1]

In the fall of 2013, the complainant visited C.L.
at his home. She alleges that he sexually assaulted her. He says that they
engaged in consensual sex.

[2]

The complainant ultimately gave a statement to
the police, and C.L. was eventually charged with sexual assault, contrary to s.
271 of the
Criminal Code
, R.S.C., 1985, c. C-46
.
He was found
guilty after trial by a jury. C.L. now appeals that conviction. He raises
several grounds of appeal.

[3]

One of C.L.s grounds of appeal relates to the
trial judges decision to modify the reasonable doubt portion of her charge to
the jury relating to
R. v. W.(D.)
, [1991] 1 S.C.R. 742. This was done
by the trial judge

in an apparent effort to incorporate an instruction
that would reflect this courts recognition in
R. v. J.J.R.D.
(2006),
215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No.
69, that, despite the absence of obvious flaws in the evidence of the accused,
the law permits conviction based on acceptance beyond a reasonable doubt in the
truth of conflicting credible evidence.

[4]

For the reasons that follow, I would find, as
C.L. contends, that the trial judge erred in making this modification. On this
basis I would allow the appeal, quash the conviction, and order a retrial.

THE MATERIAL FACTS

[5]

C.L. met the complainant through her brother,
who was C.L.s friend. C.L. also periodically supplied marijuana to both of
them. He found the complainant to be beautiful and told her so, but they were
not in a relationship.

[6]

In the fall of 2013, when C.L. was 20 years of
age, the 17-year-old complainant arranged to meet C.L. to obtain marijuana. She
took the bus to the bus stop near his home and met C.L. there. They proceeded
to the home that he shared with roommates and went to his bedroom to complete
the marijuana transaction.

[7]

At some point C.L. and the complainant began to
play chess, at his invitation. The complainant claims that after some time
passed, C.L. made a sexual invitation to her that she described as
disgusting. She had been sitting on a shelf near the closet but stood up. He
became really, really angry, pushed her down on the bed and pushed himself on
top of her. She said no and tried unsuccessfully to push him away. Despite
her telling him to stop, he penetrated her with his penis, and he licked her
vagina against her will. After the assault he tried to walk her to the bus,
ultimately calling a taxi for her and paying the fare.

[8]

C.L.s account is diametrically opposed. He
admits he was romantically interested in the complainant, and he believed that
she was interested in him. He claims that after playing chess for some time he
moved to the bed. He told the complainant that she was special and asked her to
lie down with him. When he laid down, she joined him. He asked her if he could
kiss her and she agreed. They kissed for some time before he asked if he could
perform oral sex on her. She agreed and indicated pleasure while it was
happening. She declined his invitation that she performs oral sex on him, but
agreed to intercourse after instructing him not to ejaculate inside of her.
They had sex and he wore a condom. Again, she signalled her pleasure. At no
time did she tell him to stop but was 100 percent a willing participant in
all that had happened. He claims he walked her to the bus stop, but after
discovering there were no more buses he secured and paid for a taxi to take her
home. He says that he had not been drinking and had not taken drugs that
evening.

[9]

The complainant and C.L. agree that they
exchanged texts in the following day or days but disagree on the messages sent.
The complainant describes C.L. attempting to meet to apologize to her for the
sexual assault. He contends that he wrote the complainant to let her know that
he was not interested in a relationship and that he wanted to apologize if she
felt misled about that. Neither party preserved the messages.

[10]

C.L. testified at his trial that in the
following month he received a threatening call from a person he believed to be
the complainants boyfriend. C.L. says that, in response, he taunted the
boyfriend by bragging about having had sex with the complainant. He said he
then received a message from the complainant claiming she had not consented.

[11]

Subsequently, during an argument with her mother
that included insults directed at her friends, the complainant told her mother
that C.L. had sexually assaulted her. At some point her brother was also told. The
brother believes that this conversation occurred roughly two or three months
after the alleged event.

[12]

During a November 6, 2013, Facebook exchange
with C.L. about an unrelated topic, the complainants brother evidently became
annoyed with something C.L. messaged. The brother responded, why the fuck do
you bring this up, you try and get with my sister in the worst way possible,
now this, dont even bother with me. C.L. replied, dude she consented and I
was drunk it takes two to tango bro. C.L. testified that he made up the part
about being drunk to downplay his responsibility for sleeping with his friends
sister, but the rest was true.

[13]

The complainants allegation did not come to the
attention of the police until January 19, 2014, when the complainants mother
called the police after another argument with the complainant. The
complainants mother reported the allegation. This led to the complainant submitting
a police statement, after several drafts.

[14]

Nothing happened with the allegation until January
12, 2016, when the complainant was arrested for stealing money from a seasonal gift-wrapping
charity where she had volunteered. Before she was interviewed on videotape about
the theft [the theft investigation interview] she mentioned the sexual
assault allegation to Det. Kit, who was investigating the theft. Det. Kit
brought up the sexual assault allegation at the end of the theft investigation interview
after telling the complainant that the theft charge would be diverted. The
videotape of the theft investigation interview shows the complainant crying
near the end of that interview.

[15]

As the result of this further complaint,
arrangements were made for the complainant to give a videotaped statement in
accordance with s. 715.1 of the
Criminal Code
. This statement was
provided on February 4, 2016. It captured the complainants account, outlined
above, and C.L. was charged with sexual assault.

[16]

C.L. was tried by jury in October of 2018. The
complainant testified, adopting the s. 715.1 videotaped statement as part of
her evidence, and she was cross-examined. She was confronted with
inconsistencies between her trial testimony and earlier versions of events she
had given, including about: whether she had been to C.L.s apartment before;
whether C.L. said that the marijuana transaction would take place at the bus
stop; whether the marijuana transaction occurred before or after the alleged
sexual assault; how she ended up on the bed; and whether C.L. had invited her
back after the alleged sexual assault. Defence counsel took the position that
in each case, the change in her evidence at trial made C.L. look as though he
was an unwanted suitor, whereas the earlier versions were consistent with
C.L.s testimony.

[17]

During her examination-in-chief the complainant
had been asked about her theft from the charity. She testified that when
interviewed by the police about the theft she wanted to be straight up and
honest and therefore admitted the theft, which she said was for bus fare. Despite
objections, the trial judge ultimately allowed the videotape of the theft
investigation interview to be played in full. Defence counsel took the position
that the portion of the videotape relating to the theft allegation showed that,
contrary to her testimony, instead of accepting responsibility for the theft,
the complainant denied it until she was cornered. He also took the position
that the complainants statement during the preliminary inquiry that she told
Det. Kit before the interview that the theft was a cry for help made no sense
given that she could be seen denying the theft immediately after that purported
conversation. The Crown took the position that the balance of the videotape,
which he was permitted to show during the complainants re-examination,
supported the sexual assault allegation by depicting the complainants distraught
demeanour when the topic of the alleged sexual assault was raised.

[18]

Det. Lorentz testified about records extracted
from the complainants cellphone. No deleted text messages between C.L. and the
complainant were retrieved. The extraction report confirmed four unanswered
phone calls from C.L.s phone to the complainants phone, date-stamped March 5,
2014, months after the alleged assault. There was no way to independently
confirm the accuracy of the date-stamps. Only C.L. was asked about these phone
calls. He said he had a drug customer with the same first name as the
complainant and both women were listed in his cellphone by that name. He was
trying to contact his customer, not the complainant. The Crowns position was
that the after-the-fact failure of the complainant to answer these phone calls
was consistent with her testimony that she did not want anything to do with
C.L. because of the sexual assault.

[19]

The complainants brother testified about the
Facebook exchange. The Crown then closed its case.

[20]

C.L. testified in his defence, giving the exculpatory
version described above.

[21]

During the charge to the jury, at the invitation
of the Crown, the trial judge modified the standard
W.(D.)
jury
direction, as described below.

[22]

The jury returned with a verdict of guilty after
close to two days of deliberations.

ISSUES

[23]

C.L. raises several grounds of appeal relating
to the trial judges decision to permit the Crown to play, during the
complainants re-examination, the portion of the videotape of the theft
investigation interview showing the complainant reacting to Det. Kits mention
of the sexual assault allegation. C.L. also contends that rhetorical questions
posed by the Crown in its closing address rendered the trial unfair, and he
maintains that the verdict was unreasonable.

[24]

With the exception of the unreasonable verdict
challenge, it is not necessary to consider these grounds of appeal. I would
allow the appeal on the remaining ground of appeal, that the trial judge erred
by incorporating a
J.J.R.D.
instruction into her jury direction
relating to the application of the reasonable doubt standard to the evaluation
of credibility. Since the appropriate remedy for this ground of appeal is a
retrial, I must also address the unreasonable verdict challenge, for if this
ground of appeal were to succeed, the appropriate remedy would be an acquittal.
As I will explain, I would not find the conviction to be unreasonable. I would
therefore order a retrial.

ANALYSIS

A.

THE
J.J.R.D.
INSTRUCTION

[25]

The
W.(D.)
jury direction is intended
to explain what reasonable doubt means in the context of evaluating conflicting
testimonial accounts:
R. v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152,
at para. 9. That direction, set out in
W.(D.)
, at p. 758, provides:

First, if you believe the evidence of the
accused, obviously you must acquit.

Secondly, if you do not believe the testimony
of the accused but you are left in a reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by
the evidence of the accused, you must ask yourself whether, on the basis of the
evidence you do accept, you are convinced beyond a reasonable doubt by the
evidence of the guilt of the accused.

[26]

This formula is not a magic incantation that
must be slavishly parroted in a jury direction:
R. v. S. (W.D.)
,
[1994] 3 S.C.R. 521 at 533;
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R.
5, at para. 7. However, the
W.(D.)
direction provided to a jury must
be sufficiently clear to ensure that the jury is not under any misapprehension
as to the correct standard of proof and how it applies to credibility issues:
W.(D.)
,
at pp. 757-58.

[27]

It is instructive to note that the
W.(D.)
formula seeks to ensure that the correct standard of proof is applied to
credibility issues by describing the three general states of belief a trier of
fact may arrive at after evaluating credibility and reliability in a case where
there is evidence inconsistent with guilt, and directing the trier of fact to
the outcomes that follow from each of those three general states of belief. In
R.
v. Challice
(1979), 45 C.C.C. (2d) 546 (Ont. C.A.), a leading decision
prior to
R. v. W.(D.)
, Morden J.A. described the three alternative
states of belief relating to the exculpatory evidence as total acceptance,
total rejection, or something in between: at p. 557. The first
W.(D.)
alternative describes total belief; the last, total rejection; and the middle
alternative being the something in between where the trier of fact cannot decide
whether to believe or disbelieve the exculpatory evidence.

[28]

The trial judge modified the
W.(D.)
jury instruction that she gave by offering five propositions, which I will
number 1-5 for convenience:

1.

If you believe [C.L.]s evidence that he did not
commit the offence charged, you must find him not guilty.

2.

Even if you do not believe [C.L.]s evidence
that he did not commit the offence, if it leaves you with a reasonable doubt
about his guilt, or, about an essential element of the offence charged, you
must find him not guilty.

3.

When you assess the evidence of [C.L.], you
should not view it in a vacuum. You may conclude that you reject [C.L.]s
evidence even though you consider that on its own it does not contain any
obvious flaws. You may reject [C.L.]s evidence based on a considered and
reasonable acceptance beyond a reasonable doubt of the truth of conflicting
credible evidence.

4.

If, after a careful consideration of all the
evidence, you are unable to decide whom to believe, you must find [C.L.] not
guilty because Crown counsel would have failed to prove [C.L.]s guilt beyond a
reasonable doubt.

5.

Even if [C.L.]s evidence does not leave you
with a reasonable doubt of his guilt, or, about an essential element of the
offence charged, you may convict him only if the rest of the evidence that you
do accept proves his guilt beyond a reasonable doubt.

[29]

C.L. does not take issue with propositions 1, 2,
4, or 5. He argues, however, that the trial judge erred in adding proposition
3, what he refers to as the
J.J.R.D.
instruction. Although
J.J.R.D.
was not a jury instruction case, this reference is apt because it is
evident that proposition 3 was adapted from the following passage from this
courts decision in
J.J.R.D.
at para. 53, where Doherty J.A. said:

The trial judges analysis of the evidence
demonstrates the route he took to his verdict and permits effective appellate review.
The trial judge rejected totally the appellants denial because stacked beside
A.D.s evidence and the evidence concerning the diary, the appellants
evidence, despite the absence of any obvious flaws in it, did not leave the
trial judge with a reasonable doubt.
An outright rejection of an accuseds
evidence based on a considered and reasoned acceptance beyond a reasonable
doubt of the truth of conflicting credible evidence
is as much an
explanation for the rejection of an accuseds evidence as is a rejection based
on a problem identified the way the accused testified or the substance of the
accuseds evidence. [Emphasis added.]

[30]

I agree that the trial judge committed an error
in proposition 3 of her
W.(D.)
direction. I accept the Crown
submission that
J.J.R.D.
endorses the proposition that a proper conviction
can be arrived at even where exculpatory testimony has no obvious flaws if the
Crown mounts a strong prosecution:
R. v. O.M.
, 2014 ONCA 503, 313
C.C.C. (3d) 5, at para. 40. In such a case a trier of fact may appropriately
find that the incriminating evidence is so compelling that the only appropriate
outcome is to reject the exculpatory evidence beyond a reasonable doubt and
find guilt beyond a reasonable doubt. There may be exceptional cases where it
is appropriate for a trial judge to explain this avenue of conviction to the
jury. We need not decide whether this is so since the direction the trial judge
provided in this case was in error, for the following reasons.

[31]

First, and most plainly, the trial judge
misquoted the relevant extract from
J.J.R.D.
in a way that confuses
the standard of proof beyond a reasonable doubt. Instead of instructing the
jury that they could reject C.L.s evidence based on a considered and
reasoned
acceptance beyond a reasonable doubt of the
truth of the conflicting credible evidence she said they could do so based on
a considered and
reasonable
acceptance beyond a
reasonable doubt of the truth of conflicting credible evidence (emphasis added).
The first use of the word reasonable in that direction has meaning only if it
is understood to be modifying the kind of reasonable doubt that will suffice
for a conviction. This direction could well have been understood by a juror to
be authorizing C.L.s conviction if acceptance beyond a reasonable doubt of the
truth of conflicting credible evidence is a
reasonable
conclusion. This is not consistent with the law. The burden of proof in a
criminal jury trial requires that each juror must be convinced, subjectively, of
the guilt of the accused beyond a reasonable doubt. Based on this direction a
hold-out juror could mistakenly choose to convict because the decision of other
jurors to do so, while not agreed with, is reasonable. This was a misdirection on
a crucial matter.

[32]

Second, and more broadly, the considered
and reasoned acceptance language of
J.J.R.D.
has no place in a
W.(D.)
jury direction. As the totality of the passage quoted above reveals,
J.J.R.D.
was a sufficiency of reasons case. It was not a jury instruction case, nor
even a case about the content of the
W.(D.)
formula. The issue was
whether the reasons given by a trial judge, sitting alone, were sufficient to
permit effective appellate review: see
J.J.R.D.
, at paras. 1-2. That is
why Doherty J.A. describes a considered and reasoned acceptance  of the truth
of conflicting credible evidence as an
explanation
for the rejection of an accuseds evidence (emphasis added). The case is about
whether the trial judge explained the conviction by offering a considered and
reasoned basis: see
R. v. Slatter
, 2019 ONCA 807, 148 O.R. (3d) 81, at
para. 84, leave to appeal to S.C.C. requested, [2019] S.C.C.A. No. 368;
R.
v. R.D.
, 2016 ONCA 574, 342 C.C.C. (3d) 236, at paras. 18-19. It does not
purport to offer a formula for overcoming facially unassailable exculpatory
evidence.

[33]

Put otherwise, the prerequisite terms,
considered and reasoned, were chosen because
J.J.R.D.
was about the
sufficiency of reasons. These terms are meaningful in a sufficiency of reasons
case. They direct
appellate courts
to ask what the
trial judges reasons for decision reveal about the basis for conviction, and whether
those reasons provide a pathway to conviction by showing that a decision to
convict without identifying problems with the exculpatory evidence was based on
a considered and reasoned acceptance of the truth of conflicting credible
evidence beyond a reasonable doubt. In contrast, those same terms, considered
and reasoned, offer no guidance to a trier of fact about when it is
appropriate to convict in the face of exculpatory evidence that has no obvious
flaws. Since every decision a trier of fact is to reach must be considered and
reasoned, telling the trier of fact that it may reject exculpatory evidence beyond
a reasonable doubt based on considered and reasoned acceptance of conflicting evidence
adds nothing. Indeed, doing so in a jury trial runs the risk of planting the
suggestion that
this
determination must be
considered and reasoned, whereas the other
W.(D.)
conclusions, less
so.

[34]

Simply put, the considered and reasoned language
in
J.J.R.D.
has nothing to do with a
W.(D.)
direction, adds
nothing of use to a
W.(D.)
direction, and may even be misleading.

[35]

Third, I agree with C.L. that inserting
paragraph 3 in the
W.(D.)
direction as the trial judge did in this
case resulted in an uneven charge. As I have stressed, the
W.(D.)
formula
functions by instructing jurors on the implications of the alternative possible
conclusions that can arise from credibility evaluation where there is
exculpatory evidence and conflicting inculpatory evidence. Proposition 3 does not
do so. It does not describe a conclusion and its consequences, but rather purports
to describe a mode of reasoning. Indeed, it describes a mode of reasoning that
will result in conviction. Expressly inserting only one mode of reasoning into
the
W.(D.)
charge can only serve to emphasize its importance over
other competing modes of reasoning, which is not appropriate, particularly not
when the only mode of reasoning inserted is inculpatory.

[36]

Even the place where proposition 3 was inserted,
immediately after propositions 1 and 2, adds to the unevenness of the charge.
Proposition 1 and 2 describe the two circumstances in which C.L.s testimony could
lead to an acquittal. To then immediately describe a way in which C.L.s testimony
can be overcome even if it is without obvious problems could well diminish the
importance of propositions 1 and 2 in the eyes of a juror.

[37]

Fourth, I accept C.L.s concern that
featuring a mode of reasoning that focuses on the comparative value of the
conflicting evidence in a he said/she said case increases the risk that
jurors might engage in credibility contest reasoning. This is perhaps the key
mischief that the
W.(D.)
decision intended to ameliorate, the very
risk that materialised in that case and that featured in the reasoning in
Challice
,
at pp. 554-57. I appreciate that jurors are to consider the whole of the
charge, and jurors faithful to propositions 1, 2, 4, and 5 would not simply
decide which version of events to prefer. For that reason, I would not find the
charge to be in error on this basis alone. Still, the increased risk of
confusion that could arise by featuring a contrast between the inculpatory and
exculpatory evidence in a he said/she said case underscores further why a such
an instruction should not be inserted into a
W.(D.)
charge.

[38]

Finally, although there may be exceptional cases
where it is appropriate to alert jurors that they may reject defence evidence outright
and find guilt beyond a reasonable doubt based on the strength of the Crown
case despite finding no identifiable material flaws in that defence evidence, this
is not one of them. Given the problems with the complainants evidence and the
absence of supporting evidence, there is no air of reality to the proposition
that a jury could fairly convict C.L., even if unable to identify any material flaws
in his evidence. A jury direction should relate to the needs of the specific
case. This case did not call for such a direction.

B.

THE REASONABLENESS OF THE VERDICT

[39]

C.L. argues that the complainants testimony was
so problematic that a finding of guilt, in the face of C.L.s testimony, was
unreasonable. I am not persuaded that the verdict was unreasonable. The
unreasonable verdict standard is high. In
R. v. Charlton
, 2019 ONCA
400, 146 O.R. (3d) 353, at para. 61, this court recently re-iterated the relevant
standard in credibility cases:

In evaluating the reasonableness of the jurys
verdict in a case that turns on findings of credibility, the reviewing court
must ask whether the jurys verdict is supportable on any reasonable view of
the evidence:
R. v. W.H.
2013 SCC 22, [2013] 2 S.C.R. 180, at para. 2.
The reviewing court must remain mindful that the trier of fact is best-placed
to assess the significance of any inconsistencies in the witnesses testimony,
and their motive to lie:
R. v. François
, [1994] 2 S.C.R. 827, at pp.
835-837;
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 4,
63.

[40]

I have already expressed my view that this would
not have been a proper case for an outright rejection of C.L.s evidence based
solely on the complainants testimony, had the jury found no material flaws in
C.L.s testimony. There are obvious risks in rejecting exculpatory evidence
where that evidence is immune from cogent criticism. One would think that the
credibility of inculpatory evidence must be particularly impressive before that
evidence can be credited beyond a reasonable doubt in the face of otherwise
unassailable exculpatory evidence. As I have said, the complainants evidence
was not compelling enough to accomplish this, had the jury taken the view that
it could find no material flaws in C.L.s testimony.

[41]

However, C.L.s testimony was not without
problems of its own. For example, the jury could have taken the view that
C.L.s testimony that he suddenly changed his mind about wanting to have a
relationship with the complainant was implausible, or the jury may have been
troubled by his admitted lie about being drunk when he had sex with the
complainant, or it may have rejected C.L.s claim that the complainants
brother reluctantly agreed that C.L. could date the complainant, which the
brother denied in his evidence. For these and other reasons the jury could
reasonably have taken the view that C.L.s testimony itself was flawed and
should therefore be rejected as incapable of raising a reasonable doubt as to
his guilt. It could also have concluded in the absence of credible exculpatory
evidence that the complainants evidence should be believed beyond a reasonable
doubt, despite its problems. Since a reasonable conviction could have been
fashioned in this way, this ground of appeal must be dismissed.

[42]

Because the verdict was not unreasonable on at
least one reasonable view of the evidence the unreasonable verdict appeal must
be denied.

CONCLUSION

[43]

I would therefore find that the trial judge
erred in proposition 3 of her
W.(D.)
direction to the jury, set aside
C.L.s conviction, and order a new trial.

[44]

As a result of the COVID-19 emergency, the panel
relieved C.L. from the term of his bail that requires him to surrender into
custody prior to this decision being released.

Released: A.H. April 16, 2020

David M. Paciocco J.A.

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

I agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hartling, 2020 ONCA 243

DATE: 20200403

DOCKET: C63569

Benotto, Paciocco and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gordon Hartling

Appellant

Danielle Robitaille, for the appellant

Christopher Webb, for the respondent

Heard: January 16, 2020

On appeal from the conviction entered by
    Justice John Kukurin of the Ontario Court of Justice on August 13, 2014, with
    reasons reported at 2014 ONCJ 769, and the sentence imposed on October 9, 2015.

Benotto J.A.:

[1]

Following an afternoon of heavy drinking with her adult son and
    boyfriend, the complainant was seriously assaulted. She told first responders
    that her son was responsible. The son was charged. The mother testified for the
    Crown that her son attacked her and her boyfriend following an argument. Months
    later the trial resumed. This time the mother testified for the defence. She
    changed her testimony and said that it was her boyfriend  not her son  who
    attacked her.

[2]

The son was convicted of aggravated assault
    against his mother, assault causing bodily harm against the boyfriend and two
    counts of breach of probation. He was given a global sentenced of 30 months in
    custody.

[3]

The son appeals his convictions and sentence. He
    seeks to rely on fresh evidence from an expert in blood spatter patterns to
    support his position that it was not him but the boyfriend who attacked his
    mother. He alleges that the trial judge erred by relying on his mothers
    utterances to the first responders. Further, he submits that he received
    ineffective assistance at trial because his counsel did not retain a blood
    spatter expert, did not pursue his s. 10(b) right to silence nor his s. 11(b)
    rights to a trial and sentence within a reasonable time. He seeks a new trial
    or a reduced sentence to remedy the post-verdict sentencing delay.

[4]

For the reasons that follow, I would dismiss the
    conviction appeal, stay the second breach of probation charge, and allow the
    sentence appeal in part.

FACTS

[5]

On March 8, 2012, the appellant, Gordon Hartling
    was visiting his mother, Sharon Hartling who was at home with her then-boyfriend
    Francis Gill. At the time, the appellant was 41 years old, Ms Hartling was 64
    and Mr. Gill was 62. All three were sitting in the living room drinking several
    bottles of sherry and becoming intoxicated. An argument began and erupted into
    violence.

[6]

Two versions of events unfolded at trial when Ms
    Hartling testified first for the Crown and next for the defence.

Evidence for the Crown

[7]

The Crowns case was supported by the evidence
    Ms Hartling gave when called as a witness by the Crown, and the evidence of Mr.
    Gill. Both testified that an argument between the appellant and Ms Hartling
    focused on whether she showed favouritism to his sister. Ms Hartling said she
    did not want to argue and got up to go to her bedroom. At this point the appellant
    punched her twice in the back of the head, knocking her out. Mr. Gill
    intervened, and the appellant turned on him. The appellant hit and kicked Mr.
    Gill until he fell to the floor. Mr. Gill told Ms Hartling to get help. He was
    then rendered unconscious. When he woke up, he called to Ms Hartling, did not
    see her, so left.

[8]

Meanwhile, Ms Hartling had gone to her bedroom
    ostensibly to call 911. Her next memory is waking up in hospital with numerous
    severe injures. The Crown contended that the appellant continued beating his
    mother in her bedroom, where forensics later identified a great deal of blood
    spatter.

[9]

It is unclear how 911 was contacted but someone
    did call because emergency ambulance responders arrived: two paramedics, two
    firemen and a police officer. One of the firemen recalled seeing the appellant
    walk from Ms Hartlings room to another bedroom. Mr. Gill was not there.

[10]

The first responders found Ms Hartling in her
    bedroom. She was sitting on the bed holding her nose. She was crying, clearly
    intoxicated and bleeding. She, the walls and the bedding were covered in blood.
    They asked what happened. Paramedic Onofrio, the first person to see her, said
    she said that her son hit her several times, initially in the living room then
    when she tried to call for help, and that he continued beating her in the
    bedroom and ripped the phone from her. Fireman Johns testified that he heard
    her say that she could not believe her son did this to her. She repeated that
    statement many times as they tried to get information for a medical history. Sergeant
    Bell, who saw her being taken out of the home on the gurney, asked her what
    happened, and she said that her son beat her up.

[11]

Ms Hartlings injuries were severe. She suffered
    a broken ankle, broken finger, all her left orbital bones were broken into
    small pieces, her nose was fractured in four places and her nose cartilage
    disintegrated. Portions of her skin were displaced. She was in Intensive Care
    at the hospital for over a month. While there she suffered a stroke and
    contracted pneumonia.

[12]

Mr. Gill suffered bruises, sore ribs, shoulder
    injuries, sore jaw and sore leg.

Evidence for the defence

[13]

Several months later, Ms Hartling testified for
    the defence and she recounted a different scenario. This scenario is relied
    upon by the appellant who contends that Mr. Gill and Ms Hartling were the ones
    who started the altercation. Specifically, Ms Hartling confronted Mr. Gill and
    slapped him, and he slapped her back, causing her to fall back on a chrome
    kitchen chair. The chair moved and she fell, further hitting her face on the
    base of the dining room table. The appellant then intervened and had a
    scuffle with Mr. Gill. The appellant punched him and told him to leave. Ms
    Hartling says she then got up and snatched a nail file and was poking at both
    men to get them apart. She said the son noted that she was bleeding, and he
    helped her to her bedroom. She said it was the appellant who called 911 even
    though she did not want the police involved. All the while she said she drifted
    in and out of consciousness. She claimed that it was contact with the chair
    and/or table that caused her injuries.

[14]

The appellant did not testify.

The trial

[15]

The trial in the Ontario Court of Justice was
    plagued with delays.
[1]
Ms Hartling gave the evidence outlined above as part of the Crowns
    case in February 2013. Fifteen months later in May 2014, she testified for the
    defence.

[16]

Between those two dates, in December 2013, the
    trial judge conducted a
voir dire
with respect to the admissibility of
    Ms Hartlings statements to the first responders. In addition, she and Mr. Gill
    separated.

Voir dire

[17]

The trial judge found that Ms Hartlings
    statements to first responders met the criteria for a
res gestae
statement
    because: (1) they were made under ongoing stress of a dramatic event, (2) the
    statement related to the occasion that caused the stress, and (3) there was
    little or no possibility of concoction or fabrication. Specifically, the
    statements were made right after a severe attack, and there was little time for
    her to have thought of a fictitious story, nor was she in a state of mind to do
    so.

[18]

He then considered the principled approach to
    hearsay and determined that admission of the evidence was necessary and
    reliable. First, the trial judge found the evidence necessary because Ms
    Hartling could recall what happened to her. Second, there was threshold
    reliability, based on the following circumstances:

·

statements made while she was still in the
    throes of stressful, extraordinary events;

·

statements which were consistent
inter se
;

·

some statements were unprompted;

·

she had no one with whom to collude at the time;

·

her intoxication level was not so high as to
    nullify or severely discount the believability of her statements;

·

she understood questions and responded
    appropriately.

Expert testimony regarding bloodstains

[19]

The police took photographs of the home. There
    was blood throughout including in the living room, the hallway, the master
    bedroom and the guest bedroom.

[20]

Staff Sergeant Jason Hlady was qualified as a
    bloodstain pattern analysis expert on consent. He had 17 years of experience
    with the OPP and received advanced education and training in the field. He
    provided a basic education to the court regarding bloodstain pattern analysis
    and explained the conclusions he drew from the bloodstain pattern evidence at
    Ms Hartlings home.

[21]

He opined that the there were impact patterns on
    the wall of Ms Hartlings bedroom attributable to at least one strike to
    something that already had blood on it. The stains could also be caused by
    multiple strikes to the same object covered in blood as it remained stationary.
    This impact pattern has a transfer pattern with wispy features indicating
    that hair had come in contact with this area of the wall. After the hair
    contacted the bloody section of the wall a heavy blood stain flowed down over
    this contact pattern. The size, shape and distribution of the bloodstain
    patterns on Ms Hartlings bedroom wall are typical of what Staff Sergeant Hlady
    would see as a result of an assault or a beating. They are caused by a force
    being applied to a blood source already covered in wet blood being struck. The
    patterns on the wall are not consistent with coughing, sneezing, spitting or
    otherwise throwing blood. They do not have the directionality that such
    patterns would display. Their placement on the wall means the beating would
    have occurred at the height of the chair arm or mattress, approximately 16.9
    inches from the floor.

Decision below

[22]

The trial judge found that the Crown had proven
    beyond a reasonable doubt that it was the appellant who inflicted injuries on
    his mother. He rejected the defence theory that the injuries were caused by a
    slap by Mr. Gill and a resulting fall. The trial judge preferred the testimony
    of Mr. Gill and Ms Hartlings Crown evidence. He found that Ms Hartling likely
    changed her story after realizing her son was in serious trouble, and at this
    point, she had broken up with Mr. Gill. Her contention that she sustained her
    injuries by being slapped and falling into a chair and table, were inconsistent
    with the extent of her injuries and with the forensic evidence. There was
    extensive blood in her bedroom, rather than the living room where the chair was
    located. The trial judge also considered her statements to the paramedic and
    found her defence evidence not to be credible.

[23]

He further found that her evidence about
    intervening in the fight between Mr. Gill and the appellant to be incredible.
    During that time, she was sliding in and out of consciousness, bleeding
    profusely, had fractured her ankle and suffered the serious injuries referred
    to above. Her first account accorded with the photographs of the injuries.

[24]

The trial judge found the appellant guilty of
    aggravated assault against Ms Hartling, assault against Mr. Gill, resisting
    arrest and two counts of breach of probation. In his reasons, he stated that it
    was clear that the appellant had been drinking contrary to the terms of
    probation and, therefore, he had breached the prohibition on drinking and the
    requirement of good behaviour.

[25]

Mr. Hartling was sentenced to a 30-month sentence:
    24 months for aggravated assault, six months consecutive for assault causing
    bodily harm, two months concurrent each for resisting arrest and the two breaches
    of probation. Following 8.2 months of pretrial custody, he was sentenced to
    21.8 months of incarceration.

Position of the appellant

[26]

The appellant appeals his conviction and
    sentence. He seeks to admit the fresh evidence of an expert to show that blood
    stains in the bedroom were likely caused by expiration (coughing or sneezing),
    as the hospital records show that Ms Hartling had blood in her airways. He
    submits that the trial judge misapprehended the forensic evidence and erred by
    admitting the statements to the first responders. He argues that he had
    ineffective assistance because trial counsel failed to call an expert to rebut
    the Crowns blood spatter evidence, failed to challenge the admission of a
    statement he made, and failed to inform him of his s. 11(b) rights before and
    after conviction.

[27]

He appeals the sentence on the basis that the trial
    judge erred by failing to give effect to the mitigating factors of the
    appellants alcohol addiction and family history of violence.

ISSUES

[28]

The
    appellant has raised three issues in his principal argument: (i) the trial
    judge misapprehended the forensic evidence; (ii) he erred in admitting the
    statements to the first responders; and (iii) he erred in not applying the
Kienapple
principle to the breach of probation charges.
    In his fresh evidence application, he raises additional issues, namely: (i) the
    fresh evidence of a blood spatter; (ii) breach of his s. 11(b) rights before
    and after conviction; (iii) ineffective assistance of trial counsel because no
    blood analysis expert was called and his s. 10(b) rights were not pursued with
    respect to his statement to Sgt. Bell.

[29]

I
    address the issues in the following order:

1.

Should the fresh evidence be admitted?

2.

Did the trial judge misapprehend the forensic evidence?

3.

Did the trial judge err by admitting the statements to the first
    responders?

4.

Did the trial
    judge err by not applying the
Kienapple
principle to the breach of probation charges?

5.

Did trial
    counsel provide ineffective assistance?

6.

Were the
    appellants s. 11(b) rights violated?

7.

Did the trial judge err in principle by imposing the sentence?

ANALYSIS

(1)

Should the fresh evidence be admitted?

[30]

I
explain
the evidence sought to be admitted, the
    principles to be applied and the application of those principles.

The fresh evidence

[31]

Ms Hartlings testimony for the defence was that
    there had been no assault in the bedroom. The expert testimony at trial was
    that the blood stains on the wall of the bedroom were the result of a beating
    or assault. Staff Sergeant Hlady rejected the suggestion put to him by defence
    counsel that the blood stain on the wall could have come from the expiration of
    the blood during Ms Hartlings coughing or sneezing.

[32]

The appellant seeks to introduce the evidence of
    forensic consultant, Joseph Slemko, who concluded that the stains on the wall
    were consistent with an expiration pattern because of the presence of
    near-misted blood and diluted blood. The perpendicular direction that the
    stains appeared to originate from, he opines, was more consistent with
    expiration than an impact event.

[33]

The appellant submits that this evidence
    undermines the Crowns evidence that the blood on the bedroom walls was caused
    by a beating.

The principles

[34]

An expert must be properly qualified and
    willing to fulfil the duty to the court to provide evidence that is impartial,
    independent and unbiased. In
White Burgess Langille Inman v. Abbott and
    Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 32, the Supreme
    Court noted:

Underlying the various
    formulations of the duty are three related concepts: impartiality, independence
    and absence of bias. The experts opinion must be impartial in the sense that
    it reflects an objective assessment of the questions at hand. It must be
    independent in the sense that it is the product of the experts independent
    judgment, uninfluenced by who has retained him or her or the outcome of the
    litigation. It must be unbiased in the sense that it does not unfairly favour
    one partys position over another.

[35]

A consideration of the admissibility of fresh
    evidence on appeal begins with
R. v. Palmer
,

[1980] 1 S.C.R. 759. There, at p. 775, the court
    articulated the following principles:

(1) The evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial provided that this general
    principle will not be applied as strictly in a criminal case as in civil cases
.

(2) The evidence must be relevant in the sense that it bears
    upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is
    reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result.

[36]

These criteria have been somewhat refined to a
    three-part inquiry:

(1) Is the evidence admissible under the operative rules of
    evidence;

(2) Is it sufficiently cogent such that it could reasonably
    have affected the verdict;

(3) What is the explanation for the failure to adduce the
    evidence and should the explanation affect admissibility?

(See:
Truscott (Re)
, 2007
    ONCA 575, 226 O.A.C. 200 at para. 92;
R. v. Plein
, 2018 ONCA 748, 365
    C.C.C. (3d) 437, at para. 56; also
R. v. Manasseri
, 2016 ONCA 703, 132
    O.R. (3d) 401, at paras. 205 and 213).

Principles applied

[37]

I consider first the qualifications of Mr.
    Slemko, whether he is an unbiased expert, and whether the proposed testimony is
    sufficiently cogent to have reasonably affected the result.

[38]

Mr. Slemko has not worked as a bloodstain analyst since 1998. Nor
    has he consulted for the police since then. Since 2015 he has been an accident
    reconstructionist in the collision investigation unit of the Edmonton Police
    Service. He received his training during a five-day course in 1994, and another
    course in 1997. He has not taken other substantive courses. He testified that
    he does not get paid for his bloodstain analysis work, so his accountant calls
    it a hobby. He was unfamiliar with the leading text on the subject published in
    2015.

[39]

I also have concerns about his willingness to provide impartial
    evidence to the court. A full reading of his cross-examination discloses an
    unwillingness to fulfil his duty to provide unbiased opinion.
The
    Supreme Court explained in
White Burgess
that
    the acid test [for unbiased expert evidence] is whether the experts opinion
    would not change regardless of which party retained him or her.

[40]

When confronted during cross-examination with journal-article
    examples of expiration events, he conceded that they did not resemble the
    spatter on the bedroom wall but was quick to point out that this divergence did
    not necessarily exclude the possibility of his expiration theory. When asked
    about the precise location of the high velocity particles that would arise from
    sneezing or coughing, he refused to substantiate his position. When asked about
    the apparent absence of mucus blood stains and air bubbles in scene photos, Mr.
    Slemko did not budge in terms of his theory: if theyre not present  its not
    going to change my opinion at all that this is consistent with expirated
    blood. He went on to say about the same issue: I havent been able to see it
    because of the type of photography that was conducted. It may or may not be
    there. It if isnt, that is not going to change my opinion.

[41]

Mr. Slemko later conceded that his use of terminology in the
    report  misted rather than near-misted  was in error, but would not
    concede what seems a logical consequence: that the discrepancy at least
    somewhat weakened his opinion in favour of the expiration theory. In multiple
    instances Mr. Slemko was confronted with the limitations of his analysis  the
    granularity of his examination of scene photos, for example  and chose to
    remain adamant in his opinion.

[42]

Having
    reviewed the cross-examination, it appears that in both substance and tone, Mr.
    Slemkos opinion was one-sided and did not reflect the independent, objective
    analysis required for an expert.

[43]

A combination of
    his lack of qualifications together with lack of independent judgment leads me
    to find his testimony inadmissible. But there is an additional reason: the
    evidence is not sufficiently cogent to have affected the result. The trial
    judge did not base his findings solely on the Crowns expert evidence. He
    explicitly stated that the forensic and photographic evidence do not lead to
    an inevitable conclusion that the son beat the mother. Further, he
    acknowledged that the fact that bleeding occurred in the bedroom does not link
    the son as the perpetrator of an assault on the mother.

[44]

The trial judge rejected Ms Hartlings defence
    evidence in part because, had she in fact started bleeding by the chair in the
    dining room or the living room, there would have been copious amounts of
    blood on the table, in the hallway and into the bedroom. There were not. The
    copious amounts of blood were in the bedroom. These findings are discussed in
    more detail below.

[45]

I would not admit the fresh evidence.

(2)

Did the trial judge misapprehend the forensic evidence?

[46]

The appellant submits that, when the trial judge
    said there was no blood in the dining or living room, he misapprehended
    evidence. The impugned finding relates to his rejection of Ms Hartlings
    testimony that the main cause of her injuries was what happened when she fell
    on the dining room chair and/or table base. The trial judge said:

[
36
]

It is clear from the mothers later testimony as a defence witness
    that she was bleeding after striking the table base. In fact, she said that she
    was bleeding profusely. She claims that her son noted that she was bleeding
    and commented on this when he first realized it. Later, while in the bedroom,
    she says that it was her son who wanted to call 911 because she was still
    bleeding. The mother stated that she was hit only once, a slap by the
    boyfriend. No one else struck her. The only inference to be made from this is
    that the bleeding was caused by her head striking the base of the table or the
    chair.

[
37
]

The forensic evidence does not support this at all. If what the mother
    recounts as a defence witness is true, there should have been
copious amounts of her blood on the base of the table, on the
    floor in the dining room near the table, and down the hallway from the dining
    room area to her bedroom doorway.
There was no report of any blood, much
    less her blood, in any of these locations. There were, however, in the forensic
    and first responders evidence, reports of quite a bit of blood on the mother,
    on her clothing, on her bedroom walls and on bedding in her bedroom. It is
    inconceivable that the mother was bleeding in the dining room or living room
    area with absolutely none of her blood found there. That she was bleeding while
    still there is clear from her own evidence that her son commented to her that
    she was bleeding and that, after noting this, he helped her down the hallway to
    her bedroom. [Emphasis added.]

[47]

The appellant says this is not an accurate
    reflection of the evidence. He points to the photographs showing apparent
    blood spatter on the living room curtains and photos that show something that
    could be blood on the doorframe to the bedroom

[48]

In my view, these photographs are not
    inconsistent with the trial judges findings. They do not show copious amounts
    of blood. All the evidence, including that of Ms Hartling, is that she was
    bleeding profusely. The small amounts of what could be blood on the curtains
    and the doorframe pale by comparison to the bedroom walls and linens that were
    covered in blood. Had her defence evidence been true, there would have been a
    significant amount of blood in the area of the table and chair. There was not.
    Moreover, her testimony that after she hit her head, she witnessed a scuffle
    between her son and Mr. Gill, and tried to poke them with a nail file while
    bleeding profusely, further demonstrated why there would be blood in the area.
    Simply put, the trial judge did not misapprehend the photographic evidence in
    finding that it did not support Ms Hartlings defence evidence.

[49]

In concluding that the appellant was responsible
    for Ms Hartlings injuries the trial judge relied on the evidence of Mr. Gill,
    and the sheer illogic of Ms Hartlings defence evidence.

(3)

Did the trial judge err by admitting the statements to the first
    responders?

[50]

The
    trial judge
admitted
several statements made by Ms Hartling
    to first responders. Paramedic Onofrio was the first person to see her. On
    entering Ms Hartlings bedroom, he saw her sitting on the bed holding her nose.
    Paramedics and firemen described her as crying, intoxicated and covered in
    blood. She had an obvious fracture by her orbital bone and a broken nose.

[51]

They
    asked her
what
happened and who did this to her. Ms
Hartling
replied my son. Hes up here visiting  I cant
    believe he would do this to me. She repeated that statement many times as they
    tried to get information for a medical history.

[52]

She
    went on to say that her son became agitated, aggressive and hit her, initially
    in the living room, then hit her again in the bedroom. As she tried to call for
    help, he ripped the phone away from her.

[53]

As
    Ms Hartling was being wheeled out of her bedroom, Sgt. Bell asked her what
    happened. She said her son did it.

[54]

The
    trial judge admitted these statements into evidence for the truth of their
    contents under the spontaneous utterance (which he also referred to as
res gestae
) exception and, alternatively, under the
    principled approach.

[55]

The
    appellant submits that the trial judge erred in applying the spontaneous
    utterances exception because there was, at the time the statements were made,
    the possibility of concoction or fabrication. Ms Hartling and Mr. Gill could
    have collaborated. Further she was clearly drunk and could have mixed up Mr.
    Gill with her son because she said that her son (not Mr. Gill) had left. The
    appellant also points to the gap in time between the attack on her and the
    statements to the first responders.

[56]

The
    appellant
says
that these same factors also should have
    eliminated the trial judges use of the principled exception to the hearsay
    rule.

[57]

Again,
    I refer to the principles and their application to these facts.

The principles

[58]

I
    begin with
R. v. Khan
(
1988),
    27 O.A.C. 142,
at pp. 207-8:

The test for determining admissibility, as Lord Wilberforce framed
    it in
Ratten v. The Queen
,
supra
at pp. 389-90, is the
    following:

... [T]he test should be not the uncertain one whether the
    making of the statement was in some sense part of the event or transaction.
    This may often be difficult to establish: such external matters as the time
    which elapses between the events and the speaking of the words (or vice versa),
    and differences in location being relevant factors but not, taken by
    themselves, decisive criteria. As regards statements made after the event it
    must be for the judge, by preliminary ruling, to satisfy himself that the
    statement was so clearly made in circumstances of spontaneity or involvement in
    the event that the possibility of concoction can be disregarded.

The rationale for this hearsay exception lies in the
    trustworthiness of the utterance which is regarded as furnished by an
    occurrence of so startling or shocking a nature as to suspend the declarant's
    ability to reflect and fabricate.

[59]

John Henry Wigmore
[2]
suggests that the phrase
res gestae
 which implies
    contemporaneousness is not correct. Rather, the statement that is made in
    circumstances of reliability is admissible because there is no opportunity for
    concoction. Wigmores point is that reliability derives not from
    contemporaneity,
per se
, but from the fact that the declarant is so
    overwhelmed with, or shocked by, the pressure or involvement of the event that the
    declarant would have no real opportunity for the reflection required to concoct
    a story. My colleague has written that rather than describing this as a
res
    gestae
exception the better  and more descriptive  phrase is
    spontaneous statement.
[3]
To be clear, since the sense of pressure or involvement in the
    event will reduce over time, temporal considerations are not immaterial, but
    the focus must be on whether the effects of the pressure or involvement from the
    event are operating at the time the statement is made.

[60]

In
R. v. Nicholas
(2004),

70 O.R. (3d) 1 (Ont.
    C.A.), this court considered a 10-minute gap between the event and the
    utterance. There, a complainant awoke to find someone standing by her bed. The intruder
    repeatedly hit her on the head, covered her face with a pillow and had
    intercourse with her. She made an 11-minute 911 call approximately ten minutes
    after the intruder left. In determining that the statement was admissible, the
    court referred to
R. v. Dakin
(1995), 80 O.A.C. 253. In that case, the
    accused was charged with the murder of two women who died as a result of burns.
    The Crown sought to introduce statements made by one of the women an hour after
    the fire. The court cited
Khan
, at p. 207:

[A] spontaneous statement made under the stress or pressure of
    a dramatic or startling act or event and relating to such an occasion may be
    admissible as an exception to the hearsay rule. The stress or pressure of the
    act or event must be such that the possibility of concoction or deception can
    be safely discounted.
The statement need not be made
    strictly contemporaneous to the occurrence so long as the stress or pressure
    created by it is ongoing and the statement is made before there has been time
    to contrive or misrepresent.
The admissibility of such statements is
    dependent on the possibility of concoction or fabrication. Where the
    spontaneity of the statement is clear and the danger of fabrication is remote,
    the evidence should be received. [Emphasis added]

[61]

Therefore, while a temporal connection to the
    event that triggered the statement is a factor, it is not determinative. The
    admissibility is an issue to be determined by the trial judge.

Principles applied

[62]

The trial judge admitted all the statements made
    to the first responders that were made in Ms Hartlings home while being
    treated and prepared for the ambulance.

[63]

There was no direct evidence of the time between
    the 911 call and the arrival of the first responders. The Hartling home was 15
    minutes from Sault Ste. Marie where the responders originated from. As the
    trial judge said in his ruling:

Although no specific evidence was presented as to the lapse of
    time between the traumatic event (or events) between the son and the mother,
    from the totality of the evidence can be drawn the inference that the time
    interval was not very lengthy. The mother was still bleeding from her mouth and
    from her orbital area. Her highly emotional state, her crying and her repetitive
    exclamations suggest that what had taken place between her son and her was
    relatively recent. Her words
Help me, help me,
suggest a perceived
    danger that was still close at hand, or, at least very recently had been.

[64]

All of the statements satisfy the requirements
    of the spontaneous statement exception. With the exception of the statement to
    Sgt. Bell, they took place in Ms Hartlings bedroom. The statement to Sgt. Bell
    took place in the hallway outside of her bedroom.

[65]

The trial judge found that the statements were
    made under the stress of a dramatic event and she was repeating herself over
    and over. Further, the beating was the trigger for the statements. She was
    emotional and still bleeding when the first responders arrived and spoke to
    her.

[66]

The appellant submits that there was opportunity
    to concoct, because Mr. Gill said that when he awoke he called and looked for
    Ms Hartling. He argues that this would have given Mr. Gill an opportunity to have
    Ms Hartling concoct a story. However, Mr. Gills evidence was that he did not
    see Ms Hartling after he was knocked unconscious. Even in Ms Hartlings defence
    testimony she said that she was in and out of consciousness and barely
    recalls the ambulance arriving. The trial judges ultimate conclusion that she
    was still and very clearly, under the stress and pressure of the assault upon
    her when she made the statements in question refutes the allegation of
    concoction and is entitled to deference.

[67]

The trial judge did not err by admitting
    the statements as spontaneous utterances. I note in any event that he also
    admitted the statements pursuant to the principled approach. In light of my
    conclusion, it is not necessary to discuss this approach.

(4)

Did the trial judge err by not applying the
Kienapple
principle to the breach of probation charges?

[68]

The
    trial judge convicted the appellant on two counts of breach of probation: one
    related to his consumption of alcohol; the other the requirement to keep the
    peace and be of good behaviour. On the first count it was clear that he
    breached his probation by consuming alcohol. But the trial judge said that by
    consuming alcohol he was also not being of good behaviour so he breached that
    condition as well. The trial judge did not rely on any other conduct for the
    second count.

[69]

In
    my view, the second charge should have been stayed because the trial judge
    relied on the same conduct to ground both charges.

[70]

The Crown agrees that the trial judge erred but submits that the
    curative proviso should be applied to the second count because there was other
    conduct that clearly violated the terms of the probation order. I do not agree.
While the appellant committed numerous offences that could
    ground the second breach, I would not apply the proviso. The trial judge
    specifically relied on the consumption of alcohol to ground the second count. I
    am unable to say whether, but for the
Kienapple

error, he would have found the appellant guilty of the second count.
    Nor do I think that, in the circumstances of this case, the interests of
    justice require that the proviso be applied.

(5)

Did trial counsel provide ineffective assistance?

[71]

The appellant alleges that his trial counsel provided ineffective
    assistance by not obtaining an independent bloodstain pattern analysis report.
    He also contends that counsel was ineffective in not challenging the
    constitutionality of the statement he made to Sgt. Bell pursuant to s. 10(b) of
    the
Charter
.
[4]
Specifically, before the appellant was advised of his right to
    counsel
Sgt. Bell noticed blood on his hands. She asked him what
    happened, and he replied: it is what it is.

The principles

[72]

An ineffective assistance of counsel claim has
    two components: performance and prejudice. The appellant must show that (i)
    trial counsels acts or omissions amounted to incompetence, and (ii) a
    miscarriage of justice occurred:
R. v. Prebtani
, 2008 ONCA 735, 243
    O.A.C. 207, at paras. 3-4.

[73]

To establish a claim of ineffective assistance
    of counsel, the appellant must establish:

1.

The facts that underpin the claim;

2.

That counsels representation was inadequate;
    and,

3.

That counsels inadequate representation
    resulted in a miscarriage of justice.

[74]

This test presents a high bar that is not easily
    met:
R. v. Cherrington
, 2018 ONCA 653, at para. 25. As Watt J.A.
    explained, once the first step of the test is established, the analysis turns
    to the third step, or the prejudice component, of whether there was a
    miscarriage of justice. If there was no prejudice, then it is undesirable for
    the court to proceed to the second step, or the performance component, of the
    test:
R. v. Girn
, 2019 ONCA 202, 373 C.C.C. (3d) 139, at para. 92. The
    analysis under the performance component proceeds upon a strong presumption
    that counsels conduct fell within the wide range of reasonable professional
    assistance:
R. v. G.B.D.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para.
    27. The presumption of competence is tested against a standard of
    reasonableness, and accords no place to hindsight:
Cherrington
, at
    para. 26; see also
G.B.D.
, at para. 27.

The principles applied with respect to the
    expert

[75]

In my view, the appellant cannot meet the
    threshold requirement of prejudice. There was no miscarriage of justice. As I
    have already stated, the trial judge did not base his findings solely or even
    mainly on the Crowns expert evidence. Recall he said the forensic evidence
    and the photographic evidence
do not lead to an
    inevitable conclusion
that the son beat the mother (emphasis added).
    And, while the evidence established that the bleeding occurred in the bedroom,
    the expert evidence does not link the son as the perpetrator of an assault on
    the mother.

[76]

Even if trial counsel had retained an expert,
    establishing that coughing  not impact  caused the blood spatter, that does
    not change the fact Ms Hartlings blood was found on the bedroom walls, not elsewhere
    in the house. Notably, even the appellants expert agrees that if a
    significant bloodletting event had happened somewhere else in the house, like
    the living room, there would be blood spatter patterns in that spot.
    Photographic evidence corroborates the Crown experts view and the trial
    judges finding. Even to an untrained eye, the photos show profuse quantities
    of blood smeared across the bedroom wall.

[77]

Moreover, it appears defence counsel made a
    strategic decision not to call an expert. Counsels cross-examination of Staff
    Sergeant Hlady established evidence favourable to the defence: the photos were
    not the best evidence on which to form an expert opinion; and he conceded that
    he speculated that an assault caused the blood spatter. It cannot be said, in
    the circumstances, that the only adequate choice counsel could have made at
    trial was to retain a defence expert.

The principles applied with respect to the
    exclusion of the appellants statements

[78]

Although the appellant did not testify, the trial
    judge relied on evidence presented about him when determining whether he was
    the person who caused the injuries to his mother. He said that the appellant
    made a statement to Sgt. Bell when she asked what had happened:

His response was
It is what it is
. This is not the
    response one would expect from a person who was aware of his mothers
    distressed condition and who cared for her. Nor was it the response of a son
    who had helped his mother after she was slapped by her boyfriend.

[79]

In his appeal factum the appellant submits that
    counsel failed to challenge the admissibility of this statement on the basis of
    voluntariness and the police did not caution the appellant on his
Charter
right to remain silent until after he was detained in a cell at the station. The
    voluntariness argument was not pressed in oral argument, only the failure by
    trial counsel to bring a s. 10(b) challenge. I will nonetheless address the
    voluntariness issue briefly.

[80]

Counsel did not challenge the voluntariness of
    the statement at trial, and the appellant has not appealed on the basis that
    the trial judge failed to conduct a
voir dire
. I would reject the
    argument that was raised in the factum, that trial counsel was ineffective in
    failing to challenge the voluntariness of the appellants statement. There is
    no air of reality to the prospect that the statement would have been found to
    be involuntary if there had been a challenge. The trial judge found that
    statement to have been spontaneous. There were no inducements or coercion
    revealed on the record, and no oppression. The failure to raise voluntariness
    therefore caused no prejudice.

[81]

I conclude that the failure to bring a s. 10(b)
Charter
claim did not result in a miscarriage of justice. I say this for two
    reasons.

[82]

First, although the trial judge considered the
    impugned statement, this factor was not central to the trial judges reasoning.
    The trial judge took a number of other factors into account  namely, that the
    appellant was the only other person in the house when first responders
    arrived and that remnants of the broken cord of the telephone were found in
    his bedroom. When the first responders entered the home, a male person was
    seen moving from the mothers bedroom to the guest bedroom before the mother
    was found in her bedroom with severe injuries. In her first version of events,
    Ms Hartling said she had gone to her bedroom to call the police, had picked up
    the phone, and that was the last thing she remembered. The telephone cord leads
    to the inference the appellant took it from the mother and brought it to his
    bedroom.

[83]

Second, the appellant was not detained when he
    made that statement. One of the firefighters, Mr. Nolan, was concerned the
    appellant was going to be aggressive, so he kept the bedroom door closed to avoid
    deal[ing] with him while they were treating Ms Hartling. He closed the door
    so that the paramedics could do their job without him getting in the way.
    This type of detention is not the same as being detained by law enforcement.
    Nothing prevented the appellant from leaving the house.

[84]

I note here as well that trial counsels
    decision not to challenge the admissibility was strategic. He testified that
    the right to counsel was not a great argument.

[85]

There was no miscarriage of justice with respect
    to counsels decision not to challenge the statement to Sgt. Bell.

(6)

Did the trial judge err in principle in imposing the sentence?

[86]

The
    appellant submits that the trial judge
erred
in
    principle by failing to give effect to the mitigating factors of the appellants
    alcohol addiction and history of family violence.

[87]

I do not
agree
.
The
    trial judges reasons for sentence provided due consideration to the relevant
    aggravating and mitigating factors, including the
Gladue
report. I see
    no error in principle.

[88]

The appellant
further
submits
that
    the sentence should be clarified so that it is served in a provincial
    reformatory as intended by the trial judge when he said:

I am particularly aware that the duration of incarceration
    would place the offender in a provincial correctional institution as opposed to
    a penitentiary. That is my intention.

[89]

The Crown agrees and understands that the
    sentence is to be served in a provincial reformatory. There is no need for
    further clarification by this court.

(7)

Were the appellants s. 11(b) rights violated?

[90]

The appellant alleges that his s. 11(b)
Charter
rights were violated both pre- and post- conviction.

Pre-verdict delay

[91]

There is no doubt that the trial was plagued
    with delay.
[5]
The total delay was 29 months. However, ten months of the delay is
    attributable to the defence:

a six- month delay which resulted directly from a meritless recusal
    motion brought by the defence; a two-month delay representing the difficulty
    rescheduling after the motion; and another two-month delay when the defence
    asked for time to prepare closing submissions. I will address the recusal
    motion in some detail to explain why it is defence delay.

[92]

The defence asked the trial judge to recuse
    himself after he made the following comment:

So, I have a real inconsistency here that you both are leaving
    me with and saying you deal with it. So, I am dealing with it to try and find
    out why, why is it that she could see something and remember something when she
    has told both of you that she didnt.

[93]

Based on this one comment alone, which the
    defence argued was an inappropriate question by the trial judge, the defence
    brought a recusal motion alleging a reasonable apprehension of bias. The bar
    for reasonable apprehension of bias is high, and this case clearly did not meet
    the standard. The trial judges comment was not inappropriate, nor did it
    prejudice the accused. The recusal motion had no merit. Accordingly, the
    six-month period of delay caused by the recusal motion should be attributed to
    the defence. In addition, the subsequent delay that was caused while waiting
    for trial to resume was also attributed to the accused. The recusal motion
    resulted in a delay of an additional two months because of the time for a
    ruling and the difficulty of rescheduling the continuation.

[94]

There was also an exceptional circumstance delay
    of two months caused by the appointment of initial trial counsel to the bench
    and a two-month delay when the defence asked for time to prepare closing
    submissions.

[95]

After these periods of 12 months are subtracted,
    there are 17 months of remaining delay, which does not surpass the presumptive
    ceiling. There was no pre-verdict delay causing a s. 11(b) breach.

Post-verdict delay

[96]

The post-verdict delay is another matter. It
    took 14 months after conviction for the sentence to be imposed. This delay was
    not caused by ineffective judicial management. It was not caused by the
    appellant, nor was it caused directly by the actions of the prosecutor. It was
    caused by the lack of institutional resources to obtain a
Gladue
report.

[97]

Immediately upon conviction, trial counsel
    obtained an order for a
Gladue
report from the trial judge. However,
    court administration services denied funding. At the time  as difficult to
    understand as it seems  there was only one
Gladue
writer in the
    Algoma district. There were no
Gladue
writers provided by Aboriginal
    Legal Services in the Algoma district. Therefore, there were only two options:
    (a) paying privately out of pocket; or (b) obtaining Legal Aid funding.
    Ultimately, the appellant, with the assistance of his counsel, chose to pay
    privately.

[98]

The issue of post-verdict delay was addressed by
    this court in
R. v. Charley,
2019 ONCA 726, 147 O.R. (3d) 497,

where
    a presumptive ceiling of five months was set for the time from verdict to
    sentence. At paras. 86 and 87, Doherty J.A. explained:

In fixing a presumptive ceiling, I
    bear in mind that the presumptive ceiling is not intended to identify the
    amount of time it should take to move the case from verdict to sentence. As
    stated by the majority in
Jordan
, at para.
56
:

We also make this observation about the
    presumptive ceiling. It is not an aspirational target. Rather, it is the point
    at which delay becomes presumptively unreasonable. The public should expect
    that most cases can and should be resolved before reaching the ceiling. For
    this reason, as we will explain, the Crown bears the onus of justifying delays
    that exceed the ceiling. It is also for this reason that an accused may in
    clear cases still demonstrate that his or her right to be tried within a
    reasonable time has been infringed, even before the ceiling has been breached.

I would set the presumptive ceiling for post-verdict delay at
    five months. In doing so, I stress that five months is not the norm, and should
    not be allowed to become the norm. Instead, five months is the point at which
    the delay is sufficiently long that it is regarded as presumptively
    unreasonable for the purposes of s. 11(b). The onus falls to the Crown to
    justify the delay.

[99]

Five months is the point at which post-verdict delay to sentence
    becomes presumptively unreasonable. Fourteen months is nearly three times the
    delay. So the burden now shifts to the Crown to justify the delay.

[100]

In
    an attempt to justify the delay, the Crown alleges extraordinary circumstances
    because of the issues with the
Gladue
report and because the case was already in the system when
Charley
was decided.

[101]

I
    accept neither part of this submission.

[102]

I do not agree that the circumstances are exceptional. It cannot be
    said that it is exceptional to require a
Gladue
report in the Algoma district where there is a large Indigenous
    population.
Gladue
reports were created in order to address systemic injustice that uniquely
    affects Indigenous offenders, and which leads to overrepresentation in the
    criminal justice system. A long delay undermines the purpose of the
Gladue
report by creating another level of unfairness. Moreover, to submit that the
    preparation of such a report is exceptional is untenable.

[103]

The
appellant
was
    entitled to a
Gladue
report, the trial judge ordered it, and
    subsequently relied on it.

[104]

The second branch of the Crowns justification for the delay is that
    this case was already in the system on the release of
Charley.
Therefore,
    the Crown says, there should be no remedy for post-verdict delay.

[105]

I do not agree.

[106]

The
    impact on transitional cases
was addressed in
Charley
,

at para. 105:

I make one further observation with respect to the application
    of the
Jordan
analysis to post-verdict delay.
Jordan
recognized that the new framework it put in place should be applied somewhat
    differently in respect of cases that were in the system before
Jordan
was
    released: see
Jordan
, at paras. 95-100. The majority described
    transitional exceptional circumstances that could, in some situations, justify
    delay above the presumptive ceiling. I would take the same approach in applying
    the presumptive ceiling applicable to post-verdict delay set down in this case.

[107]

According
    to
Jordan
, the new
    framework, including the presumptive ceiling, applies to cases currently in the
    system, subject to qualifications:

[
96
] First, for
    cases in which the delay
exceeds
the ceiling, a transitional
    exceptional circumstance may arise where the charges were brought prior to the
    release of this decision.
This transitional exceptional
    circumstance will apply when the Crown satisfies the court that the time the
    case has taken is justified based on the parties reasonable reliance on the
    law as it previously existed
. This requires a contextual assessment,
    sensitive to the manner in which the previous framework was applied, and the
    fact that the parties behaviour cannot be judged strictly, against a standard
    of which they had no notice. For example, prejudice and the seriousness of the
    offence often played a decisive role in whether delay was unreasonable under
    the previous framework. For cases currently in the system, these considerations
    can therefore inform whether the parties reliance on the previous state of the
    law was reasonable.

[
97
] Moreover,
    the delay may exceed the ceiling because the case is of moderate complexity in
    a jurisdiction with significant institutional delay problems. Judges in
    jurisdictions plagued by lengthy, persistent, and notorious institutional
    delays should account for this reality, as Crown counsels behaviour is
    constrained by systemic delay issues.

[
100
] Further, if the
    delay was occasioned by an institutional delay that was reasonably acceptable
    in the relevant jurisdiction under the
Morin
framework before this
    decision was released, that institutional delay will be a component of the
    reasonable time requirements of the case for cases currently in the system. [Emphasis
    added].

[108]

These
    qualifications do not apply here. There was no reasonable reliance on the
    appropriateness of the long delay. The delay was not a result of a change
    [that] takes time to implement.
R. v. Gladue
, [1999] 1 S.C.R. 688,
was decided in 1999. Before the release of
Charley
, it could not be said that a
    14-month delay was acceptable. Nor can it be said that the parties would have
    been reasonable to rely on the previous state of the law. A 14-month delay was
    unreasonable then, and it is now.

[109]

The 14-month post-conviction delay was unreasonable and breached the
    appellants s. 11(b)
Charter
rights.

[110]

This brings me to remedy.

[111]

Although no post-verdict delay was found in
Charley
,

this
    court discussed the remedy when a post-conviction breach is found. When the
    breach is pre-verdict, a stay is the only available remedy. Post-verdict is
    different.

[112]

Compare the rationale to that of a pre-verdict breach. A pre-verdict
    breach targets conviction because  as explained in
R. v. Rahey
,

[1987] 1 S.C.R. 588  the
    court loses jurisdiction when there is an s. 11(b) breach before trial. If an accused
    has the right to be tried within a certain time, the accused has the right
not
to be tried beyond that point and
    no trial  is permissible. To allow a trial to proceed after such a finding
    would be to participate in a further violation of the
Charter
:
Rahey
,
at p. 614.

[113]

When there has been no pre-verdict delay, the conviction is not tainted
    by a
Charter
breach. The appellant is no longer presumed innocent. A
    stay of a valid conviction would impact public confidence in the administration
    of justice. As Doherty J.A. said at para. 108:

In
Betterman v. Montana
, 578 U.S. ___, 136 S. Ct.
    1609, at p. 1615, Ginsburg J., for the court, described the possibility of
    vacating a valid conviction based on sentencing delay as an unjustified
    windfall for the accused. That seems to me to be an accurate description.

[114]

The appropriate and just remedy here should target
    the sentence, not the conviction. The appellant was convicted of a violent
    offence against his mother in her home. It would bring the administration of
    justice into disrepute to stay the conviction.

[115]

On the other hand, delay in sentencing causes
    prejudice to the offender and to society. The offender is unable to begin
    rebuilding a life, rehabilitation is impacted, and the offender lives with the
    anxiety of an uncertain future:
Rahey
at pp. 605-06. Likewise, society has a keen interest in ensuring that
    those guilty of committing crimes receive an appropriate sentence promptly:
R. v. MacDougall,
[1998] 3 S.C.R. 45, at
    para. 36.

[116]

For the remedy to target the sentence, it must be
    based on and align with sentencing principles. Section 718.2(a) of the
Criminal Code
requires:

A court that imposes a sentence shall
    also take into consideration the following principles:

(a) a
    sentence should be increased or
reduced
to account for any relevant
    aggravating or
mitigating circumstances
relating to the offence or the
    offender [Emphasis added]

[117]

The
    process of sentencing is highly individualized with reference to the offender.
    It also involves discretion on the part of the sentencing judge particularly
    when a sentence is reduced to reflect relevant mitigating circumstances. One
    such mitigating circumstance is delay from conviction to sentence.

[118]

Delay in sentencing that does not rise to the level
    of a
Charter
breach has
    long been considered a factor in mitigation of sentence:
R. v. Cooper (No.2)
(1977), 35 C.C.C. (2d)
    35 (Ont. C.A.)
,
R. v. Bosley
(
1992), 59 O.A.C. 161.

[119]

Delay in sentencing that breaches an offenders
Charter
rights should also be considered a
    mitigating circumstance. But it is one that should result in more than standard
    mitigation; it should result in enhanced mitigation. This would meet the
    objectives and principles of sentencing codified in s. 718 of the
Criminal Code
while also providing a
    meaningful remedy for the
Charter
breach.

[120]

Delay was not considered when the appellant was
    sentenced to 30 months incarceration. The delay which led to a
Charter
breach
is a
    circumstance giving rise to enhanced mitigation.

[121]

I conclude that the appellant is entitled to enhanced mitigation to
    reduce the sentence.

[122]

As with mitigating circumstances generally, there can be no
    automatic or formulaic calculation of the reduction in sentence. Nor can a firm
    principle be established based on one case. The jurisprudence will  as always
     develop with each case determined on its own particular facts, considering
    the offence, the offender, the length of the delay, the circumstances of the
    delay and any other relevant factors. Here, the offence was serious. The
    appellant did nothing to contribute to the delay. The delay was caused by a
    failure to provide adequate services to a vulnerable segment of society. The
    appellant was required to wait over a year to have his future determined. These
    are serious factors which caused a significant
Charter
breach.

[123]

In the circumstances here, I would reduce the sentence by five
    months.

CONCLUSION

[124]

I would dismiss the conviction appeal, stay the second breach of
    probation charge, and allow the sentence appeal in part by reducing the
    sentence by five months.

Released: April 3, 2020

MLB

M.L. Benotto
    J.A.

I
    agree David M. Paciocco J.A.

I
    agree Thorburn J.A.

APPENDIX A: SECTION
    11(B) DELAY TIMELINE

Date

Event

March 8, 2012

Charges laid.

March 12, 2012

First appearance in bail court.

March 15, 2012

Appearance in bail court. Bail hearing
          adjourned.

March 16, 2012

Appearance in bail court. Bail hearing
          adjourned.

March 30, 2012

Appearance in bail court. Bail hearing
          adjourned for appellant to retain counsel.

April 5, 2012

Appearance in bail court. Bail hearing
          adjourned.

Initial trial counsel had been retained
          and requested disclosure.

April 13, 2012

Initial trial counsel advised she was
          awaiting outstanding disclosure.

April 17, 2012

Initial trial counsel advised she was
          awaiting outstanding disclosure.

May 1, 2012

Initial trial counsel advised she was
          awaiting outstanding disclosure.

May 8, 2012

Initial trial counsel advised she was
          awaiting outstanding disclosure.

May 15, 2012

Initial trial counsel advised she was
          awaiting outstanding disclosure.

June 5, 2012

Initial trial counsel advised she was
          awaiting outstanding disclosure.

June 19, 2012

Initial trial counsels agent asked for
          two weeks to review disclosure and schedule Crown pre-trial.

July 3, 2012

Initial trial counsel advised she was
          still awaiting outstanding disclosure.

July 10, 2012

Initial trial counsel advised she was
          still awaiting outstanding disclosure.

July 17, 2012

Initial trial counsels agent advised
          that some disclosure was still outstanding. Matter adjourned to set a
          judicial pre-trial.

July 24, 2012

Disclosure still outstanding.

Initial trial counsel was trying to set
          judicial pre-trial and trying to get different Crown assigned because Crown
          not available for some time.

July 31, 2012

Adjourned for a bail hearing.

August 3, 2012

Initial trial counsel appointed to the
          bench.

August 16, 2012

Appellant released on bail following bail
          hearing.

New counsel, Mr. Tijerina (trial
          counsel), appeared for appellant.

September 17, 2012

New counsel officially on record.

Trial counsel requested an adjournment
          for a Crown pre-trial, so that counsel could meet with the Crown to ensure
          all disclosure provided.

October 15, 2012

Matter adjourned for two weeks at the
          request of trial counsel to obtain instructions from the appellant.

October 29, 2012

Matter adjourned to pre-set court to set
          trial dates.

Nov 8, 2012

Pre-set court, trial counsel attempted to
          set a 1- to 2-day trial. The trial coordinator refused because the Crown had
          not provided an estimate and the matter needed to be judicially pre-tried.

November 19, 2012

Parties spoke to the matter before the
          trial judge and it was adjourned to pre-set court.

November 29, 2012

Appearance in pre-set court. Trial dates
          selected for February 7 and 8, 2013.

·

At
          this time, Crown had not raised forensic blood evidence.

February 7, 2013

Trial begins. Crown only gets through two
          of nine witnesses.

February 8, 2013

Trial continues. Crown calls Ms Hartling.

Trial counsel asks for an adjournment to
          consider a possible recusal application.

The parties tentatively determined April
          22-24, 2013 were available to continue trial.

February 25, 2013

Parties returned before the trial judge.

Trial counsel advised he needed time to
          review the transcripts from trial.

Recusal motion not filed

February 26, 2013

Trial counsel confirmed that it would
          bring a recusal motion  would need 2.5 hours.

The matter was put in pre-set court for
          scheduling.

February 28, 2013

The parties learned that the April 22-24,
          2013 dates for continuation were no longer available.

Recusal motion set for April 24, 2013.

April 24, 2013

Trial counsel was not prepared to proceed
          with the recusal motion.

April 25, 2013

Motion adjourned to May 16, 2013, at
          defence request.

May 16, 2013

Recusal motion did not take place because
          of judges ill health.

Recusal motion further adjourned.

July 2, 2013

Recusal motion takes place.

August 6, 2013

Trial judge makes decision on recusal
          motion.

August 12, 2013

Further trial dates set for November 19,
          December 4,5, and 17, 2013.

October 16, 2013

Appellants bail varied.

November 19, 2013

Trial continues.

December 4, 2013

Trial counsel asks to vacate December 5
          because of external obligations. But replacement date and one additional date
          were obtained: December 9 and 18.

December 9, 2013

Voir dire
on voluntariness of appellants statements to Sgt. Bell.

December 17, 2013

Trial continues.

Trial judge issued ruling on admissibility
          of Mr. Hartlings statements to first responders (
res gestae
).

December 18, 2013

Trial did not finish.

Ruling issued on voluntariness
voir
          dire
.

Defence requested an adjournment to
          respond to two evidentiary rulings by the trial judge. Adjournment granted.

January 2, 2014

Appearance in pre-set court to set
          continuation dates.

Crown was not available in January or two
          weeks in February.

Trial judge was retired and working per
          diem, he was not available until April, as he was not sitting mid-January to
          April.

January 8, 2014

Appearance in pre-set court to set
          continuation dates.

Defence counsel available any time in
          April.

Crown and trial judge had conflicting
          schedules.

January 13, 2014

Appearance in court to confirm dates.
          Parties advised no dates could be set.

January 16, 2014

Appearance in re-set court. Trial
          coordinator confirmed trial judge not available until April.

Crown not available for April dates.

May dates are set.

January 20, 2014

Continuation dates of May 7, 8 and 9,
          2014 confirmed.

May 7, 2014

Trial continues.

May 8, 2014

Trial continues. Crown calls reply
          evidence.

Trial counsel advised he had instructions
          from the appellant to seek and adjournment to prepare.

May 9, 2014

Trial date vacated for trial counsel to
          prepare closing.

July 7, 2014

Closing submissions made.

July 17, 2014

Appearance in pre-set court. Trial judge
          instructed the parties to set matter for decision, but he was not available.

Crown had limited availability.

Trial coordinator thought early August
          too soon, August 15 selected.

August 15, 2014

Conviction entered.

Trial counsel expresses in court that
          appellant requires
Gladue
report.

Trial judge orders
Gladue
Report.

August 25, 2014

Crown requests pre-sentence report.

September 4, 2014

Trial counsel wrote to the local
Gladue
writer, Ms Tijerna

Notes (based on cross-examination of
          trial counsel):

·

Gladue
writer
          was trial counsels ex-wife.

·

She
          was the only Gladue writer in the jurisdiction according to trial counsel.

·

No
          court
Gladue
writers available.

·

Court
          administration office would not pay for the report, meaning it needed to be
          paid out-of-pocket or by Legal Aid.

·

Aboriginal
          Legal Services of Toronto was not doing
Gladue
reports in Algoma
          District.

September 4, 2014

Parties appear at pre-set court to select
          sentencing dates.

Trial coordinator advised them that the
          Regional Office would not offer any dates for sentencing until they knew when
          the pre-sentence report and
Gladue
report would be completed.

September 8, 2014

Matter put over to November 10, 2014 to
          allow Gladue report to be completed.

Pre-sentence report formally requested.

October 23, 2014

Gladue
writer accepted retainer and advised she would begin when paid by Legal Aid.

November 10, 2014

Matter adjourned because the
Gladue
report was not ready.

Gladue
report again not ready. Date for sentencing not selected.

December 8, 2014

Matter adjourned to later that month for
          the
Gladue
report to be completed.

December 18, 2014

Date for sentencing not set because the
Gladue
report was not prepared.

Trial coordinator advises that trial
          judge will be available in the first part of January, but then not again
          until April.

December 22, 2014

Matter adjourned to January 2015 for
          April dates to be set.

January 2015

Sentencing dates set for April 30, 2015.

January 7, 2015

Trial counsel wrote to Legal Aid
          requesting funding for
Gladue
report.

·

Note:
          Trial counsel suggests in cross-examination that he had privately paid a
          retainer to the
Gladue
writer at some point after October 23, 2014 and
          January 7, 2015. He states that he recalled paying her privately while
          waiting for Legal Aid Funding. He is not sure when exactly it occurred.

April 30, 2015

Gladue
report not ready. Trial counsel obtained adjournment.

May 7, 2015

Pre-set court. Trial counsel advised
Gladue
report would be ready the following week.

May 11, 2015

Gladue
report not ready. Sentencing dates were not set.

Matter adjourned to pre-set court on May
          14.

May 14, 2015

Crown advised pre-sentence report to be
          completed within six weeks.

Trial coordinator offered July dates,
          Crown unavailable.

Matter set for sentencing August 4, 2015

July 24, 2015

Pre-sentence report completed.

August 4, 2015

Sentencing submissions.

September 23, 2015

Reasons for sentence were released

October 9, 2015

Sentence imposed.

[1]

These are discussed in a separate section below.

[2]

Evidence in Trials at Common Law
, 3rd ed., vol. 6 (Boston: Little, Brown, 1976), at para. 1767.

[3]
David M. Paciocco and Lee Stuesser,
The Law of Evidence
, 7th
    ed. (Toronto: Irwin Law, 2015), at p. 186.

[4]
The appellant also alleged ineffective assistance in relation to s.
    11(b). This issue is dealt with separately.

[5]

A full summary, based on submissions by parties, is attached
    as Appendix A.