Court of Appeal for Ontario

Date: August 3, 2018

Docket: C57171

Justices: Watt, Brown & Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Brandon Adamson Appellant

Counsel:

• Lance C. Beechener, for the appellant
• John Patton, for the respondent

Heard: February 23, 2018

On appeal from the convictions entered and sentence imposed on May 10, 2013 by Justice Douglas K. Gray of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Watt J.A.:

Introduction

1Early one morning in November, Sarah Muir and her family were asleep in their home.

2Sarah Muir was awakened by the sound of someone coming up the stairs outside her room. A man walked into her bedroom. He was wearing black track pants, a tight-fitting tank top and gloves.

3The man walked over to Sarah Muir's bed. He punched her in the head. Sarah asked the man: "Why are you doing this?" The man said "I'm sorry", then rolled her onto her back and put a gloved hand over her mouth.

4The man then put a knife to Sarah Muir's throat. As he began to cut her neck, the man told Sarah: "I love you". Sarah screamed. The man fled out of her room and out of the house.

5Sarah Muir knew the man who entered her room. She knew the man because he had turned on the light when he walked into her room. She knew him because he was her boyfriend – or so she thought. And she knew him because he was the father of the child that she was then carrying. The man, she said, was Brandon Adamson.

6Brandon Adamson denied that he was the man who had attacked Sarah Muir in her bedroom early that November morning. He said that he was at home at the time of the attack on Sarah.

7A jury found Brandon Adamson guilty of several offences arising out of his unlawful entry of the Muir home and his attack on Sarah.

8Brandon Adamson appeals his conviction and the sentence imposed on him. As these reasons will explain, I am satisfied that both appeals fail and should be dismissed.

The Background Facts

9A brief canvass of the circumstances in which the offences alleged took place will provide an adequate frame for the ground of appeal advanced.

The Principals and their Relationship

10Sarah Muir and Brandon Adamson had a casual sexual relationship for about four years. At times, Sarah wanted their relationship to become "official". Brandon thought otherwise. For about a year prior to the attack on Sarah, Brandon had been dating another woman whom he considered his "real girlfriend".

11Neither Sarah Muir nor the appellant's "real girlfriend" knew about each other.

12On two occasions prior to the attack on her, Sarah Muir had become pregnant by Brandon Adamson. Each time she terminated the pregnancy.

The Third Pregnancy

13About three months before the attack upon her, Sarah Muir learned that she was pregnant for a third time as a result of her relationship with Brandon Adamson. This time would be different. Sarah decided that she would keep the baby. And she would tell her parents about it. Brandon was upset when Sarah told him about her decision to have his child.

14Sarah Muir told her parents about her pregnancy and her plans to have and keep her baby. She also told them that Brandon Adamson was the father of her unborn child. Sarah's parents supported her decision to have and care for her child.

15Brandon Adamson did not tell his mother or his "real girlfriend" about Sarah Muir's pregnancy or of her plan to have and raise their child.

The Meeting

16During the month before the early morning attack on Sarah Muir, Brandon Adamson met with Sarah and her parents at their home to discuss her pregnancy and her future plans to have and care for the baby. They agreed that Sarah and their child would live in the Muir home. Brandon Adamson would have access to their child and contribute twenty dollars per week as support, an amount that would permit him to continue his education and to pursue a career in the culinary arts.

The Missing Key

17During the summer immediately preceding the attack upon her, Sarah Muir hosted a "get together" at her home. Her parents were away. Among the six people in attendance was Brandon Adamson.

18The day after the "get together", Sarah Muir noticed that a house key was missing from her bedroom. She asked Brandon Adamson whether he took or had the key. He denied taking or having it.

19The missing key was never found.

The Claim of Unfairness

20About four days before the attack on Sarah Muir, Brandon Adamson was out with his friends. He called Sarah Muir and complained that she was unemployed while he was working hard at a restaurant to earn enough money to meet his future support obligations. At trial, Brandon admitted that he raised his voice during the call but said he had to do so because of the background noise at the club from which he made the call.

The Telephone Call and Text Message

21About seven hours before she was attacked in her bedroom, Sarah Muir spoke with Brandon Adamson on the telephone. He told her that he planned to see a movie with some friends. Shortly thereafter, Sarah went to bed.

22At 11:19 p.m. the same night, Brandon Adamson sent Sarah Muir a one word text: "Hey". Asleep at the time the text was sent, Sarah Muir did not notice it until the next day after she had been attacked.

The Attack

23At about 2:00 a.m. on November 10, 2010, Sarah Muir was awakened by the sound of someone climbing the stairs outside her bedroom door. Her bedroom door opened. She saw a tall, dark figure standing in the doorway. The man was wearing gloves, black track pants and a tight-fitting grey tank top. He turned on the light in her bedroom. The man, Sarah claimed, was Brandon Adamson, the father of her unborn child.

24The man walked up to the side of Sarah Muir's bed. He punched her in the head with his gloved hand. When she asked why he had punched her, the man replied: "I'm sorry". He then rolled Sarah onto her back, covered her mouth with his gloved hand and put a knife to her throat. As he began to cut her throat, he told Sarah: "I love you".

25Sarah Muir screamed. The man fled from her room and the house.

The Flight

26Sarah Muir's scream awakened her father and brother. They looked outside. They saw a dark van leave their driveway, its tires squealing. They were unable to determine the make, model or licence number of the van. One of their neighbours made similar observations.

The Emergency Response

27Paramedics and police responded to the Muir home within minutes of the attack on Sarah Muir. At 2:12 a.m., Sarah was taken to the hospital where she received six stitches to close the cut to her neck. Treating staff also noticed bruises. Police officers spoke to Sarah's parents and her brother.

The Facebook Message

28At about 2:20 a.m., Brandon Adamson sent a Facebook message to Sarah Muir. He told her that he was going to bed and asked her to call him in the morning. It was not unusual for Brandon to send Sarah Facebook messages before he went to sleep. He then went upstairs to bed.

The Investigation and Arrest

29The police arrived at the Adamson home at 2:44 a.m. As they walked up the driveway to the house, officers noticed a green minivan in the driveway. Its hood was warm to the touch. Unlike other vehicles in the area, no frost appeared on the windows of the minivan.

30Brandon Adamson called and sent a text to his brother Bradley when he saw the police at his door. He asked Bradley to come upstairs "quick". The call and message were not answered.

31When the police arrived, Brandon Adamson was wearing a black, sleeveless basketball jersey and shorts.

32During a search of Brandon Adamson's bedroom, police found a pair of gloves in a "hollowed out" storage area under his bed. They found no blood on either the gloves or a pair of Adamson's pants. They found no key to the Muir home. Police also seized Brandon Adamson's running shoes. On the underside of the tongue of one of the shoes, investigators located a spot of Sarah Muir's blood.

33In the Muir home, police found a knife at the bottom of the stairs and blood on the staircase wall. The knife was very dull and had been taken from the kitchen in the Muir home. The blood smear on the wall was the blood of Sarah Muir.

34There were no signs indicative of forced entry to the Muir home.

The Alibi

35Brandon Adamson testified at trial. He denied having unlawfully entered the Muir residence and having attacked Sarah Muir. He said he was at home, playing video games with his brother Bradley until 1:50 a.m., then watching sports until 2:20 a.m. when he sent Sarah a Facebook message. He then went upstairs to bed where he remained until he saw the police arrive at his home. He called and texted Bradley.

36At the door of the Adamson home, a police officer told Brandon that they needed to talk to him about an assault on his girlfriend. He responded: "Who? Malena?" When the officer said "no", Brandon added: "My best friend, Sarah?" When told that Sarah had identified him as the perpetrator, Brandon denied having assaulted her and said that he had not left the house.

37Brandon Adamson denied having a key to the Muir home, changing his clothes, hiding his gloves, leaving his home, and driving the family's van to the Muir residence.

38Bradley Hamil, Brandon Adamson's brother, testified that Brandon was home when he (Bradley) returned at about 10:00 or 10:30 on the evening of November 9. The family's van was in the driveway. He and Brandon played video games and watched television in the basement until Brandon went upstairs around 2:15 a.m.

39Bradley Hamil declined to give police a formal statement about the events of the evening and early morning hours preceding the attack on Sarah Muir. A police officer who attended at the Adamson residence testified that Bradley told him that he had been asleep for about an hour before the police came to the Adamson residence. Bradley could not recall this conversation with the officer.

The Appeal from Conviction

40Brandon Adamson ("the appellant") advances a single ground of appeal against conviction. He complains that the trial judge failed to properly instruct the jury about its use of evidence of post-offence conduct in reaching its verdict. The substance of the grievance focuses upon those features of the post-offence conduct about which the trial Crown cross-examined the appellant and invoked in her closing address as establishing the appellant's guilt.

41To better appreciate the nature of the complaint and evaluate its validity, it is enough to identify the subject-matter of the criticism and its treatment at trial.

The Post-Offence Conduct

42Among the things done and said after the attack on Sarah Muir, several incidents were the subjects of attention by the trial Crown in her cross-examination of the appellant (and his brother) and in her closing address to the jury. They included:

i. the Facebook message to Sarah Muir at 2:20 a.m.;

ii. the appellant's hiding a pair of gloves in the "hollowed-out" space beneath his bed;

iii. the appellant's pretending to be asleep when the police arrived at his home;

iv. the appellant's attempt to contact his brother when the police arrived; and

v. the appellant's "concocted" alibi.

43In cross-examination, the appellant denied leaving his home, assaulting Sarah Muir and hiding a pair of gloves under his bed. He acknowledged that his brother was the only person who could verify his presence at home at the time Sarah Muir said that he had attacked her.

44In her closing address, the trial Crown contended that:

i. the appellant sent the 2:20 a.m. Facebook message to cover his tracks and make it appear that he had been at home at the relevant time;

ii. the appellant hid his gloves and went upstairs pretending to have been in bed;

iii. the appellant called and texted his brother seeking his help in coming up with a story when the police arrived at their home; and

iv. the appellant and his brother fabricated an alibi to account for the appellant's whereabouts at the time of the attack on Sarah Muir.

The Charge to the Jury

45Prior to the charge to the jury, the trial judge gave counsel a copy of his proposed final instructions. The draft charge contained no instructions about evidence of post-offence conduct.

46Repeatedly during the pre-charge conference, the trial judge asked defence counsel whether there was anything further counsel wished included in the final version of the instructions to be provided to the jury. Defence counsel did not ask for any instructions on jury use of evidence of post-offence conduct, nor did counsel complain thereafter about their absence.

The Arguments on Appeal

47The appellant says that the trial judge erred in law in failing to instruct the jury, in express terms, about the restricted use the jury could make of the evidence of post-offence conduct. This omission caused a miscarriage of justice.

48The appellant underscores the authorities that uniformly recognize that evidence of post-offence conduct carries with it a heightened risk that an untutored lay trier of fact will misapply it to the prejudice of an accused. These inherent characteristics of evidence of post-offence conduct require a trial judge to instruct a jury not only about the use the jury may make of the evidence, but also about impermissible uses. The instruction should caution jurors about the dangers inherent in the evidence and point out other inferences arising from it that point away from, rather than towards guilt. The general instruction should also make it clear that the jury should not draw any inferences from evidence of post-offence conduct until it has examined the evidence as a whole.

49In addition to the general instructions explaining jury use of evidence of post-offence conduct, the appellant says that the trial judge should have included two specific instructions. The jury should have been told to disregard the trial Crown's submission that the appellant's alibi had been fabricated. This is so because there was no independent evidence of fabrication. And the trial judge should have limited jury use of any evidence of post-offence conduct to the issue of complicity and made it clear that the evidence could not be used to establish the level of the appellant's culpability. This limitation was important because the jury struggled over the issue of intent. The case for the Crown on intent to kill was far from overwhelming. And both the trial Crown's closing address and the trial judge's instructions on intent invited the jury to consider, among other things, words and conduct after the attack.

50The respondent begins with an observation about the nature of the case presented at trial. The case for the Crown, the respondent says, was simply overwhelming, not only on the issue of identity, but also on the level of culpability. The complainant gave direct evidence of the identity of her assailant – her sometime lover of more than four years – and of words and conduct that established an intent to kill. The charge to the jury focused on the contested issue at trial – identification of her assailant – and attracted no objection either before or after it was given.

51Evidence about what the appellant did after the attack on Sarah Muir was properly admitted as narrative and relevant to establish the appellant's involvement in the attack and to impeach the credibility of his assertion of non-involvement. The trial judge's charge was well-structured and left the jury adequately equipped to decide the issues raised by the evidence at trial. It accurately conveyed the defence position as it had been advanced by defence counsel.

52The respondent says that nowhere in the charge or closing addresses is there any suggestion, much less an instruction, that a failed or disbelieved alibi was an item of evidence from which the jury could draw a positive adverse inference of guilt.

53The respondent submits that on the evidence adduced at trial, the judge was under no obligation to give the instruction of whose absence the appellant now complains. Such an instruction is only required where the Crown invokes evidence of a concocted alibi in proof of guilt or where the common sense of the jury is unlikely to overcome the inherent likelihood of overvaluation or misinterpretation of the evidence of post-offence conduct. Neither is at work here.

54In this case, the respondent concludes, the jury was well-equipped to navigate the evidence of post-offence conduct without restriction. Their verdict was, and remains, entirely sound.

The Governing Principles

55The principles governing the admissibility and jury use of evidence of post-offence conduct are well established and not in need of lengthy recital. That said, the precedents elucidate several principles of importance in the assessment of this ground of appeal.

56To begin, evidence of post-offence conduct is circumstantial evidence which invokes retrospective reasoning to link something said or done later to the speaker's or doer's participation in a prior event which constitutes the actus reus of an offence with which she or he is charged: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 17, 105; R. v. B. (P.), 2015 ONCA 738, 127 O.R. (3d) 721, at para. 165.

57Second, the bulk of evidence of post-offence conduct enters the trial record as an unremarkable part of the narrative of relevant events: White, at paras. 140 and 157; R. v. Cornelius, 2011 ONCA 551, 283 O.A.C. 66, at para. 19. Where evidence of post-offence conduct is received as pure narrative, no special or limiting instruction about its use is required: White, at para. 47.

58Third, as a general rule, evidence of post-offence conduct is not subject to special admissibility rules. Nor does it require that a trial judge caution the jury about its use in proof of guilt: White, at paras. 105, 137; Cornelius, at para. 19; R. v. Rosen, 2018 ONCA 246, 361 C.C.C. (3d) 79, at para. 50.

59Fourth, the influence of evidence of post-offence conduct in the determination of an accused's guilt is a variable, not a constant.

60Sometimes, the Crown will tender evidence of post-offence conduct as an essential component of its case. When this is so, it is for the Crown to satisfy the trial judge, as with any item of evidence, that the evidence is relevant and admissible. To meet the modest threshold for relevance, the Crown must establish that the evidence of post-offence conduct, as a matter of logic, common sense and human experience, has a tendency to help the jury resolve a live factual issue in the trial: White, at paras. 36, 140, 169. To meet the admissibility requirement the Crown must show that no exclusionary rule bars reception of the evidence.

61In other cases, evidence of post-offence conduct will be admitted as narrative only and not enlisted as an essential component in proof of guilt.

62Fifth, where evidence of post-offence conduct is put forward as an integral element in the Crown's attempt to establish guilt, it is ultimately for the jury to decide, on the basis of the evidence as a whole, whether the evidence of post-offence conduct relates to the offence charged rather than to something else and, if so, how much weight, if any, the evidence should be accorded in the final determination of guilt or innocence: White, at para. 137; Cornelius, at para. 19.

63Sixth, as a general rule, evidence of post-offence conduct may be relevant to and admissible to assist in proof of an accused's culpability in an offence, but not on the level of that culpability: R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, at para. 55; R. v. Stiers, 2010 ONCA 382, 255 C.C.C. (3d) 99, at para. 55, leave to appeal refused, [2011] S.C.C.A. No. 150. But this rule is not unyielding. After all, relevance is a relative concept. The relevance of evidence of post-offence conduct depends upon myriad factors such as:

i. the nature of the conduct;

ii. the facts sought to be inferred from it;

iii. the positions of the parties; and

iv. the totality of the evidence.

No prefabricated rule determines the relevance or lack of relevance of evidence of post-offence conduct to a particular fact in issue: Stiers, at para. 56.

64Seventh, experience teaches that in some cases jurors may attach more weight to evidence of post-offence conduct than is warranted. In such cases, it makes sense for judges to alert jurors to the accumulated learning of the courts about the evidence, all the more so when that learning may be counter-intuitive for at least some jurors: Cornelius, at para. 19; White, at para. 138.

65Eighth, consistent with general principle, where evidence of post-offence conduct is admissible for one purpose but not another, as a general rule, a trial judge should expressly instruct the jury on the permitted and prohibited use(s) of this evidence. But failure to do so in express terms is not always fatal: Cornelius, at para. 24; Czibulka, at paras. 60-61; Stiers, at paras. 61-62; R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 83, leave to appeal refused, [2014] S.C.C.A. No. 13.

66Two further points will round out this discussion of governing principles.

67Where the evidence of post-offence conduct consists of or includes advancement of an alibi, we distinguish the evidentiary value of a disbelieved alibi from that of an alibi that has been fabricated or concocted. A disbelieved alibi is an evidentiary naught. On the other hand, an alibi that independent evidence establishes as concocted or fabricated at the instance of an accused may support an inference of guilt, but is not conclusive evidence of guilt: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 67; R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311, at para. 23; R. v. Cyr, 2012 ONCA 919, 294 C.C.C. (3d) 421, at para. 75.

68Finally, a general instruction that jurors might consider an accused's "words and actions before, at the time, and after" the conduct that constitutes the actus reus of an offence in determining the accused's state of mind is simply a general guideline that encourages jurors to consider an accused's actions in their totality. As such, it is not an instruction to infer an accused's state of mind merely from conduct after the incident: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 25.

The Principles Applied

69As I will explain, I would not give effect to this ground of appeal and, as a result, would dismiss the appeal from conviction.

70In this case, the appellant's complaint is of non-direction. In other words, the trial judge left something out of his final instructions. He failed to tell the jury about how it could and could not use evidence of what the appellant said and did after the attack on Sarah Muir. To assess the impact of the omission, we must take as our point of departure the standard by which we adjudge the adequacy of a jury instruction. The parties are entitled to a properly instructed jury, not a perfectly instructed one: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31; R. v. Marshall, 2017 ONCA 1013, at para. 27. Perfection is a standard that few, if any, trial judges are capable of achieving: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 2.

71It would be a rare case in which final instructions included everything that could be said on a particular subject, as for example, the use that can be made of various items of evidence adduced at trial. But on review the issue is not whether something more or something different could have been said but rather, in the context of the trial as whole, whether what was said was sufficient. For it is not misdirection to fail to tell the jury everything that could be said about a particular subject. Non-direction becomes misdirection only when something left unsaid makes wrong something that was said, or where what was left unsaid is essential to an accurate instruction on the subject: B. (P.), at para. 131.

72A second preliminary point. Recall the controverted issue at trial – the identity of Sarah Muir's assailant. Was it the appellant? Or was it somebody else? And recall the nature of the evidence upon which the Crown relied to prove its case.

73Sarah Muir gave evidence that it was the appellant, her lover of several years and the father of her unborn child, who attacked her. Her blood was found on the inside of the tongue of one of his shoes seized within hours of the attack. A dark van sped away from the Muir home immediately after the attack. The appellant's family owned a dark minivan. When police arrived at the Adamson home shortly after the assault, the hood of the van was warm to the touch and, unlike other vehicles in the same area that early November morning, the windshield was clear of any signs of frost.

74Pitted against this combination of direct and circumstantial evidence was the appellant's claim, supported by his brother, that he was at home playing video games, watching television, then retiring to bed shortly before the police arrived.

75It was in the context of these dramatically opposed versions of events that the evidence of the appellant's post-offence conduct entered trial proceedings. As it seems to me, the most the appellant can say is that the trial judge failed to give the jury an instruction about how the jury could use this evidence in deciding whether the Crown had proven the appellant's guilt beyond a reasonable doubt. Perhaps it would have been better had the trial judge done so. But several reasons satisfy me that the omission of limiting instructions did not render the appellant's trial unfair or cause him a miscarriage of justice.

76First, the significance of the evidence in the demonstration of guilt. On the critical issue of identity, the evidence of the appellant's post-offence conduct played a peripheral role in the Crown's case. Sarah Muir identified the appellant as her assailant. He was a person with whom she was thoroughly familiar. Cogent circumstantial evidence linked the appellant to her, including her blood on the inside tongue of his shoe and the inferences available from the nature and condition of the dark minivan parked in the driveway of the home where the appellant lived.

77Second, the reliance placed on this evidence by the Crown in proof of guilt: reference to it in the closing address on the issue of identity only, with no suggestion that it could be utilized as proof of the mental element in attempted murder.

78Third, the references to the substance of this evidence in the charge to the jury. A single reference in a recital of the evidence and positions of the parties on the issue of identity or participation. No link to proof of intent. And no link to the defence of alibi.

79Fourth, the position of trial counsel for the appellant. No request for an instruction on evidence of post-offence conduct, despite ample opportunity for input on the content of final instructions during lengthy pre-charge discussions. And no complaint about the absence of any such direction either before or after delivery of the charge. While not dispositive of the necessity for such an instruction, the absence of any request or objection goes some distance to put paid to any claim of prejudice or unfairness as a result of its absence: Daley, at para. 58.

80And finally, we ought not lose sight of the substance of an instruction on evidence of post-offence conduct. The appellant does not suggest that the evidence of post-offence conduct warranted a "no probative" value instruction. At least some of the evidence was relevant in proof of culpability, if not the level of that culpability. In these circumstances, drawing further attention to the evidence of post-offence conduct may have been unfavourable to the defence. Further, it was by no means certain that the evidence could not sustain a finding that the alibi was concocted. And even if the jury had been instructed that the evidence of post-offence conduct could not be used to establish proof of the mental element in attempted murder, the case for the Crown on that issue was not so underwhelming as the appellant colours it. A knife to the throat causing injury. And evidence of motive.

81This ground of appeal fails, so too the appeal from conviction.

The Appeal from Sentence

82The appellant also appeals the sentence imposed upon him – a term of imprisonment of 12 years and 57 days, the result of deducting credit of 308 days for pre-disposition custody from an imposed sentence of imprisonment for 13 years.

83On the appeal from sentence, the appellant says that the trial judge erred in two respects:

i. in failing to consider the appellant's compliance with strict bail conditions for an extended period of time as a mitigating factor on sentence, thus warranting a deduction in the net sentence imposed; and

ii. in imposing a sentence that is demonstrably unfit and exceeds that proposed by the trial Crown.

84These complaints of error are better understood with brief references to the circumstances of the appellant, the positions advanced at the sentencing hearing, and the manner in which the hearing was conducted.

The Circumstances of the Appellant

85The appellant was a 19-year-old first offender. He completed high school and worked in restaurants before and after graduating. He hoped to forge a career for himself in the culinary arts. He has a supportive family.

86The terms of the appellant's release from custody included requirements that he:

i. remain in his residence at all times unless in the direct presence of one of his sureties (his parents), save and except during meetings with his counsel and only during those meetings; and

ii. be under the direct, present and immediate supervision of at least one of his sureties at all times.

87Prior to sentencing, the appellant worked at a restaurant where his father was also employed. The appellant was arrested on a charge of failure to comply with his recognizance and detained in custody until he was acquitted of that charge and ordered released on the terms contained in his original recognizance.

The Positions of the Parties at Trial

88The trial Crown proposed a sentence of ten years, emphasizing as aggravating factors that the attack occurred in the victim's home, that the victim was pregnant at the time of the attack, that the attack was planned, and that the attack had lasting effects not only on the victim, but also on her family. The trial Crown acknowledged the mitigating factor of the appellant's youth and, in the following exchange, conceded that the trial judge had to take into account the lengthy period the appellant was subject to restrictive terms of release:

CROWN COUNSEL: So that leaves the issue of the time spent on release.

THE COURT: Yes, Downes and Ijam and…

CROWN COUNSEL: Exactly.

THE COURT: …all of that.

CROWN COUNSEL: So, it's the Crown's position and I think I provided yesterday the law as Ijam and the Dragos case. The Crown's position is that while Your Honour has to take that into account to some extent, that its Your Honour's discretion with respect to how much credit to provide and that in certain cases other factors may take a predominant role, and so you may decide there's [no] mathematical formula, you may decide to give less credit.

CROWN COUNSEL: …and it's something that at the end of the day you may give some weight to, but in the Crown's submission, it should be far far less than what my friend is submitting to you gives [sic] the circumstances and the principles that are, that you have to consider in this case. [Emphasis Added.]

89Trial counsel for the appellant submitted that the appropriate range of sentence was imprisonment for a term of seven to ten years. She contended that the fact that the appellant was a youthful first offender with excellent prospects for rehabilitation and family support warranted a sentence of seven years. Trial counsel urged the trial judge to consider the appellant's lengthy compliance – for 22 months – with restrictive bail conditions as a mitigating circumstance in determining a fit sentence. Trial counsel proposed credit for restrictive bail conditions at a rate of 0.5 to 1, a figure with which the trial Crown disagreed.

The Sentencing Proceedings

90Immediately after the trial Crown indicated that she sought a sentence of imprisonment of ten years, less whatever credit the trial judge considered appropriate for restrictive bail conditions, the trial judge said:

May I say respectfully that I think you may be too low.

The trial judge then explained that the purpose of his comment was to put counsel on notice that he was considering imposing a sentence in excess of that sought by the Crown.

Reasons for Sentence

91The trial judge identified denunciation, deterrence, separation, and proportionality as the governing sentencing objectives. He also recognized that the appellant was a youthful first offender with rehabilitative potential and strong family support.

92In reaching his conclusion that a fit sentence was imprisonment for a term of 13 years less credit of 308 days for pre-disposition custody, the trial judge identified several aggravating features. Among those were that the offences:

i. involved a home invasion;

ii. were planned;

iii. constituted a breach of trust;

iv. had a significant impact on the victim and her family; and

v. were committed on a pregnant woman.

93The trial judge expressly acknowledged that the appellant was seeking credit for time spent under strict bail conditions. The trial judge noted – erroneously – that the Crown was opposed to any mitigation of the imposed sentence on this basis. Ultimately, the trial judge was not persuaded that the appellant suffered any significant hardship due to his bail conditions. He reached this conclusion for three reasons:

i. The appellant was "able to spend all of his pre-trial time in the comfort of his own home, with his family", with the exception of some time spent in custody on the charge of breaching his recognizance.

ii. For a portion of his time on bail, the appellant "was able to secure employment at the same workplace as his father worked."

iii. The Crown "was reasonable in consenting to variations of [the appellant's] bail terms where appropriate."

94In the result, the trial judge awarded no credit for the 22 months the appellant had been bound by his release terms never to be out of the presence of one of his sureties.

The Arguments on Appeal

95The appellant says that the trial judge erred in failing to consider the appellant's lengthy period of pre-trial release on stringent terms as a mitigating factor on sentence. The appellant, when at home, was under the direct, present and immediate supervision of at least one of his sureties for almost two years. This qualifies, he says, as a lengthy period of release on very restrictive terms and warranted some mitigation of the principal sentence.

96In failing to consider restrictive release conditions over a lengthy period of time as a factor in mitigation of sentence, the appellant contends that the trial judge made three discrete errors. He misapprehended the position of the Crown on the issue, mistakenly characterizing it as opposed to the award of credit. The Crown had in fact expressly acknowledged the mitigating effect of restrictive release conditions, but left the quantum of credit to be determined by the trial judge. The judge then misconstrued the scope of the Crown's consent to a pre-trial bail variation. The consent was to a minor variation in a reporting condition, not a more meaningful loosening of the house arrest term which the Crown opposed. And the trial judge, having decided not to award a specific amount of credit for a lengthy period of pre-trial release subject to restrictive bail conditions, further erred in failing to consider these conditions as a mitigating factor on sentence. This error stemmed, in part, from the trial judge misapprehending the strictness of the appellant's bail conditions.

97The appellant further submits that the 13-year sentence imposed is demonstrably unfit. The trial judge, according the appellant, relied on distinguishable authorities that involved more blameworthy offenders with extensive criminal histories committing more serious crimes. The trial judge's improper reliance on these cases caused him to view the trial Crown's reasonable sentence proposal as "too low." The appellant seeks a variation in the sentence imposed to a term of ten years, less credit for pre-trial custody.

98The respondent resists any variation of the sentence imposed at trial. The judge was entitled to refuse to award a specific amount of credit or to consider as a mitigating factor the period spent on pre-trial release. The trial judge made no error in principle and did not impose a sentence that was demonstrably unfit. He followed the correct procedure in advising counsel that he was considering imposing a sentence beyond what the trial Crown had sought and gave cogent reasons for having done so.

99In connection with the period spent on pre-trial release, the respondent reminds us that whether such a period should be accorded a defined credit or considered in mitigation is an issue for the sentencing judge to determine. Relevant factors include the length of time on pre-trial release, the nature of the conditions, and the impact of those conditions on the offender. The trial judge considered the relevant factors and decided that no credit or mitigation was warranted. His conclusion is entitled to and should be accorded deference in this court.

100Further, the respondent continues, the sentence the trial judge imposed is not unfit. The trial judge considered and applied the proper sentencing objectives and principles. Aggravating factors predominated. The judge was cognizant of the appellant's youth, his status as a first offender, his family support and his rehabilitative prospects. The sentence imposed is not beyond the range of fit sentencing dispositions and is entitled to substantial deference.

The Governing Principles

101Several principles inform the decision on the fitness of the sentence imposed at trial. Some have to do with the scope of appellate review while others relate more specifically to the influence of the terms of predisposition release on the sentencing decision.

102First, the standard of review. It is not every error in principle, every failure to consider a relevant factor, or every erroneous consideration of an aggravating or mitigating factor that can justify the intervention of an appellate court on an appeal from sentence. Appellate intervention is justified only where it appears from the sentencing judge's decision that such an error had an impact on the sentence imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44; R. v. Suter, 2018 SCC 34, at para. 24.

103Second, an appellate court is disentitled to interfere with a sentence imposed at trial simply because the appellate court would have weighed the relevant factors differently than did the sentencing judge: Lacasse, at para. 49.

104Third, a sentencing judge's choice of sentencing range or of a category within a range resides within the sentencing judge's discretion and, without more, cannot amount to a reviewable error. Appellate courts may not intervene solely on the ground that they would have situated the sentences in a different range or category: Suter, at para. 25. Intervention is restricted to cases in which the sentence imposed is demonstrably unfit: Lacasse, at para. 51.

105Fourth, a sentence is demonstrably unfit if it constitutes an unreasonable departure from the fundamental principle of proportionality, that is to say, that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender who committed it: Lacasse, at para. 53.

106Turning to the issue of credit for time spent on predisposition release on restrictive terms. Unlike predisposition custody, which is governed by s. 719(3) of the Criminal Code, no statutory provision explicitly authorizes or requires consideration of time spent subject to stringent predisposition bail conditions as a relevant mitigating factor on sentence. That said, it is beyond controversy that prior decisions of this court authorize a sentencing judge to take into account, as a relevant mitigating circumstance on sentence, time spent under stringent bail conditions, especially house arrest: R. v. Downes, 79 O.R. (3d) 321, at para. 33; R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 37.

107A sentencing judge should explain why she or he has decided not to take predisposition house arrest into account in determining the sentence that she or he will impose. The amount of credit to be given, if any, lies within the discretion of the trial judge. Unlike s. 719(3) in relation to predisposition custody, there is no formula the sentencing judge must employ. The amount of credit is variable, a function of several factors, including but not limited to:

i. the period of time spent under house arrest;

ii. the stringency of the conditions;

iii. the impact on the offender's liberty; and

iv. the ability of the offender to carry on normal relationships, employment and activity.

See, Downes, at paras. 33, 34 and 37. See also, Ijam, at paras. 37 and 63.

108A final point concerns the effect of the failure of a sentencing judge to consider an offender's bail conditions as a mitigating factor in determining the sentence to be imposed. Consistent with Lacasse and earlier jurisprudence of this court, the failure to consider or give effect to an offender's predisposition bail conditions as a mitigating factor on sentence warrants appellate intervention only where it appears from the trial judge's decision that such an error had an impact on the sentence imposed: Lacasse, at para. 44; Suter, at para. 24; R. v. Lawes, 2007 ONCA 10, at paras. 10-11; R. v. Hunjan, 2007 ONCA 102, at para. 1. See also, R. v. Pomanti, 2017 ONCA 48, at para. 34.

The Principles Applied

109As I will briefly explain, although I would grant leave to appeal sentence, I would dismiss the appeal from sentence.

110At the outset, I acknowledge that a 13-year sentence imposed upon a youthful first offender with significant rehabilitative potential is a substantial sentence. But I do not consider it to offend the fundamental principle of proportionality or to be otherwise demonstrably unfit as reflective of an unreasonable departure from that principle.

111I agree with the appellant that the trial judge's reasons reveal a misapprehension about the position of the Crown in connection with the pre-trial bail conditions by which the appellant was bound for 22 months. The Crown did not oppose consideration of these conditions as a relevant mitigating factor on sentence, rather agreeing that they were relevant and leaving it to the trial judge to determine the extent of mitigation warranted. It is also arguable that the trial judge overstated the extent of the Crown's cooperation with the appellant's attempts to review and vary the conditions governing his predisposition release. Although the Crown consented to a variation in the frequency of the appellant's reporting to police, it opposed loosening of the house arrest and surety-supervisory conditions.

112While I do not gainsay the force of these submissions, I am not satisfied that they justify this court interfering with the sentence imposed.

113To begin, neither claim of error discloses a significant misapprehension by the trial judge. While the Crown acknowledged that the appellant's pre-trial bail conditions had to be considered "to some extent", she did not advocate for any particular quantum of credit. She expressly opposed the 11-month figure proposed by the appellant's trial counsel, suggesting that the appellant's time on pre-trial release deserved "far far less" weight as a mitigating factor, and that "in certain cases other factors may take a predominant role". Thus, the Crown's position, while not accurately depicted in the reasons for sentence, was far from forceful in favour of awarding the appellant credit for pre-trial release.

114Further, the trial judge's finding that "the Crown was reasonable in consenting to variations of [the appellant's] bail terms where appropriate" amounts, at most, to an overstatement and not a fundamental misunderstanding of the record. The Crown provided its consent for one variation to the appellant's bail conditions and refused to acede to other, more significant variations. The trial judge may simply have concluded that the Crown acted reasonably in deciding which variations to support – and, as such, provided consent "where appropriate" (emphasis added).

115More importantly, neither alleged error had any impact on the sentence imposed. Neither affects the fundamental finding of fact made by the trial judge, a determination available to him on the evidence, that the Downes criteria were not satisfied. The trial judge provided cogent reasons in support of his finding that the appellant did not suffer "any significant hardship or deprivation as a result of his bail terms." This conclusion was reasonably available to him on the evidence and entitled to significant deference in this court.

116Turning next to the appellant's claim that the trial judge should have taken the strict bail conditions into account as a mitigating factor, even after refusing to award the appellant a specific amount of credit for abiding by those conditions.

117I reject this submission. Time spent on pre-trial release does not always deserve weight as a mitigating factor. In some cases, a sentencing judge "should give mitigation effect to pre-trial bail." In other cases"this factor should attract little, if any, weight": Ijam, at para. 37. This case fell into the latter category, given the trial judge's unequivocal and reasonable finding that the appellant did not suffer any significant hardship because of compliance with his bail conditions. That finding justifies the trial judge's decision not to give mitigation effect to the appellant's time on pre-trial release, either through an explicit award of credit or by assigning it weight when determining an appropriate sentence.

118Finally, I would reject the appellant's submission that the sentence imposed is demonstrably unfit.

119Sentences for attempted murder imposed at trial or after a plea of guilty and upheld by this court vary widely: R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385, at para. 35. The variations reflect differing circumstances. Of offence. Of offender. And of the effects of the offence on their victims. The maximum sentence is imprisonment for life. And the offence includes the most morally blameworthy state of mind known to our law – the intent to kill a fellow human being.

120In this case, a sentence of 13 years is justified on the basis of several aggravating factors, compounding the significant moral blameworthiness inherent to the crime of attempted murder and the intent to kill that accompanies it: R. v. Forcillo, 2018 ONCA 402, at paras. 129-130, 195, 201. These aggravating factors include:

i. the domestic-like context;

ii. the breach of trust;

iii. the planned nature of the attack;

iv. the invasion of the victim's home;

v. the pregnant state of the victim; and

vi. the serious consequences for the victim and her family.

121An additional point. The trial judge found that the appellant's actions did not result in Sarah Muir's death "only because by happenstance he selected a dull knife with which to attempt to kill Ms. Muir rather than a sharp knife. If he had selected a sharp knife, he would in all probability be guilty of murder." In these circumstances, the appellant's culpability "is hardly distinguishable from that of a murderer": R. v. Varga, 159 C.C.C. (3d) 502, at para. 95; R. v. McArthur, 182 C.C.C. (3d) 230, at paras. 47-48.

122Given these significant aggravating factors, the sentence imposed was reasonable and fell within the appropriate range for this offence and this offender.

Conclusion

123I would dismiss the appeal from conviction, grant leave to appeal sentence, but dismiss the appeal from sentence.

Released: August 3, 2018

"David Watt J.A."

"I agree. David Brown J.A."

"I agree. Grant Huscroft J.A."

Footnote

1Although the label "post-offence conduct" is less prejudicial than its predecessor "consciousness of guilt", it appears to presume the commission of an offence. Perhaps "post-incident conduct" would be a better choice of words.