Court of Appeal for Ontario
Date: 2025-07-09
Docket: C70270
Coram: Paciocco, Zarnett and Dawe JJ.A.
Between:
His Majesty the King (Respondent)
and
Jitesh Bhogal (Appellant)
Appearances:
James Lockyer and Jason Dickson, for the appellant
Jeremy Tatum, for the respondent
Heard: 2025-04-03
On appeal from the conviction entered on December 1, 2021 by Justice Renee M. Pomerance of the Superior Court of Justice, sitting with a jury.
A. Overview
1In June 2018, the appellant Jitesh Bhogal was a 27-year-old engineer living in the suburbs of Detroit. He was about to move to Seattle to start a new job. During the early morning hours of June 10, 2018, after a night out drinking with friends, he crossed over the border to Windsor, where he arranged to buy cocaine from a couple he met on the street, Jake Thompson and Michelle Altiman. They took his money, and Ms. Altiman bought some cocaine from her dealer. She gave some of the cocaine to the appellant, but kept most of it for herself and Mr. Thompson. Ms. Altiman told the appellant that the rest of the cocaine was in her “snatch”, meaning to lead him to believe, untruthfully, that she had hidden it in her vagina. The appellant testified that he thought she had been referring to her purse. Mr. Thompson and Ms. Altiman left the appellant in his SUV, parked in the lot behind a three-storey apartment building next door to the house where they were living.
2Some time later that morning, the appellant climbed up to the third floor of the apartment building and broke into the apartment where Autumn Taggart, a complete stranger, lived with her 9-year-old son. It was undisputed that the appellant then killed Ms. Taggart by asphyxiating her.
3Ms. Taggart had bruising on her vaginal area and lacerations on her anus. The Crown’s theory at trial was that before the appellant killed Ms. Taggart he had mistakenly believed that she was Ms. Altiman, and had digitally penetrated her vagina and anus looking for the cocaine that Ms. Altiman had taken. On this theory the appellant was guilty of constructive first degree murder on the basis that he had killed Ms. Taggart while committing a sexual assault, albeit not one motivated by a sexual purpose.
4The appellant testified and acknowledged causing Ms. Taggart’s death, but denied that he had killed her intentionally. The defence theory was that the cocaine the appellant had ingested that night had caused him to experience drug-induced psychosis and to act irrationally. He claimed to have no memory of climbing up to Ms. Taggart’s apartment and breaking in. His first memory from inside the apartment was of looking in a woman’s purse, then seeing Ms. Taggart’s face and covering her mouth to stop her from screaming. His evidence was that he had not meant to kill her, or realized that his actions were likely to cause her death.
5Although the appellant had no memory of what he had done before he asphyxiated Ms. Taggart, the defence position at trial was that the evidence did not establish beyond a reasonable doubt that the appellant had caused Ms. Taggart’s vaginal and anal injuries. The defence also suggested that the appellant’s DNA could have been deposited on her vulva through secondary transfer. On the defence theory, in which the appellant killed Ms. Taggart unintentionally, he was guilty of manslaughter. Alternatively, if the jury found that he killed Ms. Taggart intentionally but was left with a reasonable doubt about whether he had sexually assaulted her, he would be guilty of second degree murder.
6The jury found the appellant guilty of first degree murder. He advances two grounds of appeal against his conviction.
7First, the appellant argues that the trial judge should have instructed the jury on extreme intoxication akin to automatism as a defence to the alleged sexual assault, which was relied on by the Crown to elevate the killing of Ms. Taggart from second to first degree murder. He acknowledges that his trial counsel (not Mr. Lockyer) had taken the position at trial that the appellant was not relying on this defence, and that it should not be left with the jury. However, the appellant now argues that this defence was supported by the evidence, and that the trial judge thus should have left it with the jury, notwithstanding his trial counsel’s contrary position. Counsel on appeal agree that if this ground were successful, the appropriate remedy would be to substitute a conviction for second degree murder.
8Second, the appellant takes issue with how Crown counsel and the trial judge both summarized the opinion evidence that had been given by the forensic pathologist about how long it would take for someone to be rendered unconscious and/or die, either from suffocation (that is, obstructing the person’s breathing); from strangulation (that is, cutting off the blood supply to their brain); or from a combination of both together. Success on this ground would require a new trial.
9For the following reasons, I would not give effect to either of these grounds of appeal, and would accordingly dismiss the appeal.
B. Factual Background
(1) The appellant purchases and uses cocaine
10The appellant has a degree in electrical and computer engineering. From 2015 to 2018 he lived in Detroit and worked at General Motors while he was also enrolled in an MBA program at the University of Michigan. In June 2018, the appellant had recently graduated and was about to move to Seattle, where his parents lived.
11On the night of June 9, 2018, the appellant went out to a bar with some of his friends. He had several drinks, including at least two cocktails and several beers. The appellant testified that when he left the bar at around 1:30 a.m. he felt sober enough to drive, but was not sure if he was under the legal limit.
12After the appellant left his friends, he drove across the border into Windsor, where his uncle lived. He was planning to spend the night at his uncle’s house because he had already packed up his own apartment in preparation for his upcoming move.
13On a whim, the appellant decided to visit a strip club in downtown Windsor. He pulled his SUV into an alley across from the club. Jake Thompson, a stranger who had been panhandling nearby, approached his vehicle. After some conversation, the appellant asked Mr. Thompson to sell him some cocaine. Mr. Thompson got into the appellant’s vehicle and directed the appellant to drive to a house on McKay Ave., where Mr. Thompson was staying with his girlfriend, Michelle Altiman. Mr. Thompson went into the house and came back with a bag of white powder, which he sold to the appellant for $30 before returning to the house. According to Mr. Thompson, the bag contained only flour. However, the appellant, who testified that he had never tried cocaine before, said that when he snorted the white powder his nose burned, and he began to feel paranoid.
14It was common ground that at some point in approximately the next half hour the appellant got out of his vehicle and went to look for Mr. Thompson. Although Mr. Thompson and the appellant recalled their ensuing conversation somewhat differently, they agreed that the appellant asked Mr. Thompson and his girlfriend, Ms. Altiman, to get him more cocaine. The appellant gave Ms. Altiman his phone so she could contact her drug dealer. Mr. Thompson and Ms. Altiman then drove with the appellant in his SUV to an ATM, where the appellant was recorded on video at 3:02 a.m. withdrawing $800 in cash. They then drove to the parking lot of a nearby McDonalds, where Ms. Altiman met with her drug dealer and bought an “8-ball” of cocaine, after first purchasing a smaller sample for the appellant to test. The appellant testified that he asked Ms. Altiman to do this because he wanted her and Mr. Thompson to believe he was an experienced cocaine user. He testified that he snorted two or three lines of the sample before Ms. Altiman went back to make the larger purchase from her dealer. Although the appellant had given Ms. Altiman $550 as purchase money, she paid only $250 for the drugs, and kept the difference for herself.
15When Ms. Altiman returned to the appellant’s SUV, the appellant asked her where the cocaine was, and she replied that it was in her “snatch”. She testified that she had been trying to mislead the appellant into believing that she had put the drugs in her vagina, when she had really concealed them either in her bra or in her pocket.
16Ms. Altiman directed the appellant to drive to the parking lot behind 1382 University Ave. West, a three-story apartment building at the corner of McKay Ave., that was next door to the house where she and Mr. Thompson were staying. Ms. Altiman put several lines of cocaine on the vehicle’s centre console, and she and Mr. Thompson each snorted a line. While the appellant was snorting the remaining lines, Mr. Thompson and Ms. Altiman left the vehicle and went back to their residence next door. Ms. Altiman still had the rest of the cocaine that the appellant had paid for, and she, Mr. Thompson, and one of their friends proceeded to consume it.
(2) The appellant’s actions after Mr. Thompson and Ms. Altiman departed
17The appellant’s memory of what he did after Mr. Thompson and Ms. Altiman left his SUV was spotty and incomplete. He testified that after he snorted the white powder that Mr. Thompson had first sold him, which Mr. Thompson maintained was only flour, he had begun experiencing feelings of paranoia, in which he believed that people associated with Mr. Thompson were out to get him. These feelings worsened after he snorted the cocaine that Ms. Altiman had purchased. The appellant recalled being “greatly distressed”, and leaving his vehicle to search for Mr. Thompson and Ms. Altiman.
18The appellant’s phone records show that between 3:37 a.m. and 4:07 a.m. he exchanged numerous texts and calls with Ms. Altiman’s drug dealer, whose number had been saved in the appellant’s phone when Ms. Altiman used it to arrange the drug purchase. During this half-hour period, the appellant and the dealer called or texted each other 20 times. Some of the phone calls did not connect, and the longest lasted for 84 seconds. The appellant testified that he had no memory of any of these communications, and the contents of the text messages were not put in evidence.
19Almost two hours later, between 5:55 a.m. and 5:56 a.m., the appellant sent three more text messages to Ms. Altiman’s dealer. As before, the appellant had no memory of sending these messages, and their contents were not put in evidence.
20At some point during the night Ms. Altiman noticed that the appellant’s SUV was still in the parking lot next door. She remembered having seen the appellant putting some cash in his centre console, so she went out to check the SUV to see if it was unlocked. However, she found the vehicle locked, and the appellant not there. Later that morning Mr. Thompson and Ms. Altiman noticed that the SUV was gone.
(3) Ms. Taggart’s Death
21At some point during the night, the appellant climbed up to the third floor of the apartment building next door to Mr. Thompson and Ms. Altiman’s house. Physical evidence from the scene indicated that he climbed onto the roof of a van that was parked under the second-storey balcony, and from there climbed up to the third-floor balcony of the apartment that Autumn Taggart shared with her 9-year-old son. The appellant had no memory of doing any of this.
22Ms. Taggart’s 9-year-old son recalled waking up at some point in the night and hearing a man coming into his bedroom and quickly leaving. A short while later he heard his mother screaming. She soon stopped, and her son went back to sleep. The next morning he could not wake his mother up. He spent the day watching videos and playing video games, before texting his father in the evening to report that his mother was still not waking up. His father came to the apartment with some other people and they found Ms. Taggart lying dead in her bed.
23The evidence did not establish exactly what time the appellant broke into Ms. Taggart’s apartment, or what time she died. Evidence of activity on her computer suggested that she was still alive at around 4:00 a.m., while the appellant’s phone and text message records, discussed above, suggested that he may have broken into Ms. Taggart’s apartment and killed her at some point between 4:07 a.m. and 5:55 a.m.
24Ms. Taggart was found dead in her bed, naked and under the covers. The forensic pathologist who conducted the post-mortem examination, Dr. Elena Tugaleva, characterized the cause of death as “neck compression and suffocation”, based in part on bruising on Ms. Taggart’s neck. She also had bruises on her face, the back of her head, her torso, arms, head, and legs. However, Ms. Taggart had a history of seizures, and these injuries, some of which did not appear recent, could have been the result of her having fallen.
25In addition, Ms. Taggart had bruising on her vulva and lacerations on her anus, indicative of forceful penetration. As noted previously, the Crown’s theory at trial was that the appellant had mistakenly believed that Ms. Taggart was Ms. Altiman, and had digitally penetrated her because he was searching for the drugs Ms. Altiman had stolen from him. DNA later identified as the appellant’s was found on Ms. Taggart’s mouth, breasts, vulva, and under her fingernails. His DNA was not found in her vagina or rectum.
(4) The appellant’s testimony
26The appellant did not dispute that he must have climbed up to Ms. Taggart’s third-storey balcony and broken into her apartment, but testified that he had no memory of doing so, or of what he did when he first entered the apartment. His first memory from inside the apartment was of crouching over a woman’s handbag, and then seeing Ms. Taggart’s face a few feet from his, and hearing her screaming. He testified that in an effort to make her stop screaming he covered her mouth and face. When she stopped screaming, he attempted to perform CPR on her.
27The appellant acknowledged that he had caused Ms. Taggart’s death, but argued that he should be convicted of manslaughter, not murder. As I have already noted, the defence’s theory at trial was that the appellant had not intended to cause Ms. Taggart’s death or known that his actions made her death likely, in part because he was in an advanced state of intoxication that impaired his ability to foresee the consequences of his actions.
28The defence also disputed whether the evidence proved that the appellant had sexually assaulted Ms. Taggart before killing her, arguing that she could have injured herself in other ways, and that the appellant’s DNA could have been deposited onto her vulva by secondary transfer. The appellant testified that when Ms. Altiman told him she had put the cocaine in her “snatch” he had thought she was referring to her handbag, and his first memory from inside Ms. Taggart’s apartment was of crouching over a women’s handbag.
29The appellant acknowledged that after he killed Ms. Taggart he must have left her apartment and driven to his uncle’s house in Windsor, but he had no memory of doing so. He only came to his senses later that morning at his uncle’s home. The appellant then returned to the United States. He called his parents, but was unable to fully explain what had happened. Later that day he left Detroit and began driving to Seattle.
(5) Evidence regarding the appellant’s level of intoxication
30The defence at trial called expert evidence from Dr. Jonathan Rootenberg, a forensic psychiatrist, about the possible effects of the appellant’s cocaine consumption that night on his mental state. Dr. Rootenberg’s opinion was that when the appellant broke into Ms. Taggart’s apartment and killed her he may have been experiencing cocaine-induced psychosis, in which a person who consumes cocaine can experience delusions and suffer a loss of behavioural control and memory. He testified that it is possible for someone experiencing cocaine-induced psychosis to rapidly snap out of their impaired state, but that this can also take several days. The Crown’s toxicologist, Rachelle Wallage, agreed that people who consume high doses of cocaine may experience delirium and hallucinations.
(6) Evidence regarding strangulation and suffocation
31The Crown adduced opinion evidence from the forensic pathologist, Dr. Tugaleva, about how long it would take for suffocation or strangulation to render someone unconscious, and about how long it would take for a person to then die if the suffocation or strangulation continued. In summary, the Crown relied on this evidence as establishing that the appellant must have continued to asphyxiate Ms. Taggart for some time even after she fell unconscious and stopped screaming, and suggested to the jury that during this time he must have realized that the likely consequences of his actions would be Ms. Taggart’s death.
32Because Dr. Tugaleva’s evidence on these points is central to the appellant’s second ground of appeal, I will discuss it in greater detail later in my reasons.
(7) Positions of the parties at trial
33The Crown’s theory was that the appellant was angry when Ms. Altiman made off with most of the cocaine that he had paid for, and that he set out to look for her and Mr. Thompson. He eventually climbed up to the third floor of the building next door to their residence, apparently under the mistaken belief that he would find them there.
34According to the Crown, once the appellant was inside the third floor apartment he proceeded to digitally penetrate Ms. Taggart, because he mistakenly believed that she was Ms. Altiman, and was searching for the cocaine that he believed Ms. Altiman had concealed in her vagina. According to the Crown, this was how the appellant’s DNA came to be deposited on Ms. Taggart’s genital area. The Crown’s theory was that the appellant then asphyxiated Ms. Taggart, either because he still mistakenly believed her to be Ms. Altiman, or because he now realized that he had broken into the wrong residence and had sexually assaulted a stranger, and was trying to cover up his crime.
35The appellant’s theory at trial was that he had never sexually assaulted Ms. Taggart. His trial counsel noted that the appellant’s DNA was not found inside Ms. Taggart’s vagina or anus, and suggested that his DNA could have been left on her external genitalia through secondary transfer. As far as Ms. Taggart’s death was concerned, the appellant acknowledged that he had killed her, but maintained that he had suffocated her without either intending to kill her or foreseeing that her death was likely, in part because he was highly intoxicated as a result of consuming cocaine for the first time. His position was that he was guilty of manslaughter, but not guilty of either first or second degree murder. His alternative position was that he was guilty of second degree murder.
C. Grounds of Appeal
36The appellant raises two grounds of appeal. First, he argues that the trial judge erred by not leaving extreme intoxication with the jury as a potential defence to the allegation that he had sexually assaulted Ms. Taggart before killing her. Although the appellant was not being tried directly for sexual assault, the Crown was relying on the alleged sexual assault to elevate the appellant’s killing of Ms. Taggart from second degree murder to first degree murder, pursuant to s. 231(5)(b) of the Criminal Code, RSC 1985, c C-46.
37Second, the appellant argues that the trial judge made errors when she summarized Dr. Tugaleva’s evidence in her jury charge, and also failed to correct a related misstatement about this evidence Crown counsel made in her closing jury address.
(1) Does the appellant require leave to advance his grounds of appeal?
38The appellant acknowledges that his trial counsel did not raise either of the issues that he now advances as grounds of appeal. As a preliminary point, the Crown argues that the appellant requires leave to raise new issues on appeal that he did not raise at trial, and that leave should not be granted.
39The Crown cites three cases in support of this argument: R. v. J.F., 2022 SCC 17, paras. 40-41; R. v. Salifu, 2023 ONCA 590, paras. 14-15, 23; and R. v. Wesley, 2025 ONCA 51, paras. 138-143, leave to appeal refused, [2025] S.C.C.A. No. 103. In J.F., a majority of the Supreme Court of Canada discussed when appellants can properly argue for the first time on appeal that their s. 11(b) Charter right to be tried within a reasonable time was infringed, while Salifu and Wesley were both cases where the appellants sought to challenge the constitutionality of legislation for the first time on appeal.
40The situation here is different. While the appellant is indeed making arguments that his counsel did not make at trial, both of his new arguments on appeal challenge the adequacy of the trial judge’s jury instructions. It is well-settled that trial judges have ultimate responsibility for the correctness and completeness of their jury charges: see e.g., R. v. Abdullahi, 2023 SCC 19, para. 67; R. v. Daley, 2007 SCC 53, para. 58; R. v. P.J.B., 2012 ONCA 730, para. 47; and R. v. Murray, 2025 ONCA 222, para. 90. The position defence counsel takes at trial regarding the adequacy of the jury charge will be a relevant consideration on appeal – sometimes a very important one – but it is not determinative: see e.g., Abdullahi, at para. 67; Daley, at para. 58.
41In my view, the appellant does not need to obtain leave to be permitted to argue on appeal that the trial judge erred in her jury instructions, and we cannot summarily dismiss his arguments on the basis that his counsel did not make them at trial. Rather, the appellant is entitled to have his arguments about the correctness and sufficiency of the jury charge considered and decided on their merits.
(2) Should the trial judge have left the defence of extreme intoxication with the jury?
(a) The defence of extreme intoxication
42At common law, intoxication was traditionally not a defence to crimes of “general intent”, a category of offences that includes sexual assault. However, in R. v. Daviault, the Supreme Court of Canada held that the Charter precludes the conviction of persons who act non-volitionally while they are in a state of self-induced intoxication akin to automatism. As Kasirer J. later explained in R. v. Brown, 2022 SCC 18, para. 6:
The majority in Daviault recognized … that the Charter mandated an exception to the common law rule: where intoxication is so extreme that an accused falls into a condition akin to automatism, a conviction for the offence charged would violate ss. 7 and 11(d) of the Charter. It would be unfair, reasoned the Court, to hold an individual responsible for crimes committed while in a state of automatism, as they are incapable of voluntarily committing a guilty act or of having a guilty mind.
43In response to Daviault, Parliament amended the Criminal Code by adding s. 33.1, which effectively eliminated the defence of extreme intoxication when the accused’s intoxication was self-induced. However, in 2020 this court struck down s. 33.1 as unconstitutional: R. v. Sullivan, 2020 ONCA 333, in a decision that was affirmed two years later by the Supreme Court of Canada: 2022 SCC 19; see also the companion case in the Supreme Court of Canada, Brown. When the appellant was tried in the fall of 2021 the Supreme Court of Canada had not yet ruled on the constitutional validity of s. 33.1, but this court in Sullivan had already declared it to be of no force or effect. Accordingly, at the time of the appellant’s trial the common law defence of extreme intoxication established in Daviault had already been restored in Ontario.
44The Daviault defence of extreme intoxication reverses the onus, requiring the accused to establish on a balance of probabilities that “he was in a state of extreme intoxication akin to automatism or insanity”: Daviault, at p. 103. Cory J. noted further that “[t]his will undoubtedly require the testimony of an expert”: Daviault, at p. 103; see also Daley, at para. 45. An accused who meets the burden of establishing the defence is entitled to an acquittal because being in a state of intoxication “so extreme that [it was] akin to automatism” will “render an accused incapable of either performing a willed act or of forming the minimal intent required for a general intent offence”: Daviault, at p. 77.
45In contrast, an accused charged with a specific intent offence, including murder, can point to evidence of their intoxication as a factor that may contribute to the jury having a reasonable doubt about whether the accused had the requisite mens rea for that offence: see R. v. Robinson. When intoxication is advanced as a defence on this basis, there is no reverse onus: the Crown must affirmatively prove all of the essential physical and mental elements of the charged offence on the evidence as a whole, including the evidence of the accused’s intoxication. When the charged offence is murder, the Crown must prove either the intent to kill, or the intent to inflict bodily harm that the accused subjectively knew was likely to cause death: Criminal Code, ss. 229(a)(i) and (ii).
(b) The evidence of intoxication adduced at trial
46After the Crown closed its case, the appellant’s trial counsel advised the trial judge, in the absence of the jury, that the defence would be adducing evidence that the appellant’s “actions that night were not voluntary”. He agreed with the trial judge that this was “a Sullivan Chan case”.
47However, at the end of the trial the appellant’s trial counsel changed course. He now explained to the trial judge that he was disclaiming any reliance on the defence of extreme intoxication, and would only be relying on the evidence of the appellant’s cocaine consumption, and the expert evidence of Dr. Rootenberg about cocaine-induced psychosis, to argue that the jury should be left with a reasonable doubt about whether the appellant had intended to kill Ms. Taggart, or had subjectively foreseen the consequences of his actions.
48The psychiatrist who testified as an expert witness for the defence, Dr. Rootenberg, offered the opinion that the appellant may have been experiencing cocaine-induced psychosis when he asphyxiated Ms. Taggart. He also testified that it was possible that the appellant’s symptoms, “if they were severe enough”, might have affected his capacity to form the intent to kill, or impaired his ability to foresee the consequences of his actions. However, Dr. Rootenberg was not asked to express any opinion about whether the appellant’s cocaine use and earlier alcohol consumption could have caused him to be in a state of intoxication akin to automatism at any point during the night.
49As noted previously, the appellant testified that he had no memory of entering Ms. Taggart’s apartment, or about what happened before he first became aware of his surroundings, which on his account only happened very soon before he killed Ms. Taggart. He did not dispute either that he had killed her, or that his actions that caused her death were volitional. Rather, his primary defence was that her death was not murder because he had not foreseen the likely consequences of his actions, in part because of his intoxication.
50To establish that the appellant was guilty not merely of murder, but of first degree murder pursuant to s. 231(5)(b) of the Criminal Code, the Crown had to prove beyond a reasonable doubt that the appellant intentionally killed Ms. Taggart in the course of sexually assaulting her. To establish the actus reus of sexual assault, the Crown had to prove that the appellant had touched Ms. Taggart in an objectively sexual manner without her consent: see R. v. Ewanchuk, para. 25. It was common ground at trial that if the appellant touched Ms. Taggart’s unclothed genital or anal regions, this touching would have been both non-consensual and objectively sexual, and would have violated Ms. Taggart’s sexual integrity, regardless of whether the appellant was motivated by a sexual purpose or, as the Crown contended, was searching Ms. Taggart orifices for hidden drugs.
51The appellant’s counsel at trial argued that the evidence did not prove beyond a reasonable doubt that the appellant had ever touched Ms. Taggart’s genital or anal regions. However, he did not argue that any such touching by the appellant, if it had occurred, had been involuntary.
52On appeal, Mr. Lockyer takes a different tack from that taken by the appellant’s counsel at trial. He acknowledges that the Crown’s theory that the appellant had left his DNA on Ms. Taggart’s genital region as a result of touching her directly was much more likely than the secondary transfer theory suggested and relied on by the defence at trial. Mr. Lockyer also acknowledges that the jurors were plainly satisfied beyond a reasonable doubt that the appellant had the mens rea for murder when he killed Ms. Taggart, and that this finding precludes any possibility that the jurors might have found on balance of probabilities that the appellant was in a state akin to automatism at this point, if the defence of extreme intoxication had been left.
53However, Mr. Lockyer maintains that the possibility of the appellant having been in a state of extreme intoxication at an earlier point in time was still available on the evidence, and that the appellant was prejudiced by this possibility not being left with the jury as the basis for a partial defence to the first degree murder charge. Specifically, Mr. Lockyer posits a scenario in which the appellant touched Ms. Taggart’s genital and anal regions while he was in a state of cocaine-induced intoxication akin to automatism, before he came out of his automatistic state and intentionally killed her, which the jury found he had done. On this scenario the appellant would still be guilty of murder, but he would not be guilty of the underlying sexual assault that made the killing first degree murder rather than second degree murder.
54I agree that if the appellant murdered Ms. Taggart after having just emerged from an intoxication-induced automatistic state, his non-volitional actions before he committed the murder could not elevate his crime to first degree murder, even if he was acting volitionally and intentionally when he killed Ms. Taggart. I also agree with Mr. Lockyer that since there was evidence from Dr. Rootenberg that a person experiencing cocaine-induced psychosis can emerge from this state suddenly, the jury’s finding beyond a reasonable doubt that the appellant had the requisite mens rea for murder when he killed Ms. Taggart did not, on its own, entirely rule out the possibility of the jury also finding on a balance of probabilities that he was in an automatistic state when he sexually assaulted her.
55The critical question is whether there was evidence that would have permitted the jury to make this latter finding. If so, this scenario would have had an air of reality, and the trial judge would have been obliged to instruct the jury on the defence of extreme intoxication at least in relation to the sexual assault allegation, even though the appellant’s trial counsel was not asking for this defence to be left with the jury.
56As I will discuss, this question hinges on whether Dr. Rootenberg’s evidence that the appellant could have been experiencing cocaine-induced psychosis, situated in the context of the evidence as a whole, would have permitted the jury to find on a balance of probabilities that the appellant sexually assaulted Ms. Taggart while in a state of intoxication akin to automatism, such that his actions were no longer volitional. As I will explain, I am not persuaded that Dr. Rootenberg’s evidence went this far.
(c) Did the defence of extreme intoxication have an air of reality?
57Trial judges are required to instruct juries on all defences that have an “air of reality”. A defence will have an air of reality when there is “evidence upon which a reasonable trier of fact, properly instructed in law and acting judicially, could conclude that the defence succeeds”: R. v. Fontaine, 2004 SCC 27, para. 57. For most defences, where the Crown bears the onus of disproving the defence on the criminal standard of proof, the defence will succeed if the Crown cannot disprove at least one of its essential elements beyond a reasonable doubt. However, for reverse onus defences, including the defence of extreme intoxication akin to automatism, the defence will only succeed if the accused affirmatively establishes the defence’s essential elements on a balance of probabilities.
58Even if the jury accepted the appellant’s evidence that he had no memory of substantial blocks of time both before he killed Ms. Taggart and afterwards, this would not have not been sufficient on its own to establish that his actions during the time periods he could not remember were non-volitional: see Daviault, at p. 101; R. v. McQuarrie, 1998 ABCA 246, para. 16. The question we must consider is whether there was expert evidence that would have permitted the jury to draw this further conclusion.
59The defence’s expert witness, Dr. Rootenberg, gave evidence that the appellant could have been in a state of cocaine-induced psychosis. He defined psychosis as the “inability to tell fantasy from reality”, and explained that persons experiencing psychosis may have “symptoms like hallucinations, delusions, disorganized thinking, or behavioural discontrol.” Dr. Rootenberg offered the opinion that the appellant could have been experiencing delusions that “may have risen to that level of a cocaine-induced psychosis”. The Crown’s toxicologist, Rachelle Wallage, agreed that people who consume high doses of cocaine may experience delirium and hallucinations. Indeed, there was no real disagreement at trial that the appellant’s thought processes that night were disordered. The Crown’s theory that the appellant had climbed up to the third-floor apartment next door to Mr. Thompson and Ms. Altiman’s house in search of Ms. Altiman, despite having previously met with Mr. Thompson and Ms. Altiman in front of their house, and that he then mistook Ms. Taggart for Ms. Altiman, implied that he was, at a minimum, not thinking clearly.
60However, neither Dr. Rootenberg nor Ms. Wallage testified that the appellant’s cocaine use could have caused him to enter into a state of mental impairment akin to automatism. Dr. Rootenberg’s evidence that the appellant could have been experiencing drug-induced psychosis did not go this far, since psychosis and automatism are not synonymous. While some people who experience drug-induced psychosis may become so impaired that their actions can no longer be seen as volitional, not everyone who experiences psychotic symptoms – that is, delusions, hallucinations, or disordered thinking – will be affected so severely. The question of whether drug-induced psychotic symptoms caused a particular accused to enter an impaired mental state akin to automatism will depend on the circumstances and the evidence in that case. For instance, in R. v. Chan, the companion case that was decided together with Sullivan, this court ordered a new trial rather than entering an acquittal on the grounds that even though the trial judge had made a finding that the accused was experiencing “psychosis induced by intoxication”, he had “made no finding that Mr. Chan was not acting voluntarily” or that he had “reached the stage of automatism”: Sullivan (C.A.), at paras. 164, 166. [1]
61The same is true of the related question of whether the defence of extreme intoxication akin to automatism has an air of reality. For instance, in R. v. Morris, 2024 SKCA 36, para. 101, where the Saskatchewan Court of Appeal found that it was an error for the trial judge not to have left the defence with the jury, the accused had adduced psychiatric opinion evidence that he had been acting in an automatistic state when he committed two robberies and sexually assaulted one of the robbery victims. If the jury had accepted this evidence, it would have permitted the jurors to find that the accused had met his burden of establishing the defence of extreme intoxication akin to automatism.
62There are some factual parallels between Morris and the appellant’s case. Like the appellant, the accused in Morris had no prior criminal record, and “some of [his] actions surrounding the criminal acts in question were bizarre”: Morris, at para. 101. However, the accused in Morris also had a history of unusual behaviour when he drank heavily, and “[t]here was also medical evidence of a past incident of a dissociative experience”: Morris, at para. 101. The most critical difference is that Dr. Rootenberg, unlike the forensic psychiatrist who testified for the defence in Morris, was never asked to give an opinion about whether the appellant’s possible cocaine-induced psychosis rose to the level where he was in a state akin to automatism. The appellant’s experienced trial counsel appears to have made a considered decision not to raise this issue with Dr. Rootenberg, and Crown counsel unsurprisingly did not do so herself in cross-examination.
63Absent any expert opinion evidence that the appellant’s cocaine consumption had caused him to act non-volitionally, as opposed to merely acting bizarrely or irrationally, perhaps because he was experiencing hallucinations, delusional beliefs or disordered thinking, there was in my view no air of reality to the defence of extreme intoxication akin to automatism.
64While I agree with Mr. Lockyer that there was considerable other evidence in the trial record that the appellant had acted bizarrely and irrationally that night, and that his conduct was seemingly out of character, this evidence was not capable, considered along with the appellant’s testimony about his lack of memory, of establishing on a balance of probabilities that his actions that night were non-volitional, rather than merely caused by his drug-impaired thought processes. Without expert evidence that the specific drugs the appellant had consumed that night (that is, cocaine and alcohol) were capable of causing extreme intoxication akin to automatism, it would have been speculative for the jury to jump to the conclusion that the appellant’s intoxication was so severe that he was no longer acting of his own volition.
65In my view, the appellant’s experienced trial counsel, despite initially indicating that the appellant would be seeking to advance the defence of extreme intoxication akin to automatism, correctly recognized at the end of the trial that the evidence that had been presented to the jury did not support this defence. This is why he took the position that this defence should not go to the jury. On the evidential record, the trial judge likewise made no error by not instructing the jury on this defence.
66Accordingly, I would not give effect to this ground of appeal.
(3) The jury instructions regarding Dr. Tugaleva’s evidence
(a) Dr. Tugaleva’s trial testimony
67Dr. Tugaleva, who conducted the post-mortem examination of Ms. Taggart and was called by the Crown as an expert in forensic pathology, gave opinion evidence about how unconsciousness and death could result both from suffocation, where a person’s airways are blocked, and from strangulation, where blood flow to the person’s brain is cut off.
68Dr. Tugaleva explained during her examination-in-chief that “based on the findings of [the] post mortem examination I came to [the] conclusion that Mrs. Taggart died from neck compression and suffocation.” After taking Dr. Tugaleva through Ms. Taggart’s injuries, Crown counsel asked her to provide an opinion “as to how long it would take a person to become unconscious if their external airways were completely blocked?” Dr. Tugaleva replied:
If the person is not breathing – it depends on multiple factors, but generally after 30 seconds, person can become unconscious. And the time varies like from – it’s on average 30 seconds to one minute, but come to three minutes in some people. And obviously people who practice – experienced diver – can keep their breath down for – for minutes. But generally after 30 seconds would lead to – just as person can become unconscious, if you – if you stop – actually, if you stop blood supply to the brain more so, and if you stop breathing as well.
69Crown counsel then asked Dr. Tugaleva how long it would take a person to die “if their airway is completely obstructed”. Dr. Tugaleva responded:
So if brain does not receive blood and oxygen for some time, brain – and it’s not necessarily comes just from oxygen. Literature more going with brain ischemia, which is from blood supply. What happened with breathing, it’s – the numbers will be a bit higher. So if brain does not get blood supply for example, for three to five minutes, it will die. With breathing, even if you don’t breathe and unconscious, those numbers can be – can be a bit higher, and I don’t know how much higher.
70The appellant’s trial counsel did not cross-examine Dr. Tugaleva about either of these aspects of her opinion evidence, but did cross-examine her about her further opinion evidence that neither suffocation nor strangulation would require a great deal of force.
71The appellant’s evidence was that he put his hand over Ms. Taggart’s mouth and nose to stop her from screaming. He did not recall strangling her.
(b) The Crown’s closing submissions
72The appellant’s trial counsel addressed the jury first, and did not challenge Dr. Tugaleva’s opinion evidence on this point. During the Crown’s closing address, Crown counsel told the jurors:
Dr. Tugaleva testified it takes about 30 to 60 seconds for a person to become unconscious if their external airways were completely obstructed, or if the blood supply to the brain was obstructed. Autumn Taggart would obviously have not been screaming after she went unconscious. Dr. Tugaleva also testified that a person would die if their airways and blood supply were cut off for three to five minutes.
It's simply unimaginable that Mr. Bhogal could manually strangle or suffocate Autumn Taggart for the length of time required to cause her death without foreseeing he would cause her death. Three to five minutes. Mr. Bhogal is an intelligent man. He was an engineer. He knew what he was doing and he knew it would kill her. This may not have been what he planned when he crossed the border, or even when he entered the apartment, but at the point in time when he obstructed the flow of air from both her mouth and nose, and compressed her neck with enough force to cause bruising, he intended to kill her, or knew he was causing bodily harm likely to cause her death.
73The appellant’s trial counsel did not object to this aspect of the Crown’s closing address.
(c) The jury charge
74In her jury charge, when discussing what the Crown must prove to establish the mens rea for murder, the trial judge summarized the parties’ positions as follows:
The Crown says that death was clearly foreseeable. The Crown relies on the fact that Mr. Bhogal had to keep his hand on Ms. Taggart’s nose and mouth for approximately three to five minutes for death to result. The Defence resists that conclusion.
75Later in her charge, the trial judge provided the following summary of Dr. Tugaleva’s evidence on this point, stating:
Dr. Tugaleva testified that a person would likely lose consciousness within 30 seconds of having the oxygen supply cut off. It would take approximately three to five minutes to cause death.
76The appellant’s trial counsel did not object to either aspect of the charge.
(d) The argument on appeal
77On appeal, the appellant argues that Crown counsel and the trial judge both misstated Dr. Tugaleva’s evidence by conflating the distinct questions of how long it would take for either suffocation – the cutting off of a person’s air supply – or strangulation – the cutting off of the blood supply to a person’s brain – or for the two in combination, to cause either unconsciousness or death. The appellant submits that Dr. Tugaleva’s evidence on both points was confusing and unclear, and that Crown counsel and the trial judge both misunderstood and misrepresented her opinion.
78I do not agree that Dr. Tugaleva’s evidence was as unclear as the appellant now contends. On a fair reading of her testimony, in my view, her opinions can be summarized as follows:
(i) Most people who are suffocated will lose consciousness in approximately 30 to 60 seconds, although some people can remain conscious for as long as three minutes;
(ii) People who are suffocated and strangled simultaneously will typically lose consciousness in around 30 seconds;
(iii) People who are strangled will typically die in approximately three to five minutes, based on the scientific literature about brain ischemia, where the blood supply to the brain is cut off;
(iv) Death from suffocation alone would take a somewhat longer amount of time than death by strangulation, but Dr. Tugaleva could not say how much more time would be required.
79Read literally, Crown counsel may have slightly misstated Dr. Tugaleva’s opinion by suggesting to the jury that the three to five minute figure was an estimate for how long it would take for death to result from simultaneous suffocation and strangulation. As noted above, Dr. Tugaleva was only asked to give an opinion about how long it would take for death to result from suffocation alone. In answering this question she had also given an opinion about how much time would be required to cause death by strangulation alone, to use as a reference point. However, Dr. Tugaleva was not asked how much the time would be reduced if a person were suffocated and strangled at the same time.
80The trial judge also may have slightly mischaracterized Dr. Tugaleva’s evidence by stating that her three to five minute estimate was for death by suffocation. This was actually Dr. Tugaleva’s estimate of how long it would take for someone to die from strangulation; her opinion was that death by suffocation would take somewhat longer, but she could not quantify how much longer it would take.
81For this ground of appeal to succeed, the appellant must establish both that there were misstatements of the evidence, and that one or more of those misstatements caused him substantial prejudice: see R. v. Ruthowsky, 2024 ONCA 432, paras. 134, 142. Misstatements by the trial judge and by Crown counsel are assessed differently. A trial judge’s misstatement of evidence generally will not give rise to a reversible error, especially where no objection is taken at trial, unless the misstatement relates to a key piece of evidence or “a piece of evidence that is the sole support for a defence”: R. v. Srun, 2019 ONCA 453, para. 155. Misstatements of evidence in the Crown’s closing address will give rise to a reversible error only when they are so prejudicial that they cause a substantial wrong or a miscarriage of justice: R. v. Clyke, 2021 ONCA 810, para. 36. As Copeland J.A. explained in Ruthowsky, at para. 142:
While not determinative, the absence of an objection from defence counsel may indicate that the content of the Crown’s closing address was not viewed as improper at the time and/or that the comments were not so prejudicial as to render the trial unfair. [Citations omitted.]
82In this case I am not persuaded that any misstatements of Dr. Tugaleva’s evidence by either Crown counsel or the trial judge caused any substantial prejudice to the appellant. I reach this conclusion for three main reasons.
83First, while the appellant admitted to having suffocated Ms. Taggart by covering her mouth and nose with his hand, and while the physical evidence of bruising on her neck suggested that he may also have strangled her at some point, there was no evidence that he had done both of these things simultaneously. During cross-examination, Crown counsel suggested to the appellant that Ms. Taggart had died as a result of his covering her nose and mouth for “at least three minutes” – that is, by suffocation – without suggesting that he had also been strangling her at the same time. This blunts the impact of any suggestion in Crown counsel’s closing address that Dr. Tugaleva’s three to five minute estimate was for how long it would take someone to die if they were being simultaneously suffocated and strangled.
84Second, while Dr. Tugaleva’s evidence was that death by suffocation would take somewhat longer than her three to five minute estimate for death by strangulation, any error the trial judge may have made by conflating these two scenarios inured to the appellant’s benefit. The point Crown counsel sought to have the jury take from Dr. Tugaleva’s evidence was that the appellant must have kept his hand over Ms. Taggart’s nose and mouth for so long that he must have foreseen the probable consequences of his actions. This argument would have been strengthened, not weakened, if the trial judge had reminded the jury that Dr. Tugaleva’s evidence was that death by suffocation would take somewhat longer than her three to five minute estimate for death by strangulation.
85Third, and most importantly, the exact mechanisms the appellant might have used to cause Ms. Taggart to first lose consciousness, and then to die, were ultimately not of critical importance in this case. Rather, the salient point was that Ms. Taggart would have lost consciousness some time before she died, and that after she passed out the appellant must have continued doing something that prevented her brain from receiving oxygen for several more minutes, in order to have caused her death. During this latter time period Ms. Taggart would have been unconscious and thus no longer screaming. This undermined the appellant’s testimony that he had suffocated her only until she stopped screaming, and also supported the Crown’s argument that he would have had several minutes to realize the likely consequences of continuing to suffocate or strangle an already unconscious person.
86My conclusion that the appellant suffered no prejudice from any misstatements of Dr. Tugaleva’s evidence by either Crown counsel or the trial judge is reinforced by the lack of any objection by experienced trial counsel, either to the Crown’s closing address or to this aspect of the trial judge’s jury charge.
87I would accordingly not give effect to this ground of appeal.
D. Disposition
88In the result, I would dismiss the appeal.
Released: July 9, 2025
“D.M.P.”
“J. Dawe J.A.”
“I agree. David M. Paciocco J.A.”
“I agree. B. Zarnett J.A.”
1Chan’s cross-appeal to the Supreme Court of Canada from this aspect of this court’s decision was quashed for want of jurisdiction: see Sullivan (S.C.C.), at paras. 88-92.
