COURT OF APPEAL FOR ONTARIO
Paciocco, Sossin and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
And
Amanda Clement
Appellant
Eric Granger and Ethan See, for the appellant
Ryan Mullins, for the respondent
Heard: May 14, 2026
On appeal from the convictions entered by Justice Catherine A. Kehoe of the Ontario Court of Justice on March 21, 2022, and from the sentence imposed on August 22, 2022.
I. Overview
1The appellant, Amanda Clement, also referred to as Amanda Poitras, was convicted of assault, assault with a weapon, uttering threats, and obstruction of justice in relation to the complainant. The appellant appeals her convictions, arguing that the trial judge committed errors in her self-instruction on the test from R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and in failing to consider the entirety of the alibi evidence. The appellant also seeks leave to appeal her sentence for failure to apply the principles from R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688. For the reasons that follow, I would dismiss the conviction appeal, and I would grant leave to appeal sentence but dismiss the appeal.
II. Background
2The appellant had recently left an abusive relationship. She moved in with her brother and his girlfriend and began working at her brother’s business. While working there, the appellant met Garry Rolland, who was her brother’s friend and worked for her brother as a mechanic. The complainant was Mr. Rolland’s girlfriend. The complainant periodically visited the office to bring coffee for Mr. Rolland, and the appellant and the complainant had met socially on a few occasions.
3Eventually, the appellant came to dislike and be angry with the complainant. The appellant described having developed a “crush” on Mr. Rolland, and Mr. Rolland admitted to some mutual flirtation and texting between the two, although nothing more. On February 11 and February 16, the appellant texted Mr. Rolland regarding her apparent disdain for the complainant. The complainant began receiving threatening text messages from an unidentified number on February 13, 2019. The trial judge found that the appellant sent these messages.
4This culminated in the assault of the complainant on February 18, 2019, at night while in her driveway, on her way to collect her daughter. She reported that an SUV pulled up and an unknown male approached, asking her for directions. She began giving him directions, when he suddenly punched her in the face, knocking her over and rendering her temporarily unconscious. He pinned her down, grabbed her hair, inflicted a cut on her throat with a sharp object, and told her to leave the appellant and her boyfriend alone. The complainant struggled to get away. She heard the appellant’s laugh, which she recognized as distinctive, and saw the appellant exit the SUV and approach. The appellant told the unknown male to cut the complainant deeper and kill her. The complainant heard someone say, “You need to stay away from Garry.” The appellant kicked the complainant in the ribs, spit in her face, and told her that if she “snitched she would end up in the ditch”.
5The trial judge summarized the following important events surrounding the assault:
(1) In the spring or early summer of 2018, the complainant and the appellant first met while the appellant was working at her brother’s business. The appellant explained that she had just left an abusive relationship and was dealing with some mental health issues as a result. The complainant, a social worker, commiserated. The appellant later reported that she felt that the complainant had been reading text messages over her shoulder on this date and was angry about this.
(2) In the summer of 2018, the appellant, her brother, Mr. Rolland, and the complainant attended a barbeque. Another couple in attendance got into an argument. Mr. Rolland apparently stood up for the female involved in the argument, and the appellant allegedly told others that the complainant was jealous. The complainant denied having been jealous.
(3) At her father’s funeral in November 2018, the appellant became quite intoxicated. In the bathroom, she ran into the complainant and told the complainant that they were in love with the same man, and that she had sexual intercourse with Mr. Rolland at work.
(4) The complainant and Mr. Rolland were walking to the appellant’s brother’s birthday party on February 11, 2019. They both described seeing the appellant driving by on her way to park for the party, waving her hands. Mr. Rolland believed that she was angrily waving her hands. The appellant testified that she was simply surprised to see them there, as she believed that the complainant would not be invited. As mentioned above, Mr. Rolland also received texts from the appellant about her dislike of the complainant on this date.
(5) After the birthday party, the complainant began receiving the threatening text messages described above. These texts included statements such as “You ruined her life before you can around she was doing her best and now this. I should get someone to kick the shit out of you...Gary doesn’t love you if he loves Amanda and trust me he does by the way he makes love to her.”
(6) On April 11, 2019, after the appellant was arrested, the complainant received a threatening text message, telling her to sleep with one eye open, and that she “shoulda got him to finish [the complainant] right then and there”.
6The appellant testified that she was home at the time of the assault on the complainant. The appellant’s daughter, Lauren Gale, provided support for the appellant’s alibi evidence. She stated that she and her boyfriend had visited the appellant on February 18, 2019, at her home the evening of the assault. She provided conflicting estimates as to the times she was at the residence. Photographs from the appellant’s phone were tendered, including an image of a hairstyle that had been screen captured from Pinterest that the appellant claimed she had taken at home in order to show it to Ms. Gale, and a photograph of Ms. Gale with the appellant’s dogs, reportedly taken in the afternoon.
III. Decision Below
7The key issues at trial were whether the appellant was the one to author the threatening messages, whether she was a party to the assault by the unknown male, and whether she herself was the female who assaulted the complainant in her driveway on February 18, 2019. The appellant disputed each of these claims.
8The trial judge began by describing the principles set out in W.(D.), and acknowledging the well-established frailties associated with eyewitness identification, particularly in light of the circumstances of the assault, including the darkness at the time, the fact that the complainant had been struck and momentarily lost consciousness, and the stressful nature of the incident. Nevertheless, the trial judge accepted that additional factors mitigated these concerns, including the presence of a streetlight, the fact that the appellant was known to the complainant, and the complainant’s recognition of the appellant by her distinctive laugh.
9Broadly, the trial judge rejected the appellant’s evidence in its entirety, finding that the appellant was the author of the threatening text messages, was a party to the male perpetrator’s assault, and personally assaulted the complainant on February 18, 2019
10According to the trial judge, the appellant’s testimony lacked credibility, as she frequently failed to provide responsive answers, often resorted to hearsay, diverted to discussions of medical or mental health issues, or spoke about matters unrelated to the questions posed. The trial judge identified numerous internal inconsistencies in the appellant’s evidence, particularly regarding her relationship with Mr. Rolland and her hostility toward the complainant. Despite denying any anger or resentment toward the complainant for interfering in her relationship with Mr. Rolland, the appellant’s text messages to Mr. Rolland clearly expressed such sentiments. She minimized her use of the word “crush” in reference to Mr. Rolland in her testimony. The appellant contradicted herself by claiming she did not go to certain family outings because she generally disliked socializing, but she had texted Mr. Rolland that she had been excluded from family events because of the complainant.
11The appellant provided inconsistent accounts of her alcohol consumption at her father’s funeral, initially minimizing it but later attributing her behaviour to being drunk and conceding intoxication during cross-examination. The appellant also claimed she had been in an accident on the day of her brother’s birthday and was attempting to reach Mr. Rolland and her brother, despite the absence of any evidence of an accident and the lack of any reference to such an event in her subsequent text messages to Mr. Rolland. The trial judge found that the appellant repeatedly attempted to change or manipulate her evidence and concluded that she was unreliable, unresponsive, and not credible.
12With respect to Ms. Gale, who was called as a witness regarding events at the appellant’s father’s funeral in November 2018, and as an alibi witness for February 18, 2019, the trial judge found her to be an unreliable witness with a poor and inconsistent memory. Ms. Gale provided conflicting evidence about the times she and her partner arrived at the appellant’s residence on the night of the assault. She also provided conflicting evidence as to how long she stayed after returning. Ultimately Ms. Gale testified, “I was with my mom that night. I may not remember the times that I was with her because… I don’t record my life.” Ms. Gale was uncertain in her recollection of a washroom incident at the funeral, recalling only that the appellant had expressed that she liked the complainant’s husband. She was unable to remember what was specifically said. Ms. Gale asserted that the appellant did not claim to have had intercourse with Mr. Rolland, reasoning that she would have remembered such a statement. She acknowledged that her mother was ill, throwing up, and distressed at the time, but she stated that the length of time that had passed since the incident limited her ability to recall events clearly. The judge concluded that Ms. Gale’s evidence did not raise a reasonable doubt and did not support an alibi.
13With respect to the complainant, the trial judge found her to be a credible and reliable witness, noting only minor inconsistencies in her testimony. Photographs of the complainant’s injuries corroborated her account, and her identification of the appellant as the attacker was supported by her prior familiarity with the appellant, recognition of the appellant’s laugh, and the fact that the appellant was wearing a white winter hat during the attack and when she attended the police station.
14The trial judge found that Mr. Rolland’s evidence was given in a direct and honest manner, and he acknowledged some flirting with the appellant. As discussed above, the text messages sent by the appellant to Mr. Rolland demonstrated a significant dislike of the complainant.
15The trial judge further found that the screen captures taken on the appellant’s cellphone did not establish or support Ms. Gale’s alibi evidence, as the photographs could have been taken at any location. With respect to the threatening text messages sent on February 13 and February 16, 2019, the trial judge rejected the appellant’s denial of authorship, noting that the wording, language, and complaints about the complainant closely mirrored messages the appellant had sent to Mr. Rolland on February 11 and February 16, 2019, expressing her dislike of the complainant.
16Similarly, the April 11, 2019 message, which contained threats referencing the appellant’s arrest and warned the complainant to “sleep with one eye open”, employed language and content consistent with earlier communications. When assessed cumulatively and logically, the trial judge concluded that the only reasonable inference was that the appellant was the author of the threatening texts in February 2019. The Crown was found to have proven all elements of the offences beyond a reasonable doubt, and the appellant was convicted on all counts.
IV. Sentencing Decision
17In sentencing, the trial judge first noted that the offences before the court predated the appellant’s unrelated July 2020 convictions for unauthorized possession of a firearm in a motor vehicle and for being an accessory after the fact to an indictable offence. Although a Gladue report was requested, the Gladue Program Manager was unable to substantiate the appellant’s claimed Indigenous ancestry for Gladue purposes, as the organization with which the appellant claimed affiliation was not recognized on any registered list or map of First Nations or Indigenous communities. As a result, no specific Gladue factors could be formally established. Nevertheless, the court accepted that the appellant had experienced trauma related to domestic violence and substance abuse, which raised the possibility of intergenerational trauma. The judge therefore took into account the appellant’s difficult upbringing and resulting mental health challenges independent of the formal Gladue framework.
18The Crown sought a sentence of incarceration in the range of 18 to 24 months for assault with a weapon, to be served concurrently with 12 months for assault, 6 months for uttering threats, and 6 months for obstruction of justice. Victim impact statements from the complainant and her daughter were filed and considered, both of which described the terror resulting from the offences and the complainant’s ongoing physical pain.
19The defence emphasized the appellant’s late involvement with the criminal justice system, her exposure to violence within intimate relationships, and her ongoing mental health difficulties. Defence counsel submitted that a sentence in the range of 15 months to 2 years less a day was appropriate and argued that a conditional sentence should be imposed. Letters of support were tendered, reflecting the appellant’s progress and rehabilitation efforts. While acknowledging that the appellant’s subsequent criminal record constituted an aggravating factor, the defence emphasized mitigating factors including strong rehabilitation potential, support from friends and family, and recent employment.
20The trial judge agreed with both counsel that denunciation and general and specific deterrence were the primary sentencing principles applicable in this case, while also recognizing the appellant’s recent efforts toward rehabilitation. The court identified several aggravating factors, including the ongoing nature of the threatening, degrading, and abusive messages directed at the complainant. The judge emphasized the seriousness of the assault itself, noting that the complainant was attacked at her home while attempting to pick up her daughter, was punched and rendered unconscious, dragged, threatened with a sharp object placed against her throat, cut, bruised, pinned, and kicked. The court further highlighted the significant impact of the offences on the complainant and her daughter, both of whom continued to feel unsafe in their home and in public, particularly given that the complainant was recovering from major abdominal surgery at the time of the assault, which the appellant knew. The trial judge also found it significantly aggravating that, at the time she planned and committed these offences, the appellant was on release on the charges that resulted in the July 2020 convictions I describe above.
21As mitigating factors, the trial judge considered the appellant’s prior education and employment as a nurse, her attendance at counselling, her disengagement from problematic peers, her work history, current employment, and the support she received from friends and her children. While the appellant denied issues with substance abuse, the court noted evidence indicating that she was intoxicated at both a barbecue and her father’s funeral.
22The court concluded that a conditional sentence was not appropriate in light of the gravity of the offences. The trial judge emphasized that the messages were intended to threaten and intimidate the complainant, that the appellant carried out the threats that had been uttered, and that the complainant suffered significant and ongoing physical, emotional, and psychological harm as a result. The obstruction of justice offence was described as particularly concerning.
23The court determined that a custodial global sentence of 18 months was proportionate and fit. After crediting the appellant with four months for pre-sentence custody and granting no credit for time spent on release conditions, the court imposed a sentence of 14 months’ imprisonment.
V. Grounds of appeal
24The appellant stated the following grounds of appeal:
(1) The trial judge failed to grapple with the true issues raised by the alibi defence raised at trial by:
(a) Conflating the alibi itself, which arose from the appellant’s own viva voce evidence, with evidence that was said to corroborate the appellant’s alibi;
(b) Assessing the evidence relevant to the appellant’s alibi in a piecemeal fashion; and
(c) Failing to assess the appellant’s alibi evidence in the context of the evidence as a whole to assess whether it left the trial judge with a reasonable doubt, coupled with a misdirection on the second branch of the W.(D.) analysis that if she disbelieved the appellant’s evidence, “has a reasonable doubt been raised on the evidence I do accept”.
(2) In the alternative, the appellant seeks leave to appeal against sentence on the basis that the trial judge erred in principle:
(a) By failing to consider Gladue factors in the case, given the positive, albeit limited evidence of the appellant’s Indigenous ancestry; and
(b) By confining her analysis of aggravating factors and why a conditional sentence was inappropriate to a factual summary of what happened in this case.
VI. The conviction appeal
25The appellant argues that the trial judge misapplied the rule in W.(D.) when assessing the alibi evidence, and failed to grapple with all of that evidence, including the critical alibi evidence provided by the appellant. I would reject both grounds of appeal.
26I accept that the trial judge misstated the rule in W.(D.). She said, at para. 15:
i) If I believe the accused’s evidence, I must acquit;
ii) If I reject the accused’s evidence, has a reasonable doubt been raised on the evidence I do accept;
iii) If I reject the accused’s evidence, has the Crown proved all of the elements of each offence beyond a reasonable doubt on the evidence I do accept.
She then concluded, at para. 18:
I do reject Ms. Poitras’ evidence and do not have a reasonable doubt on the evidence I do accept that Ms. Poitras was the author of the threatening text messages and was a party to the assault with a weapon. I find that Ms. Poitras is the person who encouraged the unknown male in the assault with the weapon, and who separately kicked and spat on [the complainant] while she was being assaulted by the unknown male. I reject the alibi evidence of [Ms. Gale]. [Emphasis added.]
27This description of the W.(D.) framework in paragraph 15 of her decision is inaccurate. The second branch of W.(D.) is not about evidence that is accepted. On the contrary, it addresses whether exculpatory evidence that is not accepted nonetheless raises a reasonable doubt when considered in the context of the entirety of the record. If so, the trier of fact must acquit the accused: R. v. Lavergne, 2022 ONCA 760, at para. 41. This will occur in circumstances where evidence inconsistent with guilt that is not affirmatively accepted could reasonably be true. The articulation of the rule in W.(D.)by the trial judge fails to recognize this important consideration and effectively states the third branch of W.(D.) twice.
28Moreover, the trial judge’s finding in paragraph 18, excerpted above, reflects the error she made in stating the rule. It appears to show that she not only misdirected herself on the framework but applied it incorrectly.
29The appellant argues this misdirection deprived her of having her alibi evidence considered properly by the trial judge.
30The appellant also argues that the trial judge failed to consider all of the alibi evidence. In submissions before us the appellant set out the evidence relating to the alibi as follows:
- The complainant isolated the time she left her house and was assaulted on her driveway as falling between 9:30 and 9:40 or between 9:35 and 9:40.
- The complainant acknowledged that she had seen the “black vehicle” subsequently implicated in the assault in front of her home for a period of time prior to that. While she did not see the licence plate, she believed it to be the same vehicle. She estimated in her police statement that she had seen the vehicle there for approximately 20 minutes prior to exiting her home.
- The appellant testified that she was at her house on February 18, 2019 at the time of the alleged assault and did not know where the complainant lived.
- The appellant testified that Ms. Gale had been over for Family Day with her boyfriend, had been over for dinner the night before, slept over, “hung out”, left for a few hours and came back to pick up their belongings before heading home.
- The appellant had two screen captures from Pinterest taken at 9:30 and 9:32 respectively on February 18, 2019 that she said she took at home in order to show them to Ms. Gale.
- According to the appellant, she knew that Ms. Gale left “around 9:30” because there was a picture on her iPhone that she had taken “shortly after” Ms. Gale had left.
- Ms. Gale estimated having returned to her mother’s house to retrieve her belongings “around nine o’clock, 9:15 maybe”, and estimated that she then left her mother’s house “between 9:30 and ten o’clock”.
- Ms. Gale estimated the drive back to her home from the appellant’s house would have taken “about an hour-and-a-half, an hour and 45 minutes”.
- Ms. Gale described getting home “very late” which to her, “very late” meant after 10:00.
- The police constable gave evidence that the typical travel time between the appellant’s home and the complainant’s home was approximately 29-30 minutes.
31Yet, when discussing the alibi evidence, the trial judge only made reference to the testimony of the appellant’s daughter, Ms. Gale, who was found to be unreliable. The appellant submits that the reasons therefore ignore the alibi evidence she presented when she testified that she was home at the time of the attack and not at the complainant’s residence and failed to grapple with the entirety of the record.
32The Crown concedes the trial judge’s description of the W.(D.) framework was not accurate but argues that it had no effect on the verdict. According to the Crown, a misstatement of the W.(D.) test does not constitute an error where the preponderance of what was said shows that the proper test was applied and the decision can be justified on the evidence. The Crown submits that the reasons as a whole make clear the trial judge properly instructed herself to avoid a contest between competing narratives and that she had to assess the evidence as a whole.
33The Crown also argues that the appellant did not proffer a true alibi defence but rather a partial one.
34I would not accept the Crown’s description of the alibi evidence. The appellant’s testimony that she was home at the time of the attack, if accepted, constitutes a complete alibi to the charges against her.
35However, I do accept the Crown position that the inaccurate statement of the rule in W.(D.) by the trial judge had no impact on the decision. The part of the rule that she omitted addresses whether exculpatory evidence that is not affirmatively believed raises a reasonable doubt. That is not possible where it is clear from the trial judge’s reasons that she rejected the exculpatory evidence in its entirety. Not only did the trial judge reject the appellant’s testimony as a whole but also characterized her evidence as unreliable and not credible and stated that she was unresponsive and evasive. The trial judge observed that the appellant changed her evidence in order to “manipulate” it, and at other times “referred to hearsay, denied or simply changed” her evidence as needed. She not only disbelieved the appellant’s testimony, but she accepted the complainant’s identification of the appellant as present and involved when she was assaulted, a conclusion that is supported by the emails.
36This court has held that, where a trial judge misstates the second branch of the W.(D.) if “the trial judge completely rejected the appellant’s testimony and found the Crown’s case overwhelming”, such a misstatement is not fatal: R. v. Rattray, 2007 ONCA 164, 222 O.A.C. 28, at paras. 16-21; R. v. H., G., 2002 CanLII 49363 (ON CA), 165 O.A.C. 56 (C.A.), at para. 15; R. v. L.G., 2009 ONCA 895, 257 O.A.C. 116, at paras. 11-13; Lavergne, at paras. 40-42. Although the articulation of the rule in W.(D.) is important, as the Supreme Court stated in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23, “What matters is that the substance of the W. (D.) instruction be respected.” Given the trial judge’s complete rejection of the alibi evidence, this case raised only the W.(D.) considerations that the trial judge identified correctly.
37Moreover, given the reasons provided there is no basis for the claim that the trial judge’s complete rejection of the appellant’s testimony somehow did not fully cover her alibi evidence, or that she failed to consider the remaining alibi evidence. She addressed specifically why the phone photos did not support the alibi and addressed problems with the evidence of the time-line needed to support an alibi defence.
38The appellant also argues the trial judge only dealt with this evidence in a piecemeal fashion, for example, by considering Ms. Gale’s evidence on its own, rather than as part of consideration of the appellant’s alibi evidence.
39The appellant contends that the trial judge was obliged to explain what she meant by stating, as set out above, that she rejected the alibi evidence of Ms. Gale. The appellant states this conclusory reference does not address whether the trial judge rejected all or just some of Ms. Gale’s evidence.
40I reject the submission that the trial judge failed to grapple with this evidence or did so in a piecemeal fashion. She rejected Ms. Gale’s evidence as unreliable and was not required to provide the specificity sought by the appellant as to the rejection of Ms. Gale’s alibi evidence.
41For these reasons, the trial judge’s misstatement of the W.(D.) framework did not constitute a reversible error. Moreover, the reasons were adequate. There is no basis for finding the trial judge failed to grapple with the entirety of the evidence. I would dismiss the conviction appeal.
VII. The sentence appeal
42The appellant seeks leave to appeal against sentence on the basis that the trial judge erred in principle in failing to consider Gladue factors in the case, given the positive, albeit limited evidence of the appellant’s Indigenous ancestry.
43While a Gladue report was requested, the Ontario Native Women’s Association was not able to substantiate ancestry for Gladue purposes.
44The trial judge concluded, “Without finding that Ms. Poitras does have ties to First Nations or Indigenous ancestry, I have considered her difficult upbringing, the abuse, substance abuse, and the resulting mental health issues, in determining a fit sentence.”
45In my view, the trial judge did not err in concluding she could not formally considerGladue factors in this case. Rather, she took into consideration the underlying challenges in the appellant’s upbringing that were supported by the record.
46While not pursued in oral argument, I would also reject the appellant’s argument that the trial judge erred in her assessment of aggravating factors by simply repeating the facts that grounded the essential elements of the offences. The trial judge was entitled to consider the vicious and pre-meditated nature of the assault as aggravating, and this went beyond the elements of the offence.
VIII. Disposition
47For these reasons, I would dismiss the appeal against conviction, and I would grant leave to appeal the sentence and dismiss the appeal.
Released: June 18, 2026 “D.M.P”
“L. Sossin J.A.”
“I agree. David M. Paciocco J.A.”
“I agree. L. Madsen J.A.”