COURT OF APPEAL FOR ONTARIO
Roberts, Thorburn and Rahman JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Connor Gibson
Appellant
Stephen Whitzman and Jonathan Vo, for the appellant
Jeremy D. Tatum, for the respondent
Heard: November 28, 2025
On appeal from the conviction entered by Justice Harrison S. Arrell of the Superior Court of Justice, sitting with a jury, on December 15, 2023, and the sentence imposed on June 20, 2024.
I. Overview
1The appellant appeals his conviction for manslaughter and seeks leave to appeal his three-and-a-half-year custodial sentence. Following a confrontation that occurred while the appellant was walking home, the victim, William Smith, pursued the appellant onto his porch, and the appellant struck Mr. Smith with a wooden board. Mr. Smith died of his injuries a few days later.
2The appellant submits that the conviction represented an unreasonable verdict and should be set aside in favour of an acquittal. Specifically, he argues that the only reasonable verdict in the circumstances of this case is that his hitting Mr. Smith was reasonable under s. 34(1) of the Criminal Code, R.S.C. 1985, c. C-46,1 as an act of self-defence in response to the threat posed by Mr. Smith. In support of his conviction appeal, he brings a production motion to have this panel consider two trial exhibits: the wooden board used by the appellant to strike Mr. Smith and the recording of the 911 call that the appellant placed after he struck Mr. Smith.2
3The appellant challenges his sentence on the bases that the trial judge erred in principle by: 1) relying on the conclusion that the appellant had “other options” available to him, as an aggravating factor; and 2) concluding that a conditional sentence was not available in this case. The appellant additionally argued the sentence was manifestly unfit.
4These reasons explain why I would dismiss the conviction appeal but grant leave to and allow the sentence appeal, setting aside the three-and-a-half-year custodial sentence imposed by the trial judge and substituting a conditional sentence of two years less a day, plus three years of probation. I would not allow the appellant’s motion to produce the two referenced trial exhibits, as they make no difference to the outcome of this appeal.
II. Background facts
i. Circumstances underlying the charge
5On September 12, 2021, the appellant and his friend, Alex Francis, went to a pub in downtown Brantford. The two men left the pub and a video captured them walking back to the appellant’s residence, which was about a 10-minute walk away. The video’s time stamp indicated this occurred at around 2:00 a.m. Along the way, they encountered Mr. Smith, who was riding a bike. Mr. Smith was a stranger to them. According to Mr. Francis, who testified at trial, the appellant called Mr. Smith a “crack head”, and Mr. Smith reacted by getting off his bike and approaching the appellant in an aggressive manner, possibly brandishing a sharp instrument. The appellant backed up and apologized, thus de-escalating the situation. Mr. Smith rode away on his bike. The appellant and Mr. Francis continued walking towards the appellant’s home, which was then just a block away.
6Almost immediately after the appellant and Mr. Francis arrived at the appellant’s home, Mr. Smith approached them again. The appellant and Mr. Francis were on the porch of the residence. Mr. Smith came aggressively up the steps to the porch, yelling at the appellant. Mr. Francis agreed that his impression at the time was that Mr. Smith was looking for a fight. The appellant yelled at Mr. Smith to get off his porch at least three times, but Mr. Smith continued moving towards the appellant. At this point, based on the transcript of the appellant’s 911 call, the appellant believed that Mr. Smith had a knife. The appellant picked up a wooden board that was lying on the porch and swung the board at Mr. Smith, hitting him once across the head and knocking him back onto the sidewalk.
7After attending to a cut on his hand and then calling his family, the appellant called 911 at around 2:15 a.m. On the call, the appellant was clearly hysterical. He said a number of times that he was terrified and that the man who came onto his porch went at him with a knife, which he thought was a folding knife. The appellant explained that he "smacked" the man with a wooden board that he used for woodworking. He also said a number of times that he hoped the man was alright and that he did not want to hurt anybody.
8The police arrived a few minutes after the 911 call. They did not find a knife, and Mr. Francis testified that he did not see Mr. Smith with a weapon at the time he approached them on the porch. A box cutter was found in a zipped-up pocket of Mr. Smith’s hockey bag, which was found on the ground near the bottom of the porch steps of the appellant’s residence. The appellant was described as being approximately six-feet tall, weighing between 200-20 pounds. Mr. Smith was described as being five-foot-and-seven-inches tall, weighing 155 pounds.
9At 3:31 a.m., the appellant was placed under arrest for aggravated assault. Mr. Smith died three days later on September 15, 2021. Following Mr. Smith’s death, the appellant was charged with manslaughter.
10With respect to the cause of death, Dr. Tyler Hickey, the Crown’s forensic expert at trial, opined that Mr. Smith died of blunt force head trauma. Mr. Smith had an 8.7-centimetre laceration to the right of his ear on the left side of his head, which Dr. Hickey described as “significant”. Dr. Hickey conceded that there was “perhaps the potential for this to be a survivable injury.” Mr. Smith also had a small laceration on the top of his head, which Dr. Hickey believed to be an injury caused by less force and could have been caused by some impact with a solid structure, perhaps as a result of falling backwards and landing on a step.
ii. The trial positions and jury verdict
11The appellant claimed self-defence in response to the charge of manslaughter. He did not testify and called no evidence. He relied on the recording of the 911 call, summarized above, in which he told the operator that he was terrified, that he thought that Mr. Smith had a knife and that he did not want to hurt anybody. The defence did, however, admit that the appellant had the intent to strike Mr. Smith with the board and that he knew or ought to have known of the risk of this act causing Mr. Smith bodily harm that was not trivial or transitory.
12In closing submissions, Crown counsel acknowledged that it was “quite clear” that ss. 34(1)(a) and (b) of the Criminal Code were made out. Crown counsel conceded that the evidence made plain that the appellant believed on reasonable grounds that a threat of force by Mr. Smith was being used against him. Crown counsel further conceded that the appellant hit Mr. Smith for the purpose of defending or protecting himself from Mr. Smith and that there was no duty on the appellant to retreat from his home. Therefore, the real question for the jury was whether the appellant’s act of hitting Mr. Smith with a wooden board was reasonable in the circumstances.
13Crown counsel argued that the force applied was not reasonable in the circumstances and that the appellant did not have to resort to deadly force to defend himself against Mr. Smith. He asserted that “a well-placed blow with a hand or foot may well have sufficiently repelled Mr. Smith.” Crown counsel acknowledged to the jury that “on the evidence, Mr. Smith had opted not to leave well enough alone and pursued [the appellant] onto the property” but argued further that if the jury accepted that “under such circumstances [the appellant's] resorting to the use of the board was reasonable, ... a blow to the shoulder or the arm or the side [with the board] may well have had efficacious, albeit less deadly, results.”
14Defence counsel raised no objections to this aspect of the Crown’s closing. In his closing submissions to the jury, defence counsel asserted that the appellant’s actions were reasonable in the circumstances and that the appellant acted in lawful self-defence in striking Mr. Smith. In relation to the blow delivered by the appellant, he stated that “common sense would suggest that it was a significant amount of force. It was enough to cause fractures to Mr. Smith’s skull.” He argued that the appellant, as a person defending himself against an attack, could not be expected to “weigh to a nicety the exact measure of necessary defensive action”, as, in the face of stressful and dangerous situations, there is no “time for subtle reflection.” If the appellant reasonably believed that Mr. Smith had a knife, the nature of the threat was very great, and a more serious response was required to prevent it. But even if the appellant’s mistaken belief that Mr. Smith had a knife was unreasonable, he could still reasonably have feared that the force threatened was very serious, given that he thought Mr. Smith had a knife earlier, that he had chased after the appellant, that he appeared to be acting aggressively and that he ignored the appellant’s repeated commands to get off the porch.
15After instructing the jury on ss. 34(1)(a) and (b), the trial judge turned to the third element of self-defence, in s. 34(1)(c), upon which the parties agreed this case turned. The trial judge told the jury that the focus was on the reasonableness of the appellant’s conduct and the question was what an ordinary person who shares the appellant’s attributes, experiences and circumstances would have done in his position. He also instructed the jury that if the appellant honestly but mistakenly believed on reasonable grounds that force was being used or threatened against him, that was a factor for the jury to consider in assessing whether the appellant’s act of hitting Mr. Smith with a wooden board was reasonable.
16On December 14, 2023, mid-afternoon on the second day of their deliberations, the jury submitted the following written questions:
YOUR HONOUR:
THE JURY REQUESTS YOUR CLARIFICATION REGARDING THE FOLLOWING:
- HOW MUCH OF THE “ACT”, MEANING [THE APPELLANT]’S RESPONSE IN THE INCIDENT AT 50 SHERIDAN ST. IS TO BE INCLUDED IN OUR DETERMINATION OF “CONSIDERATION OF NATURE AND PROPORTIONALITY” WITH RESPECT TO
USING A WOOD BOARD?
SWINGING THE WOODEN BOARD?
SWINGING WITH EXTREME FORCE?
STRIKING SMITH ON THE HEAD?
DEFENCE CLOSING
- IN CLOSING ARGUMENTS, THERE ARE COMMENTS NOTED IN THE CHARGE TO THE JURY REGARDING “A PERSON DEFENDING HIMSELF AGAINST AN ATTACK CANNOT BE EXPECTED TO WEIGH TO A NICETY THE EXACT MEASURE OF NECESSARY DEFENSIVE ACTION” AND “TIME FOR SUBTLE REFLECTION” ... FOR THE PURPOSE OF DETERMINING “THE NATURE AND PROPORTIONALITY OF RESPONSE”, HOW ARE THESE COMMENTS TO BE WEIGHED BY THE JURY?
17After consultation with counsel, the trial judge recalled the jury and, in response to their questions, provided lengthy instructions. As they are important to the issues on appeal, they are quoted here in full:
So, folks, I have two questions from you. The first [question] is “How much of the act, meaning [the appellant]’s response, in the incident at 50 Sheridan Street, is to be included in our determination of ‘consideration of nature and proportionality’ with respect to 1. Using a wooden board. 2. Swinging the wooden board. 3. Swinging with extreme force. 4. Striking Smith on the head”.
So, I may be reading between the lines, but I am thinking you want some assistance between the act and the consequences. It’s the act you are concerned with, not the consequences. However, having said, the act must be proportionate to the threat or force being applied, and it must be reasonable.
You heard from [defence counsel] in his closings to you, and I agree with those, where he said “Common sense would indicate that the swing with the wooden board hitting Mr. Smith’s head was significant”. It caused that large laceration and a fracture. Dr. Hickey told you, as I asked him the question you may recall, he said the force to the side of the head which caused the large laceration and the fractures was “significant”. So, with regards to your four aspects of [question number one], it’s admitted that the wooden board was used. That’s a given. Two, it’s admitted that [the appellant] swung the wooden board once. Going to number four, it’s admitted that [the appellant] struck Mr. Smith on the head, and it’s admitted that that ultimately killed him.
But, there is no evidence under number three that he was swinging with “extreme force”. No one said that. What was said was the blow from the piece of wood was significant, but that’s as far as anyone went. That’s all Dr. Hickey could say. I don’t, I don’t think Mr. Francis said anything about how forceful the swing was, but clearly it caused that large laceration on Mr. Smith’s head, so it was significant, but there is nothing to indicate it was swung with “extreme force” as my recollection of the evidence, and counsel have agreed with me that they have no recollection of any evidence about “extreme force”. So, the issue on [question] number one is the act versus the consequences. It is the act you are concerned with. Was it reasonable and proportionate for [the appellant] to swing the board at Mr. Smith and hit him in the head given the threat of force that he felt he was under. Okay?
Now, [question number two] you basically quoted the two things [defence counsel] said in his closing to you, and that I quoted in my charge as his theory. I didn’t contradict him. He is correct that the jury must be alive to the fact that if you believe that [the appellant] was in a stressful and dangerous situation, and he believed that, if you believe that he believed that, then he cannot be expected as these quotes say to weigh the niceties of the exact measure of the necessary defensive action he needed to take to protect himself. Again, the other quote, if you believe [the appellant] was in a stressful and dangerous situation and you believe he believed that, then he doesn’t have to sit there and have time for subtle reflection and actually weigh it all out. So, it’s a question of whether you believe, and whether you feel that force was being applied to [the appellant], he was in a dangerous situation, he perceived he was in a dangerous situation, then was it reasonable for him to swing the board at Mr. Smith. It all is about the reasonableness. Was that a reasonable reaction for [the appellant], a reasonable act for [him] to do given the situation he was in? He did not have to measure the exact force of the swing, but was swinging that board, given the situation he was in, reasonable and proportionate to the danger he perceived himself to be in. Okay? Most of you are nodding. I assume that’s a good sign. If you have further questions, I am here to answer them, but I think that’s as clear as I can be on that based on the evidence that we have, okay? Thank you. [Emphasis added.]
18Defence counsel raised no objections to these instructions.
19The next day, December 15, 2023, the jury returned with a verdict that the appellant was guilty of manslaughter.
iii. Sentence
20The Crown asked for a custodial sentence of five to six years. The defence submitted that a suspended sentence and three years of probation should be imposed; in the alternative, a conditional sentence of two years less a day was the appropriate sentence.
21In his reasons for sentence, the trial judge identified just two factors as aggravating: (1) this was a violent reaction against an unarmed and much smaller individual, with a devastating result; and (2) there were other options available to the appellant, such as backing off, discussing the situation, calling the police, running away or screaming for help.
22The trial judge then turned to a number of mitigating factors. He took into account the appellant’s relatively young age, his lack of a criminal record, the support of the appellant’s family, his abstaining from abusive substances and pursuit of education, Mr. Smith’s provocation and his initially strict terms of release.
23The trial judge concluded that the appellant’s moral blameworthiness was “modest.” He also acknowledged that only one blow was administered, that there was no gratuitous violence and that there appeared to be little deliberation, forethought or planning by the appellant. He accepted that the appellant’s actions “were a spur of the moment, spontaneous act of aggression and lapse in judgment without giving appropriate thought to his actions and the likely tragic results that would transpire.”
24The Crown and defence disagreed as to whether a conditional sentence was appropriate. Referring to s. 742.1 of the Criminal Code,3whichoutlines when a conditional sentence can be imposed, the trial judge found that a conditional sentence was not available in this case. He was not persuaded that a term of imprisonment of less than two years was appropriate for the offence, nor that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code in the context of a manslaughter case where deterrence and denunciation must play a more prominent role.
25The trial judge reasoned that a term of imprisonment of less than two years was not appropriate because: a person lost their life through the deliberate actions of another; the jury decided this was not a case of self-defence; the amount of force used was excessive; excessive force caused the death of a much smaller and unarmed individual; and the appellant was not a youth and appeared not to have excessively consumed alcohol that evening. Therefore, in his view, denunciation and deterrence needed to play a more prominent role, which would not be reflected by a penalty of less than two years.
26While the trial judge considered provocation with respect to sentencing, he concluded that provocation was still only one factor that the court must consider. He found that the degree of force the appellant used was excessive under all the circumstances and that the forceful striking of Mr. Smith on the side of his head could have no other result than significant injury and possibly death. He reiterated that the appellant had other options. Namely, he could have: struck Mr. Smith on his body rather than his head; pushed Mr. Smith back off the steps by a variety of means; attempted to talk his way out of the situation; called 911; screamed for help from the neighbours; or attempted to run and enter his premises.
27The trial judge sentenced the appellant to three and a half years’ imprisonment, inclusive of any pre-trial time served. He also imposed various ancillary orders,4 which are not challenged on the sentencing appeal.
III. Analysis
a. Conviction Appeal
28The sole ground of the conviction appeal is that the jury rendered an unreasonable verdict.
29Under s. 686(1)(a)(i) of the Criminal Code, a court of appeal may allow an appeal against conviction where it is of the opinion that the verdict was unreasonable.
30The well-established test for an unreasonable verdict is as follows: considering the evidence as a whole, is the verdict one that a properly instructed jury, acting judicially, could reasonably have rendered? See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at pp. 185-86; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42; and R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26. The reviewing court must ask not only whether there is evidence in the record to support the verdict but also whether the jury’s conclusion conflicts with “the bulk of judicial experience”: W.H., at para. 28. In Biniaris, at para. 41, the Supreme Court noted the following examples as illustrative of what “the bulk of judicial experience” means:
There are many illustrations from the case law of verdicts having been found unreasonable essentially on the strength of accumulated judicial experience. Concerns about various aspects of the frailty of identification evidence have been a recurrent basis, by itself or together with other considerations, for overturning verdicts as unreasonable. Judicial experience has also been relied upon to question the reasonableness of verdicts in cases of sexual misconduct presenting troubling features such as allegations of sexual touching of a bizarre nature, or the possibility of collusion between witnesses. Finally, the experience of the courts has occasionally been brought to bear, although not always explicitly, on the assessment of verdicts rejecting a defence with respect to which there may be unjustified skepticism or even prejudice because those relying on such justifications or excuses may be viewed as simply trying to avoid responsibility for their actions. [Citations omitted.]
31The appellate court’s assessment requires a limited weighing of the evidence and the examination of the weight of the evidence rather than its bare sufficiency. However, it is not the function of the appellate court to act as the “thirteenth juror”: Biniaris, at para. 40. In conducting this review, the appellate court must assume that there are no errors in the jury charge: Biniaris, at para. 38. I note that the appellant takes no issue with the jury charge.
32This court, in R. v. Holley, 2007 ONCA 682, 229 O.A.C. 263, at para. 61, explained the ambit of appellate review of the evidence permitted by s. 686(1)(a)(i):
A review under section 686(1)(a)(i) of the Criminal Code is not so narrow as to be confined to a determination of whether there was any evidence to support the conviction, or so expansive as to permit a de novo assessment of the evidence. The provision operates as a protection against perverse or unsafe convictions. It is not a licence to be used by appellate courts as a means of bringing trial verdicts or decisions in line with the appellate court’s estimations of the merits of individual cases.
33In determining what verdict a properly instructed jury could judicially have reached, an appellate court reviews, analyzes and, “within the limits of appellate disadvantage”, weighs the evidence: Holley, at para. 62, citing to Biniaris, at para. 36.
34As the criteria under s. 34(1) are conjunctive, to defeat the appellant’s assertion of self-defence, the Crown had to prove beyond a reasonable doubt that the answer to just one of the questions under s. 34(1) was “no”: R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948 (“Khill (SCC)”), at para. 18. Given the Crown’s acknowledgment in closing submissions that ss. 34(1)(a) and (b) were made out, the real question that the jury had to grapple with is whether the Crown had proven beyond a reasonable doubt that the appellant’s act was not reasonable in the circumstances, under s. 34(1)(c).
35The appellant’s act of hitting Mr. Smith with a wooden board must be considered through the lens of what a reasonable person would have done in the appellant’s circumstances: Khill (SCC), at para. 65. A tolerant approach must be applied in measuring proportionate force: the appellant may have been mistaken about the nature and extent of the necessary force, provided the mistake was reasonable in the circumstances: R. v. Constantine, 2015 ONCA 330, 325 C.C.C. (3d) 190, at para. 30, leave to appeal refused, [2015] S.C.C.A. No. 322.
36Section 34(2) of the Criminal Code sets out factors to be considered when evaluating the reasonableness of the appellant’s response. These factors were reviewed by the trial in his jury charge. Section 34(2) reads as follows:
In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
37There was no dispute that although the appellant triggered the initial altercation by his insulting Mr. Smith, he apologized and seemed to diffuse the situation. It was Mr. Smith who aggressively pursued the appellant onto his porch and refused to leave or back down when told to do so at least three times. The Crown acknowledged that the appellant did not have a duty to retreat from his home in the face of Mr. Smith’s approach. The real question was whether the location and force of the blow by the wooden board were unreasonable in the circumstances.
38The appellant made the following concessions at trial. The blow from the board killed Mr. Smith, and Mr. Smith did not have a knife when he confronted the appellant on the porch, although the appellant maintained that he thought he did. The appellant had the intent to strike Mr. Smith with a board, using significant force, and he knew or ought to have known of the risk of the act causing Mr. Smith bodily harm that was not trivial or transitory. There was no suggestion that he intended to kill Mr. Smith.
39The forensic expert, Dr. Hickey, testified that it was a significant blunt force head trauma that produced a large laceration on the side of Mr. Smith’s head that led to his death but that the blow was not necessarily fatal and Mr. Smith could possibly have survived it.
40The appellant takes no issue with the jury instructions. The jury was made aware that these were dynamic and quickly evolving circumstances and that the appellant was not required to measure his response to a nicety. They were also reminded that the appellant’s position was that he did not intend to injure Mr. Smith. The appellant’s hysteria was apparent from the 911 call that the jury heard as well as from the evidence of the police officer who attended the scene and described the appellant’s state.
41The questions posed by the jury on the second day of their deliberations indicated that they were focused on the live issue of the reasonableness of the force that the appellant used to defend himself. They were correctly instructed that they had to focus on the appellant’s actions and not the consequences of his actions. Further, they were told that there was nothing to indicate that the force was extreme, but that it was significant enough to cause a large laceration on Mr. Smith’s head.
42The jury’s verdict indicates that they were satisfied beyond a reasonable doubt that the appellant’s use of force, significant enough to fracture Mr. Smith’s skull, was not a reasonable response to the unarmed and smaller Mr. Smith running up the stairs towards him. Informing that conclusion was the jury’s implicit determination that the appellant’s belief that Mr. Smith came at him with a knife, as expressed in the 911 call, was unreasonable given that no knife was ever found and that Mr. Francis testified that he did not see Mr. Smith with a knife when he ran up to the porch. This conclusion was open to the jury on the record and consistent with the principles governing the inquiry under s. 34(1)(c). As Martin J. for the majority in Khill (SCC) instructed, at para. 62:
The final inquiry under s. 34(1)(c) examines the accused's response to the use or threat of force and requires that "the act committed [be] reasonable in the circumstances". The reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The law of self-defence might otherwise "encourage hot-headedness and unnecessary resorts to violent self-help". That the moral character of self-defence is thus now inextricably linked to the reasonableness of the accused's act is especially important as certain conditions that were essential to self-defence under the old regime – such as the nature of the force or threat of force raising a reasonable apprehension of death or grievous bodily harm – have been turned into mere factors under s. 34(2). [Citations omitted and emphasis added.]
43In my view, the verdict of the properly instructed jury in this case was not unreasonable. It was open to the jury to conclude that the Crown had proven beyond a reasonable doubt that the force used was not reasonable in the circumstances of this case. I would dismiss the conviction appeal.
44I would dismiss the appellant’s motion to produce the trial exhibits of the wooden board and 911 recording. The jury saw the wooden board and heard the 911 recording in the course of the trial and had both available to them during their deliberations. The production of these exhibits was unnecessary for the fair hearing of the appeal because their nature, content and effect were accurately described in the evidence. I am not persuaded that seeing and hearing the actual exhibits would affect the outcome of this appeal.
b. Sentence Appeal
i. Positions of the parties
45The appellant submits that the trial judge made an error in principle by, on his own initiative, relying heavily on aggravating factors that were not aggravating nor asserted by the Crown. These factors were the options other than the force the appellant used that the trial judge said were open to the appellant, including: “backing off, discussing the situation, calling the police, running away, or screaming for help.” The appellant asserts that, while those options defeat the defence of self-defence, they cannot be used as aggravating factors on sentence. Relatedly, the appellant argues that the trial judge erred by asserting that a conditional sentence was not available in the context of a manslaughter conviction. Finally, the appellant submits that the sentence was manifestly unfit.
46The Crown’s position is that the sentence was fit, and the trial judge committed no error in principle. The trial judge properly gave effect to provocation as a mitigating factor. He was also aware that Mr. Smith aggressively kept advancing towards the appellant on the porch, despite being told to leave. The other options enumerated by the trial judge were all relevant circumstances that could be considered as part of his assessment of the appellant’s moral blameworthiness. It was no error for the trial judge to consider them as aggravating factors; in any event, it did not impact the sentence.
ii. Standard of review
47I start with the standard of review. An appellate court cannot interfere with the trial judge’s sentence unless that sentence is demonstrably unfit or the sentencing judge made an error in principle that impacted the sentence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 43-44. Errors in principle include errors of law, failures to consider relevant factors and erroneous considerations of aggravating or mitigating factors: Friesen, at para. 26.
48Further, I acknowledge that the discretion of the sentencing judge is even broader in the case of manslaughter because it is an offence that varies greatly in seriousness, covering a multiplicity of situations in which the moral blameworthiness of the offender may also vary greatly from “near accident” to “near murder”. As a result, there is a wide sentencing range for manslaughter – from suspended sentences to life imprisonment: R. v. Sidhu, 2009 QCCA 2441, at para. 16; R. v. Khill, 2025 ONCA 146, 445 C.C.C. (3d) 357 (“Khill (ONCA)”), at para. 116, leave to appeal dismissed, [2025] S.C.C.A. No. 156; and R. v. Badhesa, 2019 BCCA 70, at paras. 24-26.
49Deterrence and denunciation must be the predominant sentencing objectives where there is an unlawful killing. While the sentencing principle of rehabilitation assumes a lesser role in sentencing for manslaughter, it nonetheless remains an important consideration when sentencing a young, first-time offender: R. v. Kwakye, 2015 ONCA 108, at para. 3; Khill (ONCA), at para. 159. Likewise, the principle of restraint must still be taken into account: Khill (ONCA), at para. 159.
iii. Error in principle impacted the sentence imposed
50I reject the Crown’s submission that the trial judge’s reliance on the enumerated “other options” as aggravating factors was not an error in principle and the Crown’s alternative submission that it did not impact the sentence. Both occurred here and created procedural unfairness to the appellant.
51First, it is clear from his reasons that the trial judge incorrectly relied on “the other options” that he said the appellant should have employed, rather than striking Mr. Smith in the head, as aggravating factors. The trial judge set out only the following two factors under the heading “Aggravating Factors”:
a. This was a violent reaction against an unarmed and much smaller individual, with a devastating result.
b. There were other options available to the offender, such as backing off, discussing the situation, calling the police, running away, or screaming for help. [Emphasis added.]
52Relying on these “other options” as aggravating factors was an error in principle.5 These “other options” could serve to attenuate the reasonableness of the appellant’s actions with respect to the third element of self-defence: Khill (SCC), at para. 90; R. v. Tanner, 2024 MBCA 87, at para. 15. However, they could not be used as a makeweight to increase the appellant’s moral blameworthiness in the circumstances of this case. The trial judge incorrectly used these factors to elevate the appellant’s moral blameworthiness, which increased the sentence.
53The present case is distinguishable from Khill (ONCA) and R. v. Yaali, 2020 ONCA 150, upon which the Crown relies. In contrast to the appellant’s defensive actions in the present case, this court noted in Khill (ONCA) that the appellant there should have called 911 instead of creating a dangerous situation by arming himself with a loaded shotgun and initiating a confrontation: at para. 155. Similarly, in Yaali, at para. 6, this court explained the appellant also created a dangerous situation: he came to the home armed with a gun and then fired numerous shots in a confined space. It is in that context that the trial judge in that case found that the appellant could have taken other steps than deciding to confront the victim in the manner he did: at para. 6.
54The appellant began the encounter by calling Mr. Smith a crackhead. However, he apologized and appeared to have appeased Mr. Smith. This, unfortunately, was short-lived. The appellant did not create but reacted to the dangerous situation of the second encounter with Mr. Smith on his porch. Mr. Smith ignored the appellant’s warnings and kept advancing aggressively onto the porch, leaving the appellant with nowhere to go. Clearly any other attempts at defusing the situation, which had worked previously, were no longer effective because, as Crown counsel conceded in his closing on the evidence, “Mr. Smith had opted not to leave well enough alone and pursued [the appellant] onto the property.” There was no time during the seconds of the confrontation to call 911.
55Further, this error affected procedural fairness: the Crown did not argue that the “other options” theoretically available to the appellant should be considered as aggravating factors, and the appellant had no opportunity to make submissions about them on sentencing. As these factors were not relied on by the Crown or otherwise raised before the trial judge, it was procedurally unfair not to give the appellant an opportunity to respond to them.
56Given the prominence that the “other options” factors played in the trial judge’s decision, it is clear that the trial judge’s error in principle in relying on them as aggravating factors materially impacted the sentence. As such, no deference is owed, and the sentence must be considered afresh.
iv. A conditional sentence should be imposed
57In considering the sentence afresh, this court must consider what a fit sentence would be in light of all the relevant circumstances. As recently noted by this court in R. v. Faroughi, 2024 ONCA 178, 171 O.R. (3d) 81, at para. 92: “This determination starts with the recognition that the fundamental sentencing principle is proportionality, requiring sentences to be proportionate to the gravity of the offence and the offender's degree of responsibility” and that “[t]he restraint principle operates within the boundaries of the proportionality principle” (citations omitted).
58I turn first to the gravity of the offence. There is no question that the offence of manslaughter is extremely serious and is so recognized by the courts, the public and Parliament. It entails the taking of a human life and is a form of culpable homicide, carrying a maximum sentence for adult offenders of life imprisonment. I am mindful of the aggravating factors in this case, namely, that the death of Mr. Smith was caused by the unreasonable force used by the appellant against Mr. Smith, who was a smaller, unarmed man. However, as already indicated, the other options, short of hitting Mr. Smith, that may have been available to the appellant, cannot serve as aggravating factors on sentence.
59Having regard to the gravity of the offence, I consider the appellant’s degree of responsibility. In assessing the offender’s degree of responsibility, a sentencing judge must take into account the mitigating circumstances underlying the defences of self-defence and provocation, even when those defences were rejected. For example, in R. v. Shyback, 2018 ABCA 331, 366 C.C.C. (3d) 197, at para. 23, the Court of Appeal of Alberta found that it was mitigating that the event started with the appellant in that case defending himself. In R. v. Pop, 2013 BCCA 160, 337 B.C.A.C. 16, at para. 28, the Court of Appeal for British Columbia recognized as mitigating factors that the victim appeared to be the aggressor and that there were elements of self-defence and provocation.
60Although self-defence was rejected by the jury in the present case, there are mitigating circumstances underlying that defence and elements of provocation that are relevant to assessing the appellant’s moral blameworthiness for the purposes of sentencing.
61It is common ground that, while the appellant made a derogatory remark to Mr. Smith, he also attempted to calm the situation by apologizing when Mr. Smith got off his bike and approached in an aggressive manner, possibly brandishing a sharp instrument like a knife or a box-cutter. Further, it is agreed that Mr. Smith pursued the appellant, approached him aggressively on his porch and refused to leave when told to do so at least three times.
62The appellant appears to have picked up the wooden board as an immediate expedient in order to defend himself from what he believed was an imminent attack from Mr. Smith. As evidenced by the 911 call, the appellant believed that Mr. Smith was again brandishing a knife and he was terrified. I recognize that in rejecting the appellant’s assertion of self-defence, the jury implicitly did not accept the appellant’s belief about Mr. Smith brandishing a knife on the appellant’s porch. However, the fact that the appellant believed Mr. Smith had a knife at the time of their first encounter on the street adds some context for his state of mind at the time of their second encounter on the appellant’s porch. Importantly, there was no suggestion the appellant intended to kill Mr. Smith.
63During the seconds in which the porch encounter with Mr. Smith occurred, the appellant, with nowhere to go, picked up the wooden board at hand, and, in his hysteria, unreasonably and tragically used excessive force to repel Mr. Smith. He did not intend to kill Mr. Smith, but his force was significant enough to fracture Mr. Smith’s skull. In assessing the appellant’s moral blameworthiness, however, I return to the trial judge’s acceptance that the appellant’s actions “were a spur of the moment, spontaneous act of aggression and lapse in judgment without giving appropriate thought to his actions and the likely tragic results that would transpire” and that his moral blameworthiness was “modest”. I therefore conclude that the appellant’s act, “though culpable, was close to being an accident”: R. v. Myette (1985), 1985 CanLII 5928 (NS CA), 67 N.S.R. (2d) 154 (S.C. (A.D.)), at para. 47, leave to appeal to S.C.C. refused, 19311 (April 22, 1985); R. v. Henry, 2002 NSCA 33, 164 C.C.C. (3d) 167, at para. 19.
64I note the other mitigating factors that were listed by the trial judge at para. 24 of his reasons:
a. The offender was not a youth; however, he was relatively young at the time of this tragic altercation, being 23 years of age;
b. The offender has no criminal record and no known prior involvement with the law;
c. The offender enjoys the support of his family. There is no reason to believe that that support will not still be available to him in the future;
d. The conduct of the offender underlying the conviction was entirely out of character according to the numerous letters of support received;
e. The offender appears to be moving in the right direction with his abstinence from abusive substances and pursuing his education;
f. Provocation.
g. Restrictive terms of release initially.
65I also note as additional positive factors that the appellant appears to have overcome his considerable mental health challenges and is now married.
66Further, the trial judge recognized that while the appellant did not express remorse because of his not guilty plea, he did indicate at the sentencing hearing that he was sorry that Mr. Smith died because he did not intend to hurt anyone.
67I am therefore of the view that the mitigating factors in this case attenuate the aggravating factors and the appellant’s moral blameworthiness. Like the trial judge, I assess the appellant’s moral blameworthiness as “modest” or low.
68What then is the appropriate sentence in this case? The appellant submits that the appropriate sentence is a conditional sentence.
69There is no question that a conditional sentence is legally available in this case. While conditional sentences are rare, the Supreme Court has rejected the argument that conditional sentences are presumptively unavailable in relation to certain offences, including violent ones causing death: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, paras. 80-83. Moreover, sentences of less than two years are not presumptively unavailable for manslaughter. As this court stated in R. v. Turcotte (2000), 2000 CanLII 14721 (ON CA), 48 O.R. (3d) 97 (C.A.), at para. 19: “While many, if not most, sentences for manslaughter are in the penitentiary range, maximum reformatory sentences are not unknown and are clearly within the acceptable range”.
70Again, while rare, a low or non-penitentiary term may be an appropriate sentence for manslaughter in the following circumstances.
71First, it may be appropriate where the appellant’s moral blameworthiness is low. As the Nova Scotia Court of Appeal noted in Henry, at para. 19, citing R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 48-49: “A significant distinguishing factor between cases, where a low or non-penitentiary term is appropriate and those where a lengthy sentence is imposed for manslaughter is the moral blameworthiness or fault of the offender.” In the present case, the trial judge found the appellant’s blameworthiness to be “modest”, even after erroneously applying the failure to take “other options” as an aggravating factor.
72Moreover, a “lenient sentence” like a conditional or suspended sentence requires “very strong mitigating factors” or circumstances where “the act, though culpable, was close to being an accident”: Myette, at para. 47, leave to appeal to S.C.C. refused, 19311 (April 22, 1985); Henry, at para. 19. Strong mitigating factors that have led to the imposition of lenient sentences for manslaughter include: “extreme stress or provocation”, an “impulsive act or immediate reaction to perceived or actual wrong by victim” and “self-defence”: Henry, at para. 20.
73Finally, it is necessary to determine whether a conditional sentence in all the circumstances of the present case will adequately reflect the principles of denunciation and deterrence that must predominate in the case of manslaughter. While custodial sentence provides for more denunciation and deterrence than conditional sentences, the Supreme Court in Proulx, at para. 107, cautioned against overemphasizing this point and provided assistance in how to craft a conditional sentence that appropriately respects the public interest in significant deterrence and denunciation:
Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. The empirical evidence suggests that the deterrent effect of incarceration is uncertain. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. [Citations omitted.]
See also R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.
74I turn now to consider whether a conditional sentence should be imposed in the present case. For guidance, I return to Faroughi, at para. 102:
When determining whether a conditional sentence is appropriate, a court must engage in a two-step process. First, the court must make a preliminary determination that neither probation nor a penitentiary term is appropriate. Second, assuming the offender satisfies the other statutory prerequisites enumerated under s. 742.1 of the Code, the court must determine whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing. [Citations omitted.]
75This was a very tragic case that, as the victim impact statements of Mr. Smith’s mother and stepfather made clear, took away a much-loved son. Without diminishing the terrible outcome flowing from the appellant’s acts, the trial judge characterized the circumstances of the offence as being the result of the appellant’s impetuous acts in reaction to a dynamically evolving situation where he did not intend to kill Mr. Smith. As such, for the purposes of sentencing, I would describe the offence “though culpable, was close to being an accident”: Myette, at para. 47; Henry, at para. 19. I have also earlier reviewed the exceptionally strong mitigating factors in this case. These result in an attenuated level of moral blameworthiness for the appellant.
76I am of the view that neither probation alone, on the one hand, nor a penitentiary term, on the other, is appropriate in this case. A sentence of two years less a day, with strict house arrest, followed by three years of probation, would be a fit sentence in all of the circumstances.
77The appellant meets the other statutory prerequisites for a conditional sentence under s. 742.1 of the Criminal Code: there is no minimum punishment for manslaughter; manslaughter is not one of the excluded offences; and, as the trial judge found, the safety of the community would not be endangered by the appellant serving his sentence in the community.
78This is not the case where the need for denunciation is so pressing that incarceration is the only appropriate means to reflect that sentencing principle: Proulx, at para. 106. In the circumstances of this case, the principles of restraint and rehabilitation must also be considered. Given the appellant’s status as a first-time, youthful offender, the sentencing principle of restraint “takes on an elevated importance” and requires that the sentence “be tailored to the circumstances of the accused and give appropriate consideration to rehabilitation”: Faroughi, at paras.70-71.
79In reaching the conclusion that a conditional sentence is fit in the particular circumstances of this case, I am in no way suggesting that the wide sentencing range for manslaughter is now lowered. As in all sentencing, each case must be determined on its specific facts having regard to the applicable sentencing principles. In the unusual circumstances of this case, the predominant purposes of deterrence and denunciation, as well as the principles of rehabilitation and restraint, can be achieved by a conditional sentence with strict house arrest, followed by three years of probation.
IV. Disposition
80I would dismiss the conviction appeal and not allow the appellant’s motion to produce the two referenced trial exhibits.
81I would allow the sentence appeal, set aside the custodial sentence, and substitute a conditional sentence of two years less a day, plus three years of probation.
82The parties did not submit a draft conditional sentence order and a probation order. I would invite them to do so within seven days of the release of these reasons.
Released: June 26, 2026 “L.B.R.”
“L.B. Roberts J.A.”
“I agree. Thorburn J.A”
“I agree. M. Rahman J.A.”
A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence under any of the following provisions:
(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),
(ii) section 269.1 (torture), or
(iii) section 318 (advocating genocide); and
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.
Footnotes
- Section 34(1) reads:
- Prior to the hearing of this appeal, the appellant made a motion under s. 683(1)(a) of the Criminal Code and r. 12(8) of the Court of Appeal for Ontario, Criminal Appeal Rules for an order directing that those exhibits be sent by the Registrar of the Superior Court of Justice in Brantford to the Registrar of this court and produced by the Registrar on the argument of the appeal if so requested by the hearing panel. Although Lauwers J.A. dismissed the appellant’s motion, as he acknowledged, this panel maintained authority under s. 683(1)(a) and r. 12(8) to determine whether those exhibits should be produced, and the motion was renewed at the hearing of the appeal.
- Section 742.1 states:
- Ancillary orders included a DNA order and a weapons prohibition order under s. 109 of the Criminal Code.
- Given the error in principle that I have identified, it is not strictly necessary to address the appellant’s argument that the trial judge erred by finding that a conditional sentence was generally unavailable for manslaughter. However, to foreclose any misunderstanding of the trial judge’s reasons, I do not read the trial judge to have stated, as a general principle, that a conditional sentence is unavailable but that it was unavailable in the circumstances of this case.