WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court File and Parties

Court of Appeal for Ontario

Date: 2022-06-06 Docket: C66477

Before: Doherty, Huscroft and George JJ.A.

Between: Her Majesty the Queen, Respondent and J.A., Appellant

Counsel: Alexander Ostroff and Jeffrey Couse, for the appellant Jamie Klukach and Erica Whitford, for the respondent

Heard: May 26, 2022 by video conference

On appeal from the conviction entered on June 24, 2016, by Justice Brian P. O’Marra of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] On February 3, 2014, the appellant picked up his 6-year-old daughter and 7-year-old son from school. He advised school officials that he was taking them to a medical appointment but in fact took them to a hotel, where he gave each a blue sleeping pill (Sleep MD) and a yellow antihistamine (Nytol). He also had each child drink alcohol. According to him, the children only had “sips of wine”, but the toxicological evidence at trial suggested he had likely given them more. The appellant also drew a bath to about six inches of water. After ingesting the pills and drinking the wine, the daughter died. The son survived. The appellant planned, and attempted, to take his own life but was unsuccessful.

[2] The appellant was charged with first degree murder and attempted murder. After trial, he was found guilty of second degree murder and attempted murder. He was sentenced to life in prison with no parole eligibility for 18 years.

[3] He now appeals against his convictions, raising these five grounds: 1) The trial judge’s “common-sense inference” instructions were improper and misleading; 2) the trial judge failed to relate the evidence to the essential issues; 3) the trial judge erroneously refused to give a Hodge/Villaroman instruction; 4) the trial judge failed to correct the improper Crown invitation to find concoction; and 5) the trial judge erred in his charge on the routes to “unlawful act”.

[4] For the reasons that follow, we reject each of these grounds and dismiss the appeal.

The evidence

[5] The appellant testified in his own defence. He described the decline of his marriage and the impact it had on him. On the day he picked his children up from school, he was going to take his own life. He denied wanting, or attempting, to kill his children, despite evidence suggesting otherwise, including the drawn bath and a suicide note in which he wrote:

I tried hard to make it work with Cheryl. These last 24 hours showed me that there is no other way than this. I never assaulted anybody although I know Cheryl may claim this. I just was getting the bank card and she kept fighting me. I am tired of the abuse and can’t take it anymore. I am suffering from depression, and she repeatedly kicks me while down. She even has tried to poison me and has said go and die so she can collect. I tried hard to support and thru marriages up and down. She blames me for everything and would constantly kick me out. She belittled and criticized me for everything. When I tried to defend or argue she said I said I was yelling and being emotionally abusive. If I was so bad why did she have desires to have more children (re twins). I am sorry for the pain that I caused by I did try to take of you Cheryl. I am not to blame for things that you partook in. I love my kids and want them with me , you are an excellent mother but constantly threatening to take my kids away is not nice. [Emphasis added.]

[6] He testified that he administered the drugs and alcohol to the children because he wanted them to be asleep when he killed himself, and that the bath was drawn so that he could wash his feet.

[7] A forensic pathologist testified on behalf of the Crown, whose opinion was that the appellant’s daughter died of the “combined toxicity of diphenhydramine and ethanol”. Diphenhydramine is the active ingredient in Nytol, and ethanol is the type of alcohol found in alcoholic beverages, including wine. She made the following observations:

i) Both diphenhydramine and ethanol are central nervous system depressants and can decrease, and sometimes stop, breathing. Taken together, they may result in a more pronounced respiratory depression.

ii) The daughter’s lungs were heavier than the normal weight. In cases of drug toxicity and drug overdoses from respiratory depressants, lungs will be heavy.

iii) There was no indication that the daughter had an allergic or anaphylactic reaction to diphenhydramine.

iv) Toxicity of diphenhydramine is dependent on its concentration in the blood. A person’s weight is relevant to toxicity, in that a smaller person would need a smaller dose to get the same concentration as a larger person. If a person takes more than the correct dosage, no matter how much that person weighs, they will end up with a higher concentration than what is therapeutic, and that higher concentration may be toxic.

[8] A toxicologist from the Centre of Forensic Sciences testified that diphenhydramine was in the daughter’s blood at a concentration of 1.2 mg/L. She further testified that “anything in excess of therapeutic” levels could be toxic. She emphasized that a concentration over 1 mg/L would elicit toxic effects. In respect of alcohol, she testified that the daughter’s blood contained 18 mg of ethanol per 100 mL, which she believed resulted from “less than a standard beverage” but certainly more than a “sip”, which is what the appellant said he gave her. In respect of the Sleep MD medication, she agreed that it was “not really within the realm of possibilities to overdose on melatonin”, the active ingredient in Sleep MD, and testified that it would not increase the toxicity of diphenhydramine or alcohol.

[9] It was not disputed that the appellant caused his daughter’s death and that the conduct required for the attempted murder of his son was met. The issue at trial was whether he acted with murderous intent.

The common sense instruction

[10] The appellant’s submissions focussed on the propriety of the trial judge’s “common-sense inference” instructions and the trial judge’s alleged failure to relate the evidence to the essential issues. In his charge on mens rea for murder (and attempted murder), the trial judge instructed the jury:

To help you determine whether Crown counsel has proven beyond a reasonable doubt that [the accused] had one of those intents required to make the unlawful killing of [his daughter’s] murder, you may conclude, as a matter of common sense, that a person usually knows what the predictable consequences of his conduct are, and means to bring them about. This is simply one way for you to determine a person’s actual state of mind, what he actually meant to do. You may, but are not required to reach that conclusion about [the accused]. Indeed, you must not do so if, on the evidence as a whole, including [the accused’s] testimony that he did not intend to harm, let alone kill [his daughter], you have a reasonable doubt whether [the accused] had one of the intents required to make the unlawful killing murder.

To help you determine whether Crown counsel has proven beyond a reasonable doubt that [the accused] meant to kill [his son] when he gave him the sleep medication and alcohol drink, you may conclude, as a matter of common sense, that a person usually knows that [sic] the predictable consequences of his conduct are, and means to bring them about. However, it is simply one way for you to determine a person’s actual state of mind, what he actually meant to do. You may but do not have to reach that conclusion about [the accused]. Indeed, you must not do so if, on the evidence as a whole, including his evidence that he did not intend to harm or kill [his son], you have a reasonable doubt whether [the accused] meant to kill [his son]. Let me read that again. Indeed, you must not do so – follow this common sense approach to determine intent, you must not do so if on the evidence as a whole, including his evidence that he did not intend to harm or kill [his son], you have a reasonable doubt whether [the accused] meant to kill [his son]. It is for you to decide on all the evidence.

[11] The appellant submits that these instructions were improper and misleading because death or bodily harm were not predictable consequences of administering the pills and alcohol to the children.

[12] We disagree. It was open to the jury to find that administering adult medication with alcohol to young children (ages 6 and 7) was life-threatening conduct, which supported an inference of subjective intention to cause consequential harm. Stated otherwise, death and serious bodily harm were within the realm of predictability. It is important to remember that the purpose of such an instruction is simply to give a jury but one tool that they could use to assist them in understanding how an accused’s actions may support an inference of subjective intent.

[13] The appellant’s argument ignores two important points. First, it fails to recognize the circumstances surrounding the appellant’s decision to give the children pills and alcohol, which was done after deliberately isolating them from everyone else, including their mother, who could have intervened and tended to them should he have succeeded in ending his own life. Second, it seems to be predicated on a belief that the toxicology evidence dispelled the idea that death or serious bodily harm was a predictable, or probable, consequence of his actions, when it did no such thing. The toxicologist testified that the concentration of diphenhydramine in the daughter’s blood was 1.2 milligrams per litre, 18 times the therapeutic concentration for children, and that toxic concentration is anything in excess of therapeutic. She further testified that the concentration of ethanol in the daughter’s blood was 18 milligrams for 100 mL, equivalent to that of a 180-pound man who consumed one drink, and that that concentration in a child could cause sedation and could contribute to the sedating properties of diphenhydramine.

[14] Before a jury can be told that they may draw a common-sense inference about subjective intent, a trial judge must be satisfied, having regard to the applicable evidence ( i.e. , toxicology) and common human experience, that it is reasonably open to the jury to conclude that death or bodily harm likely to cause death is a predictable or probable consequence of the accused’s actions. Here, the trial judge was satisfied that that inference was available to the jury. Again, he did not tell them they had to draw that inference, just that they could, which was appropriate in the circumstances.

[15] The difference between this case and R. v. Boone, 2019 ONCA 652, upon which the appellant relies, is that in Boone, medical expert evidence demonstrated that neither HIV infection as a result of the sexual activity, nor eventual death from that infection, could accurately be described as “natural and probable consequences” of the appellant’s actions, which rendered the common-sense inference improper. Here, the toxicology evidence did not dispel the common-sense inference of intent.

[16] We acknowledge that the trial judge failed to directly link the relevant evidence to the elements of the offences and to the issue of intent, but do not agree that this amounts to reversible error. The test is not whether the jury was perfectly instructed, but whether it was properly instructed. The ultimate question is whether the jury was, or could have been, under any misapprehension about the relevance of the evidence to intent. In our view, the jury was adequately equipped to understand and appreciate the evidence and the parties’ respective positions on that issue.

The other issues

[17] We see no merit in the appellant’s submissions on Hodge/Villaroman, concoction, and unlawful act, and accordingly reject them.

Disposition

[18] The appeal is dismissed.

“Doherty J.A.”

“Grant Huscroft J.A.”

“J. George J.A.”