Court File and Parties

Court of Appeal for Ontario Date: 20230120 Docket: C70626

Tulloch, Benotto and Trotter JJ.A.

Between:

His Majesty the King Appellant

and

Corey Cunningham Respondent

Counsel: Alysa Holmes and Kristen Pollock, for the appellant Maija Martin and Elliot Willschick, for the respondent

Heard: December 2, 2022

On appeal from the sentence imposed by the Honourable Justice Robert F. Goldstein of the Superior Court of Justice, dated April 12, 2022, with reasons reported at 2022 ONSC 2229.

Benotto J.A.:

[1] The Crown appeals the sentence imposed on the respondent, Corey Cunningham, for attempted murder. He attempted to murder the mother of his unborn child and was sentenced to seven years imprisonment. [1] With credits, a sentence of 26 months remained to be served.

[2] As I will explain, the sentencing judge made several errors that resulted in a sentence that was manifestly unfit. Most significantly, he failed to give effect to the primary sentencing principles of denunciation and deterrence for attempted murder in a domestic context. I would allow the appeal and substitute a sentence of 15 years, less credit for time served.

Background

[3] In July 2019, the respondent and Christina Elgin began dating. Sometime in August 2019, Ms. Elgin discovered that she was pregnant. She took a pregnancy test and informed the respondent. His response waivered from wanting her to have an abortion to agreeing that he would co-parent the child. By the end of September, they had broken up.

[4] On October 6, 2019, Mr. Cunningham began plotting to kill Ms. Elgin. He started by securing an alibi. He persuaded a friend to tell police that they were together all evening on the night of October 11, 2019. On October 11, he dressed himself in a disguise so that he would not be identified by the security cameras in Ms. Elgin’s apartment building. He gained entry by following a resident into the building. He then took the elevator to Ms. Elgin’s unit. She had not seen him since September, and he had never before come unannounced. Despite her feeling that something felt “off”, he came in. While he was sitting on the couch, Ms. Elgin sat on the floor in front of him, purportedly so that he could give her a back massage. Instead, he stabbed her in the back of her neck, narrowly missing arteries and veins.

[5] Even though she was suffering from the significant wounds to her neck, she pretended to be dead by slumping to the floor and laying still. Mr. Cunningham rummaged through her wallet and took $100, then went into her pants pocket and took more money, as well as her phone. He then kicked her to see if she would move, but she continued to play dead. He made a phone call and said, “yo it’s done” and then, “meet me at the same spot”.

[6] He left the building through the side entrance, rather than taking the elevator, and eventually got into a vehicle. Using Ms. Elgin’s cell phone, he fabricated text messages in an attempt to cover his tracks.

[7] Once alone, Ms. Elgin got up and went to the bathroom. A large clot came out of her vagina, which she believed to be a miscarriage, as she did not carry the child to term. She then made her way to the apartment of a neighbour, who called 911. She was in the hospital for two weeks.

[8] The respondent’s alibi quickly broke down. His friend confessed to the police that he lied; he was not with Mr. Cunningham on October 11, 2019. The friend testified for the Crown at trial.

[9] At trial, the respondent pleaded not guilty and claimed self defence. The trial judge found him guilty of attempted murder and theft.

[10] Ms. Elgin still has injuries resulting from the attack. Her right shoulder is lower than her left shoulder. She cannot feel parts of the back of her neck and head. Her right arm goes numb from time to time. A piece of bone is lodged onto her spine. She has been told that if she has surgery to remove it, there is a 50% chance she would be paralyzed. Ms. Elgin also describes experiencing anxiety and fear as a result of the attack – she has been diagnosed with post-traumatic stress disorder and has difficulty trusting men. In addition, she has suffered financial damage, as she could not work for a time and lost cash and a cell phone during the attack.

The Sentencing

[11] The sentencing judge reviewed Mr. Cunningham’s circumstances, the impact of the attack on Ms. Elgin, and the mitigating and aggravating factors.

[12] Mr. Cunningham was 26 years old at the time of the sentencing and has no prior criminal record. He is close to his parents and siblings. He has a seven-year-old daughter and a three-year-old son with a woman he intends to reconcile with once out of prison. While their relationship is tumultuous, she said that Mr. Cunningham has always been a loving and engaged father. His supervisor at work was shocked by the charges, and described him as diligent, intelligent, and sensible.

[13] The sentencing judge referred to the impact of the attack on Ms. Elgin, including the damage to her physically, emotionally, psychologically and financially.

[14] The sentencing judge recognized the numerous aggravating factors at play. The most obvious aggravating factor he noted was the planned, deliberate, and cold-blooded nature of the attempt to kill Ms. Elgin. [2] Mr. Cunningham then tried to cover his tracks by using Ms. Elgin’s cell phone, which he stole. The trial judge also found it to be seriously aggravating that Mr. Cunningham put his friend at significant risk by encouraging him to provide a false alibi to the police.

[15] The sentencing judge found that there were numerous mitigating factors. Mr. Cunningham is a first-time offender. He has worked steadily, supported his children, and generally lived a pro-social life. He enjoys the support of his family. It is noteworthy that many people who know him were astonished to hear of this crime. The pre-sentence report was very favourable.

[16] The sentencing judge determined that the range of sentence for attempted murder is six years to life. He rejected Crown counsel’s suggestion of a life sentence because he found that it would be “crushing” for a young man with no criminal record and excellent prospects for rehabilitation.

[17] The sentencing judge recognized that the attempted murder was in “a domestic context”, but concluded:

I am not minimizing Mr. Cunningham’s culpability, and I am certainly not discounting the terror that Ms. Elgin must have felt, but this was not a case of “stark horror” …, or an egregious and terrifying breach of trust …. I do not wish to over-emphasize the principle of rehabilitation at the expense of the other sentencing principles, but it seems to me that Mr. Cunningham’s rehabilitative prospects take this case into the lower end of the range. When I take the mitigating and aggravating factors into account, as well as the sentencing principles of denunciation, deterrence, and the domestic context of the crime, the appropriate sentence is 7 years. [Citations omitted.]

[18] At the time of sentencing, the respondent had spent 914 days in custody. At the rate of 1.5:1, the trial judge calculated 1371 days of credit, or just under 46 months, which he said was the equivalent of three years and ten months in pre-trial custody. A portion of this time had been during the COVID-19 pandemic. The sentencing judge took judicial notice of the impact of the pandemic on incarcerated persons and allowed for a “Duncan” credit of a further 12 months of pre-sentence custody. This resulted in 58 months (nearly five years) of pre-sentence credit.

Issues on Appeal

[19] The Crown appeals, alleging that the sentencing judge erred in principle and that this resulted in a sentence that is demonstrably unfit.

[20] The issues are:

(i) Did the sentencing judge err in principle?

(ii) Was the sentence demonstrably unfit?

(iii) If so, what is a fit sentence?

(iv) Did the sentencing judge err in applying credits?

Analysis

(i) Did the sentencing judge err in principle?

[21] Following R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, an appellate court may only set aside a sentence when the sentencing judge made an error in principle that impacted a demonstrably unfit sentence.

[22] The sentencing judge in this case erred in principle in three ways: (i) by failing to apply the primary sentencing objectives of denunciation and deterrence; (ii) by misunderstanding the impact of planning and deliberation; and (iii) by misidentifying the range of appropriate sentence for attempted murders in a domestic context.

Primary sentencing objectives

[23] The primary sentencing objectives of attempted murder are denunciation and deterrence. These objectives address the moral blameworthiness inherent in the conviction.

[24] The moral blameworthiness for attempted murder is the same as for murder, because a conviction of either requires the same mens rea. The fact that the victim did not die was not due to any action on the part of the perpetrator who intended her death. As Doherty J.A. stated in R. v. McArthur (2004), 182 C.C.C. (3d) 230 (Ont. C.A.), at para. 47:

The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.

[25] The sentence must reflect this gravity. Even though there is no automatic life sentence for attempted murder, “the offence is punishable by life and the usual penalty is severe”: R. v. Logan, [1990] 2 S.C.R. 731, at p. 743.

[26] In a domestic context, the objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender. The sentence must reflect the individual harm to the victim and the court’s response to the heinous effects of domestic violence.

[27] With respect to victims, courts have recognized that victims of intimate partner violence are in a position of trust and vulnerability with the perpetrator. [3] In R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), at para. 27, Simmons J.A., speaking for the court, said:

… this court has repeatedly emphasized that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence … the sentences imposed in cases involving domestic violence must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship …

It follows that the principles of general and specific deterrence must be the overriding considerations in the determination of the sentence in this case. Those principles demand a very heavy sentence… [Emphasis added.]

[28] More recently, in R. v. Kormendy, 2019 ONCA 676, 147 O.R. (3d) 701, Feldman J.A. spoke of the importance of the principles of denunciation and deterrence in cases of attempted murder in a domestic context. At para. 28, she noted that “[w]hile every attempted murder is a most serious crime, attempted murders in the domestic context are particularly heinous”.

[29] This court has continually emphasized that denunciation and deterrence are the paramount sentencing objectives for attempted murder in the domestic context: see R. v. Huff, 2012 ONCA 86, 99 W.C.B. (2d) 608, at para. 18; R. v. Vienneau, 2015 ONCA 898, 126 W.C.B. (2d) 524, at para. 14.

[30] The sentencing judge recognized this, as well as that rehabilitation “plays a lesser role” in cases such as this. However, his reasons do not implement this objective. He diminished the significance of these objectives by placing undue weight on rehabilitation.

[31] The following examples from the sentencing judge’s reasons for sentence demonstrate that he significantly diminished the gravity and the blameworthiness of the offence and, consequently, lost sight of denunciation and deterrence:

• He referred to the crime as “a sorry episode … marked by incompetence and foolishness”.
• He called the crime a “mistake”.
• He said the crime was “out of character” and “does not represent the totality” of who the offender is.
• He found him “likeable”.
• He called the offender “a young man who has obvious potential for rehabilitation and reintegration into the community”.
• He found that a life sentence would be “crushing” for the respondent.
• With respect to remorse, the sentencing judge said: “I accept that his comments are sincere at least to the extent that even a person acting in self defence – which to be fair, I rejected – can regret harming a person who attacked them”.

[32] Although these factors could certainly be considered in sentencing, nowhere in the reasons is a similar degree of consideration given to the primary sentencing objectives. It was an error to give these considerations more weight than denunciation and deterrence. As Feldman J.A. said in Kormendy, at para. 56:

While the trial judge was entitled to take this evidence into account in determining the appropriate sentence, it was an error for him to give it as much or more weight than the paramount factors of denunciation and deterrence. This error contributed to the imposition of a demonstrably unfit sentence.

[33] Although the trial judge mentions that the crime took place in the context of a domestic relationship, he does not articulate why this requires a harsher sentence. This ignores the following directive from Kormendy, at para. 57:

More significantly, although the trial judge mentioned that, under s. 718.2 of the Criminal Code, the fact that the crimes were committed "in a domestic context" is deemed to be an aggravating factor, he did not refer to the reason that the courts have continued to emphasize the critical need for denunciation and deterrence to be the paramount considerations in sentencing for domestic abuse, and in particular, attempted murder.

[34] The trial judge did not address the significance of domestic violence, including the fact that the victim was pregnant with the respondent’s child, as well as that the attack represented an obvious desire to kill her to solve his own problem of unexpected parenthood. In addition, there was a clear breach of trust in that the violence occurred in Ms. Elgin’s own home.

Misunderstanding the impact of planning and deliberation

[35] All parties agree that the sentencing judge erred in law when he said:

It is quite true that if Mr. Cunningham had been successful, he would be facing a charge of first degree murder – but that can be said of every single case of attempted murder, including cases where the courts have imposed sentences as low as 6 years. [Emphasis added.]

[36] Although attempted murder always involves a specific intent to kill (see The Queen v. Ancio, [1984] 1 S.C.R. 225), not every case of attempted murder is planned and deliberate. That the sentencing judge thought otherwise eliminated the aggravating nature of the respondent’s planning and deliberation in this case.

[37] In Vienneau, at para. 5, this court said:

The context of a former domestic relationship and that the crime involved a degree of planning and deliberation were aggravating factors.

[38] The court went on to further state, at para. 12:

The trial judge was entitled to consider what she found was a degree of planning and deliberation, meaning that the attack was not a spontaneous reaction to an event or an incident.

[39] Since the trial judge thought that planning and deliberation is inherent in every attempted murder, he did not treat the respondent’s planning and deliberation as the significantly aggravating factor that it is. He clearly thought that it was part of the offence itself.

Misidentifying the range of sentence

[40] There is a broad range of sentences available for attempted murder in a domestic relationship. The maximum is life. In R. v. Tan, 2008 ONCA 574, 78 W.C.B. (2d) 804, at para. 35, Laskin J.A. remarked that:

The sentences for attempted murder imposed or upheld by this court have varied widely. At the lower end of the range is R. v. Campbell, [2003] O.J. No. 1352 (C.A.), where this court upheld the sentence of nine years’ imprisonment. Reflecting an even lower sentence is R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), where, on a Crown appeal of a sentence of two years less a day (in addition to the 28 months the accused had spent in pre-trial custody), Simmons J.A. said that the appropriate sentence was six years’ imprisonment less credit for time served.

[41] Below, I will discuss my views as to why Boucher cannot be considered the low end of the range.

[42] In Tan, the offender entered an early guilty plea and showed remorse. His sentence of 15 years was upheld. At para. 40, Laskin J.A. said:

I accept that a 15-year sentence for an offender who pleaded guilty early on, who has no previous criminal record, and who expressed remorse to the victim, is a high sentence. However, the sentence is justified by the following considerations:

• The domestic-like context: This court considers violence in a domestic context to be an aggravating consideration on sentence. Here, the context for these offences, while not strictly domestic, resembled a domestic situation. The appellant’s heinous conduct began when the victim said no to his request to be her boyfriend.
• Specific intent to kill: The appellant acknowledged to his probation officer that he specifically intended to kill the victim.
• Elements of planning and deliberation: The appellant’s actions showed elements of planning and deliberation. He picked up a tarp from his car that he later used to conceal the victim’s body. He then drove to a remote location that he knew about.
• Prolonged duration of the attack: The appellant’s reign of terror lasted for several hours. Although the trial judge made no specific finding on its duration, the drive to Bancroft alone, during which the victim was bound and gagged, lasted three hours.
• The victim’s identity and body concealed: The appellant stole from the victim all of the documents that might identify her and then hid her body so she would not be found.
• The victim left to die: Not only did the appellant stab the victim twice, the appellant then left her to die in a remote area.
• Serious physical and psychological injuries: The appellant’s brutal and callous attack caused the victim serious physical and psychological injuries, injuries that are likely permanent for this young woman. The damage to her lung and resulting shortness of breath, the disfigurement and resulting embarrassment, the fear and resulting insomnia, are not likely to go away.

[43] In R. v. Botelho, 2010 ONCA 497, 88 W.C.B. (2d) 792, this court increased the sentence of seven years to eight-and-a-half years, a number the court said, at para. 4, is “the lowest sentence” that “could be considered fit.” In Huff, this court upheld a life sentence, confirming, at para. 18, that the “predominant” sentencing principles to be applied by the sentencing judge are denunciation and deterrence. In R. v. K.G., 2010 ONCA 177, 86 W.C.B. (2d) 997, the sentence was 14 years after a guilty plea. In Vienneau, an 11-year sentence was upheld, with this court again confirming, at para. 14, “the paramount importance of the principles of denunciation and deterrence in cases involving domestic violence”. Finally, in R. v. Simard, 2017 ONCA 690, 141 W.C.B. (2d) 361, a sentence of 20 years was upheld, with this court, at para. 15, identifying the “egregious breach of trust” resulting from the attack.

[44] With these principles in mind, I turn to the sentencing judge’s reasons.

[45] He found the low end of the sentencing range for attempted murder in the domestic context to be six years, relying on Boucher and purporting to rely on Tan. A closer reading of Tan and an analysis of Boucher does not support his conclusion. Although Tan refers to the six-year sentence in Boucher, Laskin J.A. explicitly refers to the court’s decision in R. v. Campbell (2003), 57 W.C.B. (2d) 363 (Ont. C.A.) in identifying the lower end of the range, in which a sentence of nine years was upheld.

[46] Boucher cannot be relied upon as identifying the lower end of the range of sentence.

[47] The importance of Boucher is that it clearly sets out the principles of denunciation and deterrence that are primary for attempted murder in a domestic context. However, the six-year sentence imposed is distinguishable from this and many other cases for several reasons. The victim was not injured. The perpetrator had served his sentence and the court chose not to re-incarcerate him.

[48] Most importantly, Boucher was decided nearly 20 years ago. The last two decades have seen an increase in society’s awareness of the prevalence of domestic violence and the evils it creates. Since Boucher was decided, Parliament has responded to this societal problem with legislation both within and outside the criminal justice system.

[49] Within the criminal justice system, Parliament introduced Bill C-75 in 2019. A key aspect of the Bill was a focus on intimate partner violence, which included several reforms targeting domestic violence. [4] The most significant changes were those made to sentencing, including the expansion of s. 718.2 (a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, directing that the commission of an offence involving abuse of an intimate partner must be considered an aggravating factor on sentencing. It is noteworthy that “intimate partner” includes current or former spouses, common law partners and dating partners.

[50] Parliament also enacted s. 718.3(8) of the Code, which provides discretion to sentencing judges to impose a term of imprisonment higher than the maximum when the offence is committed in the context of an intimate partnership.

[51] Parliament has also acted in the civil context. The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), for instance, has been amended to address “family violence” in the determination of parenting plans: see ss. 16(3) (j) and 16(4).

[52] Thus, the intention of Parliament clearly supports enhanced penalties for perpetrators of domestic violence and denunciation and deterrence as the primary sentencing objectives. It also supports changes in sentencing ranges to reflect societal awareness and knowledge of the damage to society, as well as victims, caused by domestic violence.

[53] This court’s decision in R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230 explicitly notes, at para. 71, that sentencing ranges can change over time as a result of new and emerging understanding about certain offences:

The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are “historical portraits” that provide insight into the operative precedents of the day, but they are not “straitjackets” and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual “for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change” … [Emphasis added.]

[54] Consequently, the six-year sentence in Boucher cannot be relied upon on as part of the appropriate range in sentence for attempted murder in the domestic context. It was an error for the sentencing judge to do so, particularly, while not referring to Kormendy. In that case, the sentencing judge was found to have made the same errors as the sentencing judge did here. At paras. 49 and 55, Feldman J.A. said:

The trial judge made a number of errors that affected the sentence. First, he failed to give effect to the gravity of the offence and the moral blameworthiness of the offender. Second, while the trial judge acknowledged that the crimes were carried out in a domestic context, he failed to treat deterrence and denunciation as the primary sentencing objectives and failed to appreciate why those objectives are paramount in the domestic context: see Boucher, at para. 27. Third, although he reviewed the case law referred to him by counsel, the trial judge failed to use the most relevant cases to assist in gauging a fit sentence. As a result, the trial judge imposed a sentence that is wholly inadequate and therefore demonstrably unfit.

[The trial judge] talked about the need to balance the principles of denunciation and rehabilitation. While the need to balance these factors is generally part of the sentencing analysis, when the offence is attempted murder in the domestic context, it is an error for the sentencing judge not to make denunciation and deterrence the paramount principles to be applied. Further, the trial judge appeared to give significant weight in the balancing to the fact that the respondent was taking courses in prison in "anger management" and "supportive relationships", which he found demonstrated some insight on the part of the respondent into the factors that contributed to his actions, and also to the contents of the supportive letters that described the respondent as considerate, non-violent and helpful. The trial judge discussed the respondent's rehabilitation at length, in paras. 51-59 of his reasons, and specifically listed the potential for rehabilitation in his discussion of mitigating factors, at paras. 65-66 of his reasons.

[55] This court concluded in Kormendy, as I do here, that denunciation was not treated as the primary principle to be applied. This was an error.

(ii) Was the sentence demonstrably unfit?

[56] These errors by the sentencing judge resulted in a sentence that was demonstrably unfit. A sentence of six or seven years before credits was below the lowest end of the range. Ignoring Boucher, for the reasons I have articulated, the next lowest approved sentence was in Botelho, where this court said eight-and-a-half years is “the lowest sentence” that could be considered fit. Similarly, Tan referred to Campbell’s nine-year sentence as the low end of the range.

[57] This respondent, however, is not at the lowest end of the range. The aggravating factors move it well out of the low end. This was an attempted murder of a domestic partner who was pregnant with his child. In Tan, Laskin J.A. listed seven considerations that support a sentence of 15 years after a guilty plea. Except for the duration of the attack, the other six are present here.

(iii) What is the fit sentence?

[58] Having regard to the circumstances set out above, the moral blameworthiness of the offender, the primary objectives of denunciation and deterrence in the domestic context, and considering all the aggravating and mitigating circumstances, I would impose a sentence of 15 years.

(iv) Did the trial judge err in applying credits?

[59] The sentencing judge reduced the sentence by 12 months to reflect a “Duncan” credit for time spent in custody during COVID-19. He quoted from R. v. Marshall, 2021 ONCA 344, 174 W.C.B. (2d) 88, at para. 52, and recognized that a Duncan credit is distinct from a “Summers” credit and, thus, should be treated differently. The Duncan credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be considered in determining the appropriate sentence. Particularly punitive pre-trial incarceration conditions can be a mitigating factor to be considered with the other mitigating and aggravating factors in arriving at the appropriate sentence, from which the Summers credit will be deducted.

[60] The sentencing judge also recognized that a Duncan credit cannot justify the imposition of a sentence which is inappropriate, having regard to all the relevant mitigating or aggravating factors. That said, he reduced an already inappropriate sentence of seven years by a further one year. By treating the Duncan credit like a number of months and not a mitigating factor, the sentence was artificially reduced to an even more unfit sentence.

[61] As Doherty J.A. said in Marshall, at para. 53:

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.

[62] Here, the Duncan credit further reduced the inappropriate sentence imposed by the sentencing judge. As a result, an already inappropriate sentence was “devoured”. This was an error.

[63] I follow the preferred method of calculation with respect to the Duncan credit. Having taken pre-trial conditions into account, along with other mitigating factors, including the respondent’s lack of a criminal record and good rehabilitation prospects, I would not further reduce the sentence of 15 years, except for credit for time served.

Conclusion

[64] I would grant the Crown leave to appeal the sentence, set aside the sentence, and impose a sentence of 15 years less the credit for time served. The time served is 914 days, which is to be credited at the rate of 1.5:1 for a credit of 1371 days.

Released: January 20, 2023 “M.T.” “M.L. Benotto J.A.” “I agree. M Tulloch J.A.” “I agree. Gary Trotter”

[1] The Crown claims it was a 6-year sentence after the Duncan credit. The distinction is irrelevant to the determination of this appeal.

[2] However, as discussed below, the sentencing judge erroneously thought that planning and deliberation exists in every attempted murder and that they are inherent in the offence.

[3] With the enactment of Bill C-75 (discussed below) Parliament has moved away from the term “domestic violence” in favour of “intimate partner violence”. The terms are interchangeable.

[4] These include, but are not limited to, a reverse onus on bail applications for repeat offenders and changing the law on weapons prohibition orders.