R. v. Kostyk, 2014 ONCA 447

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kostyk, 2014 ONCA 447

DATE: 20140609

DOCKET: C55816

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Kostyk

Appellant

Richard Litkowski, for the appellant

Susan Reid and Katie Doherty, for the respondent

Heard: February 6, 2014

On appeal from the conviction entered on February 25, 2011 and the sentence imposed on April 12, 2011 by Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury.

R.A. Blair J.A.:

OVERVIEW

[1] Jermaine Cameron was brutally beaten to death with a baseball bat in the appellant’s home. The appellant and his then-girlfriend, Celynn Cantin, lived in the home together and, at the time of the beating, were the only other persons there.

[2] The appellant and Ms. Cantin were drug addicts, and very heavy users of crack cocaine in particular. Mr. Cameron was their drug dealer.

[3] Mr. Cameron was living out of his car at the time, but was allowed to park in the appellant’s laneway and to sell drugs from that location. The appellant owed him at least $180 (perhaps as high as $400) for drugs. This debt became the subject of much discussion at trial.

[4] The Crown did not charge Ms. Cantin with murder, but proceeded against the appellant. The appellant was convicted of second degree murder and sentenced to life imprisonment with a 13-year period of parole ineligibility. He appeals from that conviction and, if unsuccessful, from the 13-year period of parole ineligibility.

[5] For the following reasons, I would dismiss the conviction appeal, grant leave to appeal sentence, but dismiss the sentence appeal.

FACTS

[6] The stories about what happened were conflicting. This much is uncontested, however.

[7] Mr. Cameron was struck at least eight times on the head with a baseball bat at some point during the evening of June 25, 2007. The beating took place in the appellant’s home.

[8] After the beating, the appellant called two of his friends, Alan Villeneuve and Brian Rowley, to come and help him. Mr. Cameron – who was either dead or alive – was dragged out of the house, loaded into the back seat of his own car, and driven by the appellant to a secluded conservation area near Palgrave, about a 30 minute drive from the appellant’s home in the Holland Marsh area north of Toronto. There, Mr. Cameron’s body was found the next morning, naked and abandoned in the bushes not far from his car.

[9] Messrs. Rowley and Villeneuve rode in Villeneuve’s truck and accompanied the Cameron car on the trip. They picked up the appellant at the site and returned him to his home. Upon arriving home, the appellant took steps to destroy the evidence of the incident and to cover up what had happened. These steps included:

(i) Buying cleaning equipment and products and cleaning the house to remove the blood spatter and stains;

(ii) Moving furniture around in the living room;

(iii) Breaking up the couch with a hammer because it was crusty with the victim’s blood on it, and burning the pieces of the couch;

(iv) Pawning a TV which had the victim’s blood spatter on it;

(v) Washing out the blanket that the appellant says he used to cover the victim, and which had the victim’s blood splatter on it;

(vi) Removing the appellant’s fingerprints from the baseball bat, and then throwing the bat, together with Mr. Cameron’s cell phones, into the canal; and

(vii) Lying to the police about what had happened and encouraging Ms. Cantin to do so as well.

[10] The appellant says these steps were taken to protect Ms. Cantin, but did not dispute that they happened.

[11] In other respects, the versions of what happened varied considerably.

The Conflicting Stories of the Appellant and Ms. Cantin

[12] Ms. Cantin testified that it was the appellant who administered the beating, while she was upstairs in the bathroom. The appellant testified that it was Ms. Cantin who did so, while he was upstairs sleeping. He said he retired to his bedroom after Ms. Cantin began to throw a tantrum because Mr. Cameron would not give her any crack cocaine. Neither the appellant nor Ms. Cantin hinted that they were involved in the beating together.

[13] According to Ms. Cantin, Mr. Cameron was relaxing or sleeping on a chair in the appellant’s living room. The appellant was in his bedroom. She went to the washroom and, on the way, saw the appellant lying on his bed. There was a baseball bat in the bedroom, which was unusual. While she was still in the washroom, she heard the sounds of a beating and, when she called out to see what was going on, the appellant came to the bathroom door and told her to stay inside, which she did. She heard more beating sounds. The appellant came back to the bathroom and threw to her a large piece of crack cocaine, which she began to smoke. She heard more beating sounds. The appellant then returned to the bathroom a third time, by which point all was silent. The appellant was holding a bloody baseball bat in his hands and told her to go to her bedroom and to stay there, which, again, she did.

[14] There was no mention of bathrooms in the appellant’s story. On his version of events, he went to bed when Ms. Cantin was throwing her tantrum as a result of not getting any crack cocaine from Mr. Cameron. He fell asleep. Sometime later he awoke to the sound of noises in the living room. When he went to find out what was going on, he saw Ms. Cantin standing over the deceased, who was kneeling on the floor, naked from the waist down. Ms. Cantin was swinging a baseball bat at Mr. Cameron who was putting his hands over his face. When Ms. Cantin hit Mr. Cameron and he fell to the floor, the appellant rushed to his defence, grabbing the bat from Ms. Cantin and putting it in the hallway. Without warning, however, Ms. Cantin recovered the bat and began swinging it again at Mr. Cameron, as well as at the appellant. She struck Mr. Cameron in the head. The appellant started yelling at her and chased her into the bedroom.

[15] Afterwards, the appellant returned to the living room and called Villeneuve and Rowley. While talking on the phone, he heard Mr. Cameron’s body thump on the floor. Mr. Cameron’s head slammed repeatedly against the floor, and he appeared to be having a seizure. The appellant put a pillow under his head.

Other Evidence

[16] Mr. Villeneuve and Mr. Rowley testified that, when they arrived, the appellant said to them he had “hit” Mr. Cameron and that he may have “hit him hard”. The appellant does not deny this. The three discussed what to do with the body. This led to the trip to the conservation area near Palgrave, described above.

[17] There was also some discussion about whether Mr. Cameron was dead or alive when the two friends arrived. Mr. Villeneuve said that Mr. Cameron showed no signs of life when they were driving away from the home. The appellant testified that he thought Mr. Cameron was dead when his friends arrived, but that he was alive and coherent when they arrived at the conservation area. Believing this to be the case, he left Mr. Cameron in the back seat of his car, with the keys, thinking that he would be able to drive himself away. His theory was that Mr. Cameron had crawled out of the car to get away, but that he had been too weak to do so and died in the bushes nearby.

[18] Because of the steps taken after the offence, described above, most of the evidence relating to the beating was destroyed. There was evidence that Ms. Cantin’s blood was found mixed with the blood of a male person (unidentified) in blood spatters in the living room.

[19] Ms. Cantin was severely addicted to crack cocaine. Her evidence was admittedly rife with inconsistencies and outright lies. In addition, there was evidence from one of her friends and from Mr. Villeneuve that she had a history of violence. The friend described several incidents where Ms. Cantin (a) chased another boyfriend with a knife when he told her he was leaving her; (b) punched the appellant numerous times in the head while the appellant was driving and after he had told Ms. Cantin that she was not getting any more crack cocaine; and (c) chased the appellant around the house with a knife. Mr. Villeneuve testified that Ms. Cantin was regularly violent with the appellant, particularly when she was deprived of crack, and that she had an “unstable personality”.

[20] The appellant, on the other hand, was described as a “mellow” individual.

[21] Another witness – a close friend of Mr. Cameron – testified that Ms. Cantin admitted to having sex with Mr. Cameron in exchange for drugs. Ms. Cantin denied this and said that she had never spent any time alone with Mr. Cameron. There was evidence, however, that the appellant worked during the day and that Mr. Cameron regularly spent time with Ms. Cantin alone in the house.

[22] Not surprisingly, the defence relied heavily on this evidence. The defence argued that Mr. Cameron was naked from the waist down when he died because he had asked Ms. Cantin for sex or fellatio in exchange for crack and that, in retaliation, she then beat him to death.

THE ISSUES

[23] Given the conflicting stories, it was left to the jury to sort out what had happened. In that exercise, the appellant argues that the trial judge misguided the jury in several respects through his instructions. He submits that the trial judge erred in law:

a) by responding to two specific questions from the jury in a way that precluded the jury from accepting a version of events that would have the appellant and Ms. Cantin jointly involved in the assault;

b) by failing to give an effective Vetrovec warning to the jury in relation to Ms. Cantin’s testimony;

c) by providing an improper W.(D.) instruction to the jury; and

d) by improperly instructing the jury with respect to the appellant’s post-offence conduct.

[24] At para. 88 of his factum, appellant’s counsel summarizes the appellant’s view of the effect of these alleged errors:

The jury truly considered the possibility that both the appellant and Cantin were involved in the attack until the trial judge erroneously instructed them to disregard that possibility. This error may have impacted the verdict in itself. Furthermore, due to the flaws with the Vetrovec and W.(D.) instructions, the jury was not properly equipped to assess Cantin’s evidence. Finally, the jury may have relied upon the post offence conduct to conclude it was the appellant, rather than Cantin, who committed the offence, but the jury was also given a less-than-ideal instruction on assessing the post offence conduct. The verdict may very well have been impacted by the cumulative effect of these errors and a new trial should be ordered.

[25] In spite of Mr. Litkowski’s characteristically helpful submissions, however, I am not persuaded this is the case.

ANALYSIS

(1) The Failure to Instruct the Jury on Joint Involvement

[26] At trial, the Crown and defence theories were very simple: the Crown said the appellant acted alone in assaulting Mr. Cameron and caused his death; the defence said it was Ms. Cantin who did so. No one suggested any in-between scenario in which both the appellant and Ms. Cantin participated in the assault.

[27] On appeal, however, the appellant contends for the first time that two questions posed by the jury show that the jurors were concerned about whether both he and Ms. Cantin participated in the assault. Because of this, he says, the trial jury should have instructed the jurors that they could consider a version of events which “spliced together” parts of the evidence of the appellant and parts of the evidence of Ms. Cantin, and find, as a result, that they were each involved in the beating. Had this happened, the appellant argues, the jury might have found that the appellant’s blow did not “substantially contribute” to the cause of Mr. Cameron’s death and/or that he did not have the necessary intent for murder as opposed to being guilty of manslaughter only.

[28] I would not give effect to this ground of appeal.

[29] The issue arises out of two sets of questions asked by the jury during the second day of deliberations. The first set of the questions were the following:

Please explain manslaughter scenario and first degree.

A. Does it matter who caused or created the initial restriction of movement for an offence of unlawful confinement to occur?

B. If it does matter does the continuation of unlawful confinement by a second party constitute an offence of unlawful confinement by the second party?

[30] The context of unlawful confinement in which these questions were asked was relevant because the jury was invited to rely upon a finding of unlawful confinement to support a conviction for manslaughter, thereby affecting the manslaughter/murder issue in the case.

[31] There was a lengthy discussion between the trial judge and counsel regarding the appropriate response to these questions. It centred, primarily, on the jury’s understanding of the concepts of manslaughter, second degree murder, and first degree murder in the context of unlawful confinement. Virtually nothing was said about the possibility of joint involvement by the appellant and Ms. Cantin. In a single, fleeting, remark during the discussion, defence counsel signalled that he did not want the jury to go down that path:

Defence Counsel: “Does it matter who caused or created the initial restriction of movement for an offence of unlawful confinement to occur?” I think the simple answer to that is, “no”. It doesn’t matter but – as long as – just it makes me a little nervous because there seems to be a party issue underlying this but that can’t be so.

The Court: Well, that’s right.

Defence Counsel: On the facts that we have.

[Emphasis added.]

[32] There were no objections to the response that the trial judge gave to the jury with respect to the first set of questions. It is the trial judge’s response to the second question submitted by the jury shortly thereafter that generates the issue now raised on appeal. That question was:

Sir, we have found the tree quite helpful. We are good on question/clarification number one from previous note. To be specific, if Celynn struck the first blow that restricted Bobby’s movement and then Mr. Kostyk struck the subsequent blows, does that constitute unlawful confinement on Mr. Kostyk’s part?

[33] As noted above, counsel for the appellant – not counsel at trial – contends that the two sets of questions posed by the jury, taken together, indicate the jurors believed both the appellant and Ms. Cantin may have been involved in the attack, and that they wished to consider this scenario in the context of the murder/manslaughter issue. If both parties were involved in the assault, and if Ms. Cantin had struck the first blow, he argues, this could have affected the jury’s view on causation and on whether the appellant had the necessary mens rea for murder. The jurors should have been allowed to piece parts of the appellant’s version of events and parts of Ms. Cantin’s together in approaching that question.

[34] The trial judge did not give such an instruction. Instead, he told the jury that there was no evidentiary basis for the joint-involvement scenario. That was a reversible error in law, the appellant submits. I do not agree.

[35] The trial judge’s response to the second question came after another thorough discussion with Crown and defence counsel. Both were very clear that a theory of joint involvement was not being advanced by either side and that, given the evidence, it would be mere speculation for the jury to embark upon such an inquiry. With the agreement of both counsel, the trial judge gave this instruction:

The problem is there’s no evidence of this scenario. You can’t speculate or make up things. I discussed it with counsel. None of us see that there’s any evidence to support this scenario. So, I think to answer that question wouldn’t be particularly – particularly helpful and germane. I don’t think there’s anything more that we can say about that. You’re entitled to draw inferences but the – you can only draw inferences from facts that are established in the evidence. There has to be evidence to establish, say fact A, maybe fact B, maybe fact C, from which you would draw certain inferences. But if there isn’t evidence to support an inference; although it may be a theoretical, speculative possibility, you can’t speculate. The issue is, is there proof beyond a reasonable doubt of the question based on the evidence? And a reasonable doubt can arise from the evidence or lack of evidence. And while you’re entitled to draw inferences from facts that are proven by the evidence, you’re not entitled to speculate or make up that. I don’t think I can say much more. Thanks a lot.

[36] Defence counsel had no comments following this direction. He told the trial judge that he thought it was accurate.

[37] In this Court, however, the appellant advances a different theory. He cobbles together a scenario – based on the acceptance of some parts of the evidence at trial and on the rejection of others – suggesting the following might have occurred: the appellant came out of the bedroom when he heard sounds of a beating administered by Ms. Cantin in retaliation for Mr. Cameron having forced her to have sex with him in exchange for the drugs she craved; the appellant flew into a rage upon seeing Mr. Cameron with his pants down[^1] and struck Mr. Cameron in the knee with a baseball bat; he then regretted his actions and attempted to help Mr. Cameron to the couch; Ms. Cantin picked up the bat again, hit Mr. Cameron in the head and the appellant in the ribs, and then ran to her room; the appellant put a pillow under Mr. Cameron’s head and, in a distraught frame of mind, called his friends for advice. The steps described above constituting the post-offence conduct then took place.

[38] The appellant points to some evidence upon which this scenario could be made out. The Crown says it is far-fetched and has no air of reality to it.

[39] I accept that there may have been evidence lending some air of reality to this scenario – unlikely as it may have been on the record – and, thus, there was a factual basis for providing a joint party liability instruction.

[40] No one disputes that a trial judge has a duty to instruct the jury on all bases of liability that are available on the evidence. Nor is it disputed that defence counsel’s theory or position at trial is not determinative on appeal. It seems to me that the trial judge could have – and, perhaps, with the benefit of hindsight, should have – given a joint party liability instruction in response to the jurors’ last question. He could have told them that, although the theory was not being advanced by the defence or the Crown, it was open to them on the evidence to consider such a scenario: see R. v. Babinski (2005), 2005 CanLII 789 (ON CA), 193 C.C.C. (3d) 172, at para. 48 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 201.

[41] That said, I do not think the failure to provide that instruction led to “a substantial wrong or miscarriage of justice” here. Even if it may have been a technical and legal error, it did not constitute a reversible error in law in the circumstances of this case. I would therefore apply the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code, to this ground of appeal. I say this for the following reasons.

[42] In R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97, leave to appeal refused, [2010] S.C.C.A. No. 263, Doherty J.A. re-affirmed that counsel’s position at trial is not determinative when a misdirection or non-direction is raised as a ground of appeal; “[a] legal error remains a legal error even if counsel does not object or even supports the erroneous instruction”. Nonetheless, demonstrating a legal error is not the end of the inquiry in terms of setting aside a conviction on appeal where defence counsel has taken a contrary position at trial. Trial counsel’s position is relevant in considering the curative proviso: R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38, at para. 15 (Ont. C.A.); and R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at pp. 1308-1309. As Doherty J.A. correctly pointed out in Austin, at para. 14, “[a]rguments by appellate counsel that fly in the face of positions taken by counsel at trial quite properly attract judicial scepticism and resistance”. This is all the more the case where it appears that trial counsel’s position reflects a calculated tactical decision: R. v. Lomage (1991), 1991 CanLII 7228 (ON CA), 2 O.R. (3d) 621, per Finlayson J.A., at pp. 629-30 (C.A.).

[43] All of these considerations are in play here.

[44] To repeat, the theories advanced by the Crown and defence at trial were straightforward: either the appellant, acting alone, or Ms. Cantin (or possibly Mr. Villeneuve), acting alone, assaulted Mr. Cameron with a baseball bat, causing his death. It was never the Crown’s theory or the defence’s theory that the appellant and Ms. Cantin jointly participated in the assault. In fact, both denied that they were involved at all.

[45] As explained above, the appellant puts forward a much more nuanced argument on the facts before this Court. He submits that the jury could have concluded (a) that the appellant did assault Mr. Cameron, but only once on the knee, and only after Ms. Cantin administered a series of blows to the head first – both using a baseball bat – and, (b) that the appellant administered his blow while in a rage because he found Mr. Cameron naked from the waist down and was angered that Mr. Cameron had demanded sex from Ms. Cantin in exchange for drugs.

[46] Experienced defence counsel at trial eschewed this approach, however. He made it very clear that he was not asking for, and did not want the jury to be instructed on joint party liability. It is evident from the exchange among the trial judge, defence counsel, and Crown counsel surrounding the jury questions, that defence counsel was very worried about the jurors attempting to navigate the shoals of joint party liability and did not want them to do so. This was a tactical decision on his part and, in my view, a reasonable one.

[47] For one thing, as I have already noted, Ms. Cantin’s evidence was riddled with inconsistencies and lies, and defence counsel had enjoyed considerable success in undermining the credibility and reliability of her testimony. From the defence perspective, there was a reasonable chance of persuading the jury to reject her evidence altogether, thereby raising a reasonable doubt and leading to the appellant’s acquittal on the murder charge.

[48] More compelling, perhaps, was the real risk that, by opening up the possibility of joint participation in the assault, the defence would be broadening, rather than narrowing, the bases on which the appellant could be convicted for murder. In reality, a joint party liability instruction did not help the appellant; it did little to exclude him from liability but, rather, simply added Ms. Cantin to the mix in that respect. On the record as it stands, it seems to me almost inevitable that the appellant would have been convicted if the joint party scenario had been put to the jury. This consideration is relevant for two reasons. First, it reinforces the reasonableness of defence counsel’s tactical decision. Secondly, it belies the argument that the failure to give such an instruction led to a miscarriage of justice in the circumstances.

[49] In a criminal trial – particularly a lengthy criminal trial – the trial judge and counsel are entitled to, and should, attempt to narrow the issues to what the trial is realistically about. Nothing is to be gained by proliferating the complexities that a jury is required to deal with unless the added complexity is something that matters in a practical and sensible way. Justice Charron underscored this point in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 10:

In my view, the majority[^2] was correct in finding that no miscarriage of justice was occasioned in this trial. There is no question that the trial judge could have instructed the jury more fully on the different modes of participation that could ground criminal liability, including the law on aiding and abetting. In hindsight and from a legalistic standpoint, it is easy to argue that he probably should have done so. However, the adequacy of the jury instructions must be assessed in the context of the evidence and the trial as a whole. There is nothing wrong, particularly in complex or lengthy trials, with the trial judge and counsel’s narrowing the issues for the jury by focussing on what is actually and realistically at issue in the case, provided that, at the end of the day, the jury is given the necessary instructions to arrive at a just and proper verdict. [Emphasis added.]

[50] In my opinion, this approach applies with equal force to the present appeal. No substantial wrong or miscarriage of justice was occasioned by the trial judge’s failure to provide a joint party liability instruction in response to the jury’s question. It was open to the trial judge and counsel – as they did – to narrow the issues and focus on what was actually and realistically at issue in the case. The possibility of the appellant and Ms. Cantin being jointly involved in the beating of Mr. Cameron was not “actually and realistically at issue” in the case. In addition, as articulated above, such instructions would have potentially been far more harmful to the appellant’s position than helpful.

[51] The Crown’s case against the appellant was overwhelming, even if Ms. Cantin had been involved in the beating. Moreover, for the reasons referred to above, the omission of the joint party liability instruction was harmless from the appellant’s perspective. I am satisfied that, on this issue, there is no realistic possibility that a new trial would produce a different verdict: see R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at paras. 22-28. The curative proviso applies to this ground of appeal.

(2) The Vetrovec Issue

[52] Nor would I give effect to the appellant’s second ground of appeal that the Vetrovec warning given by the trial judge was inadequate.

The Need for the Vetrovec Warning and the Principles that Apply

[53] Courts have long been alert to the difficulties inherent in assessing the evidence of “unsavoury witnesses” and the need for some sort of warning for triers of fact. In R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, Dickson J. set out the modern approach to that problem and the underlying basis for what has become known as the “Vetrovecwarning”. Later decisions of the Supreme Court of Canada and various appellate courts have provided further guidance. In R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 94, Major J. wrote that there is no particular language or formula, but the “clear and sharp warning” required when a Vetrovec warning is called for must at a minimum,

focus the jury’s attention specifically on the inherently unreliable evidence. It should refer to the characteristics of the witness that bring the credibility of his or her evidence into serious question. It should plainly emphasize the dangers inherent in convicting an accused on the basis of such evidence unless confirmed by independent evidence.

[54] More recently, in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 47., Fish J. confirmed the two-fold rationale underpinning the Vetrovec caution:

A truly functional approach must take into account the dual purpose of the Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.

[55] Khela also endorsed a general framework to be adopted in constructing Vetrovec warnings appropriate to the circumstances. At para. 37, Fish J. adopted the four-point outline set out by this Court in R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321, leave to appeal refused, [2004] S.C.C.A. No. 246. He said:

That proposed framework, which I adopt and amplify here, is composed of four main foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused. [Emphasis in original.]

[56] Justice Fish went on to say, at para 38, that “[w]hile this summary should not be applied in a rigid and formulaic fashion, it accurately captures the elements that should guide trial judges in crafting their instructions on potentially untrustworthy witnesses”.

The Vetrovec Caution Provided Here

[57] There was never any dispute that Ms. Cantin’s testimony required a very strong Vetrovec caution and, after an extensive pre-charge discussion with counsel, the trial judge gave one. He also gave a similar warning regarding the testimony of Mr. Villeneuve.[^3] The appellant submits that the warning with respect to Ms. Cantin’s testimony was not strong enough. He attacks it on three grounds:

a) Instead of highlighting the key reason to be cautious about relying on Ms. Cantin’s evidence – namely that she was the only other possible suspect and therefore had a significant motive to lie – the trial judge implied to the jury that she had little motive to do so;

b) The trial judge failed to instruct the jury that it was (as opposed to “it may be”) dangerous to rely upon the unconfirmed evidence of Ms. Cantin; and

c) The trial judge’s references to confirmatory evidence were misleading and unbalanced.

[58] There is some merit in these concerns, but I am satisfied at the end of the day that the Vetrovec instruction was sufficient. When read as a whole and in the context of the position taken by defence counsel, the entire jury charge and the record before the jury, the warning adequately conveyed to the jury the need to scrutinize Ms. Cantin’s testimony with “the greatest care and caution” and not to rely upon it, unless satisfied of its truth, without independent confirmatory evidence. It fulfilled the purposes of a Vetrovec warning and the framework to be addressed in crafting such a warning, as outlined above. I say this for the following reasons.

Defence Counsel’s Position at Trial

[59] First, although defence counsel had much to say during the pre-charge discussions concerning the Vetrovec instruction, the primary thrust of his submission was to avoid a Vetrovec warning for Mr. Villeneuve altogether and, alternatively, to ensure, if one were given, that Ms. Cantin was placed “front and centre” in the Vetrovic scenario. He made submissions with respect to the confirmatory evidence issue – some of his suggestions were accepted by the trial judge; some were not. However, defence counsel made no objection to (i) the absence of any reference to Ms. Cantin as being the only other possible suspect; (ii) the comparison made by the trial judge to the respective jeopardy of Mr. Villenueve and Ms. Cantin; or (iii) the use of the words “may be dangerous” as opposed to the words “is” or “would be dangerous” to convict on the basis of Ms. Cantin’s evidence alone without confirmation. After the jury charge was delivered, defence counsel made no objection to the Vetrovec warning.

[60] Again, counsel’s position and failure to object at trial, while not determinative, indicate that counsel was content that the instructions fairly protected the accused’s interests. As Fish J. observed in Khela, at para. 49:

While the obligation to ensure that juries are properly instructed clearly falls to the trial judge, counsel should not abdicate their duty of assisting the court. As Bastarache J. recently explained in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523:

… it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’s instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation.

The Jury Was Well Aware That Only Ms. Cantin Was The Alternate Suspect

[61] The appellant strongly criticizes the trial judge’s failure to point out to the jury that it was dangerous to rely on Ms. Cantin’s uncorroborated evidence because she was the only alternate suspect and therefore had a substantial motive to lie. Magnifying this problem, he says, was the trial judge’s comparison between the jeopardies of Mr. Villeneuve and Ms. Cantin. On this latter point, the trial judge told the jury:

As you know she was charged with, and convicted of, attempting to obstruct justice for lying to the police in connection with this investigation. She was also very involved in the circumstances surrounding Jermaine Cameron’s death. She was not in as serious a predicament as Mr. Villeneuve was because, unlike Mr. Villeneuve, she was not charged with the killing. [Emphasis added.]

[62] In his factum, appellant’s counsel characterizes this passage as “particularly troublesome [because] it suggested to the jury that they should not consider Cantin as possibly guilty of murder” and argues that the “passage eroded the core of the defence” because the entire defence theory was that Ms. Cantin was the perpetrator.

[63] Viewed in isolation, this passage may have been problematic. It could, perhaps, have conveyed to the jury a softening of the Vetrovec caution vis-à-vis Ms. Cantin because – as compared with Mr. Villeneuve – she faced no jeopardy arising out of the killing and therefore may have had a lesser motive to lie. However, it is the case that Villenueve, and not Ms. Cantin, had been charged with the murder and the impugned passage should not to be viewed alone and in isolation.

[64] The impugned language must be considered in the context of the Vetrovec warning as a whole and in light of the entire record before the jury and the “he did it/she did it” positions advanced by the Crown and the defence. The trial judge crafted his Vetrovec instruction after entertaining lengthy submissions from counsel. As already indicated, the primary thrust of defence counsel’s pre-charge submission was to avoid any Vetrovec caution for Villeneuve. However, as the trial judge pointed out, such a caution was almost certainly required as Villeneuve had originally been charged as a party to the murder and that charge had been withdrawn after he agreed to cooperate with the police. In response to the defence position, the trial judge agreed to “tone down” the caution he had originally proposed with respect to Villeneuve. Both Villeneuve and Cantin were in the same situation as alternative suspects. The defence succeeded in achieving its primary tactical advantage of softening the strength of the warning as to Villeneve and it is hardly surprising that the price of that gain was a similar result with respect to Cantin.

[65] In any event, I am satisfied that in the context of this trial, it would have been apparent to the jury that Ms. Cantin was a very unsavoury witness whose testimony had to be assessed with utmost reservation. There were only two people at the scene when the deceased was attacked and it simply could not have been lost on the jury – given the way the evidence evolved and the way the case was put to them – that Ms. Cantin was the only other possible suspect in the beating. Defence counsel did not find it necessary to point this out in his closing address, and there was no need for the trial judge to say more than he did in his jury instructions. As Watt J.A. observed in R. v. Saleh, 2013 ONCA 742, at para.108, “[s]ometimes … the reasons underlying the need for caution are self-evident and an elaborate explanation of them is unnecessary”.

[66] In the circumstances of this case, it might well have been preferable for the trial judge to add to the criticized passage a formulaic “but, of course, Ms. Cantin is the only other possible suspect and therefore had an increased motive to lie”. However, in my view, this was self-evident. It was obvious on the record that Ms. Cantin was the only other possible suspect and it was equally obvious that she had a substantial motive to lie as a result. I do not think the failure to point this out to the jury would have made any difference. The jury would appreciate that if, as the defence suggested, Ms. Cantin were the murderer, she could not be trusted as a witness.

“May Be Dangerous”

[67] Similarly, I am not convinced that the trial judge’s use of the words “may be dangerous” as opposed to “is [or would be] dangerous” is fatal to the charge.

[68] In the general portion of his Vetrovec instruction, the trial judge told the jury:

Common sense tells you that, in light of these circumstances, there is good reason to look at the evidence of Celynn Cantin and Allen Villeneuve with the greatest care and caution. You are entitled to rely on their evidence even if it is not confirmed by another witness or other evidence, but it may be dangerous for you to do so. Accordingly, you should look for some confirmation of the evidence of each of these witnesses from somebody or something other than their evidence before you rely upon their evidence in deciding whether Crown counsel has proven Fran Kostyk guilty of the crime charged, or an included offence, beyond a reasonable doubt. [Emphasis added.]

[69] The appellant submits this language diluted the impact of the Vetrovec warning and, together with the other alleged errors in it, turned the caution into something less than the “strongest possible” warning called for in the circumstances. I disagree.

[70] The overall tenure of the Vetrovec instruction concerning Ms. Cantin”s testimony was very strong and the factual matrix of the trial itself revealed the characteristics of Ms. Cantin that generally undermined the credibility and reliability of her story. As noted, the jurors were told to assess that testimony “with the greatest care and caution”. The trial judge outlined the reasons for the Vetrovec instruction and, in giving it, he fully canvassed the numerous acute frailties associated with that testimony. These frailties included: Ms. Cantin’s criminal record and conviction for obstructing justice by lying to police in connection with this very case; her involvement in the circumstances surrounding Mr. Cameron’s death; her serious drug problems and the evidence that she had been aggressive in the past (This includes Ms. Cantin’s reaction to being deprived of drugs and her craving for them, and that her craving may have given her a motive to lie about what she was doing with Mr. Cameron); her memory issues (Ms. Cantin was smoking crack cocaine that night); the central importance of her evidence as the only other person in the house at the time; and her admitted lies to the police. In short, the jury was made well aware of the many reasons for finding Ms. Cantin’s evidence untrustworthy.

[71] The appellant points out that Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) calls for the use of the mandatory language “it is dangerous for you to do so”. This is true, and it may have been preferable had the trial judge adopted this language rather that opting for the use of the words “may” and “should”. However, while it is generally desirable for trial judges to adopt the language of the Specimen Charge, the failure to do so does not necessarily constitute reversible error.

[72] There is no doubt that a strong Vetrovec instruction regarding Ms. Cantin was mandatory in these circumstances, and it was given. It does not follow, however, that the use of the words “is dangerous” or “would be dangerous” was also mandatory. The language to be used is very much a matter for the trial judge’s discretion and no formulaic language is obligatory, provided the jurors are adequately cautioned about the dangers of convicting based on the unconfirmed evidence of the Vetrovec witness alone. Justice Watt himself observed in Saleh, at para. 108, that:

Vetrovec eschewed formulaic instructions in favour of a judicial discretion to compose a wording responsive to the needs and circumstances of the case: Khela, at paras. 38; Smith,[^4] at para. 16. A failure to include a specific component in a Vetrovec instruction may not prove fatal where the charge, read as a whole, otherwise serves the purposes of a Vetrovec warning: Khela, at para. 44.

[73] It bears noting that – unlike judges, lawyers, and legal academics, perhaps – jurors are not chosen for their capacity as wordsmiths. They are chosen for their ability to apply common sense and the judgment of an accused’s peers to the situation at hand. I am not persuaded that, in these circumstances at any rate, the jury would have placed much importance on the use of the qualifiers “may” and “should”, as opposed to “is” or “would be”. What would have jumped out at them is the word “dangerous” and the implications that go with that concept.

[74] I am not satisfied that the use of the less-than-mandatory language here, either viewed alone or in combination with the other complaints about the Vetrovec warning, was an error.

The Confirmatory Evidence

[75] Having alerted the jurors to the risks of convicting the appellant on the unconfirmed evidence of Ms. Cantin, the trial judge reviewed ten items of evidence that he said could be confirmatory. With the exception of one of these items – the appellant’s statement to Mr. Villeneuve that he had hit Mr. Cameron, and may have hit him hard – the appellant contends that the balance of the list was “misleading” and “could not assist” the jury because it did not corroborate “material aspects” of Ms. Cantin’s testimony: see Khela, at para. 43.

[76] For evidence to be “confirmatory” in the Vetrovec sense, it need not in fact be confirmatory, that is, of “assistance” to the jury; it need only be capable of being confirmatory. The appellant’s arguments miss this mark. Whether an item of evidence is capable of confirming the evidence of another witness, and whether the jury should accept it as doing so, are two different questions.

[77] Confirmatory evidence must be independent of the evidence of the Vetrovec witness and must confirm “material aspects” of that evidence. The confirmatory evidence need not implicate the accused in the commission of the offence. Nonetheless, “the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence;” they “must be capable of restoring the trier’s faith in relevant aspects of the witness’ account”; and – where the only issue is whether the accused committed the offence – “the trier of fact must be comforted that the impugned witness is telling the truth in that regard before convicting on the strength of that witness’s testimony”: Khela, at paras. 42 and 43 [emphasis in original].

[78] Here, the trial judge was very careful to present the suggested confirmatory evidence in a balanced way by highlighting not only the confirmatory aspects of it, but also reminding the jurors of any significant conflicting evidence on each point. He told them that to be confirmatory,

the testimony of another witness or witnesses or other evidence should be such that it helps restore your faith in relevant parts of [Ms. Cantin’s evidence].

[79] Most of the appellant’s arguments are directed at showing why the jury should not accept the individual items of evidence in question as confirmatory – given the significant conflicting evidence in relation to each of them (with the one exception) – rather than showing why the evidence could not have been confirmatory. In my view, if the jury rejected the conflicting other evidence and accepted as accurate the individual items of confirmatory evidence, that evidence could help restore the jury’s faith in the relevant aspects of Ms. Cantin’s account of events and, as the trial judge said, “could offer confirmation for important aspects of Ms. Cantin’s evidence about what she heard and saw at the most critical time”. This could provide comfort to the jury that she was telling the truth about what happened that evening.

[80] The following items of evidence listed by the trial judge as capable of confirmation were particularly persuasive, in my view:

a) Mr. Villeneuve’s testimony that, when he arrived at the scene, he saw a bloody bat standing in the hall and that the appellant told him: “I hit him”, and “I hit him fairly hard” (this pointed directly to the appellant in the “he did it/she did” scenario presented to the jury, and the appellant concedes it is confirmatory);

b) The appellant acknowledged a bat had been in his bedroom earlier that night, but was in the living room at the time Ms. Cantin said she was in the bathroom (Ms. Cantin testified that she saw a baseball bat leaning up against the window in the appellant’s room when she went to the bathroom just before Mr. Cameron’s beating – an unusual place for the bat to be kept – and that she later saw a bloody bat in the appellant’s hands when he later came by the bathroom;

c) The evidence of the pathologist that the deceased had been hit at least eight times and that the injuries were consistent with being caused by a baseball bat (Ms. Cantin testified that, as she sat in the bathroom, “she heard a loud thump followed by a number of banging or smacking sounds”);

d) The appellant confirmed Ms. Cantin’s testimony that he had told her to lie to the police about when they had last seen the deceased and about the deceased coming into the house; and

e) There was evidence from the appellant, Mr. Villeneuve, and Brian Rowley that could confirm Ms. Cantin’s testimony about what she heard after she was told to go to her bedroom and stay there: that Rowley and Villeneuve came into the house; that there were sounds of crack cocaine being smoked in the kitchen; that there were sounds of Mr. Cameron being moved and the sounds of vehicles leaving the scene; and that there was a discussion between the appellant and the others about why Mr. Cameron’s pants were down.

[81] The appellant stresses that Ms. Cantin’s testimony about hearing the appellant and Mr. Villeneuve discuss Mr. Cameron’s pants being down is simply implausible. It is implausible, the appellant alleges, when one considers the evidence about Ms. Cantin and Mr. Cameron’s prior sexual relations, the evidence about her propensity for violence when denied drugs, and the fact that her blood was found mixed with the blood of a male person in the living room. Ms. Cantin’s testimony therefore cannot be confirmed by the evidence of Mr. Villeneuve and the appellant on this point.

[82] Again, the appellant is confusing evidence that was powerful on the issue of who had beaten Mr. Cameron and that could have led to the rejection of Ms. Cantin’s testimony, with the notion of whether the evidence of the appellant and Mr. Villeneuve could be confirmatory of her contrary testimony. If the evidence of the appellant and Mr. Villeneuve were believed, it could still be confirmatory of this important part of Ms. Cantin’s evidence.

[83] There were other items suggested by the trial judge as being capable of confirming Ms. Cantin’s testimony. I do not think any was misleading, but the foregoing are the most salient items. Depending on the evidence the jury accepted, they were all capable of being confirmatory.

[84] I would not give effect to this ground of appeal.

The W.(D.) Argument

[85] In his written submissions, appellant’s counsel argues that the trial judge erred in failing to provide a sufficient W.(D.) instruction.[^5] In particular, he suggests that, in some parts of the charge, and in the trial judge’s response to the jury’s questions, the trial judge did not refer to the second branch of the W.(D.) test. Counsel did not develop this argument further in oral submissions.

[86] The trial judge gave an explicit and accurate W.(D.) instruction that clearly drew their attention to the second branch of the test, however:

In order to exemplify the correct approach I must give you the following instruction.

If you believe Mr. Kostyk’s evidence that he did not do anything that caused or contributed to Jermaine Cameron’s death, then obviously you must find him not guilty.

Even if you do not believe Mr. Kostyk’s evidence that he did nothing that caused or contributed to Jermaine Cameron’s death, if his evidence leaves you with a reasonable doubt about his guilt, you must find him not guilty. [Emphasis added.]

Even if Mr. Kostyk’s evidence does not leave you with a reasonable doubt about his guilt, you may convict him only if the rest of the evidence that you do accept proves his guilt of the offence charged, or an included offence, beyond a reasonable doubt.

[87] The appellant concedes that this was a proper charge. He submits, however, that in two other places in the charge the trial judge “skipped over” the second branch of the W.(D.) instruction and may have implied to the jurors that they need not consider whether, even if they disbelieved the appellant, his evidence raised a reasonable doubt. I do not accept this submission and note, again, that the sufficiency of the charge was supported by the lack of any objection by defence counsel either to the charge on the burden of proof generally or on the W.(D.) instruction in particular.

[88] The first of the impugned passages occurred immediately prior to the proper W.(D.) instruction outlined above and the jury could not have considered it in isolation. The passage focused, correctly, on the need for the jury not to treat the case as a credibility contest between the appellant and Ms. Cantin. It made it clear that the jury had to be convinced that the Crown had proved all of the essential elements of the offence beyond a reasonable doubt. The second impugned passage was part of the instruction on causation. Again, the trial judge pointed out that the jury was not compelled to choose between the testimony of the appellant and that of Ms. Cantin and that the appellant was entitled to the benefit of any reasonable doubt as to whether the Crown had proved causation.

[89] When the charge is read as a whole, including the proper W.(D.) instruction recited above, it is clear that the jury was fully instructed on the burden of proof and the requirement to apply the W.(D.) analysis.

Post-Offence Conduct

[90] The appellant admittedly engaged in post-offence conduct that could reflect on his commission of the beating. This conduct is summarized in para. 9 above.

[91] The appellant submits that the trial judge erred in respect of the post-offence conduct in two ways. First, he declined to give a “no probative value” instruction to the jury. Secondly, the instruction he did give confusingly invited the jury to engage in circular reasoning, i.e., that, because the appellant believed he had committed the offence, the jurors could use the post-offence conduct to find that he had done so. Neither submission can succeed.

[92] A “no probative value” instruction is given where the post-offence conduct is equally consistent with the commission of two or more offences. The jury is told in such circumstances the post-offence conduct is of no probative value in helping them determine whether or not the accused committed the crime in question because the evidence cannot logically support an inference of guilt with respect to one crime rather than the other: see R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 21-28; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R 129, at pp. 145-46; and R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 37-47.

[93] That said, a “no probative value” instruction is not called for in all situations involving post-offence conduct. As the Supreme Court of Canada said in White (1998), at para. 29:

By contrast, a “no probative value” instruction is not required where the accused has denied any involvement in the facts underlying the charge at issue, and has sought to explain his or her actions by reference to some unrelated culpable act. In such cases it is the identity of the accused as the perpetrator, rather than the extent of his or her culpability, that is in issue, and it will almost invariably fall to the jury to decide whether the evidence of post-offence conduct can be attributed to one culpable act rather than another.

[94] This observation applies with equal force to this case. The appellant denied any involvement in the beating of Mr. Cameron. He sought to explain his subsequent conduct as an act of protection for Ms. Cantin. That conduct would have been criminal in any event, because, as the appellant submits, it arguably amounted to his being an accessory-after-the-fact.

[95] In the appellant’s view, because he had admitted to the post-offence conduct, he had admitted to being guilty as an accessory-after-the-fact, and therefore the “no probative value” instruction should have been given. But, as the Crown contends, the significance of this particular aspect of the evidence was not whether the conduct was equally consistent with the conduct of a person guilty of one offence or another; its significance went to a determination of who it was who had beaten Mr. Cameron. The trial judge emphasized on several occasions that the jurors were to be particularly alive to considering whether there was any other “reason that explains why [the appellant] did and said these things”.

[96] In addition, post-offence conduct generally refers back to conduct that could be consistent with an awareness of having committed an earlier offence. The post-offence conduct or after-the-fact conduct here is the very conduct constituting the commission of the offence.

[97] Neither do I accept that the instructions on post-offence conduct, considered as a whole, displayed what the parties refer to as a Hall error – that is, an invitation to engage in the circular reasoning that, because the appellant knew he was guilty of committing the offence, he therefore committed it: see R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at paras. 142-44, leave to appeal refused, [2010] S.C.C.A. No. 499.

[98] In my view, the Hall critique does not apply in this case. The trial judge did not tell the jurors that they were to decide whether the appellant engaged in the post-offence conduct because he was conscious that he had committed the offence in question, as was the case in Hall. He told them that, if he did or said those things because he was conscious of having caused Mr. Cameron’s death, they could consider that evidence, along with all the other evidence, in determining whether he did cause Mr. Cameron’s death unlawfully.

[99] Again, while these instructions may seem similar in some respects, the issue of the appellant being conscious of having caused Mr. Cameron’s death was relevant to whether the appellant was the person who had administered the beating, not to whether he was conscious of having been guilty of the offence of murder, manslaughter, or unlawful confinement. The jurors, moreover, were given a clear direction that they were not to “use the evidence I have been referring to about what [the appellant] did or said afterwards in deciding or helping [them] decide that [the appellant] caused Mr. Cameron’s death unless [they] reject any innocent explanation for it”. Causation was only one of several steps the jury had to take before determining the ultimate question of whether the appellant was guilty of murder or manslaughter. The jurors were not invited “to jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-offence conduct evidence; that is, concluding the deliberation process backwards as described in White”: Hall, at para. 143.

[100] As Weiler J.A. noted in R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 117 C.C.C. (3d) 226, at p. 238 (Ont. C.A.):

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.

[101] Here, what the appellant admittedly did and said after the beating was administered to Mr. Cameron is very powerful evidence that he, in fact, was the person who administered that beating, assuming the jury rejected his testimony that he did so to protect Ms. Cantin. The charge in this case adequately instructed the jurors on how to consider this evidence, along with all of the other evidence – circumstantial or otherwise – in the case.

The Sentence Appeal

[102] A conviction for second degree murder carries with it an automatic sentence of life imprisonment with no eligibility for parole for 10 years. However, a trial judge has the discretion to impose a longer period of parole ineligibility.

[103] The Crown sought the imposition of a 15-year period of parole ineligibility. The defence argued that the circumstances did not warrant any increase. The trial judge sought input from the jury; four members made no recommendation; five recommended 10 years; and three recommended 15 years. The trial judge settled on a 13-year period of parole ineligibility.

[104] The decision to increase the period of parole ineligibility is discretionary and entitled to considerable deference. Absent an error in principle or a misapprehension of material evidence, an appeal court will not lightly intervene and, in particular, will not do so “to adjust a mandatory period of parole ineligibility downward by two or three years:” R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 179, leave to appeal refused, [2010] S.C.C.A. No. 179.

[105] I see no error in principle or misapprehension of the evidence here and would not interfere with the trial judge’s choice of 13 years.

[106] The appellant argues that the trial judge erred in characterizing the seriousness of the offence by relying on aggravating factors that had not been proven beyond a reasonable doubt. He points to the trial judge’s treatment of:

(i) the motive for the offence;

(ii) the severity of the attack; and

(iii) the callous nature of the attack.

[107] With respect to motive, the trial judge said that the murder appeared to have been motivated by the appellant’s need for drugs and a desire to put an end to the debt owed by him to Mr. Cameron. With respect to the severity of the offence, he concluded that more than eight blows were struck. With respect to the callous nature of the offence, the trial judge noted that the appellant had not called an ambulance after the beating, although on his own evidence the appellant thought that Mr. Cameron may still have been alive.

[108] The trial judge did not err in relying on these aggravating factors. There was no doubt that the murder took place in the context of drugs, and the appellant’s debt to Mr. Cameron was front and centre at trial. The trial judge was entitled to rely on the pathologist’s evidence that “at least eight blows” had been dealt to the victim’s head in addition to the vicious blow to the knee. The finding that the appellant acted in a callous fashion was amply supported by the evidence. The appellant acknowledged that he thought Mr. Cameron was still alive (bleeding, gurgling, grunting, and not making a lot of sense). He acknowledged that he should have called an ambulance. Instead, he called his friends, smoked some crack cocaine, and, together with his friends, drove Mr. Cameron to a remote location 30 minutes away, and abandoned him, naked. He then took deliberate steps to try to hide what he had done, including destroying evidence, telling others to lie to the police, and lying himself to the police.

[109] There were mitigating factors in the appellant’s favour. The trial judge recognized them. The appellant had had a difficult upbringing, yet had managed to make himself a somewhat productive member of society. He had a criminal record, but it was dated and did not have much bearing on the sentence. The trial judge concluded there was “no basis to think that [the appellant had] a generally violent disposition, or that he [was] unlikely to benefit from efforts to rehabilitate him”.

[110] In spite of these factors favouring the appellant, however, the trial judge concluded, based on the foregoing, that the nature of the offence and the circumstances surrounding its commissions called for an increase in the period of parole ineligibility from 10 years to 13 years.

[111] I see no basis for interfering with that decision.

Disposition

[112] For the foregoing reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence but dismiss the sentence appeal as well.

“R.A. Blair J.A.”

“I agree K.M. Weiler J.A.”

“I agree Robert J. Sharpe J.A.”

Released: June 09, 2014

[^1]: The appellant was no longer in a relationship with Ms. Cantin at the time, but they lived in the same house and still had regular sexual intercourse. [^2]: The reference is to the majority decision in the British Columbia Court of Appeal. [^3]: At trial, defence counsel objected to this. [^4]: R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146. [^5]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.