Her Majesty the Queen v. Arnaout

[Indexed as: R. v. Arnaout]

Ontario Reports

Court of Appeal for Ontario,

LaForme, Watt and G.J. Epstein JJ.A.

September 30, 2015

127 O.R. (3d) 241 | 2015 ONCA 655

Case Summary

Courts — Judges — Presumption of integrity — Accused convicted of attempted murder for sending tampered bottles of water to victims — Trial judge finding that accused put ricin in bottles — Evidence that accused put ricin in bottles being weak — Accused appealing — Trial judge advising counsel during sentencing proceedings 17 months later that he had decided to "clarify" his reasons in five places by adding alternative finding that accused had tried but failed to put ricin in bottles — Presumption of integrity rebutted as informed and reasonable observer would think that amendment constituted after-the-fact justification for trial judge's decision — Amendment excised from reasons for judgment — Conviction based on sending tainted water unreasonable.

Criminal law — Attempted murder — Included offences — Accused charged with attempted murder based on sending tampered bottles of water to victims — Water found to contain dimethyl sulfide but charges not stating that accused added dimethyl sulfide to water or that anyone drank water — Trial judge erring in finding that charges as particularized offence of administering noxious thing or attempting to administer noxious thing — Acquittals entered on attempted murder charges relating to water bottles.

Criminal law — Sentencing — Appeals — Accused convicted of eight counts of attempted murder based on sending tainted water to number of people and three counts of attempted murder (and related explosive related counts) by sending letter bombs to persons against whom he had animus — Acquittals entered on counts relating to water bottles based on verdicts being unreasonable after words judge added to reasons 17 months after the conviction being excised as presumption of integrity being overturned — Accused had been designated as dangerous offender and received an indeterminate sentence based on original convictions — New sentencing hearing on charges related to letter bombs ordered before new judge.

The accused was charged with eight counts of attempted murder by sending tampered bottles of water to a number of people, three counts of attempted murder by sending letter bombs to three other people, three counts of causing an explosive device to be delivered and two counts of possessing an explosive substance. He admitted sending the water bottles and the letter bombs, but denied that he intended to kill anyone. The bottles of water were found to contain dimethyl sulfoxide, a substance that can irritate the digestive system and that aids the absorption of other substances, resulting in less ricin being required to constitute a fatal dose. The four people who tasted the water did not become ill. A search of the accused's hard drive revealed research into ricin, a poison which is lethal in very small doses. The water bottles were not tested for ricin. In assessing the accused's intent on the water bottle charges, the trial judge found that the accused put ricin in the bottles. He was troubled by the fact that [page242] those who drank the water did not become ill, but reasoned that they likely ingested only a small quantity. He convicted the accused on all counts except for one of the explosive substance counts. The three "cause to be delivered" counts were stayed pursuant to Kienapple. The accused appealed. Seventeen months after the conviction, during dangerous offender proceedings, the trial judge informed counsel that he had decided to "clarify" his reasons by amending them to add the alternative finding that the accused tried but failed to put ricin in the water bottles. He explained that he had made the alternative finding in his mind when he gave his reasons for conviction, but inadvertently did not express it in those reasons. The accused was convicted on 11 counts of attempted murder, three counts of causing an explosive device to be delivered (later stayed pursuant to Kienapple) and two counts of possessing an explosive, was designated a dangerous offender, and was sentenced to an indeterminate sentence.

Held, the appeal should be allowed in part.

Judges benefit from a presumption of integrity. The presumption of integrity encompasses the expectation that judges will strive to overcome personal bias and partiality and will carry out the oath of their office to the best of their ability. To rebut the presumption of integrity in cases featuring post-decision reasons, the accused must present cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the reasons are an after-the-fact justification for the decision rather than an articulation of the reasoning that led to the decision. It is not inappropriate to announce a decision with reasons to follow. The court may consider the judge's reasons even if they are released after the judge knows that an appeal has been launched. If the delay in the release of reasons is lengthy, this may cause an informed and reasonable person to believe that the judge may have tailored the reasons to defend the outcome already announced rather than considering the evidence with an open mind. In this case, the evidence that the accused put ricin in the water bottles was weak, and the trial judge expected the accused to appeal. In his original reasons, the trial judge turned his mind to the exact problem that his amendment fixed, and stated that he was "troubled" by the fact that the people who drank the water did not become ill. If he thought that the accused had put or tried to put ricin in the water, he would have said so in his original reasons to explain the troubling inconsistency. Moreover, the trial judge offered little explanation as to why he only amended his reasons at the sentencing hearing, more than 17 months after delivering his verdict. The accused had presented cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think the amendments were an after-the-fact justification for the verdict. The accused had rebutted the presumption of integrity. The amendment should be excised from the reasons for judgment. It would not be appropriate to set aside the pre-amendment reasons. The pre-amendment proceedings disclosed no reason to doubt that the trial judge drafted his original reasons and came to his verdicts with an impartial mind.

On the basis of the original reasons, the attempted murder convictions based on sending the tampered water bottles were unreasonable. The trial judge's finding that the accused put ricin in the water required a leap that the evidence did not support.

The attempted murder charges based on the tainted water did not contain sufficient descriptive words to include the offences of administering and attempting to administer a noxious thing. The charges as particularized did not state that the accused added dimethyl sulfide to the water or that anyone actually [page243] drank the water. An acquittal is entered on the eight counts of attempted murder related to the tainted water bottles.

The evidence on the letter bomb counts was overwhelming. The convictions on those counts were not unreasonable.

The dangerous offender designation and the indeterminate sentence were based on the convictions relating to both the water bottles and the letter bombs. Given the acquittals on the water bottle counts, a new sentencing hearing is ordered, before a different judge.

R. v. Teskey, [2007] 2 S.C.R. 267, [2007] S.C.J. No. 25, 2007 SCC 25, 280 D.L.R. (4th) 486, 364 N.R. 164, [2007] 8 W.W.R. 385, J.E. 2007-1147, 74 Alta. L.R. (4th) 1, 412 A.R. 361, 220 C.C.C. (3d) 1, 47 C.R. (6th) 78, EYB 2007-120453, 73 W.C.B. (2d) 457, consd

Other cases referred to

R. v. Beyo (2000), 2000 5683 (ON CA), 47 O.R. (3d) 712, [2000] O.J. No. 888, 131 O.A.C. 150, 144 C.C.C. (3d) 15, 45 W.C.B. (2d) 503 (C.A.) [Leave to appeal to S.C.C. refused [2000] 2 S.C.R. vi, [2000] S.C.C.A. No. 239]; R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454; R. v. Cunningham (2011), 106 O.R. (3d) 641, [2011] O.J. No. 3546, 2011 ONCA 543, 241 C.R.R. (2d) 135, 281 O.A.C. 7, 274 C.C.C. (3d) 338, 89 C.R. (6th) 142, 96 W.C.B. (2d) 357; R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; R. v. Port Chevrolet Oldsmobile Ltd., [2009] B.C.J. No. 1621, 2009 BCCA 357, 63 C.B.R. (5th) 1, 246 C.C.C. (3d) 355, [2009] G.S.T.C. 109, 274 B.C.A.C. 254, 196 C.R.R. (2d) 334; R. v. R. (G.), [2005] 2 S.C.R. 371, [2005] S.C.J. No. 45, 2005 SCC 45, 255 D.L.R. (4th) 579, 337 N.R. 1, J.E. 2005-1373, 198 C.C.C. (3d) 161, 30 C.R. (6th) 201, 65 W.C.B. (2d) 632; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 151 D.L.R. (4th) 193; R. v. Simpson, 1981 3284 (ON CA), [1981] O.J. No. 23, 58 C.C.C. (2d) 122, 20 C.R. (3d) 36, 5 W.C.B. 455 (C.A.) [Leave to appeal to S.C.C. refused [1981] 1 S.C.R. xiii, [1981] S.C.C.A. No. 174, 38 N.R. 539]; R. v. Thompson, [2010] O.J. No. 2614, 2010 ONCA 463, 256 C.C.C. (3d) 51, 263 O.A.C. 185, 88 W.C.B. (2d) 705

Statutes referred to

Canadian Charter of Rights and Freedoms

Criminal Code, R.S.C. 1985, c. C-46, ss. 245, 662 [as am.]

APPEAL by the accused from the convictions entered on June 25, 2010 and from the sentence imposed on March 7, 2012 by Ducharme J. of the Superior Court of Justice, sitting without a jury.

David E. Harris, for appellant.

John Neander, for respondent.

BY THE COURT: -- [page244]

I. Introduction

[1] The appellant was tried on a 16-count indictment comprised of eight counts of attempted murder for sending tampered water bottles to a number of people, three counts of attempted murder for sending letter bombs to three other people, three counts of causing an explosive device to be delivered (on the same facts as the letter bomb counts), and two counts of possessing an explosive substance.

[2] The appellant admitted to sending the water bottles and the letter bombs. However, he said he did not intend to kill anyone. The trial therefore focused on the appellant's intent.

[3] On June 25, 2010, the trial judge gave oral reasons for judgment and convicted the appellant on all counts except for one of the explosive substance counts. The three "cause to be delivered" counts were stayed pursuant to Kienapple [R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76].

[4] In assessing the appellant's intent on the water bottle charges, the trial judge originally concluded that the appellant had put ricin -- a deadly poison -- in the bottles. Seventeen months after conviction, during dangerous offender proceedings, the trial judge advised counsel that he had decided to "clarify" his reasons by amending them to add the alternative finding that the appellant tried but failed to put ricin in the water bottles. The trial judge explained to somewhat surprised counsel that he had made the alternative finding in his mind when he gave his reasons for conviction, but, by inadvertence, did not express it in those reasons.

[5] The trial judge ultimately declared the appellant a dangerous offender and sentenced him to an indeterminate period of imprisonment.

[6] While the appellant raises a number of grounds of appeal, he argues with greatest emphasis that the trial judge's presumption of integrity has been rebutted. The appellant says that the trial judge, by adding an alternative theory of liability in relation to the water bottle charges, after the fact, created the impression that he had departed from independence and impartiality. That impression, according to the appellant, rebuts the presumption of integrity and contaminates the trial process to such an extent that this court must set aside the convictions and order a new trial.

[7] We agree that the presumption of integrity has been rebutted. However, for the reasons that follow, we conclude that the only consequence is to eliminate the trial judge's subsequent alternative finding from the reasons relevant on appeal. We [page245] therefore assess the other grounds of appeal on the basis of the original reasons alone. On those original reasons, we conclude that the trial judge's convictions on the counts of attempted murder by tampered water bottles should be set aside and acquittals substituted on those counts. We hold that the convictions of attempted murder by letter bomb are unimpeachable, and so dismiss the appeal on those counts. Finally, we order a new sentencing proceeding before a different judge.

II. Background

[8] In 2004, the appellant sent 12-packs of tainted water bottles to four parties. The appellant had had difficulties with each party.

[9] The appellant admitted that he had poked holes in the caps of the bottles and contaminated the bottles with dimethyl sulfoxide ("DMSO"), a substance that aids the absorption of other substances and can irritate the digestive system. He sent the packages with a fake promotional letter from "Nestlé Waters". The letter asked the recipient to distribute the free bottles to employees but to give no more than one per employee. Only four people tasted the cloudy and smelly water. None of those people fell ill.

[10] A search of the appellant's hard drive revealed extensive research into poisons, including ricin. Ricin is lethal in very small doses. The computer search indicated that the appellant had calculated how he might produce ricin and how he might distribute it in coffee.

[11] A test exists to detect ricin. The Centre of Forensic Sciences, however, did not have the capacity to perform that test, and so the water bottles were not tested for ricin. A search did not reveal any trace of ricin or any evidence of its production in any place connected to the appellant.

[12] The appellant also admitted that he sent letter bombs to three people: (i) a former roommate with whom he did not get along; (ii) the defence counsel who had defended him against a 2003 criminal harassment charge; and (iii) a superintendent of a property the appellant had rented.

[13] The letter bombs were of similar construction: copper tubes filled with an explosive substance, held in a package with steel nails and, in two cases, flammable liquid. The former roommate's bomb exploded in his hands, causing minor injuries. The other two recipients called the police upon noticing something unusual about their letters. The police disarmed one bomb and detonated the other. Around the same time as he sent the [page246] letter bombs, the appellant was writing notes on his typewriter threatening death.

[14] After a two-week trial, on June 25, 2010, the trial judge issued reasons for judgment and found the appellant guilty of all counts except for the explosive substance counts for items in his home. The three "cause to be delivered" counts were stayed pursuant to Kienapple. On March 7, 2012, the trial judge issued reasons for sentence. He declared the appellant a dangerous offender and imposed an indeterminate period of detention.

III. Issues

[15] The appellant raises four grounds of appeal. He submits that the trial judge erred by

(1) creating an appearance of partiality in amending his reasons more than 17 months after conviction. The amendment and the circumstances surrounding the amendment rebut the presumption of integrity;

(2) unreasonably finding that the appellant intended to kill by sending the tainted water;

(3) unreasonably finding that the appellant intended to kill by sending the letter bombs;

(4) unreasonably declaring the appellant to be a dangerous offender and unreasonably imposing an indeterminate sentence.

[16] As noted earlier and as we explain below, the appeal is allowed in part. We allow the appeal on the attempted murder by tampered water convictions and substitute acquittals on those counts. We dismiss the appeal on the attempted murder by letter bomb convictions. And finally, because we substitute acquittals on eight of the attempted murder counts, we order a new sentencing proceeding.

IV. Analysis

[17] In oral argument, the appellant asserted that the appearance of impartiality was lost when the trial judge amended his original reasons. If the presumption of integrity was rebutted, the appellant argues, this court should set aside all of the trial judge's decisions and order a new trial. We will address this issue first and then turn to the reasonableness of the verdicts and the sentence. [page247]

(i) The presumption of integrity

[18] In R. v. Teskey, [2007] 2 S.C.R. 267, [2007] S.C.J. No. 25, 2007 SCC 25, at paras. 19-21, the Supreme Court held that judges benefit from a presumption of integrity. The presumption of integrity encompasses the expectation that judges will strive to overcome personal bias and partiality and will carry out the oath of their office to the best of their ability. An adjudicator is impartial when he or she is disinterested in the outcome and is open to persuasion by the evidence and the submissions. A judge must both weigh the case impartially in his or her own mind and ensure that the circumstances objectively demonstrate his or her impartiality to an informed and reasonable observer.

[19] The test to displace the presumption of integrity is similar to the test to show a reasonable apprehension of bias. Bias, partiality and lack of integrity are all similar concepts; the bar to establish any one of them is high because each calls into question both the integrity of the presiding judge and the administration of justice itself: Teskey, at para. 32. To rebut the presumption of integrity in cases featuring post-decision reasons, the appellant must present cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the reasons are an after-the-fact justification for the decision rather than an articulation of the reasoning that led to the decision: Teskey, at para. 21.

[20] In Teskey, the trial judge announced a decision with reasons to follow but did not provide reasons until 11 months later. In R. v. Cunningham (2011), 106 O.R. (3d) 641, [2011] O.J. No. 3546, 2011 ONCA 543, on which the appellant also relies, the trial judge delayed 25 months between her decision and her reasons. The question in those cases was whether an informed and reasonable observer would believe the reasons as a whole were an after-the-fact justification for a decision announced months or years earlier.

[21] This case fits only inexactly into that frame. Here, the trial judge gave lengthy reasons when he convicted the appellant. He added only a few words when he amended his reasons over 17 months later. Nevertheless, we can see no principled reason why the test set out in Teskey and Cunningham should not apply.

[22] Whether dealing with reasons released in their entirety after a lengthy delay or an amendment to previously delivered reasons, an appellate court must determine whether the trial judge's explanation for why he reached a particular conclusion constitutes an after-the-fact justification rather than an articulation of the reasoning that led to the decision. [page248]

[23] Therefore, if a judge amends his or her reasons, the test is whether the appellant has presented cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the amendment was an after-the-fact justification for the verdict.

(a) Factual background

[24] In his oral reasons of June 25, 2010, the trial judge noted that the appellant's intention in the tainted water counts turned on the chemical with which he injected the water bottles. The Crown's theory was that the appellant injected DMSO to facilitate ricin absorption. The trial judge described the relevant findings that he said allowed him to "properly infer that [the appellant] put Ricin in the water bottles":

1. I accept Mr. Arnaout's testimony that he mixed DMSO into the water although I reject his explanation for why he did so.

2. There does not appear to be any accepted reason for DMSO to be administered orally in liquid form.

3. DMSO, the chemical substance that Mr. Arnaout had said he put in the bottles, would facilitate the absorption of Ricin or other chemicals in the water into the skin or internal membranes of any person drinking the water. Thus, the DMSO would decrease the amount of Ricin necessary to poison a person drinking the water.

4. Mr. Arnaout had a strong grudge against the named recipients of the water bottles as well as against the CIBC [one of the recipients].

5. Around the time of the sending of the water bottles, Mr. Arnaout had done research with respect to the manufacture of Ricin.

6. At the same time, Mr. Arnaout had done calculations with respect to a plan to distribute Ricin mixed into coffee, to various targets.

7. The water bottles were not tested for the presence of Ricin, so there is no evidence before me as to whether or not it was present in the water.

8. The search of Mr. Arnaout, his rental vehicle and his apartment revealed no trace of Ricin or of castor beans, one of the principal ingredients for its manufacture. Of course, these searches were conducted some three years after the water bottle incidents.

9. Ricin is a highly toxic poison. In terms of its toxicity, Dr. Langille said it was in the same ball park as mustard gas, sarin, chlorine gas and cyanide.

10. The receptionist at [one of the recipients] had a taste out of one of the water bottles and, although taken to hospital, she apparently suffered no ill effects. Of the three employees at the CIBC who tasted the water one reported feeling sick but did not miss any work as a result. There is no evidence before me that either of the other two CIBC employees suffered any ill effects. [page249]

[25] The trial judge concluded that the first three findings supported the inference that the appellant added DMSO to the water to facilitate absorption of another chemical in the water. The appellant's animus toward the recipients of the water bottles suggested that the second chemical was harmful, especially given the appellant's tendency to blow out of proportion alleged wrongs against him. The appellant's research into ricin indicated that he selected ricin as the harmful second chemical.

[26] The trial judge realized that if the appellant contaminated the water with ricin, a highly toxic substance, anyone who drank the water probably should have suffered ill effects. Those who drank the water did not suffer ill effects. The trial judge reasoned, however, that those who drank the water likely ingested only a small quantity given its sulfurous smell and taste. He concluded that the appellant "put Ricin in the tainted water", and having so concluded, found that the appellant "had the necessary mens rea for attempted murder. That is, he intended to kill those persons to whom he sent the bottles".

[27] On December 12, 2011, during the sentencing proceedings, the trial judge advised counsel that he had reviewed a transcript of the reasons for conviction that counsel had given him that morning. He indicated that he had not previously had a copy of the reasons and said:

[The reasons] don't fully reflect one aspect of my reasoning . . . just so the record is clear, I am going to clarify that one point. It has to do with respect to the tainted water charges . . . The issue relates to the conclusion that Mr. Arnaout put Ricin in the water bottles he sent. My basis for convicting him was that he either did so or he intended to do so and failed in the attempt. My oral reasons did not make that clear.

(Emphasis added)

[28] The trial judge said both findings supported his conclusion that the appellant intended to kill by sending the water bottles. He said the omission was either his mistake or the court staff's mistake. He stated that he retained the flexibility to make this "correction" because he was "still seized of the matter". Indeed, he said it was both "appropriate" and "essential" to make the correction.

[29] Counsel had been not forewarned of the trial judge's intention to amend his reasons. After the trial judge reviewed the portions of his reasons that he had amended, the appellant's trial counsel -- who was not counsel on appeal -- expressed surprise, noted that his client had appealed and said, "I think it would be correct for me to say that what happened this morning would have some impact on grounds that have been stated in [page250] that appeal and . . . may have some impact on [the appellant's] rights to appeal." Trial counsel added that a doctor's report filed on sentencing had made reference to the fact that the decision had been appealed. The trial judge responded that he had expected an appeal, that he did not know the grounds of appeal and that the fact of the appeal had no impact on his decision to correct his reasons.

[30] The trial judge made approximately five changes to his original reasons to add the alternative finding that the appellant tried but failed to put ricin in the water.

(b) Would a reasonable person think that the amendment was an after-the-fact justification for the convictions?

[31] At the outset, we think it important to restate that trial judges may announce a decision with "reasons to follow". This court may consider a trial judge's reasons even if the trial judge releases those reasons after the appellant has filed a notice of appeal: Teskey, at para. 16.

[32] As Teskey explained, at para. 17, efficiency often requires a trial judge to immediately announce a decision on an evidentiary ruling or on a Canadian Charter of Rights and Freedoms motion with reasons to follow at a later date. Other good reasons, such as providing immediate release on an acquittal, may prompt a trial judge to announce a verdict with reasons to follow. However, in all cases, the trial judge should keep in mind that justice must not only be done but also must appear to be done.

[33] A long delay between a decision and reasons may cause an informed and reasonable observer to believe that the trial judge, instead of considering the evidence with an open mind, reasoned in a manner designed to reach the result previously announced. That is, the reasonable observer may believe that the trial judge reasoned with a view to defending the decision rather than arriving at it, even if only subconsciously: Teskey, at para. 18.

[34] The appellant contends that the trial judge reread his reasons for conviction and realized the evidence did not support his finding that the appellant put ricin in the water. The trial judge, he says, then tried to repair his reasons by adding the new, alternative finding of fact that the appellant tried but failed to put ricin in the water. The appellant asserts that the trial judge attempted to bolster his reasons for conviction with an alternative theory of liability.

[35] By adding an alternative theory long after giving his reasons, the appellant argues, the trial judge became an advocate [page251] for conviction rather than an independent arbiter. The appellant submits that an informed and reasonable observer would think the trial judge reasoned to justify his result, rather than to come to a result. Such results-driven reasoning, he says, casts doubt on the entire trial.

[36] The trial judge told counsel that his original reasons did not "fully reflect one aspect of [his original] reasoning", in that they omitted the finding that the appellant "either [put ricin in the water] or . . . intended to do so and failed in the attempt". Would an informed and reasonable observer accept the trial judge's explanation? Or, would an informed and reasonable observer view the amendment as an after-the-fact justification for the verdict? We conclude an informed and reasonable observer would view the amendment as an after-the-fact justification for the verdict.

[37] Several features of this case convince us that an informed and reasonable observer would not see the amendment as reflective of the actual reasoning path taken to the decision announced over 17 months earlier. They are (i) the weakness of the evidence supporting attempted murder on the tainted water charges; (ii) the trial judge's expectation that the appellant had launched an appeal; and (iii) the length of time between the release of the original reasons and the amendment.

[38] First, the amendment strengthened the weakest link in the trial judge's chain of reasoning. In his original reasons, the trial judge found that four people drank water containing an extremely poisonous substance without suffering any real effects. This seeming incongruity is very hard to square. The curative nature of the amendment suggests that the trial judge was attempting to preserve his reasons by correcting an oversight he did not fully realize at the time.

[39] The trial judge's second specific change to his original reasons supports that conclusion. In his original reasons, after finding that the appellant added ricin to the water, the trial judge stated:

I am somewhat . . . troubled by the fact that none of the persons who tasted the water suffered any negative consequences from tasting it. However, given the evidence about the unpleasant odour of the water and Dr. Langille's evidence that the smell and the taste of water would deter people from drinking much of this, I find that none of the people would have drank much of the water at all. While I have no direct evidence about the amount of water the CIBC employees ingested, Mr. Zaidi testified the receptionist had only "a little slight taste of it."

[40] In his second of five specific changes to the original reasons, the trial judge added the following to the end of the [page252] above passage: "I also am unable to determine if Mr. Arnaout was successful in manufacturing the Ricin and, if so, at what concentration."

[41] In the original passage, the trial judge turned his mind to the exact problem his amendment fixed. In the original passage, he was trying to explain how people could drink ricin-contaminated water without ill effects. His amendment did away with that difficulty by finding that perhaps the appellant did not successfully add ricin after all. Given the close relationship between the problem and the amendment, it becomes difficult to accept that the trial judge always found that the appellant put or tried but failed to put ricin in the water. If the trial judge thought the appellant put or tried but failed to put ricin in the water, he would have said so in his original reasons in order to explain an inconsistency that "troubled" him.

[42] Based on the number of specific changes to the reasons, and in particular the change to the passage above, we believe an informed and reasonable observer would conclude that the trial judge was not persuaded that the evidence supported the conclusion that the appellant tried but failed to add ricin to the water when he wrote his original reasons. An informed and reasonable observer would view the amendment introduced in these circumstances as an after-the-fact justification for the verdict, even if unintended.

[43] Second, as previously mentioned, immediately after the trial judge reviewed his amendments with counsel, the appellant's trial counsel noted that his client had appealed his convictions. Defence counsel also noted that a psychiatric report filed in the dangerous offender proceedings had made reference to the appeal.

[44] If an appeal from a verdict has been filed, subsequently released reasons or amendments that deal with issues raised on appeal could create the appearance -- whether real or not -- that the trial judge is advocating a particular verdict rather than articulating the reasons that led him or her to the verdict: Teskey, at para. 18.

[45] In this case, the trial judge said that although he expected an appeal, he had not read the notice of appeal and did not know the grounds of appeal. The appellant does not allege otherwise.

[46] The mere fact that the trial judge expected that an appeal had been filed when he delivered his amendments does not mean the amendments signal partiality. Trial judges frequently release decisions with reasons to follow, and those decisions do not fail simply because a trial judge learns of an appeal before [page253] releasing his or her reasons. As with other considerations, the existence of an appeal and the trial judge's knowledge of that appeal are but factors to take into account: Cunningham, at para. 47. Here, the ultimate question remains whether an informed and reasonable observer would believe that the amendments are an after-the-fact justification for the verdicts rather than the articulation of the reasoning that led to the verdicts.

[47] In our view, an informed and reasonable observer would, on this record, see the amendments delivered by the trial judge as motivated, at least in part, by the desire to defend his decision against the likely challenges on appeal.

[48] While the trial judge may not have known the particulars of the appellant's notice of appeal, the amendments to his original reasons were specifically directed at what was arguably the appellant's strongest ground of appeal. Without the trial judge's addition of an alternative theory of liability, the appellant would have had an argument that the trial judge's finding of guilt on the tainted water attempted murder charges was made in error and on the basis of an erroneous factual finding, namely, that the appellant added ricin to the water bottles. This, combined with the fact that the trial judge "expected" an appeal and was put on notice of the impending appeal by the psychiatric report filed in relation to the dangerous offender proceedings, created the appearance that the trial judge was attempting to defend his verdict against the primary challenge on appeal.

[49] Whether this was actually the trial judge's intention or not, a judge who releases post-verdict reasons after a lengthy delay must always be mindful of the importance that justice not only be done, but that it appear to be done: Teskey, at para. 17.

[50] Third, the longer the passage of time between a decision and the reasons for the decision, or substantive amendments to those reasons, the greater the concern that the requisite link between the two does not exist: Cunningham, at para. 37. More than 17 months to deliver amendments of this significance, said to have been conceived in the original reasoning process, is a long time -- certainly longer than the 11-month delay in Teskey.

[51] The trial judge offered little explanation as to why he only amended his reasons at the sentencing hearing, more than 17 months after delivering his verdict, other than to say he did not know how a transcript of his oral reasons went out to [page254] counsel without his having a chance to review it or perhaps he did have a chance to review it but did not.

[52] It is of significance that, during these 17 months, there were numerous appearances before the trial judge in connection with the dangerous offender proceedings. It was in the course of these appearances that the doctor's report, in which the appeal was mentioned, was filed. A reasonable, informed observer would likely believe that these ongoing proceedings created ample opportunity for the trial judge to review and consider -- or reconsider -- his oral reasons during this 17-month period.

[53] The appellant, in our view, has presented cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think the amendments were an after-the-fact justification for the verdict. The appellant has rebutted the presumption of integrity.

(c) Must there be a new trial on all the issues?

[54] The appellant asserts that if he rebuts the presumption of integrity, this court should set aside all of the trial judge's decisions and order a new trial on all counts. In the circumstances of this case, however, the rebuttal of the presumption has limited consequences.

[55] In Teskey, the court found that an informed and reasonable observer would think that the post-verdict reasons were an after-the-fact justification for the verdict. The court, therefore, could not consider the post-decision reasons in assessing the sufficiency of the reasons for the verdict. As the original reasons did not pass the sufficiency of reasons test, the court ordered a new trial: Teskey, at para. 2. Thus, if a trial judge issues reasons after a decision, and an informed and reasonable observer would understand the reasons as an after-the-fact justification for the decision, an appellate court cannot consider the post-decision reasons in assessing any ground of appeal.

[56] It is important to appreciate that the court in Teskey did not allow the appeal simply because the post-verdict reasons appeared to be an after-the-fact justification for the verdict. Rather, the court allowed the appeal because the reasons remaining, after it excluded the post-verdict reasons, were insufficient. In R. v. Thompson, [2010] O.J. No. 2614, 2010 ONCA 463, 256 C.C.C. (3d) 51, at para. 26, this court excluded supplementary reasons in which the sentencing judge admitted a mistake in his original reasons and attempted to fix the mistake. This court went on to consider only the sentencing judge's original reasons. The court dismissed the appeal after finding that [page255] the original reasons disclosed no significant error: Thompson, at paras. 35, 41.

[57] Teskey and Thompson make clear that an appellate court should exclude only that portion of the trial judge's reasons that appears, to an informed and reasonable observer, to be an after-the-fact justification for the decision. The court should then decide whether the remaining reasons withstand the appellant's other grounds of appeal: see, also, Cunningham, at para. 2; R. v. Port Chevrolet Oldsmobile Ltd., [2009] B.C.J. No. 1621, 2009 BCCA 357, 246 C.C.C. (3d) 355, at para. 51.

[58] The appellant, however, argues that if the presumption of integrity has been rebutted in the circumstances here, this court must set aside all of the decisions below. The appellant says that this court, once it determines that the trial judge's amendment rebutted the presumption of integrity, cannot safely conclude that the trial judge acted impartially at any point.

[59] We decline to accede to the appellant's suggestion. This court should not lightly infer partiality in a judge. As repeatedly stated in our jurisprudence, the threshold for a successful allegation of partiality or the appearance of partiality is high. It can be met only with "cogent evidence": see R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, at para. 117, per Cory J.

[60] In our view, the pre-amendment proceedings disclose no reason to doubt that the trial judge drafted his original reasons and came to his verdicts with an impartial mind. His lengthy original reasons reveal a careful contemplation of the evidence and an appreciation for the Crown's heavy burden. The fact that he introduced an amendment 17 months later is not cogent evidence of partiality in writing the original reasons. The impugned amendment should not impact the presumption that the trial judge acted as a judge should in deciding the case as set out in his original reasons. There is no evidence to support the notion that the trial judge acted with something less than integrity and impartiality in articulating his original reasons.

[61] Therefore, the amendments should be excised and the other grounds of appeal against conviction should be considered on the basis of the trial judge's original reasons.

(ii) Reasonableness of the verdicts

[62] The test to determine whether a verdict is reasonable is well established. A reasonable verdict is one a properly instructed jury, acting judicially, could reasonably have rendered. The reviewing court may set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she [page256] entered a verdict inconsistent with his or her factual conclusions: R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, at paras. 36-37.

[63] As noted earlier, we conclude that the tainted water attempted murder convictions are unreasonable while the letter bomb convictions are not. We will discuss each of these in turn.

(a) Contaminated water bottles

[64] The issue on these counts was whether the appellant possessed the requisite mens rea for attempted murder, namely, the specific intent to kill. The trial judge described his conclusion as follows:

Having concluded that Mr. Arnaout put Ricin in the tainted water, I can readily conclude that he had the necessary mens rea for attempted murder. That is, he intended to kill those persons to whom he sent the bottles.

[65] With respect, the trial judge's finding that the appellant put ricin in the water requires a leap that the evidence does not support. The evidence only demonstrates that the appellant (i) did not like the recipients of the water; (ii) was researching ricin (among other poisons); and (iii) contaminated the water with DMSO.

[66] To be sure, the appellant's research into and calculations on ricin, especially in combination with his list of targets, are disturbing. The research, however, is the only connection to ricin. The water was not tested for ricin and ricin was not found on the appellant's person, in his rental car or in his apartment. No one fell ill with ricin poisoning after drinking the water.

[67] The trial judge's observation that the people who drank the water probably only drank small amounts of ricin does not explain why those people did not fall sick. The expert evidence was that a minuscule amount of ricin -- about one milligram per kilogram of body weight -- would likely kill if taken orally.

[68] In our view, the fact that the appellant seemed to seriously consider poisoning people with ricin is weak evidence that he contaminated these particular water bottles with ricin. Without more, a reasonable jury properly instructed could not conclude that the appellant attempted to kill the water recipients by contaminating the water with ricin. Other explanations for the evidence lay open. For example, perhaps the appellant considered distributing ricin through the water bottles but, in actually preparing the bottles, decided only to harass the recipients with DMSO. [page257]

[69] As a result, we set aside the eight convictions for attempted murder related to tainted water.

(b) Administering a noxious thing

[70] After finding that the appellant put ricin in the water, the trial judge considered whether the appellant should be found guilty of an included offence if he was wrong about putting ricin in the water. He then decided that the appellant's attempted murder charges contained sufficient descriptive words to include the offences of administering and attempting to administer a noxious thing.

[71] We disagree. While there was evidence that the trial judge could rely on to convict the appellant of the offences of administering and attempting to administer a noxious thing, the charges as particularized do not contain sufficient descriptive words to include these offences.

[72] The trial judge accepted the appellant's evidence that he added DMSO to the water bottles. The Centre of Forensic Sciences found dimethyl sulfide ("DMS") of unknown concentration in the bottles. The toxicologist from the Centre of Forensic Sciences testified that most people, if they ingested DMS, would not feel any effect. He agreed that DMS was "not injurious" and "at best only slightly toxic". However, he also testified that DMSO, if taken orally, would "irritate the membranes of the mouth, esophagus and gastrointestinal tract, depending on the amount taken". Based on this, the trial judge found there was evidence that could support convictions of the included offences.

[73] We turn then to the charges as particularized.

[74] The trial judge relied on R. v. R. (G.), [2005] 2 S.C.R. 371, [2005] S.C.J. No. 45, 2005 SCC 45 to hold that administering and attempting to administer a noxious thing were included offences on the attempted murder charges. In R. (G.), at para. 29, the court noted that s. 662 of the Criminal Code, R.S.C. 1985, c. C-46 authorizes convictions for only three categories of included offences:

(a) offences included by statute, . . .

(b) offences included in the enactment creating the offence charged, . . .

(c) offences which become included by the addition of apt words of description to the principal charge.

[75] The trial judge correctly noted that the appellant could only be convicted of administering or attempting to administer a noxious thing if those offences fit under the third category. He quoted the test for this category as follows: "[w]hat is required [page258] are words of description in the count itself of facts which put an accused on notice that, if proven, such facts taken together with the elements of the charge, disclose the commission of an aeincluded offence'": R. (G.), at para. 32.

[76] A count includes a lesser offence if, by proving the elements of the charged offence and the facts alleged in the count, the Crown necessarily proves the lesser offence. R. (G.), at para. 25, emphasizes the narrow ambit of included offences:

An offence is "included" if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must "necessarily" be included.

(Citation omitted)

See, also, R. v. Beyo (2000), 2000 5683 (ON CA), 47 O.R. (3d) 712, [2000] O.J. No. 888 (C.A.), at para. 30, leave to appeal to S.C.C. refused [2000] 2 S.C.R. vi, [2000] S.C.C.A. No. 239; R. v. Simpson, 1981 3284 (ON CA), [1981] O.J. No. 23, 58 C.C.C. (2d) 122 (C.A.), at p. 136 C.C.C., leave to appeal to S.C.C. refused [1981] 1 S.C.R. xiii, [1981] S.C.C.A. No. 174.

[77] The tainted water attempted murder charges all follow one of two wordings:

ADEL MOHAMED ARNAOUT stands further charged that he, on or about the 22nd day of July in the year 2004, in the City of Toronto, in the Toronto Region, did attempt to murder Saroor Hasan ZAIDI by sending Saroor Hasan ZAIDI tampered bottled water, contrary to section 239 of the Criminal Code.

ADEL MOHAMED ARNAOUT stands further charged that he, on or about the 22nd day of July in the year 2004, in the City of Toronto, in the Toronto Region, did attempt to murder John DOE by causing John DOE to receive tampered bottled water, contrary to section 239 of the Criminal Code.

(Emphasis added)

[78] In our view, the charges as particularized do not include either administering a noxious thing or attempting to administer a noxious thing. For the offence of administering a noxious thing, s. 245 of the Criminal Code requires that a person administer or cause to be administered or causes any person to take poison or any other destructive or noxious thing.

[79] The appellant could not be convicted of administering a noxious thing in these circumstances unless someone actually drank the water. The charges do not allege that anyone actually drank the water. The charges therefore do not necessarily put the appellant on notice that he could be convicted of administering a noxious thing, and so the charges do not include this offence.

[80] The appellant could not be convicted of attempting to administer a noxious thing unless he added a noxious thing to [page259] the bottled water. The charges specify "tampered" bottled water as the means by which the appellant attempted to kill. Tampering with a bottle of water in an attempt to kill could mean poisoning the water with a noxious thing, but it could also mean rigging the bottle to explode or otherwise modifying the bottle to cause harm. A charge alleging attempted murder by tampered bottled water does not necessarily allege that the accused person tainted the bottled water with a noxious thing. The charges therefore do not put the appellant on notice that he could be convicted of attempting to administer a noxious thing and the charges do not include this offence.

[81] As the charges do not include administering or attempting to administer a noxious thing, we cannot enter convictions on those offences in place of the vacated attempted murder by tainted water convictions. We therefore set aside the convictions and enter acquittals on these counts.

(c) Letter bombs

[82] Here, the appellant argues that the convictions for attempted murder by letter bomb are unreasonable. He offers two arguments. First, he says the one bomb that did go off did not cause serious injury despite exploding in the victim's hands. Second, he says the size of the bombs made it extremely unlikely that they could kill anyone.

[83] The evidence on the letter bomb counts is overwhelming and not in the least bit weakened by the mere size of the bombs. The appellant fastened shrapnel nails to all three of the bombs and incorporated flammable liquid into two of them. In all cases, the trial judge found that the appellant harboured animus against the targets.

[84] It is clear to us that a properly instructed jury acting judicially on all the evidence could infer that the appellant intended to kill the people to whom he sent the letter bombs. The trial judge's verdicts on the letter bomb counts are reasonable and this ground of appeal is dismissed.

(iii) The sentence appeal

[85] Having vacated the attempted murder convictions on the water bottle counts, the premise on which the appellant was found to be a dangerous offender and sentenced to a period of indeterminate duration has changed appreciably.

[86] In the circumstances, we must also set aside the trial judge's declaration that the appellant is a dangerous offender and his imposition of an indeterminate period in custody. We [page260] order that the dangerous offender proceedings be heard by a different judge.

V. Disposition

[87] The appeal is allowed in part. We allow the appeal on the eight attempted murder convictions related to tainted water, set aside the convictions and enter acquittals on those counts. We dismiss the appeal against the three convictions for attempted murder by letter bomb. Finally, we order a new dangerous offender hearing before a different judge.

Appeal allowed in part.

End of Document