Court of Appeal for Ontario

Date: 2021-05-18 Docket: C67163

Judges: Feldman, Paciocco and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Nathan Lowell Tenthorey Appellant

Counsel: James Lockyer and Jessica Zita, for the appellant Elena Middelkamp, for the respondent

Heard: March 10, 2021 by videoconference

On appeal from the conviction entered on April 5, 2019 by Justice Kirk W. Munroe of the Superior Court of Justice, sitting with a jury.

Paciocco J.A.:

Overview

[1] Nathan Tenthorey was tried before a jury and convicted of committing an aggravated assault on Robert Brochu, contrary to s. 268 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. He appeals that conviction.

[2] Mr. Tenthorey’s first ground of appeal is that the trial judge erred in law by failing to instruct the jury on the included offences of (a) simple assault, contrary to s. 266 of the Criminal Code, and (b) assault causing bodily harm, contrary to s. 267(b) of the Criminal Code.

[3] In making this argument, Mr. Tenthorey relies upon s. 662(1) of the Criminal Code, which provides that a person charged with an offence is in jeopardy of being convicted not only of the charged offence, but alternatively of any “included” offences. He maintains that, in law, the offences of simple assault and assault causing bodily harm are included offences in a non-particularized charge of aggravated assault, the charge he faced. He submits that where (1) legally, an offence qualifies as an included offence, and (2) factually, there is a realistic possibility a jury could find the accused committed that included offence but not the charged offence, a trial judge is required to instruct the jury on the included offence. He argues that in his case both preconditions were met, yet the trial judge failed to charge the jury on the offences of simple assault and assault causing bodily harm. Mr. Tenthorey’s position is that, had the jury known he was also being tried for simple assault and assault causing bodily harm, they may have found it more suitable to find him guilty of one of those less serious offences, rather than aggravated assault.

[4] Mr. Tenthorey also argues, based on the line of authority following R. v. Soobrian (1994), 96 C.C.C. (3d) 208 (Ont. C.A.), that the trial judge erred in law by failing to give a “Soobrian limiting instruction” directing the jury not to draw an adverse inference against Mr. Tenthorey based on the Crown’s impeachment of one of its own witnesses, Jessica Gregory.

[5] For reasons that follow, I would allow the appeal on the included offences ground, but not on the Soobrian limiting instruction ground. I would set aside Mr. Tenthorey’s aggravated assault conviction and order a new trial.

Material Facts

Events prior to the assault on Mr. Brochu

[6] The assault on Mr. Brochu occurred at a house party in the early morning of July 23, 2016 in Lakeshore, Ontario (formerly known as Belle River). The events relevant to the assault began hours earlier at a local festival. Mr. Tenthorey and Mr. Brochu were at the festival, as were many of the party guests later present at the time of the assault. Everyone called as a witness to the assault had been drinking that evening.

[7] There had been tension between Mr. Tenthorey and Mr. Brochu at the festival. Mr. Tenthorey’s girlfriend [1], Ms. Gregory, had complained to Mr. Tenthorey that Mr. Brochu touched her inappropriately while they were both in the festival’s beer tent. Mr. Tenthorey confronted Mr. Brochu at the festival, but the encounter ended peacefully.

[8] After the festival, Mr. Tenthorey and Ms. Gregory crossed paths with Mr. Brochu again at the house party, which was at the home of John Markakis. At the party, an incident involving Ms. Gregory, Mr. Brochu, and Jonathan Snider occurred in the kitchen area of the house. This incident led to the assault on Mr. Brochu that is the subject of this appeal, and it led to Mr. Snider being knocked to the ground.

Mr. Brochu’s injuries

[9] During the altercation, Mr. Brochu sustained aggravated facial injuries. When treating Mr. Brochu, Dr. Morhaf Sadek observed “blunt force injuries”, namely, fractures to “four different facial bones”. Dr. Sadek said Mr. Brochu’s facial injuries were caused by “more than one” instance of “blunt force trauma”. While it was impossible for Dr. Sadek to describe the exact degree of force used, he noted that not all blunt force trauma is forceful enough to cause bone fractures.

Evidence relating to the assault on Mr. Brochu

[10] Whether because of the alcohol consumption of the witnesses, or for other reasons, it is fair to say that the Crown was challenged in presenting a description of the entire confrontation in which Mr. Brochu was injured. Three of the Crown witnesses, including Mr. Snider, testified they had no memory of the events that evening due to alcohol consumption. None of the others could provide a complete narrative of the entire assault on Mr. Brochu.

[11] Mr. Brochu testified that he did not see who assaulted him. He stated that the confrontation in the kitchen began with Ms. Gregory hitting Mr. Snider. Mr. Brochu said he was trying to intercede to separate Ms. Gregory and Mr. Snider when a man whom Mr. Brochu could not identify began punching Mr. Snider. Mr. Brochu said he then saw Mr. Tenthorey come over. He expected Mr. Tenthorey to “pull his girlfriend off” of Mr. Snider. Mr. Brochu testified that he himself was then “clubbed across the side of the face”. He did not see the blow, only a flash, but he concluded that he had been assaulted by Mr. Tenthorey because he was struck on the left side of his face and Mr. Tenthorey had been the only person in the room to his left side.

[12] Mr. Brochu testified that after being struck, he fell to the ground and someone administered numerous kicks to his face, which he described as “soccer” style kicks. He could not look up during the attack to see who was attacking him. He could see only shoelaces and a big sneaker. He assumed it was Mr. Tenthorey who was kicking him.

[13] Mr. Brochu testified that he got up when the kicking ended and saw Mr. Tenthorey standing as though they were going to “square off and have another fight.”

[14] During his examination-in-chief, Mr. Markakis testified that he saw Mr. Brochu on the ground but that there were “two other guys fighting beforehand”. He identified the two men as Mr. Snider and a man named “Daniel”. He said those two were fighting in or near the bathroom, right next to the kitchen. Mr. Markakis testified that he was trying to break up that fight, and so was Mr. Brochu, who was behind Mr. Markakis at the time. Mr. Markakis testified he was not present when Mr. Brochu was assaulted but that he saw Mr. Brochu on the ground with his nose bleeding and tried to help him, but that Mr. Brochu had refused his help.

[15] Mr. Markakis further testified that he later saw Mr. Brochu “trying to figure out who hit him”, and that Mr. Brochu and Mr. Tenthorey eventually went outside where Mr. Markakis observed the two men “trying to fight each other”.

[16] While being cross-examined by Mr. Tenthorey’s trial lawyer (who did not argue the appeal before us), Mr. Markakis said that when he saw Mr. Brochu on the ground, Mr. Tenthorey was “standing right by him”. Mr. Markakis agreed with the suggestion that he had no idea who injured Mr. Brochu. He initially said he did not know whether Mr. Tenthorey had done anything to Mr. Brochu, but then said, “I think I only seen [Mr. Tenthorey] – I – I think I only seen him – sorry. I think I only seen one kick. That’s it.” He said that the kick was into Mr. Brochu’s face, “like kicking … a soccer ball”. When asked if he was sure about this, Mr. Markakis said, “‘[c]ause after I … broke up the fight, I remember saying, ‘Why – why’d you kick him to his face’”. Mr. Markakis then agreed with the suggestion that he was unsure whether he saw Mr. Tenthorey kick Mr. Brochu because he had been drinking, the event occurred “four years” before, and people had told him “a lot of stuff since then about this”.

[17] Ms. Gregory was also called as a witness by the Crown. She testified that Mr. Brochu had been touching her in the kitchen and she punched him in the chest. Mr. Tenthorey was outside on the patio at the time. Ms. Gregory said Dylan Lafreniere and Mr. Snider began punching Mr. Brochu. At this point, she said Mr. Tenthorey came into the kitchen and led her away from the altercation.

[18] Mr. Lafreniere did not testify at the trial.

[19] As indicated, Mr. Snider testified that he could not remember what happened.

[20] Billie-Jo Lemire testified that Mr. Brochu and Mr. Snider were “hitting” on her and Ms. Gregory at the party. Jesse Broadfoot, Ms. Lemire’s boyfriend at the time, told Mr. Brochu and Mr. Snider to stop. She said there were two “loud bangs” and she saw Mr. Brochu and Mr. Snider on the ground. She saw that Mr. Snider was dazed but uninjured. She then heard a third bang coming from the kitchen and saw Mr. Brochu bleeding from the nose. She said she did not know who hit the men.

[21] Ms. Lemire also testified that she subsequently saw Mr. Brochu outside, attempting to fight Mr. Tenthorey. She heard Mr. Tenthorey trying to de-escalate the situation and apologizing to Mr. Brochu for something.

[22] Mr. Brochu’s brother, Jean-Paul, who was not at the party, testified that the morning after Mr. Brochu was assaulted he began to make inquiries about what had happened, including in a phone call to Mr. Markakis. Shortly after the call with Mr. Markakis, Jean-Paul received a phone call from a man who identified himself as “Nate”. Jean-Paul testified that Nate told him that he had “smashed my brother’s face in because he hit on his girlfriend.”

[23] Jean-Paul further testified that during his call with Nate a woman was shouting in the background that she was going to press charges against Jean-Paul’s brother for sexual assault.

[24] Mr. Markakis confirmed that Jean-Paul had called him to inquire about what had happened at the party and that Jean-Paul’s phone number was visible to him through caller ID. Mr. Markakis also said he gave Jean-Paul’s phone number to Mr. Tenthorey.

[25] Ms. Gregory denied being part of any such phone conversation.

Events relevant to a Soobrian limiting instruction

[26] During Ms. Gregory’s testimony, the trial Crown (who did not argue the appeal before us) was given leave pursuant to ss. 9(1) and 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 to cross-examine Ms. Gregory about the prior inconsistent testimony she had given at Mr. Tenthorey’s bail hearing. Specifically, at trial Ms. Gregory provided the above-described account of the assault against Mr. Brochu, yet at Mr. Tenthorey’s bail hearing she testified she was not present during the assault on Mr. Brochu and therefore had not seen what happened.

[27] When requesting leave to cross-examine Ms. Gregory pursuant to s. 9(2) of the Canada Evidence Act, the trial Crown made clear that he would not suggest to the jury that Ms. Gregory was “colouring” her evidence in favour of Mr. Tenthorey such that Mr. Tenthorey “is somehow in cahoots”. He simply wanted her evidence disregarded and expected the trial judge “would give a specific charge”.

[28] At the end of the s. 9(2) voir dire, the trial Crown requested a ruling under s. 9(1) of the Canada Evidence Act that Ms. Gregory was an adverse witness. As a result, a voir dire regarding s. 9(1) followed. During the s. 9(1) voir dire, the trial judge said he was “looking for” an instruction to the effect that “this is not evidence of any collusion or any linking of … what [Ms. Gregory’s] giving evidence [of] to [Mr. Tenthorey].”

[29] After delivering his s. 9 rulings in favour of the Crown, the trial judge shared with counsel a draft mid-trial instruction he had prepared and asked for their input. The draft mid-trial instruction contained the following clause addressing the Soobrian concern:

This cross-examination on a previous statement can be used on the issue of credibility of that witness, but it is not to reflect on the accused person as indicating that they are not credible or are guilty.

[30] Mr. Tenthorey’s trial counsel told the trial judge he wanted to reserve his comments on the proposed charge until after the Crown’s cross-examination of Ms. Gregory was complete. During the further exchange that followed, the trial judge decided not to include the proposed mid-trial Soobrian limiting instruction because he did not yet know whether Mr. Tenthorey would testify. The trial judge provided the balance of the proposed mid-trial direction relating to the proper use of prior inconsistent statements.

[31] The trial Crown then confronted Ms. Gregory with her inconsistent testimony. She attempted to explain the inconsistency by claiming that she thought she had been called at the bail hearing to testify only about the assault allegedly committed by Mr. Tenthorey, not about “the whole night”.

[32] Later that afternoon, after a recess during the testimony of another witness, the trial judge noted that he had not gotten back to Mr. Tenthorey’s trial counsel as to whether there should be a further mid-trial instruction relating to Ms. Gregory’s testimony. Mr. Tenthorey’s trial counsel responded: “Well, no. I think it’s … just as easy if you leave it to the end because again, [Ms. Gregory’s] evidence is fairly close to the end [of trial] in any event.” No further mid-trial instruction was provided.

[33] In his closing address, the trial Crown submitted the following to the jury:

Ms. Gregory has no respect for the oath. She’s making up her evidence. She is trying to protect her fiancé [Mr. Tenthorey]. Her testimony as to – her explanation for that testimony [at the bail hearing] rings very hollow, and [I] say in the strongest terms – but it’s up to you – that you should reject her evidence out of hand.

[34] Nothing was said by anyone about a Soobrian limiting instruction during the pre-charge conference. Nor was a Soobrian limiting instruction included in any of the draft charges, or in the final charge to the jury.

The jury charge on the offences to be considered

[35] Section 268(1) of the Criminal Code sets out four distinct ways in which an aggravated assault can be committed, by: (1) wounding, (2) maiming, (3) disfiguring, or (4) endangering the life of another. It does so in simple terms:

268 (1) Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

[36] The aggravated assault charge in the indictment against Mr. Tenthorey did not specify the mode of committing aggravated assault that was being alleged. It was a general, non-particularized charge. It simply said that “he, on or about the 23rd day of July, 2016, at the town of Lakeshore in the said Southwest Region, did commit an aggravated assault on Robert Brochu”, contrary to s. 268 of the Criminal Code.

[37] Initially, the trial judge anticipated charging the jury on the included offences of simple assault, contrary to s. 266 of the Criminal Code, and assault causing bodily harm, contrary to s. 267 of the Criminal Code. The draft charges the trial judge prepared included instruction on both offences, but he indicated when he shared the draft charges with counsel that he had yet to finally decide whether to give such instructions.

[38] In the initial pre-charge conference on April 2, 2019, Mr. Tenthorey’s trial counsel took the position that simple assault, contrary to s. 266 of the Criminal Code, was certainly an included offence in the aggravated assault charge Mr. Tenthorey faced. However, he was unsure whether assault causing bodily harm, contrary to s. 267, was an included offence as a matter of law. The trial judge decided to leave that question “open” for further discussion in subsequent pre-charge conferences.

[39] The next day, April 3, 2019, Mr. Tenthorey’s trial counsel advised the trial judge that his research had led him to conclude that, as a matter of law, assault causing bodily harm is not an included offence in a non-particularized charge of aggravated assault. He said this despite acknowledging that leaving the offence of assault causing bodily harm with the jury might benefit Mr. Tenthorey. As he wanted his client tried according to law, Mr. Tenthorey’s trial counsel advised that he was not seeking a charge on assault causing bodily harm, but reiterated his request that the trial judge charge the jury on the included offence of simple assault.

[40] The trial Crown disagreed with Mr. Tenthorey’s trial counsel about whether assault causing bodily harm was an included offence, as a matter of law. The trial Crown advised the trial judge that it was.

[41] However, as he had done the day before, the trial Crown asked the trial judge not to charge the jury on either assault causing bodily harm or simple assault. He submitted that the trial judge should give an “all or nothing” charge. It was the trial Crown’s position that factually there was no view of the evidence, when considered as a whole, that could cause the jury to acquit of aggravated assault but convict of either of the two included offences. The trial Crown submitted that the only evidence others were involved in the assault came from Ms. Gregory and, if the jury believed or were left in doubt about whether to accept her version of events, “obviously that’s complete exculpation”. He submitted that, in the circumstances, it would cause “mischief in the thinking of the jury” to instruct them on the included offences.

[42] The trial judge urged Mr. Tenthorey’s trial counsel to explain what reasonable view of the evidence could lead the jury to convict on either of the included offences. Counsel responded that the Crown had not proved beyond a reasonable doubt that Mr. Tenthorey was the only one who had administered blows to Mr. Brochu. Since it was open to the jury to find that Mr. Tenthorey only punched Mr. Brochu once, or kicked him once, a simple assault verdict was available. During the colloquy, the trial judge expressed disagreement with this submission, commenting that “[t]here’s no evidence that [Mr. Tenthorey] was involved and then other people jumped in”. He challenged Mr. Tenthorey’s theory that there may have been more than one assailant as speculative and inconsistent with the defence position that no charge was required on joint responsibility.

[43] On April 4, 2019, the trial judge gave an oral ruling, declining to charge the jury on either assault causing bodily harm or simple assault. Specifically, he held that, as a matter of law, assault causing bodily harm was not an included offence in this case “and therefore cannot be put to the jury”.

[44] He then ruled that although, as a matter of law, the offence of simple assault is included in a non-particularized aggravated assault allegation, factually, there was no reasonable view of the evidence that could cause a jury to acquit of aggravated assault but convict of simple assault. The trial judge said:

The Crown does not want the assault to be given to the jury. The defence does, arguing that the jury could find [Mr. Tenthorey] punched [Mr. Brochu] once but others assaulted [Mr. Brochu], causing his injuries. But this scenario is not part of the evidence.

The only evidence that anyone else struck [Mr. Brochu] comes from [Ms. Gregory], who testified that others beat [Mr. Brochu] and [Mr. Tenthorey] was not involved at all in the beating. Obviously if the jury accepts this evidence or believes it raises a reasonable doubt, [Mr. Tenthorey] will be acquitted. This is the major defence: Mr. Tenthorey did not assault Mr. Brochu.

The evidence of [Mr. Brochu’s] injuries as a result of the blows received at the house that night was unchallenged factually. Assuming the jury concludes that [Mr. Tenthorey] assaulted Mr. Brochu, in my view there is no reasonable prospect that a jury could properly find that those serious injuries were not caused by that assault. Accordingly, I decline to give the jury the lesser included offence of simple assault.

[45] The trial judge therefore directed the jury only on the offence of aggravated assault, focusing exclusively on the three modes of commission in s. 268 that necessarily involve assaultive behaviour: wounding, maiming, or disfiguring.

[46] The jury returned a verdict of guilty of aggravated assault.

Issues

[47] The two grounds of appeal raised by Mr. Tenthorey can conveniently be stated and approached in the following order:

(1) Whether the trial judge erred by failing to leave the jury with the included offences of simple assault, contrary to s. 266 of the Criminal Code, and/or assault causing bodily harm, contrary to s. 267 of the Criminal Code; and

(2) Whether the trial judge erred by failing to provide the jury with a “Soobrian limiting instruction” relating to Ms. Gregory’s testimony.

[48] In his notice of appeal, Mr. Tenthorey also sought leave to appeal his sentence. However, on May 26, 2020, Mr. Tenthorey abandoned his sentence appeal.

Analysis

1. The Included Offence Errors

(a) The Offence of Assault Causing Bodily Harm is Included in a Non-particularized Charge of Aggravated Assault

[49] The Crown concedes the trial judge committed a legal error in holding that, as a matter of law, assault causing bodily harm is not an included offence in a non-particularized charge of aggravated assault. This concession is correct. It is well-established that, legally, assault causing bodily harm is an included offence in a non-particularized charge of aggravated assault: R. v. Wong (2006), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 11; R. v. Lucas (1987), 34 C.C.C. (3d) 28 (Que. C.A.), at pp. 32-33; R. v. Soluk, 2001 BCCA 519, 46 C.R. (5th) 380, at para. 16.

[50] The error committed by the trial judge, and by Mr. Tenthorey’s trial counsel for that matter, is understandable. Each applied a test for identifying included offences that is adequate if there is only one mode of committing the charged offence. However, that same test produces inaccurate results if applied where there is more than one mode of committing the charged offence, as in the case of a non-particularized charge of aggravated assault.

[51] In order to discourage similar errors in future cases, I will explain the source of the error in more detail. I also propose the following test, which can be used in identifying included offences, regardless of the nature of the charged offence: an offence will be an included offence if the essential elements of that offence would necessarily be proved if the Crown were to successfully establish any one of the legally available avenues of conviction for the charged offence.

[52] To understand the source of the error in this case, one must begin with the underlying concept of an included offence. As a matter of fundamental justice, an accused person “is only called upon to meet the charge put forward by the prosecution”: R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, at para. 2. This is because an accused person must have “fair notice” of the charges they face. As Martin J.A. instructed in R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122 (Ont. C.A.), at p. 133, fair notice is an “operative principle governing the meaning of an ‘included offence’”. Martin J.A. explained that “the offence charged, as described either in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet”. [2] An offence is therefore an “included offence” if it is part of the “main” or charged offence, or is “embraced” by the main or charged offence: Simpson (No. 2), at p. 133; R. v. G.R., at para. 25.

[53] Where either the charge itself or the enactment creating the offence provides only one mode of committing the charged offence, it is possible and indeed customary to test whether an offence is embraced by the main charge by asking whether that offence is “necessarily committed in the commission of the principal offence as described in the enactment creating it” (emphasis in original): R. v. G.R., at para. 30, quoting R. v. Harmer and Miller (1976), 33 C.C.C. (2d) 17 (Ont. C.A.), at p. 19. This test works where there is only one mode of committing the charged offence because if that one mode of commission cannot be accomplished without also committing the included offence, the accused person will have fair notice that the elements of the included offence are at issue. It is therefore fair or just to convict the accused person of the included offence if the elements of the included offence are proved but the Crown falls short of proving all the elements of the charged offence. The offence of “dangerous driving causing death” provides an example. As I explained in R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, at para. 12:

“Dangerous driving” is an included offence in a charge of “dangerous driving causing death” because it is impossible to commit the offence of dangerous driving causing death without satisfying the legal requirements or elements of the offence of dangerous driving. Dangerous driving causing death is an aggravated version of the offence of dangerous driving, distinguishable only by the added legal requirement that the dangerous driving must cause the death of another.

[54] Things are somewhat more complicated where there is more than one mode of committing the charged offence. Since the Crown may succeed in proving the charged offence by establishing any one of the available modes of committing the charged offence, an offence will be included if it is necessarily proved by establishing any one of the different ways in which the charged offence can be committed: Simpson (No. 2), at p. 139; Luckett v. The Queen, [1980] 1 S.C.R. 1140; R. v. Benoit, 2014 ONCA 457, [2014] O.J. No. 2770. This is because an accused person, alerted by law that the Crown can succeed in the prosecution by establishing any one of the modes of commission, will have fair notice that the Crown may ultimately prove any offence that is necessarily proved when establishing any one of those modes of commission.

[55] A non-particularized charge of aggravated assault falls into this latter category. As indicated, where an aggravated assault charge is not particularized, the Crown may succeed in establishing aggravated assault by proving any one of the four modes of commission. Three of those modes of commission (wounding, maiming, and disfiguring) cannot be committed without also committing an assault causing bodily harm. An accused person, such as Mr. Tenthorey, facing a non-particularized charge of aggravated assault will therefore have fair notice that the elements of assault causing bodily harm are at issue.

[56] Yet if one set out to determine whether assault causing bodily harm is an included offence in a non-particularized charge of aggravated assault by applying the test used for offences that have but one mode of commission, a different – and incorrect – answer would result. Since the fourth mode of committing aggravated assault (endangering the life of another) can be committed without also committing an assault causing bodily harm, assault causing bodily harm is not “necessarily committed in the commission of the principal [or charged] offence”.

[57] Both the trial judge and Mr. Tenthorey’s trial counsel erred in this way; by employing the test identified in R. v. G.R., at para. 30, a case involving an offence with a single mode of commission. In fairness, their errors are understandable because, unfortunately, it is not uncommon for judges deciding single-mode of commission cases to describe the test articulated in R. v. G.R. as the test for identifying included offences. Regrettably, I did so myself in Romano, at para. 11.

[58] Obviously, the confusion that occurred in this case could have been avoided if the test for included offences was described in a way that would work for both single-mode and multiple-mode charged offences. Hence the test I have articulated here: an offence will be an included offence if the essential elements of that offence would necessarily be proved if the Crown were to successfully establish any one of the legally available avenues of conviction for the charged offence.

[59] Applying this test, the offence of assault causing bodily harm would necessarily be proved if the Crown were to successfully establish any one of three legally available avenues of convicting Mr. Tenthorey of the non-particularized offence of aggravated assault; wounding, maiming, or disfiguring. Therefore, as a matter of law, assault causing bodily harm is an included offence in the charge Mr. Tenthorey faced. The trial judge erred in finding otherwise.

(b) The Crown’s Harmless Error Submission

[60] The Crown conceded before us that the trial judge erred in holding that, legally, assault causing bodily harm is not an included offence in a non-particularized charge of aggravated assault. Nevertheless, the Crown submits that this error was harmless, contending the trial judge was nonetheless correct in not instructing the jury on the included offence of assault causing bodily harm because the factual precondition to such instruction was not met. Specifically, the Crown argues that there is no reasonable view of the evidence on which a jury could acquit Mr. Tenthorey of the charged offence of aggravated assault yet convict him of the offence of assault causing bodily harm.

[61] This argument by the Crown mirrors the trial judge’s reasoning relating to the offence of simple assault, contrary to s. 266 of the Criminal Code. The trial judge recognized that, as a matter of law, simple assault is an included offence in a non-particularized charge of aggravated assault, contrary to s. 268 of the Criminal Code: R. v. Rocchetta, 2016 ONCA 577, 352 O.A.C. 130, at para 38. However, he held that, factually, there was no reasonable view of the evidence on which the jury could acquit Mr. Tenthorey of the charged offence of aggravated assault yet convict him of the offence of simple assault. The trial judge therefore refused to charge the jury on the offence of simple assault.

[62] The Crown’s harmless error argument and Mr. Tenthorey’s ground of appeal that the trial judge erred in failing to charge the jury on the offence of simple assault thus turn on whether the factual precondition to a mandatory included offence charge was met. There is overlap in determining whether the factual precondition for each offence was met. I will therefore address together the factual preconditions to a mandatory jury charge on both included offences; assault causing bodily harm and simple assault.

(c) Factually, the Included Offences of Assault Causing Bodily Harm and Simple Assault Were Available on a Reasonable View of the Evidence

[63] Even if, as a matter of law, an offence is included in a charged offence, trial judges are not required to instruct a jury on the law applicable to that included offence unless there is an “air of reality in the evidence adduced at trial to permit a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been established”: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 174-75.

Realistic possibility: the factual precondition to an included offence charge

[64] In R. v. Ronald, 2019 ONCA 971, Doherty J.A. helpfully framed this rule of law, at para. 42:

There should be no instruction on potential liability for an included offence only when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence.

[65] To be clear, Doherty J.A. was not purporting to jettison the air of reality test as the standard to be used in determining whether a jury instruction is required relating to an included offence. He was simply adding precision to the description of the air of reality test as it applies to included offences. He did so in order to prevent confusion with the application of the air of reality test when it is used to determine whether a positive defence should be left with a jury: Ronald, at paras. 43-46. However, in both contexts, the air of reality test performs the same basic function. As Doherty J.A. explained, “[b]oth inquiries seek to focus the jury’s attention on the live issues actually raised by the evidence. By doing so, the risks of unreasonable verdicts, juror confusion, or improper compromise by jurors, are reduced”: Ronald, at para. 43.

[66] Whether applied in identifying included offences or available defences, the air of reality test performs another function: ensuring that trial judges do not encroach on the role of the trier-of-fact when determining whether there is a live issue in a jury trial. The existing restrictions to accomplish this can best be illustrated by examining more generally how the law limits the operation of the threshold tests for identifying the live issues in a case. There are two such tests: (a) the air of reality test; and (b) the more familiar prima facie case test, which is used to determine committal at preliminary inquiries and directed verdict applications at the close of the Crown’s case.

[67] In applying the prima facie case test, in order to prevent a trial judge from encroaching on the role of the trier-of-fact, a trial judge is disqualified from considering the credibility and reliability of evidence, and from considering their own view on whether the Crown’s case would succeed. The sole weighing exercise permitted is for the trial judge to determine whether the inferences required for the Crown to prove its case beyond a reasonable doubt are, as a matter of logic, reasonably available on the evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21-24.

[68] The air of reality test works in much the same way and for the same reason. The majority’s statement in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 54, referring to the air of reality test and defences, applies mutatis mutandis to the application of the air of reality test in included offence cases:

The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. The trial judge does not make determinations about the credibility of witnesses, weigh evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. [Citations omitted.]

[69] Therefore, in determining whether it is possible for a jury to have reasonable doubt on the charged offence but to convict on an included offence, a trial judge should not consider how likely or unlikely the trial judge believes that outcome to be. Nor should the trial judge pay regard to concerns about the credibility or reliability of the evidence required to reach that outcome. In a circumstantial evidence case, the appropriate inquiry is into the logical reasonableness of the inferences that are available to be relied upon to support a realistic possibility of an acquittal on the main charge and a conviction on an included offence.

[70] In Ronald, at paras. 52-56, when determining in a circumstantial evidence case whether there was a reasonable possibility that a jury could acquit on the main charge but convict of an included offence, Doherty J.A. therefore looked at “reasonable inferences”. He no doubt used the term “reasonable inferences” in much the same way that Cromwell J. employed that phrase in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 36, when he held that an inference of not guilty is available in a circumstantial evidence case only if that inference is “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”.

[71] Therefore, in applying the Ronald test, if there is direct evidence that the accused has committed an included offence but not the charged offence, or if the state of circumstantial evidence yields logical inferences in light of human experience and common sense that the accused has committed an included offence but not the charged offence, there will be a “realistic possibility” of an acquittal on the main charge but a conviction on an included offence. In that case, the included offence must be left with the jury, regardless of how incredible or unreliable the evidence may be, or how unlikely it is that the trier-of-fact will ultimately draw the relevant inferences.

Case law applying the realistic possibility standard for included offences

[72] The cases argued before us conform to this standard. For example, in Wong, the appellant, who claimed he had acted accidentally or in self-defence, acknowledged that he had caused the aggravated injury or wound to the victim. Since, in these circumstances, “[t]here was no reasonable view of the evidence that would yield an acquittal on the charge of aggravated assault by wounding and a conviction on the included offence of assault causing bodily harm”, this court concluded that the trial judge had erred by leaving the included offence with the jury: Wong, at paras. 13-15.

[73] In R. v. Grewal, 2019 ONCA 630, 379 C.C.C. (3d) 201, the charged offence was kidnapping. The appellant argued that the trial judge should have directed the jury on the included offence of attempted kidnapping. This court disagreed. At paras. 38-45, van Rensburg J.A. reasoned that the only available inference from the uncontested evidence was that if the appellant did not participate in the kidnapping, he aided in the kidnapping. Both avenues enabled a conviction on the charged offence, and neither could support a “realistic possibility” of a conviction for attempt.

[74] In Romano, the charged offence was dangerous driving causing death. It was not contested that the vehicle driven by the appellant struck the victim and that she died. The appellant argued that even if his driving was dangerous, which he denied, his dangerous driving did not cause the victim’s death, and therefore the trial judge erred by failing to instruct the jury on the included offence of dangerous driving. This court disagreed. As a matter of law, if the appellant’s driving was found to be dangerous, he would necessarily be convicted of dangerous driving causing death because “there was simply no proper basis on which the jury could find that [the appellant’s] driving did not meet the legal requirements of causation” relating to the victim’s death: Romano, at para. 25. In those circumstances, it would have been improper for the trial judge to leave the simple charge of dangerous driving with the jury.

[75] None of these illustrative cases turned on weaknesses in the credibility or reliability of the evidence, and none had to do with the unlikelihood of an included offence inference. In each of them, there was “no realistic possibility of an acquittal on the main charge and a conviction on an included offence” because the respective included offences were simply not on the table.

Mr. Tenthorey’s submissions with respect to included offences

[76] Mr. Tenthorey argued at trial that there was a realistic possibility the jury could acquit him of the charged offence of aggravated assault but convict him of the offence of simple assault. Although not separated as cleanly in his submissions, he presented two paths to that realistic possibility that I will describe later in these reasons.

[77] Mr. Tenthorey adopts this argument on appeal and contends that those same paths also present a realistic possibility that the jury could have acquitted him of aggravated assault but convicted him of assault causing bodily harm.

[78] He points out that his trial counsel did not pursue the assault causing bodily harm option because of his mistaken belief that, legally, assault causing bodily harm was not an included offence. Mr. Tenthorey argues that since a trial judge is legally obliged to charge a jury on included offences that have an air of reality, and since it is clear that his trial counsel’s position that no such direction was required was based on an erroneous understanding of the law and not a tactical choice, that position is not an impediment to relying, as a ground of appeal, on the trial judge’s failure to charge the jury on assault causing bodily harm.

[79] The Crown does not argue otherwise. I will therefore consider not only whether the trial judge erred in failing to charge the jury on the offence of simple assault, but also whether he failed to charge the jury on assault causing bodily harm.

The realistic possibility standard was met for both included offences

[80] In my view, using either of the paths I am about to describe, there was a realistic possibility of an acquittal on the main charge and a conviction on either the included offence of assault causing bodily harm, or the included offence of simple assault. Both paths assume that the jury would accept either the circumstantial evidence of Mr. Brochu that Mr. Tenthorey punched him in the face, knocking him to the ground, and/or the direct testimony of Mr. Markakis that Mr. Tenthorey administered one soccer kick to Mr. Brochu’s face.

[81] The first path Mr. Tenthorey advances rests on the Crown’s failure to produce any witness who testified to seeing who perpetrated the entire assault. Mr. Tenthorey argues that, given the absence of such evidence, a jury could find that the Crown had failed to establish beyond a reasonable doubt that Mr. Tenthorey acted alone in administering the blows. In such circumstances, the jury could be unable to conclude that Mr. Tenthorey caused the aggravated injuries required to support an aggravated assault conviction. The jury would then be left to determine whether the blow or blows Mr. Tenthorey administered caused Mr. Brochu bodily harm. If the jury was able to infer from the nature of the blow or blows that they must have caused some bodily harm not rising to the level of wounding, maiming, or disfiguring, the appropriate verdict would be guilty of assault causing bodily harm. If the jury was not prepared to infer that the blow or blows caused bodily harm at all, the appropriate verdict would be guilty of simple assault.

[82] To be clear, even on the path just described, if a jury were persuaded that Mr. Tenthorey and any other assailants acted in concert or “jointly” when attacking Mr. Brochu, aggravated assault would still be the appropriate verdict. However, there was no suggestion on the evidence of joint participation. Appropriately, this theory of party liability was not before the jury. Therefore, in the circumstances of this case, the path I have just described would lead to an included offence conviction and a verdict of not guilty of aggravated assault.

[83] The second path Mr. Tenthorey advances is similar but relies on the affirmative evidence of Ms. Gregory that Mr. Lafreniere and Mr. Snider punched Mr. Brochu. A jury accepting that testimony but finding that Mr. Tenthorey also punched and/or kicked Mr. Brochu could equally be left with a reasonable doubt about whether Mr. Tenthorey caused the aggravated injuries, or any injury at all. This scenario, too, would lead to a verdict of guilty of assault causing bodily harm or simple assault, but not guilty of the charged offence of aggravated assault.

[84] The trial judge concluded that neither of these paths was realistically possible on the totality of the evidence. In his included offence ruling, the trial judge held that a jury could not properly accept the theory that Mr. Tenthorey was not the only one to assault Mr. Brochu, stating “this scenario is not part of the evidence.” When this submission was raised by trial counsel in oral argument, the trial judge challenged the submission by saying:

You’re asking them to speculate. There is no other evidence – there’s evidence that [Mr. Tenthorey] was either involved or he wasn’t involved. There’s no evidence that he was involved and then other people jumped in. I have nothing of that.

[85] Later, the trial judge said of the same submission, “[the jury are] not to speculate on [whether] something may have happened when they have no evidence of it.”

[86] With respect, the trial judge erred in dismissing the paths I have identified to an included offence verdict on the basis that there was “no evidence that [Mr. Tenthorey] was involved and then other people jumped in”. He also erred by finding this theory to be speculative.

[87] Speaking of reasonable doubt in circumstantial evidence cases in Villaroman, at para. 35, Cromwell J. explained why “inferences consistent with innocence do not have to arise from proven facts”:

Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence.

[88] Cromwell J. also cautioned, at para. 36, that “a reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence.”

[89] In Ronald, Doherty J.A. gave several reasons why the trial judge in that case had erred in failing to leave the included offence of second-degree murder with the jury. One such reason was that the jury could choose not to infer planning and deliberation from the circumstantial evidence that the Crown had relied upon, leaving an absence of evidence of planning and deliberation. He reinforced the point, at para. 54, that “[j]uries are not obliged to draw all inferences that are reasonably available on the evidence.” Earlier in the decision, at para. 47, Doherty J.A. explicitly linked this proposition to included offences, as follows:

When the defence, or the Crown, argues that a jury should be instructed on the possibility of a conviction on the included offence of second degree murder, it is not essential that the party seeking the instruction point to evidence capable of supporting inferences that are inconsistent with planning and deliberation. Unlike positive defences, there is no evidentiary burden on the defence, or the Crown, to put the possibility of a conviction for the included offence … ‘in play’. It is sufficient if, on the totality of the evidence, a reasonable jury could be left unconvinced, beyond a reasonable doubt [of the charged offence]. That potential uncertainty can provide the basis for a proper verdict of not guilty of [the charged offence], but guilty on the included offence….

[90] Because of the gaps in the evidence, the Crown’s case that Mr. Tenthorey administered all the blows to Mr. Brochu was circumstantial. Even if it is likely that the jury would draw the inference that Mr. Tenthorey administered all the blows, the trial judge should have proceeded on the basis that the jury might not do so.

[91] Nor was Mr. Tenthorey under any obligation to fill the gaps with evidence that others did administer blows. He was entitled to rely on the absence of evidence to raise a reasonable doubt about this possibility. Mr. Tenthorey’s submission that a jury could have a reasonable doubt on the charged offence of aggravated assault because of the absence of evidence that he administered all the blows was not speculative. It arose from the absence of evidence and required a jury charge on the included offences.

[92] Although not essential to this outcome, it is also worth noting that the realistic possibility the jury could be left in doubt by the absence of evidence finds additional support in the confusing testimony about exactly how events unfolded. Taken together, that evidence suggested there was a melee underway, which in my view enhances the prospect that the jury could have a reasonable doubt as to whether Mr. Tenthorey administered all the blows to Mr. Brochu.

The jury was entitled to accept some, none, or all of Ms. Gregory’s evidence

[93] The trial judge provided an additional reason for rejecting Mr. Tenthorey’s second suggested path to a jury finding that he committed simple assault, but not aggravated assault. This additional reason is also problematic. The trial judge said that Ms. Gregory provided the “only evidence” that anyone else struck Mr. Brochu and that Mr. Tenthorey was not involved in the beating. As such, he asserted that if the jury believed Ms. Gregory, or was left in reasonable doubt by her evidence, Mr. Tenthorey would be acquitted.

[94] With respect, the trial judge erred by treating Ms. Gregory’s evidence as an all or nothing proposition. As McLachlin J. (as she then was) affirmed in R. v. François, 1994 SCC 52, [1994] 2 S.C.R. 827, at p. 837, a jury “may accept some of the witness’s evidence while rejecting other parts of it”. Ms. Gregory gave direct evidence that she saw Mr. Lafreniere and Mr. Snider punching Mr. Brochu. The jury was entitled to accept this part of Ms. Gregory’s evidence but reject her testimony that Mr. Tenthorey was never involved in the incident and never assaulted Mr. Brochu. On this basis, as well, there is a realistic possibility that the jury could have acquitted Mr. Tenthorey of aggravated assault but convicted him of one of the included offences.

[95] In her able oral argument, appeal counsel for the Crown urged us not to accept this submission without a realistic basis on which to conclude that a jury would have accepted the part of Ms. Gregory’s evidence putting the included offences on the table, while rejecting the balance of her evidence.

[96] I do not accept that it would be appropriate for us to engage in this exercise. I say this even though it is obvious that Ms. Gregory’s evidence suffered from serious credibility problems that could cause a jury to reject her testimony in its entirety. The Crown’s submission that we should confine juries to readily explicable choices about what to believe encroaches too heavily on the province of the jury. The air of reality test does not include consideration of the reasonableness of a jury’s choices about what evidence to believe. If it did, there would be no principled basis on which to refrain from the same evaluation when determining whether the Crown has established a prima facie case. Wisely, this has not been judicial practice.

[97] Indeed, even when an appellate panel engages in an ex post facto evaluation of the reasonableness of a jury verdict, it is reluctant to question a jury’s credibility determinations: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 32. To assign judges the responsibility to pre-screen the reasonableness of a jury’s potential credibility determinations when applying the air of reality test would be inconsistent with the deference accorded to credibility determinations of juries, and incompatible with the threshold tests that have developed to limit trials to the matters in issue.

(d) Conclusion on the Included Offence Errors

[98] Accordingly, I would find that the factual preconditions requiring the trial judge to direct the jury on the included offences of assault causing bodily harm and simple assault were present in this case. There was a realistic possibility that the jury, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, could have acquitted Mr. Tenthorey on the main charge of aggravated assault yet convicted him of assault causing bodily harm or simple assault.

[99] I would therefore find that the trial judge’s error in holding that assault causing bodily harm is not an included offence in a non-particularized charge of aggravated assault was not harmless. He was required to charge the jury on that included offence.

[100] I would also find that the trial judge erred in finding the air of reality test was not met with respect to the included offence of simple assault. He was obliged to charge the jury on that offence as well.

2. The Soobrian Limiting Instruction Issue

[101] Mr. Tenthorey argues that the trial judge erred in law by failing to give a Soobrian limiting instruction directing the jury not to draw an adverse inference against the defence as a result of the Crown’s impeachment of Ms. Gregory’s testimony.

[102] As I will explain, I would not give effect to this ground of appeal.

(a) The Governing Legal Principles

[103] Proof that a witness lied to protect the accused cannot properly be treated as proof that the accused encouraged or directed the witness to do so, absent an evidentiary foundation for a finding of collusion. It is therefore improper for the Crown to call a witness who is expected to testify favourably to the accused and then impeach that witness in an effort to discredit the defence by inviting an unsupported inference that the accused was complicit in the false testimony the witness provided: Soobrian, at p. 216; R. v. Figliola (No. 1), 2011 ONCA 457, 105 O.R. (3d) 641, at para. 45. If this is the Crown’s purpose, the trial judge should exercise their discretion to prohibit the impeachment from occurring: R. v. Figliola (No. 2), 2018 ONCA 578, 141 O.R. (3d) 662, at paras. 52 and 58.

[104] If the Crown does impeach its own witness without foundation for this improper purpose, the trial judge must generally give a ‘Soobrian limiting instruction’ to prevent the jury from misusing the impeachment to draw an adverse inference against the defence that the accused is also a liar, or has acted to hide their guilt: Soobrian, at p. 219; Figliola (No. 1), at paras. 38 and 61-63.

[105] Even where the Crown calls the witness for a proper purpose, if the Crown ultimately impeaches its witness and “strays into impermissible Soobrian territory”, a Soobrian limiting instruction will generally be required: Figliola (No. 1), at paras. 61-62. This will occur where the impeachment, whether wittingly or not, is conducted in a manner that has created a “real risk that the jury would misuse their rejection of [the witness’s] evidence” to discredit the defence: R. v. Figliola (No. 2), at paras. 45-46, 52 and 58.

(b) A Soobrian Limiting Instruction Was Not Required in This Case

[106] Mr. Tenthorey does not suggest that the trial Crown called Ms. Gregory for an improper purpose. Nor would there have been any basis for such a suggestion. As Doherty J.A. explained in Figliola (No. 2), at para. 61:

[I]f the Crown has a good faith basis for believing that a witness has relevant evidence to give, the Crown may call that witness even though the Crown expects that the witness will give evidence inconsistent with the Crown position and evidence that contradicts the witness’ prior statements. The Crown may call that witness even though it anticipates applying for leave to cross-examine that witness and challenging the credibility of that witness in certain respects. [Citations omitted.]

[107] Other witnesses had testified that Ms. Gregory was implicated in the events leading to the assault on Mr. Brochu. This alone provided the Crown with a good faith basis for believing that Ms. Gregory had relevant evidence to give, notwithstanding her testimony at Mr. Tenthorey’s bail hearing. The Crown was clearly entitled to call her and to impeach her, if necessary, based on her prior inconsistent testimony.

[108] As indicated, Mr. Tenthorey’s submission is that a Soobrian limiting instruction was required given the manner in which Ms. Gregory was impeached and the use the Crown made of that impeachment in his submissions to the jury. I do not agree. In my view, the trial Crown’s impeachment of Ms. Gregory and his use of that impeachment in his jury submissions did not raise the kind of “real risk” that the jury would misuse her evidence to discredit the defence that would have required a Soobrian limiting instruction.

[109] To the contrary, the trial Crown was aware that it would be improper to attempt to taint Mr. Tenthorey’s defence by impeaching Ms. Gregory. He explicitly stated this was not his intention and invited the trial judge to provide a Soobrian limiting instruction, a point to which I will return.

[110] More importantly, the trial Crown exercised restraint in impeaching Ms. Gregory. He did not seek permission to cross-examine her at large, nor did he attempt to do so. He impeached her testimony efficiently, by confronting her with her prior inconsistent testimony from the bail hearing. That prior inconsistent testimony did not implicate Mr. Tenthorey. It consisted simply of Ms. Gregory’s denial that she had any evidence to give. Therefore, this was not a case such as Soobrian, where, as described by Doherty J.A. in Figliola (No. 1), at para. 61, the effect of the Crown’s cross-examination was to “shred the credibility” of the witness it called and to create a “factual matrix” in which the jury might well conclude that the witness was not only a liar, but lying for the very purpose of covering up for the wrongful deeds of the accused and that the accused “were therefore liars themselves, and guilty too”.

[111] Nor did the Crown present the jury with a “cover up” theory, as occurred in Figliola (No. 1), at paras. 53-55. Instead, the Crown attributed responsibility to Ms. Gregory for the testimony she gave, with the trial Crown in his jury address stating as follows: “Ms. Gregory has no respect for the oath. She’s making up her evidence. She is trying to protect her fiancé”.

[112] Simply put, I see no “real risk” or likelihood that the jury would blame anyone but Ms. Gregory for her testimony, given that the impeachment was restrained and confined to suggestions that she alone was responsible for the false evidence she gave.

[113] In his submissions before us, Mr. Tenthorey emphasized that: (1) when seeking to impeach Ms. Gregory, the trial Crown expressed the expectation that a Soobrian limiting instruction would be given; (2) the trial judge also suggested that he would be “looking for that kind of instruction”; and (3) when asked if there should be a mid-trial Soobrian limiting instruction, Mr. Tenthorey’s trial counsel expressed the view that such an instruction would best be given in the final jury charge.

[114] However, the issue before us is not whether the parties expected a Soobrian limiting instruction, but whether the trial judge was legally required to give one. For the reasons I have expressed, he was not.

[115] More importantly, circumstances had changed by the end of the trial. It is evident from the trial judge’s comments that his belief a Soobrian limiting instruction would be required was linked to his concern the jury might improperly rely on Ms. Gregory’s impeachment to find Mr. Tenthorey was not a credible witness. Recall that the trial judge decided not to give that mid-trial instruction because it was not known at that time whether Mr. Tenthorey would testify. By the time the charge to the jury was provided, it was clear that Mr. Tenthorey had not done so.

[116] Defence counsel’s position at the end of the trial is even more telling. After opting not to request a mid-trial Soobrian limiting instruction, and after reviewing draft jury charges containing no such instruction, Mr. Tenthorey’s trial counsel never asked for one to be included. Nor did he object to the charge that was given. He had clearly been alive to the availability of a Soobrian limiting instruction during the trial yet still said nothing.

[117] In these circumstances, it would not be unfair to infer that, not unlike defence counsel in R. v. Dayes, 2013 ONCA 614, 117 O.R. (3d) 324, Mr. Tenthorey’s trial counsel recognized that a Soobrian limiting instruction could enhance the risk that Ms. Gregory’s impeachment would taint the defence by planting the seed that perhaps Mr. Tenthorey, out of consciousness of guilt, was complicit in her “false” testimony. At the very least, the failure by defence counsel to object reinforces my view that a Soobrian limiting instruction was not legally required in the circumstances of this case.

[118] I am persuaded that the trial judge’s decision not to provide a Soobrian limiting instruction fell well within the bounds of his discretion. Accordingly, I would dismiss this ground of appeal.

Conclusion

[119] For reasons above, I conclude the trial judge erred in failing to instruct the jury on the included offences of assault causing bodily harm and simple assault.

[120] I would therefore allow the appeal, set aside Mr. Tenthorey’s conviction for aggravated assault, and order a new trial.

Released: May 18, 2021 “K.F.” “David M. Paciocco J.A.” “I agree. K. Feldman J.A.” “I agree. S. Coroza J.A.”

[1] By the time of trial, Mr. Tenthorey and Ms. Gregory were engaged to be married. As such, they are respectively referred to as “fiancé” and “fiancée” in parts of the record re-produced below.

[2] As pointed out in R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, at para. 29, statutory provisions may also expressly create included offences.