COURT OF APPEAL FOR ONTARIO

DATE: 20220722 DOCKET: C66832

Trotter, Zarnett and Favreau JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Achint Ranhotra Appellant

Counsel: Lance Beechener, for the appellant Michael Perlin, for the respondent

Heard: April 5, 2022

On appeal from the conviction entered by Justice Edward Then of the Superior Court of Justice, sitting with a jury, on December 17, 2017, and from the sentence imposed on April 20, 2018, with reasons reported at 2018 ONSC 2563.

TROTTER J.A.:

A. Introduction

[1] On March 8, 2014, the appellant called 911 to request assistance. He told the dispatcher that “my gun accidentally went off” and “my girlfriend got shot…right through her head.” The police arrived minutes later to find the appellant’s partner, Vilanong Douangphachanh, laying on the bedroom floor, suffering from a gunshot wound to her head. When a police officer asked the appellant what happened, he said that he was cleaning his gun and it accidentally discharged. Ms. Douangphachanh died from her injuries shortly after the paramedics arrived.

[2] The appellant was charged with first degree murder. At the opening of trial, he entered a plea of guilty to manslaughter. His plea was not accepted by the Crown. The ensuing trial resulted in a verdict of guilty to second degree murder. The trial judge sentenced the appellant to the mandatory life sentence and ordered that he not be eligible for parole for 15 years.

[3] The appellant appeals his conviction and sentence. He submits that the trial judge erred in admitting his utterance to the police officer at the scene. He also contends that the trial was rendered unfair by the trial judge’s response to the Crown’s improper demonstration with the firearm during his closing address. Further, he submits that the trial judge’s instructions on motive were confusing. The appellant says his sentence is unfit.

[4] The following reasons explain why I would dismiss the appeal from conviction and sentence.

B. Factual Overview

[5] On March 8, 2014, Ms. Douangphachanh was 26 years old. She was a student at George Brown College. In fact, she was working on a school assignment when she was killed.

[6] The appellant and Ms. Douangphachanh had been in a common law relationship for about five years. But the relationship was not a happy one. Early in the relationship, Ms. Douangphachanh confided in a friend that the appellant was controlling and verbally abusive. She also complained to co-workers and her doctor that the appellant tried to control her money, as well as being jealous and physically abusive. In her diary, Ms. Douangphachanh wrote about how the appellant tried to limit the time she spent with her friends, and about his violent behaviour. In his evidence at trial, the appellant tried to explain his controlling behaviour, claiming that it was all for the benefit of Ms. Douangphachanh (i.e., by helping her to focus on her school work and save money). He admitted shoving her on two occasions and slapping her across the face on another.

[7] In the fall of 2013, the relationship deteriorated further. The appellant and Ms. Douangphachanh attended couples therapy. Ms. Douangphachanh presented the appellant with a list of 41 conditions that the appellant would be required to meet if she were to stay in the relationship. One of the conditions was: “No hitting.” In February of 2014, Ms. Douangphachanh announced her decision to terminate the relationship.

[8] On the night before the shooting, the appellant met with a friend. He told her that, during his relationship with Ms. Douangphachanh, he had been in touch with an ex-girlfriend who lived in India. He wanted to bring her to Canada but lacked the resources to do so. She had decided to marry someone else. This upset the appellant, but he said he was not upset by Ms. Douangphachanh’s decision to terminate their relationship. The appellant was also under financial pressure at the time. He had lost his job and had to take on a lower-paying position. He had to borrow $10,000 from this same friend before he found his new job.

[9] On March 8, 2014, the appellant and Ms. Douangphachanh were alone in the apartment. Ms. Douangphachanh was working at a desk in their bedroom. The appellant testified to the events that occurred that day as follows.

[10] The appellant lawfully possessed a 9 mm semi-automatic handgun, along with three magazines. He had separate safes for the gun and the ammunition. The appellant testified that, in the early afternoon, he removed the gun and ammunition from the safes. He loaded 15 bullets into each of the three magazines. The appellant had modified these magazines to hold 15 rounds; legally, magazines have a maximum capacity of 10. He “cycled” [1] all of the bullets through the gun, one magazine at a time. He did this twice. At the end of the first cycle, he reloaded all the ejected bullets back into each magazine. After the second cycle, the appellant reloaded 15 bullets into each of the first two magazines, and 13 bullets in the third. While he was in the process of doing this, Ms. Douangphachanh asked him to come to the bedroom to help her with her school work. He did not go immediately. She became persistent.

[11] The appellant got up and went into the bedroom. He took the gun with him because he did not want to leave it unattended in the dining room. He stood beside Ms. Douangphachanh with his gun close to her head. He noticed that the gun appeared to be cocked. He unsuccessfully attempted to de-cock the gun by using the cocking lever. When this did not work, and believing the gun to be unloaded, he pulled the trigger while the gun was aimed at her head. The gun fired into Ms. Douangphachanh’s head at very close range; there was some evidence that the gun may have been in contact with her head at the time.

[12] The appellant put the gun back on the living room table and called 911.

C. Admissibility of the Appellant’s Utterance at the Scene

(1) Introduction

[13] The appellant made what turned out to be an important statement to a police officer who responded to the 911 call. He said that he was cleaning the gun and it went off accidentally. This was different from his account at trial set out above. Evidence from expert firearms witnesses at trial testified that cycling rounds through the gun is not part of the gun-cleaning process.

[14] The appellant submits that he was detained at the time he made his utterance. Before asking any questions, the officer should have advised him of the reason for his detention and his right to counsel; this failure resulted in the infringement of his rights under ss. 7, 10(a), and 10(b) of the Charter. He sought to have the utterance excluded under s. 24(2).

[15] The trial judge conducted a voir dire into the admissibility of the appellant’s utterance at the scene, as well as a videotaped statement given at the police station. The trial judge found that the appellant was not detained when he made his utterance at the scene. The utterance was ruled admissible. The trial judge also ruled that the statement was voluntary. However, the trial judge ruled that the appellant’s subsequent videotaped statement should be excluded under s. 24(2) of the Charter because it was taken in violation of s.10(a) and (b) – the police failed to apprise the appellant of the jeopardy he faced at the time. Neither that ruling nor the voluntariness ruling is the subject of this appeal.

(2) Evidence on the Voir Dire

[16] The sequence of events that led to the impugned utterance was initiated by the appellant. He called 911 to ask for assistance, requesting an ambulance and the police.

[17] As the dispatcher was trying to get a handle on the situation, he asked the appellant “what happened?” He told the dispatcher that “my gun accidentally went off”; “my girlfriend got shot”; and she was “shot right through the head.” [2] The dispatcher asked the appellant whether there was anyone else in the apartment, to which he responded, “[i]t’s only me and my girlfriend.” The appellant told the dispatcher that the gun was on the dining room table. The dispatcher instructed the appellant to unlock the apartment door and to administer first aid to Ms. Douangphachanh until emergency personnel arrived.

[18] Four police officers arrived a few minutes later and entered the apartment with their guns drawn. They saw a handgun on the dining room table. They quickly located the appellant and Ms. Douangphachanh in the bedroom. He was holding a towel to her head and had his cellphone in the other hand. The appellant put both hands up. The officers holstered their weapons.

[19] P.C. David Wells was the first officer in the bedroom. He went to help Ms. Douangphachanh. He took the phone from the appellant and told the dispatcher that the police were on the scene. P.C. Wells “nudged [the appellant] out of the room” so that he could “tend to” Ms. Douangphachanh.

[20] P.C. Gregory Parliament then “grabbed him by the arm … and walked him out of the room.” The bedroom was a “very small room” and he wanted to make space “so the victim could get assistance regarding her injuries.”

[21] Once P.C. Parliament had guided the appellant into the hallway, he asked if there were any other guns in the apartment. The appellant said there was a shotgun in the closet. P.C. Parliament then asked, “what happened?” P.C. Parliament asked this question in order to facilitate the treatment of Ms. Douangphachanh. The appellant replied, “I was cleaning my gun and it went off in her head. I have to help her, I have to help her.”

[22] P.C. Parliament explained that, when he asked the appellant this question, he was not under arrest (although he was arrested shortly after). He agreed that the appellant was not free to leave the apartment at that point, and had other people been in the apartment, they would not have been allowed to leave either. However, before the appellant made his utterance, it was not clear to the officer as to how the gun discharged, accidentally or otherwise, or by whom. Before hearing the appellant’s answer, P.C. Parliament only thought it was a possibility that the appellant was responsible. He acknowledged that, when he took the appellant by the arm and asked him the question, he was detained.

(3) The Trial Judge’s Reasons

[23] The trial judge ultimately found that P.C. Parliament did not detain the appellant in the apartment prior to the impugned utterance. He accepted the officer’s evidence that, when the police arrived on the scene, the appellant was only a “potential suspect and not a determined suspect” (para. 21). This was based on the officer’s experience (shared by his colleagues on the scene that day), that information from a radio dispatch is not always reliable. He was also influenced by the fact that the appellant appeared eager to assist Ms. Douangphachanh.

[24] The trial judge characterized P.C. Parliament’s actions in escorting the appellant out of the room as “not in the nature of restraint, but rather benign in order to facilitate assistance to the deceased and that it would have been perceived by a reasonable person and indeed was perceived by the accused in that light” (para. 22). The trial judge observed that the appellant wished to stay with Ms. Douangphachanh to provide first aid.

[25] The trial judge found that P.C. Parliament’s question “What happened?” was “a general inquiry and not a focused investigation” (paras. 23). He also found that the question was not coercive in nature. The officer was attempting to ascertain whether Ms. Douangphachanh suffered other injuries.

[26] P.C. Parliament’s question was identical to the question asked by the 911 operator. The trial judge found that “a reasonable person would have expected that the police, upon arrival at the scene, would confirm the information that had been voluntarily provided to the 911 operator” (para. 26).

[27] Approaching the matter from an objective perspective, the trial judge found that P.C. Parliament did not exercise his authority to detain the appellant. He said, at para. 30:

Although he questioned the accused about what happened, he did so in a general way and in a non-coercive manner that would convey significant physical or psychological restraint to a reasonable person. The accused did not testify to the contrary.

[28] The trial judge found that s. 10(b) of the Charter was not engaged at that time.

(4) Analysis

[29] In my view, the trial judge was correct in concluding that the appellant was neither physically nor psychologically detained at the time he made his utterance.

[30] Not every interaction between an individual and the police will constitute a detention within the meaning of the Charter, “even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 23; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 27.

[31] This includes situations when the police respond to 911 calls. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, McLachlin C.J. and Charron J. said, at para. 36:

We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual’s freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals. [Emphasis added.]

[32] An example of this principle is found in R. v. Reid, 2016 ONCA 944, 34 C.R. (7th) 231 (“Reid (2016)”), in which the police entered an apartment in search of the accused as part of their investigation into possible criminal activity at another location. They located Mr. Reid in the washroom and directed him to leave. In upholding the trial judge’s finding that Mr. Reid was not detained at the time, Epstein J.A. wrote at para. 28:

Moreover, Sergeant Dey’s direction to Mr. Reid to leave the bathroom while placing his hand on his back, in my view, did not amount to a detention. Not every interaction between a person and the police constitutes a detention within the meaning of the Charter, even where there is an investigation ongoing: R. v. Mann … Mr. Reid may have been momentarily under the officer’s control when Sergeant Dey guided him out of the bathroom, but Mr. Reid was not subject to the type of physical or psychological restraint that amounts to a detention within the meaning of the Charter: R. v. Suberu … [Emphasis added.]

[33] Similarly, in R. v. Teng, 2021 ONCA 785, 158 O.R. (3d) 193, the police responded to separate 911 calls made by the accused and her landlord. The landlord had found the body of the appellant’s husband in a storage room in the accused’s apartment. When the police arrived, the appellant and her landlord were yelling at each other. The police separated them. The appellant was escorted into a bedroom. A police officer testified that the accused would not have been allowed to leave in the circumstances.

[34] The trial judge determined that the appellant was not detained. This court upheld that legal conclusion. Acknowledging that the police placed limitations on the accused’s movements, Doherty J.A. noted that it occurred in the context of her own request for police assistance. As he said, at paras. 122-123:

Having arrived at the scene with a dead body seemingly secreted in a storage room, the police were understandably attempting to control the scene and sort out the somewhat chaotic and very unusual situation they had encountered. The first order of priority for the police arriving in response to the 9-1-1 call was not to investigate a crime, or target the appellant, but to gain control of the situation.

The trial judge correctly concluded the appellant was not physically detained by the police … The police had been called to the apartment by the appellant and the landlord. They had to sort out the situation they encountered, at least in a preliminary way. To do so, the police had to gain control over the scene, including the appellant and the landlord who appeared to be angry with each other. The police had to separate them and make inquiries about the reasons for their 9-1-1 calls: see Suberu, at paras. 29-32. [Emphasis added.]

[35] This situation in this case is similar to the scenarios in Reid (2016) and Teng. The evidence is clear and the trial judge accepted that, when the officers entered the apartment, they immediately turned their attention to a prone female, who was bleeding from a gunshot wound to her head. They could not do their job with the appellant hovering over her. He was in the way. He was quickly removed from the cramped room, with the most minimal use of force, if it could even be called that. This all happened within a matter of seconds.

[36] P.C. Parliament’s belief that he had detained the appellant is a factor that weighs in favour of finding that the appellant was detained, but only to a limited degree. The question of whether an individual is detained is a legal question for a court to determine. See R. v. Reid, 2019 ONCA 32, 370 C.C.C. (3d) 265, at para. 43 (Reid (2019)), in which this court endorsed the trial judge’s rejection of an officer’s subjective belief that he had detained the accused person.

[37] Consequently, the appellant was not physically detained when P.C. Parliament asked his question. The actions of the police were for the purpose of assisting a mortally injured victim, not for the purpose of exercising coercive authority over the appellant.

[38] The appellant was not psychologically detained. The questions posed to the appellant by P.C. Parliament did not transform this brief police-citizen encounter into a detention. He asked about the presence of other firearms in the apartment – a reasonable inquiry given that the police were responding to a gun call and there was already one gun and three magazines on the dining room table. Moreover, the officer’s question, “What happened?” was not aggressive, nor was it coercive. Indeed, it would have been strange had the officer not asked this question: Teng, at para. 130. As Boswell J. said in R. v. Johnson, 2017 ONSC 711, at para. 77: “… any reasonable person who summons emergency responders will anticipate being asked the obvious question: ‘what happened?’”.

[39] The fact that P.C. Parliament testified that the appellant (or anyone else who might have been in the apartment at the time) would not be free to leave is of little value in the analysis. As Fairburn J.A. (as she then was) said in Reid (2019), at para. 44, “[w]hat might have happened had events unfolded differently does not inform the legal character of what did happen.” The fact of the matter is that the appellant did not attempt to leave. He did not want to leave. He wished to stay and help Ms. Douangphachanh. Moreover, no one else was in the apartment. Consequently, this evidence was hypothetical and not instructive on the detention issue.

[40] I agree with the trial judge that there was no infringement of s. 10(b) of the Charter. In the circumstances, he did not conduct a s. 24(2) analysis in the alternative with respect to this evidence. I do not think it is necessary to do so on this appeal.

D. The Crown’s Closing and the Charge to the Jury

(1) Introduction

[41] The appellant submits that the trial was rendered unfair when the Crown performed a demonstration with the firearm during his closing address. This part of the Crown’s address was designed to show that the appellant’s account of how he handled the gun was untrue.

[42] In his written submissions, the appellant advanced a two-fold approach. First, the Crown improperly conveyed information to the jury that was not in evidence. Second, because the theory advanced during the demonstration was not put to the appellant in cross-examination, he was unfairly ambushed. He says that the trial judge’s instructions failed to remedy the situation.

[43] As it turned out, there was a brief passage in the evidence of a Crown witness (which may also have been implicit in the evidence of the firearms experts called by the Crown) that supported the Crown’s theory about how the gun worked when it was completely unloaded. This would appear to have been missed by all counsel at trial when the propriety of the closing address was raised with the trial judge. Nonetheless, the appellant maintains his position that the Crown ought to have confronted him with this evidence.

[44] The Crown submits that the cross-examination of the appellant made it abundantly clear that his evidence was being challenged in all respects, including the state of the gun when the appellant went into the bedroom.

(2) The Evidence and Proceedings at Trial

[45] This issue arose from the appellant’s evidence about what he was doing with the firearm before Ms. Douangphachanh was shot. Recall his utterance to P.C. Parliament: “I was cleaning my gun and it went off in her head.” However, subsequent investigation revealed that cleaning kits were found stored in the hall and bedroom closets, and not on the dining room table where the gun was left.

[46] The appellant’s version had shifted by the time of the trial. He was not cleaning his gun. As mentioned in para. 10, above, the appellant loaded his three over-capacity magazines and then “cycled” (i.e., ejected) the bullets through the gun. He said that it was his intention to clean his gun after he finished this process. In any event, he believed he had emptied the gun of live rounds when Ms. Douangphachanh called him into the bedroom.

[47] This ground of appeal turns on the more technical aspects of the operation of the appellant’s gun. At the risk of oversimplification, P.C. Robert Armstrong, testified that, when there is a magazine inside the handle of the gun and the gun is empty of ammunition, the slide mechanism at the top of the gun locks in the open position. It cannot be fired unless the slide is manually released. The appellant never described performing this manipulation of the gun.

[48] The Crown pursued this theme in his closing address, mentioning it on a number of occasions:

When the last cartridge is ejected and there’s a magazine in the chamber, it locks in this position. Mr. Ranhotra testified it was not in this position when he took it down into the bedroom. But he never described removing it from this position in any way.

Before this firearm can be fired, or you can do anything else with it, you have to manually release this slide. What Mr. Ranhotra told you he did with that gun that resulted in him going into the bedroom with a bullet still in that chamber cannot possibly be true.

Recall that you can’t pull the trigger to discharge the firearm with it locked in this position; that you’d have to manually release the slide and close it again before you could do any of those things and Mr. Ranhotra never told you once that he did anything, any of those things; not when his counsel took him systematically through each step of what he was doing and what he actually did that day and what he’d done many times before, nor in his description with me when I took him through that again about what he did that day.

The unavoidable conclusion is that what he did that day led to the accidental discharge in those circumstances can’t be true. [Emphasis added.]

[49] The appellant objected to the Crown’s address on the two bases mentioned in para. 42, above. The Crown told the trial judge that his approach was supported by the evidence of one of the firearms experts, Ms. Toni Brinck, who demonstrated how the firearm worked. This demonstration apparently showed the firearm being in the locked and open position once all of the rounds were cycled, although this was never explicitly stated on record. Defence counsel at trial did not dispute this fact.

[50] During this colloquy, nobody recalled the snippet from P.C. Armstrong’s evidence in which he addressed this issue. P.C. Armstrong testified in his capacity as a Forensic Identification Services Officer. He was not qualified as an expert witness concerning the operation of firearms, although there is little doubt that, as a police officer, his knowledge of firearms was superior to that of a layperson. His evidence supported the Crown’s theory.

[51] In his instructions to the jury, the trial judge addressed the issue in the following way:

Mr. Hogan, in his address to you, stated at the end of this process, the slide would be open upon the ejection of the last bullet and that the trigger would be locked, because he demonstrated, and that it was accordingly impossible for the accused to have done what he did. Whether it is possible, or not, is for you to determine, on the evidence, and I am sure that you understand that Mr. Hogan was merely making a submission, and not giving evidence, when he performed the demonstration.

I wish, however, to make it clear that the submission that the trigger would be locked because the slide should’ve been in an open position, if all of the bullets had been ejected, was not put to the accused, because he testified he did not look at the gun after doing his cycling process. It is obvious that the slide would have to have been in an open position, if all of the bullets had been ejected because, otherwise, the last bullet could not have been ejected.

However, no one testified that the trigger would be locked, and, accordingly, there is no evidence that the trigger would be locked. However, Miss Brinck testified that the gun could not be fired if the slide were open, and P.C. Sutherland testified that the gun would not, would need to be in a, in the position of a battery to be fired, or that the slide would need to be closed.

So, I just wanted to clarify certain things about the demonstration and the submission that Mr. Hogan made. My main point is that there was no specific evidence that, I’m aware of, that the trigger would be locked. What I am saying to you is that there is evidence that the gun cannot be fired if the slide is open. All right? [Emphasis added.]

[52] Defence counsel did not object to this instruction.

(3) Analysis

[53] I am not persuaded that there was any unfairness in the manner in which this issue developed at trial. The trial was not rendered unfair by the Crown’s failure to specifically confront the appellant with the locked and open theory. First of all, the jury had heard evidence on this very issue from P.C. Armstrong. As is standard in modern jury instructions, the trial judge told the jury that it was their recollection of the evidence that was most important, not that of counsel or the trial judge. Moreover, the appellant would have heard the evidence as well. He could have responded to it in his examination-in-chief, but he did not do so. The fact that this evidence may have been overlooked or forgotten is of no consequence on appeal, especially in the absence of an ineffective assistance of counsel claim. There was no suggestion on appeal that trial counsel was ineffective, nor could there have been in my view. The Crown missed it too.

[54] The appellant submits that, had he been confronted with this evidence, he could have provided a response or called further evidence to address the Crown’s contention. This submission is speculative. There is no indication on appeal how the case may have been approached differently. The appellant testified that he did not know why the gun – which the two firearms experts said was in good working order and not prone to malfunction – discharged in the bedroom. He was at a loss to explain why this happened. It is difficult to see how further evidence would have impacted on the appellant’s basic position that the gun discharged because he was extremely careless. Moreover, the appellant had multiple opportunities in-chief and in cross-examination to testify to whether the gun was in the locked open position. He was asked various questions about the condition of the firearm between the time he finished cycling it and when he shot Ms. Douangphachanh. He gave detailed answers. At no point did he mention whether the gun was locked open or speak to this function at all.

[55] Had there been any unfairness it was appropriately addressed by the trial judge’s instruction to the jury when he told them that the appellant did not have the opportunity to respond to the Crown’s closing argument. Trial judges are afforded considerable latitude in responding to apparent breaches of Brown v. Dunn (1893), 6 R. 67 (H.L.). One option is to provide a curative instruction. The adequacy of the instruction will depend on the circumstances of the case: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 117-124, leave to appeal refused, [2016] S.C.C.A. No. 203. The precise manner of responding is entitled to deference on appeal.

[56] The trial judge’s response to this issue was appropriate. I am not persuaded that the curative value of his instruction was undermined by his comment that it was “obvious” that the slide would be open if the gun was truly empty. Indeed, it did not need to be “obvious”; it had been proved. Moreover, there was no objection, signalling that the instruction had done its job as far as the defence was concerned.

[57] I would dismiss this ground of appeal.

E. The Instructions on Motive

[58] This ground of appeal, which was not pressed by the appellant in oral submissions, may be addressed briefly.

[59] In his closing address, the Crown reminded the jury of the evidence of the appellant’s controlling nature. He submitted that, at the time of the shooting, the appellant appeared to be losing control in a number of aspects of his life. Ms. Douangphachanh was going to leave him. The act of killing her was a means of gaining control over one aspect of his life.

[60] The trial judge accepted the defence submission that this purported motive was speculative and unsupported by the evidence. The trial judge instructed the jury as follows:

In the circumstances of this case, as a matter of law, I instruct you that there is no evidentiary basis to infer that motive of the accused to kill the deceased was to regain control. Motive must be very strictly defined in law. However, all of the factors enumerated by the Crown, including the past controlling behaviour of the accused, are factors which you may take into account, as I shall later instruct you, in assessing the state of mind of the accused on March the 8th. I reiterate that the Crown is not required to prove any motive as an essential element.

Motive is one of the many things you will consider in the context of all of the evidence in considering the guilty of the accused, although, as I have said, the presence, or absence of motive may be of assistance to you in your assessment of the issue of intent. [Emphasis added.]

[61] At the end of his instructions, when reviewing the positions of the Crown and the defence, the trial judge repeated the Crown’s theory on motive (i.e., the appellant’s assertion of control).

[62] The appellant submits that, overall, the trial judge’s instructions on motive were confusing. On the one hand, he instructed the jury that the Crown’s formulation of motive was speculative and could not be considered; on the other, the trial judge permitted the jury to consider other pieces of evidence (i.e., Ms. Douangphachanh’s diary entries and statements to various people) as it related to motive and intent. This may have led the jury to conflate these two issues. This error was compounded by the trial judge’s repetition of the Crown’s theory on motive at the end of his instructions.

[63] I agree with the trial judge’s conclusion that the Crown’s imputed motive had no support in the evidence. Indeed, the idea that the appellant was motivated by a need to re-assert control in one part of his life by killing his intimate partner while alone in their shared apartment was far-fetched. The trial judge was right to instruct the jury to disregard this submission: R. v. Ali, 2021 ONCA 362, 156 O.R. (3d) 81, at para. 113.

[64] Nonetheless, I agree with the Crown that, notwithstanding the trial judge’s rejection of the Crown’s theory on motive, this did not mean that any possible motive was off the table for the jury’s consideration. After all, a pillar of the appellant’s defence was that he had no motive to kill Douangphachanh.

[65] Ms. Douangphachanh’s diary entries and her statements to her friends were admissible and relevant to motive, and possibly intent. In R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, Watt J.A. said, at para. 51:

Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part of the accused. And evidence of a person’s animus or motive to unlawfully kill another may assist in proving the identity of the killer and the state of mind of that accompanied the killing. [Emphasis added.]

Depending on the circumstances, this type of evidence is admissible in intimate partner homicide cases: see, for example, R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.), at para. 30, leave to appeal refused, [2003] S.C.C.A. No. 199, R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 113, R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 71. In a pre-trial ruling, the trial judge concluded that this evidence admissible. This ruling is not challenged on appeal.

[66] It would have been preferrable had the Crown’s theory on motive not been adverted to again when the trial judge summarized the positions of the parties. However, no harm was occasioned. I am not persuaded that this brief passage from the charge – which was specifically attributed to the Crown – would have undermined the trial judge’s explicit instruction to disregard the impugned aspect of the Crown’s position on motive.

[67] I would dismiss this ground of appeal.

F. The Appeal Against Sentence

[68] The appellant appeals his sentence, relying solely on his written submissions.

[69] The trial judge sentenced the appellant to life imprisonment with no parole eligibility for 15 years. This was in light of the Crown’s submission for a period of parole ineligibility for 17 years, and defence counsel’s request for 13-14 years.

[70] The appellant’s main submission on appeal is that the trial judge erroneously relied on cases where the accused person’s firearm was possessed unlawfully. In this case, the appellant was licenced to acquire and possess the firearm and ammunition that was used to kill Ms. Douangphachanh.

[71] There are two problems with this submission. First, it was not made to the trial judge during submissions. Second, even if it could be said that legal possession of a firearm in these circumstances is somehow mitigating – a doubtful proposition – it is eclipsed by the illegal modifications the appellant made to the magazines to increase their capacity.

[72] In support of this submission, the appellant relies on R. v. Paredes, 2014 ONCA 910, 317 C.C.C. (3d) 415, in which this court reduced a period of parole ineligibility from 15 years to 12 years. The case involved a brazen shooting outside a bar that resulted in the death of an innocent bystander. In the course of his reasons, Doherty J.A. said, at para. 45:

There are however features of this case which distinguish it from the vast majority of crimes involving gun violence, particularly homicides. The appellant had licence for the gun and had purchased the gun lawfully, although his possession of the loaded gun in the bar was itself was a serious crime.

[73] I do not read this observed differentiation from the norm to signal that lawful ownership of a firearm mitigates the seriousness of the crime. It speaks more to the absence of an aggravating factor. The court in Paredes went on to note, “[m]ost significantly”, other mitigating factors overlooked by the sentencing judge, including the appellant’s personal circumstances and his potential for rehabilitation. The sentence was reduced for these reasons.

[74] More generally, the sentence imposed was not manifestly unfit or clearly unreasonable. Like other aspects of sentencing, setting parole eligibility periods when sentencing for second degree murder attracts deference on appeal: see R. v. Shropshire, [1995] 4 S.C.R. 227, at pp. 249-252.

[75] The trial judge considered all of the relevant aggravating and mitigating factors, including the fact that the appellant had no prior criminal record, was a hard worker, who had the support of his friends and family. However, there was little else that spoke in his favour. Although the appellant claimed to be remorseful, the trial judge found he was only remorseful for accidentally and negligently shooting Ms. Douangphachanh. He also found that his remorse was imbued with an element of self-pity in terms of the consequences he faced. The trial judge said that remorse could only be given “limited weight” in the circumstances (para. 34).

[76] The trial judge relied on the aggravating factors set out in s.718.2 (a) of the Criminal Code, R.S.C., 1985, c. C-46:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing, …

(ii) evidence that the offender in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relating to the victim, …

shall be deemed to be aggravating circumstances …

[77] This court has consistently treated the intentional murder of an intimate partner to be a significant aggravating factor, one that justifies an increase in the period of parole ineligibility: R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276 (15 years) and R. v. Wristen (1999), 47 O.R. (3d) 66, leave to appeal refused, [2000] S.C.C.A. No. 419 (17 years). In R. v. French, 2017 ONCA 460, Feldman J.A. said that the appropriate range is “up to 17 years in circumstances where there are no mitigating factors of remorse” (at para. 31). See also R. v. Tayongtong, 2021 ONCA 281, at para. 47, leave to appeal refused, [2021] S.C.C.A. No. 260. The trial judge relied on Wristen and French and concluded that the appropriate range “for brutal murders in a domestic context is one of 12 to 17 years of parole ineligibility”.

[78] The trial judge’s balancing of the relevant factors and his ultimate decision to impose 15 years is found in paras. 53 to 55 of his reasons:

In my view, the period of parole ineligibility should be at the higher end of the range for the following aggravating factors, subject to factors in mitigation:

a) the brutal nature of the violence inflicted upon his common law spouse; b) the unprovoked killing of his vulnerable common law spouse in her own home constitutes an egregious breach of trust; c) the use of the firearm at close range manifests an intention to kill which is at the highest level of moral blameworthiness for second degree murder; d) his preparations in loading the firearm exhibit elements of planning and deliberation; e) his attempt to cover up his crime by various means; f) his abusive and assaultive behavior toward the deceased; g) the harmful effects of the murder on the family of the deceased, and in particular her father, brother and aunt.

In mitigation, I include that he called 911 for assistance, his rehabilitative potential, and his expression of remorse for causing the death of the deceased.

While the factor of rehabilitation cannot be ignored, nevertheless, it is important to note that in respect of the offence of murder, and, in particular, with respect to brutal murders in the domestic context, the principles of denunciation and deterrence are paramount.

[79] I can discern no error in the trial judge’s analysis. The sentence imposed was entirely fit. It was only one year longer than the upper end of range submitted by defence counsel.

G. Conclusion

[80] I would dismiss the appeal from conviction. I would grant leave to appeal sentence, but dismiss that appeal.

Released: July 22, 2022 “G.T.T.” “G.T. Trotter J.A.” “I agree. B. Zarnett J.A.” “I agree. L. Favreau J.A.”

Footnotes:

[1] Cycling involves pulling the top slide portion of the firearm backwards (i.e., away from the muzzle) and then releasing it, causing the loaded cartridge to eject and the next cartridge to load.

[2] It was not disputed at trial that Ms. Douangphachanh was shot in the head. The bullet went through her head, through a closet door and came to rest in a dresser drawer.