COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ally, 2022 ONCA 558

DATE: 20220728

DOCKET: C64475

Simmons, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aaron Ally

Appellant

Marianne Salih, for the appellant

Joan Barrett and Elena Middelkamp, for the respondent

Heard: December 10, 2021

On appeal from the conviction entered by Regional Senior Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury, on August 25, 2016.

Simmons J.A.:

A. introduction

[1] The appellant appeals from his conviction for the first degree murder of Marceiline Newland.

[2] The appellant met Ms. Newland at a youth shelter in the late summer of 2012. They had a tumultuous on-again-off-again relationship for a few months that included many fights, some of which turned physical. On the morning of November 16, 2012, the appellant placed Ms. Newland in a choke hold, as a result of which she died.

[3] During a Mr. Big investigation, the appellant acknowledged killing Ms. Newland. He was subsequently charged with first degree murder.

[4] The Crown’s primary position at trial was that the appellant committed constructive first degree murder under s. 231(5)(e) of the Criminal Code, R.S.C., 1985, c. C-46, because he killed Ms. Newland intentionally while unlawfully confining her. As a secondary position, the Crown alleged that the murder was planned and deliberate, being the culmination of the appellant’s threats to kill Ms. Newland if she ever left him.

[5] The appellant testified at trial and admitted killing Ms. Newland. He did not dispute that he was guilty of manslaughter but maintained that he did not intend to kill her.

[6] According to the appellant, the two got into a struggle while lying in bed in a basement bedroom the deceased had recently rented for herself. She was refusing to wake up to go to a job-search program that he wanted her to attend. She told him to leave if he did not like it. As he tried to pull her close to him, she stood up on the bed and they both fell on the floor. He applied a choke hold to Ms. Newland to try and calm her down. When he loosened his grip, she broke free and tried to leave. He grabbed her, put her on the floor and re-applied the choke hold. Ms. Newland died as a result.

[7] Before leaving Ms. Newland’s room, the appellant scattered her medication on the floor and used her nail polish to paint “I MISS U” on her forearm. He later withdrew around $300 from her bank account. When subsequently interviewed by police, the appellant claimed Ms. Newland was alive when he last saw her, and he denied any involvement in her death.

[8] The appellant raises several issues on his conviction appeal. The primary issues are listed below.

[9] First, the appellant submits that the trial judge erred in leaving first degree murder with the jury as there was no air of reality to either Crown theory. The verdict of first degree murder was therefore unreasonable. The appellant submits that the trial judge also erred in the following respects:

i) by providing incorrect instructions to the jury on first degree murder committed in the course of an unlawful confinement (“unlawful confinement constructive first degree murder”);

ii) by failing to give a limiting instruction concerning the deceased’s prior consistent statements about death threats, which were the lynchpin of the Crown’s case on planning and deliberation; and

iii) by failing to grant the appellant’s Corbett[^1] application.

[10] Finally, the appellant submits that he received ineffective assistance from his trial counsel resulting in a miscarriage of justice.

[11] The Crown asks that the appeal be dismissed, or, in the alternative, in the event this court finds any material error relating to the conviction for first degree murder that cannot be saved under s. 686(1)(b)(iii) of the Criminal Code, that this court substitute a verdict of second degree murder.

[12] I would accept the appellant’s submission that there was no air of reality to the Crown’s theory of planned and deliberate first degree murder. However, I conclude that there was an air of reality to unlawful confinement constructive first degree murder. The verdict of first degree murder is not therefore unreasonable. However, as it is impossible to know which theory individual jurors may have accepted, a remedy in relation to the first degree murder verdict is required.

[13] The appellant abandoned many aspects of his ineffective assistance claim in oral argument on the appeal. However, I would give effect to one aspect of the appellant’s remaining claims of ineffective assistance of trial counsel (trial counsel’s decision to call Dr. Gojer, a psychiatrist, as a defence witness). As the finding of ineffective assistance of counsel impacts the jury’s findings concerning intent to commit murder, I would reject the Crown’s request for a substituted verdict of second degree murder and order a new trial on the charge of first degree murder. In the circumstances, it is unnecessary that I address any of the appellant’s other remaining claims of ineffective assistance.

[14] Although I will discuss the parties’ submissions concerning the trial judge’s jury instructions on unlawful confinement constructive first degree murder, in light of the foregoing conclusions it is unnecessary that I reach a final conclusion concerning whether, read as a whole, they were adequate.

[15] I would not give effect to the remaining grounds of appeal.

B. Background

(1) The appellant’s background and relationship with the deceased

[16] The appellant was 22 years of age in November 2012 at the time of Ms. Newland’s death. In 2011, while serving a sentence for break and enter and assault causing bodily harm, he was diagnosed with schizophrenia, paranoid type; anti-social personality disorder; alcohol abuse; and cannabis dependency.

[17] During the latter part of 2012, the appellant was unemployed and sleeping regularly at a youth shelter called Eva’s Place.

[18] The appellant and the deceased met at Eva’s Place in late August or early September 2012. The two began a relationship about a week later. Ms. Newland was also unemployed and sleeping regularly at the shelter at the time.

(2) Evidence of the nature of the relationship between the appellant and the deceased

[19] Text messages and the testimony of witnesses demonstrated that the couple’s relationship was volatile and marred with difficulty. The two fought constantly, sometimes physically, and would often break up but then resume their relationship soon after, sometimes even on the same day. Both were ejected from Eva’s Place around October 22, 2012,[^2] the deceased for six months, the appellant for several days, as a result of an incident during which the deceased attacked the appellant.

[20] After being discharged from Eva’s place, the deceased began staying at motels, which the appellant rented for her. On October 24, 2012, the couple got into a dispute after leaving a motel. The appellant pushed the deceased into a bus shelter. Witnesses called police. The appellant was arrested, detained for a week, and then released on bail with a condition that he have no contact with the deceased.

[21] A week or two before her death, the deceased and the appellant got into an argument at a Super 8 Motel. They fought about the deceased not wanting to go to church. The appellant demanded that the deceased leave the room and began slapping her face with a bible. The deceased’s cousin, Adriana Townsend, testified she received a phone call from the deceased at about 8 a.m. while the incident was ongoing. She could hear the appellant yelling and heard him say, “I will kill you if you leave.” Later the same day, Ms. Townsend received three photos of the deceased’s face, showing a swollen lip and a black eye.

(3) Evidence of ante mortem statements by the deceased about the appellant’s threats

[22] Another cousin of the deceased, Cesar Banton, testified that on the day of the Super 8 Motel incident, he received texts from the deceased saying:

He’s hitten me / Plz / Come / Ge / Mee / He’s gun kill meA if yu dony hurry iswear

Mr. Banton arranged for the deceased’s family to pick her up later that day.

[23] Two other witnesses gave evidence of ante mortem statements made by the deceased about the appellant threatening her.

[24] The deceased’s sister, Nordette Frey, testified the deceased told her that whenever they fought the appellant would tell the deceased that “if she ever tried to leave him that he would kill her.”

[25] Steven Wilson, the deceased’s social worker, testified that on November 5, 2012 the deceased told him that during a recent fight the appellant threatened to kill her and himself if she left him.

(4) Events leading up to the killing

[26] There was evidence at trial that the appellant and the deceased had made plans to obtain an apartment together. Both would need to find jobs to enable them to do so. However, on November 11, 2012, with the assistance of Hassan Muddey, the deceased obtained temporary accommodation in a basement bedroom of a house in Brampton. The appellant suspected that the deceased was sleeping with Mr. Muddey. The deceased texted the appellant about obtaining a room for two months on November 11, 2012. Around the same time, the appellant also learned that the deceased had secured community housing for herself by relying on allegations that she was in an abusive relationship with him.

(5) The evidence about the events of November 15-16, 2012

(a) The appellant’s Mr. Big statement

[27] During the Mr. Big investigation, the appellant gave the following account of the events leading to the killing:

• he went over to the deceased’s place, they “showered … smoked a little, ate a little, [l]istened to some music and went to sleep”;

• the next morning, he woke up and tried talking to her but “she gave [him] the real rude rudy”;

• he had put a lot into the relationship but there was a lack of feedback from her – he tried to meet her halfway, “she could have [him] jumping through hoops”;

• all of that “clicked in [his] head” – he “grabbed her up and then … took her breath for trying to take [his]”.

[28] The appellant described the physical interaction as follows: he grabbed the deceased “and then she rolled up on me and then she stood up and we both fell. She was trying to knock on the wall” or a dresser. He ended up with his right leg between her legs. He “just choked her … strangled her.”

(b) The appellant’s evidence at trial

[29] At trial, the appellant testified that the deceased attended his bail hearing with respect to the October 24, 2012 incident and assisted him in getting out of jail. After he was released on October 31, 2012, their relationship and plans were up and down. About a week after his release, he did not know where she was staying but they continued to see each other at programs. As noted, on November 11, 2012, the deceased texted the appellant and informed him she had rented a room for two months. Around the same time, the appellant learned the deceased had obtained community housing for herself.

[30] On November 15, 2012, the appellant and the deceased met at a resource centre in Toronto where she was participating in a six-week job-search program. He hoped to begin the program after she finished it. The deceased asked him to come back to her room in Brampton. This was the first time the appellant learned where the room was. They took the bus, picked up some food, showered together, ate their food, watched videos and talked. They smoked two or three joints and went to bed around 11:30 p.m. or midnight.

[31] The appellant woke up early[^3] on the morning of November 16, 2012. He tried to wake up the deceased so she could go to her program, but she told him to leave her alone. She was not going to the program that day.

[32] The appellant testified that he wanted the deceased to go to the program because he still wanted to get a place and get away from the life he was stuck in. In cross-examination, he agreed that the deceased’s attendance at the program was essential to them getting an apartment together.

[33] The deceased was lying in bed facing the wall when the appellant tried to wake her up. The appellant put his hands on both sides of her head and attempted to turn her over and pull her toward him to console her. He tried to persuade her to go to the program and asked why she was treating him badly. The deceased told the appellant if he “did not like it he could leave … the door’s right there.” She pushed him away aggressively and stood up on the bed. The appellant was surprised and angry when she did so. He maintained his grip on her as she got up, which pulled him up too. Both fell to the floor.

[34] The appellant rolled over as the two of them fell and ended up behind the deceased, holding her in a choke hold position. The deceased was flailing and kicking. The appellant saw her knock at the wall or a dresser. The appellant told her to chill. He loosened his grip when he felt her slow down. The deceased stood up quickly and moved towards the door.

[35] The appellant lost hold of the deceased briefly when she stood up. But then he “snapped”. He explained it was a reaction. He thought she might grab something or call a neighbour. In cross-examination, he did not dispute that she could have alerted her neighbour downstairs, the people upstairs or the police. He followed behind the deceased, taking about a step and a half. He then grabbed the deceased around the neck with two hands and threw her to the ground. He ended up with his right knee between the deceased’s legs, his left leg outside her legs and his forearm on her throat in a choke hold. The appellant let go when the deceased “gave way” or gave the appearance of being unconscious.

[36] The appellant “guesstimated” that the time from him grabbing the deceased around the neck to when she gave way took anywhere from five to eight seconds.[^4] About a minute went by and then the deceased gasped three different times.

[37] The appellant testified he thought the deceased would get up, but two minutes went by, and nothing happened. He then wrote on her arm and scattered her pills around to make it look like a suicide.

(c) The defence psychiatric evidence

[38] After the Crown closed its case, defence counsel at trial (“trial counsel”) obtained a ruling from the trial judge permitting him to adduce the evidence of three psychiatrists: Dr. Messina, Dr. Srinivasan, and Dr. Gojer.

[39] Doctors Messina and Srinivasan had both treated the appellant, Dr. Messina in 2011, and Dr. Srinivasan from June to December 2012. Both testified they had diagnosed the appellant as suffering from schizophrenia and both described some of the symptoms they had observed.

[40] Dr. Gojer never treated the appellant but was retained by trial counsel to conduct a psychiatric assessment of the appellant shortly before trial. Dr. Gojer testified that the appellant continued to suffer from schizophrenia at the time of trial. However, Dr. Gojer was unable to conclude that the appellant’s illness was responsible for his actions or impacted his ability to form the requisite intent for murder. During cross-examination, Dr. Gojer confirmed that, when asked if he wanted to kill the deceased, the appellant said he must have, but then vacillated and said he did not know.

C. Analysis

[41] I will begin with the issue whether there was an air of reality to the Crown’s theory of a planned and deliberate first degree murder, then turn to the issues relating to unlawful confinement constructive first degree murder under s. 231(5)(e) of the Criminal Code, and finally to the remaining issues on appeal, including the claim of ineffective assistance of trial counsel.

(1) Planned and deliberate first degree murder

(a) General Principles

[42] Section 231(2) of the Criminal Code elevates murder to first degree murder “when it is planned and deliberate”.

[43] It is undisputed that the trial judge correctly instructed the jury concerning the meaning of “planned and deliberate”. His instructions included the following components:

• to establish first degree murder, the Crown must prove that the murder was both planned and deliberate;

• it is the murder itself that must be both planned and deliberate, not something else that an accused did or said;

• the words “planned” and “deliberate” mean different things;

• “planned” means a calculated scheme or design that has been carefully thought out and the consequences of which have been considered;

• a plan can be simple and easy to set up;

• one person may prepare a plan and carry it out immediately, another person may prepare a plan and wait a while, even quite a while, to carry it out;

• a planned murder is one that is committed as a result of a scheme or plan that has been previously formulated or designed and is the implementation of that scheme or design;

• a murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a planned murder;

• “deliberate” means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, or “cautious”;

• a deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of;

• deliberation must take place before the act of murder starts;

• a murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a deliberate murder.

See, for example: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed., (Toronto, Carswell, 2015), at p. 691 (Final 231-A); R. v. Campbell, 2020 ONCA 221, 149 O.R. (3d) 675, at para. 33, leave to appeal refused, [2021] S.C.C.A. No. 100; R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at paras. 37, 40.

(b) The Crown’s position at trial

[44] The trial Crown began his closing remarks to the jury by submitting there was “an overwhelming body of evidence … lead[ing] to the inescapable conclusion that … [the appellant] engaged in a planned and deliberate intentional killing.” However, later in his closing, when he came specifically to the issue of planning and deliberation, the trial Crown conceded that the theory of planning and deliberation was “a little bit more nuanced” and “a little bit more difficult to understand” than the theory of murder while committing an unlawful confinement.

[45] In essence, the Crown’s theory of planning and deliberation rested on evidence relating to three matters: i) the appellant’s prior threats to kill the deceased; ii) animus, premised on the deceased’s conduct towards the appellant; and iii) motive, premised on the theory that the appellant became aware that his relationship with the deceased was coming to an end.

[46] As set out in closing submissions to the jury, the Crown’s position was that the appellant had a “conditional plan” to kill the deceased if she left him. According to the Crown, the threat overheard by Ms. Townsend and the ante mortem statements of the deceased to her sister and her social worker concerning the appellant’s threats to kill her demonstrated this plan. The appellant subsequently implemented his plan as a result of three circumstances.

[47] First, having been invited to the place Mr. Muddey helped the deceased get, and knowing she had been approved for community housing for herself alone, the appellant was aware that his only chance to live with her was if she went to the job-search program and they both got jobs and the money to get their own place.

[48] Second, on the morning of November 16, 2012, the deceased told the appellant she was not going to go to the job-search program.

[49] Third, when the appellant persisted in trying to wake the deceased up, she told him he could leave, leading him to conclude the relationship and his hopes of getting a place together were over. The appellant was hurt and angry about the deceased’s refusal to do the one thing he hoped could help him to get to a better place and about all the ups-and-downs the deceased had caused in the relationship. He therefore implemented his pre-existing plan to kill her if she left him.

[50] The trial Crown put it this way in his closing address:

[The appellant] told [the deceased] that if she left him, he would kill her… Well, you say, that’s not much of a plan… In this case it was a conditional plan as in if she didn’t do the prohibited act, he would not kill her. So that takes us to 16th of November… What were the circumstances that prevailed at that time?

He gets to a place where it’s a residence that Mr. Muddey, the man he believes is having an affair with his girlfriend, he gets to a place where she is right now. Mr. Muddey got her that place. He knows that [the deceased] has been approved for single housing, not with him in fact. … So the only chance he had to live with her was if she did this work program…

She told him she wasn’t going to do that. She wanted to sleep. That’s why he lost it. That’s why he got so angry. And I say, well, that’s not leaving him. Well, you’ve heard … the back-and-forth of the relationship, “I don’t want to see you anymore, now I want to see you again”, there’s no dispute about that.…

But there’s something different about that moment, something crucial to the relationship has changed. The last thing she could do to allow [the appellant] to get what he wanted, she is refusing to do, coupled with her saying, “get out”.[^5] He thought about this contingency, what if this contingency came to life, he acted just as he said he would. He killed her.

(c) Discussion

[51] At trial, the appellant did not object to planning and deliberation being left with the jury as a route to liability for first degree murder. Nonetheless, it is an error of law to put a theory of liability to the jury that does not have an air of reality. A theory of liability will have an air of reality only if a properly instructed jury, acting reasonably, could convict based on that theory: R. v. Figliola, 2018 ONCA 578, 141 O.R. (3d) 662, at paras. 28-29; R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 141, leave to appeal refused, [2010] S.C.C.A. No. 460, [2011] S.C.C.A. No. 119.

[52] Here, the trial judge expressed concern in the pre-charge conference with the Crown’s theory of liability premised on planning and deliberation.[^6] However, in the absence of an objection by the appellant and, at the Crown’s request, he left planning and deliberation as a route to first degree murder with the jury.

[53] Although the trial judge left planned and deliberate first degree murder with the jury, in his jury charge, he instructed the jury that there was no direct evidence that the appellant “had formulated a plan to kill [the deceased] when he went to her bedroom that night, or during their dinner, shower, or when they woke up.” He also instructed the jury that there was no direct evidence that the appellant “deliberated over any such plan to kill [the deceased].”

[54] I accept that, in most cases, evidence of both planning and deliberation will be circumstantial rather than direct: Robinson, at para. 36.

[55] Undoubtedly, the appellant’s admission of his anger at the deceased on November 16, 2012 over the way she was treating him that morning, and how she had treated him during their relationship, showed the appellant harboured a level of animus toward the deceased.

[56] Nonetheless, I am skeptical that the evidence of the appellant’s prior threats to kill, even in combination with the evidence of animus, is capable of supporting a finding that the appellant had made even a “conditional plan” to kill the deceased if their relationship ended. There was no evidence of the appellant considering, let alone formulating, the steps he would take to achieve that end.

[57] However, it is unnecessary for me to finally determine that issue. Even assuming there was evidence capable of supporting a finding that the murder was planned, there was no evidence of deliberation. That is, there was no evidence capable of supporting a conclusion that, upon being informed of the deceased’s refusal to attend the job-search program and her advice that he could leave if he did not like it, the appellant took the time to deliberate –- i.e., to recognize that the condition on which his “plan” was premised had come to fruition and to weigh the pros and cons of implementing his alleged plan.

[58] I acknowledge that a plan to commit murder need not be complicated and that both planning and deliberation can occur quickly as a precursor to murder. However, it is also important to recall that courts should be cautious before holding that an inference of planning and deliberation is available based on evidence supporting an inference of intent to kill. In Robinson, at paras. 37 and 40, this court cautioned against such reasoning:

A lay jury, unaccustomed to the sometimes subtle distinctions drawn in the criminal law among various culpable mental states, might move quickly from a finding that the appellant [formed an intent to kill], to a finding that the appellant had planned to [kill]. Looking at the evidence "through the lens of judicial experience", an appeal court must have regard to the real risk that evidence demonstrating the intention to commit murder … could be improperly treated by a jury as equally cogent evidence of planning, if not deliberation.

A finding that the appellant decided seconds or a few minutes before inflicting the harm, to intentionally inflict bodily harm knowing that death was likely to ensue, is not the same as concluding that the appellant planned and deliberated upon the attack before commencing that attack. To borrow the language of the case law, there has to be evidence from which a jury could reasonably infer that the appellant’s attack on [the deceased] was the product “of a calculated scheme”, arrived at after weighing “the nature and consequences” of that scheme. In addition to evidence of planning, there had to be evidence that having made the plan, the appellant “deliberated”, that is weighed the pros and cons of putting the plan into action. [Emphasis added.]

[59] In Robinson, this court assessed the evidence relevant to planning and deliberation and concluded, at para. 41, that “several features of the evidence indicate that a reasonable jury could not have been satisfied beyond a reasonable doubt that the killing was planned and deliberate.”

[60] In this case, the Crown’s theory of deliberation and implementing a pre‑existing plan was premised to a large extent on the appellant’s evidence about what happened on the morning of November 16, 2012. On the appellant’s evidence, the deceased stood up suddenly when he attempted to pull her close to him. The ensuing struggle escalated quickly. The suggestion that the appellant considered and then implemented a pre‑existing plan to kill the deceased when she told him he could leave was not put to him squarely in cross-examination. Thus the Crown did not give him a real opportunity to comment on its theory and we do not have his evidence on the point. As I read the cross-examination, the closest the trial Crown came to making this suggestion was in the following exchange:

Q. The reason you didn't think she was going to survive, sir, is because you had set out to ensure she did not survive. She had disrespected you. She made you angry. She made you hate her. She gave you the ultimate disappointment - you weren't going to move in together. And you took this opportunity to make her pay for it. Is that not what happened on that day, sir?

A. I do not agree, sir.

Q. No. Your recollection is it just happened. It just happened, right sir?

A. Yes, sir.

Q. It just happened that this adult woman saying she doesn't want to wake up, ends up on the ground, with your forearm on her neck. It just happened, right?

A. Yes sir, a loss.

Q. It just happened that when you finally release her and she moves towards the door, you pull her back and you finish her off. That just happened, right sir?

A. No matter how you word it, yes sir, that is what I mean. It just happened and that was a reaction. To everything sir, like you said, yes sir it was a reaction. After everything done, everything that was happening at that current moment, yes sir, it was a reaction but it just happened.

Q. It happened when you realized that all your plans had fallen apart, right sir? And you reacted then, is that right?

A. It's not like I was meditating on my plans, sir. My goal was to get her to the program which would have helped us financially. You know, we're together. We help each other.

Q. She wasn’t going to be good at the program if she wasn’t living, right sir? That wasn’t your goal.

A. Either [way] you phrase it, sir. I’ll still answer your question and it’ll be to the same effect.

[61] The Crown’s suggestions and the appellant’s answers certainly went to the issue of whether the appellant formed the intention to kill the deceased. However, on the appellant’s version of the events, I see no basis for a finding that, as the trial Crown put it in his closing, “[the appellant] thought about this contingency [of the relationship being over (or of his plan for shared accommodation being at an end)](emphasis added)” and, as a result, deliberated over and implemented a pre‑existing plan to kill the deceased if the contingency came to pass. Rather, the totality of the appellant’s evidence supports an impulsive, albeit angry, response to a quickly evolving situation. Even assuming the totality of the evidence supported a finding of a pre-existing plan, there was no evidence capable of supporting a finding of deliberation.

[62] It was, of course, open to the jury to reject some or all of the appellant’s evidence. However, to the extent that the jury may have rejected some portion of his evidence, in my view, at least in relation to deliberation, they would have been left in an evidentiary vacuum.

[63] On appeal, the Crown relies on R. v. Morin, 2021 ONCA 307, as supporting its position that immediate implementation of a “conditional plan” to kill can support a finding of planned and deliberate first degree murder.

[64] I disagree. In Morin, it was the Crown’s position that the appellant planned to kill a former female business partner who he knew was at a particular residence as well as the victim homeowner, if the homeowner “got in the way”. The appellant took latex gloves and an X-Acto knife to the residence. As events unfolded, the appellant tried to get the former business partner to come to the front door of the residence, but the victim homeowner answered the door instead. The two struggled briefly, the appellant slashed the homeowner’s throat with the X-Acto knife, and then fled after spotting both the former business partner and another person in the home. This court upheld the appellant’s conviction for first degree murder.

[65] I do not find Morin to be of any assistance in this case. The issues on appeal in Morin relating to planning and deliberation were nuanced and related to the manner in which the trial judge answered the jury’s questions and counsel’s understanding of the questions both at trial and on appeal. This court rejected the appellant’s submission on appeal that the jury’s questions related to whether the appellant could have planned and deliberated murder as he stood on the homeowner’s doorstep. That theory was not put to the jury.

[66] Moreover, Morin is distinguishable on its facts. The existence of an actual plan to kill the former business partner and deliberation over that plan was supported by the evidence concerning the latex gloves and the X-Acto knife. Here, there was no evidence of planning and deliberating the killing of another person, a factor that may well have mitigated the need for additional evidence of deliberation in relation to the conditional plan to kill in Morin.

[67] Assuming the evidence of animus and threats to kill in this case supported a finding of a plan to kill, as I have said, there was no evidence capable of supporting a finding of deliberation.

[68] In response to the appellant’s submission that his after-the-fact attempts at a cover-up reflects a panicked state, the Crown in this case submits that the appellant’s conduct is more consistent with an intentional killing rather than an accidental death. Even assuming that is the case, I am not persuaded such conduct supports a finding of planned and deliberate murder.

[69] For the reasons I have explained, I would accept the appellant’s submission that the trial judge erred in leaving planned and deliberate first degree murder with the jury.

(2) Unlawful Confinement Constructive First Degree Murder: s. 231(5)(e) of the Criminal Code

(a) Relevant Statutory Provisions

[70] If it is established that an accused is guilty of murder, ss. 231(2)-(6.2) of the Criminal Code classify certain murders as first degree murders for the purposes of sentencing.

[71] Section 231(5)(e) provides:

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement).[^7] [Emphasis added.]

[72] Section 279(2) states, in part:

(2) Every one who, without lawful authority, confines … another person is guilty of:

(a) an indictable offence[.]

(b) General Principles

[73] The general principles relating to unlawful confinement constructive first degree murder have been reviewed in many recent decisions of both this court and the Supreme Court of Canada. For example, see R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195; R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at paras. 17 and 64; R. v. Sundman, 2022 SCC 31; R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41; R. v. White, 2014 ONCA 64, 305 C.C.C. (3d) 449; R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641.

[74] It is well-established that, for an accused to be convicted of constructive first degree murder, the following elements as set out in R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, and reiterated in Magoon, at para. 17, and in Sundman, at para. 29, must be satisfied:

1. the accused is guilty of the underlying crime of domination (in this case, unlawful confinement) or of attempting to commit that crime contrary to s. 279(2) of the Criminal Code;

2. the accused is guilty of the murder of the victim;

3. the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;

4. there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and

5. the crimes of domination (here, unlawful confinement) and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events.

[75] In Parris, at para. 45, Watt J.A. summarized the essential elements of constructive first degree murder under s. 231(5)(e) as follows:

1. predicate offence;

2. murder;

3. substantial cause;

4. no intervening act; and

5. same transaction.

[76] Concerning the predicate offence requirement, Watt J.A. noted, at para. 46 of Parris, that it can involve either the offence of unlawful confinement or the preliminary crime of attempted unlawful confinement. With respect to unlawful confinement, he said:

Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711 (S.C.C.), at p. 723. The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined: R. v. Pritchard[citation omitted], at para. 24.

[77] At para. 64 of Magoon, and para. 21 of Sundman, the Supreme Court noted that to establish unlawful confinement under s. 279(2), the Crown must prove that: 1) the accused confined the victim, and 2) the confinement was unlawful.

[78] In addition, although unlawful confinement is a continuing offence, it is an offence that is complete when the victim is restrained against his or her will: Parris, at para. 47. The purpose of the confinement is irrelevant: Sundman, at para. 21. See also: R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), at para. 107, leave to appeal refused, [2002] S.C.C.A. No. 29. The restraint can be through violence, fear, intimidation or psychological or other means: Sundman, at para. 21.

[79] Concerning the “same transaction” requirement, at paras. 31 to 39 of Sundman, the Supreme Court of Canada explained that two approaches have been used interchangeably in the court’s jurisprudence to address this requirement, a close “temporal and causal” connection approach and a “single transaction” approach. However, ultimately, whichever approach is applied, they involve the same inquiry and will result in the same conclusion:

When a single transaction is found, there will necessarily be a temporal-causal connection. Likewise, when a temporal-causal connection is found, there will necessarily be a single transaction: Sundman, at para. 39.

[80] At para. 40 of Sundman, the Supreme Court of Canada, also confirmed the requirement for “distinct criminal acts”:

Finally, this Court has ruled that the underlying offence of domination and the killing must involve two distinct criminal acts (Pritchard, at para. 27, citing Kimberley, at para. 108, per Doherty J.A.; Magoon, at para. 74; see also Manning and Sankoff, at pp. 961-62). The underlying offence cannot be “consumed in the very act of killing”; in other words, the underlying offence and the killing must not be one and the same (Pritchard, at para. 27). If there is only one criminal act, it cannot be said that the offender exploited the domination inherent in the underlying offence with the act of killing (para. 29). In such cases, the heightened moral blameworthiness required for first degree murder is absent.

(c) Did the trial judge err in leaving unlawful confinement constructive first degree murder with the jury?

(i) The Crown’s position at trial

[81] The Crown’s position at trial was that the appellant began unlawfully confining the deceased when he held on to her as she stood up on the bed and the two fell to the floor. The unlawful confinement continued as the appellant placed the deceased into a sleeper hold as she struggled on the floor and then grabbed her after she broke free, threw her to floor and ultimately strangled her.

[82] In his closing address to the jury, the trial Crown said:

The only remaining part of this case to discuss with you is why does the Crown say this is first degree murder. The main reason … is because to facilitate his crime, he confined [the deceased]…. What [the appellant] suggests to you is [the deceased] is asleep, sound asleep in her own bed in her own apartment…. He wakes her, she resists waking up. What does he immediately do? He presses the point. …he’s assuming some level of control. That’s low end at this point… She brushes his hand away…. He places a grip on her and starts to pull her…. She attempts to break his grip by standing… He tightens his grip because when she tries to get up, they both end up on the ground. So she can’t even get out of bed ‘cause he won’t let her. He’s exercising control of her movement. That’s the beginning of the confinement. He’s using that confinement to control her movement to facilitate his ultimate act.

Now, matters continue. They’re on the ground and he begins to choke her. She goes limp. He releases his grip and she gets up, starts to move towards the door. She’s trying to escape. Had she escaped, she would be alive. She was unable to escape because [the appellant] wouldn’t let her. He told you, didn’t want her to alert the neighbour, the people upstairs, the police. Had she made it to that door to safety, she would be alive. [The appellant] would not allow that. He confined her. He used that confinement to bring her back, throw her on the ground, use both hands,[^8] then his forearm, and killed her. That is confinement. The evidence of that confinement is overwhelming. There is no different interpretation to place to this evidence. [Emphasis added.]

(ii) Discussion

[83] The appellant submits that there was no air of reality to this theory of liability for first degree murder for two reasons.

[84] First, any unlawful confinement of the deceased was not for a “significant period of time”, which the appellant asserts is an essential element of the offence of unlawful confinement under s. 279(2).

[85] Second, even if unlawful confinement was made out, s. 231(5)(e) was not engaged because any unlawful confinement that occurred was not a distinct criminal act from the murder, which is essential to a finding of first degree murder under s. 231(5)(e) of the Criminal Code: R. v. Pritchard, at paras. 27 – 29; R. v. Parris, at para. 53; R. v. Kimberley, at para. 108.

[86] I will address each argument in turn.

1. Significant period of time

a. The appellant’s position

[87] Although the appellant submits that the jurisprudence in general supports his argument that confinement or restraint for a “significant period of time” is an essential element of the offence of unlawful confinement under s. 279(2) of the Criminal Code, he relies, in particular, on three decisions in support of his position: R. v. Pritchard; R. v. Palmer-Coke, 2019 ONCA 106, 373 C.C.C. (3d) 218, leave to appeal refused, [2019] S.C.C.A. No. 100; and R. v. McIlmoyle, 2015 ONCA 505. All three decisions refer to “significant period of time” in their description of what constitutes a confinement.

[88] The appellant points to the following statement of Binnie J. at para. 24 of R. v. Pritchard as establishing that “significant period of time” is an essential element of the offence of unlawful confinement under s. 279(2) of the Criminal Code:

The authorities establish that if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2): see Luxton, at p. 723; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), per Cory J.A., at p. 475; R. v. Tremblay (1997), 1997 CanLII 10526 (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.), per LeBel J.A. (as he then was), at pp. 91-92; and R. v. Mullings, 2005 CarswellOnt 3022 (S.C.J.), per Durno J., at para. 39.

[89] Second, the appellant relies on R. v. Palmer-Coke in which this court upheld a conviction for sexual assault causing bodily harm but overturned a conviction for unlawful confinement because there was no finding that any confinement had occurred for a “significant period of time”. In Palmer-Coke, there was evidence that the complainant tried to escape her attacker but that he pulled her back into a hotel room by the hair and punched her in the face causing her to fall on the floor. In convicting the attacker of unlawful confinement, the trial judge said: “He prevented her from leaving the room, grabbed her by the hair, pulled her back … and made efforts to restrict her liberty”: Palmer-Coke, at para. 28.

[90] This court cited para. 24 of Pritchard as setting out the constituent elements of unlawful confinement and stated, at para. 31:

[T]he element of restraint that resulted from the appellant grabbing the complainant by the hair was momentary in nature. It was not for “any significant period of time” nor does the trial judge make any such finding. The conviction for unlawful confinement, therefore, cannot stand.

[91] This court went on to hold that, even if the restraint did involve a significant period of time, as the attacker’s grabbing of the complainant’s hair was an integral part of the continuing sexual assault, a conviction should not have been entered for unlawful confinement based on Kienapple[^9] principles.

[92] Third, the appellant relies on the following statement at para. 10 of this court’s decision in R. v. McIlmoyle:

It is worth reminding that that the offence of unlawful confinement, said to be the vitiating element here, requires that the confinement be for a significant period of time. [Emphasis added; citations omitted.]

[93] The appellant submits that, on the facts of this case, the physical interaction between him and the deceased arose suddenly, was over within seconds and consisted of one continuous assault, which included an effort to gain physical control over the deceased and culminated in her strangulation. As such, the duration of any confinement of the deceased by the appellant was momentary and could not meet the “significant period of time” element of the offence.

[94] To hold otherwise, says the appellant, would mean that virtually any killing involving physical acts rather than a weapon would amount to first degree murder.

b. Discussion

[95] I would not accept this submission for two reasons.

[96] First, I am skeptical that “significant period of time” is a distinct essential element of the offence of unlawful confinement under s. 279(2) of the Criminal Code connoting some minimum temporal component. Rather, I view it as one aspect of a description often used to explain the confinement element of the actus reus of unlawful confinement.

[97] As noted above, in both Magoon and Sundman, the Supreme Court stated that to establish unlawful confinement under s. 279(2), the Crown must show that: 1) the accused confined the victim, and 2) the confinement was unlawful: Magoon, at para. 64; Sundman, at para. 21.

[98] As has been done in many other cases, at para. 64 of Magoon the Supreme Court quoted the “significant period of time” language from para. 24 of Pritchard as one of its explanations of the meaning of the “confinement” or “confined” element of the offence:

[U]nlawful confinement occurs if “for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire”[.]

[99] The Supreme Court repeated this language at para. 21 of Sundman, its most recent decision addressing unlawful confinement constructive first degree murder.

[100] However, “significant period of time” is not the only terminology that has been used in describing the confinement element. The Magoon court went on in para. 64 to quote other explanations of the concept. For example, the court quoted from R. v. Bottineau, [2006] O.J. No 1864 (S.C.J.), aff’d 2011 ONCA 194, leave to appeal refused, [2012] 1 S.C.R. vi, where Watt J. (as he then was) stated that “unlawful confinement … consists of restricting the victim’s liberty, but not his or her ability to escape … The restriction need not be to a particular place or involve total physical restraint” (emphasis in original and repeated by the court in Magoon).

[101] Moreover, other descriptors, similar to “significant period of time” have been approved by this court, including “some appreciable time” (Kimberley, at para. 112) and “some period of time” (Parris, at paras. 59 and 60).

[102] Notably, in R. v. Mullings, 2005 CarswellOnt 3022 (S.C.J.), one of the decisions cited at para. 24 of Pritchard as authority for the “any significant period of time” reference, Durno J. stated that there was overwhelming support for the conclusion that “the unlawful confinement must be for a significant period of time, albeit not a substantial period of time”: Mullings, at para. 39 (emphasis added), citing R. v. Gratton; R. v. Patterson (2003), 2003 CanLII 30300 (ON CA), 64 O.R. (3d) 275 (C.A.); R. v. Hill, [2004] O.J. No. 604 (C.A.); R. v. Bisson, [2004] O.J. No. 59 (C.A.); R. v. Tremblay (1997), 1997 CanLII 10526 (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.).

[103] Significantly, at para. 40 of Mullings, Durno J. also said, “how long is ‘significant’ cannot be determined by drawing a line in the sand.” In that regard, he noted that, in R. v. Frank, [2000] M.J. No. 528 (C.A.), the Manitoba Court of Appeal held there was “no necessity that there be evidence of a sustained confinement over an extended period of time. Rather, confinement for any period of time is unlawful confinement.”

[104] I acknowledge that in Palmer-Coke and McIlmoyle this court seemed to rely on the absence of a sufficient temporal component to hold that unlawful confinement was not made out.

[105] However, in relation to Palmer-Coke, it is also noteworthy, in my view, that, at para. 29 of its judgment, this court set out the full quotation referring to “significant period of time” from para 24. of Pritchard:

The authorities establish that if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within section 279(2) [citations omitted].

[106] At para. 31 of Palmer-Coke, this court stated that the “element of restraint that resulted from the appellant grabbing the complainant by her hair was momentary in nature”. In other words, this court focused on the appellant briefly pulling the victim’s hair as being the alleged act of confinement and found that action insufficient to amount to a confinement. In my view, this conclusion rested as much on the extent of the restraint as on its duration. Pulling the victim’s hair did not prevent her from “mov[ing] about according to her own inclination and desire”.

[107] McIImoyle involved the unusual situation of an appellant attempting to argue that he did not commit mischief in pulling the emergency brake of a car his common law wife’s daughter was driving because she was unlawfully confining him at the time and therefore operating the vehicle unlawfully. However, his common law wife had called her daughter to pick up the appellant because he was attempting to walk home on a cold January day after consuming too much to drink. Although the appellant initially refused to get into the car, he ultimately got in voluntarily. The two argued and, at some point, the appellant asked the daughter to stop the car because he wanted to get out. Prior to the appellant pulling the parking brake, the daughter did not arrive at any signed stops or traffic lights. This court held at para. 9 that there was an “adequate evidentiary basis upon which the trial judge could find that [the daughter] was lawfully operating her motor vehicle at the time the appellant interfered with her operation”.

[108] As I see it, McIImoyle adds little to the debate about the import of “significant period of time” in relation to the offence of unlawful confinement under s. 279(2) of the Criminal Code.

[109] In my view, the term “any significant period of time” as it appears in Pritchard can fairly be read as a part of a description intended to assist in identifying the point at which the offence of unlawful confinement is completed: it refers to the extent of unlawful restraint necessary in particular circumstances which will have the effect of preventing the victim “from mov[ing] about according to her own inclination and desire”. In that sense, it does not import a minimum temporal component into the offence. See also R. v. Gratton, in which this court introduced the terminology “any significant period of time” when making clear that to establish unlawful confinement in that case, the Crown need not show the victim was confined for the entire period during which the appellant was inside or trying to get inside her house.

[110] Second, this court has explicitly rejected the position that Binnie J.’s use of the phrase “any significant period of time” at para. 24 of Pritchard imports a minimum temporal requirement into unlawful confinement constructive first degree murder under s. 231(5)(e) of the Criminal Code.

[111] In R. v. Barnett, 2013 ONCA 179, at paras. 12 and 13, this court said the following:

Section 231(5)(e) of the Code elevates to first degree murder any murder where the death is caused while forcibly confining the victim. The Supreme Court, in R. v. Pritchard [citations omitted] held that there must be confinement for “a significant period of time”.

There is, however, no minimum period of time during which the confinement must continue. What is a “significant period of time” depends on the circumstances of the case. What is important is that the act of killing must be separate and distinct from the unlawful confinement. [Emphasis added.]

[112] Further, in Parris, this court rejected an argument that the trial judge in that case should have told the jury that the unlawful confinement had to extend for a “significant period of time to engage [s. 231(5)(e)]”. As Watt J.A., at para. 61, explained, it would be anomalous to include such a requirement when the predicate offence for the purposes of s. 231(5)(e) can be satisfied by the preliminary crime of an attempted unlawful confinement:

The phrase “any significant period of time” appears in connection with the description of the unlawful confinement component of s. 231(5)(e) in paragraph 24 of Pritchard. When read together with other portions of the same judgment, it seems clear that “significant” is used synonymously with “confinement not limited to what was integral to the particular act of killing”. Neither Harbottle nor Pritchard requires the inclusion of “significant” or its functional equivalent for the purpose of jury instructions under s. 231(5)(e). Indeed, to some it may seem anomalous to include such wording when the predicate offence requirement can be satisfied by the preliminary crime of attempted unlawful confinement where no actual confinement would occur. [Emphasis added.]

[113] See also R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, leave to appeal refused, [2019] S.C.C.A. No. 338, in which this court dismissed an appeal from a conviction for first degree murder based on s. 231(5)(e). At para. 72, relying on Parris, this court said, “[t]he [Supreme] court’s reference in Pritchard to ‘a significant period of time’ should not be read as imposing a minimum temporal requirement”.

[114] As I read the authorities, no minimum temporal requirement is necessary to engage s. 231(5)(e) of the Criminal Code. An attempted unlawful confinement is sufficient to engage the section. The real issue in cases where the period of confinement, or of attempted confinement, is brief is whether the actions at issue constitute a distinct criminal act from the murder.

2. Distinct Criminal Act

a. The appellant’s position

[115] The appellant’s second reason for asserting there was no air of reality to the Crown’s theory of unlawful confinement constructive first degree murder is that, in addition to being of insufficient duration, any confinement that occurred in the course of his struggle with the deceased did not constitute a distinct criminal act as is required to engage s. 231(5)(e). Rather, all of his actions were necessarily incidental to the ultimate act of strangulation and therefore were subsumed within and integral to any murder.

[116] Concerning this issue, the appellant relies on R. v. Kimberley; R. v. Sandhu, [2005] O.J. No. 5845 (S.C.J.), which was cited with approval by the Supreme Court of Canada in Pritchard; and R. v. Menard, 2009 BCCA 462.

[117] In Kimberley, this court dismissed appeals from conviction for first degree murder based on s. 231(5)(e) where the appellants attacked the victim outside an elevator physically disabling her, dragged her 27 feet to the end of a ramp, and then robbed her and killed her. This court found there was a confinement and then, within the same series of events, the victim was murdered while under the unlawful domination of her attackers. The rationale underlying s. 231(5)(e) was thus “fully engaged.”

[118] However, in its reasons in Kimberley, this court also observed that had the appellants struck and killed the victim outside the elevator and then taken her purse, there would be no basis for convicting the appellants of first degree murder. In this example, the act of confinement and the act of killing would be one and the same: Kimberley, at para. 108.

[119] In Sandhu, several individuals, some of whom were armed with weapons such as a hammer, a pipe and a two-by-four, swarmed and killed the victim in an attack that lasted between 30 to 45 seconds. On a directed verdict application, the trial judge held that s. 231(5)(e) did not apply because there was no evidence of two discrete acts. Rather, the “surrounding of the deceased and the brutal attack on him were … one and the same”, constituted “a continuous assault from the beginning to the end”, and amounted to a killing “deliberately carried out in a rapid, efficient and collaborative manner”: Sandhu, at para. 115.

[120] As noted by the Supreme Court at para. 29 of Pritchard, although the accused in Sandhu confined the victim, “they did so only as an incident of the attack which caused his death.” The Supreme Court said:

The court’s analysis [in Sandu] is consistent with the rationale of s. 231(5) set out in Paré and Kimberley. If no extra domination is involved in the act of confinement, then it cannot be said that the accused confined the victim and then exploited that domination by an act of killing. Only one episode of domination existed, created by the act of killing, which at the same time confined the victim. In such a case, the rationale of s. 231(5) is absent. [Emphasis in original.]

[121] In Menard, the appellant made an out-of-court statement in which he said he thought the deceased was trying to steal cocaine from him. He turned and grabbed her, threw her up against a wall and began manually choking her. He then tied her pant leg around her neck to keep choking her after he let go with his hands.

[122] The pathologist testified the cause of death was ligature strangulation from the pant leg. The Crown advanced two theories on appeal to support the conviction under s. 231(5)(e): first, tying the pant leg was the confinement; and second, the confinement by manual choking flowed into the confinement by tying the pant leg. The British Columbia Court of Appeal held that on either formulation the act of confinement and the killing were one and the same and that the trial judge erred in leaving unlawful confinement as a basis for first degree murder with the jury.

[123] The appellant contends that, even leaving aside his “significant period of time argument”, a finding that he committed an unlawful confinement as a distinct criminal act from the murder is unreasonable. He effected the murder through manual strangulation. As in Sandhu and Menard, and as contemplated by this court in its “at the elevator” example in Kimberley, the appellant’s actions in restraining the deceased were all part and parcel of the killing.

b. Discussion

[124] I would not accept this submission.

[125] The appellant’s position at trial was that he never formed an intent to kill the deceased. His actions throughout were aimed at calming her and the situation down. In that sense, according to him, her death was an accident. He applied a choke hold but did not intend to kill her in so doing. On appeal, the appellant asserts that, particularly in light of the brevity of the physical interaction and the fact that this was a killing by manual strangulation, all of his actions must be interpreted as being part of the murder.

[126] In my view, the appellant’s own evidence belies this submission.

[127] On the appellant’s own evidence, when he and the deceased fell off the bed, he physically restrained her by placing her in a choke hold to the point that she at least “slowed down” in flailing about in order to calm her down. According to the appellant, he loosened his grip on the deceased at that point.

[128] Depending on the jury’s findings, including concerning when the appellant formed the intent to kill, I conclude that it would have been open to them to find that the appellant was committing an unlawful confinement (or at least an attempted unlawful confinement) as a distinct criminal act when he initially placed the deceased in a choke hold. Whatever the duration of this choke hold, it was sufficient to cause the deceased to slow down in her movements.

[129] As noted above, although unlawful confinement is a continuing offence, the offence is complete when the victim is restrained against his or her will: Parris, at para. 47. The fact that the duration of the unlawful confinement as a distinct act may have been only for a few seconds does not preclude a finding of unlawful confinement as a distinct act. See, for example, R. v. White, in which a bear hug lasting two to three seconds was found to be a distinct criminal act. See also R. v. McLellan in which the first degree murder victim was shot within seconds of robbers entering a home and ordering the occupants to the floor.

[130] If the jury accepted that the appellant initially applied the choke hold to calm the complainant down, a finding of unlawful confinement as a distinct criminal act from the murder was available. The fact that the appellant’s initial motivation may have been to calm the deceased does not mean the appellant was not unlawfully confining the deceased. The purpose of an unlawful confinement is irrelevant: Sundman, at para. 21; Kimberley, at para. 107. The appellant does not suggest that applying the choke hold was lawful. It was patently against the deceased’s will.

[131] Further, although the appellant loosened his grip on the deceased when her movements slowed down, he did not let go of her. The unlawful confinement, or at least an attempted unlawful confinement, continued. The appellant lost his grip on the deceased only when she broke for the door.

[132] In my view, it would also have been open to the jury to find that the appellant’s action in grabbing the deceased to prevent her from leaving could constitute an unlawful confinement and a distinct criminal act from the strangulation that followed. Undoubtedly, this action unlawfully prevented the deceased from moving about in accordance with her own wishes and prevented her escape. Once again, the fact that this action was of short duration is not determinative: R. v. White;R. v. McLellan. One issue may be whether the appellant had formed the intent to commit murder at this point.

[133] The Crown relies on R. v. Newman, 2016 SCC 7, [2016] 1 S.C.R. 27, and R. v. White, in support of the proposition that the appellant’s action in preventing the deceased’s escape was necessarily a distinct criminal act.

[134] In Newman, the trial judge found that Mr. Newman unlawfully confined the deceased, who had been shot and stabbed by a group of attackers, when Mr. Newman prevented the deceased from leaving through the front door of an apartment. The British Columbia Court of Appeal overturned Mr. Newman’s conviction for first degree murder holding that the confinement aspect of the attack was coextensive with the acts that caused the victim’s death. In a brief endorsement, the Supreme Court of Canada allowed the appeal holding that it was open to the trial judge to conclude that Mr. Newman’s action in preventing the victim from escaping through the front door was distinct and independent.

[135] Similarly, R. v. White involved, in part, a foiled escape attempt. The appellant’s actions in placing the victim in a bear hug for two to three seconds prevented the victim from escaping a second attacker, who stabbed the victim to death. This court held that the bear hug was a distinct criminal act.

[136] As I see it, this case is distinguishable from both Newman and White. In Newman, the appellant’s actions in preventing the victim from escaping did not form part of the physical acts of killing him. In White, the bear hug was the culmination of a chase down a catwalk after several attackers tried to rob the victim. The attacker who caught the victim and placed him in a bear hug was not the same person who stabbed the victim. In my view, the question whether a foiled escape attempt constitutes a distinct criminal act or is subsumed in the killing is a question of fact to be determined on the particular facts of each case.

[137] Depending on the jury’s view of the evidence, in this case, the appellant’s actions during the course of the brief struggle he described could potentially be viewed as one continuous act by the same attacker in an effort to kill the victim or they could be viewed as an initial exercise of domination and control over the deceased, which the appellant subsequently exploited by killing her. It seems to me that it was for the jury to decide whether all of the appellant’s actions were part of one continuous episode of domination created by the act of killing or whether there was an unlawful confinement that constituted an additional act of domination and a distinct criminal act independent from the act of killing. Consideration of when the appellant formed the intent to kill could form part of this determination.

(3) Did the trial judge err in his instructions to the jury on unlawful confinement constructive first degree murder?[^10]

(a) The Appellant’s Position

[138] The appellant submits that even if unlawful confinement constructive first degree murder was properly left with the jury, the trial judge erred in his instructions in relation to the requirement that the unlawful confinement be a distinct criminal act from the murder.

[139] The appellant points to the following paragraphs of the trial judge’s original jury instructions in this case as creating the misleading impression that an act of confinement is always distinct from a murder unless the confinement is literally part of the actual cause of death:

[211] In order for [the appellant] to be guilty of first degree murder, the Crown must also prove beyond a reasonable doubt that the unlawful confinement and the killing were two distinct criminal acts and that [the appellant] murdered [the deceased] while committing the offence of unlawful confinement.

[212] They will be distinct if one can be committed without committing the other, but they will not be distinct if the confinement and the killing are essentially one and the same act. [Emphasis added.]

[140] The appellant argues that Sandhu and Menard demonstrate that s. 231(5)(e) will not be triggered where a murder is committed by physical acts that confine the victim through one continuous assault, even though some individual acts committed as part of the confinement do not actually cause death and could be committed without killing the victim.

[141] As noted above, in Sandhu, the attack lasted 30-45 seconds, involved surrounding and confining the victim, and numerous individual assaults, some with weapons. The trial judge granted a directed verdict application on the charge of unlawful confinement constructive first degree murder, holding that the surrounding of the victim and the attack on him leading to his death were “one and the same”: Sandhu, at para. 21. In his comments about the case in Pritchard, Binnie J. said, at para. 29, that “[a]lthough the accused individuals did confine the victim, they did so only as an incident of the attack which caused his death.” Further, “[o]nly one episode of domination existed, created by the killing which at the same time confined the victim.”

[142] In Menard, the appellant’s initial manual strangulation of the victim did not cause her death; rather, death was caused by the subsequent ligature strangulation with the victim’s pant leg. However, at para. 33, the British Columbia Court of Appeal concluded that, on the Crown’s second formulation of the confinement, where the confinement by manual choking “flowed into” the confinement by the tied pant leg, “the manual choking was part of the same episode of prolonged strangulation and was consumed within the choking by tying, the same act as the act of killing.” Accordingly, although the victim was confined during the manual strangulation, such confinement was not a distinct criminal act in the circumstances of that case.

[143] The appellant submits that in both Sandhu and Menard, the initial acts of confinement (the surrounding in Sandhu and the manual strangulation in Menard) could have been committed without the murder.

[144] Further, the appellant says that the trial judge reinforced this error when responding to a question from the jury about a typographical error in the original jury charge that created an apparent contradiction concerning whether the unlawful confinement and the murder had to be part of the same transaction or series of events (the “same transaction requirement”). The appellant submits that, in answering the jury’s question and request for examples about what would or would not meet the same transaction requirement, the trial judge gave an example of what would not constitute a distinct criminal act that could only have reinforced the impression that unlawful confinement is always a distinct criminal act from a murder unless the confinement is the very cause of the murder. The example was:

If a person was to grab the victim and holds his hand over the victim’s mouth until they suffocated, while the holding the victim not letting him go while he suffocates, is an unlawful confinement [sic]. It is integral to the act of murder and would not constitute first degree murder on this basis.

(b) The Crown’s position

[145] The Crown responds that the trial judge’s charge and answers to the jury’s questions were clear, tracked the language of David Watt’s Manual of Criminal Jury Instructions, and would not have left any misleading impression.

[146] The Crown points in particular to the trial judge’s instruction that the acts “will be distinct if one can be committed without committing the other” and the further instruction that “the murder and the unlawful confinement [did not] have to happen at exactly the same moment”. The Crown submits that this latter instruction clearly conveyed that the distinct act requirement was not linked to the cause of death.

[147] The Crown also relies on a further instruction given to the jury in response to a second jury question about an instruction in the original jury charge stating that counsel had agreed the deceased was unlawfully confined when the appellant grabbed her to prevent her from leaving the bedroom. The Crown submits that this instruction emphasized that unlawful confinement, on its own, was not enough to constitute unlawful confinement constructive first degree murder. Rather the jury had to be satisfied it was a distinct act such that the “unlawful confinement was not limited to what was integral to the particular act of killing”. This instruction reads as follows:

Paragraph 209 [i.e., the paragraph in which the trial judge said that counsel had agreed the deceased was unlawfully confined when the appellant grabbed her to prevent her from leaving the bedroom] is accurate and correct…. The real issue for you to decide is whether the unlawful confinement was a distinct act as part of the same series of events, or whether it was integral to the act of murder.

If the unlawful confinement was a distinct act as part of the same series of events, it would constitute first degree murder in this manner, if you’ve already found [the appellant] had the required state of mind for murder. If the unlawful confinement was integral to the act of murder, it would not constitute first degree murder in this manner, again, if you’ve already found [the appellant] had the required state of mind for murder.

(c) Discussion

[148] The appellant asserts that the trial judge made reversible errors in his jury instructions on unlawful confinement constructive first degree murder. The Crown disputes that any errors were made but asserts that, if there were any errors, they were cured by subsequent instructions.

[149] I agree that the specific instruction in the trial judge’s original charge on which the appellant relies was problematic in the circumstances of this case and that the examples the trial judge gave in response to the jury’s question about the same transaction requirement did not assist in resolving the problematic aspect of the impugned instruction. However, as the Supreme Court of Canada recently reiterated in R. v. Goforth, 2022 SCC 25, [2021] S.C.J. No. 103, at paras. 20-22, trial judges are not held to a standard of perfection in crafting jury instructions. The real question in this case, is whether, overall, the jury was adequately instructed on the distinct criminal act requirement taking account of all the instructions given in both the original charge and the trial judge’s answers to the jury’s questions.

[150] Given that I have determined there was no air of reality to the Crown’s theory of planned and deliberate first degree murder, it is unnecessary that I finally determine this question. Nonetheless, I will explain why I conclude the impugned instruction was problematic.

[151] I will repeat the impugned instruction for ease of reference:

[211] In order for [the appellant] to be guilty of first degree murder, the Crown must also prove beyond a reasonable doubt that the unlawful confinement and the killing were two distinct criminal acts and that [the appellant] murdered [the deceased] while committing the offence of unlawful confinement.

[212] They will be distinct if one can be committed without committing the other, but they will not be distinct if the confinement and the killing are essentially one and the same act. [Emphasis added.]

[152] It is the emphasized portion of para. 212 of the trial judge’s original charge that the appellant says is problematic.

[153] Before discussing the language the appellant identifies as problematic, it is helpful to recall that to elevate second degree murder to first degree murder, s. 231(5)(e) of the Criminal Code requires that death be caused while the accused is committing or attempting to commit a particular offence, which in this case was unlawful confinement. To meet the “while committing” requirement, the Crown must prove the murder and the unlawful confinement were part of the same transaction or same series of events. However, s. 231(5)(e) also requires that two distinct criminal offences be committed within that same transaction: in this case, an unlawful confinement and a murder. These are two different requirements: i) the same transaction requirement; and ii) the distinct criminal act requirement.

[154] Turning to the language of the impugned instruction, contrary to the Crown’s submissions, it does not appear to have been taken from David Watt’s Manual of Criminal Jury Instructions. Rather, the emphasized portion of para. 212 appears to have been drawn from footnote 13 to the National Judicial Institute model jury instructions respecting s. 231(5) of the Criminal Code: The Canadian Judicial Council, “Model Jury Instructions”, online: National Judicial Institute https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/?langSwitch=en (the “NJI Model Instructions”),[^11] which is the only set of model instructions that appears to contain any specific model language relating to the distinct criminal act requirement.

[155] Footnote 13 of the NJI Model Instructions states that “[w]here there is a live issue on the evidence whether the underlying offence and the killing were distinct criminal acts, [the same transaction requirement instruction] must be modified, for example, by adding” the impugned instruction. On its face, footnote 13 suggests that the impugned language is an example of what might be said to address the distinct criminal act requirement where it is a live issue in the case.

[156] However, as discussed above, Sandhu and Menard make it clear that, depending on the circumstances, acts of confinement that are not part of the physical cause of death and which could have been committed without committing the murder (surrounding the deceased in Sandhu; manual strangulation in Menard, which occurred prior to the ligature strangulation which caused the victim’s death) may not meet the s. 231(5)(e) requirement of constituting a distinct criminal act from the killing because they may be “consumed in the very act of killing” or “co‑extensive” with the killing rather than “distinct and independent from the act of killing”: Pritchard, at para. 27. Accordingly, instructing the jury that an unlawful confinement and a killing will be distinct “if one can be committed without committing the other” in factual scenarios like Sandhu and Menard is of no real assistance to a jury and potentially misleading because the act of confinement, though it may be capable of being committed without committing the killing, may nonetheless be “consumed in the very act of killing”.

[157] This case involved successive acts of manual strangulation by the appellant and an intervening attempt by the deceased to escape, which was foiled by the appellant. The appellant’s initial act of manual strangulation and subsequent grabbing of the deceased as she attempted to flee were alleged acts of confinement that could have been committed without killing the deceased. However, it nonetheless remained necessary for the jury to determine whether such acts were:

• on the one hand, acts of confinement that were “consumed” in or “co‑extensive” with the killing because there was only one episode of domination created by the act of killing; or

• on the other hand, acts of confinement that involved extra domination “distinct and independent” from the killing which the accused then exploited by an act of killing.

[158] One way of assisting the jury in drawing the necessary distinction in such factual scenarios may be to suggest that they consider questions along the lines of:

• was any act of confinement inextricably tied up with the act of killing such that the confinement and the killing were part of one continuous episode of domination created by the act of killing (in which case the confinement would not be a distinct criminal act capable of elevating second degree murder to first degree murder); or

• was there an act of confinement that involved “extra domination” beyond that involved in the killing such that it can be said the accused confined the victim and then exploited that domination by an act of killing in which case the confinement and the killing would be distinct criminal acts capable of elevating second degree murder to first degree murder?

(4) Did the trial judge err in not providing the jury with a limiting instruction on the deceased’s prior consistent statements?

[159] The jury heard evidence that prior to the deceased’s death, the appellant threatened to kill her. This evidence came in the form of Ms. Townsend’s evidence that she overheard such a threat and evidence from the deceased’s sister (Ms. Frey), the appellant’s cousin (Mr. Banton), the appellant’s social worker (Mr. Wilson) that the deceased told them about such threats.

[160] In his evidence, the appellant denied making any such threats.

[161] On appeal, the appellant submits that the trial judge committed a reversible error in failing to instruct the jury concerning the limited use they could make of prior consistent statements made by the deceased. In particular, the trial judge failed to instruct the jury that repetition does not make a statement more likely to be true and that prior consistent statements do not enhance a declarant’s credibility or reliability and are not corroborative. The appellant contends that the evidence of the statements the deceased allegedly made were relevant to the issues of both planning and deliberation and intent to kill and that the failure to provide this cautionary instruction was therefore highly prejudicial.

[162] I would not accept these submissions. The deceased obviously did not testify at trial and, in that sense, the impugned evidence did not constitute prior consistent statements of a witness. The trial judge gave the jury standard instructions cautioning the jury about the uses and dangers of admissible statements of a declarant not called as a witness at trial. Particularly in the absence of a request at trial for the instruction requested on appeal, I am not persuaded that such an instruction was necessary to alert the jury to the caution they were required to exercise in relation to this evidence.

[163] I note as well that as part of his ineffective assistance of counsel argument, the appellant raises the failure of trial counsel to contest the admissibility of this evidence. Nothing in these reasons should be read as commenting on the admissibility issue.

(5) Did the trial judge err in dismissing the appellant’s Corbett application?

[164] Prior to testifying at trial, the appellant brought a Corbett application seeking to exclude five entries from his criminal record for the purposes of cross‑examination. The trial judge dismissed the application. On appeal, the appellant submits that the trial judge erred in failing to exclude the following four entries:

• 2005: uttering threats;

• 2005: break and enter;

• 2007: robbery; and

• 2008: carry a concealed weapon.

[165] The appellant’s criminal record included approximately 40 entries. The trial judge ruled the entire record admissible for two main reasons. First, in his view, most of the disputed entries were already “part of the narrative”, in that they had been referred to in reports prepared by two anticipated defence expert psychiatric witnesses (Dr. Gojer and Dr. Messina). Second, as the defence had elicited evidence of the deceased’s violent nature through cross-examination of various witnesses, it would be unfair to exclude evidence relating to the appellant’s violent past.

[166] On appeal, the appellant submits that the trial judge erred in that the disputed entries did not appear in Dr. Gojer’s report and the defence was not introducing Dr. Messina’s report into evidence.

[167] Further, the appellant submits that the trial judge permitted only limited evidence about the deceased’s violent character and that same evidence was in response to allegations of violence by the appellant made by Crown witnesses. Thus, there was no imbalance to correct. More importantly, the probative value of these entries was outweighed by their prejudicial effect. The Crown’s theory of planning and deliberation hinged on an allegation that the appellant threatened to kill the deceased if she left him. The appellant denied these threats. The disputed entries created a risk of propensity reasoning. Admission of the 2005 entry for uttering death threats in particular created a risk of unfairly tainting the jury’s credibility assessment.

[168] I would not give effect to this ground of appeal. Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, permits cross-examination of witnesses on their prior criminal record. A judge’s decision on a Corbett application is a discretionary ruling entitled to deference on appeal absent error in principle, misapprehension of material facts or an unreasonable decision. Even assuming the trial judge erred concerning what was part of the narrative, he was in the best position to balance probative value versus prejudicial effect. I am not persuaded there is any basis upon which to interfere with his discretionary decision.

(6) Did the appellant receive ineffective assistance from trial counsel resulting in a miscarriage of justice?

[169] In his factum, the appellant alleged that trial counsel was ineffective in multiple respects. However, during oral argument on the appeal he abandoned most of his allegations. Ultimately, the appellant focused his arguments on trial counsel’s decision to call Dr. Gojer, a forensic psychiatrist, as a witness, and trial counsel’s decision to concede, or fail to object to, the admissibility of certain ante mortem statements.

[170] For reasons that I will explain, in my view, trial counsel’s decision to call Dr. Gojer as a witness fell below the reasonableness standard and resulted in a miscarriage of justice. As I would give effect to his claim of ineffective assistance concerning Dr. Gojer’s evidence, it is unnecessary that I address the appellant’s remaining claims of ineffective assistance of counsel.

(a) Background

[171] As previously noted, following the close of the Crown’s case, trial counsel obtained a ruling from the trial judge permitting him to adduce the evidence of three psychiatrists: Dr. Messina, Dr. Srinivasan, and Dr. Gojer. To obtain the ruling, trial counsel relied on reports from the three psychiatrists.

[172] Doctors Messina and Srinivasan treated the appellant in 2011 and 2012 respectively. Both reported that they diagnosed the appellant as suffering from schizophrenia and described some of his symptoms, including disorganized thinking.

[173] Dr. Gojer was retained by trial counsel in 2016 to conduct a psychiatric assessment. He, too, concluded that the appellant suffered from schizophrenia. However, he was unable to support a not criminally responsible (“NCR”) defence or conclude that the appellant’s schizophrenia impacted the appellant’s ability to form the requisite intent for murder. Notably, Dr. Gojer also included in his report the following potentially inculpatory statement made by the appellant during his assessment:

When asked if he wanted to kill her, he said he must have, then he vacillated and said that he did not know.

[174] On the admissibility application, trial counsel argued that the psychiatric evidence would assist the jury in understanding the appellant’s circumstances and, in particular, his diagnosis of schizophrenia and what that illness entails. Overall, he submitted that the psychiatric evidence would assist the jury in evaluating the appellant’s testimony and, particularly, his evidence concerning whether he had the requisite intent for murder. In relation to Dr. Gojer specifically, trial counsel argued that he was the only psychiatrist who could confirm that the appellant continued to suffer from schizophrenia at the time of trial and that this was important to assist the jury in evaluating the appellant’s trial testimony.

[175] The trial Crown opposed trial counsel’s request to adduce psychiatric evidence. As Dr. Gojer was unable to support an NCR defence or opine that the appellant’s illness impacted his capacity to form the intent for murder, the trial Crown argued that the proposed psychiatric evidence was irrelevant to the issues at trial.

[176] The trial judge ruled the psychiatric evidence admissible based primarily on three factors[^12] to which the proposed evidence would be relevant:

• the evidence already adduced at trial made numerous references to the appellant having schizophrenia and taking “medication”, albeit without medical evidence – as a result, the jury needed clarification;

• the jury had observed some unusual behaviour by the appellant during the course of the trial, including an outburst of “rapping” and continually and loudly interrupting trial counsel – the jury needed assistance to understand that; and

• the Crown had adduced evidence that the appellant’s behaviour and interactions with police officers was that of a “normal” person with no observed unusual behaviour – medical evidence that he suffers from schizophrenia was therefore admissible.

[177] Following the trial judge’s ruling, trial counsel called all three psychiatrists as witnesses at trial.

[178] Dr. Messina testified that she treated the appellant in a hospital for about six weeks between March and May 2011. The appellant had been referred to the hospital by a correctional centre where he was incarcerated because of possible psychosis and functional impairment. Dr. Messina diagnosed him as suffering from schizophrenia, paranoid type, along with anxiety disorder, alcohol abuse, and cannabis dependency. As the appellant was refusing treatment, she ultimately discharged him to another hospital on a Form 1, so he would remain under medical care for at least some additional period of time. Dr. Messina also described various symptoms she observed the appellant exhibit, including disorganized thinking and persecutory delusions.

[179] Dr. Srinivasan saw the appellant between June and December 2012 in her capacity as a consulting psychiatrist for probation services. Among other things, she noticed the appellant talking to himself and exhibiting paranoia and thought disorder. She concluded the appellant was suffering from schizophrenia and recommended that he be treated with anti-psychotic medication and refrain from the use of marijuana, which she said was known to exacerbate the symptoms of schizophrenia.

[180] Dr. Gojer’s trial evidence was brief. His examination-in-chief spans just under nine pages of transcript. He confirmed he performed a psychiatric assessment at the request of trial counsel and that the appellant was very guarded during the course of his examination. However, Dr. Gojer had reviewed reports indicating that the appellant had been suffering from and treated for schizophrenia in the past. He was satisfied this was an ongoing illness which the appellant was reluctant to acknowledge and into which he had very little insight.

[181] Dr. Gojer described schizophrenia as a mental disorder where the person has thought disorder that can manifest itself in several ways, including irrational, disorganized or bizarre thoughts. He felt the appellant had many of these symptoms, including misperceptions about the deceased. He said he was unable to conclude “whether there were any clear cut symptoms that were directly connected to [the appellant’s] actions at the time [of the killing].” Ultimately, he testified that although he was confident in saying there was a major mental illness present, he “could not conclude that this illness was directly responsible for [the appellant’s] behaviour … [or] that there was any excuse for that behaviour based on any of the signs and symptoms that [the appellant] had shared with [him].”

[182] The trial Crown’s cross-examination of Dr. Gojer consisted of three questions, two of which were significant:

Q. At some point in the course of your interview with [the appellant] he acknowledged that he was short tempered and if anyone wronged him or came at him or disrespected him, he would have to take action. Is that something he said to you?

A. He did.

Q. Okay. And at some point you asked him if he wanted to kill the victim and he indicated that he must have, then he vacillated and said he didn’t know. Is that right?

A. Exactly, yes.

[183] In his closing address to the jury, the trial Crown placed particular emphasis on the last question and answer, using it to support the trial Crown’s interpretation of the appellant’s evidence. He told the jury that the appellant had told Dr. Gojer that he wanted to kill the deceased, that that statement was supported by the other evidence in the trial and that the appellant’s attempt to resile from that statement was not supported by the other evidence at the trial:

When asked why did you go and grab her the second time, he told you … I went and grabbed her again because I did not want her to contact the neighbour … people upstairs … her friends, her family … the police.

… does it not strike you as absolutely absurd to suggest when you can say “I did something because”, that you can then, in other breath said [sic], “But I did not intend”, the two concepts cannot live in the same universe. …

So he told you in his own words he intended Ms. Newland’s death. He told Dr. Gojer. Dr. Gojer said, “Did you intend to kill her?” He said, “I must have”, remember that? Then he resiled and said, “Well, I don't know.” Well, the “I must have” is supported by all the other evidence in this case. The second part is not. He told Dr. Gojer he intended to kill her. [Emphasis added.]

[184] Later in his closing, the trial Crown returned to this theme:

Lastly, he told Dr. Gojer he intended Ms. Newland’s death. Don’t focus on his attempt to resile from that position, there’s no evidence to support that position. Focus on the statement that is supported by - supported by and corroborated by the overwhelming body of evidence in this case. He intended Ms. Newland’s death. [Emphasis added.]

[185] The trial judge also reminded the jury of this evidence, stating in his charge:

On the issue of intent, Dr. Gojer was asked the following:

Q. At one point you asked him if he wanted to kill the victim and he indicated he must have and he vacillated and said he didn’t know?

A. Yes.

[186] The trial judge provided the jury with instructions concerning the medical evidence and the issue of intent. Significantly, while he told the jury they could consider that the appellant was suffering from schizophrenia in relation to the issue of intent, he also told them there was no evidence that it rendered him incapable of having the intent for murder and that it was not inconsistent with him having such intent:

You have heard evidence that [the appellant] has schizophrenia, including several other medical disorders.

In determining whether [the appellant] had either state of mind necessary to make the unlawful killing of [the deceased] murder, take into account all the evidence, including the medical evidence of the psychiatrist at the time [the appellant] caused [the deceased’s] death.

Evidence that an accused was suffering from a mental disorder may be relevant and something for you to consider. The effects of the mental disorder is [sic] that it may interfere with a person’s ability to foresee or intend the natural consequences of his actions.

In this case, there is no evidence that [the appellant’s] schizophrenia rendered him incapable of having either state of mind to make an unlawful killing murder.

Evidence of a mental disorder does not necessarily mean that [the appellant] did not have either state of mind necessary to make the unlawful killing of [the deceased] murder. The fact that [the appellant] has schizophrenia is not necessarily inconsistent with either state of mind required to make an unlawful killing murder. [Emphasis added.]

[187] After reviewing the psychiatric evidence, including the evidence of Dr. Gojer, the trial judge essentially instructed the jury that while they must consider all the evidence, including the medical evidence concerning the appellant’s statement of mind, the evidence that the appellant had schizophrenia, standing alone, was of limited, if any value, on the question of whether he had the intent for murder:

If you accept the evidence of Dr. Gojer … then it is agreed by counsel that [the appellant’s] schizophrenia, by itself, is not a factor for you to consider in determining whether [the appellant] had the intent to make the unlawful killing murder. Nevertheless, you can and must take into account all the evidence, including the evidence of [the appellant’s] behaviour and thought processes which were observed by the witnesses, including the doctors, and described to you by [the appellant] in his evidence and statements to the police, in your determination whether the Crown has proven beyond a reasonable doubt that [the appellant] had either state of mind which makes the unlawful killing murder.

If you do not accept Dr. Gojer’s evidence … then it is agreed by counsel that there is no medical evidence that [the appellant’s] schizophrenia was a factor affecting his ability to foresee the consequences of his actions on November 16, 2012. Nevertheless, you can and must take into account all the evidence including the evidence of [the appellant’s] behaviour and thought processes which were observed by the witnesses, including the doctors, or described to you by [the appellant] in his evidence and statements to the police in your determination whether the Crown has proven beyond a reasonable doubt that [the appellant] had either state of mind which makes the unlawful killing murder. [Emphasis added.]

[188] Later, the trial judge referred to the appellant’s evidence that he and the deceased smoked marijuana the evening before the deceased was killed and the evidence that the deceased had some THC, an ingredient in marijuana, in her blood and said:

Other than knowing marijuana exacerbates the symptoms of schizophrenia, there is no other evidence for me to summarize on the effect of a person with schizophrenia.

(b) General principles relating to a claim of ineffective assistance of counsel

[189] The general principles relating to an ineffective assistance of counsel claim were recently reviewed by this court in R. v. Sararas, 2022 ONCA 58. The following summary is derived largely from paras. 41 to 49 of that decision.

[190] In order to succeed on a claim of ineffective assistance of counsel, an appellant must establish three elements. First, the appellant must prove the contested facts underpinning his or her allegation on a balance of probabilities (the “factual component”). Second, the appellant must demonstrate that trial counsel's acts or omissions amounted to incompetence (the “performance component”). Third, the appellant must show that trial counsel's ineffective performance led to a prejudice in the form of a miscarriage of justice (the “prejudice component”): R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 203 O.A.C. 56 (C.A.), at para. 119.

[191] Appellate courts measure trial counsel’s competence against a standard of reasonableness. In light of the wide range of options open to counsel, reviewing courts presume trial counsel to have acted competently and review counsel’s assistance deferentially without the distortion of hindsight: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 61, leave to appeal refused, [1996] S.C.C.A. No. 347. As Doherty J.A. explained in Archer, at para. 119, “[m]any decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction.”

[192] Where, as here, the reliability of the verdict is at issue, the appellant must demonstrate a reasonable probability that the result of the proceeding would have been different had the appellant received effective assistance of counsel: Joanisse at p. 64, citing Strickland v. Washington, 104 S. Ct. 2052 (1984) at p. 2068. A reasonable probability, lying somewhere between a mere possibility and a likelihood, satisfies the reviewing court that the verdict at issue cannot be taken as a reliable assessment of the appellant's culpability: Joanisse, at p. 64.

[193] In order to show that a verdict is unreliable, the ineffective assistance needs to go to one or more of the central issues at trial. Even severe instances of incompetence going to collateral facts will not necessarily undermine the court's confidence in the result below.

[194] In the context of a claim concerning the decision to call a witness, the comments set out below from paras. 94-95 of R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), leave to appeal refused, [1997] S.C.C.A. No. 248, may be useful. That case involved an allegation of incompetence arising from failure to interview and subpoena defence witnesses:

Proper trial preparation ordinarily includes speaking to potential witnesses. But failing to do so does not automatically warrant a finding of incompetence…

The court must consider the factual context including what information defence counsel had about the witnesses, about their likely testimony and about how that testimony would likely assist or harm the defence. [Emphasis added; citations omitted.]

[195] Once the factual component has been established, the ineffectiveness analysis should normally continue with the prejudice component. If the prejudice component cannot be met, it is not necessary to consider the performance component: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29.

(c) The appellant’s position on appeal

[196] The thrust of the appellant’s position is that trial counsel fell below the reasonableness standard in calling Dr. Gojer as a witness because the probative value of his evidence was slight and could well have been obtained through other means (for example, an agreed statement of fact), while the prejudicial effect of his evidence was high. In short, the appellant asserts that trial counsel’s decision to introduce Dr. Gojer’s evidence not only did not assist the appellant’s defence, it undermined it and therefore resulted in a miscarriage of justice.

(d) The Crown’s position on appeal

[197] The Crown submits the trial counsel’s decision to call Dr. Gojer as a witness was not incompetent and, in any event, did not render the verdict unreliable.

[198] The Crown acknowledges that the live issues at trial were focused on the appellant’s mental state at the time of the killing. The Crown submits that the psychiatric evidence led to a favourable jury instruction permitting the jury to consider that evidence in their assessment of the appellant’s mental state and that Dr. Gojer’s evidence provided a link between the evidence concerning the appellant’s condition at the time of his prior treatment and the time of trial. Although there were some unfavourable aspects of Dr. Gojer’s evidence, the Crown contends that his evidence was also beneficial to the defence. While another counsel may have made a different decision, the Crown submits that trial counsel’s decision to call Dr. Gojer was within the range of reasonable professional judgment. The standard is not perfection.

[199] In any event, the Crown submits that there was overwhelming evidence at trial demonstrating the appellant intended to kill the deceased. In the result, the appellant has failed to demonstrate that calling Dr. Gojer as a witness resulted in a miscarriage of justice.

(e) Discussion

(i) The factual component

[200] In this case, the factual component of the appellant’s claim of ineffective assistance of counsel is straightforward. Trial counsel applied successfully to call Dr. Gojer as a witness to explain to the jury that the appellant continued to suffer from schizophrenia at the time of trial. However, Dr. Gojer’s report, on which trial counsel relied to bring his application, contained the following potentially inculpatory statement:

When asked if he wanted to kill her, he said, he must have, then he vacillated and said that he did not know.

[201] Not surprisingly, the trial Crown introduced this statement into evidence through his cross-examination of Dr. Gojer, and he emphasized it in his closing. The trial judge repeated it in his charge to the jury.

[202] Trial counsel did not provide an affidavit in response to the allegation of ineffective assistance of counsel. He did provide a letter in which he wrote:

With respect to Dr. Gojer’s evidence, what he was allowed to comment on was litigated before the Judge before calling him. Again, I don’t recall his evidence in totality, the record will reflect what was said [by] the Doctor. Without the transcripts I am at a loss as to what he said and why I felt it important.

[203] In a subsequent email, trial counsel stated:

When it comes to the doctors evidence you should review the judge’s rulings on admissibility and what was allowed to be said. That will give you an idea of what took place. I don’t plan on reading and answering questions on something that happened 3 years ago. Suffice it to say the judge made rulings on this.

(ii) The prejudice component

[204] Beginning with the issue of prejudice, I conclude that there is a reasonable probability that the result of the trial would have been different had trial counsel not called Dr. Gojer as a witness.

[205] As indicated above, this case turned on whether the Crown had proven beyond a reasonable doubt that the appellant intended to kill the deceased. The appellant did not dispute that he was guilty of manslaughter. He testified and acknowledged killing the deceased by placing her in a choke hold – but he maintained that he did not intend to kill her, he only intended to calm her down. The central question for the jury was intention to kill. Without that finding, there was no second degree murder and certainly no first degree murder.

[206] By calling Dr. Gojer as a witness, trial counsel made available to the Crown a powerful weapon to undermine the credibility of the appellant’s evidence that he did not intend to kill the deceased. While it is true that the appellant acknowledged that he grabbed the deceased to prevent her from alerting others, without the statement evidence from Dr. Gojer, that evidence could still be viewed as consistent with the appellant’s claim that he intended to calm the deceased – or at least raise a reasonable doubt in that regard.

[207] No doubt there was other evidence at trial that pointed, and even pointed strongly, to an intention to kill: for example, some of the appellant’s comments in the Mr. Big statement, the evidence of the appellant’s threats to kill the deceased if she left him, and the appellant’s admitted anger during the physical confrontation he described. But all of that evidence had to be weighed in the balance against the appellant’s evidence denying it was his intention to kill and explaining that his intention was to calm the deceased.

[208] In the end, the question of whether the Crown had proven the appellant intended to kill the deceased was very much an issue of credibility – the appellant’s credibility. Viewed in that context, the statement evidence led through Dr. Gojer was not only highly prejudicial, it was damning. It was used effectively by the trial Crown in closing submissions to contradict and undermine the appellant’s evidence on the central question of intention to kill. The trial judge repeated the statement evidence in his jury instructions. Dr. Gojer’s evidence concerning the appellant’s statement to him thus assumed a prominent role at the trial.

[209] On the other hand, little purpose was served in calling Dr. Gojer as a witness. Yes, he confirmed that the appellant continued to suffer from schizophrenia at the time of trial and yes, that may have assisted the jury in evaluating his trial testimony and behaviour. However, there was other psychiatric evidence establishing and helping to explain the appellant’s diagnosis of schizophrenia. To the extent that the trial judge’s instructions concerning the impact of schizophrenia on the issue of intent to kill may have been in any way favourable to the appellant as suggested by the Crown, the evidence of the other psychiatrists that he was suffering from schizophrenia at the time of the events was far more significant. Although the other psychiatrists had not seen the appellant proximate to the time of trial, in my view, it would have been open to them to have explained the chronic nature of schizophrenia and describe indicia of its continuing presence and necessary treatments. In addition, the appellant could have been asked whether he was receiving any treatment for schizophrenia at the time of trial.

[210] While I would not go so far as to say that the appellant has established that without Dr. Gojer’s evidence the result of the trial would more likely than not have been different, that is not the standard. The standard is a reasonable probability, lying somewhere between a mere possibility and a likelihood: Joanisse, at p. 64. Given the highly prejudicial character of the statement evidence adduced through Dr. Gojer, the nature of the issues at trial, and the prominence that Dr. Gojer’s statement evidence assumed at the trial, I conclude there is a reasonable probability the result of the trial would have been different had Dr. Gojer not been called as a witness. The prejudice component of the ineffective assistance of counsel claim has thus been met.

(iii) The Performance Component

[211] With respect to the performance component, I conclude that the appellant has established that trial counsel fell below the reasonableness standard in deciding to call Dr. Gojer as a witness.

[212] It is clear from the record that trial counsel called Dr. Gojer as a witness to explain to the jury that the appellant continued to suffer from schizophrenia and was suffering from schizophrenia at the time of the trial.[^13] Especially because the jury had already observed some unusual behaviour on the part of the appellant, and because he was expected to testify, Dr. Gojer’s evidence undoubtedly had at least some probative value in addition to the anticipated evidence of the other two psychiatrists.

[213] However, there is nothing in the record that reveals that trial counsel considered the prejudicial effect of calling Dr. Gojer – i.e., that the Crown was likely to ask him about the appellant’s statements to him about intending to kill the victim – and weighed it against the benefit of calling this witness. Except for the following comment, there is also nothing in the record to suggest that trial counsel considered alternative ways of getting this evidence before the jury, such as by way of an agreed statement of fact:

THE COURT: Why do you need more than Dr. Messina, Dr. Srinivasan, and an agreement that in fact he continues to suffer from schizophrenia? Why do you need more than that? If we're not getting anything more than how it affects a person, that it impacts on their capacity is a non-issue.

TRIAL COUNSEL: Yes, that may be something that would be something that can be managed, talked about for sure.

[214] Notably, after the trial judge indicated Dr. Gojer could testify for the limited purpose of confirming that the appellant suffered from schizophrenia and continued to suffer from schizophrenia at the time of trial, trial counsel categorically rejected the trial Crown’s offer to proceed by way of an agreed statement of fact for all three psychiatrists that would include the observations made by each psychiatrist to support their diagnosis.[^14]

[215] I accept that trial counsel and the trial Crown may not have been able to agree on a statement of fact pertaining to this issue. But the fact remains there is nothing in the record to suggest trial counsel seriously pursued this option or any other possible way of adducing this evidence about the appellant still suffering from schizophrenia without calling Dr. Gojer.

[216] As noted above, a major difficulty here is that trial counsel did not provide an affidavit in response to the allegation of ineffective assistance of counsel. He only provided the letter and email referred to above in which he relied on the record to explain his performance.

[217] I accept there is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. However, given the significant prejudicial effect of Dr. Gojer’s evidence in comparison to its probative value, the lack of any evidence to suggest that trial counsel considered the pros and cons of calling this evidence and made a professional judgment call, the lack of any evidence to suggest that trial counsel seriously considered or pursued alterative ways of adducing evidence about the appellant’s mental state at the time of trial, and, ultimately, the lack of any real explanation from trial counsel concerning why this highly prejudicial evidence was called, I conclude that the presumption is displaced and that the appellant has established that trial counsel’s decision to call Dr. Gojer in the circumstances of this case was not reasonable and fell outside the boundaries of reasonable professional judgment. In the absence of any reasonable explanation, the prejudicial effect of the evidence speaks for itself.

[218] Accordingly, I accept the appellant’s submission that he received ineffective assistance of trial counsel resulting in a miscarriage of justice. The decision to call Dr. Gojer resulted in the jury hearing evidence that the appellant said he must have wanted to kill the deceased. This evidence went to the core issue of intent and infected the whole trial. It is thus impossible to accede to the Crown’s suggestion of a substituted verdict on second degree murder. A new trial is required.

D. Disposition

[219] Based on the foregoing reasons, I would allow the appeal, set aside the conviction for first degree murder, and order a new trial on that charge.

Released: July 28, 2022 “J.S.”

“Janet Simmons J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. L.B. Roberts J.A.”

APPENDIX “A”: EXTRACTS FROM JURY CHARGE, JURY QUESTIONS AND ANSWERS TO JURY QUESTIONS

The original instructions

(b) While committing an unlawful confinement

[204] For the Crown to prove that [the appellant] committed the first degree murder of [the deceased] in this manner, the Crown must prove beyond a reasonable doubt that [the appellant] committed an unlawful confinement, which was not part of the same series of events as the murder.

[209] In this case, all counsel agreed that Crown counsel has established beyond a reasonable doubt that [the appellant] committed the offence of unlawful confinement of [the deceased] when, during the struggle, she attempted to leave the bedroom and [the appellant] grabbed [the deceased] preventing her from leaving the bedroom.

[210] However, simply establishing that there was an unlawful confinement is not enough to establish guilt of first degree murder. In order for [the appellant] to be guilty of first degree murder, Crown counsel must prove beyond a reasonable doubt that [the appellant] murdered [the deceased] while he was committing the offence of unlawful confinement.

[211] In order for [the appellant] to be guilty of first degree murder, the Crown must also prove beyond a reasonable doubt that the unlawful confinement and the killing were two distinct criminal acts and that [the appellant] murdered [the deceased] while committing the offence of unlawful confinement.

[212] They will be distinct if one can be committed without committing the other, but they will not be distinct if the confinement and the killing are essentially one and the same act.

[213] That does not mean that the murder and the unlawful confinement have to happen at exactly the same moment, but it does mean that the murder and the unlawful confinement must be closely connected with one another, in the sense that they must be part of the same series of events. They must both be a part of a single ongoing transaction.

[214] To answer this question, you have to consider the entire course of [the appellant’s] conduct. Look at the whole series of events to decide whether you are satisfied beyond a reasonable doubt that the murder and unlawful confinement were part of a continuous series of events that was a single ongoing transaction. The evidence may show that the murder and the unlawful confinement were all part of a series of events, or it may not.

First question

Number one, paragraph 213, last sentence, question:

Please clarify and provide examples of what a single ongoing transaction would be.

Two, 214, last sentence:

Please provide an example of how the evidence may show that a murder and unlawful confinement were all part of a continuous series of events and an example of how it may not. How do we know the difference?

*Please note that the confusion stems for an apparent contradiction between statements made in paragraphs 204, page 67 and paragraphs 214, page 70.

Answer to the first question

[The trial judge began his answer by rereading para. 204 of his charge, deleting the word “not”, and telling the jury it should not have appeared in that paragraph. He then turned to the jury’s specific question and request for examples.]

Let me provide you with an answer to your questions. For murder, while committing an unlawful confinement to be first degree murder, the Crown must also prove beyond a reasonable doubt that the murderer did the killing while committing an unlawful confinement. This does not require an exact coincidence in timing of the murder and the unlawful confinement, although there must be a close temporal and causative link.

Let me provide you with an example. Where a person enters a bank with a gun to hold up the bank and tells everyone to get to the floor, he then shoots and kills a person. The killing, and the unlawful confinement, are linked temporally, the same series of events of the murder. And causally, during the course of the robbery. This constitutes first degree murder.

To conclude this part, the law establishes that second degree murder will be elevated to first degree murder where the murder and the unlawful confinement are linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction.

The temporal causal connection is established where an unlawful confinement creates a continuing illegal domination of the victim that provides the accused with a position of power which he or she chooses to exploit to murder the victim.

Let me contrast that with the situation where the unlawful confinement and the murder are integral to one another, so that the murder, while committing the unlawful confinement, is not first degree murder.

The law provides that if the unlawful confinement is consumed in the very act of killing, it is not a murder while committing an unlawful confinement, so as to constitute first degree murder. The unlawful confinement and the murder must constitute distinct criminal acts. The question could be put this way, was there an unlawful confinement distinct and independent from the act of killing? If you conclude that the unlawful confinement and the act of killing are one and the same, then it is not murder while committing an unlawful confinement, so as to constitute a first degree murder.

But if the Crown establishes beyond a reasonable doubt that the unlawful confinement was not limited to what was integral in the particular act of killing, then it is a distinct act and the murder, while committing an unlawful confinement, so constitutes first degree murder.

Let me provide you with an example. If a person was to grab the victim and holds his hand over the victim’s mouth until they suffocated, while the holding the victim not letting him go while he suffocates, is an unlawful confinement. It is integral to the act of murder and would not constitute first degree murder on this basis.

The further question

Let me move on to the next question that you provided me this morning and that is the following:

Please confirm the accuracy of paragraph 209, pages 68 to 69 that Crown and defence both agree that, beyond a reasonable doubt, that Mr. Ally committed the offence of confinement of Ms. Newland.

Paragraph 209 is accurate and correct. It is agreed by counsel that there was an unlawful confinement of Ms. Newland early on November 16th, 2012. The real issue for you to decide is whether the unlawful confinement was a distinct act as part of the same series of events, or whether it was integral to the act of murder.

If the unlawful confinement was a distinct act as part of the same series of events, it would constitute first degree murder in this manner, if you’ve already found Mr. Ally had the required state of mind for murder.

If the unlawful confinement was integral to the act of murder, it would not constitute first degree murder in this manner, again, if you’ve already found Mr. Ally had the required state of mind for murder.

Hopefully that answered that question, and if I can help you with that question any further or something similar, please let us know and we’ll do our best to help you.

[^1]: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.

[^2]: Both Dion Mayers, a recreation coordinator at Eva’s Place, and the appellant testified that the incident occurred on October 22, 2012. However, during cross-examination, the appellant said that after reviewing the text messages between him and the deceased, he believed the date of the incident was actually October 23, 2012.

[^3]: According to the appellant, he woke up between 4 and 6 a.m. on November 16, 2012. According to an individual who occupied another bedroom in the basement, he heard noises emanating from the deceased’s room around 7 a.m.

[^4]: The appellant initially testified it took about five seconds, he later said five to eight seconds.

[^5]: On my review of the record, there was no evidence the deceased told the appellant unequivocally to get out. Rather, the appellant testified that in response to him asking why she was treating him as she was, she said, “Fuck man, I didn't ask you to come here.” In answer to his response, “actually you did”, the deceased said, “[I]f you don't like it, you can leave. The door’s right there. You know what it is. You know if you leave you know what it is already.” During cross-examination, the trial Crown adopted the terminology “get out” in his questions, but the appellant never confirmed that the deceased used those words or told him unequivocally to leave.

[^6]: The trial Crown conducting this aspect of the pre-charge conference expressed the Crown’s theory in the following terms:

The plan is, if you leave me I’ll kill you. The deliberate -- so it’s a conditional plan. And obviously doesn’t have to be complicated or in any way elaborate or intricate. The deliberation is the fact that it’s on that evening he’s aware of the conditions that not only the relationship is ending, that’s not as big of a concern because that’s happened numerous times before, but that the theory of the Crown is that this situation with its potential of a shared residence has gone out the window because she has this other place.

[^7]: In R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, Binnie J. clarified that the reference to “forcible confinement” in parentheses is not an operative part of s. 231(5)(e), rather it is inserted for ease of reference. In s. 279(2), the adverb “forcibly” qualifies “seizes”, not “confines” or “imprisons”.

[^8]: It is questionable whether the record can fairly be read to indicate that the appellant first used both hands and then his forearm to strangle the deceased.

[^9]: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[^10]: A full extract of the relevant jury instructions and answers to the jury questions are included in Appendix A.

[^11]: Footnote 13 reads:

The underlying offence and the killing must be two distinct criminal acts in order for a murder to be first degree under Section 231(5): see R. v. Pritchard, 2008 SCC 59; R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.); R. v. Menard, 2009 BCCA 462. Where there is a live issue on the evidence whether the underlying offence and the killing were distinct criminal acts, this instruction [i.e., the same transaction instruction] must be modified, for example, by adding the following language:

In order for (NOA [name of accused]) to be guilty of first degree murder, the Crown must also prove beyond a reasonable doubt that the [specify offence] and the killing were two distinct criminal acts and that (NOA) murdered (NOC [name of complainant]) while s/he was committing the offence of (specify listed offence or attempt).

They will be distinct if one act can be committed without committing the other, but they will not be distinct if the confinement and the killing are essentially one and the same act.

[^12]: This summary is a collation prepared from oral reasons and a document the trial judge sent to counsel before the admissibility voir dire was completed that was marked as Exhibit C on the voir dire. Exhibit C was a partial written admissibility ruling in which, among other things, the trial judge set out the parties’ positions. He sent the document to counsel before the admissibility hearing was completed to ensure he had set out counsel’s positions accurately. No final written admissibility ruling is included in the appeal record.

[^13]: The record may also be seen to suggest that even though Dr. Gojer was unable to support an NCR defence or opine that schizophrenia affected the appellant’s capacity to form the intent for murder, trial counsel had some broader agenda in calling him. However, he never made that agenda clear to the trial judge and called Dr. Gojer knowing the permissible purposes for which his evidence could be used and the limits of the trial judge’s ruling: Tr. Vol. 7, pp. 2567-2570.

[^14]: Tr. Vol. 7, pp. 2566-2567.