Court of Appeal for Ontario

Date: 2022-02-03 Docket: C68453

Before: Feldman, MacPherson and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Max Edwin Tutiven, Appellant

Counsel: Anil K. Kapoor and Dana Achtemichuk, for the appellant Tracy Kozlowski, for the respondent

Heard: January 19, 2022 by video conference

On appeal from the conviction entered on October 10, 2017 and the sentence imposed on November 8, 2017 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury, with reasons for sentence reported at 2017 ONSC 6689.

Thorburn J.A.:

[1] Max Edwin Tutiven (“the appellant”) appeals his conviction for second degree murder and seeks leave to appeal his sentence of life imprisonment with parole ineligibility for 16 years.

Background

[2] On September 15, 2012, the appellant went to a gas station on Roselawn Avenue in Toronto to steal gasoline. He filled his vehicle and several cannisters with gasoline. He had done this many times before and had a lengthy criminal record.

[3] Mr. Prajapati, the gas attendant, noticed that the appellant appeared to be leaving without paying. He ran across a lane of vehicles near the gasoline pumps toward the appellant with his arms outstretched and shouted “hey hey” in an apparent attempt to try and stop him.

[4] Mr. Prajapati was struck by the front passenger side of the appellant’s vehicle. CCTV footage does not show the moment of impact but it is clear that Mr. Prajapati was quickly pulled under the appellant’s vehicle while several people yelled at the appellant to stop.

[5] Mr. Prajapati remained trapped under the vehicle as the appellant sped down Roselawn Avenue for approximately 78 metres before his body was dislodged from the vehicle. Mr. Prajapati died of multiple blunt and crush injuries.

[6] Witnesses heard screeching tires or the sounds of a loud engine. They described the loud dragging sound of Mr. Prajapati’s body. One said the sound was akin to a vehicle hitting a pylon, and the pylon getting lodged under the vehicle and kicked around, followed by a softer dragging sound. Another witness described the sound as “terrible” and sounding “very loudly like a piece of cardboard being dragged on … asphalt”.

[7] The appellant said he intended to leave the gas station after stealing the gasoline but another car parked in front of his car, making it difficult for him to leave. The appellant says he was focused on the other car and did not see Mr. Prajapati approach but did hear a “hey, hey”. He says he did not feel or hear the impact of hitting Mr. Prajapati. The appellant drove out of the gas station and onto Roselawn Avenue, hitting the curb as he left the station. He said he heard something like “stop, stop” as he was leaving. He said he heard what he thought sounded like a pylon dragging under his vehicle. He said he was worried about being caught for gasoline theft and his only thought was to get out of there as quickly as possible.

[8] The appellant said that after driving home that night, he received a call from his father advising that the police were looking for him. He assumed it was about the gasoline theft and went back to bed. The next day he drove to Kingston to see his friend. His friend told him he was wanted by police because the gas attendant had died. The appellant said that he went into hiding in Montréal because he knew that he was unlikely to get bail, due to his numerous prior convictions. He was arrested three years later.

[9] There was no dispute at trial that the appellant struck Mr. Prajapati with his vehicle and that Mr. Prajapati died. The appellant conceded that he was guilty of manslaughter. Therefore, the only issue was whether the appellant intended to kill Mr. Prajapati.

[10] The Crown contended that the appellant made a “continuous, deliberate, and seamless departure” from the gas station and that the appellant saw Mr. Prajapati before he hit him. The Crown noted that there was no evidence of pylons at the gas station and the appellant admitted to seeing no pylons. The Crown argued that the appellant’s testimony was “created to hide the truth”.

[11] The appellant admitted to manslaughter, on the basis that he drove dangerously, it was objectively foreseeable that there was a risk of bodily harm, and it caused Mr. Prajapati’s death. He claimed however that he did not know he hit and was dragging Mr. Prajapati, and there were other reasonable inferences for his conduct that were inconsistent with the intent for murder.

[12] The appellant submitted that his post-offence conduct before he learned he was wanted for murder, supported his submission that he did not have the intent for murder. He submitted that his post-offence conduct after he learned he was wanted for murder, was not relevant in determining whether he was guilty of murder or manslaughter.

[13] The jury convicted the appellant of second-degree murder.

[14] At the sentencing hearing, the Crown sought a period of parole ineligibility of 17 years. In the Crown’s view, this period of parole ineligibility was warranted as the offence demonstrated a callous disregard for life, it was committed by the appellant while he was committing other criminal offences, the appellant’s long criminal record demonstrated a commitment to a criminal lifestyle, and this offence was committed while he was on a life-time driving prohibition and probation.

[15] The appellant submitted that a 17-year period of parole ineligibility was too harsh given that he admitted responsibility and expressed remorse at trial. He submitted that a 10 to 12-year period of parole ineligibility should be imposed instead.

[16] The sentencing judge held that “[t]here are virtually no mitigating factors in this case” and imposed a period of parole ineligibility of 16 years.

The Issues on Appeal

[17] The appellant appeals his conviction and seeks leave to appeal his sentence on the basis of his assertion that:

a. The trial judge failed to inquire into evidence of juror impartiality; b. The trial judge failed to instruct the jury that post-offence conduct could be used to negate the mens rea for murder; c. The trial judge erred in her W.(D.) instruction by failing to instruct the jury that rejection of the appellant’s evidence could not be used to strengthen the Crown’s case; d. The verdict of second-degree murder was unreasonable; and e. The sentencing judge erred by failing to consider a relevant mitigating factor. [1]

Analysis of the Issues

A. Juror Impartiality

The appellant’s submission about juror partiality

[18] During the challenge for cause process in the selection of jurors, a prospective juror said that this case “actually did bother me a lot” given her work with new immigrants to Canada. The prospective juror said she did not know whether she would be able to set aside her preconceived notions and decide the case fairly. The two jurors acting as triers found the prospective juror acceptable. The defence exercised a peremptory challenge to exclude the prospective juror.

[19] The appellant submits that the conduct of the two jurors in finding the prospective juror to be acceptable, created a reasonable apprehension of bias on the part of the two jurors. He therefore submits that the trial judge should have conducted an inquiry into their impartiality and possibly discharged them. The appellant claims that by failing to conduct an inquiry, the trial judge made an error of law.

[20] The appellant submits that the verdict should be set aside on the basis of the trial judge’s failure to inquire into juror partiality.

Analysis of the issue of juror partiality

[21] To demonstrate partiality, it must be clear that a juror’s beliefs, opinions or biases will prevent them from setting aside their preconceptions and deciding the case based solely on the evidence: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 107. Impartiality does not require jurors to be neutral, but jurors’ life experiences cannot interfere with their responsibility to approach the case with “an open mind, one that is free from bias, prejudice, or sympathy”: R. v. Chouhan, 2021 SCC 26, at para. 48, citing R. v. Barton, [2019] 2 S.C.R. 579, at para. 195.

[22] There is a strong presumption of juror impartiality: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. The presumption of juror impartiality can be rebutted only if a reasonable observer would conclude that the juror’s conduct made it more likely than not that the juror, whether consciously or unconsciously, would not decide fairly: Dowholis, at para. 17.

[23] The test for the reasonable apprehension of bias is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.; Dowholis, at para. 19.

[24] The threshold for establishing reasonable apprehension of bias is high: S. (R.D.), at paras. 112-113. Further, safeguards are in place to protect against potential sources of juror partiality. In R. v. Find, [2001] 1 S.C.R. 863, at para. 107, the Supreme Court explained these safeguards as follows:

[T]he safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The presumption of innocence, the oath or affirmation, the diffusive effects of collective deliberation, the requirement of jury unanimity, specific directions from the trial judge and counsel, a regime of evidentiary and statutory protections, the adversarial nature of the proceedings and their general solemnity, and numerous other precautions both subtle and manifest – all collaborate to keep the jury on the path to an impartial verdict despite offence-based prejudice.

[25] The triers’ acceptance of a juror who expressed uncertainty about whether she was able to decide the case fairly but did not say that her uncertainty would impede her ability to decide the case fairly, does not meet the high threshold of reasonable apprehension of bias.

[26] Moreover, the trial judge did everything necessary to ensure juror impartiality.

[27] Before each trier began to perform their task, the trial judge correctly instructed them that, having preconceptions about a case does not necessarily disqualify a potential juror and that what is important, is whether the potential juror “would likely be able to put their opinions aside and decide the case fairly and only on the evidence and legal instructions”.

[28] Each juror swore an oath or made an affirmation to decide the case impartially.

[29] After all the jurors were selected, the trial judge reminded the jury panel of their duty to decide the case only on the basis of the evidence they saw and heard and to make their decision without “sympathy, prejudice or fear”.

[30] The appellant’s experienced defence counsel raised no concerns and neither party asked the judge to conduct a further inquiry into the conduct of the triers.

[31] Lastly, although following jury selection, the appellant told the court there were “a couple things that I’m very, very uncomfortable with, specifically with jury selection”, he made no reference to the two jurors who were triers, their conduct, or any allegation of possible bias. Concerns about the reasonable apprehension of bias should be voiced as soon as reasonably possible: R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 33, 36, leave to appeal refused, [2016] S.C.C.A. No. 184.

[32] The appellant relies on R. v. Budai, 2001 BCCA 349, 154 C.C.C. (3d) 289, leave to appeal refused, [2001] S.C.C.A. No. 415, to submit that once aware of circumstances which raise a question as to the impartiality of a juror, the trial judge must conduct an inquiry into the circumstances.

[33] However, this case is distinguishable from Budai as in Budai, unlike this case, the juror’s conduct raised a real possibility of juror misconduct. The trial judge had received reports of “improper and continuous eye contact” in the courtroom between a juror and an accused, to which the juror made an “improper response”, this had been going on for one to two months, and the parties had nodded at and recognized one another outside the courtroom: at para. 42. This was sufficient to provide a basis for the trial judge’s exercise of discretion to conduct an inquiry.

[34] For these reasons there was no reasonable apprehension of bias on the part of the triers and no error of law committed by the trial judge. This ground of appeal fails.

B. The Instruction On The Proper Use Of Post-Offence Conduct

The appellant’s submission about the post-offence conduct

[35] The jury heard evidence about post-offence conduct which the appellant claims can be categorized in two stages: (1) the appellant’s conduct after leaving the gas station until the time he learned he was wanted for murder in Kingston (“the first stage”), and (2) his conduct from the time he knew he was wanted for murder, until the time of his arrest in Montréal three years later (“the second stage”).

[36] The evidence adduced on the first stage post-offence conduct was relevant to the issue of his awareness of being involved in a serious crime, and thus whether he had the intent for murder. Given that the appellant admitted he was guilty of manslaughter, the evidence adduced in respect of the second stage post-offence conduct was irrelevant to the issue of whether the death was a manslaughter or a murder.

[37] The appellant claims the trial judge’s instruction about the use of post‑offence conduct was confusing and erroneous.

[38] He claims the jury were told they could not use the post-offence conduct to determine the question of intent for murder (which was the sole issue of contention), but were not told how the post-offence conduct could assist in determining whether the Crown had proven its case if it did not apply to intent. Specifically, they were not told how a finding that the appellant’s actions were consistent with innocence, or consistent with someone who is not aware of having committed any serious offence, should factor into their deliberations.

Analysis of the post-offence conduct issue

[39] The trial judge correctly instructed the jury that the post-offence conduct evidence could be used to decide whether the Crown had proven Mr. Tutiven’s guilt beyond a reasonable doubt.

[40] They were then told how they could use that evidence as follows: “[I]f you agree with [appellant’s trial counsel] Mr. Sapiano's position that manslaughter has been proven and the only issue is to decide whether the Crown has proven the intent for murder, the post-offence conduct evidence cannot be used by you at all as evidence pointing to guilt. In those circumstances you should ignore it because, in law, it has no probative value in deciding between murder and manslaughter” (emphasis added).

[41] The trial judge went on to say, however, that, “You must consider the post-offence conduct evidence that is consistent with innocence. This is the evidence that Mr. Tutiven went to his rooming house, left his car parked at his rooming house, left when he planned and did not take any steps to hide his whereabouts, went to a restaurant in Kingston with his friend. If believed, this may be seen as conduct that is consistent with someone who is not aware of having committed any serious offence” (emphasis added).

[42] The question is whether the jury instruction, read in its entirety, in the context of the case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence: R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-18. This court held in R. v. Adan, 2019 ONCA 709, at para. 35, “Whether a trial judge’s instructions were sufficient depends on the significance of the nature of the conduct involved; the use made of the evidence at trial; the instructions given about its use; and the positions of the parties about the adequacy of those instructions.”

[43] Further, a failure by trial counsel to object is not decisive, but is a factor warranting consideration on appellate review: Adan, at para. 63; R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 38. A failure to object to an instruction later advanced as erroneous on appeal “may say something about the overall accuracy of the instructions, the fairness of the charge, and the seriousness of the alleged misdirection”: Aden, at para. 63; see also Jacquard, at para. 38.

[44] Looking at the charge as a whole, there was no prejudice to the appellant’s right to a fair trial.

[45] The appellant, through his counsel, conceded that he was guilty of manslaughter although that was ultimately a matter for the jury to decide.

[46] The jurors were told they could not use the evidence to determine that the appellant had the intent necessary for murder, but they could use the evidence, to the extent it was consistent with innocence, to support a finding that the appellant was not aware of having committed any serious offence. Those instructions were correct.

[47] The jury would have understood that they could use the evidence to negate mens rea for murder as they were clearly instructed that they must consider this evidence insofar as it is consistent with the appellant’s innocence both of the act and the intention to commit the act.

[48] The appellant’s experienced trial counsel did not object to this instruction. During pre-charge discussions, the appellant’s trial counsel initially requested that the trial judge include after-the-fact conduct consistent with innocence in the portion of the charge on intent for murder, but then abandoned the request.

[49] For these reasons, this ground of appeal fails.

C. The Adequacy of the W.(D.) Instruction

The appellant’s submission about the trial judge’s failure to give an O’Connor-type instruction

[50] The standard W.(D.) instruction is appropriate when the trier of fact makes credibility findings based on conflicting evidence going to the essential elements of the offence: R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-758.

[51] In this case, the trial judge provided the standard instruction on the third step of the W.(D.) analysis as follows:

Even if the testimony of Mr. Tutiven does not raise a reasonable doubt about his guilt, if after considering all the evidence and the lack of evidence, you are not satisfied beyond a reasonable doubt of his guilt, you must find him not guilty of second degree murder.

Even if you reject his evidence and it does not raise a reasonable doubt you can only find that he assaulted Mr Prajapati if the rest of the evidence satisfies you beyond a reasonable doubt that he intended to apply force.

Even if you reject his evidence on this point and it does not raise a reasonable doubt, you may only convict him of murder if the whole of the evidence satisfies you of his guilt beyond a reasonable doubt.

[52] The appellant suggests that this instruction was insufficient. He claims that the jury should have been given a modified O’Connor instruction such as the following:

If you disbelieve the accused’s evidence you should disregard it. Your rejection of or disbelief in the evidence of the accused is not evidence that you may use in determining whether the Crown has proven its case beyond a reasonable doubt. It has no probative value. You must ignore the testimony and treat it as if it had never been given.

[53] The appellant suggests this instruction was necessary to ensure that if the jury disbelieved the appellant’s testimony, their disbelief was not used as additional evidence in support of the Crown’s case because disbelieving the appellant’s evidence does not mean it was fabricated.

Analysis of the trial judge’s failure to give an O’Connor-type instruction

[54] An O’Connor instruction is given where the Crown seeks to have the trier of fact draw an adverse inference on the basis of an alleged fabrication of an exculpatory statement by the accused, and the Crown can prove fabrication based on independent evidence: R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.), at paras. 35-37; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 41.

[55] The law distinguishes between an exculpatory statement given by an accused that is disbelieved, and one that is determined to have been fabricated to avoid culpability: R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38; Al-Enzi, at para. 38.

[56] A statement that is disbelieved is not evidence that strengthens the Crown’s case. It is simply determined to be untrue: Al-Enzi, at para. 38. On the other hand, a statement that was deliberately fabricated can support an inference of guilt because the trier of fact can draw an inference that the accused lied to conceal their guilt: Al-Enzi, at para. 38.

[57] In R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), at p. 203, leave to appeal refused, [1998] S.C.C.A. No. 450, Doherty J.A. explained the basis for the distinction between disbelief and fabrication:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events.

[58] Where the Crown asserts fabrication, the Crown must not only adduce evidence that disproves the exculpatory statement, but also adduce independent evidence that proves that the exculpatory statement was made to deflect from the accused’s guilt: Al-Enzi, at para. 39. Where independent evidence of fabrication exists, the trier of fact should be made aware of the principles governing the use to which they can put the statement: Al-Enzi, at para. 41.

[59] The question to be addressed when an appellant asserts that an O’Connor instruction was warranted “is not whether an O’Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant’s right to a fair trial”: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 263; Al-Enzi, at para. 43. An appellate court should undertake a functional assessment of the charge, read as a whole in the context of the specific case, giving significant weight to the position advanced by trial counsel: R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-19; Al-Enzi, at para. 44. Further, this court has recognized that a trial judge’s instruction highlighting the circumstances supporting fabrication may in fact work to the detriment of the accused as it may serve to emphasize the powerful case supporting fabrication: Polimac, at para. 106; Al-Enzi, at para. 45.

[60] In this case, no O’Connor instruction was required as the Crown was not seeking to have the trier of fact draw an inference of guilt on the basis of an alleged fabrication of an exculpatory statement.

[61] In closing submissions, Crown counsel referenced the appellant’s “false narrative” and characterized his account of events as incredible, suggesting that he was hiding the truth. Crown counsel stated that, “you should reject Mr. Tutiven’s false narrative.”

[62] Crown counsel submitted that, “Throughout his testimony, rather than answering simple questions, Mr. Tutiven repeatedly chose to provide what the Crown would characterize as unresponsive answers filled with extra details to camouflage the truth.” Crown counsel stated that Mr. Tutiven’s evidence was,

[A]n unbelievable story from an unbelievable storyteller.

Mr. Tutiven, in his evidence, was argumentative, evasive, he was regularly unresponsive to even simple questions. His evidence was convoluted and often contradictory. He was inconsistent, and the Crown would say, incredible. He demonstrated no commitment to tell the truth. On the contrary, his testimony had all the hallmarks of an individual providing untruths and an unreliable witness.

[63] However, while Crown counsel asserted that the appellant did not tell the truth, he did not encourage the jury to draw an inference of guilt from their disbelief of the appellant’s evidence.

[64] Moreover, although the trial judge summarized the Crown’s position, including that the appellant “demonstrated no commitment to tell the truth”, the trial judge did not include anything in the jury charge from which the jury could have understood that they could draw a negative inference if they disbelieved the appellant’s account.

[65] On the contrary, she emphasized the requirement that the jury be convinced of the appellant’s guilt beyond a reasonable doubt on the entirety of the evidence even if the appellant's evidence failed to raise a reasonable doubt. Further, trial counsel for the appellant did not request an instruction on the fact that evidence of disbelief could not be used to infer guilt.

[66] In R. v. Badiru, 2012 ONCA 124, this court held that an O’Connor instruction on the distinction between disbelief and a finding of fabrication was not necessary, despite the fact that the Crown had stated in closing submissions that the appellant’s testimony was fabricated: at para. 23. This court held that an instruction was not mandatory as the allegedly false statement was part of defence evidence, the trial judge gave an adequate W.(D.) instruction, the Crown did not ask the jury to infer guilt from disbelief, and the defence at trial did not request the instruction sought on appeal: at para. 23.

[67] For similar reasons, the instructions given in this case did not prejudice to the appellant's right to a fair trial: Polimac, at para. 106; Al-Enzi, at para. 43.

[68] This ground of appeal therefore fails.

D. Whether the Verdict was Reasonable

The appellant’s submission about the reasonableness of the verdict

[69] The appellant submits that the verdict is unreasonable, and a verdict of manslaughter should be substituted.

[70] The appellant notes that the Crown’s case on the intention to commit murder was entirely circumstantial and the jury was invited to convict the appellant based on a series of common-sense propositions about what the reasonable person would have perceived on the night in question: that the appellant must have seen Mr. Prajapati, must have heard the impact, and must therefore have been aware that he had hit and/or was dragging Mr. Prajapati under his car to his untimely death.

[71] The appellant submits however, that there were other reasonable inferences inconsistent with guilt and that he should therefore have been found guilty of manslaughter but not second-degree murder.

Analysis of the reasonableness of the verdict issue

[72] A verdict is reasonable if it is a verdict “that a properly instructed jury acting judicially could reasonably have rendered”: R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 55.

[73] The Crown’s case for establishing the mens rea for murder was entirely circumstantial. In circumstantial cases, the trier of fact must be satisfied that the appellant’s guilt is the only reasonable conclusion available on the totality of the evidence: Villaroman, at para. 55.

[74] When assessing circumstantial evidence, the trier of fact should consider other reasonable possibilities inconsistent with guilt. Other possibilities “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”, and not based on speculation: Villaroman, at paras. 36-37.

[75] However, the evidence does not have to completely exclude other conceivable inferences and a “verdict is not unreasonable simply because ‘the alternatives do not raise a doubt’ in the jury’s mind”: Villaroman, at para. 556. It is ultimately for the trier of fact to determine if a proposed inference is reasonable enough to raise a doubt: Villaroman, at para. 56.

[76] The trial judge properly cautioned the jury against too readily drawing inferences of guilt based on the circumstantial evidence: Villaroman, at para. 30. She instructed them that,

[Y]ou cannot reach a verdict of guilty based on circumstantial evidence unless you were satisfied beyond a reasonable doubt that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn from the whole of the evidence. In this case, the evidence relied upon by the Crown to prove Mr. Tutiven’s state of mind is entirely circumstantial. It is important that in considering the circumstantial evidence of Mr. Tutiven’s state of mind … you consider other reasonable conclusions that are consistent with the evidence or with the lack of evidence.

The evidence of his intention, other than his own evidence of what he intended, is entirely circumstantial. You can rely on circumstantial evidence to conclude that Mr. Tutiven intended to apply force. You should remember, however, that before relying on circumstantial evidence to infer guilt you must be satisfied beyond a reasonable doubt that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn from the whole of the evidence on this issue of his intention to apply force. Before inferring guilt, you must consider whether there are other reasonable inferences available from the evidence or lack of evidence.

The evidence of intent that could point to guilt is wholly circumstantial. You are entitled to rely on the circumstantial evidence to infer guilt but you must be satisfied beyond a reasonable doubt that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn from the whole of the evidence. It is important that in considering the circumstantial evidence relating to Mr Tutiven’s state of mind that you consider other reasonable conclusions that are consistent with the evidence or with the lack of evidence.

[77] In order to decide whether the appellant was guilty of manslaughter or murder, the only issues the jury had to decide were whether (a) the appellant saw Mr. Prajapati before he ran him over, or (b) the appellant became aware sometime after hitting Mr. Prajapati that he was dragging a person underneath his car and did not stop driving. If the Crown proved either, the requirement of intent for murder pursuant to s. 229 (a)(ii) of the Criminal Code was satisfied.

[78] The instant that Mr. Prajapati was run over was not captured on CCTV footage. However, before he was hit, Mr. Prajapati can be seen in CCTV footage moving forward toward the appellant’s vehicle after seeing the appellant fill his tank with gasoline and appearing to leave without paying. The gas station was brightly lit and Mr. Prajapati wore a bright yellow and red Shell uniform that was plainly visible. A witness testified that Mr. Prajapati shouted “hey” in an apparent attempt to stop the appellant.

[79] CCTV footage shows that the appellant’s vehicle briefly flashed its brake lights, then moved forward from pump five, in lane three, into lane two in the very direction Mr. Prajapati was running. In another CCTV video, Mr. Prajapati appeared running toward the front passenger side of the appellant’s vehicle, with his hands raised. The CCTV footage suggests that the appellant was not engaged in complex driving manoeuvres at the moment Mr. Prajapati was struck and therefore was not distracted before he sped away.

[80] As the appellant sped away from the gas station, Mr. Prajapati’s body was under the appellant’s vehicle. Mr. Prajapati weighed approximately 70 kilograms and his body was dragged approximately 78 metres before it was dislodged from the vehicle.

[81] Two witnesses who were at the gas station testified that they saw Mr. Prajapati stand in front of the appellant’s vehicle with his hands raised trying to stop the vehicle when the vehicle accelerated. The witnesses testified that the vehicle hit him, and then kept driving, dragging Mr. Prajapati.

[82] One of the witnesses, who was inside his car with the window down during the incident, said that as Mr. Prajapati was dragged down the street, he could hear people screaming for the driver to stop from their balconies in a nearby apartment building on Roselawn Avenue. Another witness in the apartment building, heard the vehicle leave the scene, dragging something, and then heard the dragging stop and someone yell, “Call 911”.

[83] The appellant said that he heard what he thought was a pylon under the vehicle but he agreed that he did not see a pylon in or around the gas station.

[84] The appellant suggests that Mr. Prajapati could have tripped and fallen in front of the appellant’s vehicle. The appellant’s trial counsel did not raise this suggestion to any of the Crown witnesses. This suggestion was advanced for the first time in the defence closing address. Further, there is no evidence or lack of evidence to support this submission. A witness described that Mr. Prajapati was upright, with his hands up to stop the vehicle, when he was hit, and that his hands made contact with the hood of the vehicle. The jury, properly instructed, was entitled to reject this submission as not being a reasonable possibility.

[85] Taken together, the fact that Mr. Prajapati was hit from the front passenger side of the appellant’s vehicle in a well-lit area wearing brightly-coloured clothing, that Mr. Prajapati’s 70 kilograms were dragged under the appellant’s vehicle for approximately 78 metres, many witnesses heard the body being dragged, people screamed that he stop, the appellant heard a “hey, hey” before he left the gas station and something like “stop, stop” as he was leaving, and that he felt his vehicle dragging something as he left, were sufficient to enable the jury to conclude that the appellant was guilty of second degree murder.

[86] There was ample evidence to allow the jury to (a) reject the possibility that Mr. Prajapati tripped and fell in front of the appellant’s vehicle just as the appellant was speeding away, and (b) be satisfied beyond a reasonable doubt that the appellant either saw Mr. Prajapati and deliberately ran him over, or realized after he struck Mr. Prajapati that he was dragging someone under his vehicle and continued to speed away without stopping.

[87] For the above reasons, this ground of appeal fails.

E. The Sentence Appeal

[88] The Crown sought 17 years’ parole ineligibility, the appellant sought 10 to 12 years, and the sentencing judge imposed a period of 16 years’ parole ineligibility. The appellant claims this is excessive and fails to consider his remorse and acceptance of responsibility as a mitigating factor.

[89] Sentencing decisions are subject to deference and will only be varied where (i) the sentence is demonstrably unfit, or (ii) the sentencing judge made an error in principle that had an impact on the sentence imposed, including an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor on sentencing: R. v. Lacasse, [2014] 3 S.C.R. 1089, at paras. 41-44; R. v. Friesen, 2020 SCC 9, at paras. 25-26.

[90] In this case, the sentencing judge did not fail to consider that the appellant took some responsibility for what he had done. She determined however that no mitigating value attached to it, as his was a “late admission of some limited responsibility” after three years spent evading arrest.

[91] She committed no error in principle in arriving at this conclusion nor is the sentence demonstrably unfit.

[92] This ground of appeal fails.

Conclusion

[93] For the above reasons, I would dismiss the conviction appeal. While leave to appeal the sentence is granted, I would dismiss the sentence appeal.

Released: February 3, 2022 “K.F.” “J.A. Thorburn J.A.” “I agree. K. Feldman J.A.” “I agree. J.C. MacPherson J.A.”

[1] In oral argument, the appellant abandoned his argument that the trial judge should not have left the jury with dangerous driving as a route of liability for second degree murder.