WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(3.1) An order made under this section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim, or witness or justice system participant.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(5.1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall

(a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order;

(b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order; and

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(8.1) If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(8.2) If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have

(a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 2024-04-08 Docket: C66857

Nordheimer, Coroza and George JJ.A.

Between:

His Majesty the King Respondent

and

Ian Bush Appellant

Counsel: Mark Halfyard and Samantha Bondoux, for the appellant Gregory J. Tweney, for the respondent

Heard: March 7, 2024

On appeal from the conviction entered by Justice Robert N. Beaudoin of the Superior Court of Justice, sitting with a jury, on December 1, 2017, and from the sentence imposed on December 20, 2017, with reasons reported at 2017 ONSC 7627.

Nordheimer J.A.:

[1] Ian Bush appeals his conviction for attempted murder reached after a trial with a jury. The appellant was also convicted of other offences, including robbery and firearm offences, but those convictions are not challenged on this appeal. The appellant also seeks leave to appeal his sentence of life imprisonment imposed on the attempted murder charge.

Background

[2] On December 18, 2014, Ernest Côté, who was then 101 years old, was attacked in his condominium. After the attacker left, Mr. Côté managed to call his son and then 911. He was found by his son and the police sitting on his walker, with a plastic bag taped around his neck, talking to the 911 operator on the phone.

[3] Mr. Côté passed away before trial, but a recorded police statement he gave the afternoon of the robbery was admitted into evidence. In it, Mr. Côté said, that morning he heard the doorbell, checked the video screen in his condominium which allowed him to see who was in the lobby, and asked who was there. The visitor claimed to be from the City of Ottawa and Mr. Côté buzzed him in. A few moments passed before the visitor rang the bell again to confirm which apartment Mr. Côté lived in.

[4] When Mr. Côté opened the door, he said the visitor entered his apartment and immediately demanded money. Mr. Côté would not give him any. The visitor produced a roll of duct tape, and taped Mr. Côté’s hands behind his back. From Mr. Côté’s wallet, the visitor took $500 and a credit card. He interrogated Mr. Côté and extracted his PIN number. Mr. Côté deliberately provided an incorrect PIN number without arousing the thief’s suspicions. The thief taped Mr. Côté’s mouth, produced a plastic bag and put it over Mr. Côté’s head, and taped the bag in place.

[5] After the attacker left, Mr. Côté managed to free his hands, went to his bedroom where he knew there was a pair of scissors, and cut the bag open. He then called his son and the police.

[6] The police found a bus transfer on the floor of the condominium from which they were able to identify some places and times that might have relevant surveillance footage. The police also viewed footage from the condominium lobby on the day of the robbery and saw a man they presumed was the thief in the anteroom of the condominium, carrying a black computer bag and wearing a distinctive jacket with a stripe on the sleeve. The footage showed this person speaking on the intercom, leaving the anteroom, then returning moments later to speak on the intercom again.

[7] That same day, after tracking the credit card that Mr. Côté reported stolen, the police found surveillance footage from ATM machines where the thief had tried to use the card in the Place D’Orleans mall. He had tried several machines unsuccessfully. Mall surveillance footage showed that he spent more than an hour there. Police used the footage from the condominium and the ATM machines to produce a media release seeking the public’s assistance in identifying the person, which was posted on YouTube.

[8] A few days later, one of the appellant’s sons was at work when he received a message containing a photo from an Ottawa police media release said to depict Ernest Côté’s assailant. The son sent it along to his brother. The brothers agreed that the man in the photograph, and in the video, was their father, the appellant. One son called the police and told them his father was the man in the media release, that he was at home, and that there may be weapons in the house. The police arrived at the house and arrested the appellant.

[9] The police executed a search warrant on the appellant’s home. In the front closet, they seized a jacket that was similar to the one the robber was seen wearing in the surveillance footage. In the basement, police found a black shoulder bag. It contained duct tape, rubber gloves, clear plastic bags, yellow nylon rope, a knife with a sheath, a couple of sharpened pieces of wood, a metal bar with tape wrapped around one end, a pellet pistol, a sawed off .22 calibre rifle, pellets, an unopened package of duct tape, and some kind of thin piece of metal “with an end part to it.” The bag also contained a black notebook. One page of the black notebook detailed the route to get from the appellant’s home to Mr. Côté’s condominium building. The police also found a Rand McNally map book which had the address for Mr. Côté’s condominium building circled in red.

[10] On a pre-trial motion, the prosecution sought to adduce similar act evidence related to a triple murder committed in 2007, in which the three deceased had their arms bound and were suffocated by plastic bags secured over their heads. The appellant was convicted of these murders a few months before his trial on the charges involving Mr. Côté.

[11] The trial judge dismissed the prosecution’s similar act application. He concluded that balancing the probative value against the prejudicial effect of the evidence weighed against the admission of the similar act evidence. In his reasons [1], the trial judge said, at paras. 74-75:

I am satisfied that the conflicting demands of probative value and prejudice must be resolved against the admission of the similar fact evidence in this case.

I believe that the similar fact evidence, more serious than the conduct charged, would simply overwhelm the ability of a jury to dispassionately consider the facts relating to the subject charges.

[12] When the prosecution closed its case at trial, the defence immediately filed materials in support of a Corbett application. The appellant’s counsel said that, should the appellant choose to testify, he would do so in line with what he told his assessors at the Royal Ottawa Hospital in 2015. In his Corbett ruling [2], the trial judge summarized the appellant’s statements to the psychiatric assessors, at para. 9:

In his disclosure to the psychiatrists, the Applicant stated that he had no plan to rob any person in particular, that he had brought duct tape from his home; that he always carried a plastic bag with him for shopping and that he had taped the plastic bag around Mr. Coté's neck ensuring that there would still be an opening by speaking to him and that he was satisfied that his victim could still breathe.

[13] The trial judge dismissed the Corbett application. In doing so, he concluded, at para. 20: “The probative value of the Applicant's record outweighs any prejudice [to] the Applicant and that prejudice can be addressed through a properly worded instruction.”

[14] At the same time as the appellant’s Corbett application, the prosecution had sought permission to cross-examine the appellant on the facts underlying the murder convictions. The trial judge determined that he would deal with the Corbett application first, and then deal with the application to cross-examine.

[15] After dismissing the Corbett application, the trial judge ruled that the prosecution could cross-examine the appellant on the facts underlying the murder convictions. [3] In doing so, the trial judge held that the fact that the appellant might testify, together with the nature of his anticipated evidence as he had summarized it in his Corbett ruling, constituted a material change in circumstances justifying a revisiting of his earlier similar act ruling.

[16] After these rulings, the appellant chose not to testify. The jury convicted him of attempted murder, among other offences. The appellant was sentenced to life imprisonment with no parole eligibility for 10 years.

The Conviction Appeal

[17] The appellant does not challenge the Corbett ruling on his conviction appeal. Rather, the appellant says that the trial judge erred in revisiting the similar act application and permitting cross-examination on the facts underlying the murder convictions. The appellant says that there was no material change in circumstances that warranted a revisiting of that ruling. The appellant also says that the trial judge’s ruling is flawed in that it did not engage in the necessary probative value versus prejudicial effect analysis.

[18] I agree with the appellant that there was no material change in circumstances that justified the trial judge revisiting his earlier ruling. I recognize that the prosecution’s application to cross-examine the appellant is technically a different application than the application to admit similar act evidence. However, the practical effect is the same. If granted, the prosecution would be permitted not only to put what constituted the similar act evidence to the appellant, but to lead that evidence in reply. Consequently, the prosecution’s application to cross‑examine the appellant on that evidence is, for all intents and purposes, an application to revisit the earlier similar act ruling.

[19] At the time of his original ruling, the trial judge knew, or at least should have been cognizant, of the possibility that the appellant would testify. That was one of the considerations that should have been part of the trial judge’s analysis in considering the similar act application.

[20] In considering a similar act application, it is also important to identify the issues at trial to which the similar act evidence is directed. That point is made clear in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, where Binnie J. said, at para. 74:

The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate.

[21] It was known to the trial judge that one of the central issues in the prosecution was going to be the intent of the attacker. Intent is, of course, one of the essential elements of the offence of attempted murder. On more than one occasion in this ruling on the similar act application, the trial judge identifies the probative value of the similar act evidence as going to the issue of the appellant’s intent. For example, at para. 2 of his reasons, the trial judge says that the Crown is seeking to introduce the evidence of the 2007 murders “as being relevant to the essential element of intent”. Additionally, there was no reason not to expect that, if the appellant testified, it would be to deny that he had the intent to kill Mr. Côté. Still further, the prosecution knew from a psychiatric report what evidence the appellant was likely to give, if he testified.

[22] This leads into a complicating issue, which arises from the fact that the appellant’s statements recorded in the psychiatric report were “protected statements” under s. 672.21 of the Criminal Code. That meant they were not “admissible in evidence” without the accused’s consent: s. 672.21(2). It is not clear from the record when the trial judge became aware of the contents of the psychiatric report. It is clear, though, that by the time of the Corbett application, the content of the report was known to the trial judge because he summarizes it in his reasons, as set out above.

[23] Given that the trial judge knew about the contents of the psychiatric report, and at least referenced the contents of it in his reasons, what is not explained is why the psychiatric report was never made an exhibit at the trial. That failure means that it does not form part of the record before this court. This is problematic because there is a disagreement between the parties over whether the trial judge’s summary of the appellant’s anticipated evidence is accurate. The respondent contends that there was some concern at trial that the appellant was going to testify that he did not know that putting a plastic bag over a person’s head could lead to suffocation and death. The respondent contends that the evidence from the three murders, where all three persons were killed through this method, would go to refute any such contention by the appellant.

[24] The difficulty for the respondent in making this assertion is two-fold. One is that they cannot point to anything in the record that would provide a foundation for this version of what the appellant might say, if he gave evidence. The other is that this alternative version is not the version that the trial judge relied upon in making his subsequent ruling that permitted the prosecution to cross-examine the appellant on the facts underlying the murders.

[25] This court has to take the record as we find it. We must review the trial judge’s ruling on the basis that he made it, not on some other speculative basis that does not find a foundation in the record.

[26] Returning then to whether a material change in circumstances had taken place, the parties agree on the law relating to what constitutes a material change in circumstances. It was set out in R. v. Adams, [1995] 4 S.C.R. 707, where Sopinka J. said, at para. 30:

As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place.

[27] As I have already said, intent was always going to be an issue in this trial. The trial judge recognized that in his similar act ruling. Nothing material changed in that regard between the similar act ruling and the request to cross-examine. It cannot be disputed that the testimony of an accused person can always give rise to potential new and unexpected issues that might require an earlier ruling to be revisited. However, it is difficult to see how the denial by an accused person of an essential element of the offence would ever be such a new and unexpected issue.

[28] Further, the reason why the original similar act application was refused was because the trial judge determined that the prejudicial effect of the evidence from the three murders outweighed their admitted probative value. For the evidence of the murders to move from inadmissible evidence to admissible evidence would require a finding that the anticipated evidence of the appellant altered the balance between probative value and prejudicial effect. Such a route to revisiting a ruling is discussed in R. v. D.(L.E.), [1989] 2 S.C.R. 111, where Sopinka J. said, at para. 27:

As I have discussed, it is the prejudice which this evidence could cause to the appellant which is the reason it must be excluded. While the nature or significance of evidence may change in the course of proceedings and the similar facts rule can take into account such changes, in the case at bar, the balance was not altered sufficiently to render the evidence admissible.

[29] The same is true here. Nothing changed in terms of the prejudicial effect of the evidence of the three murders since the similar act ruling was made. Indeed, the trial judge does not, at any point in his ruling allowing the prosecution to cross‑examine on the underlying facts of the three murders, suggest that there has been a change in the probative value/prejudicial effect analysis. More problematically, the trial judge does not even engage in that analysis in the course of his reasons which resulted in him allowing the cross-examination, thus essentially reversing his earlier ruling. The trial judge erred in this regard.

[30] There was nothing different at the point when the appellant said that he might give evidence that materially affected the trial judge’s earlier analysis of the probative value/prejudicial effect respecting the evidence of the three murders. Put simply, there was no material change in circumstances that justified a reversal of his earlier ruling.

[31] In the concluding paragraphs of his reasons, the trial judge engaged in a harangue about distorting the truth and misleading the jury. This appears to be his ultimate justification for reversing his earlier ruling. I do not understand the trial judge’s reaction. Juries are often prohibited from hearing evidence for a variety of reasons, including the possibility that the evidence will be misused. That possibility underlies the prejudicial effect portion of the balancing required when determining the admissibility of any evidence. Evidence that is more prejudicial in its effect, than probative on the issues, is a perfect example of the principle that justifies exclusion. The exclusion of the evidence of the three murders, in these circumstances, did not distort the truth or mislead the jury as the trial judge contended. Rather, it protected the integrity of the decision-making process in which the jury is instructed to engage. I would add, on this point, that the prosecution had other evidence, and other avenues, to challenge the appellant even if he gave the evidence that was feared about his belief of the harmlessness of putting plastic bags over people’s heads.

The Proviso

[32] The trial judge’s error in his ruling on the scope of the cross-examination of the appellant gives rise to a consideration of whether the curative proviso should be invoked. Section 686(1)(b)(iii) of the Criminal Code authorizes an appellate court, where an error has been made at trial, to nonetheless dismiss the appeal where the court is “of the opinion that no substantial wrong or miscarriage of justice has occurred”. In my view, this is such a case.

[33] The appellant did not ultimately give evidence. Consequently, the jury never heard anything about the three murders for which he had been convicted. The prejudice arising from that potential evidence therefore disappeared. Nevertheless, the appellant contends that he might have given evidence if the trial judge had not permitted the prosecution to cross-examine him on the facts underlying those murder convictions and, therefore, the trial judge’s erroneous ruling interfered with his right to do so.

[34] There are at least two problems with the appellant’s contention in that regard. First, notwithstanding the adverse ruling on the Corbett application, there was no clear statement by the appellant that he would give evidence if he was successful in resisting the prosecution’s application to cross‑examine him on the facts underlying those murders. Rather, both issues were argued seriatim; so we are simply left knowing that the appellant said that he might give evidence prior to both rulings but then said he would not give evidence after both rulings.

[35] Second, I have difficulty accepting that the appellant would have given evidence after the trial judge ruled that his convictions for three murders could be put before the jury, if he did so. By the time that the prosecution completed its case, there was no issue about the identity of the man who attacked Mr. Côté. Rather, the central issue was the intent to kill. It would seem unlikely that the appellant would want the jury to know of his convictions for three murders when they were considering that issue, or that he would want to be in a position of explaining how he did not intend to kill Mr. Côté, notwithstanding those convictions.

[36] In any event, the mere possibility that the appellant would have testified is insufficient to undermine confidence in the verdict. This issue was discussed in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.) where Doherty J.A. said, at para. 118:

Any attempt, on this record, to quantify the likelihood of the appellant's testifying as more than a mere possibility would amount to speculation. I cannot say that there is a reasonable probability that the appellant would have testified or that the chances that the appellant would have testified are sufficiently high so as to undermine my confidence in the verdict.

[37] I reach the same conclusion in this case.

The Sentence Appeal

[38] This issue can be dealt with briefly. The appellant submits that the sentence of life imprisonment is unfit and that the trial judge made material errors in his analysis that lead to the imposition of that sentence. In particular, the appellant says that the trial judge erred in treating the appellant’s lack of insight, and the lack of any psychological explanation for his actions, as aggravating factors.

[39] The trial judge listed these two factors among ten factors that he considered to be aggravating factors in this case. In fact, he listed them as the last two factors. Neither of these factors, stated starkly as they were in the trial judge’s reasons, properly constitute aggravating factors. Nonetheless, they are both relevant to the future dangerousness of the appellant and his prospects for rehabilitation. Those aspects are properly taken into account in determining a fit sentence: see, e.g., R. v. Shah, 2017 ONCA 872, at para. 8.

[40] Reading the reasons of the trial judge on sentencing as a whole, I do not see that these two factors distorted his analysis of the appropriate sentence for attempted murder. The other factors that he listed, especially the age of the victim, that it was a home invasion, that it was carefully planned, and the fact of the appellant’s earlier convictions for three murders, all justified a very severe sentence. While I recognize that the trial judge imposed the maximum sentence, I cannot conclude that such a sentence was demonstrably unfit such as to warrant intervention by this court: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 51. Certainly, the appellant’s submission before this court that a sentence of 10 to 12 years ought to have been imposed is woefully inadequate given the circumstances of this case.