Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240708 DOCKET: C69917, C69921, C70264 & C70296

Fairburn A.C.J.O., Favreau and Copeland JJ.A.

DOCKET: C69917 & C70296

BETWEEN

His Majesty the King Respondent/Appellant

and

Christopher Marchant Appellant/Respondent

DOCKET: C69921 & C70264

AND BETWEEN

His Majesty the King Respondent/Appellant

and

Steven Snively Appellant/Respondent

Counsel: Michael Lacy and Bryan Badali, for the appellant (C69917)/respondent (C70296), Christopher Marchant Andrew Furgiuele and Rebecca Silver, for the appellant (C69921)/respondent (C70264), Steven Snively Elise Nakelsky, for the respondent (C69917 & C69921), His Majesty the King Nicolas de Montigny, for the appellant (C70264 & C70296), His Majesty the King

Heard: November 1, 2023

On appeal from the convictions entered by Justice Harrison S. Arrell of the Superior Court of Justice on June 8, 2021, with reasons reported at 2021 ONSC 3901, and the sentences imposed on January 18, 2022, with reasons reported at 2022 ONSC 263.

Fairburn A.C.J.O.:

Overview

[1] Around 9:00 p.m. on December 2, 2017, first responders were dispatched to the scene of a shooting. The police were the first to arrive, followed by firefighters, and then paramedics. Yosif Al-Hasnawi, a 19-year-old university student, was lying on the sidewalk, surrounded by his friends and family. He had been shot in the abdomen with a .22 calibre hollow-point bullet. He did not have long to live. Time was of the essence, but none of the first responders were in a rush.

[2] The appellants were two paramedics who arrived on scene at approximately 9:09 p.m. [1] They concluded that the victim was only suffering from a superficial, non-penetrating wound that could have been caused by a pellet gun. They thought that his behaviour was rooted in a psychiatric condition, or possibly caused by drug or alcohol use. Accordingly, they treated the victim in a way that defied all protocols for addressing a patient suffering from a penetrating wound to the abdomen. They inappropriately lifted the victim from the ground, delayed leaving the scene, and did not route the patient to the area’s lead trauma hospital (“trauma hospital”), where his best chance of survival awaited. His vital signs sharply deteriorated en route to the area hospital specializing in psychiatric care (“psychiatric hospital”), and he was declared dead shortly after his arrival there.

[3] The appellants were convicted of failing to provide the necessaries of life. The trial judge concluded that their actions amounted to a marked departure from the standard of care that was expected from reasonably trained primary care paramedics, specifically as it pertained to their: (1) failure to conclude that the victim was suffering from a penetrating wound to his abdomen; (2) participation and acquiescence in inappropriate lifts of the victim; and (3) tardy approach prior to leaving for the hospital.

[4] The trial judge imposed 18-month conditional sentences upon both appellants.

[5] The appellants appeal from conviction. Their grounds of appeal can be broadly described as follows:

(a) the trial judge’s reasons demonstrate an erroneous analytical approach; (b) the trial judge’s reasons are insufficient and contradictory; and (c) the trial judge misapprehended key pieces of evidence.

[6] The Crown also seeks leave to appeal from the sentences and, if leave is granted, asks that custodial terms be imposed.

[7] For the reasons that follow, I would dismiss both appeals against conviction. I would grant the Crown leave to appeal against sentences, but dismiss the sentence appeals.

General Background Information

The Chronology of What Occurred

[8] The victim, his brothers, father, and friends had been at their mosque during the evening of December 2, 2017. When they took a break to go outside, they saw an elderly man appearing to be harassed by two young men. This led to an interaction between the victim and the young men. Ultimately, there was a chase, with the victim running after the young men. One of the people being chased shot the victim in the abdomen. The victim fell to the sidewalk and the shooter carried on. [2] It was approximately 8:55 p.m.

[9] One of the victim’s brothers ran to get help. Emergency personnel started arriving.

[10] One of the civilian witnesses, who happened to be close by, said that he believed he had heard a BB gun being shot. Unfortunately, that information was passed along to multiple people. In a tragic turn of events, based on this one civilian witness’ belief that he had heard a BB gun, many people started taking as fact that this had been the source of the victim’s injury. That was not true. In fact, the victim had been shot with a .22 calibre gun with a hollow-point bullet – a bullet that had caused internal injuries resulting in massive, invisible bleeding within the victim’s abdomen. Accordingly, while the entry wound created by the bullet was relatively small and somewhat benign looking, with only a minimal amount of blood, there were extremely grave, life-threatening changes taking place inside the victim’s body.

[11] Despite the misinformation swirling around that the weapon had been a BB gun, the appellants were dispatched on a “priority 4” call, which is the most urgent call. The dispatcher said:

[Y]ou’re on a priority 4, in Hamilton. Intersection at Aikman Avenue and Sanford … South. Police are on scene with a male patient who was shot with a BB-gun. He’s got superficial wounds to the abdominal area. [Emphasis added.]

[12] The appellants were partners that night. They had been working together for some time. Mr. Snively was the driver. Accordingly, Mr. Marchant was handling the radio. He immediately questioned why the call was given a “priority 4” status, given that the wound was described as “superficial”. The answer back was that it was a “penetrating wound.” Mr. Marchant then responded to the dispatcher: “So, it’s not superficial.”

[13] The appellants arrived on scene at approximately 9:09 p.m. They did not take a medical bag or the stretcher to the victim’s side. Their conduct will be reviewed in more detail later in these reasons. What is important for now in terms of narrative is that they did not take the victim’s vitals until 16 minutes after their arrival on scene, at 9:25 p.m., and only after they loaded him into the ambulance.

[14] The trial judge accepted as reliable the testimony of numerous civilian witnesses, buttressed by video evidence, that none of the first responders were taking the situation seriously or with any urgency. Some of those witnesses testified about comments that they overheard first responders making, including that the victim should “win an Oscar”, that he was “acting”, that he was “a fake”, and that he was acting as if he had been “shot with an AK-47.” The appellants denied making any of these comments.

[15] The appellants did not leave the scene until approximately 23 minutes after their arrival, at around 9:32 p.m. They did not take the victim to the trauma hospital. Instead, having come to the conclusion that he was suffering from a psychiatric condition, or possibly a drug reaction, the appellants headed for the psychiatric hospital. En route to that hospital, they realized that the victim’s vital signs were struggling. An expert in trauma medicine testified that by approximately 9:41 p.m., his vital signs were absent. When the appellants arrived at the psychiatric hospital the emergency doctor did what he could, but the victim was declared dead at 9:58 p.m. All parties agreed that he died from a single penetrating wound to the abdomen and that the cause of death was massive blood loss into his abdominal cavity.

[16] Despite the fact that the appellants had been dispatched on a code 4, that they had been told that the victim had a penetrating wound, and that they themselves described the wound as penetrating (both in their radio transmission to the hospital and in the report they both signed the next day), they did not act with urgency. They did not bring medical equipment or a stretcher to the victim’s side. They did not engage with a “load and go” protocol for penetrating injuries. Along with an officer, Mr. Marchant tried to lift the victim to his feet and walk him to the stretcher by pulling on both his arms. When that did not work, the appellants acquiesced as they watched others lift him in a contraindicated manner to get him to the stretcher. They did not leave the scene until more than twice the time allotted for a penetrating injury. They did not take the victim to the local trauma hospital but, instead, to the local psychiatric hospital.

[17] And this was all as the victim’s father and other family members pleaded with the paramedics to get their loved one to the hospital.

Expert Evidence

[18] There was a great deal of expert evidence called at trial.

[19] Dr. Richard Verbeek was qualified on consent as an expert in pre-hospital and emergency medicine. He was the Medical Director at Sunnybrook Hospital and had held that position since 1996. He had also been the medical director for paramedic services at Sunnybrook since 1996.

[20] He testified about the training and government standards for paramedics. Paramedics are to approach each case objectively with an open mind and to always assume the worst-case scenario until proven otherwise.

[21] He opined on several deficiencies in the appellants’ care for the victim. Despite having been dispatched on a “code 4” and told by dispatchers that the injury was “penetrating”, and confirming the dispatchers understood that to be so, the appellants treated the victim as if he had a psychiatric condition. This was even though all paramedics are trained on how serious penetrating injuries are and that it is a “load and go” situation, the go being to the closest trauma hospital.

[22] He also testified about the training that paramedics receive regarding the particularly serious nature of penetrating wounds to the abdomen – particularly serious because it is impossible to know from external visualization and examination the depth or direction of the wound or the damage caused to the internal organs and tissues. This is what drives the load and go protocol.

[23] Mr. Hal Klassen was the Deputy Chief of the Hamilton Paramedic Service (“HPS”) in December 2017. On consent, he was qualified to advise the court about the training and qualifications required to be a certified paramedic in the HPS, including the standards and guidelines governing the HPS.

[24] Mr. Klassen testified that protocols require that patients with penetrating injuries be taken to the lead trauma hospital. All paramedics are trained in identifying penetrating injuries and there is no policy distinguishing between types or degrees of seriousness of penetrating injuries. Indeed, there is no way for a paramedic to determine that. Quite simply, there is no way for a paramedic to know what happened to a projectile inside of a person or the type of injury that may result if it passes through the layer of skin.

[25] It is the paramedics who are the lead medical authority at the scene and who must control how a patient is moved. When a patient has a penetrating injury and is lying on their back, they should be moved carefully onto a back board in a way that minimizes movement, and therefore minimizes internal bleeding or injury to the internal tissues. A patient with such an injury should never be lifted by the arms or placed into a seated position. When it comes to a penetrating injury, unless there are complications, paramedics should limit their time at the scene to under 10 minutes.

[26] Dr. Elena Bulakhtina, who was qualified on consent as an expert forensic pathologist, performed the autopsy on the victim. She found a single penetrating wound to the victim’s abdomen. The cause of death was massive blood loss caused by the gunshot having perforated two high pressure blood vessels.

[27] She opined that the victim’s chances of survival were between 38 to 51 percent at best, and only if treated at the trauma hospital. If taken to the psychiatric hospital, his chances of survival dropped to between 0 and 18 percent.

[28] According to Dr. Namja Ahmed, qualified on consent as an expert in trauma medicine and surgery, the victim’s only hope for survival after his no vital signs reading was at a trauma hospital where he could receive immediate blood replacement at the same time as simultaneous surgery to stop the bleeding.

[29] Dr. Andrew Healy also testified. He was the emergency room doctor who treated the victim upon his arrival at the psychiatric hospital. He was qualified on consent as an emergency room specialist and at the time of testifying was the Chief Medical Director of Medical Services at the Osler Health System. He agreed that gunshot victims typically went to the trauma hospital. Upon arrival, Dr. Healy immediately called for blood, but it did not arrive before the victim was pronounced dead. He opened the chest of the victim and found his heart and aorta empty of blood.

The Evidence of Dr. George Croskerry

[30] Dr. George Croskerry testified for the defence. He was qualified on consent as an expert in clinical decision making in health care. He is a medical doctor and has a PhD in psychology. He is also a professor at Dalhousie University.

[31] Dr. Croskerry testified that everyone is subject to unconscious biases and that a review of this case demonstrates that the appellants’ decision-making was impacted by those biases.

[32] He addressed four specific types of bias that he felt were involved in this case. The trial judge summarized them as follows:

Outcome bias: where the seriousness of the outcome motivates a feeling that someone must be at fault. Hindsight bias: where the seriousness of the outcome unknowingly influences the perception of past events and prevents a realistic appraisal of what happened at the time. Anchoring bias: where the decision maker fixates on a specific feature and forms an initial opinion which exerts an overly powerful influence on future decision making, along with a failure to adjust when new information becomes available. Group think or group affirmation bias: where everyone is thinking the same thing, which simply reinforces the decision makers’ similar impressions.

[33] Dr. Croskerry testified that the appellants were inadvertently impacted by unconscious bias in this case when making decisions about the care they needed to administer. While the appellants made mistakes, Dr. Croskerry explained how those mistakes were generated by poor decision making resulting from unconscious biases. Those mistakes led them to erroneously believe that the victim’s wound was only a superficial one, which did not require a load and go situation.

The Appellants’ Testimony

[34] Both appellants testified.

[35] Mr. Marchant confirmed that he had been a paramedic for about six years. He took all mandatory courses. He had never dealt with a gunshot wound or a penetrating trauma to the abdomen prior to the events in this case. He also testified that he had never received training in clinical decision making. Upon arrival, he was told by a firefighter that the victim had a small wound from a pellet gun.

[36] Mr. Marchant agreed that neither he nor his partner took any equipment to the victim’s side. Even so, Mr. Marchant took the victim’s pulse and examined the wound which he described as “small” with no blood. He also said that it resembled what he described as “like a squeezed pimple”. He says that he palpated (examined by touch) the victim’s abdomen with negative results to pain, hardness, or distention. Accordingly, the wound was consistent with what he was hearing, that the victim had been shot with a BB gun.

[37] Mr. Marchant said that at the time he was dealing with the victim, he was flailing his arms and legs. He confirmed that the victim’s father asked him to help his son. He also confirmed that the father denied that his son had consumed drugs or alcohol. Mr. Marchant denied ever saying anything derogatory about the victim. As he had ruled out that they were dealing with a penetrating wound, Mr. Marchant thought that the way he and the officer attempted to lift the victim, by pulling him to his feet by his wrists, was appropriate.

[38] Mr. Marchant also testified that the victim was aggressive and uncooperative and pulled off some medical equipment once in the back of the ambulance. Accordingly, Mr. Marchant decided to restrain the victim with soft restraints. He heard the victim say only once, while in the ambulance, that he could not breathe. He thought that the victim’s elevated heart rate – 144 beats per minute at 9:25 p.m. – was the direct result of his exertion in the back of the ambulance before restraint. Dr. Verbeek testified that any paramedic would see these symptoms as a patient in “severe distress and level 3 shock”, one who needed to get to a trauma hospital right away.

[39] Thinking that this was simply symptomatic of the patient’s behaviour, Mr. Marchant testified that he did not see the matter as urgent because the patient was, in his mind, stable. He ultimately arrived at the conclusion that the victim’s lack of cooperation was the result of some type of psychiatric disorder; this is why he thought that routing the ambulance to the psychiatric hospital was appropriate. While he agreed in cross-examination that any penetrating wound required a load and go approach to a trauma hospital, he did not think that the victim had such a wound.

[40] Accordingly, he communicated at 9:32 p.m. that they were proceeding on a “code 3” (no lights or siren) to the psychiatric hospital. In that radio call, Mr. Marchant said that the victim had a “small penetrating” wound to his lower abdomen that was “controlled”, about “1/2 cm by 1/2 cm”. Mr. Marchant agreed that shortly after that communication, the victim became unresponsive. His pulse rate dropped to 45 beats per minute. Therefore, at 9:35 p.m., Mr. Marchant changed the priority to a “code 4”, but still did not think it was a penetrating wound.

[41] As for Mr. Snively, he had been a paramedic for over 10 years. Like Mr. Marchant, he was well trained. Shortly after arrival on scene, he told the firefighters that they could leave. He concluded that the victim did not have a penetrating wound. In hindsight, given that it was a penetrating wound, Mr. Snively agreed that the lifts were inappropriate. While he denied making any derogatory comments, he overheard a police officer suggesting that the victim was “faking it.”

[42] Mr. Snively agreed that he only palpated the victim’s abdomen for about 19 seconds and concluded that he had no pain reaction or rigidity. He was breathing well and had a good pulse. The victim was able to tell Mr. Snively his name.

[43] Once in the back of the ambulance, Mr. Snively thought that the victim was being noncompliant and refusing to answer questions. To Mr. Snively, he appeared to be deliberately resisting the efforts of paramedics to properly assess him. At one point he overheard the victim say he was unable to breathe. He assisted in placing the victim into soft restraints. Mr. Snively eventually drove away from the scene at 9:31 p.m. with lights on, but no siren. He then turned the lights off. They did not go back on again until 9:36 p.m. The siren was not put on until 9:37 p.m.

The Reasons for Judgment

[44] The trial judge accepted the civilian witness’ evidence that none of the responders on scene took the situation seriously. The video was confirmatory of this fact. The trial judge also specifically rejected the suggestion that the victim was combative or aggressive.

[45] Ultimately, he concluded that the appellants’ actions and inactions amounted to a marked departure from what was expected of a reasonably prudent paramedic in these circumstances for three specific reasons:

(a) they failed to conclude that the victim had a penetrating wound to his abdomen, thereby failing to treat him as a “load and go situation of the highest emergency which required immediate attendance at a trauma hospital”; (b) they participated and acquiesced in inappropriate lifts; and (c) they delayed leaving the scene.

[46] In totality, the trial judge found as follows:

I have concluded there were several instances where the accused [sic] actions were each a marked departure from what was to be expected of reasonably trained paramedics under the circumstances found in this case. I have also concluded that the totality of these independent marked departures further confirms the actions of the accused that night in their care of Yosif were in totality a marked departure of what should have been expected of reasonably trained primary care paramedics under the circumstances.

[47] The appellants were found guilty under s. 215(3) of the Criminal Code, R.S.C. 1985, c. C-46, for failing to provide the necessaries of life to the victim.

Analysis

[48] The appellants raise three grounds of appeal. They argue that the trial judge erred by:

(a) engaging with a flawed analytical approach, one where he failed to consider all of the evidence when determining whether there was a marked departure from the expected standard of care, instead focussing solely upon whether the appellants failed to comply with policies, protocols, and standards; (b) providing insufficient and contradictory reasons for judgment; and (c) misapprehending the evidence in four ways that were central to the reasoning process.

[49] I deal with the alleged errors in turn and explain why I respectfully do not agree.

The Analytical Approach: Considering All of the Evidence

Overview

[50] The appellants say that the trial judge engaged in a flawed approach to the legal questions that were before him, specifically whether the appellants’ conduct amounted to a marked departure from the standard of care expected of reasonably trained paramedics. The appellants maintain that the trial judge erred by relying too heavily upon the appellants’ failure to adhere to their policies, protocols, and standards, rather than taking into account all of the evidence in determining this question.

[51] I do not agree.

The Offence: Failing to Provide the Necessaries of Life

[52] Section 215 of the Criminal Code governs this offence. The relevant portions read as follows:

Duty of persons to provide necessaries

215(1) Every one is under a legal duty …

(c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of … illness … to withdraw himself from that charge, and (ii) is unable to provide himself with the necessaries of life.

Offence

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty if …

(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

[53] Failing to provide the necessaries of life is a penal negligence offence, the essence of which is to impose duties on individuals within the context of certain, defined relationships: R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 67. When dealing with penal negligence offences, it is critical to keep in mind that the criminal law insists upon moral culpability before branding someone a criminal. Without vigilance, the law risks branding as criminal conduct that which is simply a departure from a civil standard of care. As Charron J. said in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 34: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.” See also R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30. It is therefore the degree of negligence that matters when it comes to negligence-based offences because, as always, criminal liability must remain rooted in conduct meriting punishment: Beatty, at para. 35.

[54] This court has recently addressed the offence of failing to provide the necessaries of life in the context of a police officer failing to provide the necessaries of life to a detainee in R. v. Doering, 2022 ONCA 559, 162 O.R. (3d) 161, leave to appeal refused, [2022] S.C.C.A. No. 338. As Doherty J.A. explained in Doering, at para. 38, there are four elements to the offence, the first three of which relate to the actus reus.

[55] For the actus reus in this case, the Crown had to prove that the appellants: (i) were under a legal duty to provide the victim with the necessaries of life; (ii) that they failed to do so; and (iii) that the failure endangered his life.

[56] For the mens rea, the Crown had to prove that the conduct of the appellants represented a marked departure from the conduct of a reasonably prudent paramedic in circumstances where it was objectively foreseeable that the failure would endanger the victim’s life.

[57] The real issue in this case was mens rea. The central defence was that the appellants held an honest, reasonable, but mistaken belief that the victim was not suffering from a penetrating wound.

[58] Of course, when it comes to penal negligence, a reasonably held honest mistake of fact will constitute a complete defence. Again, this is because the law will not punish the “morally blameless”: A.D.H., at para. 154. Charron J. captured this concept in Beatty, at paras. 37-38:

However, because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.

In the same vein, a reasonably held mistake of fact may provide a complete defence if, based on the accused’s reasonable perception of the facts, the conduct measured up to the requisite standard of care. [Emphasis added.]

[59] Therefore, to provide a full defence, the mistake of fact must not only be honestly held, but it must also be reasonably held. I will come back to this concept when discussing the second issue.

The Appellant’s Position

[60] The appellants emphasize that in determining whether there was a marked departure from the standard of care that a reasonable person in their position would observe in this case, the trial judge had to take into account all of the relevant evidence and to “draw[] inferences from all of the circumstances”: Roy, at paras. 36, 39.

[61] Rather than proceeding in this manner, the appellants say the trial judge erroneously focussed almost exclusively upon the appellants’ non-compliance with the policy for paramedics as it related to penetrating wounds. The appellants argue that there was a significant danger of reasoning backwards from the tragedy that unfolded in this case. There is no question that the appellants made a mistake on that fateful night. However, the question was not whether they made a mistake, but whether, based on all of the evidence, they had markedly departed from the standard of care. By elevating the policy relating to penetrating wounds to a “statutory obligation”, they say the trial judge ignored the other evidence and found a marked departure based only upon a failure to comply with policy.

The Trial Judge Took all of the Evidence into Account

[62] I see no deficiency in the trial judge’s analytical approach. Not only did he have a complete grasp of the legal issue that required his full attention, but he engaged with all of the evidence in determining that issue. Respectfully, what this ground of appeal really comes down to is a complaint about the factual determinations he came to when engaging with that full body evidence. It is not for this court to reconsider those factual determinations.

[63] The fact is that there was overwhelming evidence upon which the trial judge could conclude that the appellants’ conduct amounted to marked departures from that expected of reasonably prudent paramedics in the circumstances. That evidence included: expert evidence, civilian accounts, video clips and compilations, photographs, reports, hospital and ambulance records, and the appellants’ own evidence.

[64] The trial judge was under an obligation to consider the appellants’ knowledge, experience, and training since it was outside the experience of an ordinary person. Accordingly, he spent some time in his reasons on the training and protocols that governed in relation to this type of penetrating injury, all in an effort to determine the standard of care. This was completely proper. Trial judges are “obliged” to consider an accused’s “prior training, experience and qualifications” in a particular specialized field or activity before determining the standard of care in that field, and whether the accused’s conduct markedly departed from that standard: R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at para. 39; see also Doering, at para. 74.

[65] While the trial judge properly took the policy into account in determining the standard of care, he also considered all of the other evidence in determining whether there was a marked departure from that standard of care.

[66] For instance, in coming to the conclusion that there was a marked departure from what should have been expected from a reasonably trained paramedic, the trial judge addressed all of the evidence, including that relating to the appellants’ failure to conclude that there was a penetrating wound, the lifts, and the delay in leaving the scene. This included grappling with the appellants’ testimony as to why they concluded that there was no penetrating wound and contrasting it with other evidence, including their own prior statements describing the wound as penetrating.

The Reasons for Judgment were Sufficient

Overview

[67] The appellants maintained at trial, and continue to maintain in this court, that they honestly misdiagnosed the victim and that their honest error was reasonable in the circumstances as they perceived them to be. They argue that the trial judge’s reasons failed to explain why he rejected their only real defence, which turned on their claim of a reasonable, mistaken belief that the victim was not suffering from a penetrating wound. To the extent that the trial judge gave any reason for rejecting the defence at all, they say it is contradictory in nature.

[68] For the reasons that follow, I find that when the reasons are read in totality, they are entirely consistent and provide a complete explanation as to why the defence of mistaken belief was rejected.

The Appellants’ Position

[69] The appellants point to three passages in the trial judge’s reasons to make the point that they are both insufficient and contradictory when it comes to the rejection of their defence.

[70] First, the trial judge said:

I conclude their erroneous belief about Yosif’s wound and condition may have been honestly held but such a belief under the circumstances presented that night was objectively not reasonably held. [Emphasis added.]

[71] A few paragraphs later, the trial judge said:

I conclude that the accused [sic] failure to deal with Yosif as highly trained professional paramedics and treat his injury as a worst case requiring immediate load and go to a trauma hospital was a marked departure from what would be objectively expected of any primary care paramedic employed by the HPS. I conclude these failures by the accused were not simple inadvertence, thoughtlessness or simple error in judgment but instead was [sic] a conscious decision to ignore the obvious evidence before them, their training, and the standards they were familiar with … [Emphasis added.]

[72] Still later, he said:

I conclude these various failures by the accused were not simple inadvertence, thoughtlessness or simple error in judgment but instead were a conscious decision to ignore their training and the standards they were familiar with and were put in place, as Dr. Croskerry stated, to prevent errors in decision making and eliminate unconscious bias by paramedics. [Emphasis added.]

[73] The appellants maintain that the trial judge did not explain how he arrived at the conclusion that the appellants did not make a reasonable, honest mistake about whether the victim was suffering from a penetrating wound. Even more concerning though, they argue the trial judge said contradictory things on this point. To this end, the appellants maintain that it is impossible to hold an honest belief that a wound is not penetrating (first quoted passage), all the while making a conscious decision to ignore training and standards that are applicable only when dealing with penetrating wounds (second and third quoted passages).

The Reasons are Sufficient and Not Contradictory

[74] A functional and contextual approach must be taken to determining the adequacy of reasons for judgment: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 28-33; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15. The question is whether the reasons, when read in context and as a whole, and in light of the issues advanced at trial, explain why the trial judge decided as they did: R.E.M., at para. 17; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31. Approaching the reasons in this way in this case leaves no question as to why the trial judge decided as he did.

[75] In my view, the trial judge’s reasons are consistent and entirely responsive to the mistake of fact defence advanced by the appellants.

[76] While it is true that the trial judge concluded that the appellants’ “erroneous belief about Yosif’s wound and condition may have been honestly held”, he was not finding that it was, in fact, honestly held. I agree with the Crown that all the trial judge was doing in making this observation was saying that even if the appellants honestly believed that the victim’s injury was not penetrating – something he was prepared to assume at that point in his reasons – this honest belief was “objectively not reasonably held.” Accordingly, the defence could not succeed.

[77] What follows that passage is a multi-paragraph explanation as to why the appellants’ belief, even if honestly held, was not reasonably held. For instance, the trial judge addressed the fact that from the outset, the appellants were told that it was a “penetrating wound” and Mr. Marchant confirmed that he understood that to be so when he responded to the radio dispatcher that the wound was “not superficial”. The trial judge also addressed how the appellants failed to keep an open mind and failed to err on the side of caution. He explained how they failed to do their own independent assessment of the victim. He explained how, despite trying to minimize how the wound looked in their testimony, that testimony was belied by Mr. Marchant’s description of the wound over the radio as a “small penetrating wound with controlled bleeding.”

[78] The trial judge also addressed the fact that the appellants’ trial evidence about what kind of wound they thought they were dealing with was belied by the ambulance call report (“ACR”) they both signed, that also described the wound as penetrating in nature. Further along these lines, the trial judge also explained how an autopsy picture showed a small penetrating hole in the victim’s abdomen. He also reviewed how others described the wound as a “puncture”, a “small hole”, and so on. He specifically accepted the evidence of those witnesses as a “more accurate description of the wound” which he found to be corroborated by the autopsy photos. He concluded this point as follows:

It is difficult for this court to understand how the accused could conclude in their evidence before me that they honestly and reasonably did not think this was a penetrating wound when that is how they described it in the patch and the ACR.

[79] The trial judge went even further. He commented upon how there was “no plausible explanation” as to why the appellants concluded that this was a psychiatric issue. This is especially true in light of the fact that, as the trial judge noted, the appellants had been told it was a penetrating wound, they knew the victim had been shot, he was not responsive even though his eyes may have been open, there was no evidence of alcohol or drug consumption, there was no evidence of any pre-existing medical conditions, and he was moving his arms and legs “for no reason other than probably pain that he was in”.

[80] It is only after reviewing all of that evidence that the trial judge found that the accused were not engaged in “inadvertence, thoughtlessness or simple error in judgment”, but instead making a “conscious decision” to ignore the obvious evidence before them, their training, and the standards they were familiar with.

[81] I see no contradiction between the trial judge’s conclusions that the appellants’ belief about the appellants’ injury “may have been honestly held” and his conclusion that they made active decisions about ignoring the “obvious evidence before them, their training, and the standards they were familiar with.” They had been dispatched on a code 4, they had been told it was a penetrating wound, they described it as a penetrating wound, and others described it as a penetrating wound. Somewhere along the way, even if one were to give them the benefit of the doubt and say they held honest beliefs about the wound, those beliefs were not reasonable in the circumstances. Read as a whole, that is what the trial judge’s reasons convey.

The Alleged Misapprehensions of Evidence

Overview

[82] The appellants maintain that the trial judge misapprehended the evidence in four ways.

[83] I do not accept that the trial judge misapprehended the evidence in a way that impacted the outcome. Below I will review each of the alleged misapprehensions. The appellants emphasized only the first two in oral argument.

The Law

[84] There is no suggestion that the verdict in this case is unreasonable. The question is thus whether there were any misapprehensions of evidence and, if so, whether standing on its own or combined with others, those misapprehensions occasioned a miscarriage of justice in the sense that they were essential to the reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 221.

Dr. Croskerry’s Evidence about the Nature of the Wound

[85] The appellants object to the trial judge’s characterization of Dr. Croskerry’s evidence as suggesting that the victim did not have a penetrating wound. The impugned paragraph is as follows:

Dr. Croskerry testified that the accused had the above biases but emphasized such biases are unconscious, and the accused would not have known they were being influenced by them in their decision making. The doctor also felt this was not a true penetrating wound although why he came to this conclusion is hard for this court to understand since he further testified that one cannot tell the depth of a penetrating wound simply by looking at it or what damage it may have caused internally. He did opine however, that if this was a true penetrating wound then it was clearly a load and go situation which the accused should have done as soon as they arrived at the scene. [Emphasis added.]

[86] The appellants argue that the trial judge misapprehended Dr. Croskerry’s evidence as he never suggested that the wound was not penetrating in nature. Rather, they say Dr. Croskerry focussed on the appellants’ thought processes as they arrived on scene, based upon the information they had received and their observations of the victim. While Dr. Croskerry may have thought that the appellants believed that the victim did not have a penetrating wound, a belief predicated on bias, the appellants emphasize that Dr. Croskerry never said that the wound was not penetrating. It was unfair of the trial judge to characterize his evidence in that fashion and would have infected the trial judge’s view of this critical defence witness.

[87] I agree with the appellants that Dr. Croskerry never testified that the victim was not suffering from a “true penetrating wound.” Indeed, I would go further and suggest that it would have been nonsensical for Dr. Croskerry, or anyone for that matter, to suggest that the victim had anything other than a penetrating wound. Clearly, the victim died from that seriously penetrating wound.

[88] The trial judge appears to have been alive to the fact that such testimony would be nonsensical. Indeed, he noted it was hard to understand why Dr. Croskerry would have testified that the wound was not penetrating. The trial judge may therefore have simply been expressing his rejection of testimony that implied that the wound could have been mistaken at the scene as not penetrating.

[89] That makes sense when one considers Dr. Croskerry’s testimony in context, because this is exactly what he testified to – that the wound, while penetrating, could have been mistaken for a superficial one. For instance, he testified that pellet guns do not typically cause significant injury and being shot with one is not likely to be very serious or cause a “significant injury.” Indeed, he testified at one point that a “small penetrating injury to the torso” that had been caused by a pellet gun would not necessarily cause him to suspect a penetrating injury and that the “index of suspicion of penetration” would be “very low, very very low.” He also testified that even where the skin is broken, it does not mean that there has necessarily been penetration into the abdominal cavity: “I mean, you’ve got to go through several layers of tissue to get into the abdomen and just a break in the skin is not necessarily penetration.”

[90] In any event, even if the trial judge did misapprehend the evidence, and incorrectly believed Dr. Croskerry to have testified that the victim did not suffer from a “true penetrating wound”, this misapprehension would have been immaterial. After all, Dr. Croskerry was not even called as an expert on penetrating wounds. Accordingly, if he had opined on whether this was a penetrating wound, he would have been outside the appropriate parameters of his expertise. The appellants never suggested that the victim did not suffer from a penetrating wound to his abdomen. And the trial judge did not use his apparent rejection of Dr. Croskerry’s alleged testimony that the wound was not penetrating to impugn his credibility when considering his testimony on his areas of expertise.

[91] In sum, the trial judge may have poorly articulated a rejection of Dr. Croskerry’s testimony that the wound may have been mistaken at the time as not penetrating. Or he may have mistakenly understood Dr. Croskerry’s testimony on a matter outside of his expertise, which was irrelevant to the appellants’ defence. In either case, I see no error warranting appellate intervention.

Dr. Croskerry’s Evidence About Training, Standards and Policies for Paramedics

[92] The appellants claim that the trial judge misapprehended the evidence when he said that Dr. Croskerry “agreed training, standards and policies for paramedics are in place to eliminate … inherent unconscious biases” (emphasis added). As the appellants point out, Dr. Croskerry did not say that unconscious biases could be eliminated, as opposed to “mitigated”, by such training, standards, and policies.

[93] This ground of appeal comes down to the difference between the words “eliminate” and “mitigate”. There is no question that Dr. Croskerry accepted that protocols and checklists “absolutely” reduce the likelihood of unconscious bias.

[94] In my view, it simply cannot be said that this minor slip, the use of the word “eliminate” and not “mitigate”, was material to the trial judge’s reasoning. It did not play an essential part in the narrative of the judgment resulting in conviction: Lohrer, at para. 2. I would not give effect to this ground of appeal.

Cst. Zezella’s Testimony about the Appearance of the Wound

[95] In rejecting the appellants’ evidence about the appearance of the wound at the scene, the trial judge leaned in part upon Cst. Michael Zezella’s testimony. The trial judge said that Cst. Zezella “confirmed the autopsy picture showed what he saw that night.”

[96] The appellant claims that the trial judge misapprehended Cst. Zezella’s evidence on this point. In fact, he argues that the officer’s evidence was that the autopsy photo was different to what he saw, not the same.

[97] The impugned comment by the trial judge must be placed in context. It appears in the middle of a lengthy paragraph where he discusses the actual appearance of the wound:

The accused gave evidence that their view of the actual wound was not what was depicted in the autopsy picture and as reported by Dr. Bulakhtina. Marchant described the wound as small, sealed over and like a squeezed pimple. However, in his patch to St. Joseph's hospital and his ACR he describes it a [sic] small penetrating wound with bleeding controlled. Snively described it as an innocuous penetrating injury. The autopsy picture showed a small penetrating hole. Dr. Ahmed stated the autopsy picture accurately depicted a gunshot wound. Officer Zezella described the wound as a small, circular puncture which was not bleeding and he confirmed the autopsy picture showed what he saw that night. Officer Campovari described the wound as a small hole or indentation with no blood. Firefighter McQueen saw a small hole smaller than a dime. As did Mr. Diciccio who said it was a small hole. I accept their evidence as a more accurate description of the wound which is corroborated by the autopsy pictures and Dr. Bulakhtina that the wound to Yosif was a small hole or puncture in his abdomen. Indeed, that is how Marchant described the wound in his first patch to St. Joseph's hospital and in his ACR. It is difficult for this court to understand how the accused could conclude in their evidence before me that they honestly and reasonably did not think this was a penetrating wound when that is how they described it in the patch and the ACR. As Mr. Klassen testified paramedics are trained that a penetrating wound is not complicated to conclude and involves any break in the skin and penetration into the tissue.

[98] Cst. Zezella was presented with three autopsy photos of the wound, one of which he confirmed was “much closer” to what he saw that night.

[99] Even if the trial judge misapprehended the officer’s evidence on this point and should have been more nuanced in describing that the photo was “closer” to what he had seen, as opposed to “what he saw”, again, this cannot rise to a material misapprehension of the evidence. As reflected in the just quoted passage from the reasons for judgment, it constitutes only one small aspect of why the trial judge rejected the appellants’ evidence about the appearance of the wound at the scene.

Sgt. Shawihat’s Evidence about the Victim’s Movements in the Ambulance

[100] The trial judge summarized Sgt. Nessreen Shawihat’s testimony about what she observed of the victim once placed in the ambulance. The trial judge said that she testified that “Yosif’s movements were nonaggressive and minimal, and he was moaning but not communicating otherwise” (emphasis added). He accepted that evidence and used it, in part, to reject the appellants’ testimony that they concluded that the victim’s elevated heart rate resulted from his “aggressive behaviour” in the back of the ambulance.

[101] The appellants claim that the trial judge misapprehended Sgt. Shawihat’s evidence on this point. They say that the trial judge conflated two aspects of her evidence. While she may have said that the victim’s movements were “nonaggressive and minimal” she also said that he was “flailing … his arms and his feet”. Therefore, they object to the conflation of Sgt. Shawihat’s testimony on the extent of the victim’s movements and the force behind the flailing.

[102] The trial judge did not misapprehend Sgt. Shawihat’s evidence. While she said that he was flailing his arms and legs, it was not “aggressive, it wasn’t hard. Could say minimal”, “[n]ot very forceful, but they were moving”, all while he was making moaning sounds and was non-verbal. There is nothing wrong with the trial judge’s description of her evidence. It is accurate. And he used it, in conjunction with other evidence, to reject the suggestion by the appellants that the victim’s significantly elevated heartrate was resulting from these movements.

[103] I would not give effect to any of the grounds relating to a misapprehension of evidence.

Sentence Appeals

[104] As the conviction appeals will be dismissed, I must turn to the sentence appeals.

[105] The Crown seeks leave to appeal the sentences.

[106] The Crown sought 2.5-year custodial sentences for both offenders. The defence each sought a 6-9-month conditional sentence. The trial judge imposed an 18-month conditional sentence.

[107] As the Crown properly acknowledges, sentencing determinations are owed considerable deference on appeal. Intervention by an appellate court will only be justified where the sentence is demonstrably unfit or where there is an error in principle, that is a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor that has had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26. The Crown does not allege a demonstrably unfit sentence. Instead, the Crown says that there were two errors in principle, and both had an impact on the sentence.

[108] The Crown first alleges that the trial judge failed to give appropriate weight to the principle of general deterrence on the basis that there had been so much publicity about the case that it was “inconceivable” that all paramedics were not aware of the case and its “ramifications”. The impugned portion of his sentencing reasons reads as follows:

Given the publicity surrounding this case it is inconceivable to this court to conclude that the paramedic community and paramedic services throughout the country are not fully cognizant of the circumstances surrounding this case and its ramifications. I suspect that any further general deterrence is not a major concern in educating paramedics not to ignore their extensive training at all times and if they do there may be serious consequences for them.

[109] The Crown maintains that it is an error in principle for trial judges to rely upon publicity to offset the need for a deterrent sentence. This is because general deterrence works through the publication of the deterrent sentence. As this court noted in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 116 and 120:

[U]sing publicity to satisfy the need for general deterrence would undermine the general deterrence sentencing objective, since general deterrence is promoted through the publication of a deterrent criminal sanction. If the sentence is reduced because of pretrial publicity, the sentence will be less effective in achieving general deterrence.

It is a misuse of publicity, and hence an error in principle, to use collateral consequences such as publicity to offset the need for a deterrent sentence.

[110] While the trial judge said that general deterrence was not a major concern for him, given the publicity that the case had garnered, the Crown says that the opposite is true. In cases involving a lot of publicity, the need to emphasize general deterrence is heightened because of the message that is conveyed in circumstances involving an identifiable peer group: R. v. Kennedy (1999), 140 C.C.C. (3d) 378, at para. 16. The appellant contends that in this case, the need for denunciation and deterrence was so pressing that incarceration was required to express appropriate condemnation and to deter similar conduct.

[111] In my view, the trial judge did not allow the fact of publicity to overtake the need to emphasize deterrence in this case. He did not say that. Rather, all he said was that there was no need to emphasize any “further”, beyond what he had already done, the principle of general deterrence.

[112] The trial judge was very much alive to the need to impose a sentence that reflected both denunciation and deterrence. When it came to specific deterrence, he accepted as a fact that the evidence indicated that the appellants had been good at their jobs and that their conduct on the night in question was an anomaly. He was satisfied that they would not be before the courts again. Indeed, as he pointed out in his reasons, they had lost their jobs, were facing lawsuits, and were in financial difficulty.

[113] As for general deterrence, the trial judge accepted that it was a principle in sentencing. The impugned paragraph simply reflects his view that it need not be emphasized “further” than necessary because of the unique circumstances of this case.

[114] I do not read this court’s decision in Joseph as suggesting that a sentencing judge cannot take publicity into account in sentencing, specifically when the message is getting out that the type of conduct that lay at the root of the sentencing proceeding will not be tolerated. Rather, I read Joseph as saying that publicity cannot serve to reduce an otherwise fit sentence. The trial judge did not reduce the otherwise fit sentence here. He simply said he was not going to add to that sentence to make his point, because the point was already made.

[115] As to the second alleged error in principle, I do not agree that the trial judge failed to properly calibrate the appellants’ moral blameworthiness or the seriousness of their conduct. Although the Crown acknowledges that the trial judge adverted to these factors, the Crown also maintains that when read as a whole, the trial judge’s reasons reveal little indication that they played a significant role in the outcome.

[116] I see no error in the trial judge’s approach. While the Crown is right that the trial judge could certainly have imposed a heavier sentence in this case, we owe deference absent an error in principle. He clearly adverted to the appellants’ moral blameworthiness and characterized it as “significant”, specifically in their failure to follow their training and provide the care to the victim who so desperately needed it. The trial judge also accepted that, while the victim’s odds of survival were limited once he was shot, “whatever limited odds he had were extinguished by the actions of the offenders in the care they provided Yosif” and that this grounded their moral blameworthiness in this case.

[117] At the same time, he noted that despite their significant degree of moral blameworthiness, other factors were at work, such as the fact that there was no intention to injure the victim.

[118] In my view, as on display in both his reasons for judgment and his reasons for sentence, the trial judge had a good grip on the seriousness of the offence. His reasons underscore his clear understanding of the principle of proportionality in sentencing and the fact that “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence”.

[119] The trial judge was in the best position to determine the fitness of sentence in this case. Absent an error in principle, it is not for this court to interfere. I see no error in principle.

Conclusion

[120] I would dismiss the conviction appeals. I would grant leave to appeal the sentences, but dismiss the sentence appeals.

Released: July 8, 2024 “J.M.F.” “Fairburn A.C.J.O.” “I agree. L. Favreau J.A.” “I agree. Copeland J.A.”

[1] For convenience, I refer to Mr. Marchant and Mr. Snively collectively as “the appellants”, except when discussing the Crown’s appeal against sentences.

[2] The shooter was acquitted of second degree murder following a trial by a jury. The Crown’s appeal against acquittal was dismissed: R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, leave to appeal dismissed, [2022] S.C.C.A. No. 438.