ONTARIO COURT OF JUSTICE DATE: February 11, 2021 COURT FILE No.: 19-9960
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DANIELLA LEIS
Before: Justice G. Orsini
Reasons for Sentence released on February 11, 2021
Counsel: J. Miller, counsel for the Crown R. Braiden, counsel for the defendant Daniella Leis
Orsini J.:
Introduction
[1] The accused, Daniella Leis, pled guilty to four (4) counts of impaired driving causing bodily harm contrary to section 320.14(2) of the Criminal Code of Canada.
[2] The offences have attracted considerable public attention given the explosion that occurred when a motor vehicle driven by Ms Leis collided with a home in the historic Old East Village of London, causing a gas line to be severed. Ms Leis’s decision to drive a motor vehicle while her ability to do so was significantly impaired by the consumption of alcohol has left a devastating and lasting impact on members of the community and, in particular, the four first responders injured in the line of duty.
[3] As has been said in so many similar cases of impaired driving causing death or serious bodily harm, nothing I can say or do by way of sentence today can ever repair the damage caused by Ms Leis. Instead, the court is tasked with determining an appropriate sentence, one designed to denounce and deter others from similar behaviour, bearing in mind the circumstances of the offence and the offender.
The Circumstances of the Offences
[4] On the evening of Wednesday August 14, 2019, Daniella Leis was operating her father’s motor vehicle while her ability to do so was impaired by the consumption of alcohol. She had just left a concert in downtown London and was attempting to make her way back to her residence in Kitchener, Ontario.
[5] At approximately 10:30 pm, witnesses saw the vehicle travelling in the wrong direction as it made its way down Queens Avenue, a one-way street. Other drivers, traveling in the proper direction, honked their horns and waived at Ms Leis but did not appear to receive any response.
[6] Ultimately, the vehicle travelled 2.78 kms in the wrong direction before it left the roadway where Queens Avenue comes to an end at the intersection of Woodman Avenue. This is a densely populated residential area in a designated Ontario Heritage Conservation District.
[7] The vehicle was being operated at a very high rate of speed when it crashed into the front of the house located at 450 Woodman Avenue. The force of the collision caused the rear end of the vehicle to lift into the air on impact before returning to the ground. A civilian described the force as causing him to believe that the driver involved would likely have been killed.
[8] A resident of 450 Woodman Avenue, who was in the living room when the collision occurred, quickly deduced that the vehicle had severed the gas line at the front of the house. They evacuated the home, called 911 and warned their neighbours. A number of other 911 calls were received as a result of the collision and the strong smell of gas that permeated the area.
[9] London Police and London Fire Services responded in an emergency fashion to the scene, where Ms Leis remained in the vehicle and unresponsive.
[10] Constable Richardson removed Ms Leis from the vehicle through the passenger’s side door due to the damage to the driver’s side. Once out of the vehicle, he was able to detect the strong odour of an alcoholic beverage emanating from her breath. He could see that she was unsteady on her feet and that she was slurring her words. She admitted to coming from a concert where she consumed alcohol.
[11] While Constable Richardson was dealing with Ms Leis, firefighters and other officers moved to evacuate 450 Woodman Avenue. As they entered the home, a firefighter’s gas detector alerted them to a potential explosion due to dangerously high gas levels. They immediately exited the home only to discover that their detectors continued to alert them of a potential explosion. As a result, it was determined that evacuation of an additional 350 feet was required.
[12] Police and firefighters were in the process of evacuating neighboring properties when, at 10:51 pm, the severed gas line triggered a massive explosion. The home located at 450 Woodman Avenue was completely obliterated. Glass flew up to 76 meters, while other debris was found up to 180 meters away falling down upon other houses, people and the streets and sidewalks. Over 50 firefighters and 16 fire trucks were involved in fighting the fire which took all night to be extinguished. Ultimately, the homes on either side of the blast site had to be torn down due to structural damage. Several other homes required remedial work before habitation could be resumed.
[13] In addition to the significant property damage, two police officers and two firefighters suffered serious injuries as a result of the explosion.
[14] Ms Leis had been arrested for impaired driving and moved to a point of safety immediately prior to the explosion. She was taken to the London Police Station where she provided two samples of her breath into an approved device. The lower of the two readings registered a blood alcohol concentration of 200 milligrams in 100 ml of blood, two and a half times the legal limit.
The Victim Impact
[15] William Tennant, an acting Sergeant with the London Police Service, was directing individuals away from the crash site at the time of the explosion. He was hit by flying debris that rained down upon him. Although he continued to work immediately following the explosion, he was ultimately taken to the hospital. In addition to soft tissue damage to his left pelvis and lower left leg, he suffered a loss of hearing in right ear, loss of visual acuity in his left eye and traumatic tinnitus.
[16] Constable Waseem Deep had just finished assisting Constable Richardson in the arrest of Ms Leis and was also in the process of evacuating the area when the force of the explosion knocked him off his feet. He was taken to hospital and treated for a concussion, deep bruising on his left thigh and hip, a strain to his lower spine and multiple lacerations to his face, head, arms and hands.
[17] David Smith, a Captain with the London Fire Department, was also assisting in the evacuation effort when the explosion occurred. He was partly covered in rubble after being struck by a number of pieces of flying debris, including a brick which struck him in the head. This resulted in a large hematoma to his forehead and a ruptured brain aneurism which required two brain surgeries. He has since been diagnosed with moderate to severe brain injury.
[18] Sadly, after almost 30 years serving his community as a firefighter, Captain Smith was within a year of his mandatory retirement when the incident occurred. He is no longer able to complete routine tasks around the house, has lost interest in many of his hobbies and will require ongoing cognitive therapy. As indicated in the Victim Impact Statement prepared by his wife on his behalf, “Our family and close friends notice he is not the man he used to be”.
[19] Thomas Wenhardt, who had been a firefighter for two and a half years, was also assisting in the evacuation effort. He was completely buried by debris from the explosion and had to be dug out by his colleagues and carried to emergency medical professionals. He was rushed to hospital in critical condition where he remained for eight days before being discharged. He suffered numerous injuries including severe facial lacerations that extended into his neck and a large laceration that went through his left cheek into his oral cavity. This has left him with noticeable facial scarring and a partial loss of his left ear. The explosion also left him with impacted teeth, a fractured hard pallet, a left corneal abrasion, a lung contusion, hematomas and abrasions to his legs and chest, diffuse puncture wounds with embedded foreign substances throughout his body, severed tendons in both hands leading to a loss of hand functionality, a fractured left clavicle, a fractured rib and concussion like symptoms.
[20] Mr. Wenhardt has had to undergo painful dental procedures, bone grafts and other medical procedures to remove debris and glass embedded in his face, mouth and hands. As indicated in his Victim Impact Statement, “The countless appointments to try to lessen my facial scaring will only take me so far. I continually work on coming to terms with the visible facial scars that will be with me for the rest of my life.” The statement goes on to indicate that “ …to have an unprecedented incident of this magnitude happen to me so early in my career will have a lasting impact on my mental health.”
[21] The Court also received a Victim Impact Statement from the Old East Village Community Association on behalf of the Woodman community, as well as other statements from victims who lost or were otherwise displaced from their homes. They indicate that the financial impact of Ms Leis’s actions have been enormous, with a total damage estimate approaching fifteen (15) million dollars. In total, approximately thirty (30) homes were affected. This pales in comparison to the lasting emotional and psychological harm that resulted, particularly to those who lost or were otherwise displaced from their homes for an extended period of time. As indicated in the community impact statement, “In the community there is a diminished sense of safety and security. The openings left by the vacant lots and downed fences leaves a potential for thefts and break-ins. Some suffer from grief and loss of sentimental items and family pets. Others are dealing with stress and anxiety caused by insurance companies and contractors as they attempt to get their lives back on track.”
The Circumstances of Ms Leis
[22] Ms Leis is a 24-year-old youthful first offender whose personal circumstances were outlined in a Gladue Report prepared in connection with this matter.
[23] She is a registered member of the Six Nations of the Grand River Territory. Her Indigenous ancestry comes through her maternal grandfather. Her maternal grandmother, as well as her father and paternal grandparents, are non-Indigenous.
[24] Her maternal great grandparents attended the Mohawk Institute, the oldest continuously operated Anglican residential school in Canada. Substance abuse and domestic violence permeated their relationship. Her maternal grandfather attended Indian Day School. He too developed an addiction to alcohol. This, together with domestic violence, lead to the breakdown of his martial relationship.
[25] Ms Leis’s mother said her parents did not have the emotional or financial capability to care for her. As a result, she was raised by her grandmother from the age of three.
[26] The Gladue Report discloses that Ms. Leis’s upbringing was marked by the same parenting deficiencies and childhood trauma experienced by her own mother and maternal grandparents. Her parents separated when she was approximately eleven (11) years old. She was exposed to domestic violence and alcohol abuse at an early age and was herself the subject of physical, emotional and psychological abuse. This led to self-harming behaviours in her early teen years and her subsequent addiction to alcohol. She continues to have a strained relationship with her parents and currently resides with her boyfriend as a result.
[27] At the time of the offences, she was registered in a two-year Child and Youth Program and was working in the food service industry. Both of those endeavors came to an end as a result of the charges and the publicity surrounding them.
[28] Ms Leis says that she has maintained sobriety since the offences. She has participated in a two-week counselling program directed at women with substance abuse issues and has followed up with counselling session thereafter.
[29] It is clear that Ms Leis is genuinely remorseful. Her statement before this court demonstrates an understanding of the suffering that has been, and will continue to be, experienced by those who were required to put themselves in harms way to save the lives of others, including her own.
The Position of the Parties
[30] The Crown seeks a custodial sentence of 3 years.
[31] The defence proposes a range of custody from upper reformatory to the minimum penitentiary sentence.
[32] Both counsel agree that I should impose a 3-year driving prohibition.
Sentencing Principles
[33] The fundamental purposes of sentencing are set out in section 718 of the Criminal Code. They include denouncing unlawful conduct and the harm caused to victims or to the community, providing reparations for that harm, deterring the offender and other persons from engaging in such conduct, separating offenders from society, where necessary, assisting in their rehabilitation, and promoting a sense of responsibility in offenders, and acknowledgement of the harm they have done to victims or to the community.
[34] I am also guided by the principle of proportionality set out in section 718.2 and the need for any sentence to reflect the gravity of the offence and the degree of responsibility of the offender having regard to the relevant aggravating and mitigating circumstances related to each. Proportionality also requires that I impose a sentence that is similar to sentences imposed on similar offenders for similar offences.
[35] Both counsel agree that in cases of drinking and driving, particularly where bodily harm is involved, denunciation and general deterrence are the paramount sentencing objectives. As indicated by the Supreme Court of Canada in R v. Lacasse, general deterrence takes on added significance given that drinking and driving offences are often committed by the same otherwise law-abiding people most likely to be deterred by the threat of substantial penalties. To this extent, the need for general deterrence takes precedence in cases involving first offenders where the principle of restraint would otherwise mitigate in favour of a non-custodial sentence.
[36] Pursuant to section 718.2(e), I must also consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims in this case and the community, with particular attention to Ms. Leis’s circumstances as an Indigenous offender.
[37] As indicated in the Supreme Court of Canada’s decision in R v. Gladue, section 718.2(e) requires the court to adopt a different approach to the sentencing of Indigenous offenders. The Court must consider the following: (i) the extent to which factors affecting Indigenous people in Canadian society have impacted upon Ms. Leis’s moral blameworthiness; and (ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for Ms. Leis because of her Indigenous heritage and connection.
[38] This different approach, however, does not necessarily mandate a different result. As indicated in Gladue, "[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing". iii
[39] I also remind myself of the problems caused by unwarranted emphasis on the above-noted passage, something that was addressed by the Supreme Court of Canada in R. v. Ipeelee, and most recently by the Ontario Court of Appeal in R. v. Martin, and R v. Altiman.
[40] As indicated by the Ontario Court of Appeal in Altiman, “An offender's level of moral blameworthiness for impaired driving causing death will vary significantly depending on the aggravating and mitigating factors in any given case. As a result, the sentencing range for these offences is quite broad -- from low penitentiary sentences of two or three years to more substantial penitentiary sentences of eight to ten years -- because courts recognize that they cover a broad spectrum of offenders and circumstances: Suter, at para. 27.”
[41] As indicated by the Court at paragraph 85, “The key point is that the Gladue analysis conducted by a sentencing judge must focus on the circumstances of the offender that may bear on the offender's moral culpability for the offence. A sentencing judge cannot let the seriousness of the offence deflect the court away from that focus.”
[42] Finally, given the current global COVID-19 pandemic, counsel for Ms Leis seeks a reduction in sentence to reflect the conditions under which it will likely be served. In this regard, I adopt the reasoning of Justice Pomerance in R v. Hearns and the cases cited therein which provide that, while sentencing is a highly individualised process, collateral consequences may be considered so long as they do not result in a sentence that is otherwise markedly outside of an appropriate range.
[43] No specific evidence was called on the conditions of any facility where Ms Leis will serve her sentence, nor was there any evidence that Ms Leis belongs to a class of individuals particularly vulnerable to the effects of COVID-19.
Analysis
[44] I take into account the following mitigating factors: (a) Ms Leis entered a plea of guilty. This is recognised as a traditional sign of remorse and I accept that it is genuine on her part. She has demonstrated a sincere understanding of the impact her actions have had on the individual victims and the community at large; (b) Ms Leis has no prior criminal record; (c) She is a youthful first offender; (d) In spite of a difficult upbringing, she has made considerable efforts at maintaining employment and furthering her own education. This speaks to her character and determination, factors that will no doubt assist her in the future; (e) despite COVID-19 restrictions, she has taken active steps to address her addiction to alcohol; and (f) her life and current circumstances reflect the intergenerational trauma resulting from Canada’s Indian Residential School System. The impact can be traced from her maternal great grandparents who were residential school survivors, to her grandfather and mother;
[45] With regard to this latter point, the impact of the residential school system on subsequent generations has been well documented. It has led to increased rates of substance abuse, mental health problems, criminal activity, mortality/suicide, poverty, family breakdown and community disintegration. All of this has contributed to cycles of parenting deficiencies. As indicated in the Royal Commission on Indigenous People, the abuse and neglect suffered by residential school survivors left its mark on their lives and the lives of their descendants whose families have been characterized by further abuse and neglect.
[46] I accept that these factors contributed to Ms Leis’s reliance on alcohol as a coping mechanism. To this extent, while they do not justify or excuse her behaviour, they do go at least some way in explaining her appearance before this court. I accept that this operates to reduce her moral blameworthiness.
[47] The fact remains however that Ms Leis drove from Kitchener to London to attend a concert knowing that she would be consuming alcohol. Given the amount of alcohol consumed, this was not one of those cases where an individual could mistakenly believe they were in any condition to drive. She made the decision to drive when she had to know she was in no condition to do so. In short, she made the conscious decision to risk the lives and safety of others. She did so after mixing alcohol with the consumption of marijuana. As indicated in the Gladue Report, she knew from past experience that mixing alcohol with marijuana “doesn’t end well”.
[48] Accordingly, I find Ms Leis’s moral blameworthiness to be high although not as high as it otherwise would be in the absence of Gladue factors. The offences were the result of not one, but several conscious decisions which ultimately placed the lives and safety of others, including her own, at extreme risk. In spite of the background factors discussed above, she is an otherwise intelligent, responsible young woman who ought to have known better.
[49] I also take into account the following aggravating factors: (a) Ms Leis caused bodily harm to more than one individual. This is an aggravating factor pursuant to section 320.22(a) of the Code; (b) her blood-alcohol concentration at the time of the offence was more than 120 mg of alcohol in 100 millilitres of blood. This is an aggravating factor pursuant to section 320.22(e); (c) her driving behaviour was objectively quite dangerous even prior to the collision. She was operating her vehicle in the wrong direction on a one-way street for 2.78 kms while other vehicle tried in vain to get her attention. She was driving at an excessive speed immediately prior to the collision; (d) as indicated above, the offences have had a significant impact on the victims. This is also an aggravating factor pursuant to section 718.2(a)(iii.1)
[50] Counsel have provided me with a number of cases in support of the range of sentences being suggested. At the end of the day, while each case is dependant on its own facts, they do offer some guidance. At the same time, both counsel candidly acknowledge some difficulty finding cases on par with what occurred in this case.
[51] In R v. Wadien, the accused was convicted after trial and sentenced to two years custody for five counts of impaired driving causing bodily harm. The accused struck another vehicle containing five victims while driving at an excessive speed on the QEW. Based on a toxicology report, his blood alcohol concentration at the time of the offence was estimated to be at least 105 mgs (the lower of the two readings). Two of the victims suffered serious bodily harm.
[52] More recently, in R v. Bulland, the Court of Appeal overturned a thirty-nine month sentence and imposed a sentence of two years less one day for an accused convicted after trial of impaired driving causing bodily harm. In that case, the accused struck a pedestrian after driving home from a concert in downtown Toronto. His blood alcohol concentration was estimated to be between 80 and 120 mgs. The victim suffered a catastrophic brain injury, paralysis to the left side of his body and was no longer able to care for himself.
[53] The Court of Appeal noted that the trial Judge imposed a sentence above the two years sought by the trial Crown without providing the defence any notice of his intention to do so and without providing appropriate reasons. The Court accepted the Appellate Crown’s submission that the two-year sentence originally suggested by the trial Crown was appropriate, but nevertheless indicated that, “A penitentiary sentence somewhat in excess of two years would have fallen within the range of appropriate sentences” xii.
[54] In R v. Stennett, the Crown sought a two-year penitentiary sentence for an accused convicted after trial of impaired driving causing bodily harm and dangerous driving causing bodily harm. The offender had a blood alcohol concentration of between 66 and 96mgs when his vehicle struck a pole, injuring two passengers. One of the victims was seriously injured and was no longer living independently.
[55] In sentencing the offender to 18 months custody followed by probation, the Court specifically noted that the accused’s low blood alcohol readings “distinguishes his moral blameworthiness from other cases where there were higher blood alcohol levels” xiv.
[56] In R. v. Stewart, the offender pled guilty and received a thirty-month sentence for impaired driving causing bodily harm. The offender had a blood alcohol concentration of between 145-200mgs when he lost control of his vehicle while driving at an excessive speed. The ensuing accident resulted in one of the passengers having his spleen removed while the other was rendered a paraplegic. The offender had a prior record for impaired driving approximately 7 years prior.
[57] In R. v. Mitchell, the offender pled guilty to two counts of impaired driving causing bodily harm. She had a blood alcohol concentration of between 102-117 mgs when she lost control of her vehicle which crashed into a tree and a building. She was 31 years of age and had no prior criminal record. The two passengers in the vehicle had extensive injuries which required surgery and the likelihood of ongoing medical assistance in the future.
[58] The Court sentenced Ms Mitchell to a period of sixteen months custody, the amount requested by the Crown.
[59] In R v. Gill, the offender received a sentenced of fifty-one months following his plea to impaired driving and dangerous driving causing bodily harm.
[60] Mr Gill had been operating his vehicle in a dangerous manner while significantly intoxicated by alcohol. He drove his vehicle into the back of a motorcycle. The collision caused the motorcyclist to receive a concussion and dislocated shoulder while the rear passenger suffered significant life-changing injuries. He subsequently refused to provide a sample of his breath. Although Mr. Gill had no convictions for drinking and driving, he had a prior criminal record and was on bail for a related offence with a condition that he not operate a motor vehicle with alcohol in his body.
[61] In arriving at its decision, the Court in Gill referenced the decision of Justice Fuerst in R v. Muzzo, where a sentence of five years for the offences of impaired and dangerous driving causing bodily harm “may have established a new threshold”. xix
[62] What almost all of the above case have in common is an acknowledgement of the upward trend in sentencing for cases of impaired driving where death or serious bodily harm is caused. Muzzo and Gill are but the latest in a long line of cases that emphasize the harm caused by such offences and the need to send a stronger message in order to deter them. In large part, the trend mirrors the intention of Parliament, as evidence by repeated amendments to the Code aimed at increasing both the minimum and maximum sentences available for such offences.
[63] In this regard, it is also noteworthy that, with the exception of Waiden, the above cases all involve offences that occurred before the most recent amendments. Those amendments increased the maximum available penalty for impaired driving causing bodily harm from 10 to 14 years. Those amendments were in force when Ms Leis committed the offences before this court. I find that they reflect the heightened seriousness with which Parliament views such matters.
[64] The fact remains that, unlike Mr. Gill, Ms Leis has no prior record and was not on bail for a related matter or otherwise in breach of a court order. This, together with her background factors related to her Indigenous heritage, reflects a reduced moral blameworthiness when compared to that of Mr. Gill.
[65] At the same time, the seriousness of the offences with which Ms Leis has been convicted is heightened by sheer magnitude of the harm caused. Her actions victimised a neighborhood consisting of approximately thirty homes, three of which were destroyed or had to be torn down.
[66] In addition to the financial and emotional impact to the homeowners, her actions resulted in significant personal injury to four first responders. The injuries suffered by the two firefighters are particularly serious. One firefighter, at the beginning of his career, suffered physical and emotional scars that he will carry with him for the rest of his life. Another firefighter, within a year of retirement, suffered a significant brain injury that will no doubt impact the quality of the retirement he worked almost thirty years to achieve. The harm caused to them and their families cannot be overstated.
[67] In light of the COVID-19 Pandemic, I accept that the circumstances under which Ms Leis will serve her sentence will be more difficult. Although no specific evidence was tendered regarding any particular institution or any vulnerability specific to Ms Leis, I take judicial notice that measures designed to prevent the spread of the virus will impact the ability of others to gain access to a custodial setting. This may affect family visits as well as counselling that may be available to her. It will also likely add to the social isolation she will experience within a custodial institution.
[68] Having considered all of these factors it is my view that the three year sentence suggested by the Crown strikes the appropriate balance between Ms Leis’s personal circumstances, the collateral consequences related to serving a custodial sentence during the present pandemic and the need to deter and denounce the offences in this case given the relevant aggravating and mitigating factors.
[69] I have been mindful not to let the consequences of the offences override the sentencing process. At the same time, the seriousness of the offences in this case underscores the need to once again send the message that impaired driving resulting in serious bodily harm will continue to attract significant sentences as a means of deterring others from engaging in such conduct.
[70] Ms Leis is fortunate that no one was killed as result of her conduct. Both she and the community owe a debt of gratitude to those who selflessly put themselves in harms way. Had it not been for their heroic efforts, loss of life would almost surely have resulted.
Disposition
[71] Accordingly, I sentence Ms Leis to three years in the penitentiary, concurrent on all matters.
[72] In addition, she will be prohibited from operating a motor vehicle for three years following the completion of her sentence.
[73] Given her plea, the absence of any prior record and her prospects for rehabilitation, I decline to issue a DNA Order.
[74] Finally, in light of her financial circumstances, I will waive the application of the victim fine surcharge.
Released: February 11, 2021 Signed: Justice G. L. Orsini
References
[i] R v. Lacasse, 2015 SCC 64, at para 73; see also R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.) and; R. v. Ramage, 2010 ONCA 488 [ii] R v. Gladue, [1999] 1 S.C.R. 688 [iii] Ibid., para.79; see also R v. Wells, [2000] 1 S.C.R. 207 at para. 44 [iv] R. v. Ipeelee, [2012] 1 S.C.R. 433; see also R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.), at para. 31, leave to appeal refused, [2007] S.C.C.A. No. 34 [v] R v. Martin, [2018] O.J. No. 6591 [vi] R v. Altiman, 2019 ONCA 511, [2019] O.J. No. 3216 [vii] R v. Altiman, supra. at para. 49 [viii] R v. Hearns, 2020 ONSC 2365 at paras. 15-24 [ix] Royal Commission on Indigenous People, Part Two: False Assumptions and Failed Relationship, Chapter 10 – Residential Schools, Discipline and Abuse [x] R v. Wadien, 2020 ONCJ 120 [xi] R v. Bulland, 2020 ONCA 318 [xii] Ibid., para. 9 [xiii] R v. Stennett, 2018 ONCJ 466 [xiv] Ibid., para. 8 [xv] R. v. Stewart, 2018 ONCJ 678 [xvi] R. v. Mitchell, 2016 ONCJ 731 [xvii] R v. Gill, [2017] O.J. No. 533 [xviii] R v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 [xix] R v. Gill, supra at para. 46