ONTARIO COURT OF JUSTICE DATE: 2023 06 16 COURT FILE No.: Windsor 21-11258
BETWEEN:
HIS MAJESTY THE KING
— AND —
HAI QIN LIANG
Before Justice C. Uwagboe Heard on February 3, 2023; March 20, 2023; April 21, 2023 Reasons for Judgment released on June 16, 2023
Counsel: Andrea Harris..................................................................................... Counsel for the Crown Michael H. Gordner....................................... Counsel for the Defendant Hai Qin Liang
Preliminary Hearing Ruling on Committal
Uwagboe J.:
[1] Ms. Hai Qin Liang faces one count of failing to stop contrary to section 320.16(2) of the Criminal Code of Canada related to a collision involving John Almasi, an 89 year‑old man, who was struck while crossing the road by Ms. Liang’s vehicle on April 13th, 2021. It is alleged that after the collision, Ms. Liang failed to stop, identify herself, provide her address, and render assistance.
[2] The facts are largely not at issue. There is no question that Ms. Liang was operating the conveyance that collided with Mr. Almasi on the evening of April 13, 2021.
[3] The parties provided a considerable amount of documentary evidence as exhibits in this case including an accident reconstruction, surveillance video, willsays, and transcripts of witness statements including that of the accused and her spouse. This evidence helped provide context to the facts of this matter and helped to, in some respects, contextualize the video evidence that was played at the preliminary hearing.
Facts
[4] On April 13, 2021, the accused, Ms. Liang, left her place of work at the end of her shift around 11:00 p.m., and ended up travelling westbound on Hwy #3.
[5] Prior to her arrival at the point of collision at Highway 3 and County Road 34, the complainant, Mr. Almasi, parked his vehicle on the south side of Hwy #3 facing east.
[6] Mr. Almasi exited his vehicle leaving the vehicle’s headlights on and travelled north across Hwy #3 in the dark at the time he was struck by Ms. Liang’s vehicle.
[7] It is alleged that the collision took place at approximately 11:25pm. [1] At the point of the collision damage was sustained to the passenger side of Ms. Liang’s vehicle including the covering, or exterior, of her passenger side mirror.
[8] The passenger side of the vehicle of Ms. Liang collided with Mr. Almasi near the north edge of the westbound through lane.
[9] Ms. Liang’s vehicle failed to slow down or stop at the point of the collision.
[10] It is not alleged that Ms. Liang was speeding or otherwise operating her vehicle improperly.
[11] Ms. Liang makes a U-turn and travels back by the scene observing nothing of note and makes another U-turn noting a vehicle and what she believed to be three Mexican farmers on the road. [2]
[12] Other witnesses attended the scene to assist Mr. Almasi. Initial witnesses were drawn to him by the sounds he was making and no witnesses make note of noise on the road that is captured on video by driving over the debris on the road from the collision.
[13] Emergency response vehicles attend on the scene by approximately 11:32 p.m. [3]
[14] Ms. Liang denied seeing anything of note, made another u-turn, passing the scene again, and continued home. Once she arrived home she advised her spouse, Jian G Li, that she struck something because she felt a bump with her front right wheel. [4]
[15] It is unclear on the narrative between these parties as to whether Ms. Liang was aware that the mirror was damaged to that extent at the time she advised Mr. Li or whether Mr. Li pointed that out to her. It is also unclear whether it was her belief that she struck a curb, a pole, or a small animal. [5] A decision was made to place the vehicle in the garage and leave the two other operational vehicles in the driveway leaving the Honda repair until the COVID restrictions were lifted. [6]
[16] The Essex County OPP put out media releases in an effort to track down the driver of the vehicle that struck Mr. Almasi. The releases were filed on consent as Exhibit 4 and are dated as follows: (a) April 14, 2021 (b) April 16, 2021 – Update #2 – Photo of similar type vehicle (c) April 20, 2021 – Update #3 – Arrest Made and Charges Laid
[17] Ms. Liang learned of the media release on April 19, 2021 through a website and believed that it may be her Honda that police were looking for. [7] It is noteworthy that the media release from April 16th 2021 included details of the vehicle and caution to repair shops to contact police if the vehicle comes for repair.
[18] However, it is also noteworthy that the next day after Ms. Liang saw the media release (April 20, 2021), she consulted her husband and attended the police station with the vehicle in the same condition to surrender to the police. Ms. Liang chose to share her version of events with police after consulting counsel.
[19] Ms. Liang maintains that she did not know that she hit a person. Her position is supported by the reconstruction report which indicates the following: “The driver of the Honda, approaching the scene westbound, would have had these lights along with the headlights of the parked Chevrolet Impala on the south shoulder directly in their line of sight. These lights may have hindered the Honda driver’s ability to see the pedestrian crossing the road. Likewise the unexpectedess of a pedestrian crossing a highway in the dark, not at an intersection, may have been a factor as to why the collision occurred.” [8]
[20] Indeed, the Crown does not submit that Ms. Liang knew that she hit a person.
[21] There are some facts that remained unresolved by the evidence adduced at the preliminary hearing including the following: (a) What part of Mr. Almasi made contact with the vehicle; (b) How long it took Ms. Liang to make the U-turns in reference to the collision; (c) What was visible at the time to Ms. Liang at the time she made the U-turns. (d) Whether Ms. Liang noticed the broken mirror at the time or sometime thereafter.
Position of the Parties
[22] The position of the parties differ on what Ms. Liang ought to have objectively considered at the time that contact was made and her actions thereafter.
Position of Defence
[23] The Defence submits that Ms. Liang did not know that she hit a person and that nothing about the facts of this case would lead her to believe that she hit a person. Her actions in making the U-turn are reasonable in the circumstances and that her subsequent decision to drive home is consistent with the reasonable steps she took and the observations that she made. Her ultimate decision to turn herself into police, bring the car with her and make a statement is inconsistent with an effort escape culpability. Only evidence tending to show that Ms. Liang was in fact wilfully blind could support a decision to commit her matters to trial on the evidence before the Court. The Crown has failed to establish a prima facie case on the issue of wilful blindness and the matter should be dismissed.
Position of the Crown
[24] The Crown concedes that there is no evidence before this Court to show that Ms. Liang knew that she hit a person at the time of the collision. However, the Crown submits that the sound of the impact is irrefutable as something that must have garnered Ms. Liang’s attention. One of the considerations that she must have made is that she struck something significant. The damage to her vehicle is consistent with a significant impact beyond that of the trifling contacts Ms. Liang suggests by her statement to the police. In fact, her actions in turning around clearly suggests that her suspicion was aroused. Ms. Liang was wilfully blind to the circumstances that she was in. Ms. Liang failed to stop, failed to provide her name, failed to give her address, and failed to offer assistance. Her subsequent actions in the U-turns and surrender of herself and her vehicle to the police are of no moment because those actions did not assist in the immediate situation once she struck Mr. Almasi. There is sufficient evidence before this Court that she failed to stop and that she was wilfully blind. Ms. Liang should be committed.
[25] There is no dispute that Ms. Liang did not stop at the moment of the collision and provide her name and address or render assistance.
Issues
(i) Does the evidence support the inference that Ms. Liang knew that she struck a person?; (ii) Does the evidence support the inference that Ms. Liang was reckless as to whether her conveyance was involved in an accident that resulted in bodily harm to John Almasi?; (iii) Does the evidence establish that Ms. Liang failed to stop as a matter of law?; (iv) Does any of the evidence adduced conclude a prima facie case in favour of wilful blindness supporting committal?;
The Law
[26] The purpose of the preliminary hearing is to determine whether the Crown has “sufficient evidence to commit the accused to trial.” [9] It is not to determine guilt or innocence, but to determine whether there is sufficient evidence.
[27] In addition to that well established purpose there is also a purpose to “protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” [10]
The Test
[28] The Supreme Court in Arcuri referencing United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080 set out the test at a preliminary hearing as follows:
“The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080.” [11]
[29] The test applies whether there is direct or circumstantial evidence. Where the evidence presented is direct, the only determination to be made is whether it is true. The determination of how far the evidence is to be believed is a task that belongs to the jury. If the Court determines that the Crown has presented evidence on every element of the offence charged then the Judge’s task is complete. Where there is evidence adduced on each of the elements of the offence the accused must be committed. [12]
Limited Weighing
[30] Where the analysis involves circumstantial evidence “those elements where the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence,” [13] the analysis requires the Judge to engage in a limited weighing of the evidence:
“….with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.” [14]
[31] In conducting the task of limited weighing, the preliminary hearing Judge is not to draw inferences from facts or assess credibility. The judge’s task is to determine whether the Crown’s case, if believed, could reasonably support a finding of guilt.
“ Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.” [15]
[32] The preliminary hearing Judge must consider the whole of the evidence including exculpatory defence evidence in the overall assessment as to whether the evidence adduced by the Crown is reasonably capable of supporting a finding of guilt. [16]
Fail to Stop
[33] An assessment of the wording of this charge is relevant to the analysis to be made in this case. Section 320.16 Criminal Code of Canada reads as follows;
320.16 (1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.
(2) Everyone commits an offence who commits an offence under subsection (1) and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person.
[34] Under the new provisions of this offence, it no longer requires a finding of intent to escape civil or criminal liability.
“ In the new provision, the offence requires a mental element which is “knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person…” as it relates to the allegations in this case. Also, the requirement of “fail to stop” is replaced with “fail, without reasonable excuse, to stop”. This is important to bear in mind when looking at the case law which related to charges under the former provision.” [17]
[35] In respect of the actus reus the Crown need only prove the failure to give one’s name, fail to give one’s address, or the failure to offer assistance. [18]
Wilful Blindness
[36] The assessment of the mens rea is where the parties in the case at bar diverge. Wilful blindness will fulfil a mens rea requirement where it can be established that the accused chose not to know something when the circumstances gave reason to believe that further inquiry was necessary. [19] In assessing the mens rea of this event wilful blindness becomes a salient and determinative issue on the facts before the Court.
[37] The concept of wilful blindness was distinguished from recklessness in Sansregret v. The Queen, [1985] 1 S.C.R. 570;
“ Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.” [20]
[38] Wilful blindness does not however define the mens rea required for a particular offence, it can act as a “substitute for actual knowledge whenever knowledge is a component of the mens rea.” [21]
[39] The key element in wilful blindness is its wilfulness on the part of the accused. Where the accused subjectively sees the need for further inquiry, but deliberately chooses not to make inquiry. Again, the focus is the deliberate decision to avoid inquiry. The question to be asked is “did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” [22]
[40] The concept of wilful blindness has been conceptualized by the Court in R. v. Duong [23] as a subjective assessment of the state of mind of the accused at the time of the impugned conduct:
“ These authorities make it clear that where the Crown proves the existence of a fact in issue and knowledge of that fact is a component of the fault requirement of the crime charged, wilful blindness as to the existence of that fact is sufficient to establish a culpable state of mind. Liability based on wilful blindness is subjective. Wilful blindness refers to a state of mind which is aptly described as "deliberate ignorance " (D. Stuart, Canadian Criminal Law, 3rd ed. (1995) at p. 209). Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability.” [24]
[41] The Court in R. v. Briscoe went further to state that aside from the wilful suppression of the facts that the accused actually knew, wilful blindness necessarily imputes an intent on the part of the accused to cheat the administration of justice:
“The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added.]” [25]
Analysis
[42] This preliminary hearing was largely an in depth review of the video evidence of the event with the documentary evidence for both parties filed on consent with the admitted facts set out above. The focus of the review was to assist the Court with the analysis of what occurred at the time of the collision, highlighting what was visible; the sound of the collision and subsequent travel over debris; the U-turns made by Ms. Liang and the presence of people with emergency response at the scene.
[43] I have reviewed the video evidence carefully. Although the scene of the collision is clear enough to determine that this collision occurred (which is admitted), I was not assisted with the timing of the events as they relate to the actions of Ms. Liang and the developments at the scene of the collision. The inability to assess the timing of the admitted actions of Ms. Liang following the collision bears heavily on the task this Court must undertake in determining the central issue of wilful blindness.
Vision
[44] To give some context to the speed at which the collision occurred, the scene had to be replayed a number of times to confirm the point of contact. Even now it is unclear. The Court, however, is assisted by the documentary evidence and admissions confirming that the point of collision was on the passenger side of the vehicle meaning that Mr. Almasi made it past the front of the vehicle prior to being struck by the passenger side and passenger side mirror.
[45] As mentioned above the reconstruction report supports the reasonable inference that Ms. Liang did not see Mr. Almasi due to a number of factors including the time of evening, the lack of pedestrian traffic on the highway, as well as the constellation of lights from Mr. Almassi’s vehicle and other light present at the time. The Crown concedes these points.
[46] Mr. Almasi is thrown from the road by the collision and on the evidence adduced is difficult to observe in the dark at the side of the road after the collision. In fact witnesses only become aware of him as a result of hearing him. It was the passenger of one of the vehicles to stop that made observation of Mr. Almasi, not the driver. He was initially observed to be a pile of clothes absent hearing his anguish prompting them to stop.
[47] Ms. Liang describes passing by the scene twice following the collision in her statement to police. At both times she asserts that she did not see anything when she looked maintaining that she had good reason not to leave her vehicle at night on the highway. There was no evidence led by the Crown as to the vantage point of Ms. Liang in respect of what was objectively observable at the time. In fairness, the Crown did not assert that Ms. Liang would have been able to see Mr. Almasi from that point of view in the Crown’s submissions. The Crown instead focused upon the fact that she did not stop at the time of the collision having felt the impact submitting that the stops later were too little too late. I will address that shortly.
[48] This Court must only consider the actual evidence on what was observable adduced during the preliminary hearing. The only reasonable conclusions to be drawn from the evidence as to what was visible to Ms. Liang, is that she did not see Mr. Almasi at any point prior to or after the collision on the evening of April 13, 2021. Moreover, there was no evidence led as to when she made the observations of the scene with respect to the timing of EMS other than her statement which suggests that she made observation of the scene at the time that a vehicle with 3 persons were stopped at the side of the road. There was no argument or further evidence led on this point.
Sound
[49] The Crown led evidence of the sound of the event on the video. The sound was loud and unmistakeable as to the point with which the impact occurred. Further, the sound of subsequent vehicles travelling over the debris was also quite loud.
[50] The Crown asserts that the sound of the collision ought to have given pause to Ms. Liang to make efforts to ascertain what the sound was. The Crown asserts that this was not done and supports the Crown submission on wilful blindness.
[51] Although I agree with the Crown as to the jarring nature of the sound caught on video, this Court cannot and must not infer from the sound outside the vehicle that the sound to Ms. Liang inside the vehicle would be the same at the time of the event. No evidence was led as to the sound of the impact or debris inside the vehicle.
[52] In assessing the evidence of the sound of the impact and the sound of the vehicles travelling over the debris I can only conclude that they both appeared to be loud to the surveillance camera. It is of note that none of the witnesses from the initial vehicles that stopped account for the sound of travelling over the debris which is clearly captured on the video. This Court is not in a position to infer that this sound was observable to Ms. Liang nor the witnesses in the vehicles that stopped to the same degree that it was captured on the video.
[53] Notwithstanding this Court’s inability to make useful inferences of the sound of the incident, Ms. Liang, in her statement, does note making observation of the feeling of the impact. Her understanding of what that was is the subject of some scrutiny on the part of the Crown.
[54] This Court must take into account the whole of the evidence, including exculpatory evidence, in order to arrive at a determination of the sufficiency of the evidence presented to support committal. [26] In considering this principle, the only reasonable inference to be drawn from the evidence adduced is that Ms. Liang felt the impact. Her actions following the feeling of the impact are important.
U-turn
[55] There is direct evidence to support the fact that Ms. Liang made 2 U-turns following the impact. Ms. Liang denies in her statement that she was aware that she struck a person. Instead she offers that she turned back to determine what it was that she did strike and did not observe anything.
[56] The Crown submits that this conduct is consistent with a clear arousal of her suspicion and that Ms. Liang wilfully suppressed any effort to determine the truth of what occurred until it was too late some distance away.
[57] I disagree with the submission of the Crown on this point.
[58] The Supplementary Occurrence Report of PC Coene (Exhibit 12) supports the evidence of Ms. Liang that she made a U-turn. It further supports the inference that the U-turn was made shortly after the collision. The timing of the surveillance camera was not matched to the time of the collision but captures the U-turn. PC Coene observed the following;
“From viewing this video surveillance, it shows that after the suspect vehicle struck the victim, the suspect vehicle comes into the camera’s view (9:02 into the footage), came to a stop on the westbound shoulder of highway 3 and then completed a U-turn, travelled eastbound on Highway 3 and back through the intersection at County Road 34. It appears that the suspect vehicle slowed down while travelling past the victim lying on the roadway and continued eastbound on Highway 3 and out of the camera’s view.” [27]
[59] In this account of the U-turn PC Coene makes no mention of the EMS vehicles or persons attending to Mr. Almasi. This is inconsistent with the Crown submission that Ms. Liang does not complete a U-turn until much later when it was “too late.” In addition, PC Coene does not place the timing of the collision in context with the time that the vehicle comes into view. PC Coene also does not note the presence of EMS on the scene in his observation but does seem to suggest that at the time Ms. Liang passes, Mr. Almasi is on the road. I did not find the video helpful in resolving the circumstances of the scene at the time of the U-turn.
[60] The Crown asserts that Ms. Liang’s actions were “too late”, but led no evidence as to distance or timing in reference to the U-turns that took place. The timing and distance of the U-turn is also not resolved by the police interview of Ms. Liang. This Court is not in the position to take judicial notice of the distance or timing of the U-turn in this case in reference to the time of the collision.
[61] This Court can, however, take from the direct evidence that Ms. Liang made 2 U‑turns, one to pass back by the intersection, which was close enough for the camera to capture footage of that event, and another to continue her initial path of travel westbound.
[62] This evidence cannot support the conclusion that Ms. Liang suppressed further inquiry to avoid knowing the truth. The evidence supports not only that she returned to the scene but that she slowed the vehicle to make inquiry of what she hit, she then passed by again making no observations of note.
[63] These actions are the antithesis of a deliberate failure to inquire when she was aware of the reason for the inquiry to avoid arriving at the truth. [28] The only reasonable inference to be made, is that Ms. Liang aborted her path of travel to return to the area twice to make inquiry as to what struck her car. Failure to make a conclusive finding following an effort to make the inquiry cannot support an inference of wilful blindness and indeed is not the test.
Surrender
[64] Mr. Gordner submits that the fact that Ms. Liang surrendered herself to the police, approximately one week later, supports the inference that she was not wilfully blind. In addition to her surrender, she attended with her vehicle in an unrepaired state and turned it over to the police prior to providing a full statement to the police.
[65] I do not agree with the submission that Ms. Liang’s surrender is determinative of a lack of wilful blindness as offered by the Defence. There may be many reasons for why Ms. Liang decided to surrender to the police. The assessment of her credibility on this point must go to the trier of fact and is not for me to assess.
[66] However, the fact that Ms. Liang surrendered herself, in the fashion she did, does not support an inference of wilful blindness either. Wilful blindness must be assessed at the time of the impugned act. Ms. Liang’s surrender does not assist the Court in the same way that her actions post-collision do.
[67] The extent of Ms. Liang’s surrender does, however, undermine to some degree an intention on the part of Ms. Liang to continue to “cheat the administration of justice” [29] and avoid liability. The act of surrender itself does not resolve the issue of her state of mind at the time of the collision. That said, her statement she provided to the police is important to the assessment to be made on wilful blindness for the reasons set out above.
Conclusion
[68] For all of the foregoing reasons, I do not find that there is sufficient evidence to find that a reasonable jury properly instructed could find that Ms. Liang either knew that she struck a person or was wilfully blind to that fact. The direct and circumstantial evidence adduced on a whole in relation to the evening in question do not support a conclusion that Ms. Liang was wilfully blind or that she failed to stop with the requisite knowledge of hitting a person being Mr. Almasi.
[69] As a result, Ms. Liang will be discharged.
[70] Thank you counsel for your thoughtful and thorough submissions.
Released: June 16, 2023 (Original Signed by Justice C. Uwagboe) Signed: Justice C. Uwagboe
Exhibits and Transcripts Cited
[1] Collision Reconstruction Report - Collision Reconstructionist PC Rich Bortolon p. 20 [Exhibit 1] [2] Transcript of interview of Hai Qin Liang, April 20, 2021. p. 30 lns 15 - 21. [3] Statement of Witness PC Mark Quick page 1 [Exhibit 2] [4] Transcript of interview of Hai Qin Liang, April 20, 2021. p. 9 lns 1-11. [5] Transcript of interview of Jian G Li, April 20, 2021. p. 2. Lns 35 – 44 Transcript of interview of Hai Qin Liang, April 20, 2021. p. 9 lns 1-11; p. 17 lns 19 -44 [6] Transcript of interview of Jian G Li, April 20, 2021. p. 2. Lns 41-43 Transcript of interview of Hai Qin Liang, April 20, 2021. p. 14 lns 32 - 34 [7] Transcript of interview of Hai Qin Liang, April 20, 2021. p. 10 [8] Collision Reconstruction Report - Collision Reconstructionist PC Rich Bortolon p. 23 [Exhibit 1] [9] R. v. O’Connor, 1995 Can LII51 (SCC) a para 134 [10] R. v. Hynes, 2001 SCC 82 at para 30 [11] R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54 at para 21 [12] Ibid at para 22 [13] Ibid at para 23 [14] Ibid at para 23 [15] Ibid at para 30 [16] Ibid at para 32 [17] R. v. Harnett [2022] O.J. No. 792 at para 151. [18] Ibid at para 52 [19] R. v. Jorgensen, [1995] 4 S.C.R. 55 at para 102. [20] Sansregret v. The Queen, [1985] 1 S.C.R. 570 at para 22 R. v. Briscoe [2010] 1 R.C.S. at para 21 [21] R. v. Briscoe [2010] 1 R.C.S. at para 21 [22] Ibid [23] R. v. Duong, [1998] O.J. No. 1651 (C.A.) [24] Ibid at para 23 R. v. Harnett [2022] O.J. No. 792 at para 157. [25] R. v. Briscoe [2010] 1 R.C.S. at para 23 [26] R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54 at para 23 [27] Supplementary Occurrence Report of C. Coene – (Ex. 12) [28] R. v. Duong, [1998] O.J. No. 1651 (C.A.) at para 23 [29] R. v. Briscoe [2010] 1 R.C.S. at para 23