Court File and Parties

COURT FILE NO.: CR-15-176 DATE: 20170103 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARCELLO FRACASSI Defendant

Counsel: Frank Faveri and Mary Anne Alexander for the Crown James C. Fleming for the Defendant

HEARD: December 21, 2016

Reasons for Sentence

Boswell J.

Introduction

[1] When my younger brother was in high school, there was a contest that offered a prize for the best original composition about the dangers of drinking and driving. He wrote a song that didn’t win, but it was still pretty good. The chorus included the line, “don’t drink and drive…the consequences might be fatal.” That was some thirty years ago. The message continues to fall on deaf ears.

[2] Mr. Fracassi didn’t mean to kill anyone. But he meant to drink. And he meant to drive. And the consequences were fatal.

[3] On November 1, 2016 I convicted Mr. Fracassi of impaired driving causing death, impaired driving causing bodily harm, and driving while the concentration of alcohol in his blood exceeded the legal limit of 80 mg of alcohol in 100 ml of blood. I conditionally stayed the latter conviction [i].

[4] The following reasons explain the sentence imposed for the other two convictions.

The Offences

[5] The offences occurred in the early morning hours of Friday June 20, 2014. Mr. Fracassi was returning to his Alliston home after he and three friends attended a heavy metal concert in Toronto. All but one of them had been drinking. The non-drinker was the designated driver. Unfortunately, the designated driver lived in Tottenham and drove himself home first. One of the other friends drove from Tottenham to Alliston – about a 15 minute journey. That friend drove to his own home where he and the third friend got out. Both friends asked Mr. Fracassi if he was okay to drive. He said he was. After all, it was only about a five minute drive to his house.

[6] Mr. Fracassi’s route home took him across Victoria Street. It is the main downtown thoroughfare in Alliston. That night a small crew of township employees was at work on Victoria street repainting parking stall lines along the side of the road. Mr. Fracassi’s Ford F150 truck struck two of the employees. First, his right side mirror clipped the back of Jane Fuller causing her significant soft tissue injuries. Next he slammed head-on into Geoffrey Gaston, causing him injuries that he could not survive.

[7] Mr. Fracassi did not brake before striking the township workers, nor did he attempt to steer around them. Nor did he stop after the collision. He continued on, veering around the truck of a horrified transport driver who had witnessed the collision and tried, in vain, to slow or stop Mr. Fracassi from leaving the scene. He left a debris trail from the collision site to his home about a kilometre away.

[8] The circumstances of the collision and its aftermath are more fully detailed in my reasons for judgment reported as R. v. Fracassi, 2016 ONSC 6685. Amongst other factual findings, I concluded that Mr. Fracassi was asleep at the wheel when the collision occurred – the result of a combination of alcohol consumption and fatigue.

[9] Mr. Fracassi advanced a defence of somnambulism, asserting that he was in the throes of a parasomnia when he got behind the wheel of his truck and when he subsequently struck the township workers. A person experiencing a parasomnia does not act voluntarily. The assertion was that Mr. Fracassi was not acting voluntarily when he drove and, as such, could not be held criminally responsible for his actions. He also testified that he likely consumed more than half a bottle of gin when he got home, all while still in a somnambulistic state.

[10] I rejected Mr. Fracassi’s defence and found that he was awake when he got behind the wheel of his truck. I found that he was also impaired. His blood alcohol level was in the range of .175 to 200 mg of alcohol in 100 ml of blood at the time.

The Offender

[11] Mr. Fracassi is 34 years old. He is a married father of four young children, ages 13, 11, 8 and 5. He has been married to his wife, Rachel, since 2001. They met in high school. He operates his own painting company. He is the sole bread-winner in the family. Mrs. Fracassi is a stay-at-home mother and home schools their children.

[12] I have the benefit of having received a Pre-Sentence Report as well as, remarkably, some seventy letters of reference submitted on behalf of Mr. Fracassi. By all accounts he is a hard-working, soft-spoken, kind, decent, compassionate man, who has been a role model to his family and friends. His wife clearly adores him and considers him a wonderful father to their young children.

[13] The letters of support that I received are generally written with a maturity and dignity not always observed in difficult circumstances like these. Not one of Mr. Fracassi’s supporters attempted to understate the moral blameworthiness of his actions. Instead they expressed love and concern for Mr. Fracassi and for the families of the victims of this horrible, and altogether avoidable, tragedy.

[14] It is clear that Mr. Fracassi has tremendous support in the community and that bodes well for him and his family, who are no doubt well aware of the difficult road that lies ahead for them.

[15] Mr. Fracassi lost his father to cancer when he was 16. Some of his supporters spoke of how significantly that event has impacted his life and it is a central theme to the Pre-Sentence Report. I accept that he was devastated to learn that Mr. Gaston had two sons, right around that same age, when he was killed. He is no doubt devastated that his own children will be without their father for a significant period.

[16] Mr. Fracassi has no criminal record, though he does have a number of Highway Traffic Act infractions on his driving record, mostly for speeding. He is the classic example of a good person who committed a serious offence with horrendous consequences. I accept that he is deeply remorseful for what happened.

[17] Some time prior to the offences – perhaps a year or more – Mr. Fracassi began to develop a drinking problem. He hid his problem from everyone; even those closest to him had no idea he was struggling. There is no clear explanation for what led him to drink to the extent that he did. And he was drinking a lot. I’m not entirely sure I have a handle on what his consumption level was. He testified that he was partial to gin. At one point he said he was drinking a third to a half a bottle almost every night. At another point he said it was every other night or so. The Pre-Sentence Report suggests it was every night. At any rate, it appears that a constellation of factors, including life stressors and unresolved emotional baggage, led him to turn to alcohol as a kind of maladaptive coping mechanism.

[18] Naturally, Mr. Fracassi’s family, friends and supporters want the very best for Mr. Fracassi and his young family. Many urged the court to show compassion and mercy to Mr. Fracassi.

[19] The court is not without sympathy for Mr. Fracassi. He appears to be a gentle and caring person, likely having difficulty coming to grips with how he ended up in this situation. And he has five dependents whose lives are going to be damaged in ways that I cannot know and which will undoubtedly be difficult if not impossible to repair.

The Impact of the Offences

[20] Many other gentle and caring people have been affected profoundly by this offence.

[21] I received twenty-four victim impact statements. Four were read in court by members of Mr. Gaston’s family. Four were read into the record by the Crown. The balance were submitted only in writing.

[22] Jane Fuller was not only struck and physically injured by Mr. Fracassi; she also witnessed her dear friend and co-worker, Geoff Gaston, killed before her. She has not recovered, physically or emotionally. She continues to receive physiotherapy and chiropractic treatment. She and her family continue to experience the negative effects of her sudden, traumatic experience. One of her sons, Charlie, is seven. He prepared a “Just for Kids” victim impact statement. He drew the court a picture of his mom before the accident, happy and open. He drew another of his mom after the accident, weeping and shut down. He described his mom as “really brave”.

[23] Charlie still has his mom, damaged though she may be. Josh and Tim Gaston lost their father. Tanya Gaston lost her husband. Ron and Diane Gaston lost their son. Geoff Gaston’s extended family lost a sibling and uncle. His work colleagues lost a good friend. And the firefighting community lost a brother.

[24] The impact on the Gaston and Fuller families has been profound, but the impact has reverberated well beyond their immediate families. Mr. Fracassi didn’t just strike Ms. Fuller and Mr. Gaston; he struck a whole community.

[25] Tanya Gaston is devastated. Her victim impact statement expressed anguish, fear, anger and consuming hatred. Pain, anger and hatred were themes of a number of the victim impact statements I received. The Gaston family remains utterly crushed by grief. Their vital unity – individually and collectively – is being eaten away.

The Legal Parameters

[26] Pursuant to s. 255(2) of the Criminal Code, the maximum penalty applicable to the offence of impaired driving causing bodily harm is ten years imprisonment.

[27] Pursuant to s. 255(3), the maximum penalty for impaired driving causing death is life imprisonment.

The Fundamental Principles of Sentencing

[28] Section 718 of the Criminal Code codifies the fundamental purposes of sentencing. Those purposes include the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[29] Section 718.1 expresses the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[30] Section 718.2(a) provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

[31] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[32] No one sentencing principle or purpose trumps the others. In each case, the weight to be put on the individual objectives varies depending on the facts and circumstances of the offence and of the offender. In this instance, there is no dispute that deterrence, particularly general deterrence, and denunciation are of particular importance.

The Positions of the Parties

[33] The Crown seeks a penitentiary sentence in the range of 7 to 9 years. The Crown submits that the range of sentence for the offence of impaired driving causing death has been steadily increasing over the past decade or so, given the failure of lighter sentences to achieve their goal of deterrence. It is appropriate, the Crown argues, to continue to send the message to drivers that if they drive drunk and hurt or kill someone, there will be a very serious penalty to pay.

[34] Defence counsel accepted that the sentence range has steadily increased over the past 15 years or so, but urged the court to find that the usual range for an offence of this nature is now 4 to 6 years. He asked the court to impose a sentence at the lower end of the range, given the presence of a number of mitigating circumstances.

Discussion

[35] As Justice Wagner so aptly put it in R. v. Lacasse, 2015 SCC 64, “sentencing remains one of the most delicate stages of the criminal justice process in Canada”. This is never more so than in a case like this one, where an otherwise valuable and loved member of the community commits a serious crime with catastrophic consequences.

[36] There are certain basic limitations in the sentencing process. I make note of the following three:

(1) Whatever sentence is imposed, it cannot undo the damage that has been done by the offence. Regardless of the sentence imposed today, the victims of the offence will be left with the emptiness and heartache that they began the day with;

(2) No sentence is capable of satisfying all interested parties. Indeed, I suspect that none of the constituents here will be satisfied. It is important, however, that the sentence adhere to the purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code and that it be fit for purpose – neither too lenient nor too harsh – in order to maintain the confidence of the broader public; and,

(3) The sentence imposed is in no way meant to reflect the value of the losses suffered. One cannot put a price, in dollars or in years of incarceration, on a life lost or otherwise significantly impaired.

[37] There are, on the other hand, certain things that a sentence must do. In this case, it must denounce, in no uncertain terms, the conduct engaged in. It must reinforce the message that impaired driving often has serious, even if unintended, consequences and will be met with a substantial sentence in pursuit of the goal of deterrence. At the same time, it must adhere to the principles of sentencing codified in s. 718.2 of the Criminal Code, including the principle of parity, which seeks to prevent markedly disparate sentences for similar offenders committing similar crimes in similar circumstances.

[38] The principle of parity is generally observed through the use of sentencing ranges. Ranges reflect the scale of penalties imposed in similar circumstances in past cases, from minimum to maximum.

[39] Appellate courts have repeatedly stressed that ranges are guidelines; they are not static, nor are they hard and fast rules. R. v. Nasogaluak, 2010 SCC 6, para. 44. Sentencing judges have a wide discretion when fixing sentences. There is no one-size-fits all sentence for any offence. The sentencing process must be conducted on a case-by-case basis. R. v. Cheddesingh (2004), 2004 SCC 16, 182 C.C.C. (3d) 37.

[40] As I will note momentarily, it is difficult to fix a specific range when dealing with cases of impaired driving causing death. It is, of course, possible to canvass sentences that other courts have been imposing, but the facts of each case vary significantly. Moreover, the yardsticks in terms of sentencing for this type of offence appear to be moving.

[41] It is apparent that sentences imposed in cases of impaired driving causing death have been incrementally increasing over the past 20 years.

[42] In R. v. McVeigh (1985), a 1985 decision of the Court of Appeal, a sentence of 3 years imprisonment was substituted for a 21 month sentence imposed by the trial judge on a 29 year old offender who struck and killed a 14 year old boy while driving impaired. In doing so, Justice MacKinnon, then the associate chief justice, made the following remarks about the need to increase the length of sentences for this type of offence:

…The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught… [vi]

[43] Sentences in the three year range continued to be applicable for some time, as defence counsel reinforced in the case law he supplied to the court. [vii] Indeed, it appears that lighter sentences than 3 years were often imposed depending on the circumstances; even conditional sentences were imposed at times, despite the loss of life occasioned by the offence. [viii]

[44] The 2008 sentencing of former Toronto Maple Leaf captain, Rob Ramage, for convictions of impaired driving causing death and injury R. v. Ramage, 2010 ONCA 488 appears to have been at the crest of a wave of cases that has ushered in a further incremental increase in the severity of sentences imposed for drinking and driving cases.

[45] In Ramage, the Court of Appeal upheld a four year sentence imposed by the trial judge. Justice Doherty, an extraordinarily experienced and highly regarded criminal jurist, clearly struggled with the sentence imposed, particularly in light of Mr. Ramage’s exemplary history apart from the offences. In the end, however, he deferred to the trial judge’s decision.

[46] The Court of Appeal’s decision in Ramage was released in July 2010. A month later, in R. v. Junkert, 2010 ONCA 549, the Court of Appeal upheld a five year sentence imposed on a drunk driver who struck and killed a jogger in Richmond Hill. In Junkert, then Associate Chief Justice O’Connor noted that there had been an upward trend in the length of sentences imposed for drinking and driving offences. He attributed the reason to “society’s abhorrence for the often tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.” [xi]

[47] Five months after Junkert was released, the Court of Appeal again dealt with an appeal involving a sentence for impaired driving causing death. In R. v. Kummer, 2011 ONCA 39, the offender plead guilty to ten charges: three counts of impaired driving causing death, three counts of dangerous driving causing death, two counts of impaired driving causing bodily harm, and two counts of dangerous driving causing bodily harm. Mr. Kummer and two friends were out in Mr. Kummer’s pick-up truck on a March night in 2009. He had been drinking. He was speeding. He ran a stop sign and collided with a vehicle in which a man was driving home from a hockey game with his son and his son’s friend. Both vehicles caught fire after the collision. One of Mr. Kummer’s passengers died, as did the two young boys in the vehicle he hit.

[48] The trial judge imposed an 8 year sentence on Mr. Kummer. He appealed. The appeal was dismissed. Justice MacPherson, for a unanimous court, recognized that sentences for impaired driving causing death had been increasing in part due to the apparent intractability of the problem of impaired driving. He concluded that the sentence imposed by the trial judge was not manifestly unfit given the significant aggravating features of the case: three young lives lost; the impact of the tragedy on three families; an unenviable driving record; a very high blood alcohol level; and the fact that one of the offender’s passengers had asked him to slow down just moments before the crash.

[49] Recently this court once again addressed the sentencing of an otherwise upstanding citizen in the high profile case of R. v. Muzzo, 2016 ONSC 2068. The facts are horrific. The offender arrived at Pearson airport in Toronto fresh off his bachelor party. He elected to drive home from the airport notwithstanding a blood alcohol level some three times the legal limit. On the way home he was speeding and ran a stop sign. He collided with a van killing three children and their grandfather.

[50] Mr. Muzzo entered a guilty plea. He was sentenced to ten years in prison plus a 12 year driving prohibition. Mr. Muzzo was described as a hard-working, conscientious person who was known for his kindness and compassion. Nevertheless, he chose to drive drunk; he was speeding (as he had done many times before as his driving record attested to); and he killed four people – all members of the same family.

[51] In sentencing Mr. Muzzo, Regional Senior Justice Fuerst highlighted two features that have emerged from recent appellate jurisprudence including Ramage, Junkert and Kummer. The first is that even first time offenders of good character can expect to receive a substantial penitentiary sentence if convicted of impaired driving causing death. The second is that such sentences have increased notably in recent years, making the value of earlier cases questionable as guidelines.

[52] A recent Ontario Court of Justice decision [xiv] suggests that the applicable range for offences of this nature is now 5-10 years. I am not prepared to commit to such a specific range. I find that impaired driving causing death is an offence, like manslaughter, that is notoriously difficult to pin down in terms of a range.

[53] It is always necessary – in accordance with the principle that like cases be treated alike – to consider sentences handed out in similar recent cases. Mr. Fleming pointed out that, as recently as 15 years ago, conditional sentences were still being imposed for this type of offence and sentences in the three year range were common. He does not dispute the fact that the sentencing range has increased, but his point, well made, is that the parity principle militates against sudden, substantial upward jumps in sentencing ranges.

[54] The Crown suggests that an appropriate sentencing range is now 7-9 years. Such a range may be consistent with cases like Kummer and Muzzo, but in my view, those cases are readily distinguishable on their facts from the case at bar and are, as things stand, high water marks. On the other hand, they and other recent cases, do reflect an incremental shift upwards in sentencing for this type of offence. I agree with Regional Senior Justice Fuerst that cases preceding Ramage are of little value in terms of a guideline. The reality is that the message about the dangers of impaired driving has been repeated, loudly and clearly, for decades now. For those who continue to ignore a message they have heard for most of their lives, moral blameworthiness is increased, just as societal tolerance is decreased.

[55] As always, the court’s discretion is to be exercised in light of all of the relevant circumstances: the gravity of the offence; the moral blameworthiness of the offender; and any aggravating and mitigating features present.

[56] In this case, there are numerous aggravating and mitigating circumstances that must be considered.

[57] By way of aggravation:

(a) Mr. Fracassi made the choice to drink and drive on the night in question, even though he had been warned by his wife not to drink and even though he was offered a place to stay by his friend, Brian Lafazanos; (b) He killed Mr. Gaston and he badly injured Ms. Fuller. The impact on both of their families has been substantial. For the Gaston family in particular, the impact has been absolutely gutting; (c) The impact on Mr. Fracassi’s own family and friends must not be forgotten. Mr. Fracassi’s wife and children have suffered and will continue to suffer for his actions; (d) Mr. Fracassi was speeding at the time of the collision, though I find this to be only a modestly aggravating feature, given that I have found he fell asleep behind the wheel; (e) Mr. Fracassi also has a record for a number of prior driving infractions, mostly related to speeding; and, (f) His blood alcohol concentration was more than twice the legal limit, which is a statutorily aggravating factor.

[58] By way of mitigation:

(a) Mr. Fracassi is a first time offender, though he does have a number of Highway Traffic Act offences on his driving record, as I noted; (b) Mr. Fracassi is a father to four young children. By all accounts he has been an involved and committed parent; (c) Mr. Fracassi demonstrates a genuine and deeply-held remorse for his actions and their consequences. I doubt he will ever recover from this experience. I have no doubt that it will not be repeated; (d) I have received dozens of letters of support for Mr. Fracassi from family, friends, neighbours and co-workers. He has a strong support network; (e) He has been a contributing member of the community; operating his own business and active in his church; and, (f) He was, at the time of the offences, suffering from an undiagnosed addiction to alcohol. He has taken positive steps since the offences to address that addiction.

[59] As Mr. Fracassi knows only too well, he must be held accountable for his actions. He has otherwise been a good person; a wonderful family man. But his moral blameworthiness on this occasion is significant. He was aware of his problems with alcohol. He was aware he was terribly fatigued. He was asked if he was ok to drive and he said he was, at a time he must have known he was not. He killed someone. Tanya, Josh and Tim Gaston no longer have Geoff as a loving and steadying presence in their lives.

[60] Mr. Fracassi is 34 years old. I noted at the outset of these reasons that local schools were doing their best 30 years ago to reinforce the message about the dangers of drunk driving. Mr. Fracassi has no doubt heard that message, over and over and over.

[61] In my view, the appropriate sentence, in light of all of the circumstances here, is six years in the penitentiary, together with a seven year driving prohibition.

[62] Mr. Fracassi is entitled to a credit, calculated at a ratio of 1.5:1 for each day he has spent in pre-sentence custody. He went into custody on November 1, 2016. As of today he has been in custody for 64 days. He was also in custody for three days prior to being released on bail. In total I am crediting him with 100 days of pre-sentence custody.

[63] Defence counsel sought an additional credit for bail conditions that Mr. Fracassi was subjected to for approximately 28 months prior to going into custody on November 1, 2016.

[64] In R. v. Downes (2006), Justice Rosenberg held that time spent on stringent bail conditions – particularly house arrest – should be taken into account by a sentencing judge as a relevant mitigating factor.

[65] The amount of credit to be given for pre-trial bail conditions is in the trial judge’s discretion. The amount of credit will vary depending on the circumstances of the case. The length of time spent on bail; the stringency of the conditions; the impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity are all relevant considerations.

[66] The conditions of Mr. Fracassi’s bail recognizance included the following:

(a) he was not permitted to drive; (b) he was required to reside with his surety – in this case his wife; and, (c) he was not permitted outside of his residence save for work, or while accompanied by a surety or a person designated by his wife, in writing.

[67] I have virtually no evidence of the impact of these bail conditions on Mr. Fracassi. To some extent the impact is self-evident. There were clearly restrictions on his liberty. At the same time, he was by and large free to carry on his day-to-day activities of employment, family and church.

[68] While it is clear that some restriction on Mr. Fracassi’s liberty was inevitable, without further evidence, I conclude that it was relatively modest. As such the credit given shall reflect that modesty. When added to the credit for pre-sentence custody, I am crediting Mr. Fracassi with a total of 6 months to be deducted from his sentence of six years.

[69] There were some ancillary orders that the Crown sought and which were not opposed.

Conclusion

[70] In the result, the following sentence is imposed:

(a) On count two, impaired driving causing the death of Geoffrey Gaston, Mr. Fracassi is sentenced to six years in the penitentiary, less six months’ credit for pre-sentence bail and custody, for a net of 5 years and 6 months. In addition, a seven year driving prohibition is imposed; (b) On count one, impaired driving causing bodily harm to Jane Fuller, Mr. Fracassi is sentenced to 3 years, plus a driving prohibition of 3 years, all concurrent to count one; (c) Mr. Fracassi shall provide a sample of his DNA in relation to both counts 1 and 2; and, (d) There shall be an order for the forfeiture of the Ford 150 truck pursuant to s. 490.1 of the Criminal Code, in the form and substance of the draft order provided by Crown counsel.

Boswell J.

Released: January 3, 2017

[i] The conditional stay was imposed in accordance with the principles of R. v. Kienapple, [1975] 1 S.C.R. 72. [ii] R. v. Lacasse, 2015 SCC 64 [iii] R. v. Nasogaluak, 2010 SCC 6, para. 44 [iv] R. v. Cheddesingh (2004), 2004 SCC 16, 182 C.C.C. (3d) 37 [v] (1985), , 22 C.C.C. (3d) 145; 1985 CarswellOnt 1389 [vi] Ibid, at paras. 12 and 13 in the CarswellOnt version [vii] See for instance, R. v. Heaslip, [2001] O.J. No. 1043 (C.A.); R. v. Anderson, [2002] O.J. No. 4292 (S.C.J.); and R. v. Weaver, [2003] O.J. No. 2198 (S.C.J.) [viii] See R. v. Mould, [2000] O.J. No. 3040 (C.A.); R. v. Godfree, [2000] O.J. No 3409 (C.A.); R. v. Meathrell, [2000] O.J. No 2249 (S.C.J.); and R. v. Bettridge, [2000] O.J. No. 363 (S.C.J.) [ix] R. v. Ramage, 2010 ONCA 488 [x] 2010 ONCA 549 [xi] Ibid, para. 46 [xii] 2011 ONCA 39 [xiii] 2016 ONSC 2068 [xiv] R. v. Rihawi, [2016] O.J. No. 6260 [xv] (2006), , 79 O.R. (3d) 321 (C.A.)