



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adamson, 2018 ONCA 678

DATE: 20180803

DOCKET: C57171

Watt, Brown & Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Adamson

Appellant

Lance C. Beechener, for the appellant

John Patton, for the respondent

Heard: February 23, 2018

On appeal
    from the convictions entered and sentence imposed on May 10, 2013 by Justice Douglas
    K. Gray of the Superior Court of Justice, sitting with a jury.

Watt
    J.A.:


[1]

Early one morning in November, Sarah Muir and her family were asleep in
    their home.

[2]

Sarah Muir was awakened by the sound of someone coming up the stairs
    outside her room. A man walked into her bedroom. He was wearing black track
    pants, a tight-fitting tank top and gloves.

[3]

The man walked over to Sarah Muirs bed. He punched her in the head.
    Sarah asked the man: Why are you doing this? The man said Im sorry, then
    rolled her onto her back and put a gloved hand over her mouth.

[4]

The man then put a knife to Sarah Muirs throat. As he began to cut her
    neck, the man told Sarah: I love you. Sarah screamed. The man fled out of her
    room and out of the house.

[5]

Sarah Muir knew the man who entered her room. She knew the man because
    he had turned on the light when he walked into her room. She knew him because
    he was her boyfriend  or so she thought. And she knew him because he was the
    father of the child that she was then carrying. The man, she said, was

Brandon
    Adamson.

[6]

Brandon Adamson denied that he was the man who had attacked Sarah Muir
    in her bedroom early that November morning. He said that he was at home at the
    time of the attack on Sarah.

[7]

A jury found Brandon Adamson guilty of several offences arising out of
    his unlawful entry of the Muir home and his attack on Sarah.

[8]

Brandon Adamson appeals his conviction and the sentence imposed on him.
    As these reasons will explain, I am satisfied that both appeals fail and should
    be dismissed.

THE BACKGROUND FACTS

[9]

A brief canvass of the circumstances in which the offences alleged took
    place will provide an adequate frame for the ground of appeal advanced.

The Principals and their Relationship

[10]

Sarah
    Muir and Brandon Adamson had a casual sexual relationship for about four years.
    At times, Sarah wanted their relationship to become official. Brandon thought
    otherwise. For about a year prior to the attack on Sarah, Brandon had been
    dating another woman whom he considered his real girlfriend.

[11]

Neither
    Sarah Muir nor the appellants real girlfriend knew about each other.

[12]

On
    two occasions prior to the attack on her, Sarah Muir had become pregnant by
    Brandon Adamson. Each time she terminated the pregnancy.

The Third Pregnancy

[13]

About
    three months before the attack upon her, Sarah Muir learned that she was
    pregnant for a third time as a result of her relationship with Brandon Adamson.
    This time would be different. Sarah decided that she would keep the baby. And she
    would tell her parents about it. Brandon was upset when Sarah told him about
    her decision to have his child.

[14]

Sarah
    Muir told her parents about her pregnancy and her plans to have and keep her
    baby. She also told them that Brandon Adamson was the father of her unborn
    child. Sarahs parents supported her decision to have and care for her child.

[15]

Brandon
    Adamson did not tell his mother or his real girlfriend about Sarah Muirs
    pregnancy or of her plan to have and raise their child.

The Meeting

[16]

During
    the month before the early morning attack on Sarah Muir, Brandon Adamson met
    with Sarah and her parents at their home to discuss her pregnancy and her
    future plans to have and care for the baby. They agreed that Sarah and their
    child would live in the Muir home. Brandon Adamson would have access to their
    child and contribute twenty dollars per week as support, an amount that would
    permit him to continue his education and to pursue a career in the culinary
    arts.

The Missing Key

[17]

During
    the summer immediately preceding the attack upon her, Sarah Muir hosted a get together
    at her home. Her parents were away. Among the six people in attendance was
    Brandon Adamson.

[18]

The
    day after the get together, Sarah Muir noticed that a house key was missing
    from her bedroom. She asked Brandon Adamson whether he took or had the key. He
    denied taking or having it.

[19]

The
    missing key was never found.

The Claim of Unfairness

[20]

About
    four days before the attack on Sarah Muir, Brandon Adamson was out with his
    friends. He called Sarah Muir and complained that she was unemployed while he
    was working hard at a restaurant to earn enough money to meet his future
    support obligations. At trial, Brandon admitted that he raised his voice during
    the call but said he had to do so because of the background noise at the club
    from which he made the call.

The Telephone Call and Text Message

[21]

About
    seven hours before she was attacked in her bedroom, Sarah Muir spoke with
    Brandon Adamson on the telephone. He told her that he planned to see a movie
    with some friends. Shortly thereafter, Sarah went to bed.

[22]

At
    11:19 p.m. the same night, Brandon Adamson sent Sarah Muir a one word text: Hey.
    Asleep at the time the text was sent, Sarah Muir did not notice it until the
    next day after she had been attacked.

The Attack

[23]

At
    about 2:00 a.m. on November 10, 2010, Sarah Muir was awakened by the sound of
    someone climbing the stairs outside her bedroom door. Her bedroom door opened.
    She saw a tall, dark figure standing in the doorway. The man was wearing
    gloves, black track pants and a tight-fitting grey tank top. He turned on the
    light in her bedroom. The man, Sarah claimed, was Brandon Adamson, the father
    of her unborn child.

[24]

The
    man walked up to the side of Sarah Muirs bed. He punched her in the head with
    his gloved hand. When she asked why he had punched her, the man replied: Im
    sorry. He then rolled Sarah onto her back, covered her mouth with his gloved
    hand and put a knife to her throat. As he began to cut her throat, he told
    Sarah: I love you.

[25]

Sarah
    Muir screamed. The man fled from her room and the house.

The Flight

[26]

Sarah
    Muirs scream awakened her father and brother. They looked outside. They saw a
    dark van leave their driveway, its tires squealing. They were unable to
    determine the make, model or licence number of the van. One of their neighbours
    made similar observations.

The Emergency Response

[27]

Paramedics
    and police responded to the Muir home within minutes of the attack on Sarah
    Muir. At 2:12 a.m., Sarah was taken to the hospital where she received six
    stitches to close the cut to her neck. Treating staff also noticed bruises.
    Police officers spoke to Sarahs parents and her brother.

The Facebook Message

[28]

At
    about 2:20 a.m., Brandon Adamson sent a Facebook message to Sarah Muir. He told
    her that he was going to bed and asked her to call him in the morning. It was
    not unusual for Brandon to send Sarah Facebook messages before he went to
    sleep. He then went upstairs to bed.

The Investigation and Arrest

[29]

The
    police arrived at the Adamson home at 2:44 a.m. As they walked up the driveway
    to the house, officers noticed a green minivan in the driveway. Its hood was
    warm to the touch. Unlike other vehicles in the area, no frost appeared on the
    windows of the minivan.

[30]

Brandon
    Adamson called and sent a text to his brother Bradley when he saw the police at
    his door. He asked Bradley to come upstairs quick. The call and message were
    not answered.

[31]

When
    the police arrived, Brandon Adamson was wearing a black, sleeveless basketball
    jersey and shorts.

[32]

During
    a search of Brandon Adamsons bedroom, police found a pair of gloves in a
    hollowed out storage area under his bed. They found no blood on either the
    gloves or a pair of Adamsons pants. They found no key to the Muir home. Police
    also seized Brandon Adamsons running shoes. On the underside of the tongue of
    one of the shoes, investigators located a spot of Sarah Muirs blood.

[33]

In
    the Muir home, police found a knife at the bottom of the stairs and blood on
    the staircase wall. The knife was very dull and had been taken from the kitchen
    in the Muir home. The blood smear on the wall was the blood of Sarah Muir.

[34]

There
    were no signs indicative of forced entry to the Muir home.

The Alibi

[35]

Brandon
    Adamson testified at trial. He denied having unlawfully entered the Muir
    residence and having attacked Sarah Muir. He said he was at home, playing video
    games with his brother Bradley until 1:50 a.m., then watching sports until 2:20
    a.m. when he sent Sarah a Facebook message. He then went upstairs to bed where
    he remained until he saw the police arrive at his home. He called and texted
    Bradley.

[36]

At
    the door of the Adamson home, a police officer told Brandon that they needed to
    talk to him about an assault on his girlfriend. He responded: Who? Malena?
    When the officer said no, Brandon added: My best friend, Sarah? When told
    that Sarah had identified him as the perpetrator, Brandon denied having
    assaulted her and said that he had not left the house.

[37]

Brandon
    Adamson denied having a key to the Muir home, changing his clothes, hiding his
    gloves, leaving his home, and driving the familys van to the Muir residence.

[38]

Bradley
    Hamil, Brandon Adamsons brother, testified that Brandon was home when he
    (Bradley) returned at about 10:00 or 10:30 on the evening of November 9. The
    familys van was in the driveway. He and Brandon played video games and watched
    television in the basement until Brandon went upstairs around 2:15 a.m.

[39]

Bradley
    Hamil declined to give police a formal statement about the events of the
    evening and early morning hours preceding the attack on Sarah Muir. A police
    officer who attended at the Adamson residence testified that Bradley told him that
    he had been asleep for about an hour before the police came to the Adamson
    residence. Bradley could not recall this conversation with the officer.

THE APPEAL FROM CONVICTION

[40]

Brandon
    Adamson (the appellant) advances a single ground of appeal against
    conviction. He complains that the trial judge failed to properly instruct the
    jury about its use of evidence of post-offence conduct in reaching its verdict.
    The substance of the grievance focuses upon those features of the post-offence
    conduct about which the trial Crown cross-examined the appellant and invoked in
    her closing address as establishing the appellants guilt.

[41]

To
    better appreciate the nature of the complaint and evaluate its validity, it is
    enough to identify the subject-matter of the criticism and its treatment at
    trial.

The Post-Offence Conduct

[42]

Among
    the things done and said after the attack on Sarah Muir, several incidents were
    the subjects of attention by the trial Crown in her cross-examination of the
    appellant (and his brother) and in her closing address to the jury. They
    included:

i.

the Facebook message to Sarah Muir at 2:20 a.m.;

ii.

the appellants hiding a pair of gloves in the hollowed-out space
    beneath his bed;

iii.

the appellants pretending to be asleep when the police arrived at his
    home;

iv.

the appellants attempt to contact his brother when the police arrived;
    and

v.

the appellants concocted alibi.

[43]

In
    cross-examination, the appellant denied leaving his home, assaulting Sarah Muir
    and hiding a pair of gloves under his bed. He acknowledged that his brother was
    the only person who could verify his presence at home at the time Sarah Muir
    said that he had attacked her.

[44]

In
    her closing address, the trial Crown contended that:

i.

the appellant sent the 2:20 a.m. Facebook message to cover his tracks
    and make it appear that he had been at home at the relevant time;

ii.

the appellant hid his gloves and went upstairs pretending to have been
    in bed;

iii.

the appellant called and texted his brother seeking his help in coming
    up with a story when the police arrived at their home; and

iv.

the appellant and his brother fabricated an alibi to account for the
    appellants whereabouts at the time of the attack on Sarah Muir.

The Charge to the Jury

[45]

Prior
    to the charge to the jury, the trial judge gave counsel a copy of his proposed
    final instructions. The draft charge contained no instructions about evidence
    of post-offence conduct.

[46]

Repeatedly
    during the pre-charge conference, the trial judge asked defence counsel whether
    there was anything further counsel wished included in the final version of the
    instructions to be provided to the jury. Defence counsel did not ask for any
    instructions on jury use of evidence of post-offence conduct, nor did counsel
    complain thereafter about their absence.

The Arguments on Appeal

[47]

The
    appellant says that the trial judge erred in law in failing to instruct the
    jury, in express terms, about the restricted use the jury could make of the
    evidence of post-offence conduct. This omission caused a miscarriage of
    justice.

[48]

The
    appellant underscores the authorities that uniformly recognize that evidence of
    post-offence conduct carries with it a heightened risk that an untutored lay
    trier of fact will misapply it to the prejudice of an accused. These inherent
    characteristics of evidence of post-offence conduct require a trial judge to
    instruct a jury not only about the use the jury may make of the evidence, but
    also about impermissible uses. The instruction should caution jurors about the
    dangers inherent in the evidence and point out other inferences arising from it
    that point away from, rather than towards guilt. The general instruction should
    also make it clear that the jury should not draw any inferences from evidence
    of post-offence conduct until it has examined the evidence as a whole.

[49]

In
    addition to the general instructions explaining jury use of evidence of
    post-offence conduct, the appellant says that the trial judge should have
    included two specific instructions. The jury should have been told to disregard
    the trial Crowns submission that the appellants alibi had been fabricated.
    This is so because there was no independent evidence of fabrication. And the trial
    judge should have limited jury use of any evidence of post-offence conduct to
    the issue of complicity and made it clear that the evidence could not be used
    to establish the level of the appellants culpability. This limitation was
    important because the jury struggled over the issue of intent. The case for the
    Crown on intent to kill was far from overwhelming. And both the trial Crowns
    closing address and the trial judges instructions on intent invited the jury
    to consider, among other things, words and conduct
after
the attack.

[50]

The
    respondent begins with an observation about the nature of the case presented at
    trial. The case for the Crown, the respondent says, was simply overwhelming,
    not only on the issue of identity, but also on the level of culpability. The
    complainant gave direct evidence of the identity of her assailant  her
    sometime lover of more than four years  and of words and conduct that
    established an intent to kill. The charge to the jury focused on the contested
    issue at trial  identification of her assailant  and attracted no objection
    either before or after it was given.

[51]

Evidence
    about what the appellant did after the attack on Sarah Muir was properly
    admitted as narrative and relevant to establish the appellants involvement in
    the attack and to impeach the credibility of his assertion of non-involvement.
    The trial judges charge was well-structured and left the jury adequately
    equipped to decide the issues raised by the evidence at trial. It accurately
    conveyed the defence position as it had been advanced by defence counsel.

[52]

The
    respondent says that nowhere in the charge or closing addresses is there any
    suggestion, much less an instruction, that a failed or disbelieved alibi was an
    item of evidence from which the jury could draw a positive adverse inference of
    guilt.

[53]

The
    respondent submits that on the evidence adduced at trial, the judge was under
    no obligation to give the instruction of whose absence the appellant now
    complains. Such an instruction is only required where the Crown invokes
    evidence of a concocted alibi in proof of guilt or where the common sense of
    the jury is unlikely to overcome the inherent likelihood of overvaluation or
    misinterpretation of the evidence of post-offence conduct. Neither is at work
    here.

[54]

In
    this case, the respondent concludes, the jury was well-equipped to navigate the
    evidence of post-offence conduct without restriction. Their verdict was, and
    remains, entirely sound.

The Governing Principles

[55]

The
    principles governing the admissibility and jury use of evidence of post-offence
    conduct
[1]
are well established and not in need of lengthy recital. That said, the
    precedents elucidate several principles of importance in the assessment of this
    ground of appeal.

[56]

To
    begin, evidence of post-offence conduct is circumstantial evidence which
    invokes retrospective reasoning to link something said or done later to the
    speakers or doers participation in a prior event which constitutes the
actus
    reus
of an offence with which she or he is charged:
R. v. White,
2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 17, 105;
R. v. B. (P.)
,
    2015 ONCA 738, 127 O.R. (3d) 721, at para. 165.

[57]

Second,
    the bulk of evidence of post-offence conduct enters the trial record as an
    unremarkable part of the narrative of relevant events:
White
, at
    paras. 140 and 157;
R. v. Cornelius
, 2011 ONCA 551, 283 O.A.C. 66, at
    para. 19.  Where evidence of post-offence conduct is received as pure
    narrative, no special or limiting instruction about its use is required:
White
,
    at para. 47.

[58]

Third,
    as a general rule, evidence of post-offence conduct is not subject to special
    admissibility rules. Nor does it require that a trial judge caution the jury
    about its use in proof of guilt:
White,
at paras. 105, 137;
Cornelius
,
    at para. 19;
R. v. Rosen
, 2018 ONCA 246, 361 C.C.C. (3d) 79, at para. 50.

[59]

Fourth,
    the influence of evidence of post-offence conduct in the determination of an
    accuseds guilt is a variable, not a constant.

[60]

Sometimes,
    the Crown will tender evidence of post-offence conduct as an essential
    component of its case. When this is so, it is for the Crown to satisfy the
    trial judge, as with any item of evidence, that the evidence is relevant and
    admissible. To meet the modest threshold for
relevance
, the Crown must
    establish that the evidence of post-offence conduct, as a matter of logic,
    common sense and human experience, has a tendency to help the jury resolve a
    live factual issue in the trial:
White
, at paras. 36, 140, 169. To
    meet the
admissibility
requirement the Crown must show that no
    exclusionary rule bars reception of the evidence.

[61]

In
    other cases, evidence of post-offence conduct will be admitted as narrative
    only and not enlisted as an essential component in proof of guilt.

[62]

Fifth,
    where evidence of post-offence conduct is put forward as an integral element in
    the Crowns attempt to establish guilt, it is ultimately for the jury to decide,
    on the basis of the evidence as a whole, whether the evidence of post-offence
    conduct relates to the offence charged rather than to something else and, if
    so, how much weight, if any, the evidence should be accorded in the final
    determination of guilt or innocence:
White
, at para. 137;
Cornelius,
at para. 19.

[63]

Sixth,
    as a general rule, evidence of post-offence conduct may be relevant to and
    admissible to assist in proof of an accuseds culpability in an offence, but
    not on the level of that culpability:
R. v. Czibulka
, 2011 ONCA 82,
    267 C.C.C. (3d) 276, at para. 55;
R. v. Stiers
, 2010 ONCA 382, 255
    C.C.C. (3d) 99, at para. 55, leave to appeal refused, [2011] S.C.C.A. No. 150.
    But this rule is not unyielding. After all, relevance is a relative concept.
    The relevance of evidence of post-offence conduct depends upon myriad factors
    such as:

i.

the nature of the conduct;

ii.

the facts sought to be inferred from it;

iii.

the positions of the parties; and

iv.

the totality of the evidence.

No prefabricated rule determines the relevance or lack
    of relevance of evidence of post-offence conduct to a particular fact in issue:
Stiers
, at para. 56.

[64]

Seventh,
    experience teaches that in some cases jurors may attach more weight to evidence
    of post-offence conduct than is warranted. In such cases, it makes sense for
    judges to alert jurors to the accumulated learning of the courts about the
    evidence, all the more so when that learning may be counter-intuitive for at
    least some jurors:
Cornelius
, at para. 19;
White
, at para.
    138.

[65]

Eighth,
    consistent with general principle, where evidence of post-offence conduct is
    admissible for one purpose but not another, as a general rule, a trial judge
    should expressly instruct the jury on the permitted and prohibited use(s) of
    this evidence. But failure to do so in express terms is not always fatal:
Cornelius
,
    at para. 24;
Czibulka
, at paras. 60-61;
Stiers
, at paras. 61-62;
R. v. Huard
, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 83, leave to
    appeal refused, [2014] S.C.C.A. No. 13.

[66]

Two
    further points will round out this discussion of governing principles.

[67]

Where
    the evidence of post-offence conduct consists of or includes advancement of an
    alibi, we distinguish the evidentiary value of a disbelieved alibi from that of
    an alibi that has been fabricated or concocted. A disbelieved alibi is an
    evidentiary naught. On the other hand, an alibi that independent evidence
    establishes as concocted or fabricated at the instance of an accused may
    support an inference of guilt, but is
not
conclusive evidence of
    guilt:
R. v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 67;
R.
    v. Nedelcu
, 2012 SCC 59, [2012] 3 S.C.R. 311, at para. 23;
R. v. Cyr
,
    2012 ONCA 919, 294 C.C.C. (3d) 421, at para. 75.

[68]

Finally,
    a general instruction that jurors might consider an accuseds words and
    actions before, at the time, and after the conduct that constitutes the
actus
    reus
of an offence in determining the accuseds state of mind is simply a
    general guideline that encourages jurors to consider an accuseds actions in
    their totality.  As such, it is not an instruction to infer an accuseds state
    of mind merely from conduct after the incident:
R. v. Jaw,
2009 SCC
    42, [2009] 3 S.C.R. 26, at para. 25.

The Principles Applied

[69]

As
    I will explain, I would not give effect to this ground of appeal and, as a
    result, would dismiss the appeal from conviction.

[70]

In
    this case, the appellants complaint is of non-direction. In other words, the
    trial judge left something out of his final instructions. He failed to tell the
    jury about how it could and could not use evidence of what the appellant said
    and did after the attack on Sarah Muir. To assess the impact of the omission,
    we must take as our point of departure the standard by which we adjudge the
    adequacy of a jury instruction. The parties are entitled to a
properly
instructed jury, not a perfectly instructed one:
R. v. Daley
, 2007 SCC
    53, [2007] 3 S.C.R. 523, at para. 31;
R. v. Marshall
, 2017 ONCA 1013,
    at para. 27. Perfection is a standard that few, if any, trial judges are
    capable of achieving:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 2.

[71]

It
    would be a rare case in which final instructions included everything that could
    be said on a particular subject, as for example, the use that can be made of
    various items of evidence adduced at trial. But on review the issue is not
    whether something more or something different could have been said but rather,
    in the context of the trial as whole, whether what was said was sufficient. For
    it is not misdirection to fail to tell the jury everything that could be said
    about a particular subject. Non-direction becomes misdirection only when
    something left unsaid makes wrong something that was said, or where what was
    left unsaid is essential to an accurate instruction on the subject:
B. (P.)
,
    at para. 131.

[72]

A
    second preliminary point. Recall the controverted issue at trial  the identity
    of Sarah Muirs assailant. Was it the appellant? Or was it somebody else? And
    recall the nature of the evidence upon which the Crown relied to prove its
    case.

[73]

Sarah
    Muir gave evidence that it was the appellant, her lover of several years and
    the father of her unborn child, who attacked her. Her blood was found on the
    inside of the tongue of one of his shoes seized within hours of the attack. A
    dark van sped away from the Muir home immediately after the attack. The
    appellants family owned a dark minivan. When police arrived at the Adamson
    home shortly after the assault, the hood of the van was warm to the touch and,
    unlike other vehicles in the same area that early November morning, the
    windshield was clear of any signs of frost.

[74]

Pitted
    against this combination of direct and circumstantial evidence was the
    appellants claim, supported by his brother, that he was at home playing video games,
    watching television, then retiring to bed shortly before the police arrived.

[75]

It
    was in the context of these dramatically opposed versions of events that the
    evidence of the appellants post-offence conduct entered trial proceedings. As
    it seems to me, the most the appellant can say is that the trial judge failed
    to give the jury an instruction about how the jury could use this evidence in
    deciding whether the Crown had proven the appellants guilt beyond a reasonable
    doubt. Perhaps it would have been better had the trial judge done so. But
    several reasons satisfy me that the omission of limiting instructions did not
    render the appellants trial unfair or cause him a miscarriage of justice.

[76]

First,
    the significance of the evidence in the demonstration of guilt. On the critical
    issue of identity, the evidence of the appellants post-offence conduct played
    a peripheral role in the Crowns case. Sarah Muir identified the appellant as
    her assailant. He was a person with whom she was thoroughly familiar. Cogent
    circumstantial evidence linked the appellant to her, including her blood on the
    inside tongue of his shoe and the inferences available from the nature and
    condition of the dark minivan parked in the driveway of the home where the
    appellant lived.

[77]

Second,
    the reliance placed on this evidence by the Crown in proof of guilt: reference
    to it in the closing address on the issue of identity only, with no suggestion
    that it could be utilized as proof of the mental element in attempted murder.

[78]

Third,
    the references to the substance of this evidence in the charge to the jury. A
    single reference in a recital of the evidence and positions of the parties on
    the issue of identity or participation. No link to proof of intent. And no link
    to the defence of alibi.

[79]

Fourth,
    the position of trial counsel for the appellant. No request for an instruction
    on evidence of post-offence conduct, despite ample opportunity for input on the
    content of final instructions during lengthy pre-charge discussions. And no
    complaint about the absence of any such direction either before or after
    delivery of the charge. While not dispositive of the necessity for such an
    instruction, the absence of any request or objection goes some distance to put
    paid to any claim of prejudice or unfairness as a result of its absence:
Daley
,
    at para. 58.

[80]

And
    finally, we ought not lose sight of the substance of an instruction on evidence
    of post-offence conduct. The appellant does not suggest that the evidence of
    post-offence conduct warranted a no probative value instruction. At least
    some of the evidence was relevant in proof of culpability, if not the level of
    that culpability. In these circumstances, drawing further attention to the
    evidence of post-offence conduct may have been unfavourable to the defence.
    Further, it was by no means certain that the evidence could not sustain a
    finding that the alibi was concocted. And even if the jury had been instructed
    that the evidence of post-offence conduct could not be used to establish proof
    of the mental element in attempted murder, the case for the Crown on that issue
    was not so underwhelming as the appellant colours it. A knife to the throat
    causing injury. And evidence of motive.

[81]

This
    ground of appeal fails, so too the appeal from conviction.

the appeal from sentence

[82]

The
    appellant also appeals the sentence imposed upon him  a term of imprisonment
    of 12 years and 57 days, the result of deducting credit of 308 days for
    pre-disposition custody from an imposed sentence of imprisonment for 13 years.

[83]

On
    the appeal from sentence, the appellant says that the trial judge erred in two
    respects:

i.

in failing to consider the appellants compliance with strict bail
    conditions for an extended period of time as a mitigating factor on sentence,
    thus warranting a deduction in the net sentence imposed; and

ii.

in imposing a sentence that is demonstrably unfit and exceeds that proposed
    by the trial Crown.

[84]

These
    complaints of error are better understood with brief references to the
    circumstances of the appellant, the positions advanced at the sentencing
    hearing, and the manner in which the hearing was conducted.

The Circumstances of the Appellant

[85]

The
    appellant was a 19-year-old first offender. He completed high school and worked
    in restaurants before and after graduating. He hoped to forge a career for
    himself in the culinary arts. He has a supportive family.

[86]

The
    terms of the appellants release from custody included requirements that he:

i.

remain in his residence at all times unless in the direct presence of
    one of his sureties (his parents), save and except during meetings with his
    counsel and only during those meetings; and

ii.

be under the direct, present and immediate supervision of at least one
    of his sureties at all times.

[87]

Prior
    to sentencing, the appellant worked at a restaurant where his father was also
    employed. The appellant was arrested on a charge of failure to comply with his
    recognizance and detained in custody until he was acquitted of that charge and
    ordered released on the terms contained in his original recognizance.

The Positions of the Parties at Trial

[88]

The
    trial Crown proposed a sentence of ten years, emphasizing as aggravating
    factors that the attack occurred in the victims home, that the victim was
    pregnant at the time of the attack, that the attack was planned, and that the
    attack had lasting effects not only on the victim, but also on her family. The
    trial Crown acknowledged the mitigating factor of the appellants youth and, in
    the following exchange, conceded that the trial judge had to take into account
    the lengthy period the appellant was subject to restrictive terms of release:

CROWN COUNSEL: So that leaves the issue of the time spent on
    release.

THE COURT: Yes,
Downes
and
Ijam
and

CROWN COUNSEL: Exactly.

THE COURT: all of that.

CROWN COUNSEL: So, its the Crowns position and I think I
    provided yesterday the law as
Ijam
and the
Dragos
case. The
    Crowns position is that
while Your Honour has to take that into account to
    some extent, that its Your Honours discretion with respect to how much credit
    to provide and that in certain cases other factors may take a predominant role
,
    and so you may decide theres [no] mathematical formula, you may decide to give
    less credit.



CROWN COUNSEL: and its something that at the end of the day
you
    may give some weight to, but in the Crowns submission, it should be far far
    less than what my friend is submitting to you
gives [
sic
] the
    circumstances and the principles that are, that you have to consider in this
    case. [Emphasis Added.]

[89]

Trial
    counsel for the appellant submitted that the appropriate range of sentence was
    imprisonment for a term of seven to ten years. She contended that the fact that
    the appellant was a youthful first offender with excellent prospects for
    rehabilitation and family support warranted a sentence of seven years. Trial counsel
    urged the trial judge to consider the appellants lengthy compliance  for 22
    months  with restrictive bail conditions as a mitigating circumstance in
    determining a fit sentence. Trial counsel proposed credit for restrictive bail
    conditions at a rate of 0.5 to 1, a figure with which the trial Crown
    disagreed.

The Sentencing Proceedings

[90]

Immediately
    after the trial Crown indicated that she sought a sentence of imprisonment of
    ten years, less whatever credit the trial judge considered appropriate for
    restrictive bail conditions, the trial judge said:

May I say respectfully that I think you may be too low.

The trial judge then explained that the purpose of his
    comment was to put counsel on notice that he was considering imposing a
    sentence in excess of that sought by the Crown.

Reasons for Sentence

[91]

The
    trial judge identified denunciation, deterrence, separation, and
    proportionality as the governing sentencing objectives. He also recognized that
    the appellant was a youthful first offender with rehabilitative potential and
    strong family support.

[92]

In
    reaching his conclusion that a fit sentence was imprisonment for a term of 13
    years less credit of 308 days for pre-disposition custody, the trial judge
    identified several aggravating features. Among those were that the offences:

i.

involved a home invasion;

ii.

were planned;

iii.

constituted a breach of trust;

iv.

had a significant impact on the victim and her family; and

v.

were committed on a pregnant woman.

[93]

The
    trial judge expressly acknowledged that the appellant was seeking credit for time
    spent under strict bail conditions. The trial judge noted  erroneously  that
    the Crown was opposed to any mitigation of the imposed sentence on this basis.
    Ultimately, the trial judge was not persuaded that the appellant suffered any
    significant hardship due to his bail conditions. He reached this conclusion for
    three reasons:

i.

The appellant was able to spend all of his pre-trial time in the
    comfort of his own home, with his family, with the exception of some time
    spent in custody on the charge of breaching his recognizance.

ii.

For a portion of his time on bail, the appellant was able to secure
    employment at the same workplace as his father worked.

iii.

The Crown was reasonable in consenting to variations of [the
    appellants] bail terms where appropriate.

[94]

In
    the result, the trial judge awarded no credit for the 22 months the appellant
    had been bound by his release terms never to be out of the presence of one of
    his sureties.

The Arguments on Appeal

[95]

The
    appellant says that the trial judge erred in failing to consider the
    appellants lengthy period of pre-trial release on stringent terms as a
    mitigating factor on sentence. The appellant, when at home, was under the
    direct, present and immediate supervision of at least one of his sureties for
    almost two years. This qualifies, he says, as a lengthy period of release on
    very restrictive terms and warranted some mitigation of the principal sentence.

[96]

In
    failing to consider restrictive release conditions over a lengthy period of
    time as a factor in mitigation of sentence, the appellant contends that the
    trial judge made three discrete errors. He misapprehended the position of the
    Crown on the issue, mistakenly characterizing it as opposed to the award of
    credit. The Crown had in fact expressly acknowledged the mitigating effect of
    restrictive release conditions, but left the quantum of credit to be determined
    by the trial judge. The judge then misconstrued the scope of the Crowns
    consent to a pre-trial bail variation. The consent was to a minor variation in
    a reporting condition, not a more meaningful loosening of the house arrest term
    which the Crown opposed. And the trial judge, having decided not to award a
    specific amount of credit for a lengthy period of pre-trial release subject to
    restrictive bail conditions, further erred in failing to consider these
    conditions as a mitigating factor on sentence. This error stemmed, in part,
    from the trial judge misapprehending the strictness of the appellants bail
    conditions.

[97]

The
    appellant further submits that the 13-year sentence imposed is demonstrably
    unfit. The trial judge, according the appellant, relied on distinguishable
    authorities that involved more blameworthy offenders with extensive criminal
    histories committing more serious crimes. The trial judges improper reliance
    on these cases caused him to view the trial Crowns reasonable sentence
    proposal as too low. The appellant seeks a variation in the sentence imposed
    to a term of ten years, less credit for pre-trial custody.

[98]

The
    respondent resists any variation of the sentence imposed at trial. The judge
    was entitled to refuse to award a specific amount of credit or to consider as a
    mitigating factor the period spent on pre-trial release. The trial judge made
    no error in principle and did not impose a sentence that was demonstrably
    unfit. He followed the correct procedure in advising counsel that he was
    considering imposing a sentence beyond what the trial Crown had sought and gave
    cogent reasons for having done so.

[99]

In
    connection with the period spent on pre-trial release, the respondent reminds
    us that whether such a period should be accorded a defined credit or considered
    in mitigation is an issue for the sentencing judge to determine. Relevant
    factors include the length of time on pre-trial release, the nature of the
    conditions, and the impact of those conditions on the offender. The trial judge
    considered the relevant factors and decided that no credit or mitigation was
    warranted. His conclusion is entitled to and should be accorded deference in
    this court.

[100]

Further, the
    respondent continues, the sentence the trial judge imposed is not unfit. The
    trial judge considered and applied the proper sentencing objectives and
    principles. Aggravating factors predominated. The judge was cognizant of the
    appellants youth, his status as a first offender, his family support and his
    rehabilitative prospects. The sentence imposed is not beyond the range of fit
    sentencing dispositions and is entitled to substantial deference.

The Governing Principles

[101]

Several
    principles inform the decision on the fitness of the sentence imposed at trial.
    Some have to do with the scope of appellate review while others relate more
    specifically to the influence of the terms of predisposition release on the
    sentencing decision.

[102]

First, the
    standard of review. It is not every error in principle, every failure to
    consider a relevant factor, or every erroneous consideration of an aggravating
    or mitigating factor that can justify the intervention of an appellate court on
    an appeal from sentence. Appellate intervention is justified only where it
    appears from the sentencing judges decision that such an error had an impact
    on the sentence imposed:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
    at paras. 43-44;
R. v. Suter
, 2018 SCC 34, at para. 24.

[103]

Second, an
    appellate court is disentitled to interfere with a sentence imposed at trial
    simply because the appellate court would have weighed the relevant factors
    differently than did the sentencing judge:
Lacasse
,
at para.
    49.

[104]

Third, a
    sentencing judges choice of sentencing range or of a category within a range
    resides within the sentencing judges discretion and, without more, cannot
    amount to a reviewable error. Appellate courts may not intervene solely on the
    ground that they would have situated the sentences in a different range or
    category:
Suter
, at para. 25. Intervention is restricted to cases in
    which the sentence imposed is demonstrably unfit:
Lacasse
, at para.
    51.

[105]

Fourth, a
    sentence is demonstrably unfit if it constitutes an unreasonable departure from
    the fundamental principle of proportionality, that is to say, that the sentence
    be proportionate to the gravity of the offence and the degree of responsibility
    of the offender who committed it:
Lacasse
, at para. 53.

[106]

Turning to the
    issue of credit for time spent on predisposition release on restrictive terms. Unlike
    predisposition custody, which is governed by s. 719(3) of the
Criminal Code
,
    no statutory provision explicitly authorizes or requires consideration of time
    spent subject to stringent predisposition bail conditions as a relevant
    mitigating factor on sentence. That said, it is beyond controversy that prior
    decisions of this court authorize a sentencing judge to take into account, as a
    relevant mitigating circumstance on sentence, time spent under stringent bail
    conditions, especially house arrest:
R. v. Downes
, (2006), 79 O.R.
    (3d) 321 (C.A.), at para. 33;
R. v. Ijam
, 2007 ONCA 597, 87 O.R. (3d)
    81, at para. 37.

[107]

A sentencing
    judge should explain why she or he has decided not to take predisposition house
    arrest into account in determining the sentence that she or he will impose. The
    amount of credit to be given, if any, lies within the discretion of the trial
    judge. Unlike s. 719(3) in relation to predisposition custody, there is no
    formula the sentencing judge must employ. The amount of credit is variable, a
    function of several factors, including but not limited to:

i.

the period of time spent under house arrest;

ii.

the stringency of the conditions;

iii.

the impact on the offenders liberty; and

iv.

the ability of the offender to carry on normal relationships, employment
    and activity.

See,
Downes
, at paras. 33, 34 and 37. See
    also,
Ijam
, at paras. 37 and 63.

[108]

A final point
    concerns the effect of the failure of a sentencing judge to consider an offenders
    bail conditions as a mitigating factor in determining the sentence to be
    imposed. Consistent with
Lacasse
and earlier jurisprudence of this
    court, the failure to consider or give effect to an offenders predisposition
    bail conditions as a mitigating factor on sentence warrants appellate
    intervention only where it appears from the trial judges decision that such an
    error had an impact on the sentence imposed:
Lacasse
, at para. 44;
Suter
,
    at para. 24;
R. v. Lawes
, 2007 ONCA 10, at paras. 10-11;
R. v. Hunjan
,
    2007 ONCA 102, at para. 1. See also,
R. v. Pomanti
, 2017 ONCA 48, at
    para. 34.

The Principles Applied

[109]

As I will
    briefly explain, although I would grant leave to appeal sentence, I would
    dismiss the appeal from sentence.

[110]

At the outset, I
    acknowledge that a 13-year sentence imposed upon a youthful first offender with
    significant rehabilitative potential is a substantial sentence. But I do not
    consider it to offend the fundamental principle of proportionality or to be
    otherwise demonstrably unfit as reflective of an unreasonable departure from
    that principle.

[111]

I agree with the
    appellant that the trial judges reasons reveal a misapprehension about the
    position of the Crown in connection with the pre-trial bail conditions by which
    the appellant was bound for 22 months. The Crown did not oppose consideration
    of these conditions as a relevant mitigating factor on sentence, rather
    agreeing that they were relevant and leaving it to the trial judge to determine
    the extent of mitigation warranted. It is also arguable that the trial judge
    overstated the extent of the Crowns cooperation with the appellants attempts
    to review and vary the conditions governing his predisposition release.
    Although the Crown consented to a variation in the frequency of the appellants
    reporting to police, it opposed loosening of the house arrest and
    surety-supervisory conditions.

[112]

While I do not
    gainsay the force of these submissions, I am not satisfied that they justify this
    court interfering with the sentence imposed

[113]

To begin,
    neither claim of error discloses a significant misapprehension by the trial
    judge. While the Crown acknowledged that the appellants pre-trial bail
    conditions had to be considered to some extent, she did not advocate for any
    particular quantum of credit. She expressly opposed the 11-month figure
    proposed by the appellants trial counsel, suggesting that the appellants time
    on pre-trial release deserved far far less weight as a mitigating factor, and
    that in certain cases other factors may take a predominant role. Thus, the
    Crowns position, while not accurately depicted in the reasons for sentence,
    was far from forceful in favour of awarding the appellant credit for pre-trial
    release.

[114]

Further, the trial
    judges finding that the Crown was reasonable in consenting to variations of
    [the appellants] bail terms where appropriate amounts, at most, to an
    overstatement and not a fundamental misunderstanding of the record. The Crown
    provided its consent for one variation to the appellants bail conditions and
    refused to acede to other, more significant variations. The trial judge may
    simply have concluded that the Crown acted reasonably in deciding which
    variations to support  and, as such, provided consent 
where appropriate

    (emphasis added).

[115]

More
    importantly, neither alleged error had any impact on the sentence imposed.
    Neither affects the fundamental finding of fact made by the trial judge, a
    determination available to him on the evidence, that the
Downes
criteria were not satisfied. The trial judge provided cogent reasons in support
    of his finding that the appellant did not suffer any significant hardship or
    deprivation as a result of his bail terms. This conclusion was reasonably
    available to him on the evidence and entitled to significant deference in this
    court.

[116]

Turning next to
    the appellants claim that the trial judge should have taken the strict bail
    conditions into account as a mitigating factor, even after refusing to award the
    appellant a specific amount of credit for abiding by those conditions.

[117]

I reject this
    submission. Time spent on pre-trial release does not always deserve weight as a
    mitigating factor. In some cases, a sentencing judge should give mitigation
    effect to pre-trial bail. In other cases, this factor should attract little,
    if any, weight:
Ijam
, at para. 37. This case fell into the latter
    category, given the trial judges unequivocal and reasonable finding that the
    appellant did not suffer any significant hardship because of compliance with
    his bail conditions. That finding justifies the trial judges decision not to
    give mitigation effect to the appellants time on pre-trial release, either
    through an explicit award of credit or by assigning it weight when determining
    an appropriate sentence.

[118]

Finally, I would
    reject the appellants submission that the sentence imposed is demonstrably
    unfit.

[119]

Sentences for
    attempted murder imposed at trial or after a plea of guilty and upheld by this
    court vary widely:
R. v. Tan
, 2008 ONCA 574, 268 O.A.C. 385, at para.
    35. The variations reflect differing circumstances. Of offence. Of offender.
    And of the effects of the offence on their victims. The maximum sentence is
    imprisonment for life. And the offence includes the most morally blameworthy
    state of mind known to our law  the intent to kill a fellow human being.

[120]

In this case, a
    sentence of 13 years is justified on the basis of several aggravating factors,
    compounding the significant moral blameworthiness inherent to the crime of attempted
    murder and the intent to kill that accompanies it:
R. v. Forcillo
,
    2018 ONCA 402, at paras. 129-130, 195, 201. These aggravating factors include:

i.

the domestic-like context;

ii.

the breach of trust;

iii.

the planned nature of the attack;

iv.

the invasion of the victims home;

v.

the pregnant state of the victim; and

vi.

the serious consequences for the victim and her family.

[121]

An additional
    point. The trial judge found that the appellants actions did not result in Sarah
    Muirs death only because by happenstance he selected a dull knife with which
    to attempt to kill Ms. Muir rather than a sharp knife. If he had selected a
    sharp knife, he would in all probability be guilty of murder. In these
    circumstances, the appellants culpability is hardly distinguishable form that
    of a murderer:
R. v. Varga

(2001), 159 C.C.C. (3d) 502 (Ont.
    C.A.), at para. 95;
R. v. McArthur
(2004), 182 C.C.C. (3d) 230 (Ont.
    C.A.), at paras. 47-48.

[122]

Given these
    significant aggravating factors, the sentence imposed was reasonable and fell
    within the appropriate range for this offence and this offender.

conclusion

[123]

I would dismiss
    the appeal from conviction, grant leave to appeal sentence, but dismiss the
    appeal from sentence.

Released: DW AUG 3 2018

David Watt J.A.

I agree. David Brown J.A.

I agree. Grant Huscroft J.A.





[1]

Although the label post-offence conduct is less prejudicial
    than its predecessor consciousness of guilt, it appears to presume the
    commission of an offence. Perhaps post-incident conduct would be a better
    choice of words.


