



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ronald, 2019 ONCA 971

DATE: 20191211

DOCKET: C63798 & C65191

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gurpreet Ronald

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Bhupinderpal Gill

Appellant

Catriona Verner and Lance Beechener, for the appellant, Gurpreet
    Ronald

James Harbic and Robert Harbic, for the appellant, Bhupinderpal
    Gill

Christine Bartlett-Hughes and Michael S. Dunn, for the
    respondent

Heard: November 13, 2019

On appeal from the convictions
    entered by Justice Julianne A. Parfett of the Superior Court of Justice,
    sitting with a jury, dated July 20, 2016.

Doherty J.A.:


I



introduction

[1]

Jagtar Gill was home alone recovering from an operation in the early
    afternoon of January 29, 2014. Someone entered her home, beat her with a metal bar,
    stabbed her many times, and slashed her throat. She died almost immediately.

[2]

The appellants were charged with first degree murder. They were both
    convicted and they both appeal.

[3]

There are various issues raised on appeal, however, ultimately both
    appeals turn on whether the trial judge erred in failing to leave potential
    liability on the included offence of second degree murder with the jury in
    respect of Gurpreet Ronald. As I am satisfied the trial judge did err, and that
    the error requires a new trial for both appellants, I need not address the
    other grounds of appeal. In my view, none of the other grounds of appeal could
    succeed, absent the error in failing to leave a conviction on second degree
    murder for Ms. Ronald as a possible verdict.


II



overview

[4]

At trial, the Crown argued that the appellant, Bhupinderpal Gill (Mr.
    Gill), who was Ms. Gills husband, had conspired to murder Ms. Gill with the
    appellant, Gurpreet Ronald (Ms. Ronald). Mr. Gill and Ms. Ronald had been
    romantically involved for years. The Crown submitted that in furtherance of the
    plan, Ms. Ronald had gone to the Gill residence around noon on January 29
,
2014, under the pretense of borrowing some tools and visiting Ms. Gill. Ms.
    Ronald and Mr. Gill had arranged that Mr. Gill would run some errands with his
    daughter, leaving Ms. Gill alone. Before leaving his home, Mr. Gill had removed
    the weights and fixtures from a weight bar he kept in the basement and took the
    bar upstairs to the family room so Ms. Ronald could use it in her attack on Ms.
    Gill. The Crown argued that, when Ms. Ronald arrived at the Gill home, she used
    the bar to repeatedly strike Ms. Gill. She also stabbed Ms. Gill many times.
    The attack ended with Ms. Ronald slashing Ms. Gills throat.

[5]

After killing Ms. Gill, Ms. Ronald left the Gill home, contacted Mr.
    Gill and met him briefly at a nearby store. Mr. Gill returned home with his
    daughter and found his wifes body in the family room on the main floor. He
    called 911. Mr. Gill found the bloody weight bar near the body and hid it in
    the basement. There was also evidence that he attempted to wash blood from two
    knives he found near his wifes body.

[6]

Mr. Gill testified in his own defence. He acknowledged the long-running
    affair with Ms. Ronald, but indicated that it had ended a few months before the
    murder. He had told Ms. Ronald he would not leave his wife. Mr. Gill testified
    that his relationship with his wife was improving at the time of her death and
    that his marriage had not been better for quite some time. He insisted that he
    had nothing to do with his wifes death.

[7]

Mr. Gill admitted hiding the bloody weight bar in his basement and later
    attempting to dispose of the weight bar. He testified that, when he realized that
    the bloody bar used to kill his wife was his own weight bar, he feared that he
    would be blamed for her death by her family, so he tried to get rid of it.

[8]

In his closing submissions, counsel for Mr. Gill urged the jury to find
    that Ms. Ronald had killed Ms. Gill, but that she had acted alone, perhaps in
    furtherance of her own plan, or perhaps as a result of a spontaneous decision
    made by her when she was at the Gill home. Counsel submitted to the jury that
    something may have happened between Ms. Ronald and Ms. Gill that caused Ms.
    Ronald to go berserk. Counsel pointed to evidence that, on at least three prior
    occasions, Ms. Ronald had threatened her husband with a knife when they were
    arguing.

[9]

Ms. Ronald also testified. She, too, denied any involvement in the
    killing. According to her, she went to the Gill home to borrow some tools and
    visit with the convalescing Ms. Gill. This kind of visit by someone who knew
    the family was expected in Ms. Ronalds culture. Ms. Ronald testified that the
    front door was open and when she went inside, she found Ms. Gills bloody body on
    the floor in the family room.

[10]

Ms. Ronald testified that she panicked, thinking that she would be
    blamed because she had been Mr. Gills lover. In the course of this panic, she picked
    up a large kitchen knife that was near the body. She took a pair of disposable
    gloves from a box on a nearby table and tried to clean blood from the knife, but
    cut her finger. She then went to various parts of the house looking for a Band-Aid.
    Ms. Ronald testified that she left the house with the knife, the gloves, and
    the box. The knife and the box had blood on them. According to Ms. Ronald, she
    later threw the large knife and the gloves into a snowbank. The police later recovered
    the knife and gloves. One of the gloves was missing a finger.

[11]

Ms. Ronald testified that she left the Gill home shortly after
    discovering the body. She immediately drove to her own home nearby. Ms. Ronald
    called Mr. Gill to find out if he knew what had happened at his house. They
    spoke very briefly. Ms. Ronald and Mr. Gill met at a nearby store about 10
    minutes later. Once again, they spoke briefly. Mr. Gill then headed to his
    house with his daughter. His daughter found the body when she went into the
    house ahead of Mr. Gill.

[12]

The trial judge told the jury that Mr. Gill was either guilty of first degree
    murder, or not guilty. This all or nothing instruction, as it applies to Mr.
    Gill, was not challenged at trial or on appeal. There was no evidence that Mr.
    Gill participated in his wifes murder, except as a co-conspirator in a plan to
    murder his wife that was carried out by Ms. Ronald. If the jury accepted that
    evidence, Mr. Gill was guilty of first degree murder. If the jury had a doubt
    about his participation in the plan, Mr. Gill had to be acquitted.

[13]

The trial judge also instructed the jury that there were only two
    verdicts available with respect to Ms. Ronald. She, too, was either guilty of first
    degree murder or not guilty. This instruction was challenged by counsel for Ms.
    Ronald at trial and is the main focus of the appeal.

[14]

Counsel for Ms. Ronald accepts that the evidence pointed strongly to her
    as the killer. Counsel contends, however, that there was an evidentiary basis upon
    which a properly instructed jury could realistically have a doubt as to whether
    the murder was planned and deliberate. To take that possibility into account,
    the trial judge had to instruct the jury on Ms. Ronalds possible liability for
    the offence of second degree murder, the correct verdict if the jury was
    satisfied that Ms. Ronald was the killer, but had a doubt about whether the
    murder was planned and deliberate.
[1]


[15]

Counsel submits that the failure to leave a conviction for second degree
    murder as a possible verdict for Ms. Ronald constitutes reversible error. Counsel
    contends that any jury faced with the strong evidence that Ms. Ronald killed Ms.
    Gill would be most reluctant to find Ms. Ronald not guilty. A jury presented
    with only two possible verdicts, guilty of first degree murder or not guilty,
    would almost inevitably choose the verdict that holds Ms. Ronald responsible
    for Ms. Gills death. She asks the court to order a new trial on the charge of first
    degree murder.

[16]

Counsel for Mr. Gill contends that the failure to leave the possibility
    of a conviction for second degree murder in respect of Ms. Ronald seriously
    prejudiced his defence. At trial, counsel for Mr. Gill argued that Ms. Ronald
    had killed Ms. Gill, and had acted alone in doing so. Counsel acknowledged that
    Ms. Ronald may have planned and deliberated before committing the murder, but stressed
    that she may have formed the intention to kill while involved in some kind of
    verbal altercation with Ms. Gill that caused Ms. Ronald to go berserk. On
    this version of events, the murder was intentional, but not planned and
    deliberate. Ms. Ronald would properly be convicted of second but not first degree
    murder.

[17]

Mr. Gill submits that, by failing to leave the possibility of a
    conviction for the included offence of second degree murder as it relates to
    Ms. Ronald, the trial judge took away a crucial part of Mr. Gills argument
    that Ms. Ronald had acted alone. By removing the possibility that the murder by
    Ms. Ronald was intentional, but not planned and deliberate, the trial judge
    effectively neutered the best argument Mr. Gill had in support of the claim
    that Ms. Ronald acted alone. He submits that this court should conclude that
    his defence was not fully and fairly left with the jury and that the failure to
    leave the defence properly constitutes an error in law entitling him to a new
    trial.

[18]

The Crown submits that the trial judge correctly refused to leave the
    possibility of a conviction for second degree murder in respect of Ms. Ronald. The
    Crown contends that, on the totality of the evidence, there was no air of
    reality to a finding that Ms. Ronald was not guilty of a planned and
    deliberate murder, but guilty of murder.

[19]

The Crown further submits that, even if the trial judge erred in not
    leaving second degree murder as a possible verdict for Ms. Ronald, the error
    occasioned no substantial wrong or miscarriage of justice in respect of either appellant.
    The Crown maintains that the jurys conviction of Mr. Gill on first degree
    murder was untainted by any error in respect of the possible verdicts
    applicable to Ms. Ronald. The jury was told to consider the case against each
    appellant separately and the instructions, as applied to Mr. Gill, were faultless.
    The Crown submits that there is no reason to think that the failure to leave second
    degree murder as a possible verdict for Ms. Ronald somehow affected the verdict
    returned by the jury in respect of Mr. Gill.

[20]

Insofar as Ms. Ronald is concerned, the Crown submits that the jurys
    verdict of first degree murder as against Mr. Gill demonstrates that the jury
    was satisfied, beyond a reasonable doubt, that Mr. Gill and Ms. Ronald planned
    and deliberated the murder together. The Crown contends that this factual
    finding against Mr. Gill, and by implication Ms. Ronald, is not tainted by the
    failure to leave second degree murder as a possible verdict for Ms. Ronald. This
    finding demonstrates that, even if second degree murder had been left with the
    jury, it would not have affected the result, as the jury clearly decided that
    Ms. Ronald planned and deliberated the murder with Mr. Gill, precluding any possibility
    of a conviction for second degree murder.

[21]

I would allow the appeals of both appellants. There was a basis in the
    evidence upon which the jury could reasonably conclude that Ms. Ronald, acting
    alone, had murdered Ms. Gill, but have a doubt as to whether the murder was
    planned and deliberate. On that view, Ms. Ronald was guilty of second degree
    murder. The failure to leave that possible verdict with the jury is an error in
    law. I am also satisfied that, in the circumstances of this case, the failure
    to leave the included offence with the jury in respect of Ms. Ronald unfairly
    undermined the defence of Mr. Gill, resulting in a further error of law. The
    Crown has not satisfied me that the
curative proviso
can be applied in
    respect of either appellant. New trials on the charge of first degree murder
    are necessary for both.


III



the evidence

(i)

The relationships

[22]

The Gills married in 1997 in India. They had three children. Their eldest
    daughter, Dilpreet, was 15.

[23]

Mr. Gill worked as a bus driver; Ms. Gill was employed at times but was
    unemployed in January 2014. Both had medical problems and, over time, they had stopped
    having sexual relations. Their marriage was not a happy one in many ways,
    although, according to one witness who was a friend of the family, the marriage
    seemed to be improving at the time of Ms. Gills death.

[24]

Ms. Ronald married her husband in 2001. Their marriage had also been a
    rocky one. On at least three occasions when they had fought, Ms. Ronald had
    threatened her husband with a knife. By early 2014, Mr. Ronald had decided to
    leave Ms. Ronald for good. She continued to profess her love for him and was
    angry about his planned move.

[25]

Ms. Ronald worked for the same bus company as Mr. Gill. She was also a hairdresser.
    Ms. Gill was one of her clients. Their families were friendly and visited with
    each other from time-to-time over the years. In addition to her two jobs, Ms.
    Ronald invested in real estate, buying properties, fixing them up, and selling
    them.

[26]

Mr. Gill met Ms. Ronald at their shared workplace in 2007. They became
    close friends and eventually sexual partners. According to both, the sexual
    component of their relationship waned and had stopped by the fall of 2013. They
    remained friends. According to Ms. Ronald, she remained emotionally very close
    to Mr. Gill.

[27]

The Crown called evidence from one witness who testified to a
    conversation she had with Ms. Ronald and Mr. Gill in April 2012. Ms. Ronald
    indicated that she and Mr. Gill would do anything to stay together. Mr. Gill was
    nodding, and he further indicated that divorce was not an option for him.

[28]

In addition to her relationship with Mr. Gill and her ongoing
    relationship with her husband, Ms. Ronald was also having a sexual relationship
    with a man named Singh in late 2013 and early 2014. He was married and
    apparently not inclined to leave his family.

[29]

Ms. Gill was aware of the relationship between her husband and Ms.
    Ronald.

(ii)

The events of January 29, 2014.

[30]

Ms. Gill had surgery on January 28, 2014 and was home convalescing. The
    29
th
was her wedding anniversary. By 10:00 a.m., her children, with
    the exception of Dilpreet, had gone to school. A short time later, Mr. Gill and
    Dilpreet left the home to run errands.

[31]

Ms. Ronald, who lived near the Gills, saw Mr. Gill drive by with his
    daughter. She immediately called Mr. Gill and they spoke. They spoke several
    times that day.

[32]

Mr. Gill was in a store with his daughter and his nephew, who had been
    picked up from school, at about 12:36 p.m. when he received a call from Ms.
    Ronald. He did not answer. She called two more times within the next 15
    minutes. A short time later, Ms. Ronald arrived at the store. Mr. Gill and Ms.
    Ronald had a very brief conversation. According to him, Ms. Ronald was asking
    him to go to a furniture store. According to Ms. Ronald, she mentioned the
    furniture store, but also told Mr. Gill that something very bad had happened at
    his home. Ms. Gill was dead by this time.

[33]

Mr. Gill drove home with his daughter and nephew, arriving shortly
    before 1:00 p.m. Dilpreet went in the house first. She saw her mother lying on
    the floor in the family room. At first, she did not know what had happened, but
    then she saw a great deal of blood. She screamed. Mr. Gill came running and saw
    his wife lying on the floor. He was very upset and did not know what to do.
    Dilpreet tried to call 911 on the landline but the phone was dead. Mr. Gill
    called 911 on his cell phone. The 911 operator described Mr. Gill as frantic.

[34]

Mr. Gill testified that he saw two small knives by the body. Without
    thinking, he picked them up, threw them in the kitchen sink, and washed his
    hands in the sink. The police found the knives in the sink. Forensic testing
    revealed Ms. Gills DNA on both and visible blood on one.

[35]

Mr. Gill also testified that he was concerned that there might be an
    intruder in the house. He picked up the bloody weight bar that was lying beside
    his wifes head to use as a weapon, if necessary. Armed with the weight bar, he
    went looking for the intruder in the house. According to him, at some point he
    realized that the bloody weight bar, which was in all likelihood one of the
    murder weapons, was his personal weight bar. He feared that this might look
    suspicious, so he hid the weight bar in a Christmas tree box in the basement.
    The police discovered and seized the weight bar and replaced it with a replica.
    The tree box was placed under video surveillance under the authority of a
    warrant. A few days later, Mr. Gill removed the replica from the tree box, eventually
    attempting to get rid of it. Unfortunately for him, the police were watching.

[36]

On Ms. Ronalds version of the events on January 29
th
, she
    saw Mr. Gill drive by at about 11:00 a.m., went to visit her father, and then
    went to the Gill home some time shortly after 12:30 p.m. Ms. Ronald indicated
    that the door was open so she went into the house. She walked into the family
    room and saw the body of Ms. Gill. Ms. Ronald stepped on a knife and then
    picked it up. She was stunned. Realizing she had touched what was probably the
    murder weapon, she retrieved some Nitrile gloves from a box on a nearby table
    in an effort to wipe the blood off the knife. She cut herself. She went to
    various parts of the house on the main floor and upstairs, looking for a Band-Aid,
    dripping her blood as she went. She then left the home, taking the knife, the
    gloves, and the box with her. She did not call 911, but she did call Mr. Gill
    at 12:36 p.m. and again at 12:38 p.m. Ms. Ronald testified that she feared she
    would be blamed for the murder, so she threw the knife and the gloves away into
    a snowbank in a nearby park. She was unable to say what happened to the box.

[37]

Ms. Ronald returned to the Gill home at around 2:00 p.m., offering to
    look after the children. Mr. Gill declined her offer. A police officer at the
    scene noted that when Ms. Ronalds name was mentioned to Mr. Gill, he appeared
    to become angry and yelled that he should not have left his wife alone.

(iii)

The forensic evidence

[38]

The autopsy revealed that Ms. Gill had been struck some 30 times with
    the weight bar. There were over 20 cuts to her body, including a very
    significant deep wound across her neck. That wound was likely inflicted with a
    large knife while Ms. Gill was kneeling or lying face down. Ms. Gill put up a
    fight. There were several defensive wounds. All of the wounds were pre-mortem
    and Ms. Gill died quickly after her throat was slashed.

[39]

There was a great deal of forensic evidence linking both appellants to
    the murder. The evidence included the following;

·

the
    weight bar had Ms. Gills blood on it;

·

the
    large kitchen knife that was found in the park after the snow melted had Ms.
    Gills blood on it;

·

two
    gloves were found in the same park, one was missing a finger. DNA from Ms. Gill
    and Ms. Ronald was found on the intact glove. Ms. Gills blood was found on the
    glove that was missing a finger;

·

part
    of the missing glove finger was found beside Ms. Gills body. Ms. Ronalds DNA
    was on that finger fragment;

·

two
    of the knives found in the kitchen sink had Ms. Gills DNA on them. One had
    visible blood on it;

·

Ms.
    Gills blood was found not only in the den where her body was located, but on
    the outside of a kitchen drawer and on the doorframe to the master bedroom on
    the second floor; and

·

drops
    of Ms. Ronalds blood were found very near Ms. Gills body. Her blood was also
    found at the base of the kitchen sink, and in various locations on the second
    floor of the home. There was evidence of an attempt to wipe the blood away in
    some locations.

(iv)

The after-the-fact conduct

[40]

Both Mr. Gill and Ms. Ronald acknowledged lying to the police and
    attempting to hide and destroy important physical evidence. Most of that
    evidence is summarized above. Both claimed they acted as they did because they
    were afraid they would be falsely accused of murdering Ms. Gill.


IV



the failure to leave second degree
    murder as a possible verdict for ms. ronald

(i)

When should a jury be instructed on an included offence?

[41]

In many first degree murder trials, it will be necessary to instruct the
    jury on the included offences of second degree murder and manslaughter: see
R.
    v. Romano
, 2017 ONCA 837, 41 C.R. (7th) 305, at paras. 13-14. In some
    circumstances, however, an all or nothing charge leaving only verdicts of
    guilty on the main charge and not guilty will be appropriate: e.g. see
R.
    v. Buxbaum
(1989), 70 C.R. (3d) 20 (Ont. C.A.), leave to appeal refused,
    [1989] S.C.C.A. No. 239;
R. v. Chenier
(2006), 205 C.C.C. (3d) 333, at
    p. 367 (Ont. C.A.). The case against Mr. Gill provides an example. Everyone
    agrees that the jury should not have been instructed in respect of any included
    offences when considering the case against Mr. Gill.

[42]

There should be no instruction on potential liability for an included
    offence only when, on a consideration of the totality of the evidence and
    having due regard to the position of the parties and the proper application of
    the burden of proof, there is no realistic possibility of an acquittal on the
    main charge and a conviction on an included offence: see
R. v.
Aalders
,
    [1993] 2 S.C.R. 482, at pp. 504-505;
R. v. Grewal
, 2019 ONCA 630, at
    para. 36;
R. v.
Chalmers
, 2009 ONCA 268, at paras. 51-58;
R.
    v.
Wong
(2006), 209 C.C.C. (3d) 520, at para. 12 (Ont. C.A.);
R.
    v.
Wade
, 18 O.R. (3d) 33, at pp. 49-50, revd on other grounds,
    [1995] 2 S.C.R. 737;
R. v. Sarrazin
, 2010 ONCA 577, 259 C.C.C. (3d)
    293, at para. 64, affd 2011 SCC 54, [2011] 3 S.C.R. 505.

[43]

During argument, there was some discussion about the difference, if any,
    between the air of reality test applied when deciding whether to leave a
    positive defence such as provocation with the jury, and the test to be applied when
    deciding whether to leave the possibility of a verdict on an included offence
    with the jury. Both inquiries seek to focus the jurys attention on the live
    issues actually raised by the evidence. By doing so, the risks of unreasonable
    verdicts, juror confusion, or improper compromise by jurors, are reduced: see
Wong
;
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16;
R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3, at para. 56. The term air of reality is used
    by this court as the applicable standard for both inquiries:
R. v. Durant
,
    2019 ONCA 74, 144 O.R. (3d) 465, at para. 175. I think, however, the approach
    to the evidence is somewhat different in the two inquiries.

[44]

The air of reality inquiry, as directed to the availability of positive
    defences, requires a determination of whether the defence can point to
    something in the evidence capable of reasonably supporting the factual inferences
    that would at least leave the jury with a reasonable doubt about the existence
    of each of the essential factual elements of the defence: see
R. v. Suarez-Noa
,
    2017 ONCA 627, 139 O.R. (3d) 508, at paras. 41-43, leave to appeal refused,
    [2018] S.C.C.A. No. 142;
R. v. Cormier
, 2017 NBCA 10, at para. 40;
R.
    v. Curran
, 2019 NBCA 27, at para. 13.

[45]

For example, if the defence claims that provocation should be put to the
    jury, the defence must be able to point to something in the evidence that would
    reasonably allow the jury to draw the necessary inferences to at least raise a reasonable
    doubt as to whether the conduct of the victim amounted to provocation as
    defined in the
Criminal Code
, R.S.C. 1985, c. C-46.

[46]

When the question is should an included offence be left with the jury,
    the issue is whether, on the totality of the evidence, the jury could reasonably
    be left in doubt with respect to an element of the main charge that
    distinguishes that charge from an included offence: see
Wong
, at paras. 11-12.
In the context of this
    case, it is the presence of planning and deliberation which distinguishes first
    from second degree murder. Second degree murder must be left with the jury if
    there is a reasonable possibility that the jury could have a doubt as to
    whether the murder was planned and deliberate. When, as here, there is more
    than one accused, that question must be answered separately for each accused
    and the answers may be different.

[47]

When the defence, or the Crown, argues that a jury should be instructed
    on the possibility of a conviction on the included offence of second degree
    murder, it is not essential that the party seeking the instruction point to
    evidence capable of supporting inferences that are inconsistent with planning
    and deliberation. Unlike positive defences, there is no evidentiary burden on
    the defence, or the Crown, to put the possibility of a conviction for the included
    offence of second degree murder in play. It is sufficient if, on the totality
    of the evidence, a reasonable jury could be left unconvinced, beyond a
    reasonable doubt, that the murder was planned and deliberate. That potential uncertainty
    can provide the basis for a proper verdict of not guilty of first degree
    murder, but guilty on the included offence of second degree murder.

[48]

The trial judge, when deciding if the included offence of second degree
    murder should be left with the jury, must look to the totality of the evidence to
    consider not only what inferences could reasonably be drawn, but also the
    possibility that a reasonable jury might not draw any inference from certain
    evidence, perhaps because the jury regards the underlying evidence as untrustworthy
    or equivocal. A jurys decision that it will not draw an inference or
    inferences from certain evidence can open the door to a doubt on the issue of
    planning and deliberation. The trial judge must consider whether that is a
    realistic possibility in deciding whether to leave the included offence of second
    degree murder with the jury.

(ii)

The trial judges reasons

[49]

The trial judge was initially inclined to leave second degree murder as
    a possible verdict for Ms. Ronald. After extensive submissions, she accepted
    the Crowns argument that there was no air of reality to a verdict of not
    guilty of first degree murder, but guilty of second degree murder. In her
    reasons, she said:

In this case, I find
    there is no air of reality to evidence that could permit leaving the included
    offence of second degree murder to the jury. If the jury has rejected Ms. Ronalds
    assertion that she had nothing to do with the death of Jagtar Gill and they
    have found beyond a reasonable doubt that she killed Jagtar Gill, it is
    accepted by defence that the evidence demonstrates an intention to kill. There
    is incontrovertible evidence indicating the following:

·

The
    assailant unplugged the phone jack in the den rendering Jagtar Gill unable to
    call for assistance. Mr. Gill could not have done this and there is no evidence
    anyone else did this. There is no one else who would have done this other than
    the assailant; and

·

The
    assailant either used the bar prepared by Mr. Gill or it was retrieved and
    prepared by the assailant. There is no evidence that this bar was ever left
    without its weights attached. To suggest it is possible someone else took off
    the weights for reasons not associated with the murder is to speculate.

This evidence, both separately and taken as a whole, leaves no
    air of reality to the proposition that the killing was both intentional and
    spontaneous.

[50]

With respect to the trial judge, who ably conducted a difficult trial,
    her reasons reveal three errors. First, she wrongly equated any murder that was
    not spontaneous with a planned and deliberate murder. Not every act
    indicative of some preparation prior to the murder, or some degree of planning,
    points only to a finding that the murder was planned and deliberate, as that
    phrase is defined in the case law. A planned and deliberate murder must be the
    product of a scheme or plan that is carefully thought out and considered before
    it is implemented: see
R. v. Nygaard

and

Schimmens
, [1989] 2 S.C.R. 1074, at p. 1084;
R.
    v. Robinson
, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34.

[51]

The unplugging of the phone line in the den, one of the two pieces of
    circumstantial evidence emphasized by the trial judge in her ruling, provides
    an example of the kind of evidence that suggests preparation, but not
    necessarily planning and deliberation. The jury would almost certainly conclude
    that the person who killed Ms. Gill unplugged the phone jack. That action,
    considered with the rest of the evidence, could support an inference that the
    murder was planned. However, a jury could also take the view that the
    unplugging of the phone, while indicative of some preparation, did not support
    the assertion that the murder was the product of a careful and considered
    scheme of the sort required to establish planning and deliberation. It was for
    the jury to decide what to make of the evidence that the phone line was
    unplugged.

[52]

Second, the trial judges treatment of the evidence concerning the
    weight bar demonstrates that the trial judge trespassed on the jurys
    fact-finding function. She concluded that the evidence allowed for only two
    possible inferences if Ms. Ronald was the assailant: either Mr. Gill removed
    the weights from the weight bar in the basement and took the bar up to the
    family room so that Ms. Ronald could use it as a weapon in her attack on Ms.
    Gill, or Ms. Ronald went to the basement, removed the weights and took the bar
    to the family room, where she used it to murder Ms. Gill. In the trial judges
    view, either inference was consistent only with planning and deliberation.

[53]

The trial judges analysis ignores the reasonable possibility that the
    jury would not draw any inference from the evidence concerning the weight bar. The
    evidence about the location of the bar and the timing of the removal of the
    weights from the bar was not necessarily compelling. That evidence came almost
    exclusively from Mr. Gill.
[2]
He testified that the bar was normally in the basement with the weights
    attached. Clearly, the jury was not impressed with a great deal of Mr. Gills
    evidence.

[54]

The inferences about the weight bar referred to by the trial judge were certainly
    reasonable inferences. However, the trial judges approach assumes that the
    jury would inevitably accept the evidence on which those inferences were based
    and draw either of the two inferences identified by the trial judge. The jury
    was not obliged to do so. It was reasonably open to a jury on this evidence to
    draw no inference about how the weight bar came to be in the family room on the
    morning of the homicide. Juries are not obliged to draw all inferences that are
    reasonably available on the evidence.

[55]

The trial judges treatment of the evidence about the weight bar
    suggests to me that the trial judge was looking to the defence to offer some reasonable
    explanation, inconsistent with planning and deliberation, to explain how the
    bar came to be upstairs with the weights removed. Absent that reasonable, innocent
    explanation, the trial judge appears to have been satisfied that the jury would
    be compelled to accept one of the reasonable inferences she identified, both of
    which were consistent with planning and deliberation.

[56]

That line of reasoning comes close to putting an onus on the defence to
    explain away potentially incriminating evidence. It also fails to capture the approach
    that the jury must take when considering whether the Crown has met its burden.
    The jury is not obliged to draw any inference or make any positive finding
    about how the weight bar came to be in the family room. If the jury chose not
    to draw the inferences urged by the Crown, the presence of the weight bar in
    the family room offered no support for the Crowns theory that the murder was
    planned and deliberate. The trial judge excluded this possibility.

[57]

Third, the trial judges analysis focuses almost exclusively on the two
    pieces of circumstantial evidence identified in the reasons. The trial judge
    does not take into account the totality of the evidence. In fact, when putting
    Mr. Gills defence to the jury, the trial judge put to the jury, as a viable
    version of the events, the possibility that Ms. Ronald had gone to the Gill home,
    not planning to kill her, but had decided to do so at some point after she
    arrived. On that scenario, a verdict against Ms. Ronald of not guilty of first
    degree murder, but guilty of second degree murder was realistically available.

[58]

Counsel for Ms. Ronald has effectively outlined evidence that could
    support a finding that Ms. Ronald murdered Ms. Gill, but did not plan and
    deliberate on the murder. That evidence includes:

·

the
    relationship between Mr. Gill and Ms. Ronald was over as far as Mr. Gill was
    concerned. He was making efforts to distance himself from Ms. Ronald and save
    his marriage. On that evidence, jealousy or anger may have motivated Ms.
    Ronald;

·

Ms.
    Ronalds propensity to act very violently and use knives when she became angry
    with persons close to her;

·

the
    nature of the attack on Ms. Gill suggested that the killer acted in a frenzied
    rage;

·

Mr.
    Gill anticipated that his sister would be visiting Ms. Gill at the Gill home at
    about the time Ms. Ronald committed the homicide, suggesting he did not know
    Ms. Ronald was going to kill Ms. Gill; and

·

Mr.
    Gills emotional reaction upon finding his wifes body, which could be seen as inconsistent
    with him being a party to a plan to kill Ms. Gill with Ms. Ronald.

[59]

I do not suggest that the evidence outlined above excluded the
    possibility that Ms. Ronald killed Ms. Gill pursuant to a plan she had formed
    with Mr. Gill. Far from it. That inference was undoubtedly strong and available
    on the evidence. However, when deciding whether second degree murder should be
    left with the jury, the trial judge does not ask if the evidence points more
    strongly to second degree murder than to planning and deliberation, but instead
    asks whether a reasonable jury, properly instructed, could have a doubt as to
    whether Ms. Ronald had planned and deliberated the murder. The evidence
    reasonably allowed for that possibility.

[60]

Crown counsel, in their factum (at paras. 52-53), argue that the trial
    judge was required, in deciding whether the included offence of second degree
    murder should be left with the jury for Ms. Ronald, to proceed on the basis
    that the jury accepted that both Gill and Ronald had unlawfully killed Jagtar
    Gill.

[61]

I accept that the trial judge, in deciding whether the jury should be
    instructed on the included offence of second degree murder, must assume that
    the jury would find that Ms. Ronald killed Ms. Gill. The trial judge was then
    required to go on and determine whether a jury, having concluded that Ms.
    Ronald killed Ms. Gill, could realistically, on the totality of the evidence,
    have a reasonable doubt about whether the killing was planned and deliberate,
    the factual issue which distinguishes first from second degree murder.

[62]

I do not agree, however, that the trial judge was required to make any
    assumption about Mr. Gills involvement in the killing. In my view, an assumption
    that Mr. Gill unlawfully killed Jagtar Gill could play no role in determining
    whether a possible verdict on the included offence of second degree murder
    should be left with the jury in respect of Ms. Ronald.

[63]

It was Mr. Gills defence that Ms. Ronald acted entirely on her own. I
    see no basis, in law or logic, for assuming that Mr. Gills defence would fail
    entirely when deciding whether to leave the included offence of second degree
    murder as against Ms. Ronald. The Crowns argument, that the trial judge should
    have assumed both appellants were involved in the killing in addressing Ms.
    Ronalds potential liability for second degree murder, is really an argument that
    there was no air of reality to Mr. Gills defence that Ms. Ronald acted alone.
    The Crown had a strong case, but it was not that strong.

[64]

For the reasons outlined above, the trial judge erred in law in failing
    to leave with the jury the possibility of finding Ms. Ronald not guilty of first
    degree murder, but guilty of second degree murder. That error in law entitles
    Ms. Ronald to a new trial, unless the Crown can demonstrate that the error
    caused no substantial wrong or miscarriage of justice.


V



can the
curative proviso
be applied in respect of ms. ronald?

(i)

When can the
proviso
be applied?

[65]

Section 686(1)(b)(iii) of the
Criminal Code
provides that this
    court may dismiss an appeal despite an error in law if satisfied that the error
    caused no substantial wrong or miscarriage of justice. The burden is on the
    Crown to show either that the legal error was so minor as to be harmless, or
    the evidence was so overwhelming as to satisfy the court that the verdict would
    necessarily have been the same had the error not been committed: see
R. v.
    Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 26-31;
Sarrazin
    (ONCA)
, at para. 65.

[66]

The erroneous failure to leave a possible verdict on an included offence
    can seldom be held to have caused no substantial wrong or miscarriage of
    justice:
R. v. Haughton
, [1994] 3 S.C.R. 516, affg (1992), 11 O.R.
    (3d) 621 (C.A.). That error is usually beyond the reach of the
curative
    proviso
for two reasons. First, it
cannot be said, in the face of a determination that the included offence should
    have been left with the jury  which involves a determination that there was a
    realistic possibility of an acquittal on the full offence  that the evidence
    supporting the conviction on the full offence was overwhelming. The two
    conclusions are incompatible.

[67]

Second, the error can seldom be said to be harmless. The failure to
    leave the full menu of legally available verdicts will often have a potential
    impact on the verdict selected by the jury. This case provides an excellent
    example. The evidence pointed strongly to Ms. Ronald as the killer. There is a real
    likelihood that a jury, left only with the choice of convicting Ms. Ronald of first
    degree murder or declaring her not guilty, would opt for the verdict that recognized
    Ms. Ronalds responsibility for Ms. Gills death. It cannot be said that, had the
    jury been left with a third possible verdict that would also have held Ms.
    Ronald accountable for murder, the jury would necessarily have still convicted
    of first degree murder:
Haughton
,
    at pp. 516-517
;
Sarrazin (SCC)
, at para. 31.

[68]

There is, however, at least one situation in which the court has applied
    the
curative proviso
to the erroneous failure to leave a possible
    verdict on an included offence. In considering the applicability of the
proviso
,
    the court can take into account findings of fact implicit in the verdict or
    verdicts returned by the jury as long as those verdicts are not tainted by the legal
    error, and those findings are unambiguously revealed by the verdict:
Haughton
;
R. v. Elkins
(1995)
, 26
    O.R. (3d) 161, at pp. 170-172, leave to appeal refused, [1996] S.C.C.A. No. 62;
R. v. Mulligan
(2006)
,
    80 O.R. (3d) 537, at para. 60 (C.A.);
Sarrazin (ONCA)
, at paras. 70-72;
Sarrazin (SCC)
, at paras. 30-31;
R. v. Pilon
, 2009 ONCA 248,
    243 C.C.C. (3d) 109, at paras. 76-80;
R. v. Humaid
(2006), 81 O.R. (3d)
    456, at paras. 88-90 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 232.

[69]

Cases in which an accused is convicted of first degree murder and the
    trial judge has instructed the jury on the included offence of second degree
    murder but has erroneously failed to instruct on the possibility of manslaughter
    based on provocation provide an example of a situation in which the
curative
    proviso
has been applied. In those cases, a court may find that there was
    a basis for a finding of manslaughter based on provocation and that the jury
    should have been instructed accordingly. The court may go on to apply the
curative
    proviso
on the basis that the finding of planning and deliberation, as
    reflected in the conviction on the first degree murder, was unaffected by the
    non-direction with respect to provocation and effectively precluded the
    possibility of a successful provocation defence. In short, the jurys verdict
    indicated a factual finding that the murder was planned and deliberate, the
    antithesis of a provoked murder: see e.g.
Humaid
, at paras. 87-90.

[70]

The Crown submits that the jury was properly instructed in respect of
    Mr. Gills potential liability for first degree murder. They were also told on
    at least three occasions that they must consider the verdicts with respect to
    Ms. Ronald and Mr. Gill separately. The Crown contends that Mr. Gills conviction
    for first degree murder demonstrates that the jury found, beyond a reasonable
    doubt, that Mr. Gill was a party to a plan to kill Ms. Gill and that she was
    killed in furtherance of that plan. The Crown further argues that, on the
    evidence, the only person Mr. Gill could have planned the murder with was Ms.
    Ronald. Consequently, urges the Crown, the first degree murder verdict against
    Mr. Gill unambiguously demonstrates that the jury was satisfied, beyond a
    reasonable doubt, that the murder was committed pursuant to a plan to which Mr.
    Gill and Ms. Ronald were parties.

[71]

The Crown further contends that the finding of fact on which Mr. Gills
    conviction rests, that is that he and Ms. Ronald planned and deliberated the
    murder, is untainted by any error in relation to the failure to charge the jury
    on second degree murder as it related to Ms. Ronald. The Crown submits that the
    findings of fact implicit in the first degree murder verdict against Mr. Gill
    can leave no doubt that the jury was satisfied that Ms. Ronald was also guilty
    of a planned and deliberate murder. As the jury would inevitably have convicted
    Ms. Ronald of first degree murder, even if the possibility of a conviction on second
    degree murder had been left with the jury, the failure to leave that possible
    verdict was harmless and caused no substantial wrong or miscarriage of justice.

(ii)

Was the verdict against Mr. Gill tainted by legal error?

[72]

To succeed on this argument, the Crown must demonstrate that Mr. Gills
    conviction on the charge of first degree murder was not tainted by the failure
    to leave the possibility of a conviction on second degree murder with the jury
    in respect of Ms. Ronald. The Crown cannot meet that burden.

[73]

By not leaving second degree murder with the jury, the trial judge
    effectively removed from the jurys consideration the possibility that Ms.
    Ronald formed the intention to kill at some point shortly before she killed Ms.
    Gill, but without planning and deliberation. It was central to Mr. Gills defence
    that Ms. Ronald acted alone. He offered two scenarios, one in which she planned
    and deliberated the murder on her own, and another in which she murdered Ms.
    Gill, but without planning and deliberation. I think it is fair to say that
    counsel for Mr. Gill stressed the latter over the former, no doubt because the
    suggestion that Ms. Ronald planned and deliberated on her own was a difficult
    proposition on this evidence. By not leaving second degree murder with the jury
    and explaining to the jury how they could arrive at a verdict of second degree
    murder with respect to Ms. Ronald, the trial judge effectively removed one of
    the two bases upon which Mr. Gill had asked the jury to conclude that Ms.
    Ronald acted alone.

[74]

Mr. Gills defence was further undermined by the trial judges
    instruction to the jury that, if they were satisfied beyond a reasonable doubt
    that Ms. Ronald killed Ms. Gill, the jury should have no difficulty in
    determining that the killing was planned and deliberate. This instruction,
    combined with the absence of any instruction on second degree murder,
    effectively invited the jury to go straight from the strongly likely finding
    that Ms. Ronald killed Ms. Gill, to a finding that the murder was planned and
    deliberate. That finding all but excluded any possibility that the jury would
    have a doubt as to whether Ms. Ronald acted on her own and without planning and
    deliberation.

[75]

Accordingly, the
proviso
cannot be applied to affirm Ms. Ronalds
    conviction. She is entitled to a new trial.


VI



IS MR. GILL ENTITLED TO A NEW TRIAL?

[76]

Not only did the trial judges instructions taint the first degree
    murder verdict against Mr. Gill, for the purposes of deciding whether the
proviso
can be applied to affirm Ms. Ronalds conviction, the instruction also compels
    the conclusion that Mr. Gills defence was not adequately and fairly put to the
    jury. The trial judges failure to fairly and fully put Mr. Gills defence to
    the jury constitutes an error in law:
R. v. Daley
, 2007 SCC 53, [2007] 3
    S.C.R. 523, at paras. 54-58.

[77]

Although Mr. Gills defence that Ms. Ronald acted alone ran against the
    weight of the evidence, I cannot say that the evidence was so overwhelming that
    the verdict against him would necessarily have been the same had part of that
    defence not been eliminated by the trial judges instructions. The
proviso
cannot be applied to overcome the failure to adequately put Mr. Gills defence
    to the jury.

[78]

For the reasons outlined above, I am satisfied that both appellants have
    established errors in law that directly affected the verdicts returned against
    them. I am also satisfied that the Crown cannot demonstrate that the errors
    caused no substantial wrong or miscarriage of justice.

[79]

However, even if I am wrong in concluding that the failure to adequately
    put Mr. Gills defence to the jury constituted an error in law, I think he is
    still entitled to a new trial, assuming I am correct in holding that Ms. Ronald
    is entitled to a new trial. The order requiring a new trial for Ms. Ronald
    carries with it, in the circumstances of this case, the requirement that Mr.
    Gill also receive a new trial. If only Ms. Ronald was retried, there is a risk
    that Ms. Ronald, who the Crown alleged was the actual killer, could end up
    convicted of second degree murder, while Mr. Gill, the alleged co-conspirator
    but not the perpetrator, would remain convicted of first degree murder.

[80]

A very similar situation arose in
Nygaard and Schimmens
. Both were
    charged with first degree murder. The Crown maintained that Schimmens had beat
    the victim to death with a baseball bat and that Nygaard was present and had
    aided and abetted Schimmens. At trial, Schimmens testified and advanced an
    alibi defence. Nygaard did not testify. Both men were convicted.

[81]

On appeal, the Supreme Court of Canada held that Schimmens had been
    subject to improper cross-examination on certain wiretap interceptions. The
    cross-examination potentially undermined his alibi. The court held that
    Schimmens was entitled to a new trial. The court was satisfied that the
    improper cross-examination did not affect Nygaard and that there was no error
    in respect of the proceedings as against Nygaard.

[82]

Cory J., for eight of nine members of the court on this point, held that
    there should be a new trial for both Nygaard and Schimmens. He said, at p. 1094:

If Nygaard did not also have a new trial, the incongruous and
    unacceptable result might be that Schimmens, the prime mover in the crime, was
    found guilty of second degree murder while Nygaard, the party to the crime, was
    found guilty of murder in the first degree.

[83]

The words of Cory J. have direct application to this case. If only Ms.
    Ronald were to receive a new trial, she, as the prime mover in the murder,
    could be found guilty of second degree murder, while Mr. Gill, whose liability
    lay as an aider or abetter, would remain guilty of first degree murder. Those
    verdicts would represent an incongruous and unacceptable result.


VII



conclusion

[84]

I would allow the appeals, quash the convictions, and order a new trial
    on the charge of first degree murder.

Released: AH DEC 11 2019

Doherty J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree B. Zarnett
    J.A.





[1]

No one argues that manslaughter was a possible verdict on the facts
    of this case.



[2]

The only other witness who gave evidence about the weight bar
    was Dilpreet, who said that the bar was usually in the basement but could not
    say where it was on January 29
th
.


