





CITATION: R. v. Roncaioli, 2011 ONCA 378



DATE: 20110513



DOCKET: C48861



COURT OF APPEAL FOR ONTARIO



Laskin, Armstrong and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Joseph Roncaioli



Appellant



Sharon E. Lavine, for the appellant



M. David Lepofsky, for the respondent



Heard: November 29 and 30, 2010



On appeal from the conviction
          entered on February 16, 2008 and the sentence imposed on June 5, 2008, by
          Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury.



Laskin J.A.:



A.

OVERVIEW

(i)        Factual Background

[1]

The appellant, Joseph Roncaioli, was an obstetrician and gynaecologist
    for over 35 years.  He was charged with and convicted of manslaughter in the
    death of his wife, Ibi Roncaioli, to whom he had been married for over 30
    years.  He was sentenced to seven years in jail.  He appeals both his
    conviction and sentence.

[2]

Ibi Roncaioli died in July 2003.  The appellant was charged with
    unlawfully causing her death in January 2004.  At the time, he was 67 years
    old.

[3]

The trial before a judge and jury began in the fall of 2006, but was
    discontinued because one of the Crowns expert witnesses was too ill to
    testify.  The defence was offered but turned down a new trial date in February
    2007.  Instead, the trial was rescheduled for October 2007, but again could not
    proceed because the assigned Crown had taken ill.  The trial began in January
    2008.  At the beginning of the trial, the defence brought a motion under s.
    11(b) of the
Charter
to stay the proceedings because of unreasonable
    delay.  The trial judge dismissed the motion.

[4]

At trial, a forensic pathologist testified that the cause of Ibi
    Roncaiolis death was multi-drug toxicity:  the aggregate effect of two local
    anaesthetics  lidocaine and bupivacaine  and alcohol.  The two factual issues
    for the jury were, first, identity: who injected Ibi with the toxic amount of
    the anaesthetics found in her body? And second, causation: was the combined
    effect of the two anaesthetics a significant contributing cause of death?

[5]

On the issue of identity, the appellant testified that on the day of her
    death, he had injected his wife with the two anaesthetics.  He said that he was
    trying to draw blood to run tests on her because of her declining health and
    wanted to alleviate any pain she might otherwise suffer.  He maintains,
    however, that he injected her with only therapeutic amounts of the
    anaesthetics, not the toxic amounts found in her body.  He claims that she
    injected herself with what proved to be the fatal doses.  The Crown accepted
    that it had to prove beyond a reasonable doubt that the appellant injected enough
    of the two anaesthetics found in Ibi Roncaioli to produce her drug level at the
    time of her death and that she had not self-injected either drug.

[6]

On the issue of causation, there was expert evidence that the combined
    effect of lidocaine and bupivacaine at the levels found in Ibi Roncaiolis body
    were likely toxic.  There was also evidence that Ibi Roncaioli had consumed
    alcohol in the hours leading up to her death, and that alcohol exacerbated the
    effects of the two anaesthetics.  The Crown agreed that it had to prove beyond
    a reasonable doubt that these two anaesthetics in combination were a significant
    contributing cause of Ibi Roncaiolis death.

[7]

In seeking to prove the appellant had unlawfully caused his wifes
    death, the Crown put forward two alternative theories of manslaughter:  by
    criminal negligence and by an unlawful act.  The criminal negligence route to
    manslaughter rested on showing that the appellant injected his wife with lidocaine
    and bupivacaine, and in doing so showed a wanton and reckless disregard for her
    life or safety.  The unlawful act route rested on showing that the appellant
    intentionally injected Ibi Roncaioli with the two anaesthetics in quantities that
    endangered her life, thus constituting manslaughter by the unlawful act of
    aggravated assault.

[8]

In attempting to prove unlawful act manslaughter, the Crown relied on
    evidence of motive.  Indeed, though not required to prove an intent to kill,
    the Crown claimed that the appellant wanted his wife dead for two reasons:  she
    had spent virtually all of their retirement savings and their relationship had
    deteriorated to such an extent that they were living separate lives.

(ii)       Issues on Appeal

[9]

The appellant argues five grounds of appeal:

(1)

The trial judge erred by failing to stay the prosecution because of
    unreasonable delay.  The appellant argues that the trial judge erred by
    characterizing the period from January to September 2007 as defence delay and
    by finding that the delay caused only marginal prejudice.

(2)

The trial judge confused the jury by leaving unlawful act manslaughter
    as an alternative theory of liability.

(3)

The trial judge erred by instructing the jury on motive because the
    appellant was not charged with murder, and further erred by giving a one-sided
    instruction on motive.

(4)

The trial judge confused the jury with her instructions on causation.

(5)

The trial judge erred by failing to sentence the appellant for
    manslaughter based on criminal negligence and by failing to give enough weight
    to the mitigating considerations favouring a lenient sentence.

B.

RELEVANT BACKGROUND

(a)       The events the day
    Ibi Roncaioli died, July 20, 2003

[10]

The appellant testified that in the weeks before his wifes death, he
    had become convinced that her health was deteriorating.  In the morning of July
    20, 2003, he decided to take her blood for testing.  She agreed but asked him
    not to hurt her.  Ibi Roncaioli had collapsed veins, making it hard to draw
    blood.  Therefore, the appellant took some lidocaine and bupivacaine, which he
    had brought home from the hospital three days earlier for his hip, to give his
    wife a local freeze so she would not feel the needle when he tried to draw
    blood.  He injected a small amount of lidocaine in her right arm. He testified
    that he could not find a vein to draw blood, so he stopped.

[11]

Later, at about 10:00 in the morning, Ibi Roncaiolis accountant, George
    Hegyi, and her real estate agent, Priscilla Wong, met the Roncaiolis to help
    them in buying a new bungalow, valued at about half of the price of their
    existing home.  The appellant said the move to a smaller house was partly
    financial and partly a lifestyle choice.  He testified that at first Ibi was
    reluctant to move, but eventually agreed.

[12]

After signing an offer to purchase at 1:00 p.m., the four went to lunch
    at the Red Lobster.  Ibi Roncaioli ordered a cognac and began to act
    strangely.  She was screaming, dropping her pizza and shaking.  She loudly told
    the appellant she loved him and asked whether he loved her.  Her face was white
    and she looked tired.  Mr. Hegyi drove the Roncaiolis back to their home and
    left about 3:00 p.m.

[13]

For many years, the Roncaiolis had slept in separate bedrooms and after Mr.
    Hegyi drove them home that afternoon, Ibi Roncaioli went to her own bedroom. 
    The appellant went to the library.  He said, however, that her behaviour at
    lunch convinced him that she needed help.  He returned to her bedroom to try
    once more to draw blood.  Again she agreed if he would not hurt her.  He
    injected the two anaesthetics in her right arm but could not draw blood from
    that arm.  He tried the other arm but again was unsuccessful.  He left a
    syringe and vials on the bedside table, turned on the television, and went back
    to the library.

[14]

At 6:00 p.m. the appellant checked on his wife.  He said that she was
    sleeping soundly. He noticed the syringe on the floor.  He picked it up and put
    it along with the vials of anaesthetics and containers in the garbage.  The
    appellant went to Ibis bedroom again at 8:00 p.m.  He said that her mouth was
    open and her tongue was hanging out.  He felt for a pulse but could not find
    one.  She felt cold.  In his medical opinion, she was clinically dead.

[15]

The appellant drove over to his sons home.  He told his son and
    daughter-in-law that he could not wake Ibi and said, I think shes dead.  The
    appellant then returned home with his son.  They called Mr. Hegyi at 9:00 p.m.
    and told him that Ibi was dead.  Mr. Hegyi picked up Ms. Wong and they both
    came over before 10:00 p.m.  At that point Mr. Hegyi called 9-1-1.  The
    paramedics and police arrived quickly.  At 10:34 p.m. Ibi Roncaioli was
    pronounced dead.  Later, one of the police officers found alcohol and three
    empty vodka bottles in the kitchen.

(b)       The appellants evidence on the
    amounts of anaesthetics he injected

[16]

The appellant was first interviewed by the police the day after his wife
    died.  He made no mention of injecting her with anaesthetics.

[17]

On January 21, 2004, six months after his wife died, the appellant was
    interviewed at the police station.  By then, although unknown to the appellant,
    the police had a coroners report attributing Ibi Roncaiolis death to
    multi-drug toxicity.  During this interview, the appellant at first denied
    injecting Ibi with anaesthetics the day she died.  Eventually, however, he
    acknowledged that he had done so.  He admitted that during the day he may have
    injected her with as much as 19 cubic centimetres (cc) of lidocaine and
    bupivacaine combined  as much as 6 to 7 cc in the morning and 10 to 12 cc in
    the afternoon.

[18]

At trial, however, the appellant testified that he had injected only 6
    to 7 cc during the course of the day.  He suggested that his wife had injected
    herself with the rest of the drugs found in her body.

(c)       Expert evidence on
    the cause of Ibi Roncaiolis death

[19]

The jury heard evidence about the cause of Ibi Roncaiolis death from
    four experts.  The Crown called Dr. Karen Woodall, a forensic toxicologist at
    the Centre for Forensic Sciences, Dr. Susan Belo, an anaesthesiologist and Dr.
    John Doucet, a forensic pathologist.  The defence called Dr. Joel Mayer, a
    forensic toxicologist at the Centre of Forensic Sciences and an expert on
    pharmacology.

[20]

Blood and skin samples showed lidocaine, bupivacaine and alcohol in Ibi
    Roncaiolis body.  These toxicological findings served as the basis of the
    expert evidence.

[21]

Drs. Woodall, Belo and Doucet gave opinion evidence that the combined
    amount of lidocaine and bupivacaine in Ibi Roncaiolis body was in the toxic
    range, potentially fatal and could have caused her death, even absent alcohol. 
    Dr. Woodall said that she would expect the combination to be toxic.  Dr. Belo
    said the combination was likely toxic.

[22]

Dr. Doucet, the pathologist, conducted a post-mortem on Ibi Roncaioli. 
    He concluded that both drugs in aggregate  lidocaine and bupivacaine  had
    produced significant adverse affects.  In his opinion, Ibi Roncaioli had died
    from multi-drug toxicity from the two anaesthetics and the alcohol.  However,
    he also said that while alcohol was a contributing factor, lidocaine and
    bupivacaine alone could have caused Ibi Roncaiolis death.

[23]

Dr. Mayer testified that he could not reach the unequivocal conclusion
    that lidocaine and bupivacaine alone had caused Ibi Roncaiolis death.  Alcohol
    could not be discounted; it would have exacerbated the toxicity of the two
    anaesthetics.

[24]

Finally, I note the appellants argument that the trial judge misstated
    some of the expert evidence in her review of the evidence for the jury.  I am
    satisfied, however, that she did not materially misstate the expert evidence.  Moreover,
    defence counsel, who had a draft of the charge in advance of it being given,
    did not object to the accuracy of the judges factual review.

C.

ANALYSIS

First Issue:  Did the trial judge err by failing
    to stay the prosecution for unreasonable delay?

[25]

We did not call on the Crown to respond to this ground of appeal.

[26]

The delay between the appellants arrest in January 2004 and the start
    of the trial in January 2008 was 48 months.  The trial judge found that, of
    this period, 19.25 months were attributable to institutional delay, just
    slightly over the high end of the
Morin
guidelines and thus was
    acceptable.

[27]

The appellant contends that the trial judge erred in two respects:  by
    characterizing the period from January to September 2007 as defence delay
    instead of institutional delay, and by finding that the overall delay only
    marginally prejudiced him.  In our view, the trial judge did not err.

[28]

The trial was scheduled to begin in October 2006 but had to be
    discontinued because a main Crown expert, Dr. Woodall, was too ill to testify. 
    The Crown offered to use the transcript of her preliminary inquiry evidence
    under s. 715 of the
Criminal Code
but the defence objected because it
    wanted to cross-examine her at trial.  The trial judge acceded to the defences
    position.

[29]

In mid-January 2007 counsel appeared in assignment court to reschedule
    the trial.  The trial was estimated to take six to eight weeks.  The court
    suggested starting the trial in February.  Defence counsel, however, asked for
    a September trial date because he was scheduled to start a murder trial for an
    in-custody accused on April 30.  He said that a February date would not give
    him a proper lag time between the two trials.  The trial judge agreed to put
    the matter over to September.  The court, however, could not accommodate a
    September date and the trial was rescheduled to start in October.  The trial
    judge characterized the delay from January to September as attributable to the defence.

[30]

In arguing that the period from January to September 2007 was
    institutional delay, the appellant relies on
R. v. Godin
, [2009] 2
    S.C.R. 3, at para. 2 where Cromwell J. said that scheduling requires
    reasonable availability and reasonable cooperation but does not require
    defence counsel to hold themselves in a state of perpetual availability.  It
    seems to me that defence counsel could reasonably have started this trial in February. 
    On the estimates given, the trial would have finished by mid to late March,
    giving him at least a month to prepare for his murder trial.  Even if we take a
    more charitable view of the demands on defence counsel, I would characterize
    the period from January to September 2007, not as institutional delay, but as
    delay caused by the unexpected illness of the Crowns expert and thus as
    neutral delay or delay due to the inherent time requirements of the case: see
    for example
R. v. A.J.W
(2009), 257 O.A.C. 11 (C.A.), at para. 47.

[31]

The trial judges finding that the appellant was only marginally
    prejudiced by the delay was reasonable.  The appellant did not testify on the
    s. 11(b) motion.  His bail conditions were not onerous. Moreover, although the
    appellants doctor testified about his depression, the doctor acknowledged that
    the depression was due to many factors, of which the delay was but one, and was
    managed quite well with anti-depressant drugs.

[32]

In
R. v. Kporwodu
(2005), 75 O.R. (3d) 190 (C.A.), this court
    said, Society has a high interest in ensuring that persons charged with [serious]
    crimes are tried on the merits of the charge. That interest however must be
    balanced against the prejudice occasioned to the [accused] by reason of the
    delay. In balancing these interests in this case, the trial judge did not err
    in finding that the appellants s. 11(b) rights were not violated.

[33]

Therefore, we did not give effect to this ground of appeal.

Second Issue:  Did the trial judge confuse the
    jury by leaving unlawful act manslaughter as an alternative theory of
    liability?

[34]

The appellant says that he should have been charged only with
    manslaughter by criminal negligence.  He contends that, in agreeing with the
    Crowns position and charging the jury on manslaughter by an unlawful act
    (aggravated assault), the trial judge confused the jury.  The appellant submits
    that this alternative theory of liability was either a veiled charge of murder
    or redundant.  Also, the trial judges use of two separate decision trees to
    guide the jurys deliberations exacerbated the confusion.  I do not accept
    the appellants position.

[35]

First, at the outset of the trial, Crown counsel alerted the defence and
    the court that he was advancing two routes to manslaughter:

And I think my friend
    is already on notice that the Crown is relying on two possible theories  the
    two theories are unlawful act and criminal negligence.



But I want him to be on notice from the outset of
    the trial of that so that theres no misunderstanding.

[36]

The defence did not object to the Crowns position, or claim that it
    prejudiced the appellants position or that it would confuse the jury.

[37]

Second, although the two routes to manslaughter overlap, they do not
    duplicate each other.  Each has distinctive elements and relies on different
    evidence.  The Crowns closing shows how the two routes differ:

If you find that Joseph Roncaioli intentionally
    injected Ibi Roncaioli with lidocaine and bupivacaine and that the quantities
    he injected endangered her life, then that constitutes manslaughter by the
    unlawful act of aggravated assault. The evidence of motive, his delay in
    calling anyone after she appeared dead and his admission that he had planned
    three days before his wifes death to inject her might assist you in reaching
    this conclusion. ... If you find that Joseph Roncaioli injected Ibi Roncaioli
    with lidocaine and bupivacaine and showed wanton and reckless disregard for her
    life or safety because he injected her without checking whether or not the
    quantities he injected could kill, or without knowing how much he injected and
    without taking the necessary precautions for resuscitation, then that is
    manslaughter by criminal negligence.

[38]

To prove manslaughter by an unlawful act, the Crown had to prove the
    unlawful act of aggravated assault  being the intentional injection of all the
    anaesthetics found in Ibi Roncaiolis body  and prove that this act endangered
    Ibi Roncaiolis life.  To prove manslaughter by criminal negligence the Crown
    had to prove that the appellant showed a wanton or reckless disregard for Ibi
    Roncaiolis life or safety.  The two routes to manslaughter do not duplicate
    each other, and therefore the charge on manslaughter by an unlawful act was not
    redundant.  Nor did it amount to a veiled charge of murder.

[39]

Similarly, although as might be expected, some of the questions on the
    two decision trees replicated each other, the two trees were not identical. 
    The nature of the charge and the evidence required the jury to consider similar
    issues at different stages of the analysis.

[40]

The real question underlying this ground of appeal is whether there is
    any risk the jury was confused or might have wrongfully convicted the appellant
    by being presented with two theories of manslaughter.  I do not think that the trial
    judges charge confused the jury or would have led it to wrongfully convict the
    appellant.  The central issues of identity and causation on which the verdict
    turned were quite simple and clear cut.  If the jury found that Ibi Roncaioli
    injected herself with some of the anaesthetics or had a reasonable doubt whether
    she did, they were bound to acquit. Equally, if the jury found that the
    anaesthetics injected by the appellant were not a significant contributing
    cause of her death or had a reasonable doubt whether they were, they were also bound
    to acquit.  Their verdict shows that they had no reasonable doubt on either
    issue.  I would not give effect to this ground of appeal.

Third Issue:  Did the trial judge err by
    instructing the jury on motive?

[41]

In closing, the Crown urged the jury that the appellant had a motive to
    want to kill his wife:  she had spent or given away virtually all of their
    savings and they had a poor marriage.  In her charge, the trial judge set out
    the Crowns position on motive and told the jury, It is for you to decide
    whether Dr. Roncaioli had such a motive, or any motive at all, and how much or
    how little you will rely on it to help you decide this case.

[42]

The appellant submits that the trial judge erred in instructing the jury
    on motive because he was not charged with murder, that is, the appellant was
    not charged with an offense that required the Crown to prove that he had an
    intent to kill his wife.  Alternatively, the appellant submits that the trial
    judge marshalled only the evidence showing that he injected his wife with the
    anaesthetics and failed to marshal the evidence showing that Ibi Roncaioli may
    have injected herself.  I do not agree with either submission.

[43]

Although motive is not an essential element of criminal responsibility,
    it is relevant in that it makes it more likely that the accused committed the
    crime.  Here, although the appellant was not charged with murder  a fact the
    Crown expressly told the jury  the Crown could nonetheless rely on the
    appellants motive to want his wife dead as a piece of circumstantial evidence
    showing that the appellant intentionally injected his wife with the
    anaesthetics and thus helping to prove manslaughter by an unlawful act. 
    Whether he had a motive to want his wife dead and its role, if any, in proving
    the Crowns case were matters the trial judge correctly left for the jury to
    decide.

[44]

The trial judge did marshal the evidence showing that Ibi Roncaioli may
    have injected herself with the anaesthetics.  She did so when discussing with
    the jury the issue of who injected the drugs.  For example, she reminded the
    jury of the appellants testimony that, before leaving his wifes room, he put
    a syringe and two vials on the table beside her bed, and that when he returned
    the syringe was on the floor.  And the trial judge told the jury in some detail
    about Ibi Roncaiolis alcohol and gambling addictions, and the financial
    stresses in her life, which may have caused her to self inject.

[45]

I would not give effect to this ground of appeal.

Fourth Issue:  Did the trial judge confuse the
    jury with her instructions on causation?

[46]

In her main charge the trial judge instructed the jury on causation as
    follows:

For an act to cause someones death it must be at
    least a significant contributing cause, one that is beyond something that is
    trifling or minor in nature.  There must not be anything that somebody else
    does later that results in Dr. Roncaiolis act no longer being a significant
    contributing cause of Ibi Roncaiolis death.

[47]

This ground of appeal arises from the second sentence of this
    instruction, which amounts to an instruction on intervening cause.  Later in
    her charge, in answer to two jury questions and at the Crowns request, the
    trial judge removed the intervening cause instruction.  The appellant now
    argues that the trial judges instructions on causation confused the jury and
    removed from their consideration the possibility that Ibi Roncaiolis own unanticipated
    alcohol consumption broke the chain of causation.

[48]

The appellants concern arose in the following way.  In the pre-charge
    conference, the Crown agreed to an intervening cause instruction and the trial
    judge, as I have said, so instructed the jury. After her main charge, the jury
    asked the trial judge to clarify her instructions on causation. By then, the
    Crown had changed its position, and no longer wanted an intervening cause
    instruction.  In responding to the jurys question, the trial judge acceded to
    the Crowns new position.  She repeated her earlier instructions on causation but
    omitted the sentence [T]here must not be anything that somebody else does
    later that results in Dr. Roncaiolis act no longer being a significant contributing
    cause of Ibi Roncaiolis death.

[49]

The jury was alive to the omission because less than an hour later it
    returned with another question:

From the re-read today we understand the charge to
    be for an act to cause death, Dr. Roncaioli's act must be a significant
    contributory factor.

From yesterday's charge we understood For an act
    to cause death, Dr. Roncaioli's act must be a significant contributory factor,
    and nothing that someone else did later, intervened in causing the death.
    Which one is applicable[?]

[50]

The trial judge told the jury to stop deliberating.  She discussed with
    counsel how to answer the question and the next day, over the defences
    objection, she told the jury that the answer to the jurys original question
    was correct, not the instruction in her main charge.  In other words, the jury
    should not consider intervening cause.  To ensure that the jury understood the
    instruction, she repeated, correctly, the legal test for causation and the
    applicable evidence on the two routes to manslaughter.  She also repeatedly
    told the jury that to convict they must be convinced beyond a reasonable doubt
    that the appellant injected the lidocaine and bupivacaine found in Ibi Roncaiolis
    body, and that they must have no reasonable doubt she self injected these two
    drugs.

[51]

So, for example, her recharge contained the following instruction:

Based on the circumstantial evidence you heard,
    specifically the evidence regarding the syringe and the vials and the finding
    of the syringe on the floor, if you are satisfied that the deceased
    self-injected the drugs, as well as the drugs that Dr. Roncaioli administered,
    then the Crown has not discharged its burden of proof and you must find Dr.
    Roncaioli not guilty of manslaughter by unlawful act.  If that evidence leaves
    you with a reasonable doubt about whether Dr. Roncaioli injected the greater
    amount than that to which he admits, then the Crown has not discharged its
    burden of proof and you must find Dr. Roncaioli not guilty of manslaughter by
    unlawful act.  If you are not satisfied beyond a reasonable doubt that Dr.
    Roncaioli injected Ibi Roncaioli with the required amounts of lidocaine and
    bupivacaine to produce the post-mortem concentrations you must find him not
    guilty of manslaughter by unlawful act.

[52]

It might well have been preferable had the trial judge not removed the
    intervening cause instruction.  The question we must resolve, however, is
    whether, in doing so, she took away one of the appellants defences.  In my
    view, the trial judges final instruction on causation did not take away any
    defence available on the evidence.

[53]

The appellant argues that the trial judges final instruction removed
    from the jurys consideration the possibility that Ibi Roncaiolis
    unanticipated consumption of alcohol broke the chain of causation.  This
    argument must fail because there was no evidence and thus no air of reality to
    the suggestion that alcohol alone was an intervening cause of Ibi Roncaiolis
    death.  At its highest, alcohol may have exacerbated the toxic effects of the
    two anaesthetics.  Moreover, Dr. Roncaioli could hardly claim that his wifes
    consumption of six ounces of alcohol the afternoon of her death was
    unanticipated.  He knew, as he acknowledged in his testimony, that she abused
    alcohol.

[54]

Thus, the only intervening cause that had an air of reality was Ibi
    Roncaiolis own injection of the anaesthetics.  On the preponderance of the
    evidence, the combined amount of the two anaesthetics found in Ibi Roncaiolis
    body was likely toxic.  If the jury was convinced beyond a reasonable doubt
    that the appellant alone injected these drugs then he was guilty.  But if the
    jury was persuaded or had a reasonable doubt that Ibi Roncaioli self-injected
    some of the anaesthetics, then the appellant was entitled to an acquittal.

[55]

As the passage quoted in para. 51 illustrates, in her recharge, the
    trial judge repeatedly and correctly instructed the jury on Ibi Roncaiolis
    possible self-injection.  Although done in the context of her charge on
    identity  who injected the two anaesthetics  it amounted to a charge on the
    only potential intervening cause arising from the evidence  Ibi Roncaiolis
    own injection of the two anaesthetics.  Thus the express intervening cause instruction
    requested by the defence and removed by the trial judge would have done no more
    than replicate the critical issue the trial judge repeatedly told the jury to
    resolve: who injected the anaesthetics.  I would not give effect to this ground
    of appeal.

Fifth Issue:  Did the trial judge err by failing
    to sentence the appellant for manslaughter based on criminal negligence and by
    failing to give enough weight to the mitigating considerations favouring a
    lenient sentence?

[56]

The trial judge gave lengthy and thorough reasons for the seven-year
    sentence that she imposed.  She set out her factual findings, and then listed
    both the mitigating and aggravating consideration she weighed in her assessment
    of the appropriate sentence.  She concluded that a substantial penitentiary
    sentence is necessary to meet the needs of denunciation and deterrence and to
    reflect Dr. Roncaiolis moral blameworthiness.

[57]

Central to the trial judges conclusion was her finding that Dr.
    Roncaioli intentionally injected his wife with the two anaesthetics, and that
    those injections constituted an aggravated assault.  Indeed, the trial judge also
    found that the aggravated assault was planned, and that the manslaughter in
    this case more resembles murder than an accidental killing.

[58]

The appellant submits that the trial judge erred in principle in
    sentencing him on the basis of unlawful act manslaughter.  He argues that, as
    the basis for the jurys verdict was unclear, he was entitled to the benefit of
    the doubt and to be sentenced for manslaughter by criminal negligence, which he
    contends is not as morally blameworthy as unlawful act manslaughter.  In making
    this submission, the appellant relies on the decisions of this court in
R.
    v. Cooney
(1995), 98 C.C.C. (3d) 196 (Ont. C.A.) and
R. v. Craig
(2003), 177 C.C.C. (3d) 321 (Ont. C.A.), which I wrote.  In
Cooney
at
    204, the court said the sentencing judge is obliged to give to the convicted
    accused the benefit of the doubt regarding the basis on which he was convicted
    by the jury.  In
Craig
I followed this principle.

[59]

I do not accept the appellants submission.  On reflection, I have
    concluded that the principle set out in
Cooney
and
Craig
is
    inconsistent with several Supreme Court of Canada cases: see
R. v. Brown
,
    [1991] 2 S.C.R. 518,
R. v. Tempelaar
, [1995] 1 S.C.R. 760, and more
    recently
R. v. Ferguson
, [2008] 1 S.C.R. 96.  Where the basis of the
    jurys verdict is unclear, the correct principle is that the sentencing judge
    should make his or her own independent determination of the facts, consistent
    with the jurys verdict.

[60]

In the case before us, the trial judge recognized that the basis of the
    jurys verdict was unclear, and applied this principle. She made ten factual
    findings, which she listed, consistent with the jurys verdict and with the
    evidence. For the purposes of sentencing, it was open to the trial judge to
    then determine that the appellant had committed unlawful act manslaughter and
    she did not err in doing so.

[61]

The trial judge considered one fact to be aggravating in determining the
    appropriate sentence: the appellant not only intentionally injected his wife
    with the anaesthetics but he had planned to do so. As the trial judge
    acknowledged, she had to be convinced beyond a reasonable doubt to rely on this
    finding in sentencing the appellant. Although she did not specifically explain
    why she was convinced beyond a reasonable doubt that the appellants act was
    planned, the evidence at trial could have led her to this conclusion. First,
    the appellant had brought home vials containing the anaesthetics three days
    earlier. Second, there was evidence of motive: the appellant acknowledged that
    he and his wife were having marital problems and that they led separate lives. And,
    there was evidence that the appellant had found out only months earlier that
    Ibi Roncaioli had depleted their financial resources.

[62]

However, even if one were to discount the finding of a planned assault,
    the trial judge had ample grounds for the sentence she imposed. She correctly
    identified other aggravating factors present in this case: 1) The appellant was
    in a double breach of trust as Ibi Roncaiolis spouse and treating physician;
    2) The appellant had admitted to intentionally injecting Ibi Roncaioli so this
    was not an accidental act; 3) It was necessary to denounce violence,
    particularly when a doctor uses his special skills to cause deadly harm. While the
    trial judge also considered planning the assault to be an aggravating feature,
    this finding is not necessary to uphold the reasonableness of the sentence.

[63]

The appellants other submission on sentencing  which I also do not
    accept  is that the trial judge did not give enough weight to the various
    mitigating considerations supporting a more lenient sentence.  These
    considerations included the appellants exemplary working life, his good
    character, and his lack of a criminal record.  The trial judge, however,
    expressly took these considerations into account.  The weight to be given to
    them was a matter for her discretion.  The sentence of seven years that she imposed
    was not unreasonable in the light of the other aggravating factors she
    identified.

[64]

I would therefore not interfere with the appellants sentence.

D.

CONCLUSION

[65]

I would dismiss the appellants appeal against his conviction for
    manslaughter.  Although I would grant leave to appeal his seven-year sentence,
    I would dismiss his sentence appeal.

RELEASED:  May 13, 2011

JL                                                                       John
    Laskin J.A.

I
    agree Robert P. Armstrong J.A.

I
    agree H.S. LaForme J.A.


