



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tutiven, 2022 ONCA 97

DATE: 20220203

DOCKET: C68453

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Max Edwin Tutiven

Appellant

Anil K. Kapoor and Dana Achtemichuk,
    for the appellant

Tracy Kozlowski, for the respondent

Heard: January 19, 2022 by video conference

On appeal from the conviction entered on
    October 10, 2017 and the sentence imposed on November 8, 2017 by Justice Maureen
    D. Forestell of the Superior Court of Justice, sitting with a jury, with
    reasons for sentence reported at 2017 ONSC 6689.

Thorburn J.A.:

[1]

Max Edwin Tutiven (the appellant) appeals his conviction for second
    degree murder and seeks leave to appeal his sentence of life imprisonment with
    parole ineligibility for 16 years.

BACKGROUND

[2]

On September 15, 2012, the appellant went to a gas station on Roselawn
    Avenue in Toronto to steal gasoline. He filled his vehicle and several
    cannisters with gasoline. He had done this many times before and had a lengthy
    criminal record.

[3]

Mr. Prajapati, the gas attendant, noticed that the appellant appeared to
    be leaving without paying. He ran across a lane of vehicles near the gasoline
    pumps toward the appellant with his arms outstretched and shouted hey hey in
    an apparent attempt to try and stop him.

[4]

Mr. Prajapati was struck by the front passenger side of the appellants
    vehicle. CCTV footage does not show the moment of impact but it is clear that
    Mr. Prajapati was quickly pulled under the appellants vehicle while
    several people yelled at the appellant to stop.

[5]

Mr. Prajapati remained trapped under the vehicle as the appellant sped
    down Roselawn Avenue for approximately 78 metres before his body was dislodged
    from the vehicle. Mr. Prajapati died of multiple blunt and crush injuries.

[6]

Witnesses heard screeching tires or the sounds of a loud engine. They
    described the loud dragging sound of Mr. Prajapatis body. One said the sound
    was akin to a vehicle hitting a pylon, and the pylon getting lodged under the
    vehicle and kicked around, followed by a softer dragging sound. Another witness
    described the sound as terrible and sounding very loudly like a piece of
    cardboard being dragged on  asphalt.

[7]

The appellant said he intended to leave the gas station after stealing
    the gasoline but another car parked in front of his car, making it difficult
    for him to leave. The appellant says he was focused on the other car and did
    not see Mr. Prajapati approach but did hear a hey, hey. He says he did
    not feel or hear the impact of hitting Mr. Prajapati. The appellant drove out
    of the gas station and onto Roselawn Avenue, hitting the curb as he left the
    station. He said he heard something like stop, stop as he was leaving. He
    said he heard what he thought sounded like a pylon dragging under his vehicle.
    He said he was worried about being caught for gasoline theft and his only
    thought was to get out of there as quickly as possible.

[8]

The appellant said that after driving home that night, he received a
    call from his father advising that the police were looking for him. He assumed
    it was about the gasoline theft and went back to bed. The next day he drove to
    Kingston to see his friend. His friend told him he was wanted by police because
    the gas attendant had died. The appellant said that he went into hiding in
    Montréal because he knew that he was unlikely to get bail, due to his numerous
    prior convictions. He was arrested three years later.

[9]

There was no dispute at trial that the appellant struck Mr. Prajapati
    with his vehicle and that Mr. Prajapati died. The appellant conceded that he
    was guilty of manslaughter. Therefore, the only issue was whether the appellant
    intended to kill Mr. Prajapati.

[10]

The
    Crown contended that the appellant made a continuous, deliberate, and seamless
    departure from the gas station and that the appellant saw Mr. Prajapati
    before he hit him. The Crown noted that there was no evidence of pylons at the
    gas station and the appellant admitted to seeing no pylons. The Crown argued
    that the appellants testimony was created to hide the truth.

[11]

The
    appellant admitted to manslaughter, on the basis that he drove dangerously, it
    was objectively foreseeable that there was a risk of bodily harm, and it caused
    Mr. Prajapatis death. He claimed however that he did not know he hit and was
    dragging Mr. Prajapati, and there were other reasonable inferences for his
    conduct that were inconsistent with the intent for murder.

[12]

The
    appellant submitted that his post-offence conduct
before
he learned he
    was wanted for murder, supported his submission that he did not have the intent
    for murder. He submitted that his post-offence conduct
after
he
    learned he was wanted for murder, was not relevant in determining whether he
    was guilty of murder or manslaughter.

[13]

The
    jury convicted the appellant of second-degree murder.

[14]

At
    the sentencing hearing, the Crown sought a period of parole ineligibility of 17
    years. In the Crowns view, this period of parole ineligibility was warranted
    as the offence demonstrated a callous disregard for life, it was committed by
    the appellant while he was committing other criminal offences, the appellants
    long criminal record demonstrated a commitment to a criminal lifestyle, and
    this offence was committed while he was on a life-time driving prohibition and
    probation.

[15]

The
    appellant submitted that a 17-year period of parole ineligibility was too harsh
    given that he admitted responsibility and expressed remorse at trial. He
    submitted that a 10 to 12-year period of parole ineligibility should be imposed
    instead.

[16]

The
    sentencing judge held that [t]here are virtually no mitigating factors in this
    case and imposed a period of parole ineligibility of 16 years.

THE ISSUES ON APPEAL

[17]

The
    appellant appeals his conviction and seeks leave to appeal his sentence on the
    basis of his assertion that:

a.

The trial judge failed to inquire into evidence
    of juror impartiality;

b.

The trial judge failed to instruct the jury that
    post-offence conduct could be used to negate the
mens rea
for murder;

c.

The trial judge erred in her
W.(D.)
instruction
    by failing to instruct the jury that rejection of the appellants evidence
    could not be used to strengthen the Crowns case;

d.

The verdict of second-degree murder was
    unreasonable; and

e.

The sentencing judge erred by failing to
    consider a relevant mitigating factor.
[1]

ANALYSIS OF THE ISSUES

A.

Juror Impartiality

The appellants
    submission about juror partiality

[18]

During
    the challenge for cause process in the selection of jurors, a prospective juror
    said that this case actually did bother me a lot given her work with new
    immigrants to Canada. The prospective juror said she did not know whether she
    would be able to set aside her preconceived notions and decide the case fairly.
    The two jurors acting as triers found the prospective juror acceptable. The
    defence exercised a peremptory challenge to exclude the prospective juror.

[19]

The
    appellant submits that the conduct of the two jurors in finding the prospective
    juror to be acceptable, created a reasonable apprehension of bias on the part
    of the two jurors. He therefore submits that the trial judge should have
    conducted an inquiry into their impartiality and possibly discharged them. The
    appellant claims that by failing to conduct an inquiry, the trial judge made an
    error of law.

[20]

The
    appellant submits that the verdict should be set aside on the basis of the
    trial judges failure to inquire into juror partiality.

Analysis of the
    issue of juror partiality

[21]

To
    demonstrate partiality, it must be clear that a jurors beliefs, opinions or
    biases will prevent them from setting aside their preconceptions and deciding
    the case based solely on the evidence:
R. v. S. (R.D.),
[1997] 3
    S.C.R. 484, at para. 107. Impartiality does not require jurors to be
    neutral, but jurors life experiences cannot interfere with their
    responsibility to approach the case with an open mind, one that is free from
    bias, prejudice, or sympathy:
R. v. Chouhan
, 2021 SCC 26, at para.
    48, citing
R. v. Barton,
2019 SCC 33, [2019] 2 S.C.R. 579, at para.
    195.

[22]

There
    is a strong presumption of juror impartiality:
R. v. Dowholis,
2016
    ONCA 801, 133 O.R. (3d) 1, at para. 18. The presumption of juror impartiality
    can be rebutted only if a reasonable observer would conclude that the jurors
    conduct made it more likely than not that the juror, whether consciously or
    unconsciously, would not decide fairly:
Dowholis,
at para. 17.

[23]

The
    test for the reasonable apprehension of bias is what would an informed person,
    viewing the matter realistically and practically  and having thought the
    matter through  conclude:
Committee for Justice and Liberty et al. v.
    National Energy Board et al.,
[1978] 1 S.C.R. 369, at p. 394, per

de
    Grandpré J.;
Dowholis,
at para. 19.

[24]

The
    threshold for establishing reasonable apprehension of bias is high:
S. (R.D.),
at paras. 112-113. Further, safeguards are in place to protect against
    potential sources of juror partiality. In
R. v. Find,
2001 SCC 32,
    [2001] 1 S.C.R. 863, at para. 107, the Supreme Court explained these safeguards
    as follows:

[T]he safeguards of the trial process and the
    instructions of the trial judge are designed to replace emotional reactions
    with rational, dispassionate assessment. Our long experience in the context of
    the trial of other serious offences suggests that our faith in this cleansing
    process is not misplaced. The presumption of innocence, the oath or
    affirmation, the diffusive effects of collective deliberation, the requirement
    of jury unanimity, specific directions from the trial judge and counsel, a
    regime of evidentiary and statutory protections, the adversarial nature of the
    proceedings and their general solemnity, and numerous other precautions both
    subtle and manifest  all collaborate to keep the jury on the path to an
    impartial verdict despite offence-based prejudice.

[25]

The
    triers acceptance of a juror who expressed uncertainty about whether she was
    able to decide the case fairly but did not say that her uncertainty would
    impede her ability to decide the case fairly, does not meet the high threshold
    of reasonable apprehension of bias.

[26]

Moreover,
    the trial judge did everything necessary to ensure juror impartiality.

[27]

Before
    each trier began to perform their task, the trial judge correctly instructed
    them that, having preconceptions about a case does not necessarily disqualify a
    potential juror and that what is important, is whether the potential juror
    would likely be able to put their opinions aside and decide the case fairly
    and only on the evidence and legal instructions.

[28]

Each
    juror swore an oath or made an affirmation to decide the case impartially.

[29]

After
    all the jurors were selected, the trial judge reminded the jury panel of their
    duty to decide the case only on the basis of the evidence they saw and heard
    and to make their decision without sympathy, prejudice or fear.

[30]

The
    appellants experienced defence counsel raised no concerns and neither party
    asked the judge to conduct a further inquiry into the conduct of the triers.

[31]

Lastly,
    although following jury selection, the appellant told the court there were a
    couple things that Im very, very uncomfortable with, specifically with jury
    selection, he made no reference to the two jurors who were triers, their
    conduct, or any allegation of possible bias. Concerns about the reasonable
    apprehension of bias should be voiced as soon as reasonably possible:
R. v.
    Nero,
2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 33, 36, leave to
    appeal refused, [2016] S.C.C.A. No. 184.

[32]

The
    appellant relies on
R. v. Budai
, 2001 BCCA 349, 154 C.C.C. (3d) 289,
    leave to appeal refused, [2001] S.C.C.A. No. 415, to submit that once aware of
    circumstances which raise a question as to the impartiality of a juror, the
    trial judge must conduct an inquiry into the circumstances.

[33]

However,
    this case is distinguishable from
Budai
as in
Budai,
unlike
    this case,

the jurors conduct raised a real possibility of juror misconduct.
    The trial judge had received reports of improper and continuous eye contact
    in the courtroom between a juror and an accused, to which the juror made an
    improper response, this had been going on for one to two months, and the
    parties had nodded at and recognized one another outside the courtroom: at
    para. 42. This was sufficient to provide a basis for the trial judges exercise
    of discretion to conduct an inquiry.

[34]

For
    these reasons there was no reasonable apprehension of bias on the part of the
    triers and no error of law committed by the trial judge. This ground of appeal
    fails.

B.

The Instruction On
    The Proper Use Of Post-Offence Conduct

The appellants
    submission about the post-offence conduct

[35]

The
    jury heard evidence about post-offence conduct which the appellant claims can
    be categorized in two stages: (1) the appellants conduct after leaving the gas
    station until the time he learned he was wanted for murder in Kingston (the
    first stage), and (2) his conduct from the time he knew he was wanted for
    murder, until the time of his arrest in Montréal three years later (the second
    stage).

[36]

The
    evidence adduced on the first stage post-offence conduct was relevant to the
    issue of his awareness of being involved in a serious crime, and thus whether he
    had the intent for murder. Given that the appellant admitted he was guilty of
    manslaughter, the evidence adduced in respect of the second stage post-offence
    conduct was irrelevant to the issue of whether the death was a manslaughter or
    a murder.

[37]

The
    appellant claims the trial judges instruction about the use of post‑offence
    conduct was confusing and erroneous.

[38]

He
    claims the jury were told they could not use the post-offence conduct to
    determine the question of intent for murder (which was the sole issue of
    contention), but were not told how the post-offence conduct could assist in
    determining whether the Crown had proven its case if it did not apply to
    intent. Specifically, they were not told how a finding that the appellants
    actions were consistent with innocence, or consistent with someone who is not
    aware of having committed any serious offence, should factor into their
    deliberations.

Analysis of the
    post-offence conduct issue

[39]

The
    trial judge correctly instructed the jury that the post-offence conduct evidence
    could be used to decide whether the Crown had proven Mr. Tutivens guilt beyond
    a reasonable doubt.

[40]

They
    were then told
how
they could use that evidence as follows: [I]f you
    agree with [appellants trial counsel] Mr. Sapiano's position that manslaughter
    has been proven and
the only issue is to decide whether the Crown has proven
    the intent for murder, the post-offence conduct evidence cannot be used by you
    at all
as evidence pointing to guilt. In those circumstances you should
    ignore it because, in law, it has no probative value in deciding between murder
    and manslaughter (emphasis added).

[41]

The
    trial judge went on to say, however, that, 
You must consider the
    post-offence conduct evidence that is consistent with innocence
. This is
    the evidence that Mr. Tutiven went to his rooming house, left his car parked at
    his rooming house, left when he planned and did not take any steps to hide his
    whereabouts, went to a restaurant in Kingston with his friend. If believed,
    this may be seen as conduct that is consistent with someone who is not aware of
    having committed any serious offence (emphasis added).

[42]

The
    question is whether the jury instruction, read in its entirety, in the context
    of the case, properly equipped the jury to decide the case based on the application
    of the applicable legal principles to the evidence:
R. v. Badgerow,
2019
    ONCA 374, 146 O.R. (3d) 35, at paras. 17-18. This court held in
R. v. Adan,
2019 ONCA 709, at para. 35, Whether a trial judges instructions were
    sufficient depends on the significance of the nature of the conduct involved;
    the use made of the evidence at trial; the instructions given about its use;
    and the positions of the parties about the adequacy of those instructions.

[43]

Further,
    a failure by trial counsel to object is not decisive, but is a factor
    warranting consideration on appellate review:
Adan,
at para. 63;
R.
    v. Jacquard
,

[1997] 1 S.C.R. 314
,
at para. 38. A failure
    to object to an instruction later advanced as erroneous on appeal may say
    something about the overall accuracy of the instructions, the fairness of the
    charge, and the seriousness of the alleged misdirection:
Aden,
at
    para. 63; see also
Jacquard,
at para. 38.

[44]

Looking
    at the charge as a whole, there was no prejudice to the appellants right to a
    fair trial.

[45]

The
    appellant, through his counsel, conceded that he was guilty of manslaughter
    although that was ultimately a matter for the jury to decide.

[46]

The
    jurors were told they could not use the evidence to determine that the
    appellant had the intent necessary for murder, but they could use the evidence,
    to the extent it was consistent with innocence, to support a finding that the
    appellant was not aware of having committed any serious offence. Those
    instructions were correct.

[47]

The
    jury would have understood that they could use the evidence to negate
mens
    rea
for murder as they were clearly instructed that they must consider
    this evidence insofar as it is consistent with the appellants innocence both
    of the act and the intention to commit the act.

[48]

The
    appellants experienced trial counsel did not object to this instruction.
    During pre-charge discussions, the appellants trial counsel initially
    requested that the trial judge include after-the-fact conduct consistent with
    innocence in the portion of the charge on intent for murder, but then abandoned
    the request.

[49]

For
    these reasons, this ground of appeal fails.

C.

The Adequacy of the
W.(D.)
Instruction

The appellants
    submission about the trial judges failure to give an OConnor-type instruction

[50]

The
    standard
W.(D.)
instruction is appropriate when the trier of fact
    makes credibility findings based on conflicting evidence going to the essential
    elements of the offence:
R. v. W.(D.)
, [1991] 1 S.C.R. 742, at pp.
    757-758.

[51]

In
    this case, the trial judge provided the standard instruction on the third step
    of the
W.(D.)
analysis as follows:

Even if the testimony of Mr. Tutiven does not
    raise a reasonable doubt about his guilt, if after considering all the evidence
    and the lack of evidence, you are not satisfied beyond a reasonable doubt of
    his guilt, you must find him not guilty of second degree murder.

[]

Even if you reject his evidence and it does
    not raise a reasonable doubt you can only find that he assaulted Mr Prajapati
    if the rest of the evidence satisfies you beyond a reasonable doubt that he
    intended to apply force.

[]

Even if you reject his evidence on this point
    and it does not raise a reasonable doubt, you may only convict him of murder if
    the whole of the evidence satisfies you of his guilt beyond a reasonable doubt.

[52]

The
    appellant suggests that this instruction was insufficient. He claims that the
    jury should have been given a modified
OConnor
instruction such as
    the following:

If you disbelieve the accuseds evidence you
    should disregard it. Your rejection of or disbelief in the evidence of the
    accused is not evidence that you may use in determining whether the Crown has
    proven its case beyond a reasonable doubt. It has no probative value. You must
    ignore the testimony and treat it as if it had never been given.

[53]

The
    appellant suggests this instruction was necessary to ensure that if the jury
    disbelieved the appellants testimony, their disbelief was not used as
    additional evidence in support of the Crowns case because disbelieving the
    appellants evidence does not mean it was fabricated.

Analysis of the
    trial judges failure to give an OConnor-type instruction

[54]

An
OConnor
instruction is given where the Crown seeks to have the trier
    of fact
draw an adverse inference
on the basis of an alleged fabrication
    of an exculpatory statement by the accused, and the Crown can prove fabrication
    based on independent evidence:
R. v. OConnor
(2002), 62 O.R. (3d) 263
    (C.A.), at paras. 35-37;
R. v. Al-Enzi
, 2021 ONCA 81, 401 C.C.C. (3d)
    277, at para. 41.

[55]

The
    law distinguishes between an exculpatory statement given by an accused that is
    disbelieved, and one that is determined to have been fabricated to avoid
    culpability:
R. v. Wright
, 2017 ONCA 560, 354 C.C.C. (3d) 377, at
    para. 38;
Al-Enzi,
at para. 38.

[56]

A
    statement that is disbelieved is not evidence that strengthens the Crowns
    case. It is simply determined to be untrue:
Al-Enzi,
at para. 38. On
    the other hand, a statement that was deliberately fabricated can support an
    inference of guilt because the trier of fact can draw an inference that the
    accused lied to conceal their guilt:
Al-Enzi
,

at para. 38.

[57]

In
R. v. Coutts
(1998), 40 O.R. (3d) 198 (C.A.), at p. 203, leave to
    appeal refused, [1998] S.C.C.A. No. 450, Doherty J.A. explained the basis for
    the distinction between disbelief and fabrication:

If triers of fact were routinely told that
    they could infer concoction from disbelief and use that finding of concoction
    as evidence of guilt, it would be far too easy to equate disbelief of an
    accuseds version of events with guilt and to proceed automatically from
    disbelief of an accused to a guilty verdict. That line of reasoning ignores the
    Crowns obligation to prove an accuseds guilt beyond reasonable doubt. By
    limiting resort to concoction as a separate piece of circumstantial evidence to
    situations where there is evidence of concoction apart from evidence which
    contradicts or discredits the version of events advanced by the accused, the
    law seeks to avoid convictions founded ultimately on the disbelief of the
    accused's version of events.

[58]

Where
    the Crown asserts fabrication, the Crown must not only adduce evidence that
    disproves the exculpatory statement, but also adduce independent evidence that
    proves that the exculpatory statement was made to deflect from the accuseds
    guilt:
Al-Enzi
,

at para. 39. Where independent evidence of
    fabrication exists, the trier of fact should be made aware of the principles
    governing the use to which they can put the statement:
Al-Enzi,
at
    para. 41.

[59]

The
    question to be addressed when an appellant asserts that an
OConnor
instruction
    was warranted is not whether an
OConnor
instruction would have been
    appropriate, but whether the instruction given prejudiced the appellants right
    to a fair trial:
R. v. Polimac,
2010 ONCA 346, 254 C.C.C. (3d) 359,
    at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 263;
Al-Enzi,
at
    para. 43. An appellate court should undertake a functional assessment of the
    charge, read as a whole in the context of the specific case, giving significant
    weight to the position advanced by trial counsel:
R. v. Badgerow,
2019
    ONCA 374, 146 O.R. (3d) 35, at paras. 17-19;
Al-Enzi,
at para. 44.
    Further, this court has recognized that a trial judges instruction
    highlighting the circumstances supporting fabrication may in fact work to the
    detriment of the accused as it may serve to emphasize the powerful case
    supporting fabrication:
Polimac,
at para. 106;
Al-Enzi,
at
    para. 45.

[60]

In
    this case, no
OConnor
instruction was required as the Crown was not
    seeking to have the trier of fact draw an inference of guilt on the basis of an
    alleged fabrication of an exculpatory statement.

[61]

In
    closing submissions, Crown counsel referenced the appellants false narrative
    and characterized his account of events as incredible, suggesting that he was
    hiding the truth. Crown counsel stated that, you should reject Mr. Tutivens
    false narrative.

[62]

Crown
    counsel submitted that, Throughout his testimony, rather than answering simple
    questions, Mr. Tutiven repeatedly chose to provide what the Crown would
    characterize as unresponsive answers filled with extra details to camouflage
    the truth. Crown counsel stated that Mr. Tutivens evidence was,

[A]n unbelievable story from an unbelievable
    storyteller.

[]

Mr. Tutiven, in his evidence, was
    argumentative, evasive, he was regularly unresponsive to even simple questions.
    His evidence was convoluted and often contradictory. He was inconsistent, and
    the Crown would say, incredible. He demonstrated no commitment to tell the
    truth. On the contrary, his testimony had all the hallmarks of an individual
    providing untruths and an unreliable witness.

[63]

However,
    while Crown counsel asserted that the appellant did not tell the truth, he did
    not encourage the jury to draw an inference of guilt from their disbelief of
    the appellants evidence.

[64]

Moreover,
    although the trial judge summarized the Crowns position, including that the
    appellant demonstrated no commitment to tell the truth, the trial judge did
    not include anything in the jury charge from which the jury could have
    understood that they could draw a negative inference if they disbelieved the
    appellants account.

[65]

On
    the contrary, she emphasized the requirement that the jury be convinced of the
    appellants guilt beyond a reasonable doubt on the entirety of the evidence
    even if the appellant's evidence failed to raise a reasonable doubt. Further,
    trial counsel for the appellant did not request an instruction on the fact that
    evidence of disbelief could not be used to infer guilt.

[66]

In
R. v. Badiru,
2012 ONCA 124,

this court held that an
OConnor
instruction on the distinction between disbelief and a finding of
    fabrication was not necessary, despite the fact that the Crown had stated in
    closing submissions that the appellants testimony was fabricated: at para. 23.
    This court held that an instruction was not mandatory as the allegedly false
    statement was part of defence evidence, the trial judge gave an adequate
W.(D.)
instruction, the Crown did not ask the jury to infer guilt from disbelief,
    and the defence at trial did not request the instruction sought on appeal: at
    para. 23.

[67]

For
    similar reasons, the instructions given in this case did not prejudice to the
    appellant's right to a fair trial:
Polimac,
at para. 106;
Al-Enzi
,
    at para. 43.

[68]

This
    ground of appeal therefore fails.

D.

Whether the Verdict
    was Reasonable

The appellants
    submission about the reasonableness of the verdict

[69]

The
    appellant submits that the verdict is unreasonable, and a verdict of
    manslaughter should be substituted.

[70]

The
    appellant notes that the Crowns case on the intention to commit murder was
    entirely circumstantial and the jury was invited to convict the appellant based
    on a series of common-sense propositions about what the reasonable person
would
    have
perceived on the night in question: that the appellant must have seen
    Mr. Prajapati, must have heard the impact, and must therefore have been aware
    that he had hit and/or was dragging Mr. Prajapati under his car to his untimely
    death.

[71]

The
    appellant submits however, that there were other reasonable inferences
    inconsistent with guilt and that he should therefore have been found guilty of
    manslaughter but not second-degree murder.

Analysis of the
    reasonableness of the verdict issue

[72]

A
    verdict is reasonable if it is a verdict that a properly instructed jury
    acting judicially could reasonably have rendered:
R. v. Villaroman,
2016
    SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[73]

The
    Crowns case for establishing the
mens rea
for murder was entirely
    circumstantial. In circumstantial cases, the trier of fact must be satisfied
    that the appellants guilt is the only reasonable conclusion available on the
    totality of the evidence:
Villaroman,
at para. 55.

[74]

When
    assessing circumstantial evidence, the trier of fact should consider other
    reasonable possibilities inconsistent with guilt. Other possibilities must be
    reasonable given the evidence and the absence of evidence, assessed logically,
    and in light of human experience and common sense, and not based on
    speculation:
Villaroman,
at paras. 36-37.

[75]

However,
    the evidence does not have to completely exclude other conceivable inferences
    and a verdict is not unreasonable simply because the alternatives do not
    raise a doubt in the jurys mind:
Villaroman
, at para. 556. It is
    ultimately for the trier of fact to determine if a proposed inference is
    reasonable enough to raise a doubt:
Villaroman,
at para. 56.

[76]

The
    trial judge properly cautioned the jury against too readily drawing inferences
    of guilt based on the circumstantial evidence:
Villaroman,
at para.
    30. She instructed them that,

[Y]ou cannot reach a verdict of guilty based
    on circumstantial evidence unless you were satisfied beyond a reasonable doubt
    that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn
    from the whole of the evidence. In this case, the evidence relied upon by the
    Crown to prove Mr. Tutivens state of mind is entirely circumstantial. It is
    important that in considering the circumstantial evidence of Mr. Tutivens
    state of mind  you consider other reasonable conclusions that are consistent
    with the evidence or with the lack of evidence.

[]

The evidence of his intention, other than his
    own evidence of what he intended, is entirely circumstantial. You can rely on
    circumstantial evidence to conclude that Mr. Tutiven intended to apply force.
    You should remember, however, that before relying on circumstantial evidence to
    infer guilt you must be satisfied beyond a reasonable doubt that the guilt of
    Mr. Tutiven is the only reasonable conclusion to be drawn from the whole of the
    evidence on this issue of his intention to apply force. Before inferring guilt,
    you must consider whether there are other reasonable inferences available from
    the evidence or lack of evidence.

[]

The evidence of intent that could point to
    guilt is wholly circumstantial. You are entitled to rely on the circumstantial
    evidence to infer guilt but you must be satisfied beyond a reasonable doubt
    that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn
    from the whole of the evidence. It is important that in considering the
    circumstantial evidence relating to Mr Tutivens state of mind that you
    consider other reasonable conclusions that are consistent with the evidence or
    with the lack of evidence.

[77]

In
    order to decide whether the appellant was guilty of manslaughter or murder, the
    only issues the jury had to decide were whether (a) the appellant saw Mr.
    Prajapati before he ran him over, or (b) the appellant became aware sometime
    after hitting Mr. Prajapati that he was dragging a person underneath his car
    and did not stop driving. If the Crown proved either, the requirement of intent
    for murder pursuant to s. 229(a)(ii) of the
Criminal Code
was
    satisfied.

[78]

The
    instant that Mr. Prajapati was run over was not captured on CCTV footage.
    However, before he was hit, Mr. Prajapati can be seen in CCTV footage moving
    forward toward the appellants vehicle after seeing the appellant fill his tank
    with gasoline and appearing to leave without paying. The gas station was
    brightly lit and Mr. Prajapati wore a bright yellow and red Shell uniform that
    was plainly visible. A witness testified that Mr. Prajapati shouted hey in an
    apparent attempt to stop the appellant.

[79]

CCTV
    footage shows that the appellants vehicle briefly flashed its brake lights,
    then moved forward from pump five, in lane three, into lane two in the very
    direction Mr. Prajapati was running. In another CCTV video, Mr. Prajapati
    appeared running toward the front passenger side of the appellants vehicle,
    with his hands raised. The CCTV footage suggests that the appellant was not
    engaged in complex driving manoeuvres at the moment Mr. Prajapati was struck
    and therefore was not distracted before he sped away.

[80]

As
    the appellant sped away from the gas station, Mr. Prajapatis body was under
    the appellants vehicle. Mr. Prajapati weighed approximately 70 kilograms and
    his body was dragged approximately 78 metres before it was dislodged from the
    vehicle.

[81]

Two
    witnesses who were at the gas station testified that they saw Mr. Prajapati
    stand in front of the appellants vehicle with his hands raised trying to stop
    the vehicle when the vehicle accelerated. The witnesses testified that the vehicle
    hit him, and then kept driving, dragging Mr. Prajapati.

[82]

One
    of the witnesses, who was inside his car with the window down during the
    incident, said that as Mr. Prajapati was dragged down the street, he could hear
    people screaming for the driver to stop from their balconies in a nearby
    apartment building on Roselawn Avenue. Another witness in the apartment
    building, heard the vehicle leave the scene, dragging something, and then heard
    the dragging stop and someone yell, Call 911.

[83]

The
    appellant said that he heard what he thought was a pylon under the vehicle but
    he agreed that he did not see a pylon in or around the gas station.

[84]

The
    appellant suggests that Mr. Prajapati could have tripped and fallen in front of
    the appellants vehicle. The appellants trial counsel did not raise this
    suggestion to any of the Crown witnesses. This suggestion was advanced for the
    first time in the defence closing address. Further, there is no evidence or
    lack of evidence to support this submission. A witness described that Mr.
    Prajapati was upright, with his hands up to stop the vehicle, when he was hit,
    and that his hands made contact with the hood of the vehicle. The jury,
    properly instructed, was entitled to reject this submission as not being a
    reasonable possibility.

[85]

Taken
    together, the fact that Mr. Prajapati was hit from the front passenger side of
    the appellants vehicle in a well-lit area wearing brightly-coloured clothing,
    that Mr. Prajapatis 70 kilograms were dragged under the appellants vehicle
    for approximately 78 metres, many witnesses heard the body being dragged,
    people screamed that he stop, the appellant heard a hey, hey before he left
    the gas station and something like stop, stop as he was leaving, and that he
    felt his vehicle dragging something as he left, were sufficient to enable the
    jury to conclude that the appellant was guilty of second degree murder.

[86]

There
    was ample evidence to allow the jury to (a) reject the possibility that Mr.
    Prajapati tripped and fell in front of the appellants vehicle just as the
    appellant was speeding away, and (b) be satisfied beyond a reasonable doubt
    that the appellant either saw Mr. Prajapati and deliberately ran him over, or
    realized after he struck Mr. Prajapati that he was dragging someone under his
    vehicle and continued to speed away without stopping.

[87]

For
    the above reasons, this ground of appeal fails.

E.

The Sentence Appeal

[88]

The
    Crown sought 17 years parole ineligibility, the appellant sought 10 to 12
    years, and the sentencing judge imposed a period of 16 years parole
    ineligibility. The appellant claims this is excessive and fails to consider his
    remorse and acceptance of responsibility as a mitigating factor.

[89]

Sentencing
    decisions are subject to deference and will only be varied where (i) the
    sentence is demonstrably unfit, or (ii) the sentencing judge made an error in
    principle that had an impact on the sentence imposed, including an error of
    law, a failure to consider a relevant factor, or erroneous consideration of an
    aggravating or mitigating factor on sentencing:
R. v. Lacasse,
2015
    SCC 64, [2014] 3 S.C.R. 1089, at paras. 41-44;
R. v. Friesen
, 2020 SCC
    9, at paras. 25-26.

[90]

In
    this case, the sentencing judge did not fail to consider that the appellant
    took some responsibility for what he had done. She determined however that no
    mitigating value attached to it, as his was a late admission of some limited
    responsibility after three years spent evading arrest.

[91]

She
    committed no error in principle in arriving at this conclusion nor is the
    sentence demonstrably unfit.

[92]

This
    ground of appeal fails.

CONCLUSION

[93]

For
    the above reasons, I would dismiss the conviction appeal. While leave to appeal
    the sentence is granted, I would dismiss the sentence appeal.

Released: February 3, 2022 K.F.

J.A.
    Thorburn J.A.

I agree.
    K. Feldman J.A.

I agree. J.C. MacPherson J.A.





[1]
In
    oral argument, the appellant abandoned his argument that the trial judge should
    not have left the jury with dangerous driving as a route of liability for
    second degree murder.


