



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Arnaout, 2015 ONCA 655

DATE: 20150930

DOCKET: C56021

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adel Mohamed Arnaout

Appellant

David E. Harris, for the appellant

John Neander, for the respondent

Heard: March 26, 2015

On appeal from the convictions entered on June 25, 2010,
    and from the sentence imposed on March 7, 2012 by Justice Todd Ducharme of the Superior
    Court of Justice, sitting without a jury.

By the Court:

I.        INTRODUCTION

[1]

The appellant was tried on a sixteen-count indictment comprised of eight
    counts of attempted murder for sending tampered water bottles to a number of people,
    three counts of attempted murder for sending letter bombs to three other
    people, three counts of causing an explosive device to be delivered (on the
    same facts as the letter bomb counts), and two counts of possessing an
    explosive substance.

[2]

The appellant admitted to sending the water bottles and the letter bombs.
    However, he said he did not intend to kill anyone. The trial therefore focused
    on the appellants intent.

[3]

On June 25, 2010, the trial judge gave oral reasons for judgment and convicted
    the appellant on all counts except for one of the explosive substance counts.
    The three "cause to be delivered" counts were stayed pursuant to
Kienapple.

[4]

In assessing the appellants intent on the water bottle charges, the
    trial judge originally concluded that the appellant had put Ricin  a deadly
    poison  in the bottles. Seventeen months after conviction, during dangerous
    offender proceedings, the trial judge advised counsel that he had decided to
    clarify his reasons by amending them to add the alternative finding that the appellant
tried but failed to put
Ricin in the water bottles. The trial judge
    explained to somewhat surprised counsel that he had made the alternative
    finding in his mind when he gave his reasons for conviction, but, by
    inadvertence, did not express it in those reasons.

[5]

The trial judge ultimately declared the appellant a dangerous offender and
    sentenced him to an indeterminate period of imprisonment.

[6]

While the appellant raises a number of grounds of appeal, he argues with
    greatest emphasis that the trial judges presumption of integrity has been
    rebutted. The appellant says that the trial judge, by adding an alternative
    theory of liability in relation to the water bottle charges, after the fact,
    created the impression that he had departed from independence and impartiality.
    That impression, according to the appellant, rebuts the presumption of
    integrity and contaminates the trial process to such an extent that this court
    must set aside the convictions and order a new trial.

[7]

We agree that the presumption of integrity has been rebutted. However,
    for the reasons that follow, we conclude that the only consequence is to
    eliminate the trial judges subsequent alternative finding from the reasons
    relevant on appeal. We therefore assess the other grounds of appeal on the basis
    of the original reasons alone. On those original reasons, we conclude that the
    trial judges convictions on the counts of attempted murder by tampered water
    bottles should be set aside and acquittals substituted on those counts. We hold
    that the convictions of attempted murder by letter bomb are unimpeachable, and
    so dismiss the appeal on those counts. Finally, we order a new sentencing
    proceeding before a different judge.

II.       BACKGROUND

[8]

In 2004, the appellant sent twelve-packs of tainted water bottles to
    four parties. The appellant had had difficulties with each party.

[9]

The appellant admitted that he had poked holes in the caps of the
    bottles and contaminated the bottles with dimethyl sulfoxide (DMSO), a substance
    that aids the absorption of other substances and can irritate the digestive
    system. He sent the packages with a fake promotional letter from Nestlé
    Waters. The letter asked the recipient to distribute the free bottles to
    employees but to give no more than one per employee. Only four people tasted the
    cloudy and smelly water. None of those people fell ill.

[10]

A
    search of the appellants hard drive revealed extensive research into poisons,
    including Ricin. Ricin is lethal in very small doses. The computer search
    indicated that the appellant had calculated how he might produce Ricin and how
    he might distribute it in coffee.

[11]

A
    test exists to detect Ricin. The Centre of Forensic Sciences, however, did not
    have the capacity to perform that test, and so the water bottles were not
    tested for Ricin. A search did not reveal any trace of Ricin or any evidence of
    its production in any place connected to the appellant.

[12]

The
    appellant also admitted that he sent letter bombs to three people: (i) a former
    roommate with whom he did not get along; (ii) the defence counsel who had
    defended him against a 2003 criminal harassment charge; and (iii) a
    superintendent of a property the appellant had rented.

[13]

The
    letter bombs were of similar construction: copper tubes filled with an
    explosive substance, held in a package with steel nails and, in two cases,
    flammable liquid. The former roommates bomb exploded in his hands, causing
    minor injuries. The other two recipients called the police upon noticing
    something unusual about their letters. The police disarmed one bomb and
    detonated the other. Around the same time as he sent the letter bombs, the
    appellant was writing notes on his typewriter threatening death.

[14]

After
    a two-week trial, on June 25, 2010, the trial judge issued reasons for judgment
    and found the appellant guilty of all counts except for the explosive substance
    counts for items in his home. The three "cause to be delivered"
    counts were stayed pursuant to
Kienapple.
On March 7, 2012, the trial
    judge issued reasons for sentence. He declared the appellant a dangerous
    offender and imposed an indeterminate period of detention.

III.      ISSUES

[15]

The
    appellant raises four grounds of appeal. He submits that the trial judge erred
    by:

1.       Creating an appearance of partiality in
    amending his reasons more than 17 months after conviction. The amendment and
    the circumstances surrounding the amendment rebut the presumption of integrity.

2.       Unreasonably finding that the appellant intended to
    kill by sending the tainted water.

3.       Unreasonably finding that the appellant intended to
    kill by sending the letter bombs.

4.       Unreasonably declaring the appellant to be a dangerous
    offender and unreasonably imposing an indeterminate sentence.

[16]

As
    noted earlier and as we explain below, the appeal is allowed in part. We allow
    the appeal on the attempted murder by tampered water convictions and substitute
    acquittals on those counts. We dismiss the appeal on the attempted murder by
    letter bomb convictions. And finally, because we substitute acquittals on eight
    of the attempted murder counts, we order a new sentencing proceeding.

IV.     ANALYSIS

[17]

In
    oral argument, the appellant asserted that the appearance of impartiality was
    lost when the trial judge amended his original reasons. If the presumption of
    integrity was rebutted, the appellant argues, this court should set aside all
    of the trial judges decisions and order a new trial. We will address this
    issue first and then turn to the reasonableness of the verdicts and the
    sentence.

(i)

The Presumption of Integrity

[18]

In
R. v. Teskey
, 2007 SCC 25, [2007] 2 S.C.R. 267, at paras. 19-21, the
    Supreme Court held that judges benefit from a presumption of integrity. The
    presumption of integrity encompasses the expectation that judges will strive to
    overcome personal bias and partiality and will carry out the oath of their
    office to the best of their ability. An adjudicator is impartial when he
    or she is disinterested in the outcome and is open to persuasion by the
    evidence and the submissions. A judge must both weigh the case impartially in his
    or her own mind and ensure that the circumstances objectively demonstrate his
    or her impartiality to an informed and reasonable observer.

[19]

The
    test to displace the presumption of integrity is similar to the test to show a
    reasonable apprehension of bias. Bias, partiality and lack of integrity are all
    similar concepts; the bar to establish any one of them is high because each
    calls into question both the integrity of the presiding judge and the
    administration of justice itself:
Teskey
, at para. 32. To rebut the
    presumption of integrity in cases featuring post-decision reasons, the
    appellant must present cogent evidence showing that, in all the
    circumstances, an informed and reasonable observer would think that the
    reasons are an after‑the-fact justification for the decision rather than
    an articulation of the reasoning that led to the decision:
Teskey
,
at para. 21.

[20]

In
Teskey
, the trial judge announced a decision with reasons to follow
    but did not provide reasons until 11 months later. In
R. v. Cunningham
,
    2011 ONCA 543, 106 O.R (3d) 641, on which the appellant also relies, the trial
    judge delayed 25 months between her decision and her reasons. The question in
    those cases was whether an informed and reasonable observer would believe the
    reasons as a whole were an after-the-fact justification for a decision
    announced months or years earlier.

[21]

This
    case fits only inexactly into that frame. Here, the trial judge gave lengthy
    reasons when he convicted the appellant. He added only a few words when he
    amended his reasons over 17 months later. Nevertheless, we can see no
    principled reason why the test set out in
Teskey
and
Cunningham
should not apply.

[22]

Whether dealing with reasons released in
    their entirety after a lengthy delay or an amendment to previously delivered
    reasons, an appellate court must determine whether the trial judges
    explanation for why he reached a particular conclusion constitutes an
    after-the-fact justification rather than an articulation of the reasoning that
    led to the decision.

[23]

Therefore,
    if a judge amends his or her reasons, the test is whether the appellant has
    presented cogent evidence showing that, in all the circumstances, an informed
    and reasonable observer would think that
the amendment
was an
    after-the-fact justification for the verdict.

(a)     Factual background

[24]

In
    his oral reasons of June 25, 2010, the trial judge noted that the appellants
    intention in the tainted water counts turned on the chemical with which he
    injected the water bottles. The Crowns theory was that the appellant injected
    DMSO to facilitate Ricin absorption. The trial judge described the relevant
    findings that he said allowed him to properly infer that [the appellant] put
    Ricin in the water bottles:

1)

I
    accept Mr. Arnaouts testimony that he mixed DMSO into the water although I
    reject his explanation for why he did so.

2)

There
    does not appear to be any accepted reason for DMSO to be administered orally in
    liquid form.

3)

DMSO,
    the chemical substance that Mr. Arnaout had said he put in the bottles, would
    facilitate the absorption of Ricin or other chemicals in the water into the
    skin or internal membranes of any person drinking the water. Thus, the DMSO
    would decrease the amount of Ricin necessary to poison a person drinking the
    water.

4)

Mr.
    Arnaout had a strong grudge against the named recipients of the water bottles
    as well as against the CIBC [one of the recipients].

5)

Around
    the time of the sending of the water bottles, Mr. Arnaout had done research
    with respect to the manufacture of Ricin.

6)

At
    the same time, Mr. Arnaout had done calculations with respect to a plan to
    distribute Ricin mixed into coffee, to various targets.

7)

The
    water bottles were not tested for the presence of Ricin, so there is no
    evidence before me as to whether or not it was present in the water.

8)

The
    search of Mr. Arnaout, his rental vehicle and his apartment revealed no trace
    of Ricin or of castor beans, one of the principal ingredients for its
    manufacture. Of course, these searches were conducted some three years after
    the water bottle incidents.

9)

Ricin
    is a highly toxic poison. In terms of its toxicity, Dr. Langille said it was in
    the same ball park as mustard gas, sarin, chlorine gas and cyanide.

10)

The receptionist
    at [one of the recipients] had a taste out of one of the water bottles and,
    although taken to hospital, she apparently suffered no ill effects. Of the
    three employees at the CIBC who tasted the water one reported feeling sick but
    did not miss any work as a result. There is no evidence before me that either
    of the other two CIBC employees suffered any ill effects.

[25]

The
    trial judge concluded that the first three findings supported the inference
    that the appellant added DMSO to the water to facilitate absorption of another
    chemical in the water. The appellants animus toward the recipients of the
    water bottles suggested that the second chemical was harmful, especially given
    the appellants tendency to blow out of proportion alleged wrongs against him.
    The appellants research into Ricin indicated that he selected Ricin as the
    harmful second chemical.

[26]

The
    trial judge realized that if the appellant contaminated the water with Ricin, a
    highly toxic substance, anyone who drank the water probably should have
    suffered ill effects. Those who drank the water did not suffer ill effects. The
    trial judge reasoned, however, that those who drank the water likely ingested
    only a small quantity given its sulfurous smell and taste. He concluded that
    the appellant put Ricin in the tainted water, and having so concluded, found
    that the appellant had the necessary
mens rea
for attempted murder.
    That is, he intended to kill those persons to whom he sent the bottles.

[27]

On
    December 12, 2011, during the sentencing proceedings, the trial judge advised
    counsel that he had reviewed a transcript of the reasons for conviction that
    counsel had given him that morning. He indicated that he had not previously had
    a copy of the reasons and said:

[The reasons] dont fully reflect one aspect of my reasoning ...
    just so the record is clear, I am going to clarify that one point. It has to do
    with respect to the tainted water charges The issue relates to the conclusion
    that Mr. Arnaout put Ricin in the water bottles he sent. My basis for
    convicting him was that he either did so
or he intended
    to do so and failed in the attempt
. My oral reasons did not make that
    clear. [Emphasis added.]

[28]

The
    trial judge said both findings supported his conclusion that the appellant
    intended to kill by sending the water bottles. He said the omission was either
    his mistake or the court staffs mistake. He stated that he retained the
    flexibility to make this correction because he was still seized of the
    matter. Indeed, he said it was both appropriate and essential to make the
    correction.

[29]

Counsel
    had been not forewarned of the trial judges intention to amend his reasons. After
    the trial judge reviewed the portions of his reasons that he had amended, the
    appellants trial counsel  who was not counsel on appeal  expressed surprise,
    noted that his client had appealed and said, I think it would be correct for
    me to say that what happened this morning would have some impact on grounds
    that have been stated in that appeal and ... may have some impact on [the
    appellants] rights to appeal. Trial counsel added that a doctors report
    filed on sentencing had made reference to the fact that the decision had been
    appealed. The trial judge responded that he had expected an appeal, that he did
    not know the grounds of appeal, and that the fact of the appeal had no impact
    on his decision to correct his reasons.

[30]

The
    trial judge made approximately five changes to his original reasons to add the
    alternative finding that the appellant tried but failed to put Ricin in the
    water.

(b)     Would a
    reasonable person think that the amendment was an                            after-the-fact
    justification for the convictions?

[31]

At
    the outset, we think it important to restate that trial judges may announce a decision
    with reasons to follow. This court may consider a trial judges reasons even
    if the trial judge releases those reasons after the appellant has filed a
    notice of appeal:
Teskey
, at para. 16.

[32]

As
Teskey
explained, at para. 17, efficiency often requires a trial judge
    to immediately announce a decision on an evidentiary ruling or on a
Charter
motion with reasons to follow at a later date. Other good reasons, such as
    providing immediate release on an acquittal, may prompt a trial judge to
    announce a verdict with reasons to follow. However, in all cases, the
    trial judge should keep in mind that justice must not only be done but also
    must appear to be done.

[33]

A
    long delay between a decision and reasons may cause an informed and reasonable
    observer to believe that the trial judge, instead of considering the evidence
    with an open mind, reasoned in a manner designed to reach the result previously
    announced. That is, the reasonable observer may believe that the trial judge
    reasoned with a view to defending the decision rather than arriving at it, even
    if only subconsciously:
Teskey
, at para. 18.

[34]

The
    appellant contends that the trial judge reread his reasons for conviction and
    realized the evidence did not support his finding that the appellant put Ricin
    in the water. The trial judge, he says, then tried to repair his reasons by
    adding the new, alternative finding of fact that the appellant tried but failed
    to put Ricin in the water. The appellant asserts that the trial judge attempted
    to bolster his reasons for conviction with an alternative theory of liability.

[35]

By
    adding an alternative theory long after giving his reasons, the appellant
    argues, the trial judge became an advocate for conviction rather than an
    independent arbiter. The appellant submits that an informed and reasonable
    observer would think the trial judge reasoned to justify his result, rather
    than to come to a result. Such results-driven reasoning, he says, casts doubt
    on the entire trial.

[36]

The
    trial judge told counsel that his original reasons did not fully reflect one
    aspect of [his original] reasoning, in that they omitted the finding that the
    appellant either [put Ricin in the water] or intended to do so and failed in
    the attempt. Would an informed and reasonable observer accept the trial
    judges explanation? Or, would an informed and reasonable observer view the
    amendment as an after-the-fact justification for the verdict? We conclude an
    informed and reasonable observer would view the amendment as an after-the-fact
    justification for the verdict.

[37]

Several
    features of this case convince us that an informed and reasonable observer
    would not see the amendment as reflective of the actual reasoning path taken to
    the decision announced over 17 months earlier. They are: (i) the weakness of
    the evidence supporting attempted murder on the tainted water charges, (ii) the
    trial judge's expectation that the appellant had launched an appeal, and (iii) the
    length of time between the release of the original reasons and the amendment.

[38]

First,
    the amendment strengthened the weakest link in the trial judges chain of
    reasoning. In his original reasons, the trial judge found that four people
    drank water containing an extremely poisonous substance without suffering any
    real effects. This seeming incongruity is very hard to square. The curative
    nature of the amendment suggests that the trial judge was attempting to preserve
    his reasons by correcting an oversight he did not fully realize at the time.

[39]

The
    trial judges second specific change to his original reasons supports that
    conclusion. In his original reasons, after finding that the appellant added
    Ricin to the water, the trial judge stated:

I am somewhat  troubled by the fact that none of the persons
    who tasted the water suffered any negative consequences from tasting it.
    However, given the evidence about the unpleasant odour of the water and Dr.
    Langilles evidence that the smell and the taste of water would deter people
    from drinking much of this, I find that none of the people would have drank
    much of the water at all. While I have no direct evidence about the amount of
    water the CIBC employees ingested, Mr. Zaidi testified the receptionist had
    only a little slight taste of it.

[40]

In
    his second of five specific changes to the original reasons, the trial judge
    added the following to the end of the above passage:

I also am unable to determine if Mr. Arnaout was successful in
    manufacturing the Ricin and, if so, at what concentration.

[41]

In
    the original passage, the trial judge turned his mind to the exact problem his
    amendment fixed. In the original passage, he was trying to explain how people
    could drink Ricin-contaminated water without ill effects. His amendment did
    away with that difficulty by finding that perhaps the appellant did not successfully
    add Ricin after all. Given the close relationship between the problem and the
    amendment, it becomes difficult to accept that the trial judge always found
    that the appellant put or tried but failed to put Ricin in the water. If the
    trial judge thought the appellant put
or
tried but
    failed to put Ricin in the water, he would have said so in his original reasons
    in order to explain an inconsistency that troubled him.

[42]

Based
    on the number of specific changes to the reasons, and in particular the change
    to the passage above, we believe an informed and reasonable observer would
    conclude that the trial judge was not persuaded that the evidence supported the
    conclusion that the appellant tried but failed to add Ricin to the water when
    he wrote his original reasons. An informed and reasonable observer would view the
    amendment introduced in these circumstances as an after-the-fact justification
    for the verdict, even if unintended.

[43]

Second,
    as previously mentioned, immediately after the trial judge reviewed his
    amendments with counsel, the appellants trial counsel noted that his client
    had appealed his convictions. Defence counsel also noted that a psychiatric
    report filed in the dangerous offender proceedings had made reference to the
    appeal.

[44]

If
    an appeal from a verdict has been filed, subsequently released reasons or
    amendments that deal with issues raised on appeal could create the appearance 
    whether real or not  that the trial judge is advocating a particular verdict
    rather than articulating the reasons that led him or her to the verdict:
Teskey
,
    at para. 18.

[45]

In
    this case, the trial judge said that although he expected an appeal, he had not
    read the notice of appeal and did not know the grounds of appeal. The appellant
    does not allege otherwise.

[46]

The
    mere fact that the trial judge expected that an appeal had been filed when he
    delivered his amendments does not mean the amendments signal partiality. Trial
    judges frequently release decisions with reasons to follow, and those decisions
    do not fail simply because a trial judge learns of an appeal before releasing his
    or her reasons. As with other considerations, the existence of an appeal and
    the trial judge's knowledge of that appeal are but factors to take into account:
Cunningham
, at para. 47. Here, the ultimate question remains whether
    an informed and reasonable observer would believe that the amendments are an
    after-the-fact justification for the verdicts rather than the articulation of
    the reasoning that led to the verdicts.

[47]

In
    our view, an informed and reasonable observer would, on this record, see the
    amendments delivered by the trial judge as motivated, at least in part, by the
    desire to defend his decision against the likely challenges on appeal.

[48]

While
    the trial judge may not have known the particulars of the appellants notice of
    appeal, the amendments to his original reasons were specifically directed at what
    was arguably the appellants strongest ground of appeal. Without the trial
    judges addition of an alternative theory of liability, the appellant would
    have had an argument that the trial judges finding of guilt on the tainted
    water attempted murder charges was made in error and on the basis of an
    erroneous factual finding; namely, that the appellant added Ricin to the water
    bottles. This, combined with the fact that the trial judge expected an appeal
    and was put on notice of the impending appeal by the psychiatric report filed
    in relation to the dangerous offender proceedings, created the appearance that
    the trial judge was attempting to defend his verdict against the primary
    challenge on appeal.

[49]

Whether
    this was actually the trial judges intention or not, a judge who releases
    post-verdict reasons after a lengthy delay must always be mindful of the
    importance that justice not only be done, but that it
appear
to be
    done:
Teskey
, at para. 17.

[50]

Third,
    the longer the passage of time between a decision and the reasons for the
    decision, or substantive amendments to those reasons, the greater the concern
    that the requisite link between the two does not exist:
Cunningham
, at
    para. 37. More than 17 months to deliver amendments of this significance, said
    to have been conceived in the original reasoning process, is a long time  certainly
    longer than the 11-month delay in
Teskey
.

[51]

The
    trial judge offered little explanation as to why he only amended his reasons at
    the sentencing hearing, more than 17 months after delivering his verdict other
    than to say he did not know how a transcript of his oral reasons went out to
    counsel without his having a chance to review it or perhaps he did have a
    chance to review it but did not.

[52]

It
    is of significance that during these 17 months, there were numerous appearances
    before the trial judge in connection with the dangerous offender proceedings. It
    was in the course of these appearances that the doctors report in which the
    appeal was mentioned, was filed. A reasonable, informed observer would likely believe
    that these ongoing proceedings created ample opportunity for the trial judge to
    review and consider  or reconsider  his oral reasons during this 17-month
    period.

[53]

The
    appellant, in our view, has presented cogent evidence showing that, in all the
    circumstances, an informed and reasonable observer would think the amendments were
    an after-the-fact justification for the verdict. The appellant has rebutted the
    presumption of integrity.

(c)     Must there be a new trial on all the
    issues?

[54]

The
    appellant asserts that if he rebuts the presumption of integrity, this court
    should set aside all of the trial judges decisions and order a new trial on
    all counts. In the circumstances of this case, however, the rebuttal of the
    presumption has limited consequences.

[55]

In
Teskey
, the court found that an informed and reasonable observer would
    think that the post-verdict reasons were an after-the-fact justification for
    the verdict. The court, therefore, could not consider the post-decision reasons
    in assessing the sufficiency of the reasons for the verdict. As the original
    reasons did not pass the sufficiency of reasons test, the court ordered a new
    trial:
Teskey
, at para. 2. Thus, if a trial judge issues reasons after
    a decision, and an informed and reasonable observer would understand the
    reasons as an after-the-fact justification for the decision, an appellate court
    cannot consider the post-decision reasons in assessing any ground of appeal.

[56]

It
    is important to appreciate that the court in
Teskey
did not allow the
    appeal simply because the post-verdict reasons appeared to be an after-the-fact
    justification for the verdict. Rather, the court allowed the appeal because the
    reasons remaining, after it excluded the post-verdict reasons, were
    insufficient. In
R. v. Thompson
, 2010 ONCA 463, 256 C.C.C. (3d) 51, at
    para. 26, this court excluded supplementary reasons in which the sentencing
    judge admitted a mistake in his original reasons and attempted to fix the
    mistake. This court went on to consider only the sentencing judges original
    reasons. The court dismissed the appeal after finding that the original reasons
    disclosed no significant error:
Thompson
, at paras. 35, 41.

[57]

Teskey
and
Thompson
make clear that an appellate court should exclude only
    that portion of the trial judges reasons that appears, to an informed and reasonable
    observer, to be an after-the-fact justification for the decision. The court
    should then decide whether the remaining reasons withstand the appellants
    other grounds of appeal: see also
Cunningham
, at para. 2;
R. v.
    Port Chevrolet Oldsmobile Ltd.
, 2009 BCCA 357, 246 C.C.C. (3d) 355, at
    para. 51.

[58]

The
    appellant, however, argues that if the presumption of integrity has been
    rebutted in the circumstances here, this court must set aside all of the
    decisions below. The appellant says that this court, once it determines that
    the trial judges amendment rebutted the presumption of integrity, cannot
    safely conclude that the trial judge acted impartially at any point.

[59]

We
    decline to accede to the appellants suggestion. This court should not lightly
    infer partiality in a judge. As repeatedly stated in our jurisprudence, the
    threshold for a successful allegation of partiality or the appearance of
    partiality is high. It can be met only with cogent evidence: see
R. v.
    R.D.S.
, [1997] 3 S.C.R. 484, at para. 117, Cory J.

[60]

In
    our view, the pre-amendment proceedings disclose no reason to doubt that the
    trial judge drafted his original reasons and came to his verdicts with an
    impartial mind. His lengthy original reasons reveal a careful contemplation of
    the evidence and an appreciation for the Crowns heavy burden. The fact that he
    introduced an amendment 17 months later is not cogent evidence of partiality in
    writing the original reasons. The impugned amendment should not impact the
    presumption that the trial judge acted as a judge should in deciding the case
    as set out in his original reasons. There is no evidence to support the notion
    that the trial judge acted with something less than integrity and impartiality
    in articulating his original reasons.

[61]

Therefore,
    the amendments should be excised and the other grounds of appeal against conviction
    should be considered on the basis of the trial judges original reasons.

(ii)

Reasonableness of the Verdicts

[62]

The
    test to determine whether a verdict is reasonable is well established. A reasonable
    verdict is one a properly instructed jury, acting judicially, could reasonably
    have rendered. The reviewing court may set aside a verdict as unreasonable when
    the reasons of the trial judge reveal that he or she entered a verdict
    inconsistent with his or her factual conclusions:
R. v. Biniaris
, 2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37.

[63]

As
    noted earlier, we conclude that the tainted water attempted murder convictions
    are unreasonable while the letter bomb convictions are not. We will discuss
    each of these in turn.

(a)     Contaminated water bottles

[64]

The
    issue on these counts was whether the appellant possessed the requisite
mens
    rea
for attempted murder; namely, the specific intent to kill. The trial
    judge described his conclusion as follows:

Having concluded that Mr. Arnaout put Ricin in the tainted
    water, I can readily conclude that he had the necessary
mens rea
for attempted
    murder. That is, he intended to kill those persons to whom he sent the bottles.

[65]

With
    respect, the trial judges finding that the appellant put Ricin in the water
    requires a leap that the evidence does not support. The evidence only
    demonstrates that the appellant (i) did not like the recipients of the water, (ii)
    was researching Ricin (among other poisons), and (iii) contaminated the water
    with DMSO.

[66]

To
    be sure, the appellants research into and calculations on Ricin, especially in
    combination with his list of targets, are disturbing. The research, however, is
    the only connection to Ricin. The water was not tested for Ricin and Ricin was
    not found on the appellants person, in his rental car, or in his apartment. No
    one fell ill with Ricin poisoning after drinking the water.

[67]

The
    trial judge's observation that the people who drank the water probably only
    drank small amounts of Ricin does not explain why those people did not fall
    sick. The expert evidence was that a minuscule amount of Ricin  about one
    milligram per kilogram of body weight  would likely kill if taken orally.

[68]

In
    our view, the fact that the appellant seemed to seriously consider poisoning
    people with Ricin is weak evidence that he contaminated these particular water
    bottles with Ricin. Without more, a reasonable jury properly instructed could
    not conclude that the appellant attempted to kill the water recipients by
    contaminating the water with Ricin. Other explanations for the evidence lay
    open. For example, perhaps the appellant considered distributing Ricin through
    the water bottles but, in actually preparing the bottles, decided only to
    harass the recipients with DMSO.

[69]

As
    a result, we set aside the eight convictions for attempted murder related to
    tainted water.

(b)     Administering a noxious thing

[70]

After
    finding that the appellant put Ricin in the water, the trial judge considered
    whether the appellant should be found guilty of an included offence if he was
    wrong about putting Ricin in the water. He then decided that the appellants attempted
    murder charges contained sufficient descriptive words to include the offences
    of administering and attempting to administer a noxious thing.

[71]

We
    disagree. While there was evidence that the trial judge could rely on to
    convict the appellant of the offences of administering and attempting to
    administer a noxious thing, the charges as particularized do not contain
    sufficient descriptive words to include these offences.

[72]

The
    trial judge accepted the appellants evidence that he added DMSO to the water
    bottles. The Centre of Forensic Sciences found dimethyl sulfide (DMS) of
    unknown concentration in the bottles. The toxicologist from the Centre of
    Forensic Sciences testified that most people, if they ingested DMS, would not
    feel any effect. He agreed that DMS was not injurious and at best only
    slightly toxic. However, he also testified that DMSO, if taken orally would
    irritate the membranes of the mouth, esophagus and gastrointestinal tract,
    depending on the amount taken. Based on this, the trial judge found there was
    evidence that could support convictions of the included offences.

[73]

We
    turn then to the charges as particularized.

[74]

The
    trial judge relied on
R. v. G.R
., 2005 SCC 45, [2005] 2 S.C.R. 371, to
    hold that administering and attempting to administer a noxious thing were
    included offences on the attempted murder charges. In
G.R.
, at para.
    29, the court noted that s. 662 of the
Criminal Code
, R.S.C. 1985, c.
    C-46, authorizes convictions for only three categories of included offences:

1.       offences included by statute,

2.       offences included in the
    enactment creating the offence charged,

3.       offences which become included
    by the addition of apt words of description to the principal charge.

[75]

The
    trial judge correctly noted that the appellant could only be convicted of
    administering or attempting to administer a noxious thing if those offences fit
    under the third category. He quoted the test for this category as follows: [w]hat
    is required are words of description in the count itself of facts which put an
    accused on notice that, if proven, such facts taken together with the elements
    of the charge, disclose the commission of an included offence:
G.R.
,
    at para. 32.

[76]

A
    count includes a lesser offence if, by proving the elements of the charged
    offence and the facts alleged in the count, the Crown
necessarily
proves the lesser offence.
G.R.
, at para. 25, emphasizes the narrow
    ambit of included offences:

An offence is included if its elements are embraced in the
    offence charged (as described in the enactment creating it or as charged in the
    count) or if it is expressly stated to be an included offence in the
Criminal
    Code
itself. The test is strict. It must "necessarily" be
    included. [Citation omitted.]

See also
R. v. Beyo
(2000), 47 O.R. (3d) 712
    (C.A.), at para. 30, leave to appeal refused, [2000] 2 S.C.R. vi;
R. v.
    Simpson
(1981), 58 C.C.C. (2d) 122 (Ont. C.A.), at p. 136, leave to appeal
    refused, [1981] 1 S.C.R. xiii.

[77]

The
    tainted water attempted murder charges all follow one of two wordings:

ADEL MOHAMED ARNAOUT stands further charged that he, on or
    about the 22nd day of July in the year 2004, in the City of Toronto, in the
    Toronto Region, did attempt to murder Saroor Hasan ZAIDI
by
    sending Saroor Hasan ZAIDI tampered bottled water
, contrary to section
    239 of the
Criminal Code
.

ADEL MOHAMED ARNAOUT stands further charged that he, on or
    about the 22nd day of July in the year 2004, in the City of Toronto, in the
    Toronto Region, did attempt to murder John DOE
by causing
    John DOE to receive tampered bottled water
, contrary to section 239 of
    the
Criminal Code
. [Emphasis added.]

[78]

In
    our view, the charges as particularized do not include either administering a
    noxious thing or attempting to administer a noxious thing. For the offence of
    administering a noxious thing, s. 245 of the
Criminal Code
requires
    that a person administer or cause to be administered  or causes any person to
    take poison or any other destructive or noxious thing.

[79]

The
    appellant could not be convicted of administering a noxious thing in these
    circumstances unless someone actually drank the water. The charges do not
    allege that anyone actually drank the water. The charges therefore do not
    necessarily put the appellant on notice that he could be convicted of
    administering a noxious thing, and so the charges do not include this offence.

[80]

The
    appellant could not be convicted of attempting to administer a noxious thing
    unless he added a noxious thing to the bottled water. The charges specify
    tampered bottled water as the means by which the appellant attempted to kill.
    Tampering with a bottle of water in an attempt to kill could mean poisoning the
    water with a noxious thing, but it could also mean rigging the bottle to
    explode or otherwise modifying the bottle to cause harm. A charge alleging
    attempted murder by tampered bottled water does not necessarily allege that the
    accused person tainted the bottled water with a noxious thing. The charges
    therefore do not put the appellant on notice that he could be convicted of
    attempting to administer a noxious thing and the charges do not include this
    offence.

[81]

As
    the charges do not include administering or attempting to administer a noxious
    thing, we cannot enter convictions on those offences in place of the vacated
    attempted murder by tainted water convictions. We therefore set aside the
    convictions and enter acquittals on these counts.

(c)     Letter bombs

[82]

Here
    the appellant argues that the convictions for attempted murder by letter bomb
    are unreasonable. He offers two arguments. First, he says the one bomb that did
    go off did not cause serious injury despite exploding in the victims hands.
    Second, he says the size of the bombs made it extremely unlikely that they
    could kill anyone.

[83]

The
    evidence on the letter bomb counts is overwhelming and not in the least bit
    weakened by the mere size of the bombs. The appellant fastened shrapnel nails
    to all three of the bombs and incorporated flammable liquid into two of them.
    In all cases, the trial judge found that the appellant harboured animus against
    the targets.

[84]

It
    is clear to us that a properly instructed jury acting judicially on all the
    evidence could infer that the appellant intended to kill the people to whom he
    sent the letter bombs. The trial judges verdicts on the letter bomb counts are
    reasonable and this ground of appeal is dismissed.

(iii)

The Sentence Appeal

[85]

Having
    vacated the attempted murder convictions on the water bottle counts, the
    premise on which the appellant was found to be a dangerous offender and sentenced
    to a period of indeterminate duration has changed appreciably.

[86]

In
    the circumstances, we must also set aside the trial judges declaration that
    the appellant is a dangerous offender and his imposition of an indeterminate
    period in custody. We order that the dangerous offender proceedings be heard by
    a different judge.

V.      DISPOSITION

[87]

The
    appeal is allowed in part. We allow the appeal on the eight attempted murder
    convictions related to tainted water, set aside the convictions and enter
    acquittals on those counts. We dismiss the appeal against the three convictions
    for attempted murder by letter bomb. Finally, we order a new dangerous offender
    hearing before a different judge.

Released:

HL                                                   H.S.
    LaForme J.A.

SEPT 30 2015                                  David
    Watt J.A.



Gloria Epstein J.A.



