



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mann, 2021 ONCA 103

DATE: 20210219

DOCKET: C65574

Feldman, Tulloch and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Warren Mann

Appellant

Adam N. Weisberg, for the appellant

Holly Loubert, for the respondent

Heard: February 3, 2021 by video conference

On appeal from the conviction entered by
    Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on
    April 20, 2015, and from the sentence imposed on April 21, 2016, with reasons
    reported at 2016 ONSC 2675.

Nordheimer J.A.:

[1]

Mr. Mann appeals from his conviction for
    attempted murder.
[1]
He also seeks leave to appeal his sentence of life imprisonment. For the
    reasons that follow, I would allow the conviction appeal and order a new trial.
    As a consequence, I do not reach the sentence appeal.

I: Background

[2]

The appellant originally met the victim when she
    was a sex worker. They met three of four times in late 2010 or early 2011, each
    time for an hour of paid sex. The appellant testified that the two agreed that
    the appellant should move into her apartment where she lived with her son. The
    two lived together for about three to four days before the victim, who had a
    history of alcohol abuse, was arrested on June 25, 2011 (for breach of
    probation and assaulting a police officer) and sentenced to a period of
    incarceration.

[3]

The appellant became the breadwinner of the
    house. He took responsibility to care for the victims children. During the
    victims incarceration, the appellant lived at the apartment with the victims
    son, paid the bills and gave financial assistance to both the son and the
    victims daughter.

[4]

The victim was released on March 28, 2012 and
    entered an alcohol rehabilitation program, which was completed in early May
    2012. The evidence at trial was that the program was successful. The victim first
    moved into a rooming house and then, in July 2012, moved into a rental home
    with her daughter and her daughters boyfriend in Barrie.

[5]

The appellant discovered that the victim was
    intending to move into the rental home on July 25, 2012. On that same date, the
    appellant, who was a long-haul truck driver, arrived back in Toronto from a
    long-distance haul and drove to Barrie. The appellant believed that he and the
    victim were developing a relationship and, consequently, he was expecting to
    move into the Barrie home on that day.

[6]

However, the romantic relationship that the
    appellant envisioned was not progressing as he had hoped. It appears that the
    victim did not share the appellants plans for their relationship. On this day,
    there was an exchange of text messages between the two with the appellant
    asking what he meant to the victim and what type of relationship she wanted.

[7]

The appellant spent the evening with the victim
    at the Barrie home. He wanted to discuss their relationship, but the victim did
    not. Eventually, the appellant went out to his car and wrote on an envelope: 
Just want to say thanks
[the victims first
    name], O
nce again you got what you
    wanted and to hell with me. and my feelings
. The appellant said that the
    message was a precursor to suicidal thoughts that led him to test a knife he
    had by running it across the palm of his hand. However, the knife was dull, he
    abandoned the idea, and he re-entered the house.

[8]

The appellant testified that he attempted to
    initiate a conversation with the victim about telling her children that he was
    moving in. She rebuffed him again. He testified that, at this point, the victim
    became angry and began to hit him. He recalled reaching out and grabbing her
    arms to stop her from hitting him. According to the appellants version of the events,
    the two lost their balance and fell down together. He testified that he had no
    memory of what happened next.

[9]

In fact, the appellant began choking the victim.
    He repeatedly banged her head against the floor. The appellant called 911 (although
    he did not remember doing so) and told the dispatcher that he would like to
    report a murder. He went on to say that he had killed his so-called girlfriend"
    by choking her and beating her to death with his hands. The 911 operator
    continued to hear loud banging during the call, which was consistent with the
    head injuries the victim suffered. When asked by the 911 operator if he was
    sure that the victim was dead, the appellant said, Uh pretty sure, shes going
    to be [unintelligible] anyway. The victim suffered life-threatening and
    permanent injuries, including brain damage, from the attack.

[10]

The appellant maintained that he did not intend
    to kill the victim. His position at trial was that the Crown had failed to
    prove the specific intent to kill. Among other things, defence counsel noted
    that the appellant did not make use of the knife in his vehicle nor did he make
    use of a hammer that was in the bedroom, where the attack took place, to carry
    out the attack.

II: Issues

[11]

The appellant raises two central issues on his
    conviction appeal:

1.

The trial judge erred in her instruction
    to the jury on the principle of reasonable doubt;

2.

The trial judge erred in admitting
    statements that the appellant made to a police officer at the time of his
    arrest.

III: Analysis

(1)

The reasonable
    doubt instruction

[12]

This issue can
    be dealt with in briefer form than might usually be the case because of the
    somewhat unique circumstances in which it arises. Put simply, the same issue
    has been addressed by this court  twice.

[13]

In her charge
    to the jury about reasonable doubt, the trial judge said:

A reasonable doubt
    is a real doubt that logically arises from the evidence, or the lack of
    evidence. It is a doubt based on reason and common sense after considering all
    of the evidence as a whole. It may be a doubt created by an inference or
    conclusion that you have drawn from the facts as you find them,
provided
    that that inference of or conclusion is not a speculation or a guess, but a
    much stronger belief arising from the proven facts, and based on the evidence
    alone.


If your doubt is
    about something that you have imagined or made up, or if it is a far-fetched
    doubt, then it is not a reasonable doubt. If it is a doubt based on sympathy or
    prejudice, then it is not a reasonable doubt.
It must be a doubt about an
    essential element of the offences charged, and it must arise from the evidence.

It is not enough for
    you to believe that Warren Mann is probably or likely guilty in respect of a
    particular charge. Proof of probable or likely guilt is not proof of guilt
    beyond a reasonable doubt. If you think that he is probably or likely guilty,
    you must find him not guilty, because Crown counsel would have failed to
    satisfy you of his guilt beyond a reasonable doubt.

You should also
    remember, however, that it is nearly impossible to prove anything with absolute
    certainty. Crown counsel is not required to do so. Absolute certainty is a
    standard that is impossibly high for the Crown to prove.

If, at the end of
    the case, after considering all of the evidence, you are sure that Warren Mann
    committed an offence, you should find him guilty of it, since you would have
    been satisfied of his guilt of that offence beyond a reasonable doubt.

If, at the end of
    the case, based on all of the evidence or lack of evidence, you are not sure
    that Warren Mann committed an offence, you should find him not guilty of it,
    since you would not have been satisfied of his guilt beyond a reasonable doubt.
    [Emphasis added.]

[14]

The problem
    arises with respect to the portions of the instruction that I have underlined
    above. With the exception of the substitution of the word belief for
    conclusion in the third sentence of the first paragraph above, the wording is
    identical to instructions that this court has twice before found to be erroneous,
    requiring a new trial:
R. v. Darnley
, 2020 ONCA 179, 387 C.C.C. (3d) 200, at
    paras. 32-36, and
R. v. Brown
, 2018 ONCA 1064, at para. 15.

[15]

The error is
    set out by Paciocco J.A. in
Darnley
at paras. 33-36, where he said:

First, a reasonable
    doubt need not arise from the evidence:
R.
    v. Villaroman
, 2016 SCC
    33, [2016] 1 S.C.R. 1000, at para. 28. It can arise from the absence of
    evidence, from what the Crown has failed to prove:
R. v. Lifchus
,
    [1997] 3 S.C.R. 320, at para. 36.

Moreover, an
    inference need not arise from "proven facts", which is "a
    standard that is never applicable to an accused":
R. v. Robert
(2000), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a
    reference to "proven facts" suggests an obligation to establish those
    facts to a standard of proof, yet a reasonable doubt can arise from evidence
    that, while not proven to be true to any standard of proof, has not been
    rejected.

It is also incorrect
    to link a reasonable doubt to a "conclusion" drawn from the facts. An
    acquittal need not be based on a conclusion about innocence but can rest on an
    inability to conclude guilt.

It is also an error
    to suggest that an exculpatory inference must be "a much stronger
    conclusion" than a speculation or guess. That language imports the need
    for a strong inference, when an exculpatory inference relating to a required
    element of the offence need merely raise a reasonable doubt:
Villaroman
,
    at para. 20

[16]

As I have said,
    the only difference between the instructions here, and the instructions in these
    two earlier cases, is the substitution of the word belief in the third
    sentence. That change does not cure the error identified. The effect of the
    instructions is still to essentially reverse the onus. It places a burden on
    the accused to prove something from which a reasonable doubt could arise  a
    burden that is not placed upon any accused and one that is inconsistent with
    the presumption of innocence.

[17]

In response, the
    respondent asserts that the problem in this instruction is alleviated when the instructions
    are reviewed as a whole. The respondent adds that the problem is further
    alleviated because the proper instruction on reasonable doubt was given to the
    jury at the outset of the trial.

[18]

That submission
    fails on two fronts. First, the same argument was expressly rejected in
Darnley
,
    where Paciocco J.A. said, at para. 38:

There is no force in
    the Crown's contention that these errors lose their significance when the jury
    charge is read as a whole. Errors relating to the burden and standard of proof
    may not be reversible "if the charge, when read as a whole, makes it clear
    that the jury
could not have been under any misapprehension
as to the
    correct burden and standard of proof to apply" (emphasis added):
R. v. W.(D.)
,
[1991] 1 S.C.R. 742, at p. 758. This
    is not a case for inferring that these errors did not confuse or mislead the
    jury. [Emphasis in original.]

[19]

The other is
    the fact that the final instructions were given to the jury in hard copy. Consequently,
    if the jury had any reason to revisit the instruction on reasonable doubt, we
    can safely assume that they would have had reference to the hard copy instructions
    that they had, not their recollections from the opening of the trial some 25
    days earlier.

[20]

Unfortunately, the
    error in the instructions undermined both the presumption of innocence and the
    burden of proof. It is a fundamental error that gives us no alternative but to
    set aside the convictions and order a new trial.

(2)

The s.10(b)
    issue

[21]

While the
    resolution of the first issue is sufficient to dispose of the appeal, I will
    address the second issue since it will likely arise at a new trial. Since the
    matter has been fully argued, it does not make any sense to leave the issue
    hanging without resolution. To do otherwise, does a disservice to counsel and
    the trial judge at the new trial.

[22]

The appellant was arrested at the scene without
    incident. The officer who arrested the appellant immediately turned him over to
    two other officers. It is while the appellant was in the custody of these two
    officers that he made the impugned statements.

[23]

The statements began after one of the officers
    asked the appellant whether he had been stabbed. There was blood on the
    appellant and, as the trial judge found, it was reasonable for the officer to
    make this inquiry. After answering "no" to the question of whether he
    had been stabbed, the evidence of the officer was that the appellant
    spontaneously stated that he was planning to kill himself with a knife that
    night, but it was too dull. He said that the knife was in the centre console of
    his vehicle that was parked outside of the residence, and that there was also a
    suicide note.

[24]

In contrast, the other officer said that the
    appellants utterances began while the officers were walking with the appellant
    out of the residence and continued on their way to the police car. His evidence
    was that the appellant made the following statements: "she just pissed me
    off'; "I just lost it on her"; "I just snapped"; and
    "I tried to commit suicide tonight with my knife but it wasn't sharp
    enough. I tried it on my hands."

[25]

Upon being placed in the police cruiser, the
    appellant was told by the first officer that he was under arrest for aggravated
    assault and was provided with the rights to counsel and cautioned, in standard
    format. The appellant indicated that he understood each of these items of information,
    and responded that he had no lawyer in Barrie, but that he would speak with
    duty counsel.

[26]

The trial judge found that the appellants
    utterances were made in violation of his s. 10(b)
Charter
rights. She
    found that the appellant was not given his s. 10(b) rights at the first
    opportunity. In particular, the trial judge found that the first opportunity
    was not when the appellant was placed in the police cruiser, as between five to
    ten minutes had elapsed between his detention and the time that the appellant
    was removed from the home. No appeal is taken from that conclusion by the trial
    judge.

[27]

Having found a s. 10(b) breach, the trial judge
    then considered whether the evidence ought to be excluded under s. 24(2). She
    concluded that it should not. The appellant says that the trial judge erred in
    her s. 24(2) analysis. I agree.

[28]

The trial judge addressed the three factors from
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. On the first factor, she
    concluded that the breach was not deliberate, or of such seriousness that the
    court should seek to disassociate itself. On the second factor, the trial
    judge found that the impact on the appellants rights was tempered
    significantly because the appellant had made more serious,
    self-incriminating remarks in the 911 call. On the third factor, the trial
    judge found that, while the exclusion of the evidence would not significantly
    undermine the prosecutions case, the evidence was highly relevant to the
    issue of intent and thus inclusion of the evidence was favoured.

[29]

In my view, the trial judge erred in her
    analysis of all three of the
Grant
factors. First, as found by the
    trial judge, the officers delayed in providing the appellant with his rights to
    counsel. The fact that the officers did not do so deliberately does not lessen
    the nature of the breach. It simply does not aggravate it. The officers did not
    offer any explanation for the delay. The crime scene was being adequately
    handled by the many other officers who were on scene (including two sergeants)
    and the victim was being treated by paramedics.

[30]

The right to counsel is an extremely important
    right. Persons who are detained by the police may need immediate advice and
    counsel. As explained by McLachlin C.J. and Charron J. writing for the majority
    in
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at para 41: [a]
    situation of vulnerability relative to the state is created at the outset of a
    detention. Thus, the concerns about self-incrimination and the interference
    with liberty that s. 10(b) seeks to address are present as soon as a detention
    is effected. And, as Doherty J.A. observed in
R. v. Rover
, 2018 ONCA
    745, 143 O.R. (3d) 135, at para. 34: [t]he effective implementation of the
    right to counsel guaranteed by s. 10(b) depends entirely on the police.

[31]

It is not up to the police to decide when they
    will get around to providing rights to a person whom they have arrested. The
    failure of the police to understand this basic proposition is a serious matter
    and must be treated as such when it is breached.

[32]

Second, the breach of a persons rights, and the
    extraction of utterances from that person, is not tempered by the fact that
    the police have other evidence of a similar type, properly obtained. The fact
    remains that the police have extracted potentially incriminating evidence in
    violation of a guaranteed right. The maxim no harm, no foul has little place
    in the assessment of a violation of constitutionally protected interests. I
    would note that, both in the final instructions to the jury, and in the Crowns
    closing submissions, the admitted utterances were given prominence.

[33]

Third, the trial judges analysis of inclusion versus
    exclusion is inconsistent with her earlier analysis of the importance of the
    evidence. Having lessened the impact of the evidence obtained under the second
Grant
factor, the trial judge then reversed course in finding that the evidence was
    highly relevant under the third
Grant
factor. The fact is that the
    evidence was not necessary to the prosecutions case and this fact argued in
    favour of its exclusion.

[34]

I would set aside the trial judges decision
    regarding s. 24(2) and exclude the evidence from any new trial.

Conclusion

[35]

Unfortunately, both
    errors that I have discussed infected the fairness of the trial. A new trial is
    required. I would allow the appeal, set aside the conviction on attempted
    murder and the finding of guilt on aggravated assault, and order a new trial on
    both offences.

Released:
February 19, 2021 KF

I.V.B. Nordheimer J.A.

I agree. K. Feldman J.A.

I agree. M. Tulloch J.A.





[1]

There was also a finding of guilt for aggravated assault but
    that finding was stayed on the principles set out in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729


